IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF WISCONSIN
`______________________________________________________________________________
`
`UNITED STATES OF AMERICA,
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`
`Plaintiff
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`v.
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`WASTE MANAGEMENT OF
`WISCONSIN, INC.,
`
`
`
`
`
`
`
`
`Civil Action No.: 20-cv-993
`
`Defendant.
`______________________________________________________________________________
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`COMPLAINT
`______________________________________________________________________________
`
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`The United States of America, by authority of the Attorney General of the United States
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`and through the undersigned attorneys, and acting on behalf of the Administrator of the United
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`States Environmental Protection Agency (“EPA”), alleges as follows:
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`Introduction
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`1.
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`This is a civil action brought by the United States against Defendant Waste
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`Management of Wisconsin, Inc. (“WM”), for injunctive relief and civil penalties pursuant to
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`Section 3008 of the Solid Waste Disposal Act, also known as the Resource Conservation and
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`Recovery Act (“RCRA”), 42 U.S.C. § 6928.
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`2.
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`WM owns and operates a municipal solid waste landfill in Franklin, Wisconsin,
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`known as the Metro Recycling and Disposal Facility (“Metro Landfill”). Since at least 1999, WM
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`has improperly accepted and disposed of hazardous waste at the Metro Landfill without a permit
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`and without complying with applicable hazardous waste regulations issued by EPA and the State
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`of Wisconsin. More specifically, WM accepted and disposed of electric arc furnace dust
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`contaminated with chromium, a known human carcinogen, at the Metro Landfill.
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`Jurisdiction and Venue
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`3.
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` This Court has jurisdiction over this action pursuant to 28 U.S.C. §§ 1331, 1345,
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`and 1355 and 42 U.S.C. § 6928(a) and (g).
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`4.
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`Venue is proper in this Court pursuant to 42 U.S.C. § 6928(a) and 28 U.S.C.
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`§§ 1391 and 1395 because the violations at issue occurred in this judicial district, WM operates in
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`this judicial district, and the Metro Landfill is located within this judicial district.
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`Notices
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`5.
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`6.
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`On July 10, 2013, EPA issued a Notice of Violation (“NOV”) to WM.
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`EPA has provided notice of this civil action to the State of Wisconsin as required
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`by RCRA § 3008(a), 42 U.S.C. § 6928(a).
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`Authority
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`7.
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`Authority to bring this action is vested in the United States Attorney General by
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`RCRA § 3008(a), 42 U.S.C. § 6928(a), and by 28 U.S.C. §§ 516 and 519.
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`Parties
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`8.
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`The United States is acting through the Attorney General of the United States and
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`on behalf of the EPA.
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`9.
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`WM is incorporated in the State of Wisconsin and is licensed to do business in
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`Wisconsin. WM is, and at all relevant times to this action has been, the owner and operator of the
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`Metro Landfill located at 10712 South 124th Street, Franklin, Wisconsin 53212.
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`10. WM is a “person” as defined by 42 U.S.C. § 6903(15) and Wisconsin
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`Administrative Code, Natural Resources (“Wis. Admin. Code, NR”), Section 660.10(90).
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`11. WM is the owner and operator of the Metro Landfill, which is a “facility” within
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`the meaning of 40 C.F.R. § 260.10 and Wis. Admin. Code, NR, Section 660.10(43).
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`Statutory and Regulatory Background
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`RCRA Enforcement
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`12.
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`RCRA establishes, among other things, a comprehensive “cradle-to-grave”
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`regulatory program for the management and disposal of solid and hazardous waste that is
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`administered by the EPA and the states.
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`13.
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`Subchapter III of RCRA, 42 U.S.C. §§ 6921-40 (commonly known as “Subtitle
`
`C”), requires EPA to issue regulations that establish permitting and performance standards
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`applicable to facilities that generate, transport, treat, store, or dispose of hazardous wastes.
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`Together, Subtitle C and its implementing regulations, which are codified at 40 C.F.R. Parts 260
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`through 279, comprise EPA’s RCRA hazardous waste program.
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`14.
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`Pursuant to Section 3006 of RCRA, 42 U.S.C. § 6926, the Administrator of EPA
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`may authorize a state to administer the RCRA hazardous waste program in lieu of the federal
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`program when the Administrator finds that the state program meets certain conditions. Any
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`violation of regulations promulgated pursuant to Subtitle C or any state provision authorized
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`pursuant to Section 3006 of RCRA constitutes a violation of RCRA, subject to the assessment of
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`civil penalties and injunctive relief as provided in Section 3008 of RCRA, 42 U.S.C. § 6928.
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`15.
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` The Administrator of EPA granted the State of Wisconsin final authorization to
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`administer a state hazardous waste program in lieu of the federal government’s hazardous waste
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`program effective January 31, 1986. See 51 Fed. Reg. 3783 (January 31, 1986).
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`16.
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`The State of Wisconsin, through its Department of Natural Resources (“DNR”),
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`has adopted regulations governing hazardous waste. These regulations are codified in the
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`
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`Wisconsin Administrative Code, Department of Natural Resources, Chapters 660 through 679.
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`Unless otherwise specified, DNR has adopted and incorporated into its hazardous waste
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`regulations all the federal regulations cited in this complaint.
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`17.
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`Notwithstanding EPA’s authorization of Wisconsin’s hazardous waste program,
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`Section 3008 of RCRA, 42 U.S.C. § 3008(a), provides for federal enforcement of RCRA and the
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`implementing regulations adopted by EPA and DNR.
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`18.
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`Pursuant to RCRA and the Federal Civil Penalties Inflation Adjustment Act of
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`1990, as amended by the Debt Collection Improvement Act of 1996 and the Federal Civil Penalties
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`Inflation Adjustment Act Improvements Act of 2015, 28 U.S.C. § 2461 note: Pub. Law No. 114-
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`74, § 701, 129 Stat. 39 (2015), RCRA statutory penalties have been adjusted for inflation through
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`40 C.F.R. § 19.4. The applicable penalties are:
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` $32,500 per day per violation for violations occurring from March 16, 2004
`through January 12, 2009;
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` $37,500 per day per violation for violations occurring from January 13, 2009
`through November 2, 2015; and
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` $72,718 per day per violation for violations occurring after November 2,
`2015.
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`RCRA Regulation of Hazardous Waste Disposal
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`19.
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`Under the RCRA hazardous waste program, hazardous waste is defined as, inter
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`alia, a solid waste that exhibits any of the characteristics of hazardous waste identified in Subpart
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`C of 40 C.F.R. Part 261.
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`20.
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`Subject to certain exceptions not applicable here, a solid waste is any discarded
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`material. See 40 C.F.R. § 261.2(a)(1). A material is discarded if, for example, it has been
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`abandoned by being disposed of. Id. at § 261.2(b)(1).
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`21.
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`A solid waste exhibits the “characteristic of toxicity,” and therefore constitutes a
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`hazardous waste, if it contains any of the contaminants listed in 40 C.F.R. § 261.24 at or above the
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`concentrations specified in that regulation.
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`22.
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`As relevant here, 40 C.F.R. § 261.24 provides that a solid waste constitutes a
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`hazardous waste if the chromium in the waste, using the Toxicity Characteristic Leaching
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`Procedure test method, exceeds a concentration of five milligrams per liter (5.0 mg/L). Such
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`chromium-contaminated hazardous waste has been assigned EPA hazardous waste number D007.
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`23.
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`Hazardous wastes such as chromium-contaminated hazardous wastes are subject to
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`extensive regulation pursuant to RCRA and the EPA and DNR’s implementing regulations.
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`24.
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`Subject to certain exceptions not applicable here, RCRA prohibits the disposal of
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`chromium-contaminated hazardous waste in land. See 40 C.F.R. § 268.34(a); Wis. Admin. Code,
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`NR § 668.34(1).
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`25.
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`RCRA also prohibits any person from operating any facility that treats, stores, or
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`disposes of hazardous waste, including chromium-contaminated hazardous waste, except in
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`accordance with a permit. 42 U.S.C. § 6925(a); 40 C.F.R. § 270.1(c); Wis. Admin. Code, NR
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`§ 670.001(3).
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`26.
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`In addition, even if a person obtains a permit, the person obtaining the permit to
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`treat, store, or dispose of hazardous waste must thereafter comply with the requirements of the
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`permit, including minimum technology requirements, operational requirements, groundwater
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`monitoring requirements, and closure requirements.
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`5
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`General Allegations
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`27.
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`At all times relevant to this action, WM’s Metro Landfill accepted several forms of
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`industrial waste from a steel casting foundry, the Maynard Steel Casting Company (“Maynard
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`Steel”), located in Milwaukee, Wisconsin.
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`28.
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`As part of its steel casting operations, Maynard Steel operates four electric arc
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`furnaces (“EAFs”) to melt scrap steel into molten form. The EAFs are each equipped with
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`pollution control systems that are designed to filter out and capture particulate matter in the
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`emissions. Maynard Steel then transported this particulate matter, known as EAF baghouse dust,
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`to WM for disposal.
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`29.
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`Laboratory testing conducted in October 2009, and testing thereafter, showed that
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`Maynard Steel’s EAFs produced dust containing the chemical elements barium, cadmium, and
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`chromium. All three elements are identified as hazardous constituents in the RCRA implementing
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`regulations, 40 C.F.R. Part 261, Appendix VIII. Analysis of the EAF baghouse dust from each of
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`the four EAFs revealed levels of chromium greater than 5 mg/L. Therefore, the EAF baghouse
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`dust is a hazardous waste under Wis. Admin. Code NR § 661.24 and 40 C.F.R. § 261.24.
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`30.
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`Chromium is a known human carcinogen. In addition, workplace exposure to
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`chromium may cause lung cancer and damage to the nose, throat, lungs, eyes, and skin.
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`31.
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`Upon information and belief, and based on Maynard Steel’s production processes,
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`the dust produced by Maynard Steel’s EAFs exceeded the regulatory level of 5 mg/L for several
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`years prior to the October 2009 testing.
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`32. WM’s Metro Landfill is licensed by the Wisconsin DNR to accept non-hazardous
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`commercial and industrial wastes for disposal, but the WM Metro Landfill does not have a license
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`or permit authorizing it to treat, store or dispose of hazardous waste.
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`33.
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`From approximately 1999 through 2009, WM accepted hundreds of tons of
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`hazardous EAF baghouse dust in over 100 shipments from Maynard Steel. WM then disposed of
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`the dust throughout various locations within the Metro Landfill.
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`34.
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`During the timeframe that WM accepted Maynard Steel’s foundry waste, which
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`included EAF baghouse dust and other forms of foundry waste, WM was required to comply with
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`the terms of a written Special Waste Management Program plan (the “plan”) developed by WM to
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`satisfy the requirements of Wis. Admin. Code, NR § 506.09 (concerning waste characterization).
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`The plan required review and analysis, including analytical testing, of “special wastes” covered by
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`the plan every five years. The special wastes covered by WM’s plan included foundry wastes such
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`as those generated by Maynard Steel.
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`35. Maynard Steel engaged in multiple processes at its plant, and each of these
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`processes generated separate wastes. Contrary to the terms of the plan, WM failed to identify and
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`characterize separately the multiple special waste streams that WM accepted for disposal from
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`Maynard Steel.
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`36.
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`Instead, WM erroneously treated all of the special waste it accepted from Maynard
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`Steel as a single special waste. WM thus failed to perform any specific analysis, including any
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`analytical testing, of Maynard Steel’s EAF baghouse dust at any time since 1990.
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`37.
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`In 2006, moreover, WM granted Maynard Steel a variance from the plan’s
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`analytical testing requirement based on the unsubstantiated and erroneous conclusion that the
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`special waste from Maynard Steel had “been tested numerous times,” there had been “no changes
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`to the process” and that “no testing is necessary.” As a result, hundreds of tons of hazardous waste
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`continued to flow unabated into the Metro Landfill until the end of 2009.
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`7
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`Claims for Relief (Illegal Storage and Disposal of Hazardous Waste)
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`38.
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`39.
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`Paragraphs 1-37 of this Complaint are re-alleged and incorporated by reference.
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`RCRA § 3005(a), 42 U.S.C. § 6925(a), and 40 C.F.R § 270.1 (c) prohibit the
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`treatment, storage, or disposal of hazardous waste by any person who does not have a hazardous
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`waste permit.
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`40. Wis. Admin. Code NR § 670.001(2) further prohibits the treatment, storage, or
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`disposal of hazardous waste by any person who has not applied for and received a hazardous waste
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`license. Wis. Admin. Code NR § 670.001(3) requires owners and operators of hazardous waste
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`management units to have licenses during the active life of a hazardous waste management unit.
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`41.
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`On at least the following dates, the Defendant improperly disposed of and stored at
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`WM’s Metro Landfill hazardous waste generated by Maynard Steel EAFs, without having applied
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`for or received a hazardous waste license or permit, in violation of Wis. Admin. Code NR §§
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`670.001(2) and (3), RCRA § 3005(a), 42 U.S.C. § 6925(a), and 40 C.F.R. § 270.1(c):
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`Claim No
`
`Date of Initial
`Disposal
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`Description of Waste
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`
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`
`
`
`
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`
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`
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`May 1, 2009
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`May 13, 2009
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`June 10, 2009
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`July 6, 2009
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`July 22, 2009
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`August 6, 2009
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`September 16, 2009
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`September 30, 2009
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`October 22, 2009
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`Approximately 16 tons of dust in bags from
`Maynard Steel EAFs and other operations
`Approximately 14 tons of dust in bags from
`Maynard Steel EAFs and other operations
`Approximately 14 tons of dust in bags from
`Maynard Steel EAFs and other operations
`Approximately 15 tons of dust in bags from
`Maynard Steel EAFs and other operations
`Approximately 7.5 tons of dust from EAF No. 7
`Approximately 17 tons of dust in bags from
`Maynard Steel EAFs and other operations
`Approximately 11.5 tons of dust in bags from
`Maynard Steel EAFs and other operations
`Approximately 10.5 tons of dust in bags from
`Maynard Steel EAFs and other operations
`Approximately 14 tons of dust in bags from
`Maynard Steel EAFs and other operations
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`
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`Claim No
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`Date of Initial
`Disposal
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`10
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`November 10, 2009
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`
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`Description of Waste
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`Approximately 14 tons of dust in bags from
`Maynard Steel EAFs and other operations
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`42.
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`Upon information and belief, on additional days, the Defendant received and
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`improperly stored and disposed of at WM’s Metro Landfill hazardous waste generated by Maynard
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`Steel, without having applied for or received a hazardous waste license or permit, in violation of
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`Wis. Admin. Code NR §§ 670.001(2) and (3), RCRA § 3005(a), 42 U.S.C. § 6925(a), and 40
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`C.F.R. § 270.1(c).
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`43.
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`All of the hazardous waste referenced in this complaint remains at the Metro
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`Landfill and continues to be stored there improperly. The environmental harm from the disposal
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`and storage continues to this day.
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`44.
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`As provided in RCRA § 3008(g), 42 U.S.C. § 6928(g), the violations in this claim
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`subject Defendant to injunctive relief and civil penalties in the amounts set forth in Paragraph 18.
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`PRAYER FOR RELIEF
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`WHEREFORE, based upon the allegations set forth above, the United States requests that
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`this Court:
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`1.
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`Order such injunctive relief as is necessary to compel Defendant to comply with
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`the RCRA, 42 U.S.C. § 6901 et seq., its implementing regulations, and any permits issued to the
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`Defendant pursuant to the statute;
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`2.
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`Assess a civil penalty against Defendant for each day of each separate violation of
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`the RCRA;
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`3.
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`4.
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`Award Plaintiff its costs of this action; and,
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`Grant such other relief as the Court deems just and proper.
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`Dated this 1st day of July, 2020.
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`Respectfully submitted,
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`
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`
`
`KAREN S. DWORKIN
`Deputy Section Chief
`Environmental Enforcement Section
`Environment & Natural Resources Division
`
`MATTHEW D. KRUEGER
`United States Attorney
`Eastern District of Wisconsin
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` s/ Chris R. Larsen
`
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`CHRIS R. LARSEN
`Wisconsin State Bar No. 1005336
`MICHAEL A. CARTER
`State Bar No. 1090041
`Assistant United States Attorneys
`517 East Wisconsin Avenue
`Milwaukee, WI 53202
`(414) 297-1400
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`By:
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`OF COUNSEL: Mary T. McAuliffe
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` Associate Regional Counsel
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` United States Environmental
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` Protection Agency, Region 5
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