Second only to sludge, auto fluff, also known as auto shredder residue or ASR, is one of the largest waste components in O`ahu’s Waimanalo Gulch landfill. In 2006, 29,786 tons of auto fluff were dumped into the landfill, accounting for 16.2 percent of all of the landfill’s waste that year, according to a waste characterization study by R.W. Beck. Sludge from sewage treatment plants accounted for 22.2 percent.
While none of the ASR should contain any hazardous waste, a recent lawsuit against Hawai`i’s largest metal recycler, Schnitzer Steel Hawai`i Corp., claims that some of the ASR (almost all of which comes from Schnitzer) contains recyclable metals. And while none of it should contain any hazardous waste, the lawsuit claims mercury, which is considered hazardous waste at 0.2 parts per million, is undoubtedly in that mix.
The suit, filed last June in U.S. District Court by competing metal recycler Paragon Metals, Inc., is still in its infancy, but officials with the state Department of Health, responsible for administering all solid waste management permits, and the City and County of Honolulu, which owns the Waimanalo Gulch landfill, are keeping an eye on progress of the litigation.
The case has also caught the attention of state Sen. Colleen Hanabusa, whose district includes the landfill and who has been fighting for years to close it. In a filing in her most recent suit aimed at shutting it down she has written, “the Schnitzer steel lawsuit…raises serious concerns as to what is being placed in the landfill.”
While Paragon claims it has evidence that proves Schnitzer is sending recyclable material to the landfill, thereby violating the city ordinance under which it has received significant tipping fee discounts, a review of Schnitzer’s solid waste management permit records at the state Department of Health suggest that it is no easy task to determine whether those materials in fact contain hazardous levels of any heavy metals.
The Complaint
Apart from the concerns over heavy metals, the thrust of Paragon’s complaint is to end what it says is unfair competition. Paragon attorneys R. Patrick Jaress, Ted Pettit, Mark Valencia, and Alexis McGinness point out in court filings that under an ordinance intended to promote recycling, Schnitzer receives an 80 percent discount off tipping fees it would otherwise have to pay. To receive the discount, the ordinance states, a recycling operation must meet several conditions, including one that requires the material that’s left over after recycling to contain no recyclable material. To document this, the recycler is to submit monthly reports to the city’s Department of Environmental Services on the type and quantity of materials received and residues disposed of. According to Paragon, Schnitzer is the only company in Hawai`i that receives the discount for its scrap metal residue.
Paragon argues in its complaint that the auto shredder Schnitzer uses limits the company’s ability to produce residue free of recyclable materials. It claims that two recent sample tests show that, in fact, between 5 percent and 10 percent of the residue Schnitzer dumps at Waimanalo Gulch consists of recyclable material. It adds, “By misrepresenting that its residue does not contain any metal scrap, Schnitzer is misleading the City and County of Honolulu into paying a subsidy that ought not to be paid and allowing it thereby to unfairly compete with Paragon Metals that dumps no residue into the O`ahu landfill or other landfill in the state of Hawai`i.”
To prove its claims, Paragon sent samples of ASR (apparently from Schnitzer, although it is not clear how the samples were obtained) to James Carpenter of the University of Hawai`i’s College of Tropical Agriculture and Human Resources for testing. Carpenter found that wire and metallic compounds accounted for 5 to 11 percent of each sample, with the rest being wood/paper cardboard, Styrofoam, plastics, and “loose fibrous stuff.”
Hanni Hartmann, principal of Paragon Metals, told Environment Hawai`i that Carpenter’s tests also found iron, aluminum, and cooper in large enough amounts to be recovered and recycled. He added that the UH tests focused on metal in general and not heavy metals like mercury, lead, and cadmium.
In its complaint, Paragon suggests that mercury from the tiny switches found in certain older model cars are at least one of the metallic compounds in Schnitzer’s ASR.
Schnitzer processes an estimated 50,000 vehicles a year at its Campbell Industrial Park facility, many of which are from outer islands, the complaint states. According to the End-of-life-vehicle Solutions Corporation website, however, in 2006, none of the 11 companies that participated that year in Hawai`i’s End-of-life-Vehicle Program – a group that includes Schnitzer and some of its suppliers – recovered any mercury switches. In all of 2007, companies in Hawai`i recovered a total of just 31 switches, containing a total 0.07 pounds of mercury. In 2008, 605 switches containing 1.33 pounds of mercury were recovered. (The ELV program is a voluntary program formed in 2006 under an agreement between the scrap metal industry and the federal Environmental Protection Agency to recover mercury switches from vehicles before they are junked.)
Today the ELV program has 14 participants in the state, most of which report no recovery of mercury switches. According to the ELV website, Big Island Scrap Metal recovered 453 switches in 2008. All of the 31 switches recovered in 2007 came from Maui’s SOS Metal Recycling, which also recovered 152 last year. Seven of the companies, including Schnitzer Steel, are on O`ahu, there are three each on Maui and Hawai`i, and one on Kaua`i.
Schnitzer’s Response
In Schnitzer’s defense, the company’s attorneys Gary Grimmer and Ian Sandison point out in their October 28, 2008, answer to the complaint that under the city’s definitions, “recyclable material” is metal scrap for which a market exists.
“There is no market for the shredder residue in which a small amount of metal scrap is allegedly present disposed of by Schnitzer Hawai`i at the landfill,” Grimmer and Sandison wrote.
But on the very same day, Schnitzer’s general manager, Jim Banigan, wrote the Department of Health, seeking a modification to its operations manual that would allow the company to process various metals that had already been put through the auto shredder.
“Recent routine internal evaluation of the material identified as higher than normal concentration of recyclable metals… Metallic constituents in the material will be reclaimed and sold as either (1) shredded ferrous scrap metal, identified as shredded scrap, or (2) shredded non-ferrous scrap metal, collectively identified as aluminum copper, brass, zinc, lead and stainless steel,” Banigan wrote.
According to Markus Owens, a public information officer for the City and County of Honolulu, the city does not conduct periodic inspections to monitor whether companies that receive tipping-fee discounts are keeping recyclable materials from entering the landfill. He added, however, that Schnitzer does submit to the landfill operator, Waste Management Hawai`i, an annual characterization of the material it takes to Waimanalo Gulch.
With regard to Paragon’s hazardous waste claims, Owens states, “[T]he [city] Department of Environmental Services asserts that proper federal guidelines are in place and adhered to by our operator, Waste Management, Inc. These guidelines require proper characterization by waste generators, under federal RCRA-D [solid waste] regulations, before disposal.” (RCRA is the Resource Conservation and Recovery Act.)
Grimmer and Sandison argue that nothing prohibits Schnitzer from delivering to Waimanalo Gulch mercury and other toxic substances at levels below the EPA thresholds, but, in any event, they deny that Schnitzer has ever done so. The attorneys submitted these statements to the court about a week after an October 18 KITV news report stated that Schnitzer “discovered it put too much toxic lead into the Waimanalo Gulch landfill and is trying to fix the problem… The fluff pile has grown to nearly 50-feet high after the company discovered the residue which goes into the Waimanalo landfill contained excessive amounts of lead.”
Grimmer explained to Environment Hawai`i, “From time to time … we do test for certain metals. If an anomaly comes up, then we deal with it … and do not send that part of the pile to the Waimanalo landfill.”
Although Grimmer said he doesn’t know how many anomalies there have been over the years, he said that annual ASR tests done for Waimanalo Gulch operator Waste Management Hawai`i “have always come out clean.” He said also that those reports have been given to Paragon’s attorneys.
“Paragon claims to be a competitor of Schnitzer. We don’t think that’s true. If it is true, it’s always suspicious when a party claiming to be a competitor [takes another competitor to court] and uses it as a method of competing,” he said, adding, “we do not intend to try the case in the press… We do categorically deny the allegations in the complaint.”
According to Schnitzer’s shredder waste monitoring procedures, the company sporadically tests its ASR for arsenic, barium, cadmium, chromium, lead, mercury, selenium, and silver and test more frequently for lead, cadmium and polychlorinated biphenyls, or PCBs. Throughout the 1990s, the company Schnitzer took over, Hawai`i Metal Recycling, submitted these test results to the DOH in the 1990s, but the company’s current solid waste management permit does not require the submission of ASR test results. Instead, those results are required to be made available to the DOH only on request. Schnitzer does submit some of its test results to Waste Management Hawai`i, according to a DOH official, but those are not forwarded to the department and are only required to be maintained on site.
‘Competitively sensitive’
While Schnitzer isn’t required to submit ASR reports to the DOH, the department does have some of them. Whether the public is allowed to see all of them is another matter.
Back when Hawai`i Metal Recycling held the solid waste permit, letters from the company and its attorneys over the years clearly claimed that ASR test results were confidential. “These analytical results are competitively sensitive and may be of great value to our competitors,” Banigan, then HMR’s general manager, stated in an April 4, 2000, letter to Steven Chang, chief of the state DOH’s Solid and Hazardous Waste Branch. “As such, we will require written confirmation, prior to our submission [of ASR reports], that the ASR data will be treated as confidential commercial information and will not be released to the public.”
Banigan’s comments were in response to the DOH’s request that HMR submit ASR test results for the previous three years in accordance with the company’s solid waste permit. And the DOH held its ground at first. On June 6, 2000, Chang informed Banigan that state law requires all solid waste management permit applications and reports to be made available for public inspection, “unless such reports contain information of a confidential nature concerning secret processes or methods of manufacture.”
Chang continued, “[P]lease identify in writing the specific information asserted to be confidential, including a justification of that assertion….We require that you either submit your argument of confidentiality or the ASR records within fourteen calendar days of receipt of this letter.” The DOH and HMR (which was taken over by Schintzer in late 2005) debated the issue over the next few years and when the department finally issued the company a new permit in September 2005, it appeared as though HMR won out – this despite concerns Chang raised in 2001 that data for lead and cadmium were “beginning to show an increasing trend” and that the company was not regularly testing for any other metals. The permit no longer required quarterly testing, but stated only that “the department may require the permittee to conduct sampling and testing to determine the degree of pollution, if any, from the solid waste facility.” The company’s annual reports to the department needed only to contain information on the volume and destination of the material and a summary of any abnormal incidents.
Last November, Paragon’s attorneys filed a scheduling conference statement asking Schnitzer to provide its ASR results from the time it began operating in 2006. Shortly thereafter, someone (most likely representatives from Paragon) sent a letter to the DOH asking it to suspend Schnitzer’s solid waste permit and claiming they had evidence that the company’s ASR contained “ferrous and non-ferrous metals…likely to be lead and even mercury.”
“This is certainly a health hazard,” the letter stated. (While the DOH blanked out the author’s name, the “evidence” accompanying the letter were the test results of Carpenter.)
ASR test results on file at the DOH are spotty at best and include only a handful of reports from the 1990s and four tests conducted by Tennessee consulting firm W.Z. Baumgartner & Associates, Inc., in November and December of last year. Still, all suggest that heavy metals and PCBs in the company’s ASR are below EPA thresholds (although the cadmium level in one sample taken in December came very close, within 0.008 ppm). Mercury levels were consistently below 0.010 ppm, well below the EPA threshold. ASR test results from last October, when Schnitzer found excessive levels of lead in its shredder residue, are not in DOH files.
Although the DOH released the recent ASR test results, which had been stamped “PRIVILEGED AND CONFIDENTIAL, PREPARED AT THE DIRECTION OF LEGAL COUNSEL,” the department denied Environment Hawai`i access to Schnitzer’s annual reports because they allegedly contain confidential business information.
— Teresa Dawson
Volume 19, Number 8 February 2009
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