on toxic metals. Plaintiffs Exhibit P-1 and P-1A.
ALC also delayed an upgrade of its 1973 wastewater treatment
plant at West Leechburg. There were 599 days of violation at two
outfalls between 1990 and 1993. Plaintiffs Exhibit P-2 and P-3.
PaDEP and ALC entered into a consent order in October 1993,
obligating ALC to fix the plant. Trial Transcript for 2/5/2001,
Doc. No. 319, at 111, 113. ALC ultimately spent about $2.6
million under the consent order to upgrade the plant. Proffer of
Gary Amendola at 6.
The company was aware of its violations of the Act, because it
had to report them on its monthly discharge monitoring reports
("DMRs") or, in the case of spills, on contemporaneous incident
reports. ALC's current Director of Environmental Affairs,
Deborah Calderazzo, testified that she knew the frequency with
which Vandergrift was violating its permit limits during the
years 1990-1994 and met often with management throughout this
period. Trial Transcript for 2/8/2001, Doc. No. 322, at 174-183.
Calderazzo's testimony is confirmed by "talking points"
written by then ALC Vice President Douglas Kittenbrink, the
current president of the company, for a series of presentations
to ALC staff in 1995. The January 1995 outline by Kittenbrink to
accompany presentations he made to ALC employees at West
Leechburg, Brackenridge, and elsewhere (Trial Transcript for
2/8/2001, Doc. No. 322 at 169-71) poses the question to ALC's
employees, "what is so important about compliance? We've never
had to worry about it before." (Emphasis added). Mr.
Kittenbrink's outline stressed increased agency enforcement,
increasingly punitive enforcement, and growth in criminal
prosecutions as key reasons to focus on environmental
The court also finds that ALC significantly increased
expenditures for spill prevention and control projects only in
1995 and 1996 when enforcement increased. ALC's annual spill
prevention and control spending was relatively low from 1990 to
1994, especially given ALC's record of spills, but more than
doubled in 1995 and more than quadrupled in 1996. Plaintiffs
Exhibit P-1085; Amendola Proffer at 18-19.
Indeed, it is especially difficult for the court to agree with
ALC's contention that it consistently had a proactive
environmental program when it vigorously argued in the liability
phase, and the jury expressly found, that its pH monitoring data
from its two acid rinse treatment plants was so unreliable that
the data could not show whether ALC's discharges of process
water to the river was below or above the permit limits for pH.
See, e.g., Trial Transcript for 1/25/2001, Doc. No. 313, at
155. Particularly in light of testimony regarding the
potentially toxic effect of discharges of wastewaters at extreme
pH, ALC's evidence of poor operation and maintenance of probes
that were installed to provide important information concerning
ALC's compliance with pH limits does not support ALC's claim
that it was proactive in the early to mid 1990's, or that its
treatment plants were well-operated and maintained. ALC
witnesses repeatedly pointed in the liability phase of the case
to "SEPs," or standard environmental procedures, implemented
only in 1996 and later and discussed in the 1995 Kittenbrink
outline, to claim that current maintenance procedures were
vastly improved from the early 1990's. Id. at 150-154.
In contrast to ALC's claims of a proactive program, Gregg
Eckstein, ALC's Director of Environmental Affairs until April
1994,*fn5 retained revealing internal documents and kept
handwritten notes concerning instances where he disagreed with
the company position concerning what steps to take to address
ongoing violations, and whether or not to report a violation.
These notes and documents, kept from the late 1980's through
1994, portray a corporate management and legal department that
is recalcitrant, reactive and loathe to fully disclose its
problems. The ALC portrayed in the Eckstein documents and
testimony for this period is more consistent with the company
described by the witnesses from the regulatory community,
summarized below, than with the proactive company described by
Lieutenant Commander John Meehan worked in the Pittsburgh
District of the United States Coast Guard from 1992 to 1995.
Commander Meehan testified that ALC's Brackenridge facility was
"in the highest echelon of risk in terms of the number of spills
that they were experiencing." Trial Transcript for 2/6/2001,
Doc. No. 320, at 18. He stated that spills at Brackenridge were
so common in 1993 and 1994 that he had directed his officers to
stop at the plant on their routine patrols. Id. at 10. Despite
the attention given to the Brackenridge facility by the Coast
Guard, the situation did not improve during this period:
I wouldn't say it was just the number of incidents,
but the fact that there hadn't been any progress made
in decreasing the frequency of these incidents. We
were still having problems after a couple of years up
there, and we didn't see anything proactive being
done to stop the oil spills.
Id. at 18. Commander Meehan stated that during his tour of
duty in Pittsburgh he was responsible for regulating 400
companies (id. at 23), including other steel companies that
operated their plants without ongoing oil sheens and spills.
Id. at 44. ALC was at "the lowest rung" in terms of the
company's willingness to conclusively address its record of
spills and discharges. Id. at 22.