A&WMA 2011 Annual Conference Waste vs. Resource Carl Eldred Hopping Green & Sams Tallahassee

1. A&WMA 2011 Annual Conference Waste vs. Resource Carl Eldred Hopping Green & Sams Tallahassee

2. Overview • Waste vs. Resource, from a U.S. regulatory perspective. • Regulations are intended to promote recycling, but often times have the opposite effect. • We are going to look at: • Recycling of Hazardous Wastes. • Combustion of non-hazardous secondary materials.

3. Background • Hazardous Waste Regulation. • Hazardous waste is primarily regulated at the federal level under the Resource Conservation and Recovery Act (“RCRA”). • RCRA was created to • “reduce the amount of waste and salvageable materials and to provide for proper and economical solid waste disposal practices.” 42 U.S.C. §6901. • “promote the protection of health and the environment and to conserve valuable material and energy resources.” 42 U.S.C. §6902.

4. What is a Hazardous Waste? • Hazardous waste is a subset of solid waste. • A solid waste is defined as any “discarded material.” • A “discarded material” is defined to include materials that are abandoned, or recycled. • A solid waste may be subject to extensive hazardous waste regulations if it is a “listed waste” or if it exhibits one of the following characteristics: toxicity, corrosivity, ignitability, reactivity).

5. Prohibited Recycling Activities • Use constituting disposal • Burning for energy recovery or producing a fuel. • Speculative accumulation.

6. Waste or Resource? • Howmet v. EPA, 614 F.3d 544 (D.C. Cir. 2010) • Howmet used a corrosive KOH solution (liquid potassium hydroxide) to clean ceramic core from metal casings produced for aerospace and industrial gas turbine applications. • The used KOH was sent to another company, Royster, who reclaimed it by adding it to its fertilizer to control pH and to provide a source of potassium. • EPA claimed that Howmet violated RCRA by failing to manage the KOH as a hazardous waste and for failing to prepare hazardous waste manifests for the shipments.

7. Waste or Resource? • Question before the court – was the KOH a spent material, i.e, a material that has been used and as a result of contamination can no longer serve the purpose for which it was produced without processing? • Court upheld EPA’s determination that the KOH was a spent material. • Court also found that the use of the KOH to make fertilizer was a “use constituting disposal.”

8. Waste or Resource? • EPA Guidance • Company uses solvents to clean circuit boards. After a while, the solvents can no longer be used to clean circuit boards due to contamination. Another company purchases the solvents and uses them as a metal degreaser. Is the solvent generated by the circuit board manufacturer a waste or resource? • Semiconducter industry uses ultra-pure concentrated sulfuric acid (95-97%) to clean silicon wafers before they are etched. During use, acid becomes diluted and picks up small particles from the wafers. At 80% the sulfuric acid is too dilute for continued use. Can the used sulfuric acid be used as an ingredient to produce reagent grade sulfuric acid (50%)? • What if it was used to produce a fertilizer?

9. EPA Re-Definition of Solid Waste • In 2008 EPA published its redefinition of solid waste that was intended to: • Promote resource conservation and sustainability by encouraging recycling and reuse of hazardous wastes. • By making recycling and reuse both cost effective and safe by streamlining the recycling regulations while ensuring materials are not discarded in a manner that is not protective of human health and the environment.

10. EPA Re-Definition of Solid Waste • The final rule established three exemptions from hazardous waste regulation for hazardous secondary materials that are being legitimately reclaimed: • Under the Control of the Generator in Non-Land-Based Units • Under the Control of the Generator in Land-Based Units • Transferred for the Purpose of Legitimate Reclamation

11. Legitimacy Criteria40 C.F.R § 260.43 • Material must provide a useful contribution to the recycling process or product, and the process must produce a valuable product or intermediate. • Useful contribution: • Contributes valuable ingredients. • Replaces a catalyst or carrier. • Is the source of a valuable constituent recovered in the recycling process. • Is recovered or regenerated by the recycling process. • Is an effective substitute for a commercial product.

12. Legitimacy Criteria40 C.F.R § 260.43 • Valuable Product or Intermediate: • Sold to a third party, or • Is an effective substitute for a commercial product, as an ingredient, or as an intermediate in an industrial process.

13. Legitimacy Factors40 C.F.R § 260.43 • Additional factors that must be considered: • Material should be managed as a valuable commodity. • The product does not contain: • Significant concentrations of listed hazardous constituents. • Elevated levels of listed hazardous constituents when compared to analogous products. • Exhibits a hazardous characteristic that analogous products do not exhibit.

14. Non-Hazardous Secondary Materials • March 21, 2011, EPA promulgated the Identification of Non-Hazardous Secondary Materials that are Solid Waste rule to implement provisions of the Clean Air Act (“CAA”) related to solid waste combustion units. • Status of the rule is uncertain. On May 18, an industry coalition filed a petition with EPA seeking an administrative stay of the rule, in part due to EPA’s stay of the CISWI and Boiler MACT rules it was intended to implement. • In promulgating the rule, EPA was keen to distinguish materials that had been discarded.

15. Waste or Resource? • EPA considers most non-hazardous secondary materials that are burned in combustion units to be solid wastes. • Limited exemptions: • Materials Within the Control of the Generator Used as Fuel • Materials Outside the Control of the Generator Used as Fuel • Scrap Tires Collected Under Established Tire Collection Programs • Materials Used as Ingredients, e.g., blast furnace slag, coal combustion residuals, and foundry sand. • Discarded Materials Processed to Produce Fuel or Ingredient Products

16. Legitimacy Criteria40 C.F.R. § 241.1 • Recycling must be legitimate. • Fuel legitimacy criteria: • must be managed as a valuable commodity. • have a meaningful heating value and be used as a fuel in a combustion unit that recovers energy. • contain contaminants at levels comparable to or lower than those in traditional fuels which the combustion unit is designed to burn.

17. Legitimacy Criteria40 C.F.R. § 241.1 • Ingredient legitimacy criteria: • must be managed as a valuable commodity • provide a useful contribution to the production or manufacturing process • produce a valuable product or intermediate • result in products that contain contaminants at levels that are comparable to or lower than those found in traditional products that are manufactured without the non-hazardous secondary material. • If the material was discarded in the first instance (i.e., disposed, abandoned, or thrown away) would remain a solid waste

18. Conclusion • There are significant regulatory consequences flowing from whether a material is deemed a waste or a resource. • Determination based on various criteria. • Likely a waste when: • Abandoned or thrown away prior to reuse. • Reuse is not the same as the original use. • Contains additional constituents not found in the virgin material. • Provides marginal contribution to the process. • Likely a resource when: • Used in an ongoing process by the generator. • Managed as a valuable commodity. • Replaces the use of a virgin material. • Is effective.

19. Questions? Carl Eldred Hopping Green & Sams 850-222-7500 celdred@hgslaw.com