ILLIMOIS POLLUTION CONTROL BOARD

September 20,

1984

SOUTHERN CALIFORNIA CHEMICAL

CO~,INC.,

Petitioner,

v.

)

PCB 84—51

)

tT:LINOIS ENVIRONMENTAL

)

PROTECTION AGENCY,

)

Respondent.

MR. BRUCE L. WALD, TISHLER & WALD,

LTD. APPEARED ON BEHALF

OF’

T~I1~

SOUTHERN CALIFORNIA CHEMICAL CO., INC.;

MR. DONALD L. GIMBEL, ATTORNEY-AT-LAW, APPEARED ON BEHALF

OF

THE

ILLINOIS ENVIRONMENTAL PROTECTION AGENCY.

OPINION AND ORDER OF THE BOARD

(by J. 0.

Dumelle):

This matter comes before the Board upon an April

25, 1984,

petition for variance filed on behalf of the Southern California

Chemical Company

(SCC) requesting variance from the manifest

requirements of 35

Ill. Mm.

Code 809, or alternatively, that the

proceeding be dismissed as unnecessary.

On May

29,

1984,

the

Illinois Environmental Protection Agency

(Agency) filed a recom-

mendation that variance by denied and a request for hearing.

Hearing was held on August 2,

1984, at which the parties appeared

and

two witnesses testified.

SCC is the original manufacturer and formulator of ammoniacal

etching solutions which are supplied to its customers essentially

copper—free.

There are no organics or acids used in the proprietary,

patented formulations

(U.S.

Patent No.

3,705,061) which have

been

developed to be reused and to be valuable at all stages during

treatment.

These ammoniacal etching solutions are used by SCC~s

customers at their facilities in automatically controlled etching

systems, utilizing SCC—supplied chemical monitoring and replenish-

ment equipment.

After they are used to remove copper from

printed

circuit boards,

the copper-laden solutions are returned to 5CC

via SCC—supplied returnable deposit containers,

or leased railcars

and trucks.

The copper-bearing solutions are routinely picked up

at the time delivery of “fresh” product is made.

On receipt

of

these solutions at the Company’s Union plantsite,

the copper

is

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—2—

removed from these solutions using a closed—loop Liquid Ion

Exchange System.

The recovered copper

is processed into copper

sulfate and sold as a normal

item of commerce,

The ammoniacal

etching solutions, depleted of copper,

are chemically adjusted to

compensate for loss due to evaporation during customer use and

are resold as “fresh” ammoniacal etching solution,

All of the

copper—laden solutions returned to SCC are either regenerated

in

this manner or directly sold by SCC to customers in other indus-

tries.

The value of the spent etchant exceeds the value of the

fresh etchant.

SCC contends that there are no wastes generated in this

totally closed-loop system and the only waste products that might

be generated at the facility would come from plant clean-up or

routine container washing.

These wash waters are held for batch

neutralization and then periodically disposed of according to the

appropriate regulations.

SCC argues that the Board’s decision

in

this case should be controlled by

§~

-Kleen

Corp.

v,EPA

(PCB

80—12,

37

PCB

363, February

7,

1980; affirmed by the Illinois

Appellate Court,

2nd District, No.

80-650, January

4,

1982.)

On

the other hand, the Agency takes the position that after the

etchant sold by SCC to its customers is used,

it becomes a

special waste and is thus subject to the manifest requirements

of

35 Ill. Adm,

Code 809.

Furthermore, because the waste is

hazardous,

the waste is subject to the manifest regulations in

3

Ill. Adm. Code 722.120 to 722.123.

The Board agrees with the Petitioner that this case is

controlled by the

§~

~-K1een

decision.

The Agency’s reasoning

in this case is based on the same faulty assumption which was

rejected in the ~~-Kleen

case,

As the Appelate Court in

Saf~~ieenstated:

“The Agency

posed

the question of whether or

riot

wastes cease

to

be wastes under Chapter

9 of the waste

regulations

if they are destined to be recycled.

This,

however,

is not the proper inquiry on the facts in this

case,

Rather the threshold

question

is whether or not

the materials in issue are

“wastes” in the first place.”

(Ill._E.P.A.

v.

Ill. Pollution_Control Board and Safety-

&flT~~1T~

Co~t

nd~TstrjCt,

No.

80—650, January

4,

1982,)

The Agency attempts to distinguish this case on the basis that

P,A,

82-380 amended the Environmental Protection Act definition

of “hazardous waste” which was in effect at the time Safe~~K1een

was decided.

(See Respondent’s Brief In Lieu of Closing Argument.)

The Board finds that this is

“a distinction without a difference”

since, as stated in Safet~y—K1een,

one doesn’t

get to the question

of whether there is either a “special” or a “hazardous” waste

until

it is determined that a “waste”

is involved in the first

R(1~

IAiL

---

—3—

place.

Similarly,

the Agency’s arguments relating to the RCRA

hazardous waste delisting requirements are premature and irrelevant,*

Having stated that this case is controlled by Safe~y~leen,

we will nonetheless review the reasoning in that case in order to

clarify the factors to be considered in a case involving the “Is

there a waste?” question.

To determine whether a “waste”

is

involved, we turn to the definition of “waste” in 35

111. Adm.

Code 809.103:

“Waste”

means any garbage,

refuse,

sludge

from a waste

treatment

plant,

water

supply

treatment

plant,

or

air

pollution control facility or other discarded material,

including

solid,

liquid,

semi—solid,

or contained gas-

eous

material

resulting

from

industrial,

commercial,

mining and agricultural operations,

and

from community

activities.

“Waste”

as

here defined

does

not include

solid

or

dissolved

material

in

domestic

sewage,

or

solid or dissolved material in irrigation return flows,

or

in

industrial

discharges

which

are

point

sources

subject

to

permits

under

Section

402

of

the

Federal

Water

Pollution

Control

Act,

33

U.S.C.,

par.

1251

et

seq.; or source,

special nuclear, or byproduct material

as defined by the Atomic Energy Act of 1954,

42

U.S.C.,

par.

2001 et

seq.;

or

radioactive materials discarded

in

accordance with the provisions

of

“Illinois Revised

Statutes,

1977,

Chapter

111½,

par.

230.1 et seq.” ap-

proved

August

16,

1963,

as

now

or

hereafter

amended,

and

as

authorized by

regulations

promulgated

pursuant

to

the

“Radiation

Protection

Act,”

Iii,

Rev.

Stat,,

1977,

Ch.

111½

par.

211

et

seq.;

as

now or hereafter

amended.

“Waste

as

here

defined

is

intended

to

be

consistent

with

the

definition

of

“solid

waste”

set

forth

in Section

1004(27)

of resource Conservation and

Recovery Act of

1976, U.S.C., par. 6901 et seq.

Since the spent etchant does not fit into any of the enumer-

ated categories

in this definition,

the question is whether it is

“other discarded material.”

In Safe~y~Kleenthe Board articulated

the standard that something “destined to be reused” is not “dis-

carded.”

The Board’s finding that the product involved was

“destined to be reused” was based on the unique facts in that

case,

i.e.,

that the company involved maintained ownership over

the solvent and maintained control over the solvent at all stages.

*For the record, the Board notes that both the federal and

state RCRA regulations exempt from regulation “hazardous waste”

which is “being beneficially used or reused or legitmately recycled

or reclaimed.”

See 35

Ill, Adm, Code 721,106(a)(1) and

40 CFR.

IEPA concedes this point in its “Brief In Lieu of Closing Argument.”

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—4—

The question, then,

is whether SCC maintains ownership and

control over the etchant in question in this case,

Contrary to

the allegation of the Agency that the Petitioner has failed to

prove ownership of the spent etchant, Petitioner presented

evidence that the contract price for the use of its solvent

is

conditioned on

“all

spent material generated being the property

of Southern California Chemical Co.,

Inc.”

(See Petitioner’s

Group Exhibit No,

1,)

SCC states that the one instance

in which

it has sold the etchant without maintaining ownership of the

spent etchant involves a customer which itself recycles the

etchant and,

again,

there is no “waste” involved,

(Petitioner’s

Renly to Agency’s Recommendation and Request for Hearing,

p.

2.)

While the transaction involved is characterized as a “sale”,

SCC retains a property right in and responsibility for the

etchant before and after its use.

In light of a lack of any

evidence to the contrary,

this is sufficient

for the Board to

find that 8CC retains control over the etchant.

We note that

in

this situation the etchant remains within a “closed loop” system

which tracks the spent etchant in a manner that meets the purposes

of the manifest system.

Any etchant that does not remain within

the closed loop system presents a different question which

is not

within the scope of this particular inquiry.

The Board, therefore, concludes that SCC~sspent etchant

when it is returned to 8CC is not a waste,

and that it is, there-

fore, not subject to the manifest requirements of

35

Ill, Adm.

Code 809 and that the variance petition should be denied as

unnecessary.

This Opinion constitutes the Board~sfindings of

.fact and

conclusions of law in this matter.

Southern California Chemical Company’s request for variance

from the manifest requirements of 35 Ill.

Adm. Code 809 is hereby

denied as unnecessary.

IT IS SO ORDERED,

I, Dorothy H. Gunn, Clerk of the Illinois Pollution Control

Board, hereby certify that the above Opinion and Order was

adopted oi~the~D~~day of~~

,

1984 by a vote

Dorothy H.

Gunn, Clerk

Illinois Pollution Control Board