PITTSBURGH—Following a June 30 hearing, presiding Judge W. Scott Hardy of the U.S. District Court sided with NELC Attorney Matthew Donohue and affirmed the public’s right of access to exhibits filed with the court, ensuring that a trove of documents detailing the poor maintenance practices and dangerous operating conditions at U.S. Steel’s Mon Valley Works facilities—including expert reports, internal economic analyses, insurance summaries, and third-party inspection reports—would not be shielded from public scrutiny.
Parties in complex civil litigation often enter court-enforced confidentiality agreements, but a party’s unilateral designation of a document as “confidential” is not absolute. When it comes time for the court to adjudicate elements of a case—such as the motions for summary judgment filed in NELC’s Clean Air Act lawsuit against U.S. Steel—a presumptive “right of public access” attaches to all materials submitted for consideration by the Court, including exhibits. As noted by the U.S. Court of Appeals for the Third Circuit, this right of access “promotes public confidence in the judicial system” and “diminishes possibilities for injustice, incompetence, perjury, and fraud.”
Just days before the July 1 deadline for NELC and U.S. Steel to file a number of important motions, U.S. Steel requested permission to attach a report from plaintiffs’ engineering expert as an exhibit “filed under seal,” i.e., out of public view. The report details myriad issues with U.S. Steel’s operation of its Pittsburgh-area facilities that compromise their ability to comply with pollution control laws. Judge Hardy denied U.S. Steel’s request to file the report under seal and emphasized that a presumptive right of access will attach to all documents filed in the case. In response, U.S. Steel simply eliminated the expert report as an exhibit to its motion.
However, having vindicated the right of access, NELC attorneys placed the expert report and myriad other documents on the public docket in August, when it opposed U.S. Steel’s motion. These documents suggest that the company risks public health and safety by choosing not to spend money on proper inspection and maintenance. They include:
- A 2015 presentation quoting the observation of U.S. Steel’s own maintenance employees that “everything is being run to failure.”
- An analysis by McKinsey & Company showing that, before a destructive fire knocked out pollution control equipment, U.S. Steel had cut its maintenance staffing at the Mon Valley Works by one third.
- Annual third-party Risk Consulting Reports that indicate that U.S. Steel failed for almost a decade to address warnings that vulnerable equipment could cause a plant-wide outage.
- Emails disclosing U.S. Steel’s discovery during post-fire repairs of piping rotted “Coke can thin” and on the verge of failing.
- Reports and photographs from a series of third-party inspections performed at U.S. Steel’s Clairton coke oven facility in 2020, detailing gas leaks, corrosion, and sagging and deformed pipes.