United States of America et al

Filing 182

ORDER: Granting in part and Denying in part 116 Plaintiff's Motion for Partial Summary Judgment; Denying 125 Plaintiff's Motion for Partial Summary Judgment; Granting in part and Denying in part 127 Defendant's Motion for Summary Judgment. Signed by Chief Judge John Preston Bailey on 1/14/14. (soa)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
WHEELING

UNITED STATES OF AMERICA,

Plaintiff,
v.

Civil Action No. 5:12-CV-19
(BAILEY)

MOUNTAIN STATE CARBON, LLC,
Defendant.

ORDER
Presently pending and ripe for ruling are Plaintiff’s Motion for Partial Summary
Judgment on its Clean Air Act Claims [Doc. 116], Plaintiff’s Motion for Partial Summary
Judgment on its RCRA Subtitle C Claim and to Dismiss Defendant’s Eighth and Ninth
Defenses [Doc. 125], and Defendant’s Motion for Summary Judgment on the United States’
Resource Conservation and Recovery Act Claims [Doc. 127]. For the reasons set forth in
this Order, the Plaintiff’s Motion for Partial Summary Judgment on its Clean Air Act Claims
[Doc. 116] will be GRANTED IN PART AND DENIED IN PART. The plaintiff’s Motion for
Partial Summary Judgement on its RCRA Subtitle C Claim and to Dismiss Defendant’s
Eighth and Ninth Defenses [Doc. 125] will be DENIED. The Defendant’s Motion for
Summary Judgment on the United States’ Resource Conservation and Recovery Act
Claims [Doc. 127] will be GRANTED IN PART and DENIED IN PART.
On February 6, 2012, the Attorney General of the United States, acting at the

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request of the Administrator of the United States Environmental Protection Agency (EPA)1
filed this action against defendant Mountain State Carbon, LLC (MSC) [Doc. 1].2 The
United States alleges in its Third and Fifth Claims for Relief in the Complaint that MSC
violated the \Clean Air Act, 42 U.S.C. § 7401, et seq., by emitting excessive particulate
matter from its coke oven combustion stacks, and excessive hydrogen sulfide in its coke
oven gas. The United States alleges in its Eighth Claim for Relief in the Complaint that the
defendant violated the Resource Conservation and Recovery Act (RCRA), 42 U.S.C.
§§ 6901, et seq., by failing to comply with coke oven gas condensate (COGC)
management requirements.

The Complaint seeks injunctive relief to prevent future

violations and the assessment of civil penalties for past and continuing violations of the
Clean Air Act and the RCRA. The defendant moves for partial summary judgment on the
United States’ Resource Conservation and Recovery Act Claims on the ground that the
defendant complies fully with the RCRA and therefore the United States’ RCRA claim fails
as a matter of law. It also moves for summary judgment on Claim 12, that various units in
the pipeline of COGC are subject to RCRA Subtitle I.
I.

Background
The defendant, MSC, is a limited liability company owned in equal shares by RG

Steel Wheeling, LLC and SNA Carbon, LLC. MSC has owned a coke manufacturing facility

1

The Complaint originally included as a plaintiff the State of West Virginia, on behalf
of the West Virginia Department of Environmental Protection. The state of West Virginia
voluntarily dismissed its claims without prejudice on March 6, 2012 [Doc. 8].
2

The Complaint also named as defendants SNA Carbon, LLC, and RG Steel
Wheeling, LLC. The additional defendants were dismissed on August 23, 2012 [Doc. 35]
and August 22, 2013 [Doc. 107], respectively.
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in Follansbee, Brooke County, West Virginia since MSC’s creation in September 2005.
MSC has operated the facility since September 2012.
The defendant produces coke at the Follansbee coke plant by placing pulverized
coal into coke ovens and heating it at high temperatures in the absence of air. During the
coking process, a gas known as coke oven gas is produced. The gas is then directed
through a recovery process to refine the gas for combustion and make byproducts.
Coke ovens are built in groups known as batteries. The defendant has four batteries
at the Follansbee plant, Batteries 1, 2, 3, and 8. Coke oven batteries 1, 2, and 3 contain
145 coke ovens, which were idled in June 2012. Battery 8 contains 79 ovens and remains
in operation. The gas combusted in the flues of the coke ovens for each battery is
exhausted to the atmosphere through a single combustion stack. It is emissions from these
coke oven combustion stacks which are the subject of Claim 3 of the litigation.
The levels of emissions from the coke oven combustion stacks can be determined
by visible emission observations (VEOs), which are conducted visually by a qualified
observer. On multiple occasions, a qualified observer visually observed smoke and/or
particulate matter being emitted from coke oven combustion stacks that exceeded 20%
opacity for more than five minutes during a sixty minute period or 40% opacity at any time.
The parties contest the impact of the observations.
The defendant also electronically monitors the opacity of emissions from each coke
oven combustion stack using continuous opacity monitors (COMs). The COMs take
automated emissions opacity readings at least every ten seconds, and six-minute opacity
averages are calculated from the 36 or more data points equally spaced over each sixminute period. 40 C.F.R. § 60.13. The COM data show multiple instances of emissions
3

opacity greater than 40%. The parties contest whether the data may be used to determine
the defendant’s liability.
After raw coke oven gas cools, it is sent through a series of processes at an
adjoining byproducts plant. Upon arrival at the byproducts plant, the hydrogen sulfide
content of the raw coke oven gas is approximately 240 to 300 grains per 100 cubic feet of
gas. At the byproducts plant, hydrogen sulfide scrubbers reduce the hydrogen sulfide
content of the coke oven gas. An exception is made twice yearly for maintenance of the
scrubber and associated processes. The defendant continuously monitors the hydrogen
sulfide content of its coke oven gas as it leaves the byproduct plants. The defendant’s
hydrogen sulfide monitoring reports contained instances where the hydrogen sulfide
content of the coke oven gas averaged more than 50 grains per 100 cubic feet of gas
during a three-hour block of time. It is emissions from hydrogen sulfide which is the subject
of Claim 5 of the litigation. The parties dispute whether certain instances of elevated
hydrogen sulfide levels in the coke oven gas are exempt from liability.
Flushing liquor is used during the coke production and by-products recovery
process. The flushing liquor, comprised of approximately 98% water, is used in multiple
ways, including spraying it onto the coke oven gas to cool it. The flushing liquor which is
not used for other purposes, known as “excess flushing liquor,” is directed to an ammonia
still where the ammonia contained in the flushing liquor is extracted for use in absorbing
hydrogen sulfide, and is subsequently converted to ammonium sulfate.
After the coke oven gas is refined and exits the byproducts plant, it enters a pipeline.
The pipeline transports the coke oven gas throughout the coke plant, to be used as fuel to
the coke oven batteries and to the boiler house. Historically, the pipeline also pumped the
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gas across the Ohio River to the Steubenville and Mingo Junction steel plants. As the coke
oven gas travels through the pipeline, it cools, and condensate known as coke oven gas
condensate (COGC) forms. The COGC is at least 98% water. The remaining components
are primarily benzene, ammonia, napthalene, phenols, toluene, arsenic, and styrene. The
COGC flows by gravity into tanks located at various points along the pipeline known as
“drip legs.” The drip legs are emptied of COGC once daily on average using a tank truck
known as a “drip truck,” which uses vacuum pressure to draw the COGC from the drip legs
into the tank on the back of the drip truck. It is the defendant’s management of COGC
which is the subject of Claim 8 of the litigation.
II.

Discussion

A. Standard of Review
Summary judgment is appropriate when there is no genuine issue of material fact
and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c);
Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). Thus, a summary judgment
motion should be granted if the nonmovant fails to make a showing sufficient to establish
the existence of an essential element of his claim or defense upon which he bears the
burden of proof. Celotex, 477 U.S. at 323. That is, once the movant shows an absence
of evidence on one such element, the nonmovant must then come forward with evidence
demonstrating there is indeed a genuine issue for trial. Id. at 323–24. The existence of a
mere scintilla of evidence supporting the nonmovant’s position is insufficient to create a
genuine issue; rather, there must be evidence on which a jury could reasonably find for the
nonmovant. Anderson v. Liberty Lobby, 477 U.S. 242, 252 (1986).

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B. Clean Air Act
The Clean Air Act (CAA) establishes a joint state and federal program to control the
Nation’s air pollution. The CAA provides national standards on air pollution by requiring the
EPA to establish national ambient air quality standards (NAAQS) for certain pollutants,
among them sulfur dioxide (SO2), which results from combusting hydrogen sulfide (H2S),
and particulate matter (PM). 42 U.S.C. § 7410; 40 C.F.R. §§ 50.4–50.7. The EPA has
established NAAQS for two types of particulate matter, coarse particulate matter with a
diameter of 10 micrometers or less, known as PM10, and fine particulate matter with a
diameter of 2.5 micrometers or less, known as PM2.5. 42 U.S.C. § 7602(t); 40 C.F.R.
§§ 50.6; 50.7.
The EPA then designates locations as attainment areas, which meet the NAAQS,
or nonattainment areas. The parties do not dispute that Brooke County, West Virginia,
where the Follansbee Facility is located, is currently in an attainment area for PM10 and
certain PM2.5 standards. The County was designated as a nonattainment area for the 2010
SO2 NAAQS on October 4, 2013. 78 Fed. Reg. 47,191 (Aug. 5, 2013).
C. West Virginia State Implementation Plan
The CAA provides that certain conformity requirements apply to nonattainment
areas. 42 U.S.C. § 7506(c)(5).

States create, and the EPA approves, a State

Implementation Plan (SIP) to implement and enforce the NAAQS. Id. at § 7410(a)(1). The
West Virginia SIP includes emission limitations for PM and H2S. 40 C.F.R. Part 52, Subpart
XX.
The relevant West Virginia SIP limit for PM emissions is:
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3.1. No person shall cause, suffer, allow or permit emission of smoke
and/or particulate matter into the open air from any process source operation
which is greater than twenty (20) percent opacity, except as noted in
subsections 3.2, 3.3, 3.4, 3.5, 3.6, and 3.7.
3.2. The provisions of subsection 3.1 shall not apply to smoke and/or
particulate matter emitted from any process source operation which is less
than forty (40) percent opacity for any period or periods aggregating no more
than five (5) minutes in any sixty (60) minute period.
West Virginia Code of State Rules (WV CSR) § 45-7-3.1, 3.2.
The relevant West Virginia SIP limit for H2S emissions is:
5.1. No person shall cause, suffer, allow or permit the combustion of any
refinery process gas stream or any other process gas stream that contains
hydrogen sulfide in a concentration greater than 50 grains per 100 cubic feet
of gas except in the case of a person operating in compliance with an
emission control and mitigation plan approved by the Director and U.S. EPA.
In certain cases very small units may be considered exempt from this
requirement if, in the opinion of the Director, compliance would be
economically unreasonable and if the contribution of the unit to the
surrounding air quality could be considered negligible.

WV CSR § 45-10-5.1.
Title V of the CAA requires major sources of criteria pollutants to have an operating
permit that contains applicable emission limitations and standards. 42 U.S.C. § 7661a7661f. The West Virginia Department of Environmental Protection issued MSC a Title V
permit for the Follansbee facility that contains PM and H2S combustion limits identical to
the West Virginia SIP. The relevant provisions have remained unchanged since the permit
was issued in 2004.
The United States has the authority to bring a civil enforcement action against violators
of any applicable SIP emission limit or other requirements. 42 U.S.C. § 7413.

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D. Resource Conservation and Recovery Act
The Resource Conservation and Recovery Act, 42 U.S.C. §§ 6921, et seq., gives the
EPA the authority to manage hazardous waste and non-hazardous solid waste. Subtitle
C of the RCRA establishes a federal program to manage the generation, transportation,
treatment, storage, and disposal of hazardous waste.
States are permitted to implement their own hazardous waste programs as long as they
are “equivalent to” and “consistent with” federal programs. 42 U.S.C. § 6926(b). The EPA
authorized the State of West Virginia to administer and enforce its own hazardous waste
management program under RCRA, effective May 29, 1986. 51 Fed. Reg. 17739. The
West Virginia program is implemented under the West Virginia Hazardous Waste
Management Act, W. Va. Code §§ 22-18-1 et seq., and various other sections within Title
22 of the West Virginia Code and Title 33, Series 20 of the West Virginia Code of State
Regulations.
The United States retains jurisdiction and authority to initiate an independent
enforcement action to address violations of authorized states program requirements. 42
U.S.C. § 6928.
III.

Analysis

A. Clean Air Act Claims
The United States moves for partial summary judgment to establish the liability of the
defendant’s alleged violations of the Clean Air Act, as set forth in the Third and Fifth Claims
for Relief in the Complaint. The United States alleges that the defendant exceeded air
emission regulations and the facility’s operating permit by having excessive particulate

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emissions from its coke oven combustion stacks in Count 3 and excessive hydrogen sulfide
in its coke oven gas in Count 5.
1. Particulate Matter Emissions
The plaintiff moves for summary judgment regarding the defendant’s liability for the
Third Claim for Relief, which alleges that MSC violated the West Virginia SIP and its Title
V permit by exceeding the emission limits of smoke and/or particulate matter. The plaintiff
bases its contention on visible emission observations and data from electronic monitoring
of emissions.
As described above, the West Virginia SIP prohibits the emission of smoke or
particulate matter that exceeds 20% opacity for a period aggregating more than five
minutes in a sixty minute period or more than 40% opacity at any time. The plaintiff
contends that a qualified observer made 19 visual observations of smoke and/or particulate
matter emissions that exceeded proscribed emissions limits of the West Virginia SIP.
Because the emission limits for particulate matter from combustion stacks contained in the
West Virginia SIP are identical to limits in the defendant’s Title V Permit, the plaintiff claims
that the observations also demonstrate a violation of the Title V Permit.
The plaintiff also contends that COM data gathered from the coke oven combustion
stacks show multiple violations of West Virginia SIP emission limits. The United States
claims that it may use COM data to establish violations of emission limits under the West
Virginia SIP, which permits the Director of the Division of Environmental Protection to use
“any credible evidence . . . for the purpose of establishing whether a person has violated
or is in violation [of emission limitations].” WV CSR § 45-38-5.1. The United States also

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claims that the defendant’s Title V Permit expressly allows the United States to use
“credible evidence” to establish compliance with or violation of emission limits contained
in the permit [Doc. 117 at 14–15]. The United States claims that Courts have accepted
COM data to establish violations of emission limits where visual observations were
unavailable or incomplete [Id. at 15].
The defendant’s response states that the Court should deny the motion for partial
summary judgment on the third claim [Doc. 140]. First, the defendant claims that the
United States does not allege any violations of the Federal Maximum Achievable Control
Technology (MACT) Opacity Standard [Id. at 5]. The defendant contends that the West
Virginia legislature has precluded the application of any state rule or regulation that would
be more stringent than the federal MACT opacity standard and, as such, the United States’
motion fails as a matter of law [Id. at 5–8]. Further, the defendant asserts that even if the
United States could base violations on West Virginia CSR § 45-7, it may not use COM data
in lieu of VEOs to establish violations of emissions limitations for three reasons. First, the
defendant claims that West Virginia’s SIP and MSC’s Title V Permit specifically mandate
use of VEOs to determine compliance with coke oven combustion stack emissions, under
West Virginia CSR § 45-7A-2.1.a.1 and MSC Operating Permit at 3.3.5 [Id. at 8]. The
defendant claims that using COM data changes the monitoring frequency, which greatly
increases the stringency of West Virginia’s opacity standard [Id. at 9–12]. Second, the
defendant claims that the EPA’s federal MACT rule establishes that COM data is not
credible evidence of the defendant’s violations. The defendant contends that federal courts
have allowed the use of continuous emission monitoring data as “credible evidence” under
only limited circumstances, such as citizen suits where the groups did not have reference
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test method data or where such data did not exist or was never introduced [Id.] Finally, the
defendant asserts that COM data may only be used where VEOs are unavailable or
incomplete, and that the United States has failed to show that it lacks sufficient VEOs to
determine compliance. Additionally, the defendant claims that five of the 19 alleged coke
oven combustion stack emissions violations based on VEOs are not supported by data
recorded by the defendant’s COMs.
The United States’ reply claims that the defendant’s reliance on MACT standards is
misplaced [Doc. 143].

According to the United States, MACT standards refer to

technology-based emission limits for hazardous air pollutants established under Section
112 of the CAA, which is different from and independently enforceable by the United States
from the violations claimed regarding PM and SO2, standards established under Section
110 of the CAA. The United States claims that the defendant is required under its Title V
Permit to Operate to comply with both the health-based SIP limits and the technologybased MACT limits. According to the United States, the opacity limits set forth in the SIP
serve to attain and preserve air quality standards, while the MACT opacity levels limits
serve to limit hazardous air pollutants in coke oven emissions to a level attainable by the
best controlled coke oven battery stacks in the United States [Id. at 4]. The reply further
claims that COM data is credible evidence of the defendant’s combustion stack opacity
violations. The United States requests that because the defendant claims that five of the
nineteen visible emission observations are not supported by the COM data, that the Court
enter summary judgment in favor of the United States regarding the defendant’s liability
under the Third Claim for Relief for the 14 violations. The United States reserves the right
to prove that some or all of the challenged visible emission observations demonstrate
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violations of the combustion stacks’ opacity limits. The United States also requests that the
Court enter summary judgment in favor of the United States regarding the defendant’s
liability as to the 3,587 violations established by COM data.
a. MACT Opacity Standards
The MACT limits for coke ovens do not preclude the United States from enforcing
opacity limits set forth in the West Virginia SIP. The opacity limits set forth in the MACT are
technology-based and are based on the maximum achievable control technology for
hazardous air pollutants. The CAA and West Virginia SIP serve to attain and preserve air
quality standards in Brooke County, West Virginia. MSC’s Title V permit includes both the
facility’s SIP limits and its MACT limits. The United States’ failure to allege any violations
of MACT standards, therefore, has no effect on its ability to claim violations of emission
limits for criteria pollutants under the CAA and West Virginia SIP.
Accordingly, the West Virginia SIP limits and the MACT limits are not mutually exclusive
and are independently enforceable by the United States.
b. COM Data
The West Virginia Code of State Rules regarding compliance test procedures to prevent
and control particulate air pollution from manufacturing process operations states that the
“opacity . . . of emissions from manufacturing process operations shall be determined
visually by a qualified observer.” WV CSR § 45-7A-2.1.a.1.
The United States’ reliance on West Virginia CSR § 45-38.5.1 for the proposition that
it may any credible evidence for the purpose of establishing whether a person has violated
emissions limits is misplaced. Under § 45-38.5.1, the United States is permitted to use of
any credible evidence violations where any rule enforceable by the Director “does not
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contain definitive compliance determination procedures or if a related rule establishing such
compliance determination procedures has not been authorized and adopted.” WV CSR
§ 45-38-3.
Similarly, MSC’s Title V Operating Permit states that “Compliance with the visible
emissions standards . . . shall be determined by observers certified in accordance with 40
C.F.R. Part 60 Appendix A, Method 9 and following the observation procedures of Method
9. In determining compliance with the visible emission standards under 45CSR2 and any
visible emissions limitations established in CO-SIP-91-29, each visible emission
observation shall represent a fifteen (15) second period and visible emission observations
shall not be averaged.” [Doc. 140-6 at 5].
The United States’ claim that the Title V Permit allows the use of COM data in
determining violations is unpersuasive. Section 2.22.1 of the Title V Permit states:
Nothing in this permit shall alter or affect the ability of any person to
establish compliance with, or a violation of, any applicable requirement
through the use of credible evidence to the extent authorized by law. Nothing
in this permit shall be construed to waive any defenses otherwise available
to the permittee including but not limited to any challenge to the credible
evidence rule in the context of any future proceeding.
MSC Title Permit, § 2.22.1. The EPA’s rules on credible evidence state that “credible
evidence revisions are not intended to and will not serve to affect the stringency of
underlying emission standards by amending the nature of the compliance obligation.” COM
data is taken every ten seconds, 24 hours per day and 365 days per year, whereas VEOs
may be taken under prescribed conditions with less frequency. Using COMs as “credible
evidence,” therefore, would affect the stringency of underlying emission standards by
amending the nature of the compliance obligation.
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Additionally, the United States’ argument that using COM data as credible evidence in
place of “unavailable or incomplete” VEO data fails as the United States does not give any
indication why it believes the VEOs are unavailable or incomplete. The defendant claims
that it had hundreds of VEOs taken by certified observers at each of the four coke oven
batteries on a weekly basis during the past five years [Doc. 140 at 17]. The United States
does not aver that the VEOs were incomplete. Therefore, there remains a genuine issue
of material fact as to whether the VEOs were inadequate to establish compliance.
Accordingly, the United States’ Motion for Partial Summary Judgment regarding MSC’s
liability under the Third Claim for Relief in the Complaint is hereby GRANTED IN PART as
to the 14 undisputed violations of opacity limits of emissions from its coke oven combustion
stacks. The Motion is DENIED IN PART as to the remaining disputed visible emission
observations and alleged 3,587 violations established by COM data.
2. Hydrogen Sulfide Emissions
The plaintiff also moves for summary judgment on the defendant’s liability on the Fifth
Claim for Relief, which alleges that MSC violated the West Virginia SIP and its Title V
Permit by combusting coke oven gas containing more than 50 grains of H2S per 100 cubic
feet of gas. The plaintiff alleges more than 800 emissions violations between March 2007
and June 2012.
The defendant’s response does not dispute that some liability exists for violations
alleged in the United States’ fifth claim for relief [Doc. 140 at 20]. However, the defendant
claims that a 1996 Consent Decree expressly exempts at least 106 of the exceedances for
which the United States now seeks summary judgment as to liability [Id.]. The defendant

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claims that in 1996, the United States and Wheeling-Pittsburgh, MSC’s predecessor,
signed a Consent Decree which resolves, inter alia, certain exceedances of the H2S
standard set forth in the West Virginia SIP [Doc. 140 at 18]. The Consent Decree,
according to the defendant, sets forth stipulated penalties for exceedances of the 50 grains
of H2S per 100 cubic feet of gas standard, unless the violations fall within a force majeure
provision, which excuses noncompliance caused by circumstances beyond MSC’s control
that could not have been prevented by the exercise of reasonable diligence [Id. At 19–20].
Additionally, the defendant argues that the United States is entitled to payment for the 740
non-disputed violations pursuant to the schedule of Stipulated Penalties set forth in the
1996 Consent Decree.
The United States’ reply withdraws its motion for partial summary judgment regarding
liability for the 106 disputed violations, which the defendant claims were the result of force
majeure events. The United States reserves the right to prove that some or all of the 106
challenged incidents are violations of the H2S standard. The United States requests that
the Court enter summary judgment in its favor regarding the remaining 740 violations.
As the defendant does not dispute liability as to the 740 violations, and the United
States withdraws its summary judgment motion as to the additional 106 disputed violations,
the Court hereby GRANTS IN PART the plaintiff’s motion for partial summary judgment as
to liability for the 740 violations set forth in the Fifth Claim for Relief and DENIES the motion
for partial summary judgment as to liability for the 106 disputed violations, which the
defendant claims fall under the force majeure provision of the 1996 Consent Decree. The
issue of remedies will be decided at a later date. At that time, the Court will address the

15

defendant's argument that the 740 violations should be resolved through payment pursuant
to the schedule of Stipulated Penalties set forth in the 1996 Consent Decree.
B. RCRA Subtitle C Claim
In the Eighth Claim for Relief in the Complaint, the United States alleges that coke oven
gas condensate (COGC) displays the toxicity characteristic for benzene, which makes it
a hazardous waste under West Virginia Code of State Rules and the Resource
Conservation and Recovery Act (RCRA) [Doc. 1 at ¶ 115]. The United States claims that
the defendant failed to manage COGC as required by RCRA and the West Virginia
Hazardous Waste Management Program [Id. at ¶ 116–19]. The parties filed cross motions
for summary judgment regarding the United States’ Eighth Claim for Relief.
The United States’ motion for summary judgment alleges that the defendant has not
complied with Subtitle C of the RCRA in managing coke oven gas condensate (COGC)
[Doc. 125]. The United States claims that COGC is both a solid waste and a hazardous
waste and is therefore subject to RCRA Subtitle C [Doc. 137 at 10–15]. The United States
claims that the defendant’s disposal of COGC does not constitute an excluded form of
recycling under the RCRA [Id. at 15–20]. Further, the United States claims that any
recycling defense must fail as a matter of law because MSC failed its legal burden to
document its claimed recycling exception or set forth appropriate documentation that
COGC is not a solid waste [Id. at 21–23].
The defendant’s Response to the United States’ Motion for Summary Judgment claims
that COGC is not a solid waste as defined under RCRA because it is not discarded or
abandoned [Docs. 128; 141 at 6–10]. The defendant claims that the presence of benzene
is not dispositive of whether COGC is a waste under RCRA regulations [Id. at 11]. Third,
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the defendant claims that the United States cannot make the required threshold showing
that COGC is recycled in a manner that renders it a solid waste under RCRA. Fourth, the
defendant claims that COGC is exempt from regulation under the RCRA under the
exemption for wastes from coke by-products plant processes [Id. at 19]. Finally, the
defendant claims that it has provided ample documentation establishing the COGC is not
a solid waste or, if a solid waste, is subject to recycling exemptions [Id. at 20–21]. The
defendant reiterates these claims in it Motion for Summary Judgment and accompanying
Memorandum in Support [Docs. 127, 128].
The United States’ reply reiterates its original claims that the defendant failed to show
that COGC is not a solid waste under RCRA and that its handling practice is not exempt
under the RCRA.
The Court finds that COGC is not a solid waste, although there remains a genuine issue
of material fact as to whether COGC is a solid waste as a result of emissions resulting from
transfer. Additionally, the Court finds that even if COGC were a solid waste, it does not fall
under RCRA regulations because its use by MSC falls under the recycling exemption under
the RCRA and MSC has adequately documented the recycling. To that extent, the
defendant’s Motion for Summary Judgment is GRANTED.
1. Whether COGC Subject to RCRA’s Hazardous Waste Regulatory Program
In order to be subject to RCRA’s hazardous waste regulatory program, a material must
be both a “solid waste” and a “hazardous waste.” Respondents in enforcement actions who
claim that a material is not a solid waste, or who claim exemption from regulation, have the
burden of proving that there is a known market for disposition for the material, and that they
meet the terms of the exclusion or exemption. In doing so, they must provide appropriate
17

documentation to demonstrate that the material is not a waste, or is exempt from
regulation. 40 C.F.R. § 261.2(f). If respondents claim that they recycle the materials, they
must show that they have the necessary equipment to do so. 40 C.F.R. § 261.2(f). The
defendant claims that COGC is not a solid waste and that it is exempt from regulation
because it recycles the materials.
a. Solid Waste
The Court finds that the defendant is entitled to partial summary judgment on the United
States’ RCRA claims. COGC is not an RCRA Subtitle C solid waste because it is recycled,
not discarded as defined in 40 C.F.R. § 261.2. Whether some COGC is disposed as
volatilized emissions during transfer remains an issue for trial.
A “solid waste” is defined in 40 C.F.R. § 261.2 as discarded materials that are not
otherwise excluded. A discarded material is defined as material which is, inter alia,
abandoned.

40 C.F.R. § 261.2(a)(2)(i).

The plaintiff claims that the materials are

abandoned under RCRA. The RCRA defines abandoned materials as materials which are
disposed of; burned or incinerated; or accumulated, stored, or treated (but not recycled)
before or in lieu of being abandoned by being disposed of, burned or incinerated. 40
C.F.R. § 261.2(b).
The RCRA defines disposal as “discharge, deposit, injection, dumping, spilling, leaking,
or placing of any solid waste or hazardous waste into or on any land or water so that such
solid waste or hazardous waste or any constituent thereof may enter the environment or
be emitted into the air or discharged into any waters, including ground waters.” 42 U.S.C.
§ 6903(3).

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The plaintiff contends that the COGC collection and delivery process results in disposal
subsequent to the abandonment of COGC in several ways [Doc. 137 at 11]. First, it claims
that COGC is abandoned as it is accumulated and stored in the drip legs after being
generated in the COG pipeline. Next, it claims that COGC is disposed when MSC allows
the volatile constituents of COGC, namely benzene, to be emitted into the air when it is
pumped from the drip legs into the drip trunk tank, and also when it is pumped from the drip
truck into the conveyance trench and phenol pit sump. Third, the United States claims that
COGC is abandoned through disposal when some of the COGC is sent to the ammonia still
and to the wastewater treatment plant.
The defendant claims that the COGC in the drip legs is not a solid waste because it is
beneficially recycled. It claims that any air emissions from coke batteries and byproducts
plants during transfers of the COGC are specifically regulated by the Clean Air Act, not the
RCRA [Doc. 141 at 9–10], and because the United States’ argument is based on incorrect
assertions regarding the method of transferring the COGC. The defendant also argues that
COGC is not discarded by introducing the material into the ammonia still because COGC
contains ammonia, which is recovered in the ammonia still [Id. at 10–1].
i.

COGC Stored in Drip Legs

The United States contends that the COGC that forms in the coke oven gas pipeline is
a solid waste because it is abandoned as it is accumulated and stored in the drip legs are
being generated in the coke oven gas pipeline. The defendant asserts that the COGC is
not a solid waste because it accumulates only briefly in the drip legs before being recycled.
The Court does not find that the COGC stored in drip legs is a solid waste. The COGC is
not abandoned through disposal or accumulated as is required to be a solid waste under
19

40 C.F.R. § 261.2(a-b). Additionally, as will be discussed below, even if the COGC were
a solid waste, MSC’s handling of COGC constitutes an excluded form of recycling under
the regulations, and therefore is exempt from regulation under the RCRA. See Section
III(B)(2).
ii. Regulation of COGC Emissions During Transfer
The United States contends that any emissions from the COGC liquid during transfers
of the liquid are regulated under RCRA regulations. The defendant contests this, saying
any emissions are regulated under the CAA. The Court agrees with the United States that
emissions from liquid COGC into the air are regulated under the RCRA.
Disposal is defined in RCRA as:
[D]ischarge, deposit, injection, dumping, spilling, leaking, or placing of any
solid waste or hazardous waste into or on any land or water so that such
solid waste or hazardous waste or any constituent thereof may enter the
environment or be emitted into the air or discharged into any waters,
including ground waters.

42 U.S.C. § 6903(3).
The United States claims that the benzene is a constituent of the liquid COGC, and the
RCRA permits regulation of solid waste or hazardous waste “or any constituent thereof”
[Doc. 137 at 11–12]. Accordingly, the United States claims that when COGC’s constituent
benzene is allegedly emitted during transfer of the liquid COGC, the RCRA statute permits
regulation of constituents of solid or hazardous waste that are emitted into the air.
The defendant contends that the RCRA definition of solid waste specifically excludes
volatilized COGC [Doc. 141 at 8]. Solid waste is defined as “discarded material, including
solid, liquid, semisolid, or contained gaseous material.” 42 U.S.C. § 6903(27). The
20

defendant claims that any volatilized COGC into the ambient air would be uncontained
gaseous material, which is excluded from the definition of solid waste.
The definition of disposal in the RCRA extends to air emissions of volatilized COGC.
Accordingly, any such emissions are regulated by the RCRA.
iii. Emission of Volatile Constituents of COGC into the Air
According to the United States, MSC allows the volatile constituents of COGC to be
emitted into the air first, when the COGC is pumped from drip legs into the drip truck tank,
and second, after it is pumped from the drip truck and poured through a hose into the open
conveyance trench and phenol pit sump. The United States claims that MSC does not use
emission-reducing hoses, usually consisting of cam-lock connectors, when the drip truck
hooks up by hose to the drip legs and pumps out COGC. The defendant asserts that it
does use cam-lock connectors to reduce emissions by sealing around the drip leg valves
[Doc. 141 at 10]. The parties’ dispute as to whether the defendant uses cam-lock
connectors to form a seal between the drip truck hose and the drip legs is an issue of
material fact for trial.
The defendant also contests the United States’ claim that the transfer of COGC by hose
from the drip truck into a conveyance trench constitutes a discharge to land or water
because the concrete conveyance trench prevents any possibility of contact between
COGC and land. It also claims that the phenol pit sump is not open to ambient air.
Whether the phenol pit sump is open to ambient air is also an issue of material fact for trial.
As such, whether COGC is discarded when it is accumulated and stored in drip legs may
not be determined by motion for summary judgment.
iv. COGC Discharge to the Ammonia Still
21

The parties agree that a portion of the COGC becomes mixed with flushing liquor and
is diverted to the ammonia still, where ammonia is distilled from the liquid. The parties
dispute the impact of the mixing. The United States claims that COGC is abandoned
through disposal rather than recycled during this process because the amount of COGC
being added to the excess flushing liquor that gets distilled is extremely small [Doc. 137 at
13]. The United States also states that if MSC claims that COGC is beneficial to the
ammonia distillation process, it bears the burden of proving its claim with specific evidence
of COGC’s useful effects.
The defendant contests the United States’ assertion that the quantity of COGC is too
small to add value to the ammonia distillation process. MSC claims that COGC contains
ammonia, which is the product that the distillation process is intended to cover, and that it
has provided ample evidence of its recovery and use of ammonia in the production and
sale of marketable commodities [Doc. 141 at 10].
The Court is unpersuaded by the United States’ argument that MSC has not satisfied
its burden because it does not provide exact calculations of the quantity of ammonia that
is produced from the portion of COGC mixed into the flushing liquor circuit. The COGC is
sent to the ammonia still for purposes of removing the ammonia. In turn, MSC recovers
and uses ammonia in the production and sale of marketable commodities. Accordingly, the
United States is not entitled to summary judgment on its claim that MSC’s diversion of
COGC to the ammonia still constitutes discharge and therefore a solid waste.

b. Hazardous Waste

22

The EPA has designated three ways in which a solid waste may also qualify as a
hazardous waste. Unless excluded, a solid waste may also qualify as a hazardous waste
by 1) being explicitly listed as such because it contains certain toxic constituents; 2)
exhibiting one or more of the hazardous characteristics of ignitability, corrosivity, reactivity,
and toxicity; or 3) being mixed with solid or listed hazardous wastes. 40 C.F.R. § 261.3(a).
The plaintiff contends that COGC exhibits the toxicity characteristic for benzene and
thus constitutes a hazardous waste under the applicable RCRA regulations.
The defendant contests the United States’ claim that the presence of benzene in COGC
makes it a hazardous waste. According to the defendant, determination of whether COGC
is a solid waste must be based exclusively on MSC’s intent to discard and, because MSC
beneficially recycles the COGC in a continuous process, it cannot be a hazardous waste.
In order for waste to be classified as hazardous under RCRA, “it must first qualify as a
solid waste” pursuant to the statute. Conn. Coastal Fishermen's Ass’n v. Remington
Arms Co., 989 F.2d 1305, 1313 (2d Cir. 1993); see also 42 U.S.C. § 6903(5) (“The term
‘hazardous waste’ means a solid waste [that also has additional characteristics.]”). As a
threshold matter, because the United States’ is not entitled to summary judgment on
whether COGC is a solid waste, the Court may not classify COGC as hazardous under the
RCRA.

23

2. COGC is Not a Solid Waste Under the RCRA, Even if Such a Showing Were
Made, MSC’s Handling of COGC Would Constitute an Excluded Form of
Recycling under the Regulations
The United States maintains that MSC’s handling of COGC does not constitute an
exempt form of recycling [Doc. 126 at 20]. The United States claims that COGC does not
satisfy Subtitle C exceptions for materials that are not a solid waste when recycled or
Subtitle C exceptions for wastes from coke by-products processes. The Court finds that
the United States has failed to show that COGC is a solid waste and that even if this Court
considered COGC a solid waste, MSC’s handling of COGC would constitute an exempt
form of recycling.
a. COGC is Not a Solid Waste Under 40 C.F.R. § 261.2(a-b)
The plaintiff is required to show that COGC is a solid waste under 40 C.F.R. § 261.2(ab). Once shown, a respondent who raises a claim that a certain material is not a solid
waste, or is conditionally exempt from regulation, must demonstrate that there is a known
market or disposition for the material, and that they meet the terms of the exclusion or
exemption. 40 C.F.R. § 261.2(f).
As discussed above, the plaintiff has failed to show the COGC in the drip legs is a solid
waste, meaning a discarded material which is abandoned by being disposed of or
accumulated.
b. Exception for Materials That Are Not a Solid Waste When Recycled
As the Court has determined that the plaintiff failed to show that COGC is a solid waste
under 40 C.F.R. § 261.2(a-b), the Court need not address exemptions which are contained
in 40 C.F.R. § 261.2(e). However, even if the plaintiff had shown that COGC is a solid
waste, the recycling exemptions of 40 C.F.R. § 261.2(e) would apply to COGC.
24

A material may be a solid waste if it is recycled in certain ways. The regulations at 40
C.F.R.

Part

251

separate

secondary

materials

that

are

recycled

into

two

categories—materials classified as solid waste, and thus subject to regulation under RCRA,
and those not considered solid wastes when they are recycled, and thus not regulated.
Materials recycled by certain methods are not solid waste where they are:
(i) Used or reused as ingredients in an industrial process to make a product,
provided the materials are not being reclaimed; or
(ii) Used or reused as effective substitutes for commercial products; or
(iii) Returned to the original process from which they are generated, without
first being reclaimed or land disposed. The material must be returned as a
substitute for feedstock materials. In cases where the original process to
which the material is returned is a secondary process, the materials must be
managed such that there is no placement on the land. In cases where the
materials are generated and reclaimed within the primary mineral processing
industry, the conditions of the exclusion found at § 261.4(a)(17) apply rather
than this paragraph.
The defendant’s Response states that the United States’ claim fails without the need
to undertake an analysis of the recycling exemptions because the exemptions only to
materials that are solid waste under 40 C.F.R. § 261.2(c), and COGC is not a solid waste.
The defendant additionally claims that even if COGC were a solid waste, its reintroduction
into the flushing liquor circuit is an exempt form of recycling and satisfies all three criteria
for the Subtitle C general exclusion. The Court finds that COGC’s reintroduction into the
flushing liquor circuit is an exempt form of recycling under the first criteria for Subtitle C
general exclusion.

i.

Used or reused as ingredients in an industrial process to make a product

25

The United States asserts that MSC cannot meet the first criteria because the amounts
of any products derived from the addition of pipeline COGC to flushing liquor are “at best
trivial.” [Doc. 126 at 21]. The United States cites to 50 Fed. Reg. at 638, which states that
“where a secondary material is ineffective or only marginally effective for the claimed use,
the activity is not recycling but surrogate disposal.” 50 Fed. Reg. at 638.
The defendant contests the United States’ assertion. MSC claims that a portion of the
recycling of COGC goes to cooling and conditioning as part of the flushing liquor circuit,
and the rest is reclaimed in order to extract ammonia, coal tar, benzene, and other light oils
before it leaves the processing plant [Doc. 141 at 15]. The defendant claims that MSC
recovers between 20,000 and 50,000 pounds of products from recycling COGC which it
then sells for profit [Id.].
Both parties cite to 50 Fed. Reg. At 638, which states that where a secondary materially
Is “only marginally effective for the claimed use, the activity is not recycling but surrogate
disposal. An example . . . [is the] use of certain heavy metal sludges in concrete. The
sludges did not contribute any significant element to the concrete’s property.” The United
States maintains that the because the amount of COGC compared to excess flushing liquor
is minuscule, it is not sufficient for demonstrating legitimate recycling. The defendant,
however, cites to the example of heavy metal sludges as criterion intended to prevent
manufacturers from developing processes that incorporate hazardous constituents into the
final product when they are not needed [Doc. 141 at 14].
The Court agrees with the defendant that the recycling of COGC is used in the flushing
liquor circuit for cooling and conditioning, and the remainder is reclaimed in order to extract
ammonia, coal tar, benzene and other light oils before leaving the processing plant.
26

Accordingly, if COGC were a solid waste, it would be exempt from regulation as used or
reused as ingredients in an industrial process to make a product.
ii. Used or reused as effective substitutes for commercial products
The United States refutes MSC’s assertion that COGC functions as an “effective
substitute” for flushing liquor and hence fulfills the criterion of 40 C.F.R. § 261.2(e)(ii).
According to the United States, there is more than enough flushing liquor to cool the coke
oven gas without the addition of COGC. It states that because a large amount of flushing
liquor is sent each day to the ammonia still and wastewater treatment plant as “excess”,
that it is unnecessary to use COGC collected from drip legs. The United States claims that
the COGC furnished no more than 0.04% of the flushing liquor used for coke oven gas
quenching at any given time.
The defendant contends that COGC is an effective substitute for flushing liquor because
it is virtually identical to flushing liquor. The defendant states that all flushing liquor was at
some point COGC and, as such, is an effective replacement for flushing liquor.
The Court agrees with the United States that COGC is not used as an effective
substitute for a commercial product. However, because the Court already found that
COGC is used as an ingredient in an industrial process to make a product, and because
MSC need meet only one of the three criteria to show that materials are not a solid waste
when they are recycled, COGC is exempt from regulation.

iii. Returned to the original process from which they are generated

27

The United States also claims that MSC cannot meet the third criteria, that the materials
are returned to the original process from which they are generated, without first being
reclaimed or land disposed, because the COGC is delivered to the coke plant byproducts
plant. As such it is not returned to the original process from which it is generated.
The defendant claims that COGC still qualifies for the exemption as Courts have
repeatedly recognized that the exemption applies to materials that are recycled to other
phases of the production process, as long as they are within the same industry [Doc. 141
at 18].
The United States’ reply claims that because COGC is generated within the pipeline,
but is then transported to the conveyance trench, pit sump, or other parts of the byproducts
plant, that does not constitute being returned to the original process from which it is
generated [Doc. 146 at 9–10].
The Court need not make a determination on this issue as it has already determined
that COGC is used as an ingredient in an industrial process to make a product and is
therefore exempt from regulation.
c. Exception for Wastes From Coke By-Products Processes
MSC claims that COGC qualifies for a Subtitle C recycling exclusion which exempts
certain wastes from the metallurgical coke production process. The following materials are
not solid wastes:
[A]ny wastes from the coke by-products process that are hazardous only
because they exhibit the Toxicity Characteristic (TC) specified in section
261.24 . . . when, subsequent to generation, these materials are recycled to
coke ovens, to the tar recovery process as a feedstock to produce coal tar,
or mixed with coal tar prior to the tar’s sale or refining.

28

40 C.F.R. § 261.4(10).
The United States contends that because COGC exhibits the toxicity characteristics for
benzene, it is eligible for the recycling exclusion if it satisfies one of the three recycling
criteria listed in the exclusion.

The only recycling criteria that might be applicable,

according to the United States, is the recycling to the tar recovery process as feedstock to
produce coal tar. The United States claims that because COGC is 99.4% water, it cannot
function as a “feedstock” for coal tar production under the second exclusion because it is
not tarry in composition, and therefore cannot enhance tar production.
MSC’s response contests the United States’ assertion that COGC cannot be a
“feedstock” for coal tar production because it is 99.4% water. The defendant claims that
it has produced evidence showing that coal tar is extracted from COGC and sold for profit
[Doc. 141 at 19]. As a result, MSC contends that it is exempt from RCRA on this ground.
The United States’ reply claims that MSC has failed to explain what contribution, if any,
COGC has made to MSC’s coal tar production figures.
The Court finds that neither party is entitled to summary judgment regarding whether
COGC is exempt under the exemption for wastes from coke by-products plant processes
as a feedstock for coal tar production.
3. Defendant’s Documentation of its Claims that COGC is not a Solid Waste
or Qualifies for a Recycling Exemption
The United States moves for summary judgment based on its contention that MSC
failed to provide appropriate documentation to support its recycling exception claim. It
claims that MSC’s failure to provide appropriate documentation to support its recycling
claim shows as a matter of law that MSC failed to satisfy its burden under 40 C.F.R.
29

§ 261.2(f) to support a recycling exception claim. The United States claims that under 40
C.F.R. § 261.2(f), respondents in actions to enforce regulations implementing Subtitle C
of RCRA who raise a claim that a certain material is not a solid waste or is conditionally
exempt from regulation must provide appropriate documentation to demonstrate that the
material is not a waste or is exempt from regulation [Doc. 126 at 31]. The United States
claims that MSC’s COGC records demonstrate only that COGC is returned to the
byproducts plant, not that the recycling is beneficial to MSC’s process. As such, the United
States contends that MSC is engaging in sham recycling of COGC.
MSC’s response claims that it has provided the amount of COGC recycled and
quantities of byproducts sold, including ammonia, naphtalene, coal tar, benzene, and other
light oils [Doc. 141 at 20]. MSC also contends that it has estimated the quantity of valuable
products produced by the recycling of COGC at between 20,000 and 50,000 pounds of
valuable byproducts each year [Id.].
The United States’ reply disputes MSC’s claims regarding the amount of COGC and
quantities of byproducts sold as meaningless to show whether MSC gains any value from
generating the byproducts [Doc. 146 at 3–4]. The United States also claims that MSC
provides no documentation of the source of its estimated 20,000 to 50,000 pounds of
COGC contribution to byproducts production.
As discussed above, the Court agrees with the defendant that is has provided sufficient
evidence to support a recycling exception claim. Accordingly, the United States’ Motion for
Summary Judgment on the ground that MSC has failed to set forth appropriate
documentation of its claims that COGC is not a solid waste or qualifies for a recycling
exemption is DENIED.
30

4. Claim 12
In its Twelfth Claim for Relief, the United States contends that various drip leg tanks,
the Pit Sump, the conveyance trench into the Pit Sump, and the Tar Decanter Sump at
MSC are subject to RCRA Subtitle I, which regulates Underground Storage Tanks (UST)
[Doc. 1 at ¶¶ 146–54].
The defendant’s Motion for Summary Judgment asserts that the claim fails as a matter
of law because each of the units alleged to be subject to RCRA Subtitle I is properly
classified as an exempt wastewater treatment unit [Doc. 128 at 18–20]. According to the
defendant, the pit sump and decanter sump are “field-constructed tanks” which were
deferred from regulation by the EPA. Additionally, the defendant claims that all of the units
qualify as “flow-through process tanks” which are exempt from regulation.
a. Wastewater Treatment Unit
The United States’ Response claims that MSC fails to put forth any facts to support the
wastewater treatment unit exemption claim [Doc. 139 at 20]. Accordingly, the United
States claims that the Twelfth Claim for Relief in the Complaint is valid because MSC’s
underground drip leg storage tanks are regulated underground storage tanks (USTs) as
defined in 40 C.F.R. § 280.12 [Doc. 139 at 20]. Regulated USTs are defined as tanks
“used to contain an accumulation of regulated substances, the volume of which is 10% or
more beneath the surface of the ground.” 40 C.F.R. § 280.20. The United States claims
that the wastewater treatment exemption only applies to UST systems dedicated for use
with an on-site wastewater facility and no evidence exists that the vessels treat or store
wastewater prior to discharge to the wastewater treatment plant [Id. at 21].

31

MSC’s Reply claims that only eight of the drip legs fall within the definition of USTs and,
of those, only three were active as of June 2007 [Doc. 150 at 14].
The Court agrees with the United States that the underground drip legs are not
wastewater treatment units.
b. Field-Constructed Tanks
MSC contends that the pit sump and decanter sump are “field-constructed tanks,”
meaning that they were constructed in the field instead of in a factory [Doc. 128 at 18–19].
MSC’s Reply attaches as evidence drawings for the tar decanter sump and the pit sump
[Doc. 150, Exhibit G].
The United States claims that MSC has failed to meet its initial burden on summary
judgment of showing there is not genuine issue of fact on the issue [Doc. 139 at 21–22].
The United States claims that MSC does not provide a single citation to the record as to
the construction of the vessels, and line drawings of the pit sump produced by the
defendant indicate that it was built with a manufactured tank.
The two drawings provided by MSC are insufficient to prove that there is no genuine
issue of fact on whether the pit sump and tar decanter sump are field constructed tanks.
Accordingly, defendant’s motion for summary judgment on plaintiff’s twelfth claim for relief
on the ground that the pit sump and decanter sump are not subject to the Subtitle I
technical standards under the field-constructed tanks exception is DENIED.

c. Flow-Through Process Tanks

32

MSC next claims that all of the units qualify as “flow-through process tanks” which are
also exempt from regulation.
EPA regulations define a flow-through process tanks as:
A tank that forms an integral part of a production process through which
there is a steady, variable, recurring, or intermittent flow of materials during
the operation of the process. Flow-through process tanks do not include
tanks used for the storage of materials prior to their introduction to the
process or for the storage of finished products or by-products from the
production process.
40 C.F.R. § 280.12.
MSC contends that the units it uses to handle pipeline COGC form an integral part of
the byproducts plant production process as they route condensate to the production
process where it is used for cooling and conditioning and from which valuable materials are
reclaimed [Doc. 128 at 19–20]. The defendant also asserts that the flow of the pipeline
COGC is steady through certain units and recurring or intermittent during the operation of
the byproducts production process [Id]. The defendant contends that even though some
of the COGC is collected and transported from one unit to another, instead of being piped,
material is still being continually routed through the production process and is integral to
that process [Id. at 20].
The United States’ Response claims that underground drip legs are not flow-through
process tanks because they do not form an integral part of the production process as
required under 40 C.F.R. § 280.12 [Doc. 139 at 22]. According to the United States, COGC
forms only a small fraction of the flushing liquor to which it is added and MSC provides no
evidence that the cooling of coke oven gas and the production of byproducts would be
impacted by the absence of pipeline COGC. The United States contends that MSC
33

manages COGC as a low value material having no critical role in the operation of the facility
[Id.].
The Court does not find that there is no genuine issue of material fact as to whether the
units are flow-through process tanks.
Accordingly, defendant’s Motion for Summary Judgment as it pertains to Count 12 is
DENIED.

IV.

Conclusion
For the reasons set forth above, the plaintiff’s Motion for Partial Summary Judgment on

its Clean Air Act Claims [Doc. 116] is GRANTED IN PART AND DENIED IN PART. The
plaintiff’s Motion for Partial Summary Judgement on its RCRA Subtitle C Claim and to
Dismiss Defendant’s Eighth and Ninth Defenses [Doc. 125] is DENIED. The Defendant’s
Motion for Summary Judgment on the United States’ Resource Conservation and Recovery
Act Claims [Doc. 127] is GRANTED IN PART and DENIED IN PART.
It is so ORDERED.
The Clerk is directed to transmit copies of this Order to all counsel of record herein.
DATED: January 14, 2014.

34