PITTSBURGH – A state court judge has decreed that preliminary objections from U.S. Steel as to litigation surrounding its refinery plant in Braddock and its alleged generation of pollutant byproducts are largely overruled with one exception, that being its objection toward the plaintiff seeking punitive damages.
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, 2022 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, 2022.
U.S. Steel then 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.
Plaintiff counsel filed a response to the preliminary objections on July 10, which stated that all parties agreed on the private nuisance claim, but that the Court should allow the plaintiff to also proceed on her “separate and additional causes of action for negligence, public nuisance and trespass resulting from the defendant’s alleged odor and dust emissions into her property and community.”
The plaintiff argued that they should, based on similar rulings in Ross v. U.S. Steel Corp. and Frederick v. Harsco Corp.
“Defendant’s request for partial dismissal illustrates that the problem in this case is not with the pleadings; it is with defendant’s alleged conduct in causing noxious off-site emissions. Defendant is a well-documented polluter that has been found in violation of its legal obligations by the Allegheny County Health Department for ‘excessive visible emissions’ and ‘failure to maintain equipment’, which led to litigation and a consent decree. Defendant’s emissions have given rise to numerous complaints of odor and dust by putative class members to the ACHD, and more than 70 households have already reached out to plaintiff’s counsel to express interest in this lawsuit,” the response brief opposing the objections stated.
“Plaintiff Alissa Finley reported to plaintiff counsel that, due to defendant’s odor and dust emissions, her family ‘can NOT enjoy our home as we like’ and that some instances are so severe that she ‘can't breathe because the odor is so bad.’ The substantive factual allegations of odor and dust physically invading plaintiff and putative class properties are specific, non-conclusory and independently support each of the claims raised in the complaint. Accordingly, as this Court has held in similar cases, defendant’s preliminary objections should be overruled at this early stage, and plaintiff should be permitted to proceed based on the claims and damages alleged in the complaint.”
UPDATE
On July 18, Allegheny County Court of Common Pleas Judge Andrew Szefi largely overruled the preliminary objections, with the exception of the demand for punitive damages.
“Upon consideration of defendant’s preliminary objections and any response thereto, it is hereby ordered, adjudged, and decreed that defendant’s preliminary objections regarding plaintiff’s request for punitive damages is sustained, without prejudice to plaintiff’s ability to seek to amend following discovery. All other preliminary objections are overruled,” Szefi ordered.
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