996 F.2d 1126 (11th Cir. 1993), 91-1004, United States v. ILCO, Inc.

Docket Nº:91-1004.
Citation:996 F.2d 1126
Party Name:UNITED STATES of America, Plaintiff-Appellant, Cross-Appellee, Alabama Department of Environmental Protection and State of Alabama, Intervenors-Plaintiffs-Appellants, Cross-Appellees, v. ILCO, INCORPORATED, a/k/a Interstate Lead Company, Inc. and Diego Maffei, Defendants-Appellees, Cross-Appellants, Leeds Excavating & Paving Company, Inc., et al.,
Case Date:August 04, 1993
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
FREE EXCERPT

Page 1126

996 F.2d 1126 (11th Cir. 1993)

UNITED STATES of America, Plaintiff-Appellant, Cross-Appellee,

Alabama Department of Environmental Protection and State of

Alabama, Intervenors-Plaintiffs-Appellants, Cross-Appellees,

v.

ILCO, INCORPORATED, a/k/a Interstate Lead Company, Inc. and

Diego Maffei, Defendants-Appellees, Cross-Appellants,

Leeds Excavating & Paving Company, Inc., et al., Defendants.

No. 91-1004.

United States Court of Appeals, Eleventh Circuit

August 4, 1993

Page 1127

Alton B. Parker, Spain, Gillon, Grooms, Blan & Nettles, Birmingham, AL, for State of Alabama.

Katherine Adams, U.S. Dept. of Justice, Washington, DC, for U.S.

Charles de Saillan, U.S. E.P.A., Washington, DC, for appellees.

Charles R. Driggars, Sirote & Permutt, Birmingham, AL, for ILCO, Inc.

John A. Bryson, M. Alice Thurston, U.S. Dept. of Justice, Appellate Section, Washington, DC, for appellants.

Appeals from the United States District Court for the Northern District of Alabama.

Before FAY and DUBINA, Circuit Judges, and FLOYD R. GIBSON [*], Senior Circuit Judge.

FAY, Circuit Judge:

This case is an enforcement action filed by the United States Environmental Protection Agency and the State of Alabama against a secondary lead smelter for violations of federal and state environmental law. The district court held the defendant liable and awarded civil penalties and cleanup costs to the government, and ordered compliance with the law. Although the government received a favorable decision, it has appealed the district court's conclusion that the lead components reclaimed from spent batteries are raw materials. The district court reasoned that because the smelter recycles the components into lead ingots, the components must be raw materials, and not hazardous waste subject to the provisions of the Resource Conservation and Recovery Act. The

Page 1128

defendant has cross-appealed the district court's order awarding penalties and cleanup costs to the government. Because we find the district court's order well founded in fact and law, we affirm it in all but one respect. We reverse the court's conclusion regarding the lead components reclaimed from spent batteries because EPA, in accordance with its authority granted by Congress, has defined "discarded material" to include "recycled material."

BACKGROUND

  1. Industry Overview 1

    Over the years in the United States there has been a steady increase in the number of vehicle batteries which become useless and subject to disposal. In 1986 the number stood at approximately 70,000,000. Each spent battery is a potential pollutant of the environment and can have serious deleterious effects on people and animals living in the area where the battery may be discarded. Even a small number of batteries thrown into the woods, discarded along roadways or in government designated garbage areas represent a significant threat to the water we drink, the food we eat and under limited circumstances, the air we breathe. The source of this trouble in a battery is lead.... [Because lead is an expensive element, an industry has developed over the years] to reclaim the lead from spent batteries.... [In the mid-Seventies] there were approximately 50 secondary lead smelters in the United States reclaiming the lead from about 90% of all spent batteries. The smelters were themselves a major source of pollution; surface water run-off and process water discharged by the smelters created very real health-threatening problems; on-site and off-site storage or disposition of waste became an increasing risk to the quality of life; and even the air was dangerously polluted by emissions from the smelters. [In response to these problems] all levels of government began to amend existing laws and to enact new laws and regulations placing much greater controls over ownership and operation of such smelters. Compliance with these new environmental laws and regulations ... placed such a financial burden on the operation of secondary lead smelters that about 60% of the smelters operating in 1976 were out of business by 1986, and the approximately 20 smelters remaining were reclaiming only about 70% ... [of all discarded batteries.] Thus in 1986 only 55,000,000 of the available 70,000,000 batteries were reclaimed, leaving the 15,000,000 unreclaimed spent batteries to endanger the health of all persons near the site of their repose. The 55,000,000 reclaimed batteries produced about 60% of all lead used in the United States.... [This brief overview demonstrates the secondary lead smelting industry] is a most vital industry not only to our economy but also to [our] environment.... Without the industry, over 70,000,000 contaminated batteries would be scattered throughout our country annually. [Nevertheless, the heart of this industry centers around the handling of hazardous materials. Exempting the industry from regulation cannot be justified on the theory that its contribution to resolving our environmental problems outweighs the environmental harm caused by its operations.]

  2. Factual and Procedural Background

    Against this industry backdrop the present case unfolds, spanning nearly a decade of interaction between the Environmental Protection Agency ("EPA"), the Alabama Department of Environmental Management ("ADEM") and Interstate Lead Company, Inc. ("ILCO"). The voluminous facts are very briefly set forth.

    ILCO owned and operated a secondary lead smelting facility in Leeds, Alabama, from the 1960's until operations ceased in 1992. As such, it was one of the 20 smelters remaining in the country which reclaimed spent batteries. In 1986 ILCO reclaimed over 2,500,000 batteries, or about 5% of those

    Page 1129

    reclaimed in the United States. Diego Maffei is the president and majority shareholder of ILCO.

    ILCO purchased batteries from various suppliers and placed them in a reclamation process. Incoming batteries were cracked open and drained of sulfuric acid. The rubber or black plastic battery boxes were chipped and washed to remove lead particles. The...

To continue reading

FREE SIGN UP