U.S. Steel faces lawsuit over Clean Air Act violations in Pittsburgh

U.S. Steel’s Clairton Coke Works plant in Clairton, Pa.

PITTSBURGH—On Feb. 13, National Environmental Law Center (NELC) attorneys notified the United States Steel Corporation (U.S. Steel) of their intent to file suit for violations of the Clean Air Act. NELC, representing PennEnvironment and the Clean Air Council, took the action following a December 2018 fire at U.S. Steel’s Clairton Mill Works, which destroyed an important part of the plant’s pollution controls.

Rather than suspend its production until pollution controls could be replaced, the company chose to continue its operations at nearly full capacity. As a result, local air quality monitors have registered high levels of pollutants and residents have reported increased respiratory problems.

Clairton Works is the largest byproducts coke plant in North America. The facility bakes millions of tons of coal at high temperatures in large ovens to produce “coke,” a hard, porous material used in the steel-making process. Baking coke generates highly toxic coke oven gas (COG). COG can be reused in the steelmaking process as fuel. However, because COG contains dangerous chemicals, the Clean Air Act requires that COG be routed through pollution control systems to remove sulfur and other pollutants before it can be reused or flared into the atmosphere. The December fire at the Clairton Works damaged the desulfurization unit, where pollutants are removed from the COG. The desulfurization unit was offline for almost four months after the fire.

Nevertheless, U.S. Steel continued to bake coke in the ovens at Clairton Works without the required pollutant removal.

During that period, U.S. Steel used “raw,” untreated COG as part of the fuel mix at Clairton Works and two of its nearby facilities, the Irvin and Edgar Thomson plants. When uncleaned COG was burned as fuel, toxic chemicals were released into the air. The COG that was not used as fuel was burned off directly into the air at flaring stations, which also released toxicants. In order to protect the surrounding community’s air quality, U.S. Steel’s operating permits prohibit using or flaring uncleaned COG.

“U.S. Steel chose to harm the community by emitting huge amounts of pollutants rather than harm its bottom line by halting production,” said NELC Attorney Maggie Nivison. “U.S. Steel should not pocket those profits.”

More than 100,000 people live within five miles of the three facilities and were placed at daily risk from the increased air emissions. Even when pollution controls are fully operational, children in the area experience higher rates of asthma than children in other parts of Pennsylvania. A pediatrician conducting a local asthma study reported that many of these children suffered more serious asthma symptoms during the period when the pollution controls were offline. Nearby air pollution monitors have recorded exceedances of Clean Air Act health limits for sulfur dioxide and particulate matter, and the Allegheny County Health Department has issued health advisories to residents in more than 20 neighboring towns, warning them to limit outdoor activity because it is unsafe to breathe the air.

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Significant victory for clean air in Detroit

The sprawling Detroit Renewable Power incinerator that is set to close. Nearly 22,000 people live within a 1.5-mile radius of the incinerator—and its closure is a victory for their health.

DETROIT—On March 27, Detroit Renewable Power made the stunning announcement that, as of that very day, it was permanently shutting down one of the nation’s largest municipal trash incinerators located in the heart of downtown Detroit.

The move elicited instant praise from every corner of the city—from excited and relieved neighborhood residents and environmental activists who had worked for decades to reduce the incinerator’s odors and pollution, and from Detroit’s city officials and public opinion leaders.

Senior Attorney Josh Kratka believes NELC’s Jan. 29 notice of intent to sue the incinerator played a major role in the shutdown decision.

“As required under the Clean Air Act, NELC sent a letter to company officials on behalf of Environment Michigan and the Ecology Center providing 60 days warning that the groups planned to file a federal lawsuit to address hundreds of air pollution violations at the incinerator,” Kratka explained.

“Our 60-day deadline was due to expire just five days after Detroit Renewable Power announced the shutdown.”

The looming federal lawsuit, with its threat of nearly $100,000 per day in civil penalties, combined with a mandate from the state of Michigan to address the gar- bage stench and constant pressure from well-organized community residents, finally forced the company’s hand.

As set out in the groups’ 60-day notice letter, the incinerator’s own reporting showed five years’ worth of repeated incidents of carbon monoxide emissions above legal limits. Carbon monoxide pollution contributes to the formation of ground-level ozone, which is linked to increased rates of asthma and other respiratory problems.

In addition, excessive carbon monoxide emissions from an incinerator show that there is incomplete combustion of the trash being burned. This is an extremely serious matter, as it causes elevated emissions of toxic and cancer-causing pollutants, such as benzene, toluene, formaldehyde and dioxins, which are products of incomplete combustion.

A company official told reporters that it would simply be too costly to bring the aging incinerator into compliance with its legal pollution limits. Arrangements are now being made to instead dispose of the trash at regulated landfill sites, which will remove a clear human health hazard from inner-city Detroit.

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NELC opposes Casella Waste Systems’ attempt to delay landfill case

Casella Waste Systems’ landfill in Bethlehem, N.H., next to the Ammonoosuc River (to the left).

NASHUA, N.H.—On March 19, Casella Waste Systems filed a motion in United States District Court to halt proceedings in NELC’s Clean Water Act suit, which seeks to require the company to obtain a permit governing the discharge of pollutants from the solid waste landfill operated by Casella and its subsidiary in Bethlehem, New Hampshire.

The lawsuit, filed on behalf of Toxics Action Center and the Conservation Law Foundation in May 2018, alleges that contaminated leachate from the landfill is being conveyed, without treatment, to the Ammonoosuc River via a discharge channel on the defendants’ property. Monitoring of the landfill leachate has shown the presence of heavy metals, a carcinogenic industrial solvent and various polyfluorinated compounds.

Last summer, Casella had asked the court to dismiss the case in its entirety, arguing that pollutants that travel through groundwater are outside the purview of the Clean Water Act. United States District Court Judge Paul Barbadoro denied the motion. In his decision, Judge Barbadoro noted that this is not a case involving pollutants from a landfill that travel through the groundwater and enter the river from diffuse underground sources, but rather a case involving pollutants that leach into groundwater, emerge on the surface, and are then discharged to the river via the discharge channel. The Clean Water Act, he held, requires a permit for the conveyance of pollutants from a “point source,” and the Act includes a “channel” within its definition of point source.

Accordingly, Judge Barbadoro set the trial of the case for October of this year.

In its recent motion for delay, Casella makes essentially the same argument it lost in its motion to dismiss. Casella argues that the trial should be delayed until after the Supreme Court decides another case due to be argued before that Court this fall. The Supreme Court will examine whether discharges to bodies of water through groundwater, rather than through a point source, are covered by the Clean Water Act.

In our opposition to this motion, NELC attorneys noted that Judge Barbadoro had already ruled that the issue now before the Supreme Court is “completely unrelated” to the discharges for which the citizen groups seek to hold Casella responsible.

“We look forward to a denial of Casella’s motion, and to taking the case to trial in the fall,” stated NELC Litigation Director Chuck Caldart.

The Ammonoosuc River, which flows from Mount Washington in northwestern New Hampshire, is home to a wide variety of fish and plant life, and is a popular fishing and recreational resource in the region. The discharge permit that the lawsuit seeks to require would help ensure that the pollutants from the landfill are not discharged at levels that pose a risk to human health or aquatic species.

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Meet NELC’s newest attorney, Maggie Nivison

BOSTON—In January, NELC added attorney Maggie Nivison to our litigation team.

Maggie joined NELC after completing a fellowship with the American Civil Liberties Union of Massachusetts. She graduated cum laude from Georgetown University Law Center in 2017. While she was in school, Maggie worked with the Environmental Law & Justice Clinic at the Institute for Public Representation, where she represented community members fighting to save a public park in their hometown.

Maggie is excited to work at NELC because it has a proven record of creating positive change.

“As a child growing up in the Pacific Northwest, I had no idea what a privilege it was to breathe fresh, clean air,” Maggie said. “Joining NELC is my opportunity to help extend that privilege to everyone.”

She is eager to learn from the skilled litigators at NELC and to be a part of their ongoing efforts to stop polluters in their tracks.

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