37 F.3d 146 (4th Cir. 1994), 93-2195, Owen Elec. Steel Co. of South Carolina, Inc. v. Browner

Docket Nº:93-2195.
Citation:37 F.3d 146
Party Name:OWEN ELECTRIC STEEL COMPANY OF SOUTH CAROLINA, INCORPORATED, Petitioner, v. Carol M. BROWNER, Administrator of the United States Environmental Protection Agency, Respondent.
Case Date:October 12, 1994
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
FREE EXCERPT

Page 146

37 F.3d 146 (4th Cir. 1994)

OWEN ELECTRIC STEEL COMPANY OF SOUTH CAROLINA, INCORPORATED,

Petitioner,

v.

Carol M. BROWNER, Administrator of the United States

Environmental Protection Agency, Respondent.

No. 93-2195.

United States Court of Appeals, Fourth Circuit

October 12, 1994

Argued April 13, 1994.

Page 147

ARGUED: William Thomas Lavender, Jr., Davis & Lavender, P.C., Columbia, SC, for petitioner. Alice L. Mattice, Environment and Natural Resources Div., U.S. Dept. of Justice, Washington, DC, for respondent. ON BRIEF: Thomas G. Eppink, Davis & Lavender, P.C., Columbia, SC, for petitioner. Peter R. Steenland, Acting Deputy Asst. Atty. Gen., Environment and Natural Resources Div., U.S. Dept. of Justice, John Michaud, Office of Gen. Counsel, U.S.E.P.A., Washington, DC, Mary Butler, Office of Regional Counsel, U.S.E.P.A., Atlanta, GA, for respondent.

Before RUSSELL, WILKINSON, and HAMILTON, Circuit Judges.

Petition denied by published opinion. Judge RUSSELL wrote the opinion, in which Judge WILKINSON and Judge HAMILTON joined.

OPINION

RUSSELL, Circuit Judge:

The sole issue in this case is whether the "slag" produced by petitioner Owen Electric Steel Company ("Owen") at its Cayce, South Carolina, facility as a byproduct of steel production is "discarded," and therefore constitutes a "solid waste" under 42 U.S.C. Sec. 6903(27).

I

The relevant facts are few and not in dispute. Owen is engaged in the production of steel. The steel is produced in an electric arc furnace. In the course of production, crushed limestone (calcium carbonate) is added to the furnace to remove certain non-ferrous constituents from the molten metal. 1 In this process, the non-ferrous constituents bind with the limestone, creating "slag", which is essentially limestone and dolomite (magnesium carbonate) with trace amounts of metallic oxides. The slag then floats to the surface of the molten metal and is removed.

The slag is continuously processed at the Owen's plant in Cayce by a third party contractor. Following processing, the slag is placed in holding bays, where the slag lies on bare soil for tempering and weathering. During this process, known as "curing", the slag is hydrated and undergoes phase changes where its bulk increases volumetrically. This curing process generally takes six months. After this time, the slag becomes dimensionally stable and, as a result, amenable for use as a construction aggregate. The slag generated at Owen's Cayce facility is sold to the construction industry for use as a road base material or for other commercial purposes.

II

An operator of a facility that treats, stores, or disposes of hazardous wastes ("TSDF") is required to comply with various requirements set forth in the Resource and Conservation Recovery Act ("RCRA"), 42 U.S.C. Sec. 6901-6992k, including seeking and obtaining a permit from the Environmental Protection Agency ("EPA") 2. See RCRA Sec. 3005, 42 U.S.C. Sec. 6925. RCRA Sec. 3004(u), 42 U.S.C. Sec. 6924(u), requires that any TSDF permit mandate "corrective action for all releases of hazardous waste or constituents from any solid waste management unit" at the TSDF.

Because Owen's Cayce facility is a TSDF, Owen had to apply for and obtain an EPA permit for the facility. On October 6, 1989, Owen received by mail from the EPA a proposed permit which listed certain conditions pursuant to which the permit was issued, and the specific areas of the Cayce site

Page 148

as to which the permit applied. The permit identified the slag processing area ("SPA") as a solid waste management unit ("SWMU").

In numerous administrative filings thereafter, Owen claimed that the SPA is not an SWMU. When, ultimately, the EPA adhered to its original determination and ordered further evaluation of the SPA, Owen filed the instant petition, naming Carol M. Browner, the EPA Administrator, as respondent.

III

We must determine whether the EPA properly classified the SPA as an SWMU. In determining the criteria according to which a particular area is classified as an SWMU, the EPA, justifiably, looks to the legislative history underlying RCRA Sec. 3004(u), which unequivocally states: "[T]he...

To continue reading

FREE SIGN UP