UPDATE: U.S. Steel filed a reply brief on Oct. 22. You can read it on the Allegheny County Health Department legal docket.
The Allegheny County Health Department was clear in its response to a U.S. Steel legal brief asking a hearing officer to determine that proposed rulemaking regarding coke oven battery emissions does not comply with a high-profile, controversial settlement agreement: The company’s request for relief should be DENIED.
Before we get too much more in detail about ACHD’s Oct. 8 response brief, let’s take a quick step back to fill in some of the background details about this whole dispute resolution issue.
GASP was the first to tell you about U.S. Steel disputing the proposed coke oven regulations we’ve been advocating for over the past two years. Here’s an excerpt from the blog we wrote then in case you missed it:
In a move that should not surprise *anybody* who’s been paying *any* attention to U.S. Steel’s history of dragging regulators through the courts, the company earlier this month asked an Allegheny County Health Department hearing officer to put the kibosh on long-sought updates to local coke oven regulations expected to help better protect public health.
In a brief filed Sept. 9 and posted to ACHD’s appeals docket on Sept. 13, attorneys for U.S. Steel asked the hearing officer to order ACHD to stop pursuing the proposed rulemaking further.
You can read more about the settlement agreement here, but here’s the long and short of it: The agreement, which came in the wake of a Dec. 24, 2018 fire at the Clairton Coke Works that knocked out pollution control devices for months, required U.S. Steel to meet certain improvement mandates and subjected it to quarterly stipulated penalties if those improvements were not made.
At the end of the day, in exchange for those concessions, U.S. Steel avoided enormous compounded daily fines for air quality violations stemming from the fire and its aftermath. As we noted last time: When the agreement was first announced, both ACHD and U.S. Steel said the agreement would prevent arduous, drawn-out court battles over those potential fines.
But U.S. Steel is now arguing that in exchange for the concessions taken by the company, ACHD agreed not to impose more stringent limits for coke ovens without first determining whether or not they were technically feasible and would correlate with measurable coke oven emissions reductions at the health department’s air quality monitor in Liberty borough.
In its Oct. 8 brief, however, ACHD described U.S. Steel’s legal arguments “nonsensical,” “specious,” and even “absurd,” and maintained that it can and must impose more stringent limits and that proposed changes to the county coke oven regulations were necessary to ensure they are consistent with state rules.
ACHD noted that there would be dire consequences if its Air Quality Program fails in this duty.
“Moreover, the Pennsylvania Air Resources Regulations state that the DEP may rescind approval of an air pollution control agency if the agency is not operating its program in conformity (with state regulations),” ACHD wrote. “An abdication of the department’s duty to regulate can result in a loss of its authority to regulate.
You can read the entire brief here. But here’s how it concluded:
Over the past year, the [ACHD] and U.S. Steel engaged in productive discussions relating to the proposed amendments to the Coke Ovens and Coke Oven Gas regulations.
While the [ACHD] recognizes the importance of complying with the provisions of the (settlement agreement and order), the [ACHD] cannot ignore the statutory requirements under the Pennsylvania Air Pollution Control Act (which) prohibits the [ACHD]from adopting regulations which are less stringent than the Pennsylvania Air Resources regulations.
The requirements under the APCA takes precedence over the contractual provisions under the SOA. Therefore, it is the [ACHD’s] Position that the proposed Coke Ovens and Coke Oven Gas regulations are consistent with Pennsylvania law and regulations and that they do not violate the enforceable provisions of the SOA.
U.S. Steel has until Friday to file a response.
GASP has been following this matter closely, will continue to monitor it, and report back to you what we find out.