Part 11: Air Products Wacky Misadventure

EPA contends Air Products has violated RCRA because they were sending their sulfuric acid back to the company they purchased it from.

That company - Agrifos - used the sulfuric acid to make fertilizer which they sold.

EPA contends the used sulfuric acid is "spent."

Spent sulfuric acid that is being recycled is a solid waste.

The spent sulfuric acid, because it has a pH < 2 is a hazardous waste - D002.

The spent sulfuric acid also contains 2,4-DNT above 0.13 mg/L which also makes it a hazardous waste - D030.

Air Products did not see it that way, contending: "[it] was a product that was purposefully produced since the inception of its Facility and that this product was not a solid waste or a hazardous waste."

EPA is correct based on the following:

1. The sulfuric acid was used and as a result of contamination could no longer serve the purpose for which it was produced without processing.  This made it meet the definition of "spent."
2. The "spent" sulfuric acid was being recycled as an ingredient in another process (Agrifos)
3. The recycling involved producing a fertilizer.
4. The fertilizer is designed to be placed on the ground.
5. Because the spent sulfuric acid was used to produce products that are applied to or placed on the land, this meets the definition of "used in a manner constituting disposal."
6. A "spent" material that will be "used in a manner constituting disposal" meets the definition of a solid waste.
7. Air Products did not make a hazardous waste determination or use an exclusion.
8. Because a solid waste was generated, the pH and 2,4-DNT parameters will make it a hazardous waste.

Moral of the story:

It's all about meeting or not meeting the definition of solid waste.  What you think sounds logical or reasonable or is sound has nothing to do with the process.  Once it meets the definition you are stuck there unless you can find an exclusion.  Once it becomes a solid waste then you must make a hazardous waste determination.  Based on that, you can then determine how and where it will be managed. 

This horse has now been beat to a pulp and can be discarded.  Hmmm, I wonder if it meets a hazardous waste definition?


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Part 1: You say product, they say waste

An interesting court case came to my attention today and it got me thinking about how critical the solid waste determination step is.  A company, Air Products, purchased sulfuric acid from another company, Agrifos, and used that sulfuric acid in one of their manufacturing process.  Air Products then gave the used sulfuric acid back to Agrifos where it was used to make fertilizer.  On the surface, most folks would say "And what's wrong with that?  It's not a waste if it's still usable, besides...isn't that recycling?"

Well that's the problem.  What looks and sounds logical or reasonable often runs afoul of the regulations.  I teach all my students to “know thy waste” which, simply put, means know everything about every waste produced.  Regardless of how you choose to handle it, the first question must always be “does it meet the definition of a hazardous waste?”

Once this is known, the next question is “what are my options for getting rid of it?”  On first look, this appears to be backwards, since the method of management will determine if it must be handled as a hazardous waste or may be managed less stringently.  The knowledge that it meets the definition of a hazardous waste should be made independently from the disposal or management method proposed.

In the case of Air Products and their “spent sulfuric acid” a $1.5 million dollar fine could have been avoided had they worked this waste stream through all the steps leading to a hazardous waste determination.  Unfortunately, the hazardous waste determination process is not very intuitive and ripe with many incorrect assumptions based on not understanding the difference between a chemical that is a product and one that is a waste.

There is absolutely no difference in the hazard or chemical property of the spent acid used by Agrifos when compared to new sulfuric acid.  Yes it is true that Air Product’s spent sulfuric acid also contained 2,4-DNT above 0.13 mg/L but that contaminant did not play any real part in the EPA’s enforcement effort.  In fact, had the 2,4-DNT been absent, the end result would still have been the same.

So if there is no difference between spent sulfuric acid and new sulfuric acid, why all the fuss?  Well the fuss is because by regulation they are different.  And therein lies the problem for most generators, it just doesn’t make sense.  Here Air Products has something that is seen as valuable by another company, why can’t they treat it like a product and not a waste?

There is a bit of back story missing that is not found on the EPA’s web site or in the Consent Decree that would provide the needed information to see if Air Products erred when they gave the spent acid to Agrifos  (I have sent an email asking for more info, and if it comes I’ll print their response.)  So, one must assume, based on the fact that there is a 1.5 million dollar fine and a Consent Decree, that the necessary requirements to manage it as “product” were not being met.

This being the case, it all came down to EPA’s contention that the sulfuric acid was spent.  Once that became their determination, Air Product’s method of sending the sulfuric acid to Agrifos became tantamount to illegal land disposal, the same as if they just up and dumped it on the ground.  That’s what they did, but that’s not what they did.

Huh?

And now you see the problem for companies like Air Products – this just does not make any sense when you look at it all the way through.

• Does Agrifos make fertilizer?   Yes 
• Does Agrifos use sulfuric acid to make their fertilizer?  Yes
• Does the fertilizer go on the ground?  Yes
• Is it legal for fertilizer made with sulfuric acid to go on the ground?   Yes 
• Did Air Products provide sulfuric acid to Agrifos?   Yes
• Did Agrifos use that sulfuric acid to make fertilizer?  Yes
• Was that fertilizer made to be put on the ground?  Yes

Well that fertilizer - because it is designed to be placed on the ground - makes Air Products' sulfuric acid a hazardous waste.

Now wait just a cotton-picken minute there Pilgrim!  That makes no sense at all!

Yup, you’re right, which is why you can see how easily it was for Air Products to go down a path that created this big fat fine and the embarrassment of having their name plastered all over a Consent Decree for what the EPA (nicely enough) calls “hazardous waste mismanagement.”  They thought they were recycling, win for them win for Agrifos, a beneficial use of what would otherwise be a waste, which to most everyone looking at it would take it from waste status and put it in product status.  But it doesn't work that way.

Next post: Why the Solid Waste Determination is a really, really, really important step.