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West Virginia District Court Holds Reused Water and Condensate Are Not Resource Conservation and Recovery Act (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.

[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).

Copyright © 2023 by Morgan, Lewis & Bockius LLP. All Rights Reserved.National Law Review, Volume IV, Number 36

About this Author

Kenneth Komorski, Environmental and energy attorney, Morgan Lewis

With more than 25 years of experience practicing environmental, oil and gas and energy law, and a previous career as an environmental engineer and manager, Kenneth S. Komoroski has advised and represented manufacturers and distributors of a wide variety of products and services, including steel, specialty steel, wood treating, petroleum products, coke and coal tar, organic and inorganic chemicals, electric power, powdered metals, magnetic products, coatings, metal products, aluminum and oil and gas. Ken counsels these businesses on environmental compliance, permitting,...

Glen Stuart, Morgan Lewis, Energy Attorney

Recognized by several publications for his work, Glen R. Stuart litigates complex commercial cases, with an emphasis on environmental and energy disputes, governmental investigations, and toxic torts. His clients span a variety of industries, including the pharmaceutical, chemical, and utility industries. In addition to his work before US state and federal courts, Glen represents utilities before government agencies, including the Pennsylvania Public Utility Commission and the Federal Energy Regulatory Commission (FERC).

Daniel Carmelli, Litigation Lawyer, Morgan Lewis

Daniel Carmeli represents clients across a variety of legal issues, with particular focus on environmental, energy, construction and financial matters. He has been part of defense teams for weeks- and months-long trials relating to federal enforcement actions, citizen suits, and commercial disputes. Daniel advises clients on regulatory matters, highlighting potential legal risks and helping them to make crucial business decisions. He also advises on administrative procedures connected to permitting, approvals, and other governmental notifications. ​

Matthew Sepp, Litigation lawyer, Morgan Lewis, Energy Lawyer
Senior Attorney

Matthew H. Sepp represents clients in a wide range of complex commercial litigation matters, with an emphasis on disputes in the energy and construction industries. His experience includes matters before the Environmental Hearing Board, state and federal courts, and administrative boards. Matthew also has co-authored several articles on emerging oil, gas, and environmental developments.​​