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In Re Wheland Foundry

Case Number: 
No. RCRA-IV-89-25-R
ELR Citation:25 ELR 47051

An Administrative Law Judge (ALJ) holds that a foundry did not violate the Resource Conservation and Recovery Act (RCRA) and state and federal regulations by failing to dispose of fly ash generated from the combustion of fossil fuel as hazardous waste. The foundry's fossil fuel-derived fly ash contains cadmium and lead in amounts sufficient to be regulated as hazardous waste under state and federal regulations. The ALJ holds, however, that the clear and unambiguous language of RCRA § 3001(b)(3)(i) exempts fly ash waste generated primarily from the combustion of coal or other fossil fuels from regulation as hazardous waste. In addition, 40 C.F.R. § 261.4(b)(4) states that fly ash waste generated primarily from the combustion of coal or other fossil fuels is not hazardous waste. No mention is made either in RCRA § 3001 or in 40 C.F.R. § 261.4 that the exemption is limited to combustion waste generated by utilities. The ALJ holds that the language of the statute is clear and unambiguous. Thus, it will not resort to legislative history to limit the exemption to combustion waste generated by utilities, in the absence of extraordinary circumstances. Neither statements included in the Federal Register nor the existence of published U.S. Environmental Protection Agency (EPA) documents changes the clear, unambiguous statutory language and the equally clear, unambiguous regulations the Agency wrote to implement that language. The ALJ holds that the foundry did not violate RCRA and applicable regulations. The ALJ notes that reliance on the state of Tennessee's interpretation of the Act to exempt fossil fuel-derived fly ash and the state's authority to enforce its own hazardous waste program might well have constituted a defense against a finding of liability, and would have been a defense against the imposition of penalties both before and after the date on which the state acceded to EPA's interpretation of the exemption. Therefore, it is unnecessary to address whether, as a general proposition, reliance on an authorized state's position may in any given instance constitute a defense as to liability, as opposed to imposition of a civil penalty for a finding of liability. Here it is sufficient to hold that the language of § 3001(b)(3)(A)(i) and 40 C.F.R. § 261.4(b)(4) is so clear and unambiguous that the foundry cannot be held liable for failing to achieve interim status and for not operating its facility in accordance with RCRA. Fairness does not permit imposing penalties when the foundry conducted its operations pursuant to the interpretation of a valid state authority and when the language of the statute clearly supports the state's position that the fly ash was exempt from regulation. The ALJ holds that since it has been determined that the foundry's fly ash waste was exempt from regulation as hazardous waste, the foundry was not required to manage its facility in accordance with state and federal regulations and is not liable for failure to do so. Thus, numerous violations charged as a result of a particular inspection must also fail.

Ramiro Llado, Esq., Assist. Regional Counsel, Hazardous Waste Law Br., Office of the Regional Counsel, 345 Courtland St., N.E., Atlanta, Georgia 30365, for complainant;
Douglas E. Peck, Esq., and Hugh J. Moore, Jr., 1100 American National Bank Bldg., Chattanooga Tennessee 37402, for respondent.