Pennsylvania Record

Friday, February 28, 2020

Clean Air Council says U.S. Steel failed to report releases of hazardous substances in 2018-2019

Federal Court

By Nicholas Malfitano | Jan 9, 2020

Steel

PITTSBURGH – The Clean Air Council is engaged in litigation with U.S. Steel for continually failing to report releases of hundreds of thousands of pounds of hazardous pollutants into the air from three of its Mon Valley Works plants, though the company recently countered that all emissions were permitted.

On Aug. 26, the Pennsylvania-based Clean Air Council filed suit in the U.S. District Court for the Western District of Pennsylvania against U.S. Steel Corporation, of Pittsburgh.

According to its mission statement, Clean Air Council’s purpose is to “protect and defend the right to a healthy environment through sustainability and public health initiatives, using public education, community action, government oversight, and enforcement of environmental laws.”

The instant litigation concerns the Mon Valley Works, a steelmaking operation which includes three facilities located in Allegheny County: The Clairton Plant, the Edgar Thomson Plant and the Irvin Plant.

The suit says that a fire broke out on Christmas Eve 2018 at the Clairton Plant, which produces coke and coke oven gas to use as fuel in steelmaking processes. The fire damaged and shut down two key control systems that process coke oven gas to remove hazardous contaminants, such as hydrogen sulfide and benzene.

But despite these pollution controls being taken offline, U.S. Steel continued operating its coke ovens for more than three months. During this time period, it burned unprocessed, contaminant-laden coke oven gas as fuel and through flaring at the Clairton Plant, the Edgar Thomson Plant and the Irvin Plant, it is alleged.

“Based on U.S. Steel’s data and the groups’ estimates, this released hundreds of thousands of pounds of benzene (which can cause cancer), hydrogen sulfide (which can trigger asthma attacks and even death at high concentrations), and other hazardous pollutants,” the suit says.

Per the federal Comprehensive Environmental Response, Compensation, and Liability Act (also known as the “Superfund Law”), companies must immediately report unpermitted releases of hazardous substances to the National Response Center – which in turn notifies state and local agencies, and makes such reports available to the public.

Each failure to report a release is a violation of federal law, carrying a potential penalty of over $55,000 per violation.

The suit alleges that despite U.S. Steel’s released hazardous substances for over 100 days – between Dec. 24 and April 4 – in amounts exceeding lawful reporting thresholds, there was and is no record of a report by U.S. Steel to the National Response Center regarding the release of these hazardous substances.

Across the three plants, U.S. Steel could face a penalty of more than $50 million for its failure to report the releases.

U.S. Steel filed a motion to dismiss the complaint on Oct. 28, the crux of which was that Clean Air Council’s claims were “insufficient as a matter of law because the air emissions at issue are subject to air permits and control regulations under the federal Clean Air Act, which makes them exempt from the CERCLA reporting requirements at issue.”

“Certain types of releases are ‘federally permitted,’ which means that they are exempt from CERCLA’s reporting requirements. These ‘federally permitted’ releases generally fall into two categories: Those releases that are ‘in compliance with’ certain environmental permits and laws and those releases that are ‘subject to’ certain other environmental permits and laws,” per the motion.

“Importantly, air emissions releases that are ‘subject to’ Clean Air Act permits and control regulations are ‘federally permitted’ releases that are exempt from CERCLA’s reporting requirements. Because it is undisputed that U.S. Steel’s air emissions were subject to Clean Air Act permits and control regulations (which is the entire basis for a separate Clean Air Act lawsuit CAC has also filed against U.S. Steel based on the same underlying events), the emissions were exempt from CERCLA reporting, making CAC’s claims in this lawsuit insufficient as a matter of law.”

On Nov. 25, the Clean Air Council filed a response to U.S. Steel’s motion to dismiss, saying the release exemption pursued by the corporation involves examinations of fact which have not been completed and thus, the issue cannot be decided through a dismissal motion.

“Defendant erroneously asserts that its releases are ‘federally permitted releases’ subject to an exemption. In addition, defendant bears a heavy burden on a motion to dismiss, which defendant has not met. The federally permitted release exemption involves factual examinations that cannot be decided on a motion to dismiss,” the Clean Air Council said in its response.

“Further, releases of hazardous substances in excess of reportable quantities that resulted from a fire or that were in violation of a permit cannot escape CERCLA’s reporting requirements, especially when defendant has repeatedly reported this type of release. Finally, defendant’s interpretation that it is exempt from reporting its hazardous releases conflicts with the text, context, legislative history, and has been rejected by EPA adjudications that are to be afforded great deference.”

Two weeks later, on Dec. 9, U.S. Steel filed a reply brief to the Clean Air Council’s response, explaining that “the single issue that must be resolved in connection with U.S. Steel’s motion to dismiss is one of statutory interpretation: Whether the air emissions complained of by plaintiff Clean Air Council are exempt from CERCLA’s reporting requirements as ‘federally permitted releases’ because those emissions are ‘subject to’ permits or control regulations under a state implementation plan.”

“U.S. Steel respectfully requests that this Court utilize well-established principles of statutory construction to interpret the unambiguous phrase ‘subject to’ in accordance with its plain meaning,” the response read, in part.

“Because the air emissions complained of by CAC are ‘subject to’ U.S. Steel’s Title V Permits under the SIP, those releases are exempt from the reporting requirements of CERCLA 103(b). U.S. Steel respectfully requests that this Court grant its motion and dismiss with prejudice all claims asserted against U.S. Steel in the complaint.”

For failure to report releases of hazardous substances to the National Response Center, the plaintiff is seeking a long list of reliefs, including:

• A declaration that U.S. Steel is in violation of CERCLA by failing to report releases of hazardous substances above reportable quantities from its three Mon Valley Works facilities to the National Response Center;

• An order for U.S. Steel to immediately comply with CERCLA by reporting all releases of hazardous substances above reportable quantities to the National Response Center;

• An injunction for U.S. Steel from further violating CERCLA by requiring it to report all future releases of hazardous substances above reportable quantities to the National Response Center;

• An assessment of civil penalties against U.S. Steel;

• An award for plaintiff consisting of the cost of litigation, including reasonable attorneys’ fees, costs, and expert fees and expenses;

• Retaining jurisdiction to ensure U.S. Steel’s compliance with the Court’s decree; and

• Granting plaintiff such other relief as the Court deems just and proper.

The plaintiff is represented by Lisa W. Hallowell of the Environmental Integrity Project, in Washington, D.C.

The defendant is represented by James D. Mazzocco and Mark K. Dausch of Babst Calland Clements & Zomnir, in Pittsburgh.

U.S. District Court for the Western District of Pennsylvania case 2:19-cv-01072

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com

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U.S. SteelClean Air Council

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