United States v. Armco Steel

No. 70-H-1335 (S.D. Tex. November 14, 1971)

Injunction of September 17, 1971 against defendant's discharging any phenols, cyanide, ammonia or sulfides into the Houston Ship Channel in violation of Rivers and Harbors Act of 1899, § 13, is modified to permit limited discharges pending completion of an incineration system by June 7, 1972. Defendant shall report monthly progress to the Regional Administrator of the Environmental Protection Agency and to the Director of the Texas Water Quality Board, and permit them access to its premises for sampling discharges at any time upon reasonable notice. Since the deadly ecological damage to marine life in the Channel is incapable of precise determination, failure to comply with the order's stated level of permissable discharge shall subject defendant to liquidated damages of $2500/day for each day of violation.

Counsel for Plaintiff
Shiro Kashiwa Assistant Attorney General
Rm. 2143, Department of Justice
10th and Const. N.W.
Washington, D.C. 20530

Counsel for Defendants
George W. Rice
Butler, Binion, Rice, Cook & Knapp
1100 Esperson Building
Houston, Texas 77002

Crawford Martin Attorney General
Richard W. Chote Assistant Attorney General
Austin, Texas 78711

[2 ELR 20438]

Hannay, J.

The Complaint in this cause having been filed against Armco Steel Corporation by the United States of America on December 9, 1970, and the matter having been tried upon the merits, and upon proof adduced in open court by plaintiff and defendant, and the Court having considered statements, arguments of counsel, and briefs submitted; and, the Court in this case having found, in its decision dated September 17, 1971 [3 ERC 1067], that:

The defendant Armco Steel Corporation is discharging cyanide, phenols, ammonia and sulfides from four outfalls designated as 5/6, 9/1, 9/2 and 11 into the Houston Ship Channel, a navigable water of the United States, in violation of Section 13 of the Rivers and Harbors Act of 1899;

the defendant's discharge from outfall 9/2 contains 2.25 milligrams per liter of cyanide and 139 milligrams [micrograms] per liter of phenols, weighing 13.5 pounds per day and 0.83 pounds per day respectively;

the defendant's discharge from outfall 11 contains 45.0 milligrams per liter of cyanide, 17.7 milligrams per liter of phenols, 251 milligrams per liter of ammonia and 185 milligrams per liter of sulfides, and that these discharges each day comprise a total of approximately 975.78 pounds of cyanide, 383.8 pounds of phenols, and from 6,201 to 11,996 pounds of ammonia;

4.4 pounds of cyanide per day in a concentration of .11 milligrams per liter and 0.1 pounds per day of phonols is discharged each day from outfall 5/6; that 21.10 pounds of cyanide in a concentration of .11 milligrams per liter and 2.1 pounds of phenols per day are being discharged from outfall 9/1; and,

cyanide is one of the most toxic elements known, being lethal to fish life in the amounts and concentrations discharged by Armco from said outfalls into the Houston Ship Channel, both adjacent to the complained of outfalls and when moved down the channel toward Galveston Bay and the Open Gulf by rainfall.

The Court also found that Armco's coke plant, the principal source of said toxic discharges, is patently antiquated from the standpoint of pollution control, its deficiency in this respect lying in the absence of a recirculating cooling system, a dephenolizer, and an ammonia absorber.

The Court further found that the method of disposing of said discharges proposed by the defendant, namely, to inject them into deep wells, was inadequate as proposed, and that as a condition precedent to the use of such a system the defendant must plug some eighteen (18) abandoned wells within a two and one-half (2 1/2) mile radius of the proposed injection wells in accord with the recommendations of Mr. Jerry Thornhill of the Environmental Protection Agency.

Based upon its findings, the Court ordered the following:

Armco will cease and desist immediately from discharging all cyanides, phenols, sulfides and ammonia and other toxic pollutants into the Houston Ship Channel from its outfalls numbered 11, 9/2, 9/1 and 5/6, unless and until a permit for such discharges pursuant to Section 407, Title 33, United States Code is obtained.

Armco is further enjoined from disposing of the toxic industrial wastes in question by means of their proposed injection well system unless and until such time as the recommendations of Mr. Jerry Thornhill, Chief of the Special Regulatory Activities of the Environmental Protection Agency, in respect to the eighteen (18) abandoned oil and gas wells within a two and one-half (2 1/2) mile radius of the proposed injection wells are complied with.

Subsequently, the Court entered a final decree retaining jurisdiction of the cause for all purposes and staying the effectiveness of the judgment and all proceedings to enforce the same, insofar as the judgment prohibits discharges from outfalls 5/6 and 9/1, pending the disposition of any motion for new trial and any motion to alter or amend said judgment and any motion for amendment to the Court's findings or for additional findings and pending any appeal which may be taken from the Judgment of the Court.

It appearing to the Court that defendant Armco Steel Corporation, to comply with this Court's Order to cease its discharges of cyanide, phenols, ammonia, sulfides, and other toxic pollutants from outfall 11, through which the effluent from the coke plant is discharged, from outfall 9/2, through which process water from the blast furnace is discharged, and from outfalls 5/6 and 9/1, through which cooling water is discharged, and any [2 ELR 20439] outfall used in lieu thereof, has undertaken the following program:

1. Armco shall by November 30, 1971, apply for all necessary permits and approvals from the State of Texas for the construction of facilities generally described as an incineration system designed to eliminate all discharges, other than cooling water meeting the standards set forth in paragraph 9 below, from its coke plant into the Houston Ship Channel. These facilities shall be designed to achieve the following:

(a) the partial elimination of present coke by-products operations;

(b) the elimination of all discharges into the ship channel of all water used to wash or scrub coke oven by-product gas;

(c) the routing of all gases and excess ammonia liquor from the portions of the by-products recovery plant remaining in use (this plant being generally described as tar removal facility) to a point of incineration;

(d) the use of some unwashed coke over gas for the purpose of the incineration required in (c) above; and

(e) the incineration, in a flare stack of suitable height, of the remaining unwashed coke oven gas. Upon completion of the construction of the incineration system and subject to meeting all applicable air quality requirements, Armco may utilize such gas in its Houston steel making facilities, or may sell such gas.

2. If, on or prior to January 7, 1972, Armco is granted a permit to construct the incineration system, it agrees that it will thereupon immediately dismiss all motions and any appeal then pending in this matter and forego any appeal not then taken. In the event the application for a permit to construct the incineration system is denied or is not acted upon by January 7, 1972, the provisions of this Order relating to outfall 11 shall be null and void and the provisions relating thereto in the Court's Final Decree of September 21, 1971 shall be operative. Within 10 days after such denial or after January 7, 1972 if such application has not then been acted upon, the discharge through outfall 11 shall cease.

3. Within 20 days after the approval of the application for construction permits by the State of Texas, Armco shall start construction of the incineration system.

4. Armco shall complete construction and begin operation of said incineration system within six months of the date the application for a construction permit is approved.

5. The defendant shall immediately make such alterations as will permit samples to be taken of the effluent from outfall 9/1 prior to that effluent's mingling with the effluent from outfall 9/2; to reduce the quantity of the blowdown from the blast furnace gas cleaning water recirculating system to the minimum gallons per minute technologically feasible; and to discharge from outfall 9/2 into the Houston Ship Channel on and after six months from the date of the entry of this Order, no more than the net total daily amounts of the following substances.

(a) Phenols 2.4 lbs/day

(b) Cyanide 5.0 lbs/day

(c) Ammonia 62.0 lbs/day

(d) Sulfides 0.5 lbs/day

(e) No amount of other toxic or thermal pollutants, in excess of the applicable Texas water quality standards or any applicable Federal standards, whichever are more stringent.

6. Six months from the date of the entry of this Order, defendant shall submit to the plaintiff the necessary plans for the complete elimination of all discharges from outfall 9/2 into the Houston Ship Channel, and within 12 months thereafter defendant shall totally effectuate its plans for the elimination of said discharges.

7. Armco shall submit the necessary plans and specifications for the projects described in paragraphs 1 and 5 above, together, where applicable, with a construction schedule, within 30 days of the date of entry of this Order, and thereafter progress reports by the 15th day of each month, to the Regional Administrator of the Environmental Protection Agency.

7a. Armco shall furnish to the Executive Director of the Texas Water Quality Board (at the same time such material is furnished to plaintiff or its representative) the material provided to be furnished by Paragraph 6, 7, and 11. Armco shall permit agents or representatives of the Texas Water Quality Board the same rights and privileges provided to plaintiff and its representatives by Paragraphs 8 and 10.

8. Plaintiff shall be allowed to have representatives on the site of the projects described in pragraphs 1, 5 and 6 above, at all times during the development and implementation of said projects. Said representatives shall have total access to all places within said construction site.

9. Armco agrees that it will discharge no cyanide, phenols, ammonia or sulfides from outfalls 9/1, 5/6 and cooling water from outfall 11 which shall exceed the amount of said substances contained in the waters of the Houston Ship Channel at the point of intake. Water shall be analyzed at the points of Channel intake and discharge for the purpose of determining if there has been any net increase of such substances at point of discharge. No amount of thermal or other toxic pollutants (toxic to human or aquatic life), in excess of the applicable Texas water quality standards or any applicable Federal standards, whichever is more stringent, shall be discharged.

10. Representatives of the plaintiff shall be allowed on Armco's premises at any time upon reasonable notice, for the purpose of monitoring and sampling the discharges from outfalls 5/6, 9/1, 9/2 and 11 at their point of intake and point of discharge, or any other appropriate sampling station.

11. The Company agrees to provide the Regional Administrator of the Environmental Protection Agency, within 30 days of the date of entry of this Order, schematic flow diagrams showing all present water sources, general uses of water, waste treatment, and discharges from the Houston Works as they exist as of the date of this Order. Armco shall inform said Regional Administrator of any changes in said water system within 24 hours after said changes are made.

12. This Court found that the continuing discharges of the substances and in the amounts set out in its Opinion from outfalls 11, 9/2, 9/1 and 5/6 into the Houston Ship Channel would be deleterious and deadly to the survival and existence of the organic and marine life in the Channel. Because the ecological damage which would be caused by those discharges could not be determined with any degree of certainty or definiteness, Armco Steel Corporation shall be subject to the following liquidated damage provisions:

(a) If the discharges from outfalls 11 or 9/2, excluding cooling water from outfall 11, continue in excess of the amounts or beyond the deadlines, which would violate the provisions of paragraphs 4, 5 and 6 above, Armco shall pay liquidated damages of $25000 for each day upon which such discharges is shown to have occurred, except that:

(b) Should the elimination of such discharges not be effectuated within a 30 day period from the deadlines specified in paragraphs 4 and 6 above, said discharges from said outfalls shall thereupon cease immediately.

(c) If the discharges from outfalls 5/6 or 9/1, or the discharge of cooling water from outfall 11, are in excess of the amounts set forth in paragraph 9 above, Armco shall pay liquidated damages in the amount of $2500 for each day upon which such discharge is found to have occurred. This provision shall apply for a period of three years from the date of this Order.

(d) Provisions (a) and (c) above shall be inapplicable if such discharge is shown to have been beyond the control and without the fault of Armco; provision (b) above shall be suspended for the period of any construction delay shown to have been beyond the control and without the fault of Armco.

(e) The liquidated damage provisions herein shall not limit, in any way, the plaintiff's right to proceed under Section 401 of Title 18, United States Code.

13. This Order is not and shall not be interpreted to be a permit under 33 U.S.C. §§ 403, or 407, nor shall it in any way affect Armco Steel Corporation's obligation to secure a permit from the Corps of Engineers pursuant to 33 U.S. §§ 403, or 407. This Order shall not be interpreted to affect or waive any conditions or requirements more strigent than those herein set forth which may be validly imposed by the Corps of Engineers as conditions for the issuance of such a permit. Also, this Order does not operate to excuse Armco Steel Corporation from compliance, as required by law, with any Federal or State water quality requirements now or [2 ELR 20440] hereafter applicable to it.

14. The provisions of this Order shall apply to and be binding upon the parties to this action, their officers, agents, servants, employees, and attorneys, and upon all those in active concert or participation with them who receive actual notice of this Order by personal service of otherwise.

15. The Company agrees to provide the Regional Administrator of the Environmental Protection Agency on a monthly basis, with copies of all future current analyses of 5/6, 9/1, 9/2 and 11 and the Ship Channel intake submitted to the State of Texas. Such reports shall also specifically show the amounts of all the specified pollutants indicated in paragraph 5 contained in said outfalls. These analyses shall be the average of at least ten samples taken from each outfall during any nonoverlapping 60-day period. Each sample shall be a 24-hour composite consisting of a minimum of 24 equally spaced grab samples. A minimum of one sample per week shall be taken at random intervals, as determined by the Environmental Protection Agency Regional Administrator, using standard statistical random number tables. The discharges of said pollutants contained in 9/2 shall not exceed the average total net daily load specified in this Order for each said pollutant, over any non-overlapping 60-day interval, or exceed an additional 50 percent maximum for any one sample during the same interval. All analyses shall be determined by the Standard Methods for the Examination of Water and Wastewater, 12th Edition as revised.

IT IS THEREFORE ORDERED, ADJUDGED AND DECREED, by consent of the parties:

I. That the injunction heretofore ordered against Armco's discharges from outfalls 5/6 and 9/1 shall be stayed for such time as Armco is in compliance with all the general and specific provisions of this Order relating to said outfalls;

II. That the injunction heretofore ordered against Armco's discharge from outfall 9/2 shall be stayed for such time as Armco is in compliance with all general and specific provisions of this Order relating to said outfall;

III. That the injunction heretofore ordered against Armco's discharge from outfall 11 shall be stayed for such time as Armco is in compliance with all the general and specific provisions of this Order relating to said outfall; provided however, that pursuant to paragraph 2 above, the discharge at outfall 11 shall not be stayed in the event that either no permit is issued or that there has been no action taken on the permit within the prescribed time set forth in paragraph 2 above;

IV. That Armco is ORDERED to proceed immediately in accordance with provisions 1 through 15 above; and

V. That the Court shall retain jurisdiction over the cause for all purposes, including the enforcement of provisions 1 through 15 of this Order, provided that either party has the right to apply to this Court for any further relief as may be appropriate.