PITTSBURGH – U.S. Steel has deemed class action litigation from a Western Pennsylvania homeowner, which alleged its refinery plant in Braddock has generated pollutant byproducts which have affected the quality of life of area residents, as “at most, a claim for private nuisance.”
Alissa Finley (on behalf of herself and all others similarly-situated) of West Mifflin filed suit in the Allegheny County Court of Common Pleas on Nov. 1 versus USX Company (doing business as “U.S. Steel Corporation”) of Braddock.
“The defendant owns, operates and/or controls the steel facility, which is situated on 107 acres of land and surrounded by residential properties. The facility produces steel slabs, which are sent to defendant’s other steel facilities for further processing and refining or to consumers for commercial use. The systems used in manufacturing the steel slabs include blast furnaces, top-blown basic oxygen process vessels, metallurgy furnaces, vacuum degassers and slab casters,” the suit said.
“The byproducts generated by the defendant’s facility operations include the following: Dust; noxious odors and gases; flames, smoke and plumes; ash and soot; slag and iron/metallic particles. The facility has additional dust sources that contribute to the atmospheric particulate burden, such as vehicular traffic on paved and unpaved roads. This traffic consists of plant personnel and visitors, plant service vehicles and trucks hauling raw materials, steel products and waste materials. Materials are also transported by skip cars, bottom railroad dumps, front-end loaders, truck dumps and conveyor transfer stations.”
The suit added the facility has a track record of previous violations from the Allegheny County Health Department, with numerous Clean Air Act violations necessitating a $1.5 million fine being handed down against the defendant – and that the facility has failed to prevent and control its dangerous emissions.
“The invasion of plaintiff’s property by noxious odors and fugitive dust has interfered with plaintiff’s use and enjoyment of her property, resulting in substantial damages. For purposes of illustration, plaintiff noted that because of the noxious odors and fugitive dust emitted on her property she ‘cannot enjoy our home as we like’ and that some nights she ‘can’t breathe because the odor is so bad.’ Plaintiff’s property has been and continues to be physically invaded by noxious odors and fugitive dust,” the suit stated.
“The noxious odors and fugitive dust which entered plaintiff’s property originated from the facility, where both are generated as a result of defendant’s steel production process. A properly-operated, maintained and/or constructed steel plant will not emit noxious odors and fugitive dust into the surrounding residential areas. Defendant’s operation, maintenance, control and/or use of its facility has caused noxious odors and fugitive dust into the surrounding residential areas.”
As part of the putative class, the plaintiff seeks to join forces with any property owners from 2020 to the present located within a one-mile radius of the facility, who have been similarly-affected.
Counsel for both parties mutually filed a consent motion to transfer the case to the Allegheny County Court of Common Pleas’s Commerce and Complex Litigation Center on Nov. 25.
“Given the nature of the issues raised in this action, U.S. Steel seeks to have this action assigned to the Court’s Commerce and Complex Litigation Center. Because this action is a putative class action, it is presumptively assignable to the Center pursuant to Section A.1.7 of the Center’s guidelines. The class action judge has not yet assumed responsibility over this action. In addition, this action constitutes ‘Complex Litigation’ as defined in the guidelines, because (if it is not declared complex) it will in all likelihood require the involvement of more than one judge and the expenditure of a significant amount of judicial resources, and will benefit significantly from case management. This action is a putative class action involving numerous environmental tort claims and seeking injunctive relief, and the amount in controversy is alleged to be substantial,” the motion stated.
“Because of the complex nature of the environmental and procedural issues involved in a putative class action, this case is appropriate for assignment to the Center. This motion is being presented promptly: U.S. Steel was served on Nov. 14, 2022 and (by agreement of the parties) has until Jan. 13, 2023 to plead, move or otherwise respond to the complaint. Undersigned counsel for defendant, Paul Stockman, spoke with counsel for plaintiff, Nicholas Coulson, on Nov. 22, 2022, and exchanged follow-up email messages with attorney Coulson on Nov. 23, 2022, and plaintiff consents to the relief requested in this motion.”
UPDATE
U.S. Steel filed preliminary objections in the matter on Jan. 20, finding, in its own view, that the suit was insufficient on several grounds.
“Defendant denies any liability to Ms. Finley, or to the putative class, and will at the appropriate time show that their claims lack factual support or legal merit. For now, however, plaintiff’s allegations make out, at most, a claim for private nuisance. Nonetheless, plaintiff has added additional, unnecessary and duplicative claims and is seeking relief to which she is not entitled as a matter of law. This action should proceed, at most, solely as an action for compensatory damages sounding in private nuisance: Plaintiff’s claims for negligence and trespass all arise from the same underlying allegations as her nuisance claim, and are thus barred under Pennsylvania law. Plaintiff’s negligence claim is also precluded because she has not alleged any physical damage. Plaintiff’s claim for gross negligence is also precluded because Pennsylvania does not recognize separate causes of action for differing degrees of negligence,” the objections said.
“Plaintiff’s claim for public nuisance fails: Even if Pennsylvania allowed a private litigant to assert a public nuisance claim, plaintiff has failed to allege facts showing an injury different in degree and kind from those suffered by the public at large; indeed, by bringing an action on behalf of all neighboring residents, and alleging that all have suffered the same injuries, plaintiff has conceded the point. Plaintiff’s request for punitive damages is insufficient as a matter of law because the complaint falls far short of pleading facts that would establish the type of outrageous and malicious conduct that could warrant the imposition of exemplary damages.”
In closing, U.S. Steel argued that the Court should reject plaintiff’s effort to obtain certain unspecified injunctive relief, since it feels the plaintiff is “asking the Court to define the manner in which U.S. Steel must operate the facility, even though U.S. Steel’s activities are already subject to comprehensive regulation and oversight, including not only detailed permit terms, but also a consent decree between U.S. Steel, the United States, and the Allegheny County Health Department.”
“The governing permits, and the pending consent decree, reflect an exercise of discretion and expertise by the Environmental Protection Agency and ACHD regarding what precisely U.S. Steel must do to ensure compliance with applicable federal, state and local law. EPA’s and ACHD’s reasoned judgments include not only what steps must be taken, but also what measures need not or should not be required. As a result, any injunction that this Court could enter would, at best, duplicate existing laws, regulations and judgments; at worst, it would subject U.S. Steel to conflicting mandates. In either case, an injunction from this Court would deprive EPA and ACHD of their principal roles in regulating the Edgar Thomson Works, roles expressly conferred by governing law,” per the objections.
For counts of negligence, gross negligence, private nuisance, public nuisance and trespass by fugitive dust, the plaintiff is seeking compensatory damages, injunctive relief outside of that required by federal and state-issued air permits, punitive damages, pre- and post-judgment interest, such further relief and a trial by jury.
The plaintiff is represented by James E. DePasquale in Pittsburgh, plus Steven D. Liddle, Nicholas A. Coulson and Matt Z. Robb of Liddle Sheets Coulson in Detroit, Mich.
The defendant is represented by Paul K. Stockman and Jennifer A. Simon of Kazmarek Mowrey Cloud Laseter, also in Pittsburgh.
Allegheny County Court of Common Pleas case GD-22-013483
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com