Owen Elec. Steel Co. of South Carolina, Inc. v. Browner

Decision Date12 October 1994
Docket NumberNo. 93-2195,93-2195
Citation37 F.3d 146
Parties, 63 USLW 2291, 25 Envtl. L. Rep. 20,156 OWEN ELECTRIC STEEL COMPANY OF SOUTH CAROLINA, INCORPORATED, Petitioner, v. Carol M. BROWNER, Administrator of the United States Environmental Protection Agency, Respondent.
CourtU.S. Court of Appeals — Fourth Circuit

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 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 term 'solid waste management unit' [in amended RCRA Sec. 3004] is used to reaffirm the Administrator's responsibility to examine all units at [a TSDF] from which hazardous constituents might migrate, irrespective of whether the units were intended for the management of solid and/or hazardous waste." H.R.Rep. No. 198, 98th Cong., 2d Sess., pt. 1, at 60 (1983), reprinted in 1984 U.S.C.C.A.N. 5576, 5619. Accordingly, in order to conclude that the SPA is an SWMU, the EPA need only find that Owen's slag is a "solid waste."

RCRA Sec. 1004 defines the term "solid waste" as

any garbage, refuse, sludge from a waste treatment plant, water supply treatment plant, or air pollution control facility and other discarded material, including solid, liquid, semisolid, or contained gaseous material resulting from industrial, commercial, mining and agricultural operations, and from community activities....

42 U.S.C. Sec. 6903(27). 3 At issue is whether Owen's slag constitutes "other discarded material." Owen argues that its slag is not a "discarded material" because it is ultimately recycled and used in roadbeds. EPA counters that, because the slag lies dormant, exposed, on the ground for six months before such use, it is discarded even if it is later "picked up" and used in another capacity.

In evaluating these competing arguments, we accord the EPA's interpretation of statutory definition of "solid waste" substantial deference under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Pursuant to Chevron, the Court must first ask whether Congress has spoken directly to the issue in question. If it has, then Congress' directive displaces any contrary agency interpretation. If, however, as here, Congress has not directly spoken, then the Court will not invalidate the agency interpretation so long as it is reasonable and permissible. Additionally, we review the Administrator's permit dispositions only for abuse of discretion. See RCRA Sec. 7006(b), 42 U.S.C. Sec. 6976(b) (adopting the standard of review set out in the Administrative Procedure Act, 5 U.S.C. Secs. 701-706); 5 U.S.C. Sec. 706(2)(A) (limiting judicial review of agency action to a determination of whether the action was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law"). In general, moreover, as we have repeatedly emphasized, " 'the authority [of the Administrator] to abate waste hazards is expansive.' " Feikema v. Texaco, Inc., 16 F.3d 1408, 1415 (4th Cir.1994) (quoting United States v. Waste Indus., Inc., 734 F.2d 159, 166 (4th Cir.1984) (alteration by the court in Feikema )).

A series of cases have addressed the meaning of "discarded material." In American Mining Congress v. United States EPA, 824 F.2d 1177 (D.C.Cir.1987) ("AMC I"), the District of Columbia Circuit was faced with the question of

whether, in light of [Congress'] expressly stated objectives and the underlying problems that motivated it to enact RCRA in the first instance, Congress was using the term "discarded" in its ordinary sense--"disposed of" or "abandoned"--or whether Congress was using it in a much more open-ended way, so as to encompass materials no longer useful in their original capacity though destined for immediate reuse in another phase of the industry's ongoing production process.

Id. at 1185. The court of appeals settled upon the former option, emphasizing that it found the statutory language unambiguous. The court observed that the legislative history and policies underlying RCRA supported its conclusion. In the court's opinion, only materials that are "disposed of" or "abandoned" "become part of the waste disposal problem," id. at 1186, with which RCRA is concerned.

Were AMC I the final case offering interpretation of the phrase "discarded material," Owen might be victorious here: because Owen's slag is eventually recycled, it cannot be said to have been discarded. Subsequent cases, however, have read AMC I narrowly. First, in American Petroleum Institute v. United States EPA, 906 F.2d 729 (D.C.Cir.1990), the EPA asserted that the District of Columbia Circuit's holding in AMC I precluded it from regulating as waste hazardous slag that was delivered to a plant for metal reclamation. The court of appeals held otherwise, explaining:

... The issue in AMC [I] was whether the EPA could, under the RCRA, treat as "solid wastes" "materials that are recycled and reused in an ongoing manufacturing or industrial process." [AMC I, 824 F.2d at 1186.] We held that it could not because

[t]hese materials have not yet become part of the waste disposal problem; rather, they are destined for beneficial reuse or recycling in a continuous process by the generating industry itself.

Id. Materials subject to such a process were not "discarded" because they were never "disposed of, abandoned, or thrown away." Id. at 1193.

AMC [I] is by no means dispositive of EPA's authority to regulate K061 slag. Unlike the materials in question in AMC [I], K061 is indisputably "discarded" before being subject to metals reclamation. Consequently, it has "become part of the waste disposal problem"....

American Petroleum Inst., 906 F.2d at 741 (emphasis provided by the American Petroleum Inst. court).

Next, in American Mining Congress v. United States EPA, 907 F.2d 1179 (D.C.Cir.1990) ("AMC II "), petitioners, relying on AMC I, claimed that three hazardous wastes were not solid wastes on the basis that "sludges [containing the wastes] from wastewater that are stored in surface impoundments and that may at some time in the future be reclaimed are not 'discarded'." AMC II, 907 F.2d at 1186 (emphasis in original). The court of appeals rejected petitioners' reading of AMC I, stating:

Petitioner...

To continue reading

Request your trial
16 cases
  • California Dep. of Toxic v. Interstate Non-Ferrous
    • United States
    • U.S. District Court — Eastern District of California
    • July 28, 2003
    ...Id. citing Connecticut Coastal Fishermen's v. Remington Arms, 989 F.2d 1305, 1316 (2d Cir.1993); Owen Electric Steel Co. of South Carolina v. Browner, 37 F.3d 146, 148 n. 3 (4th Cir.1994); Comite Pro Rescate De La Salud v. Puerto Rico Aqueduct & Sewer Auth., 888 F.2d 180, 187 (1st While the......
  • Cordiano v. Metacon Gun Club
    • United States
    • U.S. Court of Appeals — Second Circuit
    • July 31, 2009
    ...to health or the environment' caused by solid waste." (quoting 42 U.S.C. §§ 6972(a)(1)(B), 6973)); Owen Elec. Steel Co. of S.C., Inc. v. Browner, 37 F.3d 146, 148 n. 3 (4th Cir. 1994) ("[T]he statutory definition of `solid waste' ... is broader than the regulatory definition.") (citing Conn......
  • Citizens Coal Council v. Matt Canestrale Contracting, Inc.
    • United States
    • U.S. District Court — Western District of Pennsylvania
    • September 30, 2014
    ...waste under the Bevill Amendment to the RCRA. 42 U.S.C. § 6921(b)(3)(A)(i).12 In the other case cited by CCC, Owen Elec. Steel Co. of S.C., Inc. v. Browner, 37 F.3d 146 (4th Cir.1994), the court determined that the statutory definition of solid waste (as opposed to the regulatory definition......
  • MPM Silicones, LLC v. Union Carbide Corp., Docket No. 17-3468(L), 17-3669(XAP)
    • United States
    • U.S. Court of Appeals — Second Circuit
    • July 23, 2020
    ...treats, stores, or disposes of hazardous wastes" to "seek[ ] and obtain[ ] a permit from the [EPA]." Owen Elec. Steel Co. of S.C., Inc. v. Browner , 37 F.3d 146, 147 (4th Cir. 1994) ; see also 42 U.S.C. § 6925(a). The statute requires the EPA to evaluate the environmental risks of any such ......
  • Request a trial to view additional results
1 firm's commentaries
1 books & journal articles
  • Rethinking recycling.
    • United States
    • Environmental Law Vol. 38 No. 4, September 2008
    • September 22, 2008
    ...(48) 350 F.3d 1263 (D.C. Cir. 2003). (49) Id. at 1268. (50) 996 F.2d 1126 (11th Cir. 1993). (51) Id. at 1131. (52) Id. at 1132. (53) 37 F.3d 146 (4th Cir. (54) Id. at 150. (55) See infra notes 262-83 and accompanying text. (56) 869 P.2d 440, 443 (Cal. 1994). (57) Id. (58) Id. (citations omi......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT