MacDermid Inc. v. Dept. Envtl. Protection

• Decision Date: 31 July 2001
• Court: Connecticut Supreme Court
• Parties: (Conn. 2001) MACDERMID, INC. v. DEPARTMENT OF ENVIRONMENTAL PROTECTION SC 16441

778 A.2d 7 (Conn. 2001)

MACDERMID, INC. v. DEPARTMENT OF ENVIRONMENTAL PROTECTION

SC 16441

THE SUPREME COURT OF THE STATE OF CONNECTICUT

Argued February 16, 2001

July 31, 2001

Joseph A. Wellington, with whom was John Cordani, for the appellant (plaintiff).

Mark P. Kindall, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (defendant).

Borden, Norcott, Palmer, Vertefeuille and Zarella, Js.

Zarella, J.

Opinion

The plaintiff, MacDermid, Inc., sought a declaratory ruling from the commissioner of environmental protection (commissioner) that one of the plaintiff's chemical products is exempt from regulation under Connecticut's hazardous waste laws and regulations. The commissioner issued a ruling pursuant to General Statutes §§ 4-176 (e),¹ in which he concluded that the chemical was not exempt from regulation as a hazardous waste. Thereafter, the plaintiff appealed to the Superior Court pursuant to General Statutes §§ 4 183.² The trial court dismissed that appeal, and the plaintiff appealed to the Appellate Court from the trial court's judgment. This court transferred the appeal to itself pursuant to General Statutes §§ 51-199 (c) and Practice Book §§ 65-1. We affirm the judgment of the trial court.

The following facts are undisputed. The plaintiff sells a chemical under the trade name Ultra Etch, which is used to dissolve excess copper from printed circuit boards. During use, the etchant is contaminated with copper salts that eventually render the etchant unusable, or spent. The circuit board manufacturers that purchase Ultra Etch are contractually required to return the spent etchant to the plaintiff, which stores and processes it. Additional facts will be set forth as needed.

On appeal, the plaintiff claims that the trial court improperly: (1) applied the standard of review; (2) upheld the commissioner's ruling that the spent etchant is a hazardous waste; and (3) upheld the commissioner's ruling that the spent etchant is subject to regulation under General Statutes §§ 22a-454.³ We disagree and affirm the judgment of the trial court.

We begin with a brief overview of the regulatory framework governing hazardous waste. Under federal law, the Resource Conservation and Recovery Act of 1976 (act), 42 U.S.C. §§ 6901 et seq., establishes a regulatory program to manage the treatment, transport and storage of hazardous waste from its generation to final disposal. Environmental Defense Fund v. Environmental Protection Agency, 210 F.3d 396, 397 (D.C. Cir. 2000); see 42 U.S.C. §§ 6902 (a) (8) (1994). The primary purpose of the act "is to reduce the generation of hazardous waste and to ensure the proper treatment, storage, and disposal of that waste... so as to minimize the present and future threat to human health and the environment." (Internal quotation marks omitted.) Meghrig v. KFC Western, Inc., 516 U.S. 479, 483, 116 S. Ct. 1251, 134 L. Ed. 2d 121 (1996), quoting 42 U.S.C. §§ 6902 (b) (1994).

The act requires the federal Environmental Protection Agency (agency) to promulgate regulations that identify the characteristics of hazardous waste and identify solid wastes that are hazardous. See 42 U.S.C. §§ 6921 (b) (1994). While the agency regulations establish minimum requirements for the management of hazardous waste; United States v. Marine Shale Processors, 81 F.3d 1361, 1367 (5th Cir. 1996); Congress has authorized the states to establish their own regulations, which may be more stringent than those established by the agency. 42 U.S.C. §§ 6929 (b) (1994).⁴ The agency generally does not enforce the federal standards in states that have authorized regulatory programs that are no less stringent than the agency regulations. See 42 U.S.C. §§ 6926 (d) (1994).

Connecticut has a hazardous waste program that is authorized by the agency. See generally Connecticut; Final Authorization of State Hazardous Waste Management Program, 55 Fed. Reg. 51,707, 51,707±n13 (December 17, 1990). Section 22a-449 (c) of the General Statutes authorizes the commissioner to establish and enforce regulations to carry out the intent of subtitle C of the act; 42 U.S.C. §§ 6921 et seq.; and, in 1990, the commissioner established such regulations. See Regs., Conn. State Agencies §§§§ 22a-449 (c)-100 through 22a-449 (c)-110. Those regulations incorporate by reference portions of the agency regulations without substantial change.⁵ See generally id., §§ 22a-449 (c)-101 (a).

Hazardous waste also is regulated in this state pursuant to General Statutes §§ 22a-454, which exists apart from the state regulations promulgated pursuant to subtitle C of the act. Section 22a-454 requires persons who "engage in the business of collecting, storing or treating... chemical liquids or hazardous wastes... [or who] dispose of... chemical liquids or waste solid, liquid or gaseous products or hazardous wastes" to obtain a permit from the commissioner. General Statutes §§ 22a-454 (a). The department of environmental protection refers to materials regulated under §§ 22a454 as "Connecticut Regulated Wastes."

The plaintiff obtained two permits in 1994: (1) a hazardous waste permit issued pursuant to §§ 22a-449 (c) authorizing the plaintiff to store spent etchant before it is recycled; and (2) a permit issued pursuant to §§ 22a-454 regulating the recycling process. In 1997, the plaintiff petitioned the commissioner to issue a declaratory ruling that the plaintiff's spent etchant is not a solid waste that is subject to regulation under Connecticut's hazardous waste management regulations. The plaintiff also sought a declaratory ruling that its spent etchant is exempt from regulation under §§ 22a-454.⁶

Hazardous waste is defined as solid waste that is not otherwise excluded from regulation as a hazardous waste and that exhibits any one of the following characteristics: ignitability, corrosivity, reactivity or toxicity. See 40 C.F.R. §§§§ 261.3, 261.20 through 261.24 (2000).⁷ The plaintiff does not dispute that its spent etchant exhibits a characteristic of hazardous waste; rather, the plaintiff argues that its spent etchant is not a solid waste.

A solid waste is defined as any "discarded material"; id., §§ 261.2 (a) (1); and discarded material, in turn, is defined as any material that is "abandoned," "recycled" or "inherently waste-like." Id., §§ 261.2 (a) (2) (i) through (iii).

A material is recycled if it is "used, reused, or reclaimed." Id., §§ 261.1 (c) (7). Whether a material is a solid waste when it is recycled requires an examination of: (1) the substance or material; and (2) the manner in which that material is recycled. American Mining Congress v. United States Environmental Protection Agency, 824 F.2d 1177, 1180 (D.C. Cir. 1987); Hazardous Waste Management System; Definition of Solid Waste, 50 Fed. Reg. 614, 618 (January 4, 1985). The parties agree that spent etchant is a spent material, which is defined as "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...." 40 C.F.R. §§ 261.1 (c) (1) (2000).

The plaintiff describes its recycling process of spent etchant as follows: "The spent etchant [that the plaintiff] obtains from its customers is stored in either [fifty-five] gallon drums or in one of three [8000] gallon storage tanks depending upon whether it was returned in drums or transported in one of [the plaintiff's] tanker trucks. When [the plaintiff] desires to use the spent etchant to produce new end-products, it transfers a portion of the etchant from a storage tank to one of two vessels which are known as 'reactor tanks.' Caustic soda and heat are added. The ensuing chemical reaction is allowed to proceed for approximately [twelve] to [fifteen] hours. During the reaction, copper oxide precipitates out of the spent etchant/caustic soda mixture and ammonia gas is generated.

"At the end of the reaction, the copper oxide is allowed to settle and the liquid remaining in the reactor tank is pumped into another vessel for treatment and disposal as a process wastewater. The copper oxide remaining in the reactor tank is washed and discharged to a filter press for final processing. The copper oxide is the first end-product of the [plaintiff's] process which uses spent etchant as an ingredient.

"The ammonia gas generated in the reactor tanks is transferred to another type of tank known as a'scrub tank' as that gas is being generated. The ammonia gas is reacted with hydrochloric acid in the scrub tanks to produce ammonium chloride. That reaction occurs throughout the twelve plus hour process as the ammonia gas is being introduced into the scrub tanks. The ammonium chloride produced in the scrub tanks is the second end-product of the above described process which uses spent etchant as an ingredient."

Spent materials "are not solid wastes when they can be shown to be recycled by being... [u]sed or reused as ingredients in an industrial process to make a product, provided the materials are not being reclaimed...." 40 C.F.R. §§ 261.2 (e) (1) (i) (2000). "A material is 'used or reused' if it is... [e]mployed as an ingredient (including the use as an intermediate) in an industrial process to make a product (for example, distillation bottoms from one process used as feedstock in another process). However, a material will not satisfy this condition if distinct components of the material are recovered as separate end products (as when metals are recovered from metal-containing secondary materials)...." (Emphasis added.) Id., §§ 261.1 (c) (5) (i).

"A material is 'reclaimed' if it is processed to recover a usable product... [for example] recovery of lead values from spent batteries...." Id., §§ 261.1 (c) (4). Even if a material is used or reused, that material will be deemed solid waste if it is "used in a manner constituting disposal, or used to produce products that are applied to the land...."Id., §§ 261.2 (e) ...