NEW CUMBERLAND-A U.S. District Court judge has approved a negotiated settlement that resolves the federal government's civil case against New Cumberland metal recycler AL Solutions Inc.
The case stems from a December 2010 explosion at the South Chester Street plant that killed three AL Solutions employees-brothers James Eugene Fish, 38, and Jeffrey Scott Fish, 39, both of New Cumberland, and Steven Swain, 27, of Weirton. The Fish brothers were pronounced dead at the scene, and Swain succumbed to injuries he suffered in the blast four days later in a Pittsburgh hospital.
The accident triggered investigations by the U.S. Environmental Protection Agency, the Occupational Safety and Health Administration and the U.S. Chemical Safety Board-as well as wrongful death lawsuits by the Fish brothers' estates and the family of Steven Swain.
The entrance to the AL Solutions facility on South Chester Street in New Cumberland. The company has significantly scaled back its New Cumberland operations now that it has opened a new processing facility in nearby Hanover Township, Pa. (Photo by Stephen Huba)
The federal settlement brings some closure to an incident that shook New Cumberland-literally and figuratively-more than three years ago, even as the lawsuits continue to make their way through Hancock County Circuit Court.
"We intend to push the case towards trial," said Weirton attorney Mark Colantonio, who, with Robert Fitzsimmons, is representing the Fish family. Attorney Eric Frankovitch is representing the Swain family.
The settlement, recently signed by U.S. District Court Judge Frederick P. Stamp Jr. of the Northern District of West Virginia, resolves a series of Clean Air Act charges stemming from the accident and filed jointly by EPA and OSHA.
"Our combined efforts have resulted in settlements that provide a comprehensive framework for the company to build cutting-edge safeguards into its processes in order to protect people and the environment," said EPA Regional Administrator Shawn M. Garvin.
Among other things, the settlement requires AL Solutions to process or dispose of approximately 10,000 drums, or 2.4 million pounds, of titanium and zirconium being stored at its New Cumberland and Weirton facilities by December.
AL Solutions, whose corporate offices remain in New Cumberland but whose operations mainly are in Burgettstown, Pa., and Washington, Mo., recycles titanium and zirconium raw materials for use as alloying additives by aluminum producers. The materials are formed into Ty-Gem and Zy-Gem compacts, or pucks, using a proprietary process, according to the company's website.
Company officials declined to be interviewed for this story.
On Dec. 9, 2010, the Fish brothers and Steven Swain were working with zirconium powder in the plant when it ignited and exploded. The explosion occurred when "titanium and zirconium powder reacted, causing the release of hydrogen gas which ignited and caused zirconium and titanium fines, dust and swarf to combust with great force," according to a separate complaint filed by the West Virginia Department of Environmental Protection.
Both substances are considered "highly flammable and explosive" by the EPA, which noted in the settlement documents that they are "easily ignited under certain conditions, specifically when in dust form."
In October 2010, about six weeks before the fatal accident, and in subsequent inspections, the state DEP focused on what it considers the illegal storage of hazardous waste at the New Cumberland and Weirton facilities. The raw material is stored on-site, in 55-gallon drums, under water or oil to minimize the chance of spontaneous combustion, according to the DEP.
"The illegal storage of drums of titanium and zirconium swarf and related materials constitute an 'imminent and substantial endangerment' to public health, safety and the environment," the DEP complaint said.
DEP inspectors alleged the following violations by AL Solutions:
* Exceeding the 90-day limit for storage of hazardous waste;
* Failure to properly label drums with the words "hazardous waste";
* Failure to mark drums with accumulation start dates;
* Storage of hazardous waste in drums in poor condition;
* Failure to maintain adequate aisle space between drums;
* Difficulty in conducting weekly inspections of the drum storage area because of inadequate aisle space;
* Storage of drums less than 50 feet from the facility boundary; and
* Failure to submit an approved plan of corrective action.
AL Solutions contends that the material on-site is not hazardous waste but "valuable feedstock" that is awaiting processing and recycling at its other facilities, according to a memorandum filed by Civil & Environmental Consultants Inc., of Pittsburgh.
DEP spokesman Tom Aluise said all the storage violations will be resolved through the EPA/OSHA settlement.
"There was a disagreement over the question of whether the materials were hazardous waste; however, it was resolved because (AL Solutions) agreed to remove all wastes by December 2014," Aluise said.
According to the settlement, AL Solutions must:
* Reduce its titanium store in New Cumberland according to a schedule that will reduce it to zero by December.
* Limit its acceptance of any new zirconium without prior EPA approval and limit its acceptance of new titanium until 75 percent of its inventory has been properly processed or disposed of.
* Ship all zirconium for disposal or processing within 90 days of the effective date of the consent decree, which is Feb. 4.
* Implement adequate safety procedures for the storage area in New Cumberland, including hydrogen monitoring and forward-looking infrared heat detection to identify volatile drums and prevent fires and explosions.
* Pay a $100,000 civil penalty to the EPA and a $97,000 penalty to the U.S. Department of Labor.