Gadsden Industrial Park, LLC, brought a taking claim, in the U.S. Court of Federal Claims, alleging that EPA took 92,500 cubic yards of kish, slag, and assorted scrap, which are byproducts of the steel-making process.  Gadsden alleged that the property was worth up to $6.7 million.

Gadsen’s taking claim arose from its allegations that it purchased the materials from the 761-acre site of a defunct steel mill at a bankruptcy auction. Following Gadsden’s purchase, in 2008 EPA contracted with MultiServ to remove materials at the site, including Gadsden’s materials. MultiServ sold 245,890 tons of material grossing more than $13.5 million.

A trial on liability was held in Birmingham, Alabama in July 2017. At trial, Gadsden had to prove as an element of its taking case that it possessed a cognizable property interest in the materials that EPA had removed and that EPA’s action resulted in a compensable taking. Following trial, the Court stated that there was “no question that the materials at issue—kish, slag, and assorted scrap—may constitute personal property for purposes of a taking claim.”  The Court further held that EPA had taken Gadsden’s personal property.

But the Court awarded only $755,494 for the taking of Gadsden’s slag (plus interest calculated from the date of taking, and reasonable costs and attorneys’ fees). The Court awarded no compensation for the other property taken by EPA, concluding that Gadsden had failed to provide “sufficiently reliable proof of what a willing buyer would have paid for the scrap and kish.”

Read Judge Bruggink’s full opinion here.