More Information on Enforcement Actions Against ArcelorMittal Monessen (Monessen)
In April 2014, ArcelMittal reopened a coke oven manufacturing facility that had previously been operated and idled by Koppers Industries, Inc. Since that time, there have been a number of air pollution incidents involving this facility.
In October 2015, PennEnvironment commenced an action in federal court to address those incidents. This action is currently pending in the U.S. District Court for the Western District of Pennsylvania.
1. Title V Operating Permit and Emissions
2. EPA’s Compliance and Enforcement History Online.
During the last 5 years there have been 61 informal enforcement actions (notices of violation) and two formal enforcement actions under the Clean Air Act. The first formal enforcement action resulted in a $3,000 penalty under an Administrative Order on November 19, 2013. The second formal enforcement action resulted in a $35,500 penalty under an Administrative Order on August 19, 2016.
Source: EPA’s Compliance and Enforcement History Online
3. PennEnvironment v. ArcelorMittal, Civ. No. 15-01314 (W.D. Pa.) (filed October 8, 2015)
On October 8, 2015, PennEnvironment commenced a citizen suit action in the U.S. District Court for the Western District of Pennsylvania, seeking a declaration that the facility has been in violation of the Clean Air Act, the Pennsylvania state implementation plan, and the company’s Title V permit. The plaintiff is a non-profit environmental organization.
PennEnvironment seeks an order requiring the facility to comply with the law, and refrain from further violations. It also seeks an order requiring the facility to implement measures to remedy, mitigate, and offset the harm to public health and the environment.
Source: PennEnvironment Press Release, October 8, 2015:
Source: Complaint, October 8, 2015:
The Complaint is based on 8 individual Counts. Links to the allegations in the Complaint are set forth below.
Count I: Failure to Operate the Desulfurization Plant (paragraphs 130-154), https://pacokeovens.org/wp-content/uploads/2016/08/pages-16-19-of-Count-I-of-2015-10-08-Complaint-Filed.pdf
The Complaint alleges that on a number of occasions, the facility has failed to operate its coke oven gas desulfurization plant (Desulfurization Plant) when the coke oven batteries are in operation, in violation of its Title V Operating Permit.
The purpose of the Desulfurization Plant is to remove hydrogen sulfide and sulfur dioxide, both harmful air pollutants.
The Complaint alleges that violations occurred from August 19, 2014 to September 12, 2014, from June 14, 2015 to July 4, 2015, and on at least 7 other dates.
Count II: Creation of “Air Pollution” (paragraphs 155-167), https://pacokeovens.org/wp-content/uploads/2016/08/pages-19-27-of-Count-II-of-2015-10-08-Complaint-Filed.pdf
The Complaint alleges that the facility has violated a regulation prohibiting “air pollution,” 25 Pa. Code §121.7.
This is based on the submission of 102 citizen complaints to the Department, the submission of 27 citizen complaints to PennEnvironment, and the submission of 10 reports by the facility to the Department, all relating to air emissions from the facility.
Count III: Unlawful Fugitive Emissions (paragraphs 168-182), https://pacokeovens.org/wp-content/uploads/2016/08/pages-27-29-of-Count-III-of-2015-10-08-Complaint-Filed.pdf
The Complaint alleges that the facility has caused the emission of fugitive dust and fugitive emissions in violation of a requirement that it “shall take all reasonable actions to prevent particulate matter from becoming airborne,” set forth in its Title V Operating Permit.
The Complaint alleges that violations occurred on at least 10 separate dates.
Count IV: Malodorous Air Contaminants (paragraphs 183-191), https://pacokeovens.org/wp-content/uploads/2016/08/pages-29-30-of-Count-IV-of-2015-10-08-Complaint-Filed.pdf
The Complaint alleges that the facility has caused the emission of fugitive dust and fugitive emissions in violation of a regulation prohibiting “malodors … detectable outside the property of the person on whose land the source is being operated,” in violation of a Pennsylvania regulation, 25 Pa. Code §123.31.
The Complaint alleges that violations occurred on at least 3 separate dates.
Count V: Excess Opacity (paragraphs 192-245), https://pacokeovens.org/wp-content/uploads/2016/08/pages-30-36-of-Count-V-of-2015-10-08-Complaint-Filed.pdf
The Complaint alleges that the facility has caused the emission of air contaminants in excess of opacity limitations (at least 20% for more than three minutes in any one hour, or at least 60% at any one time), in violation of a Pennsylvania regulation, 25 Pa. Code §123.41.
The Complaint alleges that violations occurred on at least 48 separate dates.
Count VI: Hydrogen Sulfide Violations (paragraphs 246-253), https://pacokeovens.org/wp-content/uploads/2016/08/pages-36-40-of-Count-VI-of-2015-10-08-Complaint-Filed.pdf
The Complaint alleges that the facility has caused the flaring or combustion of a coke oven byproduct gas containing sulfur compounds (expressed as sulfur dioxide) in concentrations greater than 45 grains per 100 dry standard cubic feet, in violation of its Title V Operating Permit.
The Complaint alleges that violations occurred on at least 111 separate dates.
Count VII: Hydrogen Sulfide Monitoring Violations (paragraphs 254-259), https://pacokeovens.org/wp-content/uploads/2016/08/pages-40-41-of-Count-VII-of-2015-10-08-Complaint-Filed.pdf
The Complaint alleges that the facility has failed to operate and maintain a Continuous Hydrogen Sulfide Monitoring Device for its Desulfurization Plant since the re-start of its operations on April 10, 2014, in violation of its Title V Operating Permit.
Count VIII: Sulfur Dioxide Violations (paragraphs 260-263), https://pacokeovens.org/wp-content/uploads/2016/08/pages-41-42-of-Count-VIII-of-2015-10-08-Complaint-Filed.pdf
The Complaint alleges that the facility has caused the emission of sulfur dioxide from the combined boiler exhaust stack at rates greater than 63 pounds per hour (lb/hr), in violation of its Title V Operating Permit.
The Complaint alleges that violations occurred on at least 38 separate dates.
Exposure to Residents and their Property (paragraphs 264-281), https://pacokeovens.org/wp-content/uploads/2016/08/pages-43-44-of-Members-of-2015-10-08-Complaint-Filed.pdf
The Complaint alleges that members of PennEnvironment have experienced noxious odors from the facility, and suffer respiratory problems that they attribute to the facility. It also alleges that airborne soot from the facility has deposited on their property.
Relief Requested (paragraphs a-f), https://pacokeovens.org/wp-content/uploads/2016/08/pages-45-46-of-Relief-of-2015-10-08-Complaint-Filed.pdf
4. Maroz v. ArcelorMittal Monessen LLC, 2015 WL 6070172 (W.D. Pa., 2015).
This tort action brought by residents against the company in federal court demonstrates the types of claims available to residents suffering harm from air pollution from coke oven facilities. The complaint included claims of nuisance, negligence, and trespass. Plaintiff alleged that the facility failed to “install and maintain adequate technology” to properly control the facility’s emissions, and that this harmed the residents.
The nuisance claim was based on the allegation that noxious odors and air particulates interfered with the use and enjoyment of property. The negligence claim was based on the allegation that the emissions entered onto their properties due to the facility’s negligence. The trespass claim was based on the allegation that the emissions entered onto their properties.
On October 15, 2015, the Court dismissed some claims, but allowed others to proceed. http://law.justia.com/cases/federal/district-courts/pennsylvania/pawdce/2:2015cv00770/224282/46/. The allegation of interference with use and enjoyment of property was sufficient to assert a claim for private nuisance, but without a showing of harm to the public at large, there was no claim for public nuisance. The Court dismissed the claim for punitive damages, under the rationale that the receipt of complaints from neighbors and the facility’s knowledge of the impact of its large operations were not sufficient to establish the required “outrageous conduct.”
Despite the dismissal of some claims, the claims for private nuisance, negligence, and trespass survived. The plaintiffs filed a Second Amended Class Action Complaint.
Ultimately, the parties settled the case without an admission of liability by the facility. Under the Settlement Agreement, the facility agreed to implement two Supplemental Environmental Projects. To address the potential emission of odors, the facility has agreed to perform ceramic welding of the walls and roof areas inside the oven chambers of the remaining coke ovens at which such welding has not already been performed. The expected cost is $200,000.
To address the potential emission of dust and particulates, the facility has agreed to install paving of the in-plant roadway beyond the administration building and along the warehouse toward the boiler house. The expected cost is $250,000.
Finally, the facility has agreed to create a fund to pay for alleged property damages. The total fund is $452,500, which includes $252,500 for attorneys’ fees and costs and $200,000 for property claims.
On November 14, 2016, the Court issued a Final Judgment and Order approving the settlement and fee awards.
