There is a brief article on the WOWKTv.com web site about a potential RCRA (pronounced REC-RA; the federal Resource Conservation and Recovery Act) violation involved in the Bayer CropScience explosion. I say ‘potential’ violation because there is a disagreement on the issue. The West Virginia Department of Environmental Protection (WVDEP) says that the facility did not have a hazardous waste permit for the operation that was taking place in the tank that exploded in last year’s fatal accident. Bayer says that a permit was not required since there was no hazwaste treatment involved in the operation.
This is one of the grey areas in EPA regulations that have plagued chemical companies since the rules were first put into place. The RCRA regulations establish the rules for handling, shipping and disposing of hazardous waste. One of the key components of those regulations is that only a permitted facility may dispose of or destroy hazardous waste. This ensures that the permitting agency, normally the US EPA or an EPA approved state agency, knows who is handling hazardous wastes. This should enable regulators to ensure hazwaste handlers are taking appropriate precautions and handling hazwaste in ways that protect the environment.
Neutralization vs Waste Treatment
The loophole in the law is the provision that chemical manufacturers are allowed to ‘neutralize’ byproduct streams from their manufacturing process as long as that neutralization is an integral part of the manufacturing process. What is meant by ‘neutralize’ is very broadly defined in the regulations. Most observers believe that this was designed to allow simple chemical neutralizations like pH adjustments, but the broad definition provides wiggle room for a number of operations.
In the Bayer CropScience case their manufacturing process produced a byproduct that consisted of a solvent contaminated with methyl isocyanate (MIC). Now the solvent stream would probably be hazwaste in its own right because of its flammability; it would be disposed of in some sort of incinerator or cement kiln operation. Both of these are relatively inexpensive hazwaste disposal options. Without the MIC contaminant it might even be re-useable or recyclable back into the original process.
The presence of MIC changes things. MIC is both toxic and reactive. A number of additional precautions would have to be taken to safely handle and dispose of the MIC contaminated solvent. It would also require special handling at the Bayer facility and specialized hazmat shipping requirements. All of this would increase the disposal cost; the higher the MIC concentration the higher the additional cost.
What Bayer has apparently opted to do is to ‘neutralize’ the MIC contaminant by heating the solvent-MIC mixture to above the decomposition temperature of the MIC. The MIC decomposes into a variety of less hazardous byproducts and the disposal risk/cost is lowered. It is even possible that the resulting solvent is ‘clean’ enough to be recycled back into the process stream, eliminating the hazwaste and further reducing costs.
Legal Arguments
What the WVDEP is arguing in this case is that the MIC decomposition process goes beyond the description of ‘neutralizing’ found in RCRA. Thus it becomes hazwaste treatment and requires permitting. Bayer will maintain that the neutralization takes place in equipment that is contiguous with the rest of the manufacturing process and thus falls within the RCRA description of ‘neutralizing’.
There is one telling argument that might be employed by WVDEP in this case. They might be able to better argue that the unusually high concentration of MIC in the process equipment that led to the runaway reaction resulted in a fundamental change in their process and procedures. They could argue that the higher concentration would be too large for a reasonable person to maintain that Bayer was simply neutralizing the solvent solution.
In any case, if the US EPA or the WVDEP decide to cite Bayer for a RCRA violation, there will certainly be a long drawn out court case to resolve the issue. Bayer CropScience has too much invested in the facility to allow the decision to be made by administrative fiat. There would also be liability ramifications if the two deaths that occurred were determined to have resulted from illegal acts. It will take quite some time to resolve this issue.