Fire Mountain Had Been Accepting Emerald Sludge for Years
For about 20 years, Bob Thode has been taking biosolids from municipal wastewater treatment facilities in the region and land applying the material on fields.
However, Ecology has ordered Thode to stop using three of his Fire Mountain sites in Lewis County because Ecology alleges some of biosolids have been contaminated with dangerous waste.
For 19 years Fire Mountain has been accepting sludge from Emerald, a company that makes aroma chemicals, benzoate salts and plasticizers, among other products.
Peter Lyon, southwest region manager for Ecology’s Waste 2 Resources Program, told The Chronicle that Ecology first became aware Fire Mountain was adding the sludge, which the department says is a dangerous waste, to its biosolids to use as a fertilizer in April 2014.
“When Ecology figured that out, Ecology sent a (regulatory) order to Mr. Thode to no longer … (accept) any of the sludge from Emerald Kalama Chemical as well as do not further land apply any material that he had stored that had previously been mixed with Emerald Kalama Chemical,” Lyon said.
Lyon has been in his position since 2008. He said he and his staff didn’t know Fire Mountain was accepting sludge from Emerald previously.
Fire Mountain and Emerald have both filed appeals against Ecology’s orders, and a case on the issue is now before the Pollution Control Hearings Board. According to documents in the case, some Ecology staff knew some facts of what was occurring and the regulatory issues associated with Emerald sending its material to Fire Mountain, but no one from Ecology knew all of the information.
While Ecology requires annual reports on all the biosolids that Fire Mountain accepts, because Emerald’s material isn’t a biosolid, it wasn’t in the reports.
“Mr. Thode is supposed to, in his application, identify other sources of nutrients, and in this case it appears that he didn’t really seem to do that, at least adequately,” Lyon said.
The sludge produced at Emerald has federal hazardous waste list codes associated with it, and Lyon said Thode didn’t have the right permits to accept that material. Emerald also wasn’t supposed to send the material to a biosolids site.
“Had either of those parties fulfilled their legal obligations there would have been notification along those lines,” Lyon said.
Once Fire Mountain mixed biosolids with the industrial waste from Emerald, the biosolids are compromised; they are no longer considered to be biosolids, according the Ecology.
“Now it’s just a sludge,” Lyon said.
Pollutant Levels Not ‘Overly Alarming’
According to orders issued in June and September 2014, Fire Mountain had been receiving sludge from Emerald’s wastewater treatment plant and mixing it with biosolids at its Newaukum Prairie, Big Hanaford and Burnt Ridge sites.
Lyon said the sites were tested in July and the results were received in September. The samples were tested for many different priority pollutants, he said. The results came back showing expected and higher than expected levels.
“Nothing in it was overly alarming, I’ll say that. But there’s certainly a lot of chemicals that make up that product,” he said.
Emerald’s materials are listed as a federal hazardous waste, but Lyon said that doesn’t mean those chemicals are still present when shipped to Fire Mountain.
Emerald treats its wastewater that includes process wastewater, stormwater, contaminated groundwater and laboratory wastewater at its onsite biological wastewater treatment system plant. The system creates about 40 tons of biological solids weekly.
“Biological solids from an industrial wastewater treatment plant are considered sludge under the Washington State Dangerous Waste Regulations,” according to the September order.
Biosolids, according to the Washington Administrative Code, are municipal sewage sludge from the wastewater treatment process. The material can be used as fertilizer. Fire Mountain is permitted to accept, store and apply biosolid. According to Ecology, Fire Mountain is not allowed to do the same with industrial sludge or dangerous waste.
The orders require Fire Mountain to stop adding materials to the biosolids storages, stop applying material from the sites and stop accepting any non-biosolids for land application.
According to the orders, Both Emerald and Fire Mountain are liable in the case.
Emerald and Ecology both filed motions for summary judgment. The Chronicle was provided with a transcript of a June 25 oral argument before the board regarding the motions.
Thode said nobody has found a problem with the material itself; the issue is how each entity involved is interpreting the rules.
“It’s a regulatory glitch,” Thode said.
Industrial Waste or Source of Nutrients?
According to case documents, Fire Mountain was unaware the material was a hazardous waste and thought it could be managed under the company’s biosolids permit.
At the June hearing, Emerald argued that its sludge is like fertilizer and that it doesn’t have to be registered as such because it has recyclable materials that meet treatment standards for the hazardous waste it contains.
Mark Schneider, attorney for Emerald, argued that the material is exempt because it was used as a fertilizer, didn’t show any characteristics of a dangerous waste and met land disposal restrictions.
Assistant Attorney General Jonathan Thompson, representing Ecology, said even if Emerald did register its sludge as a fertilizer, Ecology likely wouldn’t approve it as is because it might still have contaminants that aren’t found in testing required for the registration.
“Mr. Thode on behalf of Emerald Kalama Chemical registered a blend of various material that was registered for approximately, I believe, 18 months (in the early 2000s), at which point he ceased registering it, re-registering it,” Lyon said.
Lyon said the product registered as a fertilizer was never solely made up of Emerald sludge, and that Thode can’t remember what those other products were.
“But they weren’t biosolids; they were industrial sludges,” Lyon said, adding that biosolids aren’t actually considered fertilizer unless registered, but can be used as fertilizer.
Thompson said that Fire Mountain admitted it didn’t handle the material from Emerald under the fertilizer containment rules. Instead the sludge was managed under the biosolids permit or the land application permit. He said those regulations aren’t appropriate for handling dangerous waste.
Fertilizers are registered under the Washington Department of Agriculture. Any waste-derived or micronutrient material that an entity is trying to register as a fertilizer must also go through Ecology.
In June 2014, Emerald tried to register material as a fertilizer and was refused because “digested wastewater treatment solids” are not recognized as a source of nutrients. Fire Mountain applied in September 2014 to have a blend of industrial waste and biosolids registered and was refused because “industrial wastewater treatment plant sludge” is not a recognized source of nutrients. Fire Mountain reapplied in November 2014, and the Department of Agriculture is in the process of responding to the application.
Andy Wineke, Ecology’s Waste 2 Resources Program communications manager, said Emerald’s waste material is registered as a hazardous waste because of where it started — an industrial facility.
Garin Schrieve, industrial section manager for Waste 2 Resources, said while the treated material is similar to biosolids from a municipal wastewater treatment plant, it’s still considered hazardous because it’s from a chemical plant.
Even though the chemicals in Emerald’s sludge after being treated may be at undetectable levels, Schrieve said the state and federal rules want to make sure that potentially hazardous wastes are appropriately managed. Emerald’s sludge has five listed waste codes associated with it.
High Levels of Listed Hazardous Waste at Fire Mountain Site
Schneider said the company had its sludge tested and that only toluene, a listed hazardous waste and substance primarily used to improve octane ratings in gasoline, was detected one year.
Thompson said testing at the three storage sites where Emerald waste was stored with biosolids revealed that two of the sites had high levels of toluene.
“... the fact that there are these high levels of toluene in two of the impoundments or two of the storage units at Fire Mountain Farms raised questions for Ecology about the representativeness of (Emerald’s) sampling …” Thompson said.
According to Schneider, the toluene found at Fire Mountain was detected in 2014 and Emerald didn’t send material there in 2014.
Other documents filed by Ecology acknowledge that how the high toluene levels at the three Fire Mountain Farms sites got there is unclear.
Thompson said Emerald hasn’t tested for methanol or acetone since 2001, and that it hasn’t tested its sludge for acetaldehyde, which is used to make perfumes and flavors.
Schneider said acetaldehyde is “hardly hazardous, it’s in materials that we consume on a regular basis.”
He said because the materials are treated at Emerald’s wastewater treatment plant, they become new waste that doesn’t have the same waste codes that were applicable to the previous materials.
“... once a material has been determined to be a dangerous waste then any solid waste generated from the recycling treatment, storage or disposal of that dangerous waste is a dangerous waste,” Thompson said.
Emerald, Fire Mountain Accused of ‘Sham Recycling’
The transcript also said Emerald had a contract with Fire Mountain that expired in 2005 and did not renew it, but continued to operate under the same terms of the contract.
After the contract expired, Emerald provided Fire Mountain purchase orders.
Attorney Brian Lawler, representing Fire Mountain, said with each load of material from Emerald, Fire Mountain receives a bill saying it’s not dangerous waste.
“It’s our contention that the contract terms were extended because we proceeded under the same rates, it was under the same pick-up arrangement, it was the same payment approach as well,” Schneider said.
Emerald paid Fire Mountain $60 per ton to take the sludge away, which, Thompson argues in case documents, indicates disposal rather than sale of a material comparable to commercial fertilizer.
Thompson notes that disposal costs for industrial sludge are nearly $230 per ton.
“Because the cost of compliance with solid waste laws, and especially hazardous waste laws, can be high, entities seeking to avoid disposal costs sometimes claim that a waste material is in fact not a waste at all, but a useful product,” Ecology’s motion for summary judgement states. “Sometimes these claims amount to a sham — that is a hazardous waste treatment or disposal scheme in a the guise of legitimate recycling.”
In the 19 years Emerald has been recycling its sludge through Fire Mountain, Ecology never alleged the two were “engaged in sham recycling” or that Emerald needed to register its waste, Schneider said.
Thompson said Ecology may have known part of what had been going on throughout the years, but just because it didn’t enforce anything previously, doesn’t mean it shouldn’t now.
‘Everybody Knew It Was Coming Here’
The parties are waiting on the ruling on the case, and the majority of sources have admitted that the issue is complicated.
Thode said he thinks Fire Mountain will prevail in the case.
Fire Mountain had been handling the material for nearly two decades, and Thode said the material had previously been approved by Lewis County Public Health and Ecology.
“It’s the best stuff we ever got from a nutrients standpoint and the cleanest stuff in a lot of respects,” Thode said about the sludge, adding that Emerald has control over what chemicals it is using.
Every load Thode received came with a bill saying it was non-dangerous waste. He said he and Emerald believed it wasn’t dangerous.
“This wasn’t something we were sneaking in the middle of the night,” Thode said. “Everybody knew it was coming here. Everybody knew it was being part of our whole overall program and being incorporated in.”