In the fall of 2010, WasteXpress (a licensed hazardous waste transporter) approached representatives of the Oregon Department of Environmental Quality about a proposal to transport solvent to a secondary user. The original user was SolarWorld in Beaverton, Oregon, which used technical grade (almost pure) isopropyl alcohol (“IPA”) as a solvent in its solar panel manufacturing process. Prior to that, SolarWorld managed the used IPA as a hazardous waste, offering it for transport under a Uniform Hazardous Waste Manifest (“UHWM”) as a characteristically ignitable hazardous waste. Due to constraints in its manufacturing process SolarWorld could only use the IPA once. Because it was only contaminated with minimal amounts of water, SolarWorld’s used solvent could still be directly reused as a solvent in any number of other applications. Apollo Chemical, located in nearby Portland, Oregon, proposed substituting SolarWorld’s used IPA for virgin IPA in its windshield wiping formulations (as a solvent). DEQ’s representative responded:
…I think this is legitimate reuse rather than recycling which is a waste management technique. Products going for reuse are not hazardous waste, they are not counted, and things not counted are not reported.
WasteXpress began transporting SolarWorld’s used IPA to Apollo Chemical under standard Bills of Lading. SolarWorld paid WasteXpress for transport only and was credited $1.00 per barrel (or load) to reflect a reciprocal nominal payment by Apollo Chemical to WasteXpress for the “product”. Because Apollo Chemical’s use was seasonal, and SolarWorld’s was not, Apollo Chemical began stockpiling the used IPA, first at its manufacturing facility and then at a nearby warehouse (where Apollo Chemical leased space from an unaffiliated person). Apparently, Apollo Chemical used the IPA on a last in, first out basis, resulting in the older product remaining stored in the leased warehouse space for an indefinite period. That is, until the warehouse owner transferred some thirty-three drums of the used IPA to his farm in Yacolt, Washington (apparently, without Apollo Chemical’s knowledge) where he began to use it as a fire accelerant to burn wood debris piles. In the summer of 2015, the warehouse owner’s neighbors called the fire department, the fire department called in the Washington Department of Ecology, and WDOE notified the Oregon DEQ.
Two years later, in July 2017, DEQ issued a Notice of Civil Penalty Assessment and Order to SolarWorld alleging that SolarWorld had offered “spent flux” (the used IPA) for transport without a UHWM and that the material was a “hazardous waste”. In January 2018 DEQ issued a similar Notice to WasteXpress, specifically alleging that the SolarWorld used IPA was a “spent material” as that term is defined at 40 CFR 261.1(c)(1) (2010). DEQ added as rationale that “During the course of its use by SolarWorld, flux became contaminated and could no longer be used by SolarWorld in its manufacturing process.” SolarWorld quickly settled with DEQ (likely because it feared some blemish to its ecological reputation) but WasteXpress contested DEQ’s enforcement action.
DEQ quickly dropped its allegation that SolarWorld’s used IPA was a “spent material”. As WasteXpress was quick to point out, that term, as it appears in the “recycling rules” at 40 CFR 261.2(c), is defined as follows:
A “spent material” is any material that has been used and as a result of contamination can no longer serve the purpose for which it was produced without processing.
In its Amended Notice, DEQ simply alleged that the thirty-three drums of used IPA that ended up in Yacolt were, in effect, “discarded” by SolarWorld. DEQ argued that to the extent that the thirty-three drums of IPA found in Yacolt did not find legitimate reuse that they were hazardous waste, referencing the legitimacy criteria promulgated as part of the Definition of Solid Waste rules at 80 FR 1694-1814 (January 13, 2015). DEQ’s hazardous waste specialist testified as follows:
It’s based on my understanding of federal policy applying to reuse, reclamation, things like that. I’ve had a pretty long history dealing with this and if the material is reused then, and it’s legitimate, then it’s still considered a product and we encourage that. If the material does not find a reuse not just finding somebody that might be able to reuse it but actually go and be reused then those, that material, those parts of that same material that did not find reuse, then it was never reused and you know at the point it was initially spent at SolarWorld it would be waste at that point. Retroactively. It had always been waste. You need to fulfill the whole nature of being a material, to actually finding legitimate reuse and being reused for that purpose.
In his November 9, 2021 “Proposed and Final Order” 2020_ABC_03773_WasteXpress_PFO_v2 the Administrative Law Judge dismissed all charges against WasteXpress, finding that because the used IPA was not a “spent material” that SolarWorld’s intent determined whether or not the used IPA was a “solid waste”. As the ALJ stated, “SolarWorld believed that the used IPA remained a commercially viable product for other manufacturers without reclamation or processing.” The ALJ concluded “At some point, after [WasteXpress] transported the used IPA to Apollo, Apollo decided to…discard a portion of the used IPA…” The ALJ rejected DEQ’s argument that Apollo Chemical’s abandonment of the used IPA was retroactive, thereby implicating SolarWorld and WasteXpress, based in part on the Oregon definition of “generator” [OAR 340-100-0010(r)] and the concept of “point of waste generation” in the federal hazardous waste rules at 40 CFR 262.11(a) (the hazardous waste determination must be made “at the point of waste generation”).
DEQ initially filed a petition for review by the Environmental Quality Commission but then purported to withdraw its Amended Notice of Civil Penalty Assessment and Order rather than rely on EQC to “substitute its judgment” (pursuant to OAR 340-011-0575) for that of the ALJ. IRM_2017_003_Withdrawal_Order In withdrawing its penalty action, DEQ dubiously asserted that “no Final Order will be issued in this case” and that DEQ would continue to “interpret” hazardous waste law as it had in its actions against SolarWorld and WasteXpress.
At a May 9, 2022, Advisory Committee meeting, DEQ presented “Proposed Federal and State RCRA Hazardous Waste Rule Considerations” describing the effects of Oregon adopting the federal 2015 and later revisions to the Definition of Solid Waste. In describing what the revised DSW rule would do, DEQ stated in part:
Provides a definition for hazardous secondary material, which is material that would characterize as hazardous waste except when managed as a non-waste when legitimately recycled or reused.
Establishes recycling legitimacy criteria under 40 Code of Federal Regulation (CFR) Section 260.43, which apply to all recycling and reuse of HSM.
hw2022m1PreInform Careful readers will note that 40 CFR 261.2(c) refers to materials that are “recycled” – not merely reused – and that the definition of “hazardous secondary material” promulgated at 40 CFR 260.10 only refers to “recycled” secondary materials. It appears then that DEQ would interpret the new legitimacy rules of 40 CFR 260.43 (“Legitimate recycling of hazardous secondary materials”) as applicable to used materials that are neither “abandoned” nor “recycled” as described in 40 CFR 261.2(c); materials like the used solvent that WasteXpress transported from SolarWorld to Apollo Chemical.
DEQ has tried to bury the ALJ’s “Proposed and Final Order” in the WasteXpress matter because the ALJ’s decision is contrary to DEQ’s claim of jurisdiction over used materials that are neither abandoned nor recycled but which have not been managed in strict accordance with the legitimacy rules set out in 40 CFR 260.43. The market controls which Congress relied upon in limiting RCRA jurisdiction to materials that have been “discarded” (e.g., garbage, refuse, sludge and other discarded material) [42 USC 6903(27)] are in DEQ’s view insufficient. But as the saying goes, “you can’t get there from here”. No matter how appropriate it may be to exert regulatory control over used but still usable hazardous materials that are not otherwise discarded, DEQ needs to find some other regulatory basis than the authority delegated to it under the RCRA.