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Swikar Patel | The Journal Gazette
Valbruna Steel says it is not responsible for property cleanup because the soil was tainted when the company bought it.

Steel firms in lawsuit over tainted soil

Each says it’s the other one’s job to pay for the cleanup

– For nearly a century, a steel mill operated on Taylor Street, just southwest of downtown.

And as one would expect after that much heavy industry on a particular piece of land for so long, the property was contaminated with a variety of chlorinated solvents, metals, and other contaminants, according to court documents.

Over the past few years, a lawsuit has been making its way through the U.S. District Court in Fort Wayne which, when settled or decided, will determine who is responsible for paying the costs to clean up the mess.

The property’s current owner, Valbruna Slater Steel Corporation, argues that, while it has been its job to minimize the damage done by the contamination, and to clean it up, the bill belongs to the site’s prior owners, Joslyn Manufacturing Company, which owned it for more than 50 years.

However, the site’s former owners argued that too much time has passed for Valbruna to make any claim for payment for cleanup work done in the past, currently and most definitely in the future.

It will now be up to a federal judge to decide.

Environmental issues

This is the story, according to court documents:

From 1928 until 1981, Joslyn Manufacturing Company operated a steel mill at the site which sits on the city’s near-west side, in the the 2300 and 2400 blocks of Taylor Street. Primarily, the company made rolls of stainless steel.

As part of that process, Joslyn generated numerous waste products – hydrochloric acids, sulfuric acids, nitric acids, metallic dust, numerous oils and greases and chlorinated solvents and PCB-containing oils.

Joslyn also stored numerous wastes on the site – including trichloroethylene and other chlorinated solvents, arsenic, nickel, lead, and PCBs.

And from 1943 to 1949, the company manufactured uranium rods as part of the Manhattan Project, which built the first atomic bomb.

While a 1949 survey of the site found radioactive contamination, in the mid-1990s the U.S. Department of Energy found the area met the standards for “protection of public health, safety and environment,” according a letter sent to Mayor Paul Helmke in 1994 and compiled as part of an 800-document file at the Indiana Department of Environmental Management.

For the past 30 years, though, Slater Steel and later Valbruna Slater Steel continued to battle a number of the other environmental concerns at the site.

One is Josyln’s surface impoundment – an in-ground structure made to contain hazardous waste – in the far northeast corner of the site. At that location, after excavation, Slater filled it with clean soil, put a concrete cap on it and implemented a groundwater monitoring program.

Another is the former owner’s waste pile, located at the northwest corner of the site.

According to the pending federal lawsuit filed in February 2010, the site’s soil and groundwater remain contaminated, and some of the contamination migrated off-site. In documents, Slater Steel contended it did nothing on the site that contributed to the contamination.

Repeatedly between 1988 and 1999, Slater asked Joslyn to compensate it for the money it spent on the cleanup, citing the documents signed when it purchased the property. Joslyn repeatedly denied those requests.

In May 2000, IDEM found a release of trichloroethylene, or TCE, which can cause nervous system problems if inhaled. Slater sued Joslyn in Allen Superior Court, looking for compensation.

Slater officials reached an agreement with IDEM in March 2002, but before the state could issue final approval for the cleanup and before Slater could begin the work, Slater Steel filed for bankruptcy and the property was purchased by Slater’s corporate parent, Valbruna, which made a $1 million commitment with IDEM to carry out the cleanup work, according to court documents.

Using a technique called environmental resistance heating in 2005, more than 93 percent of the TCE was eliminated.

But other environmental cleanup work continues, according to court documents.

The case proceeds

In January 2012, Joslyn’s attorneys asked U.S. District Judge Jon DeGuilio to rule against Valbruna, arguing the company’s claims were barred by the statute of limitations, asserting that some of the cleanup actions could only be billed for three to six years from the date of the work.

In March 2012, with both sides having thoroughly argued their case through paperwork, DeGuilio took the matter under advisement.

A year later, on March 21, DeGuilio ruled the case against Joslyn could proceed. He said that the federal statute of limitations is not triggered anew every time a barrel of contamination is removed from the site.

“The regulation is reflective of the reality that (superfund) cleanups often, like the one in this case, span several decades,” DeGuilio wrote. “They tend to evolve continuously, in phases from the initial detection of contamination to a final solution for the entire threatened site.”

So now, both sides continue to litigate the case.

Valbruna wants to know more about Joslyn’s historic chemical usage at the site, its current environmental compliance and what it did if and when it learned of contamination at the site when it owned it, according to a report filed with the court on Thursday.

Joslyn’s attorneys are asking for more information about investigation at the site, what Valbruna and Slater thought they would pay for the cleanup at the time they acquired the property and their knowledge of contamination at the site.

All that information, and much more, must be exchanged between the sides over the next year.

And a 10-day bench trial is possible, but not until September 8, 2014.