On appeal from the United States District Court for the Eastern District of Pennsylvania. (D.C. Civ. No. 90-2753)
Before: Sloviter, Chief Judge, Scirica and Nygaard, Circuit Judges
Beazer East, Inc. appeals the district court's order granting summary judgment in favor of the Environmental Protection Agency. The EPA cited Beazer for four violations of Subtitle C of the Resource Conservation and Recovery Act, 42 USC §§ 6921 to 6939b (1983 & Supp 1991) (RCRA). Beazer contested these citations on the grounds that the subject of the citations, its aeration basins, were not subject to RCRA regulation. We are presented with a single issue: whether Beazer's basins are "tanks" or "surface impoundments" for purposes of 40 CFR § 260.10. If we conclude that the basins are tanks, then they are exempt from RCRA's groundwater monitoring requirements. On the other hand, if the basins are surface impoundments, then they are subject to RCRA regulation.
This issue has two components: first, whether the EPA's interpretation of the "provide structural support" language in § 260.10 to require tanks to be completely self-supporting when removed from the ground and filled to capacity with the material they are intended to contain, was plainly erroneous or inconsistent with the regulation; second, whether the EPA's interpretation of the "designed to contain" language in § 260.10 to require tanks to be watertight was plainly erroneous or inconsistent with the regulation.
We conclude that the basins are surface impoundments and that the EPA's interpretation of the "provide structural support" language of § 260.10 is not plainly erroneous or inconsistent with the regulation. Hence, we do not reach the second component, the "watertight" test. We will affirm the district court's order granting summary judgment in favor of the EPA.
Beazer, a Delaware corporation, operates a coal tar plant in Follansbee, West Virginia, where it produces creosote, coal tar products and industrial chemicals. Wastewater from the plant undergoes microbial treatment and is released into the Ohio river. This treatment system consists of two aeration basins.*fn1
Each basin has a capacity of 500,000 gallons. They are built into the ground, are 15 feet deep, approximately 80 feet across, and are constructed of six-inch thick reinforced concrete. The concrete overlies a two-inch thick layer of bank sand, which in turn overlies a three-inch thick layer of compacted crushed slag.
In 1987, EPA Region III filed an Administrative Complaint, Compliance Order, and Notice of Opportunity for Hearing against Beazer, charging it with four violations of RCRA groundwater monitoring requirements. First, the EPA charged that Beazer violated 40 CFR § 265.91(a)(1) by failing to maintain a monitoring well of sufficient depth to yield groundwater samples; second, that Beazer violated 40 CFR § 265.91(a)(2) by failing to maintain a monitoring well of sufficient depth to detect statistically significant amounts of hazardous waste; third, that Beazer violated 40 CFR § 265.92(a) by failing to develop and follow a groundwater sampling plan; and fourth, that Beazer violated 40 CFR § 265.93 by failing to prepare an outline of a groundwater quality assessment program.
Beazer requested a hearing before an administrative law Judge to contest the citations. At the outset, Beazer and the EPA stipulated that the only issue to be decided by the ALJ was whether the two basins were "tanks" or "surface impoundments" within the definition of 40 CFR § 260.10. Section 260.10 defines a tank as follows:
Tank means a stationary device, designed to contain an accumulation of hazardous waste which is constructed primarily of non-earthen materials (e.g., wood, concrete, ...