United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 04-2689

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In the Matter of: *

*

Lyon County Landfill, *

Lynd, Minnesota, *

*

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* Appeal From the United States

Lyon County Board of * District Court for the

Commissioners, * District of Minnesota.

*

Appellant, *

*

v. *

*

United States Environmental *

Protection Agency, *

*

 Appellee. *

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Submitted: February 16, 2005

Filed: May 9, 2005

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Before BYE, HEANEY, and MELLOY, Circuit Judges.

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HEANEY, Circuit Judge.
1

The Honorable Joan N. Ericksen, United States District Judge for the District

of Minnesota. 

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The Lyon County Board of Commissioners appeals the district court's1

affirmance of the final decision of the Environmental Protection Agency's (EPA)

Environmental Appeals Board (EAB) affirming an administrative enforcement action

against Lyon County for violations of section 112 of the Clean Air Act (CAA), 42

U.S.C. § 7412. Lyon County claims that the district court erred in concluding that:

(1) the EPA had administrative jurisdiction under 42 U.S.C. § 7413(d)(1); (2) the

finding of liability was supported by the record; and (3) the EPA properly calculated

the penalty imposed. 

BACKGROUND

Lyon County owns and operates the Lyon County Landfill. On July 20th and

21st, 1994, the Minnesota Pollution Control Agency (MPCA) conducted an asbestos

compliance inspection of the landfill. Employees of the landfill directed the

inspectors to an area where the County disposed of asbestos-containing waste

material (ACWM). On the 20th, the inspectors saw ripped plastic bags with asbestos

warning labels lying uncovered in this area; dust was blowing from and around the

bags. The following day, the inspectors returned and found that the area had been

partially covered with dirt, but they again found ripped plastic bags with asbestos

labels on the surface of the landfill, including some bags they had not seen the

previous day. The inspectors observed visible emissions from the bags, photographed

the material, and took samples from the bags and surrounding area. The samples

collected on both days contained between five and thirty percent asbestos.

The MPCA attempted to negotiate a settlement with Lyon County, but

eventually referred the matter to the EPA for enforcement. After further unsuccessful

negotiation, the EPA filed an administrative complaint pursuant to 42 U.S.C. §
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7413(d)(1) on July 18, 1996. The complaint alleged that Lyon County: violated 40

C.F.R. §§ 61.154(a), (c), and (d), which require active waste disposal site owners to

either prevent any visible emissions to the outside air, or take specified alternate

measures to control emissions; violated § 61.154(e) and (f) by not maintaining waste

shipment records containing specific information and records of the location, depth

and area, and quantity of asbestos-containing waste material; and failed to notify the

EPA in advance of the excavation or disturbance of covered asbestos-containing

material in violation of § 61.154(j). The EPA sought a $58,000 civil penalty for these

violations. 

In its initial hearing, the Administrative Law Judge (ALJ) dismissed the case

for lack of jurisdiction, reasoning that the complaint was filed more than one year

from the violations and was not eligible for a waiver under 42 U.S.C. § 7413(d)(1).

The EPA appealed, and the EAB reversed and remanded the case for a decision on

the merits. On remand, the ALJ found Lyon County liable on all counts and imposed

a penalty of $45,000. Lyon County appealed, and the EAB affirmed liability for

permitting visible emissions, failing to maintain waste shipment records, and

excavating asbestos without notifying the EPA, but reversed on the counts relating

to maintaining updated maps and records of stored waste material, and failing to make

available a map or diagram showing the location, depth and area, and quantity of

ACWM. The EAB reduced the total penalty to $18,800. 

Lyon County petitioned for review in district court, which affirmed the EAB.

The court determined that the statutory language of § 7413(d)(1), authorizing the

EPA’s administrative action, was ambiguous and deferred to the EPA’s interpretation,

applying Chevron U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837 (1984).

The court also gave controlling weight to the EPA’s interpretation of its regulations,

determined that there was substantial evidence supporting the EAB’s decision, and

that the penalty imposed was not an abuse of discretion. This appeal followed.
2

We are not certain that this rule would apply in any case. There is no question

that the EPA has the authority to promulgate asbestos emissions standards under the

CAA and to enforce those standards. Lyon County challenges only the EPA’s ability

to proceed in an administrative enforcement action, rather than in a federal court.

This question–which enforcement method may be used–is less one of jurisdiction

than traditional interpretation within the agency’s jurisdiction. See Union Transp.,

169 F.3d at 477 (applying Chevron where question related to which of several

statutes conferred jurisdiction).

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ANALYSIS

I. Administrative Jurisdiction

Lyon County first claims that the EPA did not have the jurisdiction to bring an

administrative action. We review questions of statutory interpretation de novo. The

court will defer to an agency’s reasonable interpretation of a statute it is charged with

administering if the statute is ambiguous, or the interpretation is consistent with the

plain meaning of the statute. Chevron, 467 U.S. at 844-45. Citing United Transp.

Union Legislative Bd. v. Surface Transp. Bd., 169 F.3d 474, 477 (7th Cir. 1999),

Lyon County argues that the EPA is not due Chevron deference when it is

interpreting the question of its own jurisdiction. Id. This rule has been rejected in

other circuits, see EEOC v. Seafarers Int’l Union, 394 F.3d 197, 201-02 (4th Cir.

2005); Oklahoma Natural Gas Co. v. FERC, 28 F.3d 1281, 1283-84 (D.C. Cir. 1994),

and has not been adopted in the Eighth Circuit, see Coalition for Fair & Equitable

Regulation of Docks v. FERC, 297 F.3d 771, 777-78 (8th Cir. 2002) (applying

Chevron in determining whether the FERC had the power to regulate a non-licensee);

Shelton v. Consumer Prod. Safety Comm’n, 277 F.3d 998, 1004-05 (8th Cir. 2002)

(recognizing that Chevron would apply to jurisdictional question but determining that

the statute was clear).2

 Lyon County also argues that the interpretation advocated by

the EPA is a result of an informal process and not due full Chevron deference. See

generally United States v. Mead Corp., 533 U.S. 218 (2001). EAB decisions,
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however, are formal adjudications consistent with the Administrative Procedure Act,

see 5 U.S.C. §§ 554, 555; 40 C.F.R. § 22; Sultan Chemists, Inc. v. E.P.A., 281 F.3d

73, 78-79, and due Chevron deference, Mead at 228, 230-31. We therefore employ

our traditional Chevron analysis.

The EPA has the authority to bring civil administrative enforcement actions.

42 U.S.C. § 7413(d)(1).

The Administrator’s authority under this paragraph shall be limited to

matters where the total penalty sought does not exceed $200,000 and the

first alleged date of violation occurred no more than 12 months prior to

the initiation of the administrative action, except where the

Administrator and the Attorney General jointly determine that a matter

involving a larger penalty amount or longer period of violation is

appropriate for administrative penalty action. Any such determination

by the Administrator and the Attorney General shall not be subject to

judicial review. 

42 U.S.C. § 7413(d)(1) (emphasis added). Investigators from the MPCA observed

violations of the CAA on July 20th and 21st of 1994, and the EPA brought its

enforcement action on July 18, 1996. The EPA argues that it has jurisdiction to bring

this action, more than a year after the date of the violations, because the

Administrator and Attorney General have determined that it is appropriate for

administrative penalty action. Lyon County argues that the “longer period of

violation” language in 42 U.S.C. § 7413(d)(1) must mean that the violation itself

continued for more than twelve months; because the violations at issue here occurred

only on two days, an administrative penalty action could not be brought more than a

year after the violations. 

When reviewing an agency’s construction of the statute it administers, we first

consider whether Congress has clearly resolved the issue. Chevron, 467 U.S. at 842-

43. We consider the agency’s interpretation only after finding that statute is silent or
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ambiguous on the question at issue. Id. Section 7413(d)(1) provides a general rule:

the EPA may only bring actions administratively if the total penalty sought is less

than $200,000 and the violation took place less than one year from the initiation of

the administrative action. The statute then sets out an exception to this limitation:

the EPA may also bring actions “involving a larger penalty amount or longer period

of violation” if the Administrator and the Attorney General determine that the matter

is appropriate for administrative penalty action. The phrase “larger penalty amount

or longer period of violation” in this exception must be read with reference to the

general rule. A “larger penalty amount” is a total penalty greater than $200,000.

Similarly, a “longer period of violation” is one greater than 12 months. 

Lyon County argues that a “period of violation” normally refers to the duration

of the violation, the course of time that the violation continued. Read in this manner,

the exception permits the EPA to bring an administrative action more than a year after

a violation only if the violation itself continued for more than twelve months. The

EPA argues that the “period of violation” must be read in connection with the initial

limitation. The only time period mentioned in the limitation is the period between the

violation and the initiation of an administrative action. A “period of violation”

therefore refers to the period from when the violation occurred to the initiation of the

administrative action; the period of violation is “longer” if the violation occurred

more than twelve months from the administrative action. Because both of these

interpretations are plausible, we conclude that Congress did not clearly resolve the

question, and the statute is ambiguous. 

The EPA interpreted “longer period of violation” to refer to a longer period of

time between the first occurrence of the violation and the time the administrative

action commenced. The exception therefore parallels the general limitation, with

both referring to the same time period. The Administrator has the authority to

unilaterally bring some administrative actions; in all other cases the Administrator
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may only bring an administrative action with the consent of the Attorney General.

This interpretation of the statute is plausible, and we therefore defer to the EPA. 

II. Liability

Lyon County argues that the EPA improperly imposed liability on the landfill.

We will not set aside the administrative penalty assessment unless “there is not

substantial evidence in the record, taken as a whole, to support the finding of a

violation,” or the assessment constitutes an abuse of discretion. 42 U.S.C. §

7413(d)(4). 

The EPA action is based on violations of 40 C.F.R. § 61.154, which sets out

the asbestos emission standard for active waste disposal sites. Each owner or

operator of an active waste disposal site that receives ACWM from a demolition or

renovation operation must ensure that there are “no visible emissions to the outside

air from any active waste disposal site where asbestos-containing waste material has

been deposited,” § 61.154(a), or take appropriate alternative measures to control

emissions, § 61.154(c) and (d). Lyon County does not dispute that the landfill is an

active waste disposal site, and further concedes that it did not take any alternative

measures to limit emissions. 

 The County argues that the EPA did not prove that there were visible

emissions to the outside air. Visible emissions are defined by the statute as any

emissions visually detectable without instruments, coming from regulated asbestoscontaining material (RACM) or ACWM. Lyon County argues that the EPA did not

establish the presence of either ACWM or RACM on the surface of the landfill, and

that the material found could not have been the source of visible emissions because

it was nonfriable. 
3

The County suggests that the material found by inspectors could have come

to the landfill through an unregulated source such as a private homeowner. There is

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The EPA defines RACM as 

(a) Friable asbestos material, (b) Category I nonfriable ACM [asbestoscontaining material] that has become friable, (c) Category I nonfriable

ACM that will be or has been subjected to sanding, grinding, cutting, or

abrading, or (d) Category II nonfriable ACM that has a high probability

of becoming or has become crumbled, pulverized, or reduced to powder

by the forces expected to act on the material in the course of demolition

or renovation operations regulated by this subpart. 

40 C.F.R. § 61.141. ACWM are 

mill tailings or any waste that contains commercial asbestos and is

generated by a source subject to the provisions of this subpart. This

term includes filters from control devices, friable asbestos waste

material, and bags or other similar packaging contaminated with

commercial asbestos. As applied to demolition and renovation

operations, this term also includes regulated asbestos-containing

material waste and materials contaminated with asbestos including

disposable equipment and clothing. 

40 C.F.R. § 61.141.

The ALJ found that Category I nonfriable ACM was sampled by inspectors and

had been subjected to grinding or cutting. Category II nonfriable ACM had become

crumbled. All of this material is RACM as defined by the EPA, and capable of

releasing visible emissions. The County’s contention that the material could not have

been the source of visible emissions is contrary to both the record and the regulation.

The County also argues that the EPA failed to show that the material was RACM

because it was not traced back to a specific regulated source,3

 and the amount of
no evidence in the record suggesting that this is the case, and we see nothing in the

waste disposal standard or the definition of RACM which places on the EPA the

burden of proving that mishandled material came from a regulated source. 

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material found was less than the threshold-triggering amount under 40 C.F.R. §

61.145. Section 61.145 sets out the emission standard for demolition and renovation;

these requirements are not part of the standard for active waste disposal sites, 40

C.F.R. § 61.154, and are also not included in the definitions of ACWM and RACM.

The evidence in the record established that the landfill is an active waste disposal site,

and that inspectors observed emissions emanating from RACM at the site. The

regulations do not require the agency to prove additional facts to show a violation of

the asbestos emission standard. We therefore affirm the decision of the district court

with respect to liability on all counts. 

III. Penalty Calculation 

Lyon County objects to the $18,800 penalty calculated by the EAB on three

grounds: the ALJ improperly applied the demolition and renovation penalty policy

to the landfill; the penalty was based on the total amount of asbestos waste the landfill

handled, rather than the amount mishandled; and the material would not have been

subject to regulation at a demolition site. We have already addressed the County’s

third objection in our discussion of liability, and found no error in the EAB’s

conclusion that material found at the landfill was RACM and subject to regulation.

Under the CAA, a general guideline for penalties is followed by a series of

appendices for specific situations. The ALJ consulted the Asbestos Removal and

Demolition Penalty Policy because there is no specific appendix related to active

waste disposal sites. The agency argues that this guideline was the most relevant

guideline available; application of the general guidelines would have resulted in a

higher penalty. As the EAB concluded, this approach provided a reasonable

framework for determining an appropriate penalty. See 42 U.S.C. § 7413(e); 40
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C.F.R. § 22.27. We do not consider this approach an abuse of discretion warranting

reversal of the civil penalty. 

We further find unpersuasive the County’s argument that the penalty was

excessive because it was based on the total volume of ACWM handled by the County,

rather than the volume mishandled. A penalty under the CAA may depend on the

amount of asbestos involved in the operation because of the potential for harm caused

by improper removal and disposal. The ALJ expressed concern that there was

significant potential for harm in this case; although only a small amount of asbestos

was mishandled, the landfill receives a significant amount of asbestos. This was not

an abuse of discretion on the part of the ALJ. 

CONCLUSION

We conclude that the EPA had jurisdiction to bring an administrative action

against the Lyon County landfill, that there is substantial evidence in the record

supporting the findings of liability, and that the calculation of a penalty in the amount

of $18,800 was not an abuse of discretion. We therefore affirm the well-reasoned

decision of the district court. 

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