All Christy Carton wanted to do was prevent her town’s ground water from being contaminated with cyanide. (and fluoride)
She ended up doing a bit more than that.
The Frederick County mother and environmental champion won a court battle that will change how dozens of U.S. companies dispose of the wastes from smelting metals.
The first court-ordered change took place Wednesday, when the U.S. Environmental Protection Agency listed wastes generated from smelting six metals – zinc, lead, aluminum, copper and two iron ore wastes – as hazardous waste requiring special – and more expensive handling.
“This decision takes a step to control the most dangerous wastes generated by the smelting industry,” said Robert Percival, a University of Maryland law professor involved in the case. “In a sense, it is a symbolic victory. With enough tenacity, a citizens group can get relief from practices that harm their environment.”
The court ruling may cost some companies dearly. The EPA estimates U.S. industry will spend about $90 million to comply with it. In Maryland alone, the ruling will be expensive for Eastalco Aluminum Co. and could be particularly significant for SCM, a Baltimore plant with a 14-acre lagoon full of waste that could be reclassified as hazardous in the future.
Mrs. Carton’s farmhouse in rolling Frederick County is close enough to the Eastalco Aluminum Co. for her to have begun worrying five years ago when she heard that the company had applied for a state permit to build a landfill to get rid of its spend pot liner – a clay-like material used in manufacturing aluminum.
Curious about what the waste would contain, she took a day off from her job managing a doctor’s office to drive to the EPA’s library in Washington and began rooting around for information on the hazards. The 44-year-old activist said she kept digging around in the files, asking questions until she found that in high enough concentrations, six heavy metals used in smelting could be toxic, damage the nervous system and harm plant and animal life.
In addition, the wastes generated in processing of the metals contained numerous other toxic chemicals, including cyanide, that could be harmful to human health if they got into the drinking water.
And she found instances where the wastes had contaminated ground water in other communities. “I said, ‘is this going to happen here? Would this be our fate, too?”
Despite the evidence, she said, the federal government did not classify the wastes as hazardous.
Congress exempted “high-volume, low-hazard” wastes from mining operations from the strict handling requirements of the federal hazardous waste laws. The EPA interpreted the exemption – the so-called Bevill amendment sponsored by Representative Tom Bevill, D-Ala. – to cover companies that not only mined but also generated wastes from the smelting process.
It was the EPA’s interpretation of that exemption that became the target of several lawsuits.
Maryland officials disagreed with that interpretation, but Michael Powell, an assistant attorney general in Maryland, said the state was virtually powerless to disagree.
Before Mrs. Carton and the Adamstown citizens association decided to bring a lawsuit, they spent months gathering names on a petition. One day, she marched up to the office of the nation’s chief environmental administrator and presented a petition to get him to reclassify the wastes. When that didn’t work, she contacted senators and congressmen who had been instrumental in getting the original legislation passed, hoping they would criticize the EPA’s position.
When those efforts failed, Mrs. Carton began knocking on the doors of national environmental groups. She found the Environmental Defense Fund, and an attorney for them, Mr.Percival, willing to take the case. He described the Frederick citizen as “very, very persistent.”
In the following years the case went through myriad legal maneuverings.
By the time it reached the U.S. Circuit Court of Appeals for the District of Columbia, others had joined the fight. The Hazardous Waste Treatment, a trade association, joined the Environmental Defense Fund against the EPA and the Aluminum Association Inc. and the American Mining Congress.
Finally, on July 29, the Circuit Court of Appeals ordered the EPA to list six smelting wastes as hazardous by Aug. 31. The court also ordered the EPA to conduct a study of how the wastes from many other businesses should be treated.
“The case started with the Adamstown citizens in Frederick County, but the court’s ruling … has a resounding national impact,” said David W. Case, an attorney for the hazardous waste council.
“Toxic wastes from metal smelters from around the country are now subject to restrictions on dumping and other environmental protection standards for the first time. The Frederick County citizens, EDF and HWTC have done more to protect the environment from these toxic wastes than EPA has done in the last 10 years,” Mr. Case said.
Under the new rules, about 10 percent to 20 percent of wastes generated by the mining industry will be considered hazardous waste.
Eastalco already has begun to look for new ways of disposing of its waste. “We estimate it will cost us $2 million above what it costs to handle it now,” said Jerome Doubroff, community relations manager for Eastalco.
The change in regulations will not only make the company less competitive with overseas manufacturers, Mr. Doubroff said, but it will also eliminate a byproduct the company believes can be sold to be mixed with cement. “We feel very strongly that it is recyclable and that it should not be treated as a hazardous waste,” Mr. Doubroff.
The other Maryland company that could be affected is SCM, which manufactures white pigment for paint and other products, generating waste that fills a large lagoon. If reclassified as hazardous waste, large plastic liners would have to be placed underneath the ponds and the waste otherwise neutralized.
“It is easy to visualize that it would be virtually impossible to do,” said Louis Kistner, director of community relations at SCM.
Company and state officials believe several steps SCM has taken to ensure that the waste does not contaminate ground water appear to be working. “We installed a barrier between the lagoon and the [Patapsco] river,” Mr. Kistner said.
In general, the mining industry believes that the regulations are incorrectly applied to their wastes and that the court decision will cost millions of dollars. It is inappropriate, said John N. Hanson, a lawyer for the American Mining Congress, to apply laws written or small amounts of industrial wastes near urban populations to the high-volume wastes often generated far from large urban centers.
“We unfortunately have regulations designed for apples being applied to oranges,” he said.
To some degree, the victory Mrs. Carton has won is a shallow one.
“It has been five years of court battles, and we are very pleased to see that justice has prevailed,” Mrs. Carton said. But she added that she wishes the rules could have prevented the contamination of ground water near her Frederick County farmhouse.
Last year, cyanide, tetrachloroethene, which is a suspected carcinogen and unsafe amounts of fluoride were found in the ground water below Eastalco. So far, the chemicals have not traveled into drinking water supplies.