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In re Leed Foundry, Inc.

02/20/2008

Case Number:RCRA (3008) Appeal No. 07-02
ELR Citation:38 ELR 41318

The United States Environmental Protection Agency (“Agency” or “EPA”) Region 3 (the “Region”) appeals an Initial Decision issued April 24, 2007, in which Administrative Law Judge William B. Moran (the “ALJ”) dismissed thirteen counts of an administrative complaint filed by the Region. In its complaint, the Region alleged, among other things, that Respondent, Leed Foundry, Inc. (“Leed”), violated the Resource Conservation and Recovery Act (“RCRA” or “Act”), 42 U.S.C. §§ 6901-6992k, by failing to dispose of hazardous waste in a manner consistent with the hazardous waste management requirements of RCRA Subtitle C, 42 U.S.C. §§ 6921-6939e (“Subtitle C”). In his Initial Decision, the ALJ concluded that Leed’s wastes were exempt from regulation under Subtitle C under the plain meaning of the “Bevill Amendment.” See 42 U.S.C. § 6921(b)(3)(A). The ALJ therefore dismissed counts one through thirteen of the Region’s complaint.

Congress enacted the Bevill Amendment as part of the Solid Waste Disposal Act Amendments of 1980. Pub. L No. 96-482, 94 Stat. 2334 (1980). The Bevill Amendment suspended regulation of certain classes of solid waste as hazardous wastes until EPA completed studies concerning these wastes and submitted the results of these studies to Congress. The class of waste relevant to the present proceeding consists of fly ash residue generated primarily from the combustion of coal or other fossil fuel. Under the applicable study provision, EPA was required to conduct a detailed study and submit a report to Congress on the adverse affects on human health and the environment, if any, of the disposal and utilization of fly ash waste. RCRA § 8002(n); 42 U.S.C. § 6982(n). Within six months of completing the required study, the Act requires that the Agency, after public hearings and opportunity for public comment, make a determination that the Agency will either promulgate regulations governing the applicable waste or that regulation is unwarranted. RCRA § 3001(b)(3)(C); 42 U.S.C. § 6921(b)(3)(C). Leed operates a grey iron foundry located in Schuylkill County, Pennsylvania, where it melts scrap iron to produce metal castings, primarily manhole covers and manhole collars. The scrap iron is melted in a furnace referred to as a cupola. To generate the heat needed to melt the scrap iron, Leed burns petroleum coke and a small amount of kerosene (both fossil fuels). The process generates fly ash that is captured in a baghouse air pollution control device. The fly ash waste from the baghouse was stored in piles at Leed’s facility. It is undisputed that samples of this material were tested by the Region and found to contain lead and cadmium levels exceeding the applicable toxicity threshold for materials considered characteristic hazardous waste.

On September 30, 2004, following a compliance inspection, the Region filed an administrative complaint alleging, among other things, violations of RCRA disposal requirements (Counts 1-13). On August 4, 2005, Leed filed a motion for partial accelerated decision as to all RCRA counts, asserting that its wastes were exempt from regulation. In particular, Leed argued that because its fly ash waste is generated primarily from the combustion of fossil fuel, the waste is within the scope of the Bevill Amendment. The ALJ agreed and dismissed the RCRA counts in the Region’s Complaint. The Region’s appeal followed.

Held: The Initial Decision is reversed and this matter is remanded for further proceedings consistent with this Remand Order.

In a series of opinions, the U.S. Court of Appeals for the District of Columbia (“D.C.”) Circuit has concluded that, in passing the Bevill Amendment, Congress intended to single out for regulatory suspension under the Bevill Amendment only certain high volume, low toxicity “special wastes”. See Horsehead Res. Dev. Co., Inc. v. Browner, 16 F.3d 1246 (D.C. Cir. 1994); Solite Corp. v. EPA, 952 F.2d 473 (D.C. Cir. 1991); Envtl. Def. Fund v. EPA, 852 F.2d 1316 (D.C. Cir. 1988) (“EDF”). In each case, the court concluded that the language of the Amendment is ambiguous, and, thus, the court’s review of EPA’s criteria in implementing the Amendment was limited to the question of whether the Agency’s interpretation was a permissible construction of the Bevill Amendment.

As to the class of wastes involved in the present case, the Agency has made a technical determination that fly ash waste from grey iron foundries does not meet the high volume, low toxicity threshold and is therefore outside the scope of the Bevill Amendment. The Agency’s position in this regard has been consistent in EPA determinations and policy statements dating back to shortly after the Bevill Amendment was enacted. The Agency’s position is also consistent with the Agency’s 1999 Report to Congress and its 2000 Determination, both of which omit grey iron foundry wastes from the universe of non-utility wastes considered for regulation under the study provisions of the Bevill Amendment. The Board defers to the Agency’s technical expertise in concluding that fly ash waste such as the Leed Foundry wastes do not meet the high volume, low toxicity criteria and are not within the scope of the Bevill Amendment. Accordingly, the dismissal of counts 1 through 13 on the grounds that those wastes were covered by the Bevill amendment must be reversed.

Thus, the Board reverses the ALJ’s dismissal of Counts 1 through 13 of the complaint and remands this matter to the ALJ to determine whether Leed Foundry violated RCRA and EPA’s implementing regulations, and, if so, what penalty (if any) is appropriate.