Second only to sludge, auto fluff, also known as auto shredder residue or ASR, is one of the largest waste components in O`ahu\u2019s 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\u2019s waste that year, according to a waste characterization study by R.W. Beck. Sludge from sewage treatment plants accounted for 22.2 percent.<\/p>\n
\tWhile none of the ASR should contain any hazardous waste, a recent lawsuit against Hawai`i\u2019s 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.<\/p>\n
\tThe 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.<\/p>\n
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, \u201cthe Schnitzer steel lawsuit\u2026raises serious concerns as to what is being placed in the landfill.\u201d<\/p>\n
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\u2019s 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.<\/p>\n
The Complaint<\/b><\/i><\/p>\n
Apart from the concerns over heavy metals, the thrust of Paragon\u2019s 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\u2019s left over after recycling to contain no recyclable material. To document this, the recycler is to submit monthly reports to the city\u2019s 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.<\/p>\n
\tParagon argues in its complaint that the auto shredder Schnitzer uses limits the company\u2019s 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, \u201cBy 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.\u201d<\/p>\n
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\u2019s 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 \u201cloose fibrous stuff.\u201d<\/p>\n
Hanni Hartmann, principal of Paragon Metals, told Environment Hawai`i<\/i> that Carpenter\u2019s 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.<\/p>\n
\tIn 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\u2019s ASR.<\/p>\n
\tSchnitzer 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\u2019s End-of-life-Vehicle Program \u2013 a group that includes Schnitzer and some of its suppliers \u2013 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.)<\/p>\n
\tToday 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\u2019s 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.<\/p>\n
Schnitzer\u2019s Response<\/b><\/i><\/p>\n
In Schnitzer\u2019s defense, the company\u2019s attorneys Gary Grimmer and Ian Sandison point out in their October 28, 2008, answer to the complaint that under the city\u2019s definitions, \u201crecyclable material\u201d is metal scrap for which a market exists.<\/p>\n
\t\u201cThere 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,\u201d Grimmer and Sandison wrote.<\/p>\n
\tBut on the very same day, Schnitzer\u2019s 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.<\/p>\n
\t\u201cRecent routine internal evaluation of the material identified as higher than normal concentration of recyclable metals\u2026 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,\u201d Banigan wrote.<\/p>\n
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.<\/p>\n
With regard to Paragon\u2019s hazardous waste claims, Owens states, \u201c[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.\u201d (RCRA is the Resource Conservation and Recovery Act.)<\/p>\n
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 \u201cdiscovered it put too much toxic lead into the Waimanalo Gulch landfill and is trying to fix the problem\u2026 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.\u201d<\/p>\n
\tGrimmer explained to Environment Hawai`i<\/i>, \u201cFrom time to time \u2026 we do test for certain metals. If an anomaly comes up, then we deal with it \u2026 and do not send that part of the pile to the Waimanalo landfill.\u201d<\/p>\n
\tAlthough Grimmer said he doesn\u2019t 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 \u201chave always come out clean.\u201d He said also that those reports have been given to Paragon\u2019s attorneys.<\/p>\n
\u201cParagon claims to be a competitor of Schnitzer. We don\u2019t think that\u2019s true. If it is true, it\u2019s always suspicious when a party claiming to be a competitor [takes another competitor to court] and uses it as a method of competing,\u201d he said, adding, \u201cwe do not intend to try the case in the press\u2026 We do categorically deny the allegations in the complaint.\u201d<\/p>\n
According to Schnitzer\u2019s 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\u2019s 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.<\/p>\n
\u2018Competitively sensitive\u2019<\/b><\/i><\/p>\n
While Schnitzer isn\u2019t 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.<\/p>\n
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. \u201cThese analytical results are competitively sensitive and may be of great value to our competitors,\u201d Banigan, then HMR\u2019s general manager, stated in an April 4, 2000, letter to Steven Chang, chief of the state DOH\u2019s Solid and Hazardous Waste Branch. \u201cAs 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.\u201d<\/p>\n
\tBanigan\u2019s comments were in response to the DOH\u2019s request that HMR submit ASR test results for the previous three years in accordance with the company\u2019s 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, \u201cunless such reports contain information of a confidential nature concerning secret processes or methods of manufacture.\u201d<\/p>\n
Chang continued, \u201c[P]lease identify in writing the specific information asserted to be confidential, including a justification of that assertion\u2026.We require that you either submit your argument of confidentiality or the ASR records within fourteen calendar days of receipt of this letter.\u201d 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 \u2013 this despite concerns Chang raised in 2001 that data for lead and cadmium were \u201cbeginning to show an increasing trend\u201d and that the company was not regularly testing for any other metals. The permit no longer required quarterly testing, but stated only that \u201cthe department may require the permittee to conduct sampling and testing to determine the degree of pollution, if any, from the solid waste facility.\u201d The company\u2019s 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.<\/p>\n
Last November, Paragon\u2019s 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\u2019s solid waste permit and claiming they had evidence that the company\u2019s ASR contained \u201cferrous and non-ferrous metals\u2026likely to be lead and even mercury.\u201d<\/p>\n
\u201cThis is certainly a health hazard,\u201d the letter stated. (While the DOH blanked out the author\u2019s name, the \u201cevidence\u201d accompanying the letter were the test results of Carpenter.)<\/p>\n
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\u2019s 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.<\/p>\n
Although the DOH released the recent ASR test results, which had been stamped \u201cPRIVILEGED AND CONFIDENTIAL, PREPARED AT THE DIRECTION OF LEGAL COUNSEL,\u201d the department denied Environment Hawai`i<\/i> access to Schnitzer\u2019s annual reports because they allegedly contain confidential business information.<\/p>\n
— Teresa Dawson<\/p>\n
Volume 19, Number 8 February 2009<\/p>\n","protected":false},"excerpt":{"rendered":"
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