Bottle of Wine.... Gallo Glass vs. DTSC - Part 4

Let's look at the facts...as we know them from the compliant.

Show the good people what we have Detective Friday:

The DTSC contends that:

Okay...nothing wrong with that.  That's how you recycle glass to make new glass.

This is where, in my opinion, the white/gold or blue/gold color of the dress decision gets made,

There are four things in number 33 that are very critical to the compliant creating the domino effect for all these fines.

1. "Sludge"
2. RCRA hazardous waste
3. Toxicity Characteristic Leaching Process (TCLP), and
4. "recyclable material"

California is a weird state in terms of how it regulates waste.  Back in the 80's and early 90s when I managed waste there, we had no large, small, or conditionally exempt generator status.  Everyone was treated the same and everything was a "hazardous waste" in California because they had set the toxicity threshold to 5000 mg/kg LD50.

Number 33 of the complaint calls the EP sludge "a RCRA hazardous waste" because it exhibits the toxicity characteristics under TCLP for "lead, arsenic, cadmium, and selenium" above the regulatory threshold in 40 CFR 261.24 Table 1.

I can find no mention of the DTSC sampling this EP waste and confirming that these four metals were above the threshold.  The DTSC claims they are above the regulatory threshold, and, in number 35, the complaint states:

The EP sludge that did not make it into the silo or furnace was...disposed of as a hazardous waste to an authorized landfill.

What I assume now to be true is that the EP sludge must contain these four metals above the toxicity threshold making the waste D008, D004, D006, and D010 characteristic hazardous waste under RCRA.

This means that the process of making glass bottles produces a waste, called "sludge" that meets the definition of a hazardous waste.  This, as you have seen me write about before - and here is where it gets wacky - is only true if the EP sludge meets the definition first of being called a "solid waste."

Under RCRA, because of how Congress wrote the hazardous waste definition, only a "solid waste" can become a "hazardous waste."

Source

If you are unfamiliar with hazardous waste, well, once again, here is where it becomes wacky.  You see the term "solid waste" does not mean solid.  It has its own definition:

Source

Remember the term "sludge" that the DTSC used for the EP stuff?  It meets the RCRA definition of "sludge" because it came for an "air pollution control facility" - the EP Unit.

Now that we have a "sludge" from an air pollution control facility, we have a "solid waste."  Once you have a "solid waste" you must make a hazardous waste determination.  Based on the compliant, this sludge is a hazardous waste because it exhibits the characteristics for toxicity for D004, D006, D008, and D010.

Case closed!  Let's go home!

But...but what about 40 CFR 261.2?

Yeah, about that...

Next post: Part 5