US v. Bethlehem Steel Corp.

• Citation: 829 F. Supp. 1023
• Decision Date: 19 March 1993
• Docket Number: Civ. No. H90-326.
• Parties: UNITED STATES of America, Plaintiff, v. BETHLEHEM STEEL CORPORATION, Defendant.
• Court: U.S. District Court — Northern District of Indiana

829 F. Supp. 1023

UNITED STATES of America, Plaintiff, v. BETHLEHEM STEEL CORPORATION, Defendant.

Civ. No. H90-326.

United States District Court, N.D. Indiana, Hammond Division.

March 19, 1993.

Richard J. Clarizio, U.S. E.P.A., Office of Regional Counsel, Chicago, IL, Andrew B. Baker, Jr., John F. Hoehner, U.S. Attys. Office, Dyer, IN, Richard B. Stewart, John H. Grady, Kevin P. Holewinski, U.S. Dept. of Justice, Environmental Enforcement Section, Environment and Natural Resources Div., Washington, DC, Deborah A. Kline, Elizabeth A. Ojala, U.S. E.P.A., Washington, DC, Dorothy Attermeyer, Mary Fulghum, U.S. E.P.A., Region V, Catherine J. Garypie, U.S. E.P.A., Office of Regional Counsel, Chicago, IL, Thomas M. Giller, U.S. Dept. of Justice, Environmental Enforcement Section, Chicago, IL, for plaintiff.

Bryan G. Tabler, Donald E. Williams, Mark E. Shere, John M. Kyle, III, Barnes and Thornburg, Indianapolis, IN, J.B. Smith, Beckman Kelly and Smith, Hammond, IN, William H. Graham, Bethlehem Steel Corp., Bethlehem, PA, for defendant.

MEMORANDUM OPINION AND ORDER

LOZANO, District Judge.

This matter is before the Court on the United States' Motion for Partial Summary Judgment under the United States' First Claim for Relief filed February 7, 1992, the United States' Motion for Partial Summary Judgment Under the United States' Second Through Sixth Claims for Relief, filed on February 18, 1992, The United States' Motion to Strike the Defendant's Citation of Supplemental, Dispositive Authority, filed October 19, 1992, the Defendants' four motions for partial summary judgment on issues regarding Subtitle C of RCRA, and the Defendant's Cross-Motion for Partial Summary Judgment on Corrective Action Issues, both filed on February 18, 1992, and the Defendant's Supplemental Cross-Motion for Partial Summary Judgment on Corrective Action Issues, filed April 14, 1992. For the reasons set forth below, this Court hereby GRANTS the United States' Motions and DENIES the Defendant's Motions.

BACKGROUND

In this case, the Plaintiff, the United States ("the United States") alleges that a series of environmental violations have occurred and continue to occur at the Defendant, Bethlehem Steel Corporation's (the "Defendant"), integrated steelmaking facility located in Burns Harbor, Indiana. The United States asserts six claims for relief in its Complaint based upon two federal environmental statutes. In its first claim for relief, the United States alleges that the Defendant violated the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. § 6901 et seq., and the Safe Drinking Water Act ("SDWA"), 42 U.S.C. § 300f et seq., by failing to perform the corrective action program required by two Underground Injection Control ("UIC") permits that the Environmental Protection Agency (the "EPA") issued to the Defendant. The United States alleges in its remaining five claims that the Defendant violated numerous RCRA requirements in its operation and management of three hazardous waste management units at its Burns Harbor facility, i.e., a landfill and two terminal polishing lagoons ("the lagoons"). The United States seeks both injunctive relief and civil penalties for each of its six claims.

DISCUSSION

Pursuant to Rule 56 of the Federal Rules of Civil Procedure, summary judgment is proper only if it is demonstrated that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986); First Wis. Trust Co. v. Schroud, 916 F.2d 394, 398 (7th Cir.1990). In other words, the record must reveal that no reasonable jury could find for the nonmovant. Karazanos v. Navistar Int'l Transp. Corp., 948 F.2d 332, 335 (7th Cir.1991); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). In deciding a motion for summary judgment, the Court must read all facts in the light most favorable to the nonmoving party. Anderson, 477 U.S. at 255, 106 S.Ct. at 2513; Richardson v. Penfold, 839 F.2d 392, 394 (7th Cir.1988).

The burden is upon the moving party to identify those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits," if any, which it believes demonstrates an absence of a genuine issue of material fact. Celotex, 477 U.S. at 323, 106 S.Ct. at 2553. Once the moving party has met this burden, the nonmoving party may not rest upon mere allegations but "must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); Becker v. Tenenbaum-Hill Assoc., Inc., 914 F.2d 107, 110 (7th Cir.1990); Schroeder v. Lufthansa German Airlines, 875 F.2d 613, 620 (7th Cir. 1989). "Whether a fact is material depends on the substantive law underlying a particular claim and `only disputes over facts that might effect the outcome of the suit under governing law will properly preclude the entry of summary judgment.'" Walter v. Fiorenzo, 840 F.2d 427, 434 (7th Cir.1988) (citing Anderson, 477 U.S. at 250-252, 106 S.Ct. at 2511-2512).

"A party who bears the burden of proof on a particular issue may not rest on its pleading, but must affirmatively demonstrate, by specific factual allegations, that there is a genuine issue of material fact which requires trial." Beard v. Whitley County REMC, 840 F.2d 405, 410 (7th Cir. 1988). Therefore, if a party fails to establish the existence of an essential element of its case on which it bears the burden of proof at trial, summary judgment will be appropriate. In this situation, there can be "`no genuine issue as to any material fact', since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex, 477 U.S. at 324, 106 S.Ct. at 2553 (1986).

The United States' First Claim for Relief

The United States' first claim is brought under RCRA and SDWA and is based on the Defendant's alleged failure to comply with the terms of two UIC permits that the EPA issued to the Defendant on September 30, 1985. These UIC permits allow Defendant to dispose of hazardous waste ammonia liquor into two deep injection wells at its Burns Harbor Facility (the "Facility"). Among other things, these permits required the Defendant to perform a phased program of corrective action at its Facility. The first phase, Preliminary Assessment, was required to be completed within 39 days of the issuance of the permits, but no later than 45 days after the effective date of the permit — January 19, 1989. The second phase, Corrective Action, required the Defendant to submit to the EPA a corrective action plan to remediate any releases of hazardous constituents within six months of the effective date of the permit. The third phase, Correction Action Implementation, required the Defendant to implement a corrective action plan within 36 months of the effective date of the permit.

The United States alleges it is entitled to injunctive relief and civil penalties under its first claim for relief because the Defendant violated RCRA and SDWA by failing to comply with the corrective action program in accordance with the schedule of its UIC permits. First, the Defendant did not complete the Preliminary Assessment Phase as it was required to within 39 days of the issuance of the permits or at least no later than 45 days after the effective date of the permit — January 19, 1989. Second, the Defendant did not submit to the EPA a corrective action plan to remediate any releases of hazardous constituents, within six months of the effective date of the permit, as it was required to do under the second phase.

The Defendant presents several defenses to the United States' first claim. In its Cross-Motion for Partial Summary Judgment, the Defendant first argues that the 1989 versions of the UIC permits have been superseded by modified permits that were issued to the Defendant in 1990. See Underground Injection Control Permits IN-127-1W-0003 and -0004, Defendant's Exh. Nos. 66 and 67 (the "1990 permits"). The 1990 permits were accompanied by a one page order, signed and dated by the director of the EPA's Water Division, and stated, "this modified permit shall become effective on October 13, 1990, and shall supersede the existing permit upon issuance." Defendant contends that the legal effect of a superseding permit means to set aside, annul, displace, make void, or otherwise repeal a prior permit, citing Health-Chem Corp. v. Baker, 915 F.2d 805, 811 (2nd Cir.1990), Black's Law Dictionary (5th Ed.1979), and several other cases. The Defendant also disputes the United States' reliance on the following regulation:

In a permit modification under this section, only those conditions to be modified shall be reopened when a new draft permit is prepared. All other aspects of the existing permit shall remain in effect for the duration of the unmodified permit. When a permit is revoked and reissued under this section, the entire permit is reopened just as if the permit had expired and was being reissued. During any revocation and reissuance proceeding the permittee shall comply with all conditions of the existing permit until a new final permit is reissued.

40 C.F.R. § 124.5(c)(2) (1991) (emphasis added). Under the above regulation, the effect of the draft permits is to immediately suspend "those conditions to be modified" from the prior 1989 permits. The regulation also states that all other aspects of an existing permit remain in effect for the duration of the unmodified permit. The Defendant claims that the duration of the 1989 unmodified permits ran only until the permits were superseded by the issuance of a final modified permit.

As to Defendant's first defense, this Court finds that it is not only illogical, but it is not consistent with government regulations. The permit modifications did not modify the...