In 2006, the United Steelworkers sent “notices of intent to sue” to Giant Cement Holding, Inc., and two of its subsidiaries, Giant Cement Company and Giant Resource Recovery, due to environmental reporting violations discovered at the company’s co-located cement plant and hazardous waste storage facility in Harleyville, South Carolina. One such “citizen suit” involved the company’s cement plant, where hazardous-waste-derived fuel was used to fire a cement kiln. While the practice is permissible under the law, the workers inside the plant had no information about what toxins the hazardous waste contained or how to address exposures. To address that, workers first went to the company to ask for information about the hazards presented by the fuel. This concern was particularly heightened after a hose failed and a worker was drenched with the hazardous-waste-derived fuel. The company refused to provide the information about the waste or give the union safety representative access to any documentation provided by the hazardous waste generators that had sent their waste to the Giant facility.
The workers joined with their union representatives and attorneys to examine the facility’s chemical reporting under the Emergency Protection and Community Right-to-Know Act (EPCRA). Looking at prior Form R submissions available on EPA’s Toxic Release Inventory (TRI) website, they looked at TRI reporting data and discovered the company had not reported to EPA on a number of chemicals listed in the company’s Risk Management Plan (RMP). Although this by itself is not necessarily a violation, the workers felt confident the omissions rose to a violation given the volume of the hazardous-waste-derived fuel used at this particular facility. They sent the notice of intent to sue to the facility, EPA, and other parties required by law and initiated a citizen suit for violations of EPCRA Section 313 after the 60-day notice period lapsed.
After receiving documents from the company during the discovery phase of the lawsuit, the workers and their representatives discovered numerous other chemicals that had not been properly reported under the EPCRA TRI program. This raised the stakes significantly, as penalties under EPCRA were $32,500 per day per violation. After protracted litigation and the filing of cross summary judgment motions, the companies agreed to settle the case out of court with the Steelworkers. As a result, the union was able to ensure the settlement focused entirely on protecting the workers inside the plant and the surrounding community. Under the settlement, the company agreed to file 45 new TRI reports for hazardous chemicals. It also required Giant to make a $10,000 contribution per year for ten years to the local fire department to bolster first responder capabilities, required Giant Cement to install new laboratory equipment to analyze incoming hazardous waste, grant the union access to the on-site laboratory and hazardous waste documentation, and implement an environmental management system at the facility with periodic third party audits, and make the audits available to the Steelworkers.
Source: Joseph M. Santarella, Jr., Workers Have the Right-to-Know Too, Front Lines (United Steelworkers and Tony Mazzocchi Center), July 13, 2009, at 4.