U.S. v. Wci Steel, Inc., 4:98-CV-1082.
| Decision Date | 22 October 1999 |
| Docket Number | No. 4:98-CV-1082.,4:98-CV-1082. |
| Citation | 72 F.Supp.2d 810 |
| Parties | UNITED STATES of America, Plaintiff, v. WCI STEEL, INC., Defendant. |
| Court | U.S. District Court — Northern District of Ohio |
Arthur I. Harris, Office of the U.S. Attorney, Cleveland, OH, Francis J. Biros, Department of Justice, Environmental Enforcement Section, Washington, DC, Lois J. Schiffer, Department of Justice, Environment & Natural Resources Division, Environmental Defense Section, Washington, DC, Frank Bentkover, Drenaye Houston, Matthew A. Fogelson, Department of Justice, Environmental Enforcement Section, Washington, DC, for United States of America, plaintiff.
Van Carson, Lisa R. Duffett, Ellen Seibenschuh, Lisa D. Sutton, Squire, Sanders & Dempsey, Cleveland, OH, Vincent Atriano, Squire, Sanders & Dempsey, Columbus, OH, for WCI Steel, Inc., defendant.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
In this action, the Plaintiff United States alleges that three wastewater ponds at Defendant WCI Steel's Warren, Ohio steelmaking facility (Ponds 5, 6, and 6A) are hazardous waste units, and as such are subject to regulation under the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. § 6901 et seq. As grounds for this allegation, the United States claims that Ponds 5, 6, and 6A once contained wastewater having a pH1 of 2.0 standard units ("s.u.") or lower, and thus had a corrosive characteristic.2
Plaintiff United States filed this action on May 11, 1998. To establish WCI's use of corrosive substances, the United States principally relies upon sampling it did in May and June 1993 and upon data supplied by WCI in early 1994.
The parties having waived a jury, this matter went to trial before this Court. After observing the demeanor of the witnesses and considering the parties' evidence and arguments, the Court makes the following findings of fact and conclusions of law.
The Defendant WCI Steel, Inc. ("WCI") is an Ohio corporation with its principal place of business at 1040 Pine Avenue, Warren, Ohio.3 At this facility, Defendant WCI operates the last remaining integrated steel mill in the Mahoning River Valley.
WCI Warren facility manufactures hot rolled strip steel, pickled and oiled hot rolled steel strip, cold rolled steel, and coated flat steel products. Employing approximately 2,200 employees, WCI is the largest steel employer in the Mahoning Valley.
Steel production began at the Warren facility in 1912. Beginning in the 1930s, Republic Steel Corporation owned the facility. In 1984, Republic Steel Corporation merged with J & L Steel Corporation to form LTV Steel Company. In 1988, LTV Steel Company went into bankruptcy. With little potential to operate profitably, the bankruptcy trustee decided to sell the Warren facility to Defendant WCI for an insignificant price compared with the facility's physical assets.4
In August 1988, Defendant WCI purchased the Warren facility during a time of major decline in United States integrated steelmaking production.5 By saving the facility from shutdown, WCI greatly benefitted its workers and the Warren, Ohio, community.
After purchasing the Warren facility, Defendant WCI made major investments in production equipment and facilities. WCI spent more than $300 million on capital improvements. These capital expenditures also reduced the amounts of pollution.
At its Warren Ohio, facility, WCI has a system for the collection and treatment of wastewater generated in its steel production. The WCI steel facility first collects wastewater from manufacturing areas. This wastewater is then distributed to Pond 5 through a system of underground sewers, pumps, and pipes.
After settling and oil separation processes take place in Pond 5, WCI conveys the wastewater to Pond 6. From Pond 6, WCI pumps the wastewater across the Mahoning River to a central treatment plant.
In 1986, LTV installed Pond 6A to intercept and collect seepage from Pond 6 before it reached the Mahoning River. The seepage collected in Pond 6A is pumped back into Pond 6.
WCI primarily intends the pond system to equalize flow to the central treatment plant, to give storm water surge protection, and to allow the skimming of a substantial portion of oil from the wastewater. Taken together, the areal extent of the Ponds is slightly more than one acre.
This wastewater treatment system was constructed before WCI purchased the Warren facility in 1988. Ponds 5 and 6 have been in use at the Defendant's facility since before 1950. Pond 6A was added in 1986. Ponds 5, 6, and 6A have been in continuous use to the current date.
Ponds 5, 6, and 6A are each unlined earthen surface impoundments.6 At relevant times, these surface impoundments were not equipped with impermeable liners.
Spent pickle liquor is listed by U.S. EPA as a corrosive and toxic hazardous waste under RCRA regulations at 40 C.F.R. § 261.32. However, if the acid was neutralized by the addition of lime, then the pickle liquor would be exempt from RCRA's hazardous waste regulations under the iron and steel industry exemption in 40 C.F.R. § 261.3(c)(2)(ii)(A).7
By its nature, the steel industry often uses corrosive materials. WCI uses spent hydrochloric pickling acids, acidic rinse waters, and acidic fume scrubber wastewaters. Occasionally, WCI would inadvertently release quantities of these substances. When such spills occurred, they more often occurred near the picklers than anywhere else. The picklers provided secondary containment for the acid tubs, designed to retain acid leaks or spills. WCI experienced leaks from the acid tubs on an infrequent basis. When such leaks occurred, WCI sought to isolate and neutralize the spilled acid, or "pickle liquor."
Before 1993, WCI used a procedure of manually adding lime to the wastewaters when the wastewater pH fell to between 3 and 4 s.u. as measured by the influent probe at the central treatment plant. Under this procedure, employees would add a certain number of 50-pound bags of lime to the wastewater. As to this decision, Environmental Engineer Richard Gradishar usually decided how many bags to add based upon the pH of the wastewater. However, WCI did not conduct any testing to learn whether the lime succeeded in neutralizing the acid.
In the early 1990s, WCI considered replacing Ponds 5, 6, and 6A with a second-hand four million gallon above-ground tank. WCI obtained a permit from the EPA to install the tank. After obtaining this permit, WCI discovered that the tank was no longer in usable condition. Defendant WCI therefore did not complete the project.
With this action, the Plaintiff United States alleges that WCI was subject to RCRA because it dealt with hazardous substances without a permit. Defendant WCI does not have a permit issued pursuant to 42 U.S.C. §§ 6925 and 6926 to manage, treat, or store hazardous wastes in Ponds 5, 6, and 6A. Nor does WCI qualify for interim status under § 6925, which would temporarily exempt WCI from the permit requirement.8
Shortly after purchasing the WCI facility in 1988, Defendant WCI applied for a National Pollutant Discharge Elimination System Permit. After approving this application, the Ohio EPA allowed WCI to use Ponds 5, 6, and 6A as sedimentation units under the Clean Water Act. However, the permit did not authorize WCI to treat, store, or dispose of hazardous wastes in Ponds 5, 6, or 6A.
Defendant WCI next applied for and received an EPA Part B permit, authorizing the storage of spent pickle liquor processed through tanks. The EPA Part B permit required WCI to manage hazardous waste only according to the permit's provisions. The Part B permit forbade any management of hazardous waste not authorized by the permit or otherwise exempted by law. In particular, the Part B permit did not authorize WCI to treat, store or dispose of spent pickle liquor or corrosive characteristic wastes in Ponds 5, 6, or 6A.
As part of its Part B permit, Defendant WCI installed groundwater monitoring wells near Ponds 5, 6, and 6A in April 1998. The results from these wells do not indicate that the Ponds adversely affect the groundwater.
Within Ohio, the Ohio EPA administers the RCRA hazardous waste management program as the U.S. EPA's delegee under authorization by the U.S. EPA.9 As the U.S. EPA's authorized delegee, the Ohio EPA had authority to inspect WCI's facility and to decide whether WCI met the standards of RCRA and analogous Ohio law.
Since 1981, the Ohio EPA has conducted at least twelve hazardous waste compliance inspections of the facility. In conducting these inspections, the Ohio EPA had access to all WCI facilities. At the time of the inspections, WCI told the Ohio EPA that these surface impoundments were used as solid waste management units for waste waters from the cold rolling, coated products, and pickling operations.10 After conducting these reviews, the Ohio EPA has never alleged or determined that the Ponds were hazardous waste units under RCRA.
As indicated, the Plaintiff United States alleges that WCI handled corrosive wastes that were hazardous. Because it has scant sampling data of its own, the United States relies upon studies undertaken by others at various times.
Defendant WCI employed engineers who took samples on at least two occasions. On June 20, 1989, Duncan, Lagnese & Associates conducted hourly sampling of the wastewater in the surface impoundments.11 Of twenty-four grab samples collected by these engineers, twenty-one had a pH value of 2.0 s.u. or below. These samples were not taken as part of a sampling plan of the whole ponds.
In 1990, WCI's contractor, Remcor, Inc., sampled the sludges in Ponds 5 and 6 following a formal sampling plan. After conducting this sampling, Remcor found the sludges were not corrosive or hazardous.
In October 1993, engineers Killam Associates conducted a...
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