United States: Court Holds Reused Water And Condensate Are Not RCRA Solid Or Hazardous Waste

U.S. district court rules that coke oven gas condensate is not subject to federal waste rules when reintroduced into the coke-making process.

On January 14, the U.S. District Court for the Northern District of West Virginia issued an order in United States v. Mountain State Carbon, LLC,1 granting the defendant's summary judgment motion and rejecting the United States' claim that the defendant had violated the Resource Conservation and Recovery Act (RCRA) by failing to manage as a hazardous waste coke oven gas condensate (COGC) reused in the coke-making process.2

In so holding, the court agreed with defendant Mountain State Carbon (MSC) that coke oven gas condensate is not a RCRA waste because it is reused and not discarded. Chief Judge John Preston Bailey wrote that "COGC is not abandoned through disposal or accumulated as is required to be a solid waste."3 Because the reused COGC is not a solid waste,4 it cannot be considered to be a RCRA hazardous waste. Judge Bailey further explained that, even if COGC were a solid waste, it would still be exempt from RCRA because MSC beneficially recycles the COGC as an ingredient in an industrial process to make a product.


MSC operates a coke-making facility in Follansbee, West Virginia. Coke is produced by heating metallurgical coal at high temperatures. The coke is then used as an essential ingredient in steelmaking operations. In the process of "coking" the coal, coke oven gas is also produced. As the coke oven gas is cooled, various products are separated from the gas and the remainder of the coke oven gas is used as a fuel or must be flared. COGC is mostly water that also contains useful constituents. COGC is returned to the coke-making process, where it is used to cool and condition coke oven gas and to recover the constituents.

In 2012, the United States sued MSC for alleged violations of West Virginia air regulations and RCRA. In RCRA claims, the United States alleged that MSC had failed to handle COGC as a hazardous waste pursuant to RCRA. Under RCRA, a solid waste is a material that is discarded by abandonment, such as disposal, burning, incineration, accumulation, storage, and treatment.5 However, discarded materials may be exempt from the regulation if they are recycled by being (i) used or reused as ingredients in an industrial process to make a product, provided the materials are not being reclaimed; (ii) used or reused as effective substitutes for commercial products; or (iii) returned to the original process from which they were generated, without first being reclaimed or land disposed.6

District Court's Opinion

In Mountain State Carbon, the United States argued that COGC is a solid waste because it is discarded through accumulation and storage in drip legs. MSC countered that the COGC's brief presence in the drip legs does not rise to the level of accumulation or storage. MSC also argued that, even if COGC were discarded in the drip legs, it was being returned to the process in satisfaction of the recycling exemption. The United States also argued that a material that is mostly water cannot be and is not being legitimately recycled.

The district court rejected the government's claims and agreed with MSC. It held that COGC is not a solid waste, noting the COGC's short duration in the drip legs in between daily collections. The court further declined to classify COGC as "hazardous waste" under RCRA because it is not a RCRA solid waste. Additionally, the court found that, even if COGC were a solid waste, MSC's management of it satisfies the recycling exemption for materials reused or used in an industrial process to make a product. In support of its determination, the court pointed to COGC's role in cooling and conditioning the coke oven gas.


The court's order represents a significant win for an industry hit hard by the recession. Recycling of COGC is a common practice in the coke-making industry because it is efficient and yields valuable by-products, which translate into reduced costs and increased revenue. The case is scheduled for trial in May 2014, at which time the court will address the remaining air issues relating to opacity and desulfurization emissions.


If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers:



1. No. 5:12-CV-19 (N.D. W. Va. Jan. 14, 2014), available here.

2. The court denied the United States' cross-motion for summary judgment on the same claim.

3. Mountain State Carbon, slip op. at 19.

4. RCRA broadly defines the term "solid waste" to include liquid, solid, semi-solid, and contained gaseous wastes.

5. 40 C.F.R. § 261.2.

6. 40 C.F.R. § 261.2(e).

This article is provided as a general informational service and it should not be construed as imparting legal advice on any specific matter.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions