# Amicus Curiae Brief — Gulf States Steel, Inc. v. LTV Corp., 113 S. Ct. 661 (1992) (No. 92-732) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_1540%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1992 ## Text "f ue U | NOV 24 1992 ron oe aeeee i ee No. 92-732 IN THE Supreme Court of the Unite? States OCTOBER TERM, 1992 GULF STATES STEEL, INC. OF ALABAMA, Petitioner, ¥. THE LTV CORPORATION, et ai., Respondents. On Writ of Certiorari to the United States Court of Appeals For the District of Columbia Circuit BRIEF AMICUS CURIAE OF THE STATE OF ALABAMA IN SUPPORT OF GULF STATES STEEL, INC. OF ALABAMA’S PETITION FOR A WRIT OF CERTIORARI James H. Evans Attorney General The State of Alabama Marc Givhan Chief, Antitrust Division Office of the Attorney General The State of Alabama 11 South Union Street Montgomery, Alabama 36130 (205) 242-7328 Counsel for Amicus Curiae The State of Alabama * Counsel of Record Balmar Legal Publ: shing Services, Washington, D.C. (202)682-9800 TABLE OF CONTENTS I. INTEREST OF AMICUS CURIAE THE STATE Ce EE. fc. a Wl ne ee ce ew Il. SUMMARY OF ARGUMENT ......... ee eee ee eee A. LTV Had Prior Actual Notice From The State Of Certain Environmental Claims AtIssueIn This Case ...... B. The Escrow Deposit Monies Should Be Restored To The Control Of The District Court To Ensure LTV’s Compliance With The Final DE We eed & kn ae cs os 9s GEE 4's nc Kc Ska wh kee ii TABLE OF AUTHORITIES CASES PAGE California v. American Stores Co., 495 U.S. 271 CFD) wake a ee eee 2 Rufo v. Inmates of Suffolk County Jail, 112 S. Ct. FOR CUPRED on sk OS ee ee passim In re Chateaugay Corp., 944 F. 2d 997 (fd Cie, FRE). ine ee ee 1] Friends of the Earth v. Eastman Kodak Co., 656 F. Supp. 513 (W.D.N.Y.), aff d, 834 F. 2d 295 (fu Oe. IT) ss ee eee ee 13 Sierra Club, Inc. v. Electronic Controls Design, Inc.., 909 F. 2d 1350 (Sth Gar. 1990) ........ 13 United States vy. LTV Corp., 1984-2 Trade Cas. (CCH) § 66,133 (D.D.C.), appeal dismissed, 14 F. 24 31 (OA CART ha es 8 United States v. LTV Corp., No. 84-0884 (D.D.C.), appeal dismissed, (D.C. Cir. Feb. 20,1986) ... 2,3,4,8 United States v. Vertac Chemical Corp., 756 F. Supp. 1215 (E.D. Ark. 1991), aff d, i) 961 F. 2d 790 GU Ge. TF) 6 we 13 STATUTES AND REGULATIONS 13 U kn Bae: e655 ee eee 2 SS USAn EB EASE bt ka @ kee eee 2 SiUSRS BG «sass oe hee 2 SlUBL. § Fee «6 de Ore eee 2 42 USG..4 TA 3 . 0 i RS 2 SEU SK. 3 FG | kc Glee eee 1] Code of Alabama 1975 §22-22A-1 through 16 Le iil Alabama Pollution Control Rule and Regulation I gn cig od eS wee 6 8 Alabama Pollution Control Rule and Regulation 0 ee ee eee oe ee Alabama Pollution Control Rule and Regulation ee ae Alabama Pollution Control Rule and Regulation I ate s+ Slee web ee Alabama Pollution Control Rule and Regulation ee ee ae ee RULES a eek gic ea es 8,9 12, 13, 14 ee No. 92-732 IN THE Supreme Court of the United States OCTOBER TERM, 1992 GULF STATES STEEL, INC. OF ALABAMA, Petitioner, ¥. THE LTV CORPORATION, et al., Respondents. On Writ of Certiorari to the United States Court of Appeals For the District of Columbia Circuit BRIEF AMICUS CURIAE OF THE STATE OF ALABAMA IN SUPPORT OF GULF STATES STEEL, INC. OF ALABAMA’S PETITION FOR A WRIT OF CERTIORARI I. INTEREST OF AMICUS CURIAE THE STATE OF ALABAMA The State of Alabama (“State”), through its Attorney General James H. Evans, hereby respectfully files this brief amicus curiae, pursuant to Rule 36 of this Court and the parens patriae authority of the State,! in support of Petitioner Gulf States Steel, Inc. of Alabama’s (“GSSI’) October 26, 1992 | The Attorney General also specifically is authorized to represent the State in any and all legal actions concerning the Alabama Environmental Management Act, Code of Alabama, 1975 §§ 22-22A-1 through 16 (1990) Id at § 22-22-A-13. 2 Petition for a Writ of Certiorari to reverse the June 12, 1992 decision and August 4, 1992 mandate of the Court of Appeals in LTV Corp. v. Gulf States Steel, Inc., 969 F. 2d 1050 (D.C. Cir. 1992) (Wald, J). This Court has held that the State has standing under Section 16 of the Clayton Act, as amended, 15 U.S.C. § 26 (1988) to seek divestiture to ameliorate the anticompetitive effects of an unlawful merger. See California v. American Stores Co., 495 U.S. 271, 281-84 (1990). This case highlights the importance of the role of the State in enforcing the terms of such a divestiture. The State’s interest here is to enforce orders of the District Court of the District of Columbia (“District Court’’) implement- ing the terms of an antitrust consent decree, under which Respondents (“LTV”) had agreed to retain and assume environ- mental liabilities ata Gadsden, Alabama steel mill that LTV was required to divest, in exchange for the government’s approval of LTV’s acquisition of Republic Steel Corporation. See United States v. LTV Corp., 1984-2 Trade Cas. (CCH) § 66,133 (D.D.C.), appeal dismissed, 746 F.2d 51 (D.C. Cir. 1984) (“August 2, 1984 Final Judgment’); United States v. LTV Corp., No. 84-0884 (D.D.C.), appeal dismissed, (D.C. Cir. Feb. 20, The Alabama Department of Environmental Management (“ADEM”) has been delegated and designated as the authorized state agency responsible for enforcement of: (1) the Federal Clean Air Act, 42 U.S.C. § 7401 et seq., as amended; (2) the Federal Clean Water Act, 33 U.S.C. § 1251 et seq., as amended; and (3) the Solid Waste Disposal Act, 42 U.S.C. § 3251 et seq., as amended, and including 42 U.S.C. § 609 et. seg. See Code of Alabama 1975 § 22-22-A-4(n) (1990). Moreover, ADEM has been authorized io take all actions necessary and appropriate to secure to the State the benefits of these environmental laws. See Code of Alabama, 1975 §§ 22-22A-1 through 16 (1990). siacncciaiiiaaaaaaicei ieee alii ei 3 1986) (“December 17, 1985 Divestiture Order’). See Pet. GSSI App. I, at 642; Pet. GSSI App. K, at 113a.? The Court of Appeals erroneously held that LTV did not have actual notice of the environmental claims at issue in this case and therefore GSSI was precluded, as a matter of law, from recouping expenses made for corrections to achieve and main- tain environmental compliance at the Gadsden plant that arose out of the conduct of Business prior to the January 31,1986 divestiture, see Pet GSSI App. A, at 22a-24a, even though $19,590,000 of this amount was made under compulsion by and subject to consent decrees with the State or ADEM. See State App. V, at 76a through State App. CC, at 117a. The State’s role in this case requires a brief discussion. From the beginning, the State has sought to ensure that LTV would assume environmental liabilities at the Gadsden plant, which the District Court and its trustee found was a necessary prerequisite to induce a new entrant to undertake the risk of purchasing the Gadsden plant and placing it in a position so that it could interject competition into the domestic steel industry. On April 1, 1991, the State filed a motion to intervene, or in the alternative to file as an amicus curiae before Judge Stanton of the District Court for the Southern District of New York to support the withdrawal of LTV’s adversary proceeding against GSSI for collection of a $31 million balance remaining on a promissory note from the Southern District of New York (“Bankruptcy Court”) and transfer of venue to the District Court. See LTV Corp. v. Gulf States Steel, Inc., No. 91-1826 (S.D.N.Y.). On April 1, 1991, the State independently filed a motion in the District Court to intervene in United States v. LTV Corp., No. 84-0884 (D.C.C.), to enforce its rights under the August 2, 2 In the interest of avoidiny the submission of duplicative materials, the State has referenced herein certain documents found in GSSI’s Appendix, which hereinafter will be designated as “Pet. GSSI App. __. at om a 4 1984 Final Judgment. Asa result, on April 9, 1991, LTV filed a motion for contempt against the State in the Bankruptcy Court because the Attorney General declined to withdraw that motion, which LTV contended was a violation of the automati¢ stay. On April 10, 1991, the Bankruptcy Court held a hearing in which the State also declined to participate to avoid the appearance of submitting to that court’s jurisdiction. At that hearing, LTV was advised by the Bankruptcy Court to withdraw its motion for contempt. LTV did so. On May 3, 1991, the District Court for the Southern District of New York withdrew the reference of the adversary proceeding and venue was transferred to the District Court. The State was informed shortly thereafter by representatives of the United States that it would oppose the State’s motion to inter- vene in United States v. LTV Corp., No. 84-0884 (D.D.C.), but would not oppose its participation as an amicus curiae or its participation in the instant adversary proceeding. See Pet. GSSI App. Y, at 203a. Rather than engage in an ancillary jurisdic- tional dispute, on May 23, 1991, the State moved to intervene in this case, or in the alternative, to file as an amicus curiae. On June 5, 1991, the District Court denied the State’s motion to intervene. The District Court indicated, however, that the State’s description of the environmental laws and regulations relevant to this case and LT V’s compliance therewith prior to the dives- titure would be of assistance. Therefore, on August 24, 1991, the State filed an amicus brief, as requested, and submitted affidavits prepared on July 31, 1991 by ADEM’s chief enforce- ment officials. See Pet. GSSI App. W, at 198a; Pet GSSI App. X, at 199a. On August 26, 1991, the District Court granted the State’s motion to file as an amicus curiae. Atan evidentiary hearing *-'d on August 27-28, 1991, ADEM enforcement records and LTV 1. nal records concerning meet- ings with ADEM enforcement c“ficials were admitted into 5 evidence. See, e.g., State App. E, at 24a through State App. U, at 75a.3 In addition, ADEM officials were called by GSSI to testify on rebuttal, but the District Court informed them that their testimony was not necessary and they did not take the stand. After the hearing, the July 31, 1991 ADEM affidavits were admitted into evidence. In the Court of Appeals, the State also filed a similar amicus brief attaching the July 31, 1991 ADEM affidavits and a chronology of environmental compliance at the Gadsden plant, referencing numerous ADEM enforcement records admitted in the District Court. These documents demonstrate that LTV had actual notice from the State of the “amount and circumstance” of environmental claims at the Gadsden plant as of the time of the divestiture — which were virtually identical to those sought by GSSI in this case, as to water treatment, Coke Plant, and Basic Oxygen Furnace (“BOF”) facilities at the Gadsden plant. The Court of Appeals’ June 12, 1992 decision, however, is devoid of any evidence that it considered the State’s participa- tion therein or below— or even that it deemed the knowledge of the state environmental officials relevant. Indeed, the Court of Appeals went so far as to preclude ADEM enforcement officials from testifying on remand as to what and when LTV knew about GSSI’s environmental claims, by its denial of GSSI’s Petition for Rehearing and Suggestion for Rehearing En Banc, even though it opined that “[o]f course, knowledge of the environmental problems at the plant is not the same as knowing about the specific steps taken by the ADEM and the EPA to require remedial action.” See Pet. GSSI A, at 22a. References to the State’s Appendix, hereinafter will be designated as “State App. ___, at___a.” Among the ADEM documents and LTV docu- ments admitted by the District Court to evidence LTV’s actual notice of the environmental claims at issue, are those attached hereto in State App. A, at la; State App. E, at 24a through State App. U, at 74a. 6 Had the Court of Appeals followed the procedural and substantive analysis in Rufo v. Inmates of Suffolk County Jail, 112 S. Ct. 748, 765 (1992), it would have upheld the District Court’s December 5, 1991 finding and conclusion that “LTV had timely notice, written and otherwise of GSSI’s indemnifica- tion claims,” see Pet. GSSI App. B, at 39a, 95, because LTV would have been required to demonstrate either that it assumed environmental liabilities at the Gadsden plant pnor to divestiture or that such assumption was no longer warranted. In either case, LTV would have had to demonstrate that it had notice of the “amount and circumstance” of GSSI’s environmental claims at issue in this case. Il. SUMMARY OF ARGUMENT The contract at issue in this case concerns LTV’s obliga- tions to the District Court, as contained in the August 2, 1984 Final Judgment — an antitrust consent decree to which the State was and is an intended and direct beneficiary. Compare Rufo 112 S. Ct. at 757 (“A consent decree no doubt embodies an agreement of the parties and thus in some respects is contractual in nature. But it is an agreement that the parties desire and expect will be reflected in and be enforceable as a judicial decree ....) (emphasis added) with LTV Opposition Brief at 1. Since the Court of Appeals’ responsibility was to review a Judicial decree, its selective “de novo” review was improper and defective ab initio. Neither the January 31, 1986 Asset Purchase Agreement nor promissory note can be reviewed independent of the August 2, 1984 Final Judgment and the District Court’s orders implementing the consent decree’s terms. Therefore, LTV’s argument that this dispute concerns solely the terms of the 1986 Asset Purchase Agreement between LTV and GSSI is incorrect and misleading. The District Court's December 17, 1985 Divestiture Order required LTV to divest the Gadsden plant, on terms that specifically incorporated by reference the August 2, 1984 Final Judgment, which provided that LTV 7 could be required by the District Court’s trustee to retain and assume all liabilities at the Gadsden plant as of the divestiture, if LTV itself did not divest the plant within six months after entry of the consent decree as a final judgment. Thus, this dispute concerns the very “essence of [the] agreement,” as it is described in the words of the preamble to the August 2, 1984 Final Judgment. See Pet. GSSI App. I, at 93a. Accord Rufo 112 S. Ct. at 759 (“None of the changed circumstances warranted modification because it would violate one of the primary pur- poses of the decree. . . .”). The Court of Appeals’ erroneous adoption of LTV’s con- tract analysis also failed to recognize that, as a matter of law, no private party — not even GSSI — could obviate the terms of the August 2, 1984 Final Judgment, without the specific agreement of the United States or the District Court, which is found nowhere in this record. See, e.g., Pet. GSSI App. E , at 58a, §/2; Pet. GSSI App. Y, at 202a. Nor did the District Court’s Decem- ber 17, 1985 Divestiture Order permit GSSI and LTV to do so by amending the Asset Purchase Agreement, as LTV would have this Court believe. Jd. The enforcernent and public policy rationale for this is not difficult to understand — since horizontal competitors, such as LTV and GSSI, certainly could find a way to reach an accommodation that would suit their business needs, but work to deny the public the environmental and competitive benefits of the divestiture. /d. At the time of the divestiture, LTV had actual notice from the State of certain environmental liabilities it was required to retain and assume, as well as their “amount and circumstance[s].” Other than compliance for the benzene NESHAP, those were virtually identical to the environmental claims made by GSSI below. 8 il. ARGUMENT A. LTV HAD PRIOR ACTUAL NOTICE FROM THE STATE OF CERTAIN ENVIRONMENTAL CLAIMS AT ISSUE IN THIS CASE. The Court of Appeals’ failure to consider the relevance of the record of the divestiture proceedings in United States v. LTV Corp., No. 84-0884 (D.D.C.), appeal dismissed, (D.C. Cir. Feb. 20, 1986), and the enforcement records and affidavits from ADEM enforcement officials, admitted into evidence by the District Court, led to its erroneous ruling that LTV was prejudiced by GSSI’s actions. There is no question that LTV had actual notice from the State that its failure to achieve and maintain compliance with the National Pollutant Discharge Elimination System (“NPDES”) permit requirements in 1984 violated both state and federal law. See Pet. GSSI App. T, at 172a-183a. See also Pet. GSSI App. W, at 198a. Therefore, LTV had actual notice that NPDES compliance was an environ- mental liability that it was required to retain and assume under the August 2, 1984 Final Judgment. See Pet. GSSI App. T, at 175a-183a. Indeed, the $5,350,000 amount GSSI claimed for NPDES compliance was for the same violations as those faced by LTV and the amounts spent by GSSI were well within the “5.2 million (1982 Dollars)” to “$20 million (1982 dollars)” range that LTV expected would be required in 1986. See GSSI App. T, at 182a-183a.; Pet. GSSI App. R, at 146a (10 million-13 million for Water Treatment for Coke Plant and Galvanizing Line). See also Pet. GSSI App. S, at 164a, § 21. In addition, LTV had actual notice from the State of LTV’s failure, prior to January 31, 1986, to achieve and maintain compliance with the following Alabama Pollution Control Rules and Regulations at the Gadsden Coke Plant: Section 4.9.4(a) (Coke Oven Doors-Pushing); Section 4.9.6(a) (Coke Oven Doors); Section 4.9.8 (Coke Oven Stacks); and at the . 0 eo 9 BOF: Section 4.1.1 (BOF Roof Monitor); Section 4.9.8 (BOF Combustion Stack); Section 4.17.1 (BOF Shop Roof Monitor) See State App. E, at 24a through State App. U, at 74a. There- fore, LTV had actual notice that compliance with regulations governing the Coke Plant and BOF were environmental liabilities at the Gadsden plant that LTV was required to retain and assume under the August 2, 1984 Final Judgment. See Pet. GSSI App. R, at 146a ($6 million for B.O.F. Precipitator Repairs and No. 3 [Coke] Battery Rehabilitation); Pet. GSSI App. T, at 170a- 172a, 175a-176a; and Pet. GSSI App. X, at 199a-200a: State App. E, at 24a through State App. U, at 75a. See also Pet.GSSI App. S, at 164a, § 21. Moreover, GSSI’s environmental claims were for compliance with the same regulations and in amounts known or foreseen by LTV prior to January 31, 1986. Id. See also State App. V, at 76a through State App. CC, at 117a. Therefore, LTV had actual notice of the “amount and cir- cumstance[s]” of these environmental claims made by GSSI. The Court of Appeals also failed to recognize that LTV could have made the expenditures necessary to bring the Gadsden plant into environmental compliance prior to closin g and was given that oppor- tunity by the State on many occasions. See State App. E, at 24a through State App. U, at 75a. Indeed, the record clearly reflects that in September 1985, LTV had notice that the “amount and circumstance[s]” of potential environmental claims at the Gadsden plant would be, at least: (1) Water Treatment $7,000,000-10,000.000 for Coke Plant (2) B.O.F. Precipitator Repairs 3,000,000 (3) Hot Strip/Cold Strip Water Treatment [Galvanizin g Line} 3,000,000 (4) No. 3 Battery Rehabilitation 3,000,000 (5S) Additional Solid Waste Disposal Area 2,000,000 Total $18,000,000-2 1,000,000 10 See Pet. GSSI App. R, at 146a. See also Pet. GSSI App. T, at 170a-183a. All environmental claims sought by GSSI and awarded by the District Court’s December 2, 1991 Order, other than $9,000,000 for benzene control, were for environmental corrections made by GSSI under compulsion by and subject to consent decrees with the State or ADEM, and in amounts in accord with or of which LTV had prior actual knowledge. See State App. V, at 76a through State App. CC, at 117a. Compare Pet. GSSI App. R, at 145a- 146a; Pet. GSSI App. T, at 170a-183a; and Pet. GSSI App. S, at 165a (“In the first two years after the sale to Brenlin, the cash financial impact on LTV will be $99.2 million. The total cash financial impact of the Brenlin proposal on LTV over the years is $263.5 million. Additional cash penalties would be incurred that cannot be calculated. These penalties, would result from... (f) costs of post-closing funding for... Environmental compliance.”’) with Pet. GSSI App. Z, at 204a: (1) Coke Water Treatment Plant $3,350,000 (2) BOF Corrections 5,500,000 (3) Galvanizing Line Water Treatment Plant 2,000,000 (4) Coke Plant (No. 2 and No. 3 Battery) 8,740,000 Total $19,590,000 See also State App. V, at 189a; State App. W, at 198a. LTV decided that it was advantageous to its financial interests to defer and let GSSI make the necessary expenditures for environmental compliance. Thus, LTV was not “deprived of the opportunity to participate in the defense and settlement of the underlying claims,” for which it was held responsible, contrary to the conclusion of the Court of Appeals. Compare Pet. GSSI App. A, at 24a with Pet. GSSI App. W, at 198a, § 3B; 1] Pet. GSSI App. X, at 200a § 3E. Compare also State App. E, at 24a through State App. U, at 75a with State App. V, at 76a through State App. CC, at 117a. LTV was the beneficiary of the delay. Compare Pet. GSSI App. A, at 23a with Rufo, 112 S. Ct. at 758 (consent decrees may not be modified unless there are “changes in circumstances that were beyond the defendants’ control and were not contemplated by the court or the parties when the decree was entered.”). See Pet. GSSI App. S, at 164a, q 21. It should also be noted that these were not environmental liabilities GSSI voluntarily assumed. Indeed, GSSI had to be compelled by the State to achieve environmental compliance at the Gadsden plant. See State App. V, at 76a through State App. CC, at 117a. GSSI was then left to pursue LTV to recover the expenses made.* The State could have brought an enforcement action against LTV prior to the divestiture to compel environ- mental compliance, but this would Clearly have delayed the divestiture, and “threatened the continued operation (or sale) of the plant.” See State App. S, at 68a: Pet. GSSI App. B, at 36a-37a. Instead, the State allowed the divestiture to proceed and decided to seek enforcement only if LTV did not live up to its obligations. LTV has not done so and for that reason the State initiated its April 1, 1991 enforcement action in the District Court and now files as an amicus curiae in support of GSSI’s October 26, 1991 Petition for a Writ of Certiorari regarding the District Court’s award of $19,590,000 from the escrow funds. + This is analogous to how response costs are incurred and paid by a “potentially responsible party,” under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. § 9607 (1988). See e.g.. In re Chateaugay Corp., 944 F2d 997,999-1000 (2d Cir. 1991).The State takes no position, however. regarding the $9,000,000 amount claimed by GSSI for benzene control since those monies were expended to comply with enforcement letters fromn EPA’s Regional Office, rather than ADEM. > ADEM enforcement records admitted into evidence below and the July 31, 1991 ADEM affidavits Support the District Court’s award of aati, 12 B. THE ESCROW DEPOSIT MONIES SHOULD BE RESTORED TO THE CONTROL OF THE DISTRICT COURT TO ENSURE LTV’S COMPLIANCE WITH THE FINAL JUDGMENT. There is no question that the Court of Appeals’ June 12, 1992 decision and August 4, 1992 mandate, modified the August 2, 1984 Final Judgment de facto by releasing to LTV the $31 million GSSI deposited into an escrow and made subject to the control of the District Court. See Pet. App. G, at 62a. Surely the Court of Appeals realized that these funds represented the most immediate, and perhaps only, means by which LTV can be compelled to assume its environmental liabilities at the Gadsden plant, given LTV’s bankruptcy. See Pet. GSSI App. A, at 27a. If the Court of Appeals had adhered to Fed. R. Civ. P. 60(b) the issue of whether there was a significant change in fact or law to warrant such a release would have been before the Court. See Rufo, 112 S. Ct. at 758. LTV, however, could not have met that burden. LTV could not have cloaked itself in the protection of the bankruptcy laws, as LTV agreed to exemptto its pre-existing obligations to the State to retain and assume pre-divestiture environmental liabilities at the Gadsden plant from modification based on hardship. See GSSI App. I, at 93a. Moreover, since the District Court’s December 5, 1991 Order determined only that LTV was required to retain and assume certain environmental Jiabilities at the Gadsden plant which GSSI sought to recoup from the escrow deposit, the District Court did not reach, nor was it asked to determine, whether there were other environmental liabilities that LTV was required to retain and assume at the Gadsden plant, that were not sought by GSSI in this $19,590,000 to GSSI for water treatment and corrections to the Coke plant and BOF facilities at the Gadsden plant. See e.g., State App. E, at24a through State App. U, at 74a; Pet. GSSI App. W, at 198a; Pet. GSSI App. X, at 199a. 13 proceeding — such as solid waste disposal, as admitted by LTV in 1985, compare Pet. GSSI App. R, at 146a and State App. A, at 1a with State App. B, at 3a; other water treatment facilities and BOF corrections, which the State compelled GSSI to correct after the August 26, 1991 hearing, see State App. C, at 8a; State App. D, at 15a or other State enforcement actions that may be required prior to August 2, 1994, when the August 2, 1984 Final Judgment expires, such as potential underground environmental claims which may in fact be LTV’s responsibility. By prematurely releasing the escrow deposit funds, the Court of Appeals modified the August 2, 1984 Final Judgment de facto by allowing LTV to evade these habilities, and leaving them to be bome either by GSSI or the taxpayers. Thus, this Court should grant GSSI’s Petition for a Writ of Certiorari to review whether the Court of Appeals’ release of the escrow funds to LTV, prior to a determination bein g made that LTV has assumed all environmental liabilities required under the August 2, 1984 Final Judgment, modified the Final Judgment de facto without compiiance with the procedural and substantive require- ments of Fed. R. Civ. P. 60(b) and this Court’s Rufo decision. This Court should issue a writ of certiorari to restore the escrow deposit monies to the control of the District Court pending this Court’s review of this case and until a/l of LTV’s environmental habilities under the August 2, 1984 Final Judgment are determined.6 Environmental trust funds have been authorized to permit district courts to enforce obligations assumed under consent decrees. See generally, Sierra Club, Inc. v. Electronic Controls Design, Inc., 909 F.2d 1350, 1355 (9th Cir. 1990); Friends of the Earth v. Eastman Kodak Co., 656 F. Supp. 513 (W.D.N.Y.), aff d., 834 F.2d 295 (2d Cir. 1987); and United States v. Vertac Chemical Corp., 756 F. Supp. 1215 (E.D. Ark. 1991), aff d, 961 F.2d 796 (8th Cir. 1992). Since the escrow deposit continues to accumulate market interest, LTV’s financial interests are protected until a final determination is made. 14 IV. CONCLUSION Nothing less than the integrity of the antitrust consent decree process is at stake in this case. The citizens of Alabama look to this Court to ensure that LTV is made to assume environmental liabilities at the Gadsden plant, as required by the August 2, 1984 Final Judgment and the District Court’s im- plementing orders and to make clear that the requirements of this Court’s Rufo decision with regard to Fed. R. Civ. P. 60 (b) also applies to civil antitrust consent decrees, particularly since many of these governmental decrees are subject to review by the Court of Appeals for the District of Columbia Circuit. For the reasons set forth above, this Court should grant GSSI’s October 26, 1991 Petition for a Writ of Certiorari to review and reverse the June 12, 1992 decision and August 4, 1992 mandate of that court. Respectfully submitted, James H. Evans Attorney General The State of Alabama Marc Givhan™ Chief, Antitrust Division Office of the Attorney General The State of Alabama 11 South Union Street Montgomery, Alabama 36130 (205) 242-7328 Counsel for Amicus Curiae The State of Alabama “Counsel of Record ia Table of Contents ig op ate cae ee PI rik pee cs we Ae ee EE ane, Sei oprah 4. RS hia 5c aig’ Ge Oe ee Ee oeccorey gh ree ee Dear eee i Sie) ae ER aarti aie eae oe re SEEGERS RS ae Reet ei a oc Se LT Sb os eae a rege UE, peat. et on gee I so Sean Uo ee Serres aon, IE 4. ea? ee hl eee NS 0-54 ure ey ec CE EN 6.0 poh ks 1 gee ES Oe oa oy Uk Un ee ~~ re ee eS enn 8 cn esa oe I sg 0S) et fe en le ee Ss 56's iv a wn VOL Re eet 565 a5 Seay Sloe buy ye MO 5 vs ee ay ore a, ee oc wh vcs woe o Set et aetna an APPENDIXBB ..................__. II 5 io hs wy 20% Flue Stack on 21 minutes #2 Coke Battery Flue Stack on 19.5 mirputes #3 Coke Battery 6la 3. On August 28-29, 1984, the Gadsden facility was observed to be in violation of Section 4.9.8 (Combustion Stacks) Chapter 4 - Control of Particulate Emissions, of the Departmient’s Air Division Regulations in that visible emissions greater than twenty percent (20%) for periods aggregating more than three (3) minutes in any consecutive sixty (60) minutes were observed. Visible Emission Source Readings >20% Flue Stack on lst Hour - 55 minutes #2 Coke Battery 2nd Hour - 41.5 minutes 3rd Hour - 15 minutes Flue Stack on Ist Hour - 13 minutes #3 Coke Battery 2nd Hour - 4.75 minutes 4. On October 2, 1984, the Gadsden facility was ob- served to be in violation of Section 4.9.8 (Combustion Stacks) Chapter 4 - Control of Particulate Emissions, of the Department’s Air Division Regulations in that visible emissions greater than twenty percent (20%) for periods aggregating more than three (3) minutes in any consecutive sixty (60) minutes were observed. Visible Emission Flue Stack on Ist Hour - 23.5 minutes #3 Coke Battery 2nd Hour - 0 minutes 3rd Hour - 14.25 minutes 5. On December 5, 1984, the Gadsden facility was again observed to be in violation of Secticn 4.9.8 (Combustion Stacks) Chapter 4 - Control of Particulate Emissions. of the Department’s Air Division Regulations in that visible emissions greater than twenty percent (20%) for periods aggregating more than three (3) minutes in any consecutive sixty (60) minutes were observed. 62a Visible Emission Source Readings >2 Flue Stack on 7 minutes #2 Coke Battery 6. On January 16, 1985, the Gadsden facility was ob- served to be in violation of Section 4.9.8 (Combustion Stacks) Chapter 4 - Control of Particulate Emissions, of the Department’s Air Division Regulations in that visible emissions greater than twenty percent (20%) for periods aggregating more than three (3) minutes in any consecutive sixty (60) minutes were observed. Visible Emission Source Readings >20% Flue Stack on 59.5 minutes #2 Coke Battery 7. On February 7, 1985, the Gadsden facility was ob- served to be in violation of Section 4.9.8 (Combustion Stacks) Chapter 4 - Control of Particulate Emissions, of the Department’s Air Division Regulations in that visible emissions greater than twenty percent (20%) for periods aggregating more than three (3) minutes in any consecutive sixty (60) minutes were observed. Visible Emission Source —Readings >20% Flue Stack on 20.75 minutes #2 Coke Battery Flue Stack on 13.75 minutes #3 Coke Battery 8. On February 22, 1985, the Gadsden facility was ob- served to be in violation of Section 4.9.8 (Combustion Stacks) Chapter 4 - Control of Particulate Emissions, of the Department’s Air Division Regulations in that visible emissions 63a greater than twenty percent (20%) for periods aggregating more than three (3) minutes in any consecutive sixty (60) minutes were obeserved. Visible Emission Source Readings >20% Flue Stack on 18.25 minutes #3 Coke Battery 9. On March 14, 1985, the Gadsden facility was again observed to be in violation of Section 4.9.8 (Combustion Stacks) Chapter 4 - Control of Particulate Emissions, of the Department’s Air Division Regulations in that visible emissions greater than twenty percent (20%) for periods ag gregating more than three (3) minutes in any consecutive sixty (60) minutes were observed. Visible Emission Source Readings >20% Flue Stack on 9.75 minutes #2 Coke Battery Flue Stack on 4.24 minutes #3 Coke Battery 10. The lack of continual maintenance of Coke Batteries #2 and #3 has contributed to the violations cited in items 2 through 9, above. 64a ORDER Based upon the foregoing FINDINGS OF FACT and pur- suant to Code of Alabama §22-22A-5(10) and §22-28-10(2), it is hereby ORDERED: A. Prior to a change in ownership or use of any source covered by this Order, Gulf States shall notify each transferee, in writing, of the existence of this Order and of its binding effect upon Gulf States. A copy of such notification shall be provided to the Department showing that a copy of this Order was provided to each transferee by Gulf States. Gulf States shall be liable for all requirements of this Order as to such source during any period of ownership or use by Gulf States. B. 1. Compliance with Section 4.9.8 of the Department's Air Division Regulations shall be achieved for #2 Coke Battery by November 30, 1985. 2. Compliance with Section 4.9.8 of the Department’s Air Division Regulations shall be achieved for #3 Coke Battery by October 31, 1985. 3. Compliance with Section 4.9.8 of the Department's Air Division Regulations shall be determined by 40 C.F.R. 60, Appendix A, Method 9 and the following procedures: (a) Visible emission observers shall be certified in ac- cordance with the procedures specified at 40 C.F.R. Part 60, Appendix A, Method 9. (b) The provisions of Method 9, Section 2.5, shall not be used to determine compliance with the visible emission perfor- mance standards. 65a (c) In determining compliance, the emission standard shall not be construed to require three consecutive minutes of readings greater than twenty percent (20%) opacity. (d) Each momentary observation that is recorded at 15- second intervals shall be used to determine compliance with the standard. Each observation that is greater than twenty percent (20%) opacity shall be counted in determining the hourly ag- gregated period. (e) In making observations of stack emissions, the reader shall be positioned in accordance with the provisions of Section 2.1 of Method 9. (f) Visible emission observations for the determination of compliance shall be conducted during the hours that the Coke Battery is being charged and/or pushed. C. By November 1, 1985, Gulf States shall post Surety Bonds in the total amount of $200,000 to insure compliance with the above provisions. Said Surety Bonds are Surety Bond “A” and Surety Bond “B”, which are attached hereto and hereby made a part of this Order. The failure of Gulf States to comply with any of the provisions of this Order shall constitute cause for the forfeiture of part or all of the Surety Bonds, according to their terms. Release of said Surety Bonds shall be made upon demonstration of compliance for the applicable Coke Battery or upon a bonafide and complete sale of the Gadsden facility by Gulf States, according to the procedure described in each Bond. D. The terms and requirements of this Order shall terminate only upon demonstration of compliance for both #2 and #3 Coke Batteries, or upon a complete and bonafide sale of the Gadsden facility, as specified in Surety Bond “A” and Surety Bond “B”, and upon release of said Bonds by the Department. Failure to 66a comply with the provisions of this Order shall constitute cause for the commencement of legal action by the Depariment for the recovery of civil penalties or other appropriate relief. ORDERED and ISSUED this Ist day of October 1985. Joe B. Broadwater, Director Alabama Department of Environmental Management 1751 Federal Drive Montgomery, Alabama 36130 (205) 271-7700 67a APPENDIX S Alabama Department of Environmental Management October 18, 1985 MEMORANDUM TO: David Ludder, General Counsel FROM: Kerry Allen, Associate General Counsel SUBJECT: Proposed Administrative Order to Gulf States Steel Corporation A draft administrative order was sent to Gulf States Steel Corporation on August 20, 1985, and a Show Cause meeting was held on September 4. In attendance were Jim Donohoe, attorney for LTV Steel, Mary Lou Harmon also of LTV, and Stanley Holcolm and Kenneth Means of Gadsden, as well as Richard Grusnick, Sue Robertson, and Ron Gore of the Air Division, and myself. Gulf States’ objections to the draft order were, as follows: A. Findings of Fact - none stated. B. Order portion: l. A great many of the requirements of the order for repairs or replacement of ovens and components have already been met (letter confirming this received October 1). Compliance demonstration should be defined and the procedure for demonstration spelled out in the order (agreed to by Air Division). Gulf States did not intend and should not be required to make a second repair cycle for all ovens now repaired or needing repair (Gulf States offered to inspect and patch ovens as needed after each push). 68a 4. Bonds required by the order are too expensive and present too great a risk for Gulf States’ precarious financial condition. Gulf States also wished to demonstrate compliance earlier than the date required by the draft order. These and other adjustments in language and requirements of the bonds and order were made and sent to all participants on September 6. In a conference call on September 24 involving the same personnel, Gulf States altered their offer to inspect and repair ovens after each use, objected to the compliance test procedures as outlined by the Department, and again objected to the amount of the bonds to be obtained, as well as to the forfeiture schedule. As a result of two conference calls held on September 26, the Department’s compliance test and forfeiture schedule were agreed to. The bond amounts were lowered to $100,000 per battery. Both the bonds and proposed order were again redrafted and mailed on October 1. On October 9, Jim Donohoe called to request a change in the bond language and to say he would know in approximately one week if the bonds could be obtained. To date, no word regarding the bond availability has been received. RECOMM ATION: Over one-half of the month (October) during which Gulf States intended to demonstrate compliance for one of the batteries has now elapsed. A great deal of time and energy has been expended on meetings, correspondence, drafts and redrafts of documents and telephone calls, even prior to involvement of this office. Gulf States appears to be reluctant to commit to any definite program to achieve long-term compliance of this facility be- cause of the always-imminent sale of the plant, low profitability, and what appears to be a general pattern of poor management aimed at short-term results. Short of legal action, which may threaten continued operation (or sale) of the plant, the 69a Department’s options range from tolerating the violations to EPA involvement, which becomes more likely with time. With regard to the administrative order, I would recommend its [...] in its present form should Gulf States agree to voluntarily post bonds in the required amount, but would remind the Depart- ment that the lack of statutory authority to require bonds makes the order, or later forfeiture demands, subject to this defense. In the event that the bonds cannot be obtained, or where no definite determination is made in the next few days, I would still recommend issuance of the order, omitting the bond require- ment, redefining the compliance test procedure to coincide with the present regulations, and prescribing a stringent but reasonable repair schedule and recordkeeping requirements, as determined by the Air Division to more likely result in continued compliance, to remain in effect until appropriate controls are installed or until all violations are eliminated for a six month period or longer. Such requirements would be defensible as- suming they were reasonable, likely to lead to continued or greater compliance, similar to those already proposed (and withdrawn) by Gulf States, and the Department was willing to forego legal action for past and ongoing violations so long as the order was obeyed. In the event of a prolonged administrative or legal challenge to an order in this form, it could be withdrawn and legal action to redress all past and continuing violations could be instituted at that point. KJA/rdg oe Richard Grusnick 70a APPENDIX T LTV STEEL LAW DEPARTMENT DEPARTMENTAL CORRESPONDENCE Subject: Coke Battery Nos. 2 & 3 ADEM Consen rN lation Date: November 11, 1985 To: W.L. Weeks No: 1806B The purpose of this letter is to memorialize the substance of various telephone conversations I have had with Kerry Allen concerning the Administrative Order we have been negotiating over the past several weeks with respect to the combustion stacks of coke battery nos. 2 and 3 at Gadsden. As you know, Kerry Allen is the Associate General Counsel of the Alabama Department of Environmental Management (ADEM) and is the principal ADEM lawyer involved in this matter. By way of background, I think it is important to review, for the record so to speak, the status of the negotiations between Gulf States Steel and ADEM. Essentially, the terms of the Administrative Order had been finalized. A copy of the latest draft of that Order, which accompanied Kerry Allen’s October 1, 1985 letter to me, is attached. Among other things, the proposed Order required the posting of a $100,000 surety bond for each battery. The bonds would be forfeited or released - pursuant to the terms of the Order. At my request, Tom Ward attempted to secure the two surety bonds in accordance with established procedures. In that connection I enclose herewith a copy of Mr. Ward’s October 4, 1985 letter to Mr. Michael D. Ross of Marsh & McLennan, Inc., as well as a copy of Mr. Ross’s reply to Tom Ward of October Tila 14, 1985. As you can see from this correspondence, Aetna is unwilling to issue the surety bonds at this time. I have been advised by Tom Ward that there is no possibility that any other insurance company will issue these bonds to Gulf States Steel. On October 20, 1985, I informed Kerry Allen that Gulf States Steel was unable to secure the surety bonds at this time. After reviewing the matter with Mr. Richard Grusnick, Ms. Allen informed me that although it was displeased with that turn of events, ADEM had not made a decision to initiate formal enforcement action against Gulf States Steel with respect to the combustion stacks of battery nos. 2 and 3. Ms. Allen further informed me that ADEM would be inspecting the battery stacks frequently and that the ADEM did not contemplate bringing any formal enforcement action against Gulf States Steel so long as the combustion stacks of battery nos. 2 and 3 were in compliance with applicable regulations. Ms. Allen, of course, cautioned that she could not speak for the U.S. EPA with respect to either past or future violations of applicable regulations. Under the circumstances, it does not appear that the posi- tion of Gulf States Steel can be significantly enhanced by continuing negotiations with the ADEM for an Administrative Order. The only reasonable alternative to a surety bond, is for Gulf States Steel to offer to put up cash or some other collateral in lieu of the surety bonds. The significant advantage to Gulf States Steel that the proposed Order would have provided, namely protection against a formal enforcement action and avoidance of potentially higher penalty exposure, appears, in light of Ms. Allen’s remarks, to be obtainable without the consent order if the battery stacks are maintained in compliance with applicable regulations. The other principle advantage of the Order would have been to forestall federal enforcement action by the U.S. EPA. However, as long as the battery stacks are maintained in compliance in the future, it would appear that 72a the risk of feceral enforcement with respect to past violations is minimal. In view of the above, it is our recommendation that no further efforts on our part be initiated to negotiate the proposed Order. If you have any questions concerning the above com- ments or would like to discuss the matter further in any way, please do not hesitate to get in touch. /s/ James D. Donohoe JDD:cm Enclosures cc: M.L. Harmon S. Holcombe J.P. Kelly K.W. Means C.L. Medford W.L. West T.A. Zalenski 73a APPENDIX U Alabama Department of Environmental Management January 9, 1986 CERTIFIED MAIL, No. P 686 585 497 RETURN RECEIPT REQUESTED Mr. Kenneth Means Environmental/Engineering Manager Gulf States Steel Corporation 174 S. 26th Street Gadsden, AL 35901 Dear Mr. Means: This Notice of Violation is issued for exceedances of visible emission limits noted during inspections in December, 1985. The specific violations are: Application Visible ADEM Emission Source Date Regulation Reading #2 Coke Dec. 17,1985 Section 4.9.8 1314 minutes Battery out of 15 Stack minutes greater than 20% opacity #2 Coke Dec. 27,1985 = Section 4.9.8 1614 minutes Battery out of 60 Stack minutes greater than 20% opacity #2 Coke Battery Stack #3 Coke Battery Stack #3 Coke Battery Stack Basic Oxygen Furnace Shop Roof Monitor Basic Oxygen Furnace Shop Roof Monitor . 30,1986 Section 4.9.8 . 27, 1985 Section 4.9.8 . 30, 1985 Section 4.9.8 . 27, 1985 Section 4.17.1 . 30, 1985 Section 4.17.1 414 minutes out of 60 minutes greater than 20% opacity 1144 minutes out of 60 minutes greater than 20% opacity 31 minutes out of 60 minutes greater than 20% opacity 3 minute averages of 35.4%, 67.2%, and 63.8% 3 minute averages of 20.5%, 23.3%, 35.4%, 27.5%, and 43.8% Not later than January 24, 1986, you are requested to file with the Department a full written report showing the steps that have been taken and are being taken to correct the violations. Such report should be mailed or delivered to the undersigned at the Department. Failure to file a report showing expeditious corrective actions could result in the revocation of your Permits. 75a Should you have any questions concerning this matter, please contact me at 205/271-7861. Sincerely, /s/ Richard E. Grusnick, Chief Air Division REG/RG:um cc: John Hughes 76a APPENDIX V ALABAMA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT June 13, 1986 CERTIFIED MAIL 686585753 RETURN RECEIPT REQUESTED Mary Teresa Sobnosky Amer Cunningham Brennan Co. First National Tower Akron, Ohio 44308 Dear Ms. Sobnosky: RE: Gulf States Steel, Inc. Enclosed please find Administrative Order No. 86-081-WP which requires Gulf States Steel, Inc. to take certain actions regarding the discharge of pollutants into waters of the State. In issuing this Order, the Department has considered the comments you made at our meeting. You will note that certain changes have been made in accordance with the information you sub- mitted at that meeting. Please be advised that failure to comply with the terms of this Order can result in penalties of up to $25,000 per day for each violation, as well as possible criminal penalties. If you have any questions, please feel free to contact me. 77a Sincerely, /s/_ Olivia Hardy Hudgins Associate General Counsel Enclosure cc: Charles Horn, Chief Water Division Jim Moore, Water Division Industrial Branch Dave Olson, EPA Region IV TT 78a ALABAMA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT IN THE MATTER OF GULF STATES STEEL, INC. GADSDEN, ALABAMA ORDER NO. 86-081-WP FINDINGS OF FACT Pursuant to the provisions of the Alabama Environmental Management Act, Code of Alabama 1975, §§ 22-22A-1 to 22-22A-15 (1984), the Alabama Water Pollution Control Act, Code of Alabama 1975, §§ 22-22-1 to 22-22-14 (1984), and the National Pollutant Discharge Elimination System administered by the Alabama Department of Environmental Management (hereinafter, “the Department”) and approved by the Ad- ministrator of the U.S. Environmental Protection Agency pur- Suant to the Federal Water Pollution Control Act § 402, 33 U.S.C. § 1342, the Department makes the following FINDINGS OF FACT: 1. Gulf States Steel, Inc. (hereinafter, “the Operator’) operates an integrated iron and steel production facility located in Gadsden, Alabama. 2. Code of Alabama 1975, § 22-22-9(j) (6) (1984) provides that “every person, prior to discharging any new or increased pollution into any waters of this state Shall apply to the [Department] in writing for a permit and must obtain such permit before discharging such pollution.” ADEM Admin. Code R. 6-6-.03 provides that “{n]o person shall discharge pollutants from a point source into waters without first having obtained a valid NPDES [National Pollutant Discharge Flimina- tion System] permit... .” 79a 3. The NPDES permit issued to the previous owner of the Gadsden facility expired September 1, 1980, and since that time no NPDES permit has been issued for the Gadsden facility. The Operator has initiated the process of obtaining a NPDES permit. 4. Qn February 14, 1986, the Operator discharged pol- lutants and other industrial wastes from a point source to Black Creek, a water of the state. ORDER Based upon the foregoing FINDINGS OF FACT and pur- suani to Code of Alabama 1975, §§ 22-22A-5(10), 22-22-9(c), 22-22-9(j), and 22-22-9(1) (1984) and the National Pollutant Discharge Elimination System administered by the Department and approved by the Administrator of the U.S. Environmental Protection Agency under the National Water Pollution Control Act § 402, 33 U.S.C. § 1342 it is hereby ORDERED: A. That not later than 180 days after receipt of notice of this Order, the Operator shall either obtain a NDES permit authorizing discharges from a point source to Black Creek, or it shall terminate all unpermitted discharges from its facility to waters of the state. B. That the failure to comply wiih the provisions of this Order shall constitute cause for the commencement of legal action for the recovery of civil penalties, criminal fines, or other appropriate relief by the Department against the Operator. C. That issuance of this Order does not preclude the Department from seeking civil penalties, criminal fines, or other appropriate sanctions or relief against the Operator for the violations stated herein. ORDERED and ISSUED this 12th day of June 1986. /s/ Leigh Pegues, Director Alabama Department of Environmental Management 1751 Federal Drive Montgomery, Alabama 36130 (205)271-7700 8la APPENDIX W UNITED STATES ENVIRONMENTAL PROTECTION AGENCY REGION IV, 349 COURTLAND STREET ATLANTA, GEORGIA 30365 March 30, 1987 Mr. John Poole, Jr. Water Division AL Dept. of Environmental Mgmt. 1751 Federal Drive Montgomery, Alabama 36130 RE: Unresolved 301(g) Requests Dear Mr. Poole: According to our records, there are currently 3 pending Section 301(g) variance requests for which ADEM has not yet taken any action. These requests are: Facility NPDES No. Parameter Republic Steel - Gadsden AL0003522 total phenols, NH3 Republic Steel - Thomas AL0003531 total phenols, NH3 Reynolds Aluminum ALO000035 aluminum - Alloys Plant aluminum, fluoride - Listerhill Plant aluminum, NH3 - Alabama Reclamation Plant 82a Under the provisions of the recently - passed Water Quality Act of 1987 (February 4, 1987), all pending applications as of the date of enactment of this Act must be approved or disapproved by the Administrator of EPA within 365 days of the date of enactment. In order to meet this requirement, we request that ADEM resolve these pending requests as soon as possible. As you are aware, Region IV cannot review a request until State action is completed. If a facility is not currently discharging, we recommend that its 301(g) request be inactivated now and that it be re-applied for upon resumption of the discharge. Also under the provisions of the new Act, requests for 301(g) variances are restricted to and can only be made for the parameters ammonia, chlorine, iron, color, and total phenols (AAP). Consideration of other parameters can only be given if petitions are made and special listing criteria are met (see enclosure). Please advise me of the status of these pending requests. Please call me at (404) 347-3012 if you have any questions. Sincerely yours, /s/ Marshall Hyatt Environmental Scientist Facilities Performance Branch Water Management Division Enclosure 83a APPENDIX X ALABAMA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT July 14, 1987 Mr. Marshall Hyatt Environmental Scientist Water Management Division Environmental Protection Agency 345 Courtland Street Atlanta, GA 30365 Dear Mr. Hyatt: Re: 301(g) Variance Request Republic Steel - Gadsden NPDES No. AL0003522 Republic Steel - Thomas Plant NPDES No. AL0003531 This is in response to your March 30, 1987, !etter regarding the status of several 301(g) variances requests on which the Depart- ment has taken no formal action. The Republic Steel facility in Thomas has been inactivated and torn down. The variance request for this facility is no longer valid. The Republic Steel facility in Gadsden has been purchased and is now Gulf States Steel, Inc. The Department has been working on reissuance of Gulf States Steel’s NPDES permit for several months. Our discussions with representatives of Gulf States Steel indicate that they wish tc keep the variance request open for the interim period, pending th utcome of negotiations and issuance of their NPDES permit. 84a As you may be aware, when the Iron and Steel Guidelines were promulgated, the Gadsden facility was one of 21 facilities which were excluded from meeting those guidelines pending develop- ment of alternative guidelines for central treatment facilities. To date, guidelines for the Gadsden plant have not been finalized by EPA. Since we have no guidelines to utilize for a permitting rationalizing we will be proposing a BPJ permit which will address water quality standards and may or may not be in accordance with existing Iron and Steel Guidelines. In the absence of promulgated effluent guidelines, the Depart- ment is notifying EPA that it is making no recommendation in response to the 301(g) variance request for the Gulf States Steel facility in Gadsden. Should you have any questions regarding this matter, please do not hesitate to contact me. Sincerely, /s/ John A. Poole, Jr. Chief Industrial Branch Water Division JAP: bjp cc: Mr. Kenneth Means Weston Services, Inc. 8Sa APPENDIX Y MAYNARD, COOPER, FRIERSON & GALE, P.C. ATTORNEYS AT LAW TWELFTH FLOOR WATTS BUILDING BIRMINGHAM, ALABAMA 35203 (205) 252-2889 TELECOPIER (205) 252-2958 or 251-1703 TELEX 38-3452 September 14, 1988 Mr. Kenneth Means Mr. Buster Stewart Gulf States Steel, Inc. 174 South 26th Street Gadsden, Alabama 35904 Re: Administrative Order No. 88-C81-WP Dear Kenneth and Buster: Enclosed please find a new Findings of Fact executed by Leigh Pegues. This new version corrects some typographical errors that were in the old version if vou have any questions about this please feel free to give me a call. Very truly yours, /s/ H. Thomas Wells, Jr. HTW, Jr./psr Enclosure 86a ALABAMA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT September 12, 1988 Mr. Thomas H. Wells, Jr. Maynard, Cooper, Frierson & Gale Twelfth Floor Watts Building Birmingham, Alabama 35203 Dear Mr. Wells: RE: Administrative Order No. 88-081-WP Our file # WP-15-157 Enclosed please find a copy of Administrative Order No. 88-081-WP in which several typographical errors included in the original order have been corrected. If you have any questions, please feel free to call me. Sincerely, — Olivia H. Jenkins General Counsel OHJ/daf Enclosure 87a ALABAMA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT IN THE MATTER OF GULF STATES STEEL, INC. GADSDEN, ALABAMA NPDES PERMIT NUMBER AL0055239 ORDER NO. 88-081-WP FINDINGS OF FACT Pursuant to the provisions of the Alabarna Environmental Management Act, Code of Alabama 1975, 3322-224. through 22-22A-16 (1984 and 1987 Cum. Supp.), the Alabama Water Pollution Control Act, Code of Alabama 1975, §§22-22-1 through 22-22-14 (1984 and 1987 Cum. Supp.) and the National Pollutant Discharge Elimination System administered by the Alabama Department of Environmental Management (hereinafter “the Department’) and approved by the Ad- ministrator of the U.S. Environmental Protection Agency pur- suant to the Federal Water Pollution Centro] Act. § 402, 33 U.S.C. § 1342, the Department makes the following FINDINGS OF FACT: 1. Gulf States Steel, Inc. (hereinafter “the Permittee’) operates an integrated steel making facility located in Gadsden Alabama. 2. On December 4, 1987 the Department issued NPDES Permit Number AL0055239 to the Permittee authorizing the discharge of pollutants, industrial wastes and other wastes sub- ject te certain terms, limitations and conm#itions. form a point source designated therein as DSN-001 to Black Creek, a water of the state. 3. Among the terms, limitations and conditions contained in said permit are daily maximum and daily average discharge 88a limitations for ammonia nitrogen (NH3-N), total cyanide (Cn,T), total zinc (Zn,T) and total lead (Pb,T). Said discharge limitations are as follows: NH3-N Cn,T Za,T Pb,T (mg/l) = (mg/1) (mg/l) (mg/1) Daily Maximum 0.67 0.02 0.18 0.03 Daily Average 0.67 0.02 0.18 0.03 4. The Permittee has violated these discharge limitations as follows: Date NH3-N Cn,T Zn,T Pb,T (mg/l) (mg/1) (mg/l) (mg/1) 12/09/87 0.88 0.034 0.25 0.08 12/09/87 1.35 0.065 0.030 0.08 12/11/87 1.90 0.046 0.24 0.04 12/14/87 1.55 0.038 0.47 0.15 12/15/87 1.98 0.046 0.35 12/16/87 1.37 0.038 0.23 12/17/87 1.55 0.075 0.28 12/18/87 1.19 0.056 0.27 12/20/87 1.70 0.030 0.46 12/21/87 1.03 0.045 0.23 12/22/87 1.16 0.060 0.33 12/23/87 1.33 0.054 0.29 12/24/87 1.17 0.032 0.25 12/27/87 1.55 0.023 12/28/87 1.31 0.042 0.47 12/29/87 1.58 0.046 0.29 12/30/87 1.23 0.062 0.28 12/31/87 1.62 0.036 0.26 12/87 average 1.4] 0.050 0.30 01/03/88 1.15 0.03 0.29 01/04/88 1.39 0.10 0.25 01/05/88 1.29 0.05 0.20 89a 01/06/88 1.25 0.05 01/07/88 1.23 0.10 0.23 01/10/88 1.27 0.27 01/11/88 1.01 0.18 0.04 01/12/88 1.23 0.12 01/13/88 2.06 0.16 01/14/88 1.07 0.17 01/17/88 0.92 0.12 01/18/88 1.03 0.13 0.24 01/19/88 1.09 0.14 1/20/88 0.78 0.06 01/21/88 0.27 0.11 0.27 01/24/88 1.42 0.14 01/25/88 1.31 0.13 01/26/88 1.19 0.12 01/27/88 1.35 0.15 0.19 01/28/88 2.15 0.1 0.2 01/31/88 0.97 - 0.08 01/88 average 1.26 0.12 02/01/88 1.77 0.05 02/02/88 1.92 0.07 02/03/88 1.22 0.06 0.22 02/04/88 1.39 0.09 02/07/88 1.29 0.14 0.20 02/08/88 1.35 0.04 02/09/88 1.13 0.06 0.21 02/10/88 1.27 0.14 0.27 02/14/88 1.09 0.06 02/15/88 0.95 0.08 02/16/88 0.96 0.07 02/17/88 1.07 0.08 02/18/88 1.20 0.08 0.22 02/21/88 1.75 0.13 0.19 02/22/88 1.23 0.10 0.24 02/23/88 1.87 0.09 90a 02/24/88 1.44 0.07 02/25/88 5.58 0.11 02/28/88 1.03 0.04 02/29/88 0.92 0.11 02/88 average 1.49 0.08 03/01/88 0.87 0.15 03/02/88 0.85 0.09 0.21 03/03/88 2.09 0.10 0.23 03/06/88 1.15 0.13 0.25 003/07/88 1.07 0.11 03/08/88 1.34 0.16 03/09/88 1.03 0.10 0.20 03/10/88 1.21 0.13 0.19 03/13/88 1.03 0.16 03/14/88 0.88 0.11 03/15/88 0.85 0.13 03/16/88 0.95 0.10 03/17/88 1.01 0.07 03/20/88 0.90 0.06 03/21/88 1.15 0.10 0.19 03/22/88 1.10 0.11 03/23/88 1.35 0.08 03/24/88 1.29 0.10 0.20 03/27/88 0.97 0.07 03/28/88 1.67 0.11 03/29/88 1.22 0.05 0.20 03/30/88 1.10 0.07 03/31/88 1.35 0.06 03/88 Average 1.15 0.10 04/03/88 0.06 04/04/88 0.05 04/05/88 0.04 0.19 04/06/88 0.05 0.21 04/08/88 1.42 0.05 9la 04/10/88 1.11 0.04 0.23 04/11/88 1.27 0.05 04/12/88 1.42 0.11 04/13/88 5.72 0.16 0.19 04/14/88 4.00 0.16 04/17/88 1.31 0.05 04/18/88 1.03 0.03 0.26 04/19/88 1.11 0.04 0.19 04/20/88 1.03 0.05 0.21 04/21/88 1.93 0.07 04/24/88 1.33 0.06 04/25/88 1.15 0.06 04/26/88 0.92 0.08 (04/27/88 0.94 0.08 0.19 04/28/88 0.81 0.06 0.22 04/88 average 1.4] 0.07 05/01/88 0.81 0.05 05/02/88 0.74 0.06 0.19 05/03/88 0.76 0.06 05/04/88 0.85 0.07 05/05/88 0.99 0.05 05/08/88 1.31] 0.07 05/09/88 0.88 0.06 05/10/88 0.99 0.05 0.21 05/11/88 0.97 0.05 05/12/88 1.2] 0.08 05/15/88 0.92 0.05 05/16/88 1.01 0.07 0.22 05/17/88 1.39 0.07 05/18/88 1.31 0.08 05/19/88 1.23 0.07 05/22/88 1.23 0.05 05/23/88/ 1.03 0.05 05/24/88 0.92 0.03 05/25/88 1.07 0.04 92a 05/27/88 1.29 0.06 5/28/88 1.13 0.05 05/30/88 1.35 0.07 05/31/88 1.92 0.08 05/88 average 1.10 0.06 ORDER Based upon the foregoing FINDINGS OF FACT and pur- suant to Code of Alabama 1975, § 22-22A-5(10), 22-22-9(c), 22-22-9(g), 22-22-9(1), and 22-22-9(k) (1984 and 1987 Cum. Supp.) and the National Pollutant Discharge Elimination Sys- tem administered by the Department and approved by the Ad- ministrator of the U.S. Environmental Protection Agency pursuant to the Federal Water Pollution Control Act § 402, 33 U.S.C. 1342, it is hereby ORDERED: A. That not later than 60 days after receipt of notice of this Order, the Permittee shall submit to the Department a pollution abatement plan designed to bring the Permittee’s discharge into compliance with the terms, limitations and conditions of NPDES Permit Number AL0055239. Said plan shall be prepared by a registered professional engineer licensed to prac- tice in the State of Alabama and shall be prepared in accordance with ADEM Admin. Code Chapter 6-3. B. That not later than February 1, 1990 the Permittee shall have achieved and shall continuously maintain compliance with the terms, conditions and limitations of this Order. C. That the failure of the Permittee to comply with any of the provisions of this Order shall constitute cause for the ter- mination of NPDES Permit Number AL0055239 and/or the commencement of legal or other appropriate enforcement action by the Department against the Permittee for the recovery of civil penalties, criminal fines or other appropriate relief. D. That the issuance of this Order does not preclude the Department from seeking the recovery of civil penalties, 93a criminal fines, or other appropriate relief against the Permittee for the violations cited herein. ORDERED and ISSUED this 19th day of August, 1988 /s/ Leigh Pegues, Director 4abama Department of Environmental Management 1751 Cong. W.L. Dickinson Drive Montgomery, Alabama 36130 (205) 271-7855 94a APPENDIX Z ALABAMA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT February 20,1990 CERTIFIED MAIL (P 070 963 725) RETURN RECEIPT REQUESTED K. W. Means Gulf States Steel 174 South 26th Street Gadsden, AL 35904 Dear Mr. Means: Enclosed please find Administrative Order No. 90-074-WP which requires Gulf States Steel to take certain actions regarding the discharge of pollutants into waters of the State. Please be advised that failure to comply with the terms of this Onder can result in penalties of up to $25,000 pez day for each violation as well as possible criminal penalties. Pursuant to Code of Alabama 1975, §22-22A-7(c)(1) this Order may be appealed by filing a request for hearing before the Environmen- tal Management Commission within 15 days after receiving notice of this Order. The request should be addressed to the Chair of the Environmental Management Commission and should comply with the requirernents of ADEM Admin. Code R. 335-2-1-.04. Copies of ADEM Admin. Code, Division 2, Environmental Management Commission regulations may be obtained by submitting a request in writing along with a check or money order for $1.25 for each copy requested. Written requests should be sent to the attention of the Office of General Counsel. 95a If you have any questions, please feel free to contact me at (2U5) 271-7977. Yours very truly, /s/ Olivia H. Jenkins General Counsel OH3J/daf Enclosures CC: Phil Davis, Water Division Public Information Office Doug Lankford, U.S. EPA, Region IV 96a ALABAMA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT IN THE MATTER OF GULF STATES STEEL GADSDEN, ALABAMA NPDES PERMIT NUMBER AL0055239 ORDER NO. 90-074-WP FINDINGS OF FACT Pursuant to the provisions of the Alabama Environmental Management Act, Ala. Code §§22-22-1 through 22-22A-16 (1984 and 1989 Cum. Supp.), the Alabama Water Pollution Control Act, Ala. Code §§22-22-1 through 22-22-14 (1984 and 1989 Cum. Supp.), and the National Pollutant Discharge Elimination System administered by the Alabama Department of Environmental Management (hereinafter “the Department’) and approved by the Administrator of the U.S. Environmental Protection Agency pursuant to the Federal Water Pollution Control Act, §402, 33 U.S.C. §1342, the Department makes the following FINDINGS OF FACT: 1. Gulf States Steel, Inc. (hereinafter “the Permittee’’) operates an integrated steel] making facility located in Gadsden, Alabama. 2. On December 4, 1987 the Department issued NPDES Permit Number AL0055239 to the Permittee authorizing the discharge of pollutants and other wastes from a point source designated therein as DSN-001 to Black Creek, a water of the state, subject to certain terms, limitations and conditions. 3. OnAugust 19, 1988 the Department issued administra- tive Order No. 88-081-WP to the Permittee citing numerous violations of NPDES Permit Number Al0055239. 97a 4. An error in Administrative Order No. 88-081-WP required the Permittee to comply with “the terms, conditions and limitations of this Order.” 5. The requirement should have been to comply with the terms, conditions and limitations of NPDES Permit Number AL0055239. ORDER Based upon the foregoing FINDINGS OF FACT and pur- suant to Ala. Code §§22-22A-5(10), 22-22A-5(18), 22-22- 9(g), 22-22-9(i), and 22-22-9(k) (1984 and 1989 Cum. Supp.), and the National Pollutant Discharge Elimination System ad- ministered by the Department and approved by the Ad- ministrator of the U.S. Environmental Protection Agency pursuant to the Federal Water Pollution Control Act §402, 33 U.S.C. 1342, it is hereby ORDERED: A. That paragraph B of Administrative Order No. 88- 081-WP is hereby deleted in its entirety and the following paragraph is substituted in its place: That not later than March 1,1990 the Permittee shall have achieved and shall continuously maintain, until the expiration of said permit, compliance with NPDES Permit Number AL0055239. B. That the failure of the Permittee to comply with any of the provisions of this Order shall constitute cause for the termination of NPDES Permit Number AL0055239 and/or the commencement of legal or other appropriate enforcement action by the Department against the Permittee for the recovery of civil penalties, criminal fines or other appropriate relief. C. That the issuance of this Order does not preclude the Department or others from seeking the recovery of civil penal- ties, criminal fines, or other appropriate relief against the Per- mittee for the violations cited herein. 98a ORDERED and ISSUED this 21st day of February, 1990. /s/ Leigh Pegues, Director Alabama Department of Environmental Management 1751 Cong. W.L. Dickinson Drive Montgomery, Alabama 36130 (205) 271-7700 99a CERTIFICATE OF SERVICE I, Olivia H. Jenkins, hereby certify that I have served Order No. 90-074-WP, upon Gulf States Steel by sending the same postage paid, through the U.S. Mail, as Certified Mail No. PO70 963 725, with instructions to forward and return receipt re- quested to: Mr. K. W. Means Gulf Siates Steel 174 South 26th Street Gadsden, Al 35904 Done this 21st day of February, 1990. /s/ Olivia H. Jenkins 100a APPENDIX AA IN THE CIRCUIT COURT FOR ETOWAH COUNTY, ALABAMA State of Alabama, ex rel James N. Evans, Attorney General, Plaintiff, VS. Gulf States Steel, Inc. of Alabama Defendant. - Civil Action No. W91-242-NWO ~ COMPLAINT 1. This action is brought by the State of Alabama on the relation of James N. Evans, Attorney General, (‘Plaintiff’) to enforce the provisions of the provisions of the Alabama Water Pollution Control Act, and for declaratory judgment. 2. The Attorney General is authorized by Code of Alabama 1975, §22-22A-5(2), §22-22-9(m), §22-22-9(n), §22- 22-9(0) and §22-22A-5(12) to enforce the provisions of the Water Pollution Control Act found at Code of Alabama 1975, §22-22-1 et seq. Additionally, the Attorney General, pursuant to §22-22A-5(12), is the legal representative of the Alabama Department of Environmental Management (“ADEM””) in all legal actions. 3. Defendant, Gulf States Steel, Inc. of Alabama (herein after Gulf States Steel), is a Delaware corporation qualified under the laws of this State to do business in Etowah County, Alabama. 4. Gulf States Steel operates an integrated steel making facility in Gadsden, Alabama. Wla 5. Defendant and its predecessor have had a history of surface water violations for over 6 years. In addition, long existing underground storage tanks on site and the presence of benzene in a ditch on the site which leads to a water treatment facility require an evaluation of Gulf States Steel site for ground water Contamination. COUNT I 6. Plaintiff realleges paragraphs | through 4 above. 7. Pursuant to Code of Alabama 1975, §22-22-9(g), the Alabama Department of Environmental Management (“ADEM”) issued permit No. AL0055239 to Gulf States Steel authorizing the discharge of pollutants from outfall serial num- ber D6WO001 to Black Creek, a water of the State, subject to certain limitations, terms and conditions. 8. Among the limitations contained in that permit are daily average and daily maximum limitations for oil and grease (O & G), ammonia nitrogen (NH3-N), cyanide (CN), lead (Pb), Zinc (ZN), Phenols (PNEW), total suspended solids (TSS) and daily minimum limitations for dissolved oxygen (DO) and daily maximum limitations for pH (PH). Those limitations are as follows: TSS DO O&G NH3-N CN Daily Minimum — 3.5 mg/l — -- — Daily mg/1 9mg/1 — 6.0 mg/l .67 mg/l .02mg/l Average Daily Maximum 22.5mg/l — 15.0mg/l .67 mg/l .02 mg/l 102a Pb ZN PNEN pH Daily Minimum — <— — 6.0 S. U. Daly Average 03 mg/l ——.18 mg/l .03 mg/l 9S.U. Daily Maximum 03 mg/l —.18 mg/l .065 mg/l NA 9. During the following months, Gulf States Steel com- mitted the following number of violations by discharging pol- lutants from the point source into Black Creek in violation of the discharge limitations set out in NPDES Permit Number AL00552239: MONITORING DAYS OF REPORT MONTH VIOLATIONS PARAMTER VIOLATIONS April 1969 22 DO ] TSS 2 NH3N 21 CN 3 EN 8 May 1989 22 NH3N 22 CN l ZN 8 June 1989 Zi DO 5 TSS l NH3N 20 CN 3 ZN ) 103a MONITORING DAYS OF REPORT MONTH VIOLATIONS PARAMTER VIOLATIONS July 1989 14 DO 3 NH3N 6 CN 4 ZN Q August 1989 22 DO 17 NH3N 3 Fb ] ZN 14 September 1989 13 NH3N 4 CN 4 ZN 10 October 1989 13 NH3N 3 CN 4 ZN 10 November 1989 13 CN 5 ZN iO December 1989 =19 TSS 3 NH3N 10 CN 19 ZN 7 PHEN al January 1990 22 NH3N 9 CN 19 ZN 1] PHEN 3 February 1990 19 NH3N 6 104a MONITORING DAYS OF REPORT MONTH VIOLATIONS PARAMTER VIOLATIONS July 1990 14 NH3N 10 CN 3 ZN 3 PHEN 3 August 1990 16 NH3N 18 ZN 3 PHEN 2 September 1990 14 NH3N 6 CN 5 Fb 2 PHEN 2 10. Code of Alabama 1975, §22-22A-5(18)(b), (c) provides as follows: In addition to any other powers and functions which may be conferred upon it by law, the depart- ment is authorized beginning October 1982 to: * * * * (b) Commence a civil action in the circuit court of the county in which the defendant or any material defendant resides or does business or in which the violation occurred to recover a civil penalty from such person for any violation of any provision of law identified in subdivision (1) of this section, any rule, regulation or standard promul- gated by the department, any provision of any order or any condition of any permit, license, certification or variance issued by the department, provided however, that no such civil action may be com- menced against a person if an order assessing a 105a civil penalty for such violation has been issued to such person under paragraph a, of this subdivision. Whenever such person is a corporation and the violation is of a provision of law in chapter 22 of this title, or any rule, regulation or standard promul- gated by the department thereunder, or any provision of any order or any condition of any permit, license, certification or variance issued by the department thereunder, the same civil penalties that may be imposed upon the responsible cor- porate officers in a civil action. Any person having an interest which is or may be adversely affected may intervene as a matter of right in any civil action commenced under this paragraph. The attorney general may also commence a civil action under this paragraph. (c) Any civil penalty assessed or recovered under paragraph a. or b. of this subdivision shall not be less than $100.00 or exceed $25,000.00 for each violation, provided however, that the total penalty assessed in an order issued by the department under paragraph a. of this subdivision shall not exceed 25,000.00. Each day such violation continues shall constitute a separate violation for purposes of this subdivision. In determining the amount of any penalty, consideration shall be given to the serious- ness of the violation, including any irreparable harm to the environment and any threat to the health or safety of the public; the standard of care manifested by such person; the economic benefit which delayed compliance may confer upon such person; the nature, extent and degree of success of such person’s efforts to minimize or mitigate the effects of such violation upon the environment; such person’s history of previous violations; and 106a the ability of such person to pay such penalty. Civil penalties may be assessed under this subdivision for any violation occurring within two years prior to the date of issuance of any order under paragraph a. of this subdivision or commencement of such civil action under paragraph b. of this sub- division... Wherefore, Plaintiff requests that the Court: A. Take jurisdiction of this matter. B. Declare that Gulf States Steel violated the terms and conditions of the permit issued by ADEM. C. Assess a civil penalty against Gulf States Steel and in favor of the plaintiff pursuant to §22-22A-5(18) (b) and (c) for each and every day of violation of its NPDES permit. D. Order defendant to take such corrective action as may be required to insure that surface and ground water meet neces- sary state and federal legal and regulatory discharge require- ments. E. Grant such other relief as may be appropriate. F. Tax the costs of this action against the defendants. RESPECTFULLY SUBMITTED JAMES H. EVANS ATTORNEY GENERAL BY: /s/ R. CRAIG KNEISEL Assistant Attorney General 107a /s/ WILLIAM D. LITTLE Assistant Attorney General ADDRESS OF COUNSEL: OFFICE OF THE ATTORNEY GENERAL ALABAMA STATE HOUSE 11 SOUTH UNION STREET MONTGOMERY, ALABAMA 36130 (205) 242-7406 108a APPENDIX BB Alabama Department of avirunbernta! Management May 30, 1991 CERTIFIED MAIL (P 831 862 203) RETURN RECEIPT REQUESTED H. Thomas Wells Maynard, Cooper, Frierson & Gale 1901 Sixth Avenue North AmSouth/Harbert Plaza, Suite 2400 Birmingham, AL 35203-2602 Dear Tommy: Enclosed please find Administrative Order No. 91-115-WP which requires Gulf States Steel to take certain actions regarding the discharge of pollutants into waters of the State. Please be advised that failure to comply with the terms of this Order can result in penalties of up to $25,000 a day for each violation as well as possible criminal penalties. Pursuant to Code of Alabama 1975, § 22-22A-7(c)(1) this Order may be appealed by filing a request for hearing before the Environmental Management Commission within 15 days after receiving notice of this Order. The request should be addressed to the Chair of the Environmental Management Commission and should com- ply with the requirements of ADEM Admin. Code R. 335-2-1- .04. Copies of ADEM Admin. Code, Division 2, Environmental Management Commission regulations may be obtained by sub- mitting a request in writing along with a check or money order for $2.00 for each copy requested. Written requests should be sent to the attention of the Office of General Counsel. 109a If you have any questions, please feel free to contact me at (205) 271-7977. Yours very truly, /s/ Olivia H. Jenkins General Counsel OHJ:df/37 Enclosures CC: Phil Davis, Water Division Public Affaus Office Doug Lankford, U.S. EPA, Region IV Marilyn Elliott, Permits & Services 110a ALABAMA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT IN THE MATTER OF GULF STATES STEEL GADSDEN, ALABAMA NPDES PERMIT NUMBER AL0055239 ORDER NO. 91-115-WP FINDINGS Pursuant to the provisions of the Alabama Environmental Management Act, Ala. Code (1975), §§ 22-22A-1 through 22-22A-16 (1990 Rple. Vol.), the Alabama Water Pollution Control Act, Ala. Code (1975), §§ 22-22-1 through 22-22-14 (1990 Rplc. Vol.), and the National Pollutant Discharge Elimination Systern administered by the Alabama Department of Environmental Management (hereinafter “the Department’) and approved by the Administrator of the U.S. Environmental Protection Agency pursuant to the Federal Water Pollution Control Act § 402, 33 U.S.C. § 1342, the Department makes the following FINDINGS OF FACT: 1. Gulf States Steel, Inc. (hereinafter “the Permittee’) operates an integrated stee] making facility located in Gadsden, Alabama. 2. On December 4, 1987 the Department issued NPDES Permit Number ALOO55239 to the Permittee authorizing the discharge of pollutants and other wastes from a point source designated therein as DSN-00i to Black Creek, a water of the state, subject to certain terms, limitations and conditions. 3. Among the terms, limitations and conditions of NPDES Permit Number AL0055239 are daily maximum and monthly average discharge limitations for ammonia as nitrogen llla (NH3-N), cyanide (CN,T), lead (Pb,T), total zinc (Zn,T) and phenols (PHEN). Said limitations are as follows: PARAMETER NH3-N CN,T Pb,T Zn,T PHEN (mg/1) (mg/1) (mg/l) (mg/I) (mg/1) Daily Maximum 0.67 0.02 0.03 0.18 0.085 Daily Average 0.67 0.02 0.03 0.18 0.03 4. On February 21, 1990 the Department issued Ad- ministrative Order Number 90-074-WF to the Permittee citing violations of said permit discharge limitations amd requiring it to achieve compliance with the terms, limitations and conditions of NPDES Permit Number AL0055239 no later than March 1, 1990. 5. On October 24, 1990 the Department issued Ad- ministrative Order No. 91-001-WP to the Permittee again citing violations of said permit discharge limitations and requiring it to achieve compliance with the terms, limitations and conditions of NPDES Permit Number AL0055239 no later than December 1, 1990. 6. The Permittee has violated the terms, limitations and conditions of NPDES Permit Number AL0055239 as follows: DATE NH-3N CN,T Pb,T Zn,T PHEN (mg/1) (mg/l) (mg/l) (mg/1) (mg/1) 12/2/90 0.74 0.03 12/3/90 0.8 0.07 12/7/90 0.99 0.42 12/9/90 1.51 0.04 12/10/90 1.44 0.03 12/11/90 0.96 12/14/90 1.58 0.06 12/16/90 1.35 0.05 12/17/90 1.72 0.05 12/18/90 0.99 12/19/90 1.07 112a DATE NH-3N CNT Pb,t Zn,T PHEN (mg/1) (mg/l) (mg/l) (mg/1) (mg/1) 12/24/90 0.04 0.18 12/26/90 1.05 12/27/90 0.03 12/28/90 1.03 0.08 0.23 12/90 Avg. 0.92 0.03 0.05 1/2/91 0.71 0.03 1/3/91 215 0.04 1/4/91 0.58 0.03 1/6/91 1.62 1/7/91 0.78 1/8/91 3.16 1/9/91 2.21 0.21 1/11/91 0.07 1/13/91 0.76 0.05 1/14/91 0.04 1/15/91 0.06 1/16/91 0.05 1/19/91 0.36 1/20/91 0.03 0.2 1/21/91 0.06 1/22/91 0.03 1/23/91 0.04 0.24 1/28/91 0.11 1/30/91 0.04 0.23 1/91 Avg. 0.83 0.03 0.05 2/5/91 1.48 2/6/91 0.81 0.03 2/8/91 0.05 2/11/91 0.05 2/12/91 0.03 2/13/91 0.06 2/15/91 0.03 2/17/91 0.12 113a DATE NH-3N CN,T Pb,T Zn,T PHEN (mg/l) (mg/1) (mg/l) (mg/l) (mg/1) 2/18/91 0.73 0.06 0.1 2/19/91 0.04 1.23 2/20/91 0.28 2/24/91 0.04 2/25/91 0.05 2/26/91 0.69 0.04 2/27/91 0.03 2/91 Avg. 0.03 0.04 7. Qn November 30, 1990 the Permittee notified the Department that it would not meet the December 1, 1990 compliance date contained in Administrative Order No. 91-00- WP and requested an extension of the December 1, 1990 com- pliance date to December 31, 1990. As grounds for said request, the Permittee stated that equipment designed to modify the pH adjustment in the second reaction basin had been placed into -service on October 25, 1990, but before any results could be obtained, a pump had developed a leak, leading to “virtual destruction” of the pump. The Permittee informed the Depart- ment that the pump had been removed and rebuilt but had just become available for use, and insufficient time remained to evaluate the efficacy of the modification. The Permittee re- quested that the delay be considered a force majeure event. 8. On December 5, 1990 the Department responded to the Permittee and denied the request for an exiension of the com- pliance date. 9. The steps taken by the Permittee to minimize or mitigate the effects of these violations upon the environment have not resulted in compliance with the terms, limitations and conditions of the permit. 10. The permit limitations are based upon water quality standards, and violation of said limitations may result in viola- ll4a tions of said limitations may result in violation of water quality standards. 11. The Permittee has the ability to pay a civil penalty. ORDER Based upon the foregoing Findings and pursuant to Ala. Code (1975), §§ 22-22A-5(10), 22-22A-5(18), 22-22-9(g), 22- 22-9(i), and 22-22-9(k) (1990 Rplc. Vol.), and the National Pollutant Discharge Elimination System administered by the Department and approved by the Administrator of the U.S. Environmental Protection Agency pursuant to the Federal Water Pollution Control Act § 402, 33 U.S.C. § 1342, it is hereby Ordered: A. That not later than November 1, 1991, the Permittee Shall achieve compliance with NPDES Permit Number AL0055239 and shall continuously maintain said compliance each and every day thereafter until the expiration date of said permit. B. That not later than 30 days after receipt of notice of this Order the Permittee shall pay to the Department a civil penalty in the amount of Eighty-one Thousand Dollars ($81,000). C. That the failure of the Permittee to comply with any of this Order shall constitute cause for the termination of NPDES Permit Number AL0055239 and/or the commencement of legal or other appropriate enforcement action by the Department against the Permittee for the recovery of civil penalties, criminal fines or other appropriate relief. D. That the issuance of this Order does not preclude the Department from seeking the recovery of criminal fines or other appropriate relief against the Permittee for the violations cited herein. ORDERED and ISSUED this 30th day of May, 1991. 11Sa /s/ Leigh Pegues, Director Alabama Department of Environmental Management 1751 Cong. W. L. Dickinson Dr. Montgomery, Alabama 36130 (205) 271-7700 ll6a CERTIFICATE OF SERVICE I, Olivia H. Jenkins, hereby certify that I have served Order No. 91-115-WP upon Gulf States Steel by sending the same, postage paid, through the U.S. Mail, as Certified Mail No. P 831 862 203, with instructions to forward and return receipt re- quested to: H. Thomas Wells Maynard, Cooper, Frierson & Gale 1901 Sixth Avenue North AmSouth/Harbert Plaza, Suite 2400 Birmingham, AL 35203-2602 Done this 30th day of May, 1991. /s/ Olivia H. Jenkins 117a APPENDIX CC IN THE CIRCUIT COURT OF ETOWAH COUNTY, ALABAMA ALABAMA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT Plaintiff Vv. GSSI, INC. d/b/a GULF STATES STEEL, INC. a wholly owned subsidiary of the Brenlin Corporation Defendant CIVIL ACTION NO. CV 88-856-JSS CONSENT ORDER The parties to this Consent Order are the Plaintiff, Alabama Department of Environmental Management (hereinafter “the Department’’), and the Defendant GSSI, Inc., doing business as Gulf States Steel, Inc. (hereinafter “Gulf States”), an Alabama corporation and a wholly owned subsidiary of the Brenlin Corporation. This Consent Order shall apply to the claims of the Depart- ment against Gulf States for any of the acts complained of by the Department in its Complaint. Gulf States has denied the allegations presented in the Department’s Complaint. Nevertheless, Gulf States has agreed to the terms of this Consent Order in order to satisfy any liability relating to the acts complained of by the Department in its Complaint and to avoid the expense, inconvenience, and distrac- tion of protracted litigation. 118a The Department has agreed to the terms of this Consent Order in order to terminate the controversy with Gulf States regarding the allegations in its Complaint and the Department has determined that the terms contemplated in this Consent Order are in the best interests of the citizens of Alabama. Therefore, the parties having filed a joint motion for Entry of a Consent Order and good cause appearing, it is hereby ORDERED, ADJUDGED, AND DECREED: ARTICLE ONE That with regard to emissions from Coke Batteries No. 2 and No. 3, Gulf States Steel is ordered to accomplish the following modifications: 1. Gulf States Steel will replace the fuel gas preheater and install a filtering system for combustion air in accordance with the following schedule: A. Install fuel gas preheater on No. 3 coke battery by July 30, 1988. B. Install fuel gas preheater on No. 2 coke battery by November 30, 1988. C. Install filtering system for combustion air on No. 3 coke battery by December 31, 1988. 2. Gulf States Steel will make end flue repairs and through wall repairs on the No. 2 coke battery in accordance with the following schedule. A. Complete coke side end flue repairs by December 31, 1988. B. Complete push side end flue repairs by March 31, 1989. C. Complete through wall repairs on four ovens by June 1, 1989. 119a 3. Gulf States Steel will address door emissions in ac- cordance with the following schedule: A. (1) Complete design engineering for Saturn doors by August 31, 1988. (2) Modify 8 Saturn doors for No. 3 coke battery by September 30, 1988. (3) Complete instailation of 8 Saturn doors on No. 3 battery by October 28, 1988. (4) Submit to the Department by December 30, 1988 an interim evaluation report on the Saturn doors installed on the No. 3 coke battery. B. (1) Mectify 2? adeitional Saturn doors for instal- iation on No. 2 and No. 3 coke batteries by December 15, 1988. (2} Complete installation of 1G doors on No. 2 battery and an additional 12 doors on No. 3 battery by December 30, 1988. C. (1) By April 27, 1989, complete an evaluation of the Saturn doors and submit to the Department a plan and schedule to achieve replacement of all doors on No. 2 coke battery or an alternate method for achieving and maintaining compliance with applicable method for achieving and maintain- ing compliance with applicable regulations regarding doors. This alternative plan and schedule shall have a final compliance date no later than April 30, 1990. (2) By April 27, 1989, complete an evaluation of the Saturn doors and submit to the Department a plan and schedule to achieve replacement of all doors on No. 3 coke battery or an alternative method for achieving and maintaining compliance with applicable regulations regarding doors which plan and schedule shall have a final compliance date no later than April 30, 1990. 120a 4. A. Gulf States Steel will achieve compliance with Section 4.9.4(a) of the Alabama Air Pollution Control Rules and Regulations relating to pushing on the No. 2 battery by July 1, 1989, and shall continuously maintain compliance each and every day thereafter. B. Gulf States will achieve compliance with Section 4.9.8 of the Alabama Air Pollution Control Rules and Regula- tions relating to combustion stacks on the No. 2 battery by July 1, 1989, and shall continuously maintain compliance each and every day thereafter. C. Gulf States Steel will achieve compliance with Section 4.9.6(a) of the Alabama Air Pollution Control Rules and iegulations relating to doors on the No. 2 battery by April 30, 1990, and shall continuously maintain compliance each and every day thereafter. 5. A. Gulf States Steel will achieve compliance with Section 4.9.4(a) of the Alabama Air Pollution Control Rules and Regulations relating to pushing on the No. 3 battery by Decem- ber 31, 1988 and shall continuously maintain compliance each and every day thereafter. B. Gulf States Steel will achieve compliance with Section 4.9.8 of the Alabama Air Pollution Control Rules and Regulations relating to combustion stacks on the No. 3 battery by December 31, 1988 and shall continuously maintain com- pliance each and every day thereafter. C. Gulf States Steel will achieve compliance with Section 4.9.6(a) of the Alabama Air Pollution Control Rules and Regulations relating to doors on the No. 3 battery by April 30, 1990 and shall continuously maintain compliance each and every day thereafter. 12la ARTICLE TWO That with regard to emissions from the Basic Oxygen Furnace Building (BOFB), Gulf States Steel is ordered to make the following modifications: 1. Install a fume suppression system on the hot metal transfer station in accordance with the following schedule: A. Complete engineering by September 30, 1988. B. Procure materials by December 2, 1988. C. Complete fabrication and installation by January 31, 1989. 2. Extend baghouse coverage to the slag skimmer in accordance with the following schedule: A. Complete engineering by August 1, 1988. B. Procure materials by December 31, 1988. C. Complete fabrication and installation by February 28, 1989. 3. Gulf States Steel will achieve compliance with Section 4.17.1 of the Alabama Air Pollution Control Rules and Regula- tions relating to emissions from the BOFB by March 1, 1989 and shall continuously maintain compliance each and every day thereafter. ARTICLE THREE 1. That Gulf States Steel will develop and submit to the Department a written Operation and Maintenance (O&M) Manual for the coke plant and the operations inside the BOFB by December 30, 1988. 2. That Gulf States Steel will implement the O&M Manuals by January 31, 1989. 122a ARTICLE FOUR 1. That Gulf States Steel shall pay within ten days of the issuance of this Order a penaity in the amount of $75,000.00 for all violations of the Air Pollution Control Rules and Regulations cited in attached Appendix A which is incorporated as if fully set out herein. 2. That said penalty fully relieves Gulf States Steel from the imposition of any other sanction by the Department with respect to the violations of the Air Pollution Control Rules and Regulations cited in attached Appendix A. 3. That Gulf States Steel is not relieved from any liability if it fails to comply with any provision of this Order. ARTICLE FIVE That if Gulf States Steel shall fail to comply with the terms of Article One, paragraphs 1, 2, 3A or 3B; Article Two, para- graphs 1 or 2; or Article Three, paragraph 1 of this Order, it shall pay to the Department stipuiated penalties as follows: Two Hundred and Fifty Dollars ($250) per day for every day up through sixty (60) days beyond the applicable dates specified in this Order and Five Hundred Dollars ($500) per day for every day beyond sixty (60) days up through one hundred and eighty (180) days beyond applicable dates specified in this Order. If Gulf States Steel shall fail to comply with aforementioned terms at the expiration of one hundred and eighty (180) days, the Department may apply to the court for such other further relief as may be appropriate. ARTICLE SIX That if Gulf States Steel fails to comply with the com- pliance dates set forth in Article One, paragraphs 3C(1), 3C(2), 123a 4A, 48, 4C, 5A, 5B, or SC; or Article Two, paragraph 3 of this Order, with respect to each violation of each paragraph, it shall pay to the Department stipulated penalties as follows: One thousand dollars ($1,000.00) for the first viola- tion of any specified paragraph and amounts increas- ing in One Thousand Dollar ($1,000.00) increments for each subsequent violation for the first one hundred and eighty (180) days. For violation occurring after one hundred and eighty (180) days, the Department may apply to the court for such other relief that may be appropriate. Violations of the compliance dates may be documented by inspections of the Department personnel, EPA and/or the independent certified visible emissions observer provided for in Article Eight, paragraph 2. ARTICLE SEVEN That prior to the final compliance dates set forth in Article One and Two above, Gulf States Steel will comply with the following interim emission limits: 1. Coke battery No. 2: A. There shall be no visible emission during the pushing cycle, other than water mist or vapor, with an opacity which is greater than 60% for more than 3 pushes per hour. B. There shall be no visible emissions, except non- smoking flame, from any opening on the coke oven doors from more than 20% of the coke oven doors at any one time. C. There shall be no visible emissions, other than water mist or vapor, with an opacity greater than 40% from the combustion stack, except for a period or periods aggregating not more than 3 minutes in any consecutive 60 minutes. 124a 2. Coke Battery No. 3: A. There shall be no visible emission during the pushing cycle, other than water mist or vapor, with an opacity which is greater than 40% for more than 2 pushes per hour. B. There shall be no visible emissions, except non- smoking flame, from any opening on the coke oven doors from more than 18% of the coke oven doors at any one time. C. There shall be no visible emissions, other than water mist or vapor, with an opacity greater than 30% from the combuston stack, except for a period or periods aggregating not more than 3 minutes in any consecutive 60 minutes. 3. BOFB Monovent A. Visible emissions from the roof monitor resulting from the charging, tapping, removal of slag from the Basic Oxygen Furnace vessel and operation of the Basic Oxygen Furnace shall not exceed a shade or density greater than twenty percent (20%) opacity as determined on a three (3) minute rolling average. Compliance shall be determined by using the procedures specified in Section 4.17.1 of the Alabama Air Pollution Control Rules and Regulations. B. For the purpose of this Consent Order, emissions emanating from the largest monovent located directly above the two Basic Oxygen Furnaces will be considered to be emissions from charging, tapping operation of the Basic Oxygen Furnace or removal of slag from the Basic Oxygen Furnace vessel. ARTICLE EIGHT 1. That by the 10th of every month, Gulf States Steel shall submit to the Department a report which specifies the progress it has made regarding all the scheduled activities detailed in this Consent Order and record any and all problems which were identified and corrected during the previous month which re- 125a lated to air pollution and the applicable regulations governing air pollution control in Alabama. 2. That Gulf States Steel shall hire a Department ap- proved independent certified visible emissions observer to con- duct a monthly Visible Emissions Evaluation which shall be performed at random 10 hours per month on each combustion stack and no more than 2 hours of observation per day per stack. Said monthly Visible Emissions Evaluation shall be made with out any advanced notice to Gulf States Steel and the results of said observations shall be reported directly to the Department by the observer by the 10th of every month. Said monthly Visible Emission Evaluations shali begin on or before January 1, 1989 and continue until such time the aforementioned stipu- lated penalties expire for the combustion stacks. ARTICLE NINE That if any event occurs which causes delays in the achievement of compliance or of any compliance schedule for controlling emissions or maintenance of compliance at Gulf States Steel’s facility called for in this Order, Gulf States Steel shall as soon as possible, but no later than fifteen (15) days after the occurrence, notify in writing the Director of the Alabama Department of Environmental Management, describing in detail the length of the delay, the precise cause or causes of the delay, the measures taken and to be taken by Gulf States Steel to prevent or minimize the delay, and the timetable by which those measures will be implemented. Gulf States Steel shall employ all reasonable measures to avoid or minimize any such delay. If any delays are caused solely by circumstances entirely beyond the control of the owners and operators of Gulf States Steel’s facility or of any entity controlling, controlled by, or under common control with the owners and operators, the time for compliance or for performance of the appropriate compliance schedule will be extended by the Director for a period equal to such delay resulting from such circumstances. The burden of 126a proving that the delay is caused by circumstances entirely beyond the control of the owners and operators of the facility shall rest with Gulf States Steel. ARTICLE TEN 1. That any penalty due under Article Five or Article Six of this Consent Order shall be paid to the Alabama Department of Environmental Management within twenty (20) days of receipt by Gulf States Steel of written notification by the Depart- ment of penalties due under said Article, unless contested by Gulf States Steel. If Gulf State Steel contests the fact of a violation as alleged by the Department, Gulf States Steel shall, within twenty (20) days of receipt of notice of the violation, file a Notice of Contest with the Court, which shall thereafter decide the contest. 2. That this Court shall maintain jurisdiction over the matter to ensure that the terms of this Consent Order are com- plied with and to resolve all disputes which may arise out of this Consent Order. 3. That any assigns and successors of Gulf States Steel, Inc., GSSI, Inc., or The Brenlin Corporation shall be liable and held accountable under the terms of this Consent Order without limitation. DONE and ORDERED on this 19th day of Dec., 1988. /s/ Circuit Judge. 127a APPENDIX A A. During inspections of the #2 Coke Battery, the Alabama Department of Environmental Management identified violations of Section 4.9.6(a) of the Air Pollution Control Rules and Regulations on the following dates: October 31, 1986 January 13, 1987 March 4, 1987 December 9, 1987 December 15, 1987 January. 12, 1988 January 26, 1988 February 22, 1988 February 29, 1988 March 7, 1988 March 15, 1988 March 17, 1988 March 30, 1988 April 4, 1988 July 6, 1988 July 13, 1988 August 10, 1988 B. During inspections of the #3 Coke Battery, the Alabama Department of Environmental Management identified violations of Section 4.9.6(a) of the Air Pollution Control Rules and Regulations on the following dates: December 9, 1987 December 15, 1987 March 7, 1988 March 15, 1988 Match 17, 1988 April 4, 1988 September 15, 1988 C. During inspections of the #2 Coke Battery, the Alabama Department of Environmental Management identified violations of Section 4.9.4(a) of the Air Pollution Control Rules and Regulations on the following dates: December 21, 1987 February 29, 1988 July 6, 1988 128a D. During inspections of the #3 Coke Battery, the Alabama Department of Environmental Management identified violations of Section 4.9.4(a) of the Air Pollution Control Rules and Regulations on the following dates: January 26, 1988 August 10, 1988 E. During inspections of the #2 Coke Battery, the Alabama Department of Environmental Management identified violations of Section 4.9.8 of the Air Pollution Control Rules and Regulations on the following dates: December 15, 1986 January 21, 1988 February 3, 1987 January 26, 1988 March 17, 1987 February 22, 1988 July 8, 1987 February 29, 1988 July 16, 1987 March 7, 1988 August 19, 1987 April 4, 1988 August 29, 1987 April 15, 1988 December 3, 1987 F. During inspection of the #3 Coke Battery, the Alabama Department of Environmental Management identified viola- tions of Section 4.9.8 of the Air Pollution Control Rules and Regulations on the following dates: December 10, 1986 March 19, 1987 January 27, 1986 February 29, 1988 February 25, 1987 July 13, 1988 G. During inspections of the BOF Building, the Alabama Department of Environmental Management identified viola- tions of Section 4.17.1 of the Air Pollution Control Rules and Regulations on the following dates: February 3, 1987 January 12, 1988 February 20, 1987 February 22, 1988 July 16, 1987 February 29, 1988 129a December 9, 1987 April 15, 1988 July 13, 1988. H. On August 25, 1987, inspectors from EPA identified violations of Section 4.9.4(a) and 4.9.8 of the Alabama Air Pollution Control Rules and Regulations. Violations of Section 4.9.8 were also noted on August 24, 1987 and violations of Section 4.17.1 were identified by EPA on August 26, 1987. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_1540%3A3. Public record. Not legal advice.