United States v. Mountain State Carbon, LLC
| Decision Date | 17 July 2014 |
| Docket Number | Civil Action No. 5:12-CV-19 |
| Court | U.S. District Court — Northern District of West Virginia |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. MOUNTAIN STATE CARBON, LLC, Defendant. |
This is an action by the Environmental Protection Agency ("EPA") against Mountain State Carbon, LLC ("MSC") pursuant to Section 113(b) of the Clean Air Act, 42 U.S.C. § 7413(b) and Sections 3008(a) and 9006 of the Solid Waste Act, also known as the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. §§ 6928(a) and 6991e.
This case was originally filed on February 6, 2012, by the EPA and the West Virginia Department of Environmental Protection ("WVDEP") against RG Steel Wheeling, LLC, formerly known as Severstal Wheeling, LLC, also formerly known as Severstal Wheeling, Inc., and also known as Wheeling Pittsburgh Steel Corporation ("RG Steel"), Mountain State Carbon, LLC ("MSC"), and SNA Carbon, LLC ("SNA") [Doc. 1].
On March 6, 2012, the WVDEP voluntarily dismissed its claims without prejudice [Doc. 8].
On June 1, 2012, a Suggestion of Bankruptcy was filed, noting that RG Steel filed a petition under Chapter 11 of the Bankruptcy Code in the United States Bankruptcy Court for the District of Delaware [Doc. 19]. As a result, this Court entered a stay [Doc. 20], which was lifted on July 9, 2012 [Doc. 27].
On July 23, 2012, SNA filed Defendant SNA Carbon, LLC's Motion to Dismiss for Failure to State a Claim and for Judgment on the Pleadings [Doc. 28], which Motion, after briefing, was granted by this Court on August 23, 2012 [Doc. 35].
On August 21, 2013, EPA moved to dismiss RG Steel [Doc. 106], which Motion was granted on August 22, 2013 [Doc. 107].
On September 24, 2013, the EPA filed United States' Motion for Partial Summary Judgment on its Clean Air Act Claims [Doc. 116].
On October 21, 2013, the EPA filed United States' Motion for Partial Summary Judgment on its RCRA Subtitle C Claim and to Dismiss Defendant's Eighth and Ninth Defenses [Doc. 125].
On the same day, MSC filed Defendant Mountain State Carbon, LLC'S Motion for Summary Judgment on the United States' Resource Conservation and Recovery Act Claims [Doc. 127].
By Order entered January 14, 2014, this Court granted in part and denied in part United States' Motion for Partial Summary Judgment on its Clean Air Act Claims [Doc. 116], denied United States' Motion for Partial Summary Judgment on its RCRA Subtitle C Claim and to Dismiss Defendant's Eighth and Ninth Defenses [Doc. 125], and granted in part and denied in part Defendant Mountain State Carbon, LLC'S Motion for Summary Judgment on the United States' Resource Conservation and Recovery Act Claims [Doc. 127]. [Doc.182].
At the start of trial, the following causes of action were in play: (1) Third Claim for Relief - Particulate Emission Violation at Coke Oven Batteries; (2) Fifth Claim for Relief - Hydrogen Sulfide Concentration Violations; (3) Eighth Claim for Relief - RCRA Subtitle C Violations; (4) Tenth Claim for Relief - Alleged Purifier Oil Violations; (5) Eleventh Claim for Relief - Alleged Roll-off Box Violations; and (6) Twelfth Claim for Relief - Alleged RCRA Subtitle I Violations.
On May 12, 13, 14, 15 and 20, 2014, the parties appeared before this court for a bench trial. The plaintiff was represented by Michael J. Zoeller of the United States Department of Justice, Environment and Natural Resources Division; Cara Mroczek of the United States Department of Justice, Environmental Enforcement Section; John Sither of the United States Department of Justice, Environmental Enforcement Section; Joyce Howell of the United States Environmental Protection Agency; and Betsy Steinfeld Jividen of the United States Attorney's Office for the Northern District of West Virginia. The defendant was represented by John K. Gisleson, Kenneth S. Komoroski, Daniel Carmel, and Steven E. Gibbs of Morgan Lewis & Bockius LLP, Pittsburgh; and James F. Companion of Schrader, Byrd & Companion, PLLC. This Court received live testimony from James Hagedorn, Richard Eaton, Alfred Carducci, John McGrew, Karl Svoboda, Timothy Leon-Guerrero, Dr. Thomas Luben, Motria Caudill, Robert Harris, Martin Matlin, Thomas Lallone, Bud Smith, Harry Immurs, Robert Adoranti, Patrick Smith, Marcia Williams, and Larry Hottenstein, and reviewed the deposition testimony of Cheryl Scott, Ph.D.
Prior to beginning the receipt of testimony, this Court, accompanied by counsel forthe parties, viewed the premises of MSC.
The EPA's first witness was James Hagedorn, an environmental scientist in the air protection division, EPA Region III in Philadelphia. Mr. Hagedorn visited the MSC coke plant in 2001, 2008, and 2013. He recounted the preparations for the 2008 inspection, as well as the results and actions after the inspection, which included the issuance of a Notice of Violation. He described the Visible Emission Observations ("VEO") method of determining opacity violations.
Mr. Hagedorn admitted that during the 2008 inspection, all pushing emissions were within compliance and that all topsides and doors were compliant.
During his 2013 visit, he accompanied EPA's expert witness John McGrew, whose inspection consisted of looking into the ovens in Battery 8 from the outside. He noted that Mr. McGrew did not open the caps at the tops of the flues to determine whether there were any leaks from the ovens into the flues.
During cross-examination, Hagedorn admitted that under a consent agreement, the penalties for Shenango for opacity violations were fines of $100 to $450, after an allowance of 132 violations. Similarly, under a consent decree with U.S. Steel, the penalties for opacity violations were forgiven for the first 33 clock hours each quarter, with penalties of $100 to $450 thereafter. Under a 1996 consent decree with MSC, there is no penalty if the emissions were caused by force majeure.
In determining opacities by the VEO method, Method 9 must be followed or the finding is not reliable and may not be used. If the wind speed is 0-3 miles per hour, the plume will go straight up and is reliable. If a VEO reader does not find a violation, often there is no report showing compliance.
Mr. Hagedorn admitted that he had said that if one looks hard enough, one can always find a violation and that he sent people out specifically tasked to find violations, especially with regard to coke batteries 1 and 2.
The EPA next presented the testimony of Richard Eaton, an Environmental Protection Specialist with the EPA, Region III. He is an air protection inspector located in the Wheeling office, in which capacity he has participated in inspections at MSC over the past four to five decades. Mr. Eaton testified as to taking VEO readings in compliance with the protocol set forth in Method 9 and the requirements for certification as a VEO reader.
On cross-examination, Mr. Eaton testified that the folks at MSC have always been cooperative with him and they were always trying to be compliant with environmental laws. He also admitted that he was sent to MSC by Mr. Hagedorn to get violations on the battery 1 and 2 stacks. Mr. Eaton conducted an inspection of MSC on March 17, 2011, and observed no deficiencies. He also stated that when conducting VEO observations, if there is no violation no report is made.
The EPA's third witness was Alfred Carducci, an Environmental Resource Specialist, Region III with the West Virginia Division of Air Quality. Mr. Carducci testified that Brooke and Hancock Counties have the highest air emission scores among the four counties of the Northern Panhandle. According to a report that he presented, the air quality was unhealthy for normal folks on one (1) day in 2012 and was unhealthy for sensitive folks on twelve (12) days during the same period.
Mr. Carducci testified as to taking VEO readings using Method 9. He stated that he has taken readings that did not comply with Method 9, including at MSC, so that the parties would know what was going on in the plant.
On cross-examination, Mr. Carducci admitted that the personnel at MSC were always cooperative and that they were seeking to comply with environmental laws. He noted that while a 2004 Consent Decree between MSC and the West Virginia Department of Environmental Protection required only a few through walls in battery 8 be replaced, MSC did more than required. Forty-eight ovens had complete through walls re-bricked and the other 31 ovens had six flues replaced on the coke side and four flues replaced on the pusher side.
In a 2008 inspection, the witness found that there were no leaking doors on either the pusher or coke side of the battery and that overall the battery was in good working order. In the same inspection, he noted that the battery 8 stack emissions were in compliance.
Mr. Carducci also testified that nationally two thirds of all SO2 emissions are from power plants and there are issues with the wind blowing particulate matter and a lot of SO2 into West Virginia from the Cardinal Power Plant in Ohio. He noted that the prevailing wind at MSC comes from Ohio to West Virginia.
The fourth witness called by the EPA was John McGrew, who had retired from U.S. Steel's Clairton Works, where he was involved with their coke plant in one capacity or another for 38 years. Mr. McGrew was asked to take a look at the coke oven batteries to determine the particulate emissions from the combustion stack and also to form an opinion of what repairs were needed.
Mr. McGrew described a typical coke oven and how it works. A coke oven is approximately 16 to 19 inches wide, being wider on the coke end than the pusher end. The ovens are 54 feet long and 21 to 23 feet high. The battery at MSC is a 6 meter battery.The top of the oven has six openings. Four of those openings are charging holes, which is where the larry car, on a track above the oven, dumps the coal into the oven. Once the oven is charged with...
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