The Edgar Thomson PROPOSED Consent Decree Explained – And How Community Input Can Make it Stronger
Updated: Sep 9, 2022
By now, the news has been widely reported: County and federal air quality regulators have entered into a proposed consent decree with U.S. Steel to settle years of air quality violations at its Edgar Thomson Plant.
The proposed decree – signed and sealed by the Mon Valley’s most egregious air polluter, the Environmental Protection Agency (EPA) and Allegheny County Health Department (ACHD) – calls for U.S. Steel to pay a $1.5 million civil penalty and make numerous improvements to the North Braddock facility.
But the devil, as they say, is in the details, and there are a lot of details.
The proposed consent decree is the end result of a joint enforcement action (EPA and ACHD cooperating) against the company that began in 2017 and is a whopping 157 pages long. It includes complex and technical information that details everything from recent maintenance and operations improvements made at Edgar Thomson and required future compliance initiatives to how the public can weigh in on the proposed decree.
Yes, our continued use of the proposed prefix is very purposeful.
While most news media reports largely framed the consent decree as a done deal, end story, move on, we’re here to tell you that just ain’t so. Here’s what the draft decree has to say about public participation:
This Consent Decree shall be lodged with the Court for a period of not less than 30 Days for public notice and comment . . . The United States reserves the right to withdraw or withhold its consent if the comments regarding the Consent Decree disclose facts or considerations indicating that the Consent Decree is inappropriate, improper, or inadequate.
In our humble opinion, the proposed settlement is in some ways inappropriate, improper, and inadequate. We hope you’ll help us seize the opportunity to demand better.
Step one? Understanding the elements of the proposed deal. We hope to provide just that in the next thousand or so words. The GASP team has poured over the consent decree and boiled down 157 pages of information into this handy-dandy guide.
Ready to get your learn on? Good. Here’s what you need to know…
The Edgar Thomson facility produces molten iron (or “pig iron”) in its blast furnaces and then turns iron into steel by way of the basic oxygen process (BOP) in a part of the mill aptly named the “BOP Shop.” The process of collecting pig iron for transfer to the BOP Shop occurs in the blast furnace “casthouse.” These locations will come up again later, a lot.
Way back in November 2017, ACHD and EPA issued a joint notice of violation against U.S. Steel for myriad violations of county and federal rules covering blast furnace and BOP Shop operations – among other things – at Edgar Thomson from 2016 through July 2017.
An ACHD press release regarding the NOV explained, “The nature of the violations includes excessive visible emissions, failure to maintain equipment and failure to certify compliance with the plant’s Title V operating permit.”
Via open records requests, GASP determined that 2015 and 2017 site inspections showed several blast furnace equipment deficiencies. You can view six examples here. As for EPA’s role, ACHD explained:
“To enhance the Health Department’s enforcement efforts, ACHD has actively engaged the EPA over the course of the last nine months. The EPA brings an expanded level of federal expertise, as well as additional enforcement capacity that will support stronger action by utilizing the Department of Justice and EPA’s capacity to enact more stringent penalties.”
You might wonder: With all that added expertise and capacity, what took so long? We honestly don’t know. Officials stayed mum about their progress until just two weeks ago and in the interim, officials repeatedly told the public they could not comment on pending legal matters.
Given the lack of updates, the announcement of the proposed consent decree came as a shock to advocates and residents who have been waiting more than four years for information on when – and how – U.S. Steel would be forced to get into compliance with applicable air pollution rules.
The consent decree finally provided some answers.
The proposed consent decree lists pre-settlement remedial measures U.S. Steel undertook at the Edgar Thomson Plant since the 2017 notice of violation was initially lodged.
Those measures include upgrades to its pollution control systems in the blast furnace casthouse and BOP Shop as well as additional tweaking of its operating procedure for certain pieces of equipment. U.S. Steel also retrained employees, crafted a new operations and maintenance plan, and hired new third-party contractors.
It’s all well and good to know U.S. Steel was doing something to address the issues at Edgar Thomson over the past four years but it’s not clear if these measures had an effect or why measures that didn’t fix the problem were even mentioned.
The proposed decree mandates that U.S. Steel hire third-party contractors to conduct studies of key pieces of emissions-control equipment in order to “ensure continued compliance with ACHD Rules and Regulations.”
The proposed consent decree includes extensive details related to the selection and hiring of those third-party contractors (ex: they were subject to EPA approval). It also sets a schedule of deadlines associated with those studies:
The studies must be completed within 120 days of the agreement’s effective date.
U.S. Steel must submit copies of the completed studies within 90 days of their completion.
Along with the studies, U.S. Steel is required to submit for EPA approval a report that details improvements recommended by the third-party contractor and reasons why they should or should not be considered, cost estimates for proposed projects, and a schedule to complete the projects.
After the EPA reviews and approves the plan, U.S. Steel “shall implement the proposed actions” laid out in the schedule.
U.S. Steel must then submit to EPA and ACHD a notice of completion certifying that the actions were implemented in accordance with the approved plans.
Specifically, the three studies will cover:
The casthouse baghouse system
BOP Shop roof ventilation
The BOP Shop scrubber system
Missing, though, from the proposed consent decree is language that would guarantee that the approved projects will result in meaningful emissions reductions at the Edgar Thomson facility.
Even worse, U.S. Steel might not have to do much of anything under these terms in the decree. As far as we can tell, if the studies show few or no good options, U.S. Steel would meet the terms of the proposed consent decree by simply implementing those few – if any – recommendations.
Yes, the studies are aimed at identifying changes leading to compliance, and, yes, U.S. Steel must implement the studies’ recommendations, but after four and a half years the fact that they still need to study the issues at all is troubling.
The proposed decree requires that U.S. Steel install and maintain a video camera system at the Edgar Thomson plant aimed at the problematic sources of visible emissions including its blast furnace stove stacks, casthouse roof monitors and baghouse, BOP Shop roof monitor and scrubber stacks, and two staging areas for torpedo cars, (which are specialized rail cars that transport molten iron to the BOP Shop).
The cameras will be a tool to help address problems but – unfortunately – not a way for regulators to determine compliance with clean air laws. Here’s how it’s worded in the agreement:
U.S. Steel shall use the video camera system as a tool to minimize emissions by ensuring that processes are optimized and allowing its operators to monitor the applicable areas so as to recognize and react to potentially non-compliant Visible Emissions by taking corrective actions to minimize or eliminate any such emissions as expeditiously as possible.
Here are some specifics of what the EPA is requiring of the camera monitoring system:
It must consist of at least seven permanently installed and “strategically placed” cameras that run during daylight hours.
The recordings must be time-stamped and in a digital format of no less than one frame per second.
The recordings must be in a labeled, chronologically ordered system for a period of at least 30 rolling days and be made available to ACHD during site visits.
U. S. Steel must train its operators to use the video camera system within 120 Days of its installation and maintain it per the manufacturer’s recommendations.
In addition to the camera system, within 30 days of the effective date of the proposed consent decree, U.S. Steel must ensure a third-party observer – trained and certified in accordance with EPA Method 9 – conducts visible emissions readings covering the Casthouse Roof Monitors, BOP Shop Roof Monitor, and BOP Shop Scrubber Stacks.
The agreement requires U.S. Steel to provide information weekly on when and where the visible emissions readings will be taken, to allow ACHD staff members or contractors the opportunity to be present during the readings “and, as necessary, perform ACHD’s own observations to verify compliance.”
The Method 9 reading requirements come with some additional reporting mandates, as well: U.S. Steel must submit to EPA and ACHD quarterly reports of its compiled Method 9 Visible Emissions observation identifying any deviation(s) from the applicable opacity standards, the likely cause, corrective measure(s) taken to address the deviation(s), and the effectiveness of those corrective measures “as can be determined at the time of the report.”
Finally, the proposed consent decree has additional monitoring requirements for our old nemeses: H2S and SO2.
U.S. Steel personnel must inspect the blast furnace slag pit spray systems every shift and document the condition of the slag prior to load-out. U.S. Steel must also install, operate, and maintain a continuous SO2 monitor for emissions from the Plant’s Riley Boilers (these boilers burn blast furnace gas, coke oven gas, and natural gas to generate steam, heat, and electricity for the plant). There are also additional reporting, record-keeping, and data-sharing requirements for both monitoring schemes.
Aside from the sulfurous compound monitoring, these efforts are largely related to assisting or assessing the studies discussed above. Any additional monitoring is a good start but without knowing the details of the studies, it is difficult to gauge the sufficiency of the monitoring scheme.
One unexpected bright spot is a requirement that within 60 days of the effective date of the consent decree, U.S. Steel must begin “feeding an oxidizing chemical additive or additives such as, but not limited to, potassium permanganate or hydrogen peroxide into the Slag Pit quench water spray system, to enhance suppression of H2S emissions.”
The company is also required to submit to the EPA and ACHD for approval of written procedures for the slag pit that detail actions being taken to “minimize or prevent the evolution of H2S.”
While the Clairton Coke Works has – rightfully – received the most attention for H2S emissions, we’ve all known for a while now that something stinks at Edgar Thomson. Of course, we’re happy to see ACHD finally acknowledge Edgar Thomson as a source of vile H2S odors but it’s long overdue and some additional assurances of the effectiveness of this step would help.
The terms of the proposed decree call for U.S. Steel to hire a third-party contractor to conduct a maintenance practices audit – an action item that has already been completed. The document reads:
U.S. Steel shall bear all costs associated with the Maintenance Practices Auditor, cooperate fully with the Maintenance Practices Auditor, and provide the Maintenance Practices Auditor with access to all records, employees, contractors, and areas of the Facility that the Maintenance Practices Auditor deems reasonably necessary.
The scope of the third-party audit is also detailed:
U.S. Steel shall direct the Maintenance Practices Auditor to perform an audit to analyze operation and maintenance practices for emissions controls, including the adequacy of the effective (Operations and Maintenance) Plan and U. S. Steel’s implementation of the plan.”
The emissions controls to be covered by the Maintenance Practices Audit will include:
the Casthouse Baghouse
the BOP Shop Fugitive Baghouse
the BOP Shop Mixer Baghouse
the BOP Shop Ladle Metallurgy Furnace Baghouse
the BOP Shop Primary Emissions System/BOP Shop Scrubber
and Slag Pits
Then, within 180 days of the settlement agreement’s effective date, U.S. Steel must direct the auditor to submit a report that includes:
a summary of the audit process, including any obstacles encountered
detailed audit findings, including the basis for each finding and each area of concern related to the adequacy of Edgar Thomson’s operations and maintenance plan for ensuring current and continued future functioning of emissions controls and compliance with applicable emission limitations
Information about whether requirements, targets, objectives, or other benchmarks are being achieved; whether there are examples of noncompliance with the operations and maintenance plan; and “recommendations for resolving areas of concern or otherwise achieving compliance with the operations and maintenance
A certification by the third-party contractor and U. S. Steel that the audit was performed in accordance with the proposed consent decree.
After that, U.S. Steel has 60 days to submit a report to the EPA and ACHD that includes a copy of that report as well as a plan for approval which includes a proposal for implementing any recommendations in the report.
The agreement reads:
U.S. Steel shall thereafter implement the proposed actions in accordance with the schedule in the approved plan, and shall ensure that its employees are properly trained to implement the proposed actions.
In addition to the third-party audit, U.S. Steel will be required to undergo self-audits every 12-months and submit plans to EPA and ACHD for approval detailing everything from obstacles encountered to the adequacy of the operations and maintenance plan to whether required objectives and benchmarks are being met.
“U. S. Steel shall thereafter implement the proposed actions in accordance with the schedule in the approved report,” according to the proposed decree.
While GASP is glad to see U.S. Steel is being tasked with studying the feasibility of future improvements and sets an aggressive timeline for completion of both the studies and associated projects, we have transparency concerns.
Specifically, there is nothing in the document to require EPA and/or ACHD to provide the public with updates related to those projects, audits, and deadlines. We strongly believe that it is the responsibility of those agencies to create a public clearinghouse so residents can review everything from documents to deadlines.
“It would be a nightmare for residents and the agencies alike if ACHD and EPA required members of the public who want to keep tabs on this process by submitting formal state Right to Know or Federal Freedom of Information Requests,” GASP Executive Director Patrick Campbell said. “Residents went more than four years without an update from their air quality regulators on what was being done to protect them from illegal emissions. We believe EPA and ACHD should develop an accessible webpage containing all the necessary documents for the residents to stay well informed.”
While the consent decree gives no details about how much money U.S. Steel has spent on improvements to date and provides zero estimates of how much cash the company is likely to dole out for future projects identified in various studies and audits, it is very specific on stipulated penalties and that $1.5 million fine.
First a quick note: Stipulated penalties are fines assessed for violations of the terms of the consent decree. A violation includes U.S. Steel’s failure to perform any required obligations including any approved work plan or schedule according to all applicable requirements and within the specified time schedules established.
While the decree goes into great specificity regarding the stipulated penalties, here’s the long and the short of it: The decree details daily fines for various infractions that range from $500 to $4,500 per violation per day.
The terms of the decree call for U.S. Steel to remit payment for any stipulated penalties within 30 days of a written demand. All stipulated penalties will be split evenly between the EPA and ACHD – with the county’s portion payable to the Clean Air Fund. We want to note this line, though, which raised our eyebrows:
Either Plaintiff may in the unreviewable exercise of its discretion, reduce or waive stipulated penalties otherwise due it under this Consent Decree.
Then there’s the $1.5 million fine and what the consent decree has to say about how that money will be utilized. It, too, will be split evenly between ACHD and EPA – but it’s how the county wants to spend its share that concerns us most:
U.S. Steel shall provide $750,000 in funding to the Allegheny County Department of Economic Development in support of the creation of a multimodal connection that links the Great Allegheny Passage in Rankin Borough to the Westmoreland Heritage Trail in Trafford Borough through the Turtle Creek Valley.
The purpose of the project will be to provide funding for a multimodal connection to communities near U. S. Steel Edgar Thomson Plant (namely Rankin, Braddock, North Braddock, East Pittsburgh, Turtle Creek, Wilmerding, Monroeville, Pitcairn, and Trafford, North Versailles, East McKeesport, and Wall) and that the funding would go toward providing a link from the GAP in Rankin Borough to the WHT in Trafford Borough through the Turtle Creek Valley.
Initiatives like this are known as Supplemental Environmental Projects or SEPs. The ACHD Air Quality Program Civil Penalty Policy defines a SEP as “a project or activity that improves, protects, or reduces the risk to public health or the environment, and that is not otherwise required by law.”
Per EPA guidance, “(t)he primary purpose of the SEP Policy is to encourage and obtain environmental and public health protection and benefits that may not otherwise have occurred in the settlement of an enforcement action.”
Generally, GASP supports both SEPs and multi-modal trail access that helps improve a community’s access to alternative forms of transportation like walking and biking.
HOWEVER, the SEP contained in this consent decree is concerning for several reasons. First, we’re not aware of ACHD, EPA, or U.S. Steel reaching out to local community groups to gauge their interest in this or any SEP – not once in four and a half years. That is plainly insulting to people who’ve suffered FOR YEARS from emissions belched out by the Edgar Thomson plant.
Second, the SEP contribution amount is $750,000, which offsets 100 percent of the $750,000 fine, but that percentage could be less. ACHD’s SEP policy states, “(g)enerally, for settlements that include a SEP, the Department will require the violator to pay a monetary penalty amount as part of the settlement.”
Ironically, and sadly, one of the six factors ACHD must consider when setting the percentage offset is the degree to which “(t)he SEP was developed with active solicitation and consideration of community input.”
The SEP policy goes on to state, “the Department has the discretion to allow a 100 percent mitigation of the penalty amount if the SEP will provide an exceptional public health or environmental benefit.”
Even considering all six criteria, we cannot possibly define this SEP as exceptional. Finally, we strongly question the wisdom and adequacy of contributing what amounts to peanuts to a project that a January 2022 study of the Turtle Creek Connector noted would be “lengthy, difficult, and expensive” to implement.
Specifically, that study lists three different alternate routes with estimated costs of $9.3 million, $27.8 million, and $25.6 million, which “assume a 20-year design life and do not include expenses associated with maintenance, utility relocation, right-of-way acquisition, erosion and sedimentation control, traffic control, traffic signals, lighting, signage, and pavement marking, and parking lots.”
We accept that $750,000 won’t change the world but dropping it into a fund for a project that could take years to complete strikes us as a deeply flawed approach. Using the cash for a project that will have a more immediate and meaningful impact on community health (i.e.: upgrading HVAC systems to help improve indoor air quality in public spaces or starting a Clean School Bus Pilot Project).
Looking desperately for silver linings, at least there’s verbiage in the consent decree that will make it difficult for U.S. Steel to use the SEP as a public relations tool or a tax write-off. The decree states:
U.S. Steel has not received and will not receive credit for the ACHD-Only SEP in any other enforcement action. U. S. Steel will not receive reimbursement for any portion of the ACHD-Only SEP from another person or entity. Any public statement, oral or written in print, film, or other media, made by U. S. Steel making reference to the ACHD-Only SEP under this Consent Decree from the date of its execution shall include the following language: “This project was undertaken in connection with the settlement of an enforcement action, United States et al. v. U. S. Steel, taken on behalf of ACHD to enforce federal and state laws.”
As we said earlier, we’re glad to see that EPA is seeking input from community members about the proposed consent decree and we want to be sure you know the clock is ticking: A 30-day public comment period opened May 24. You can find everything you need to know about commenting by email or snail mail here.
Not sure what exactly to say? No worries – GASP has your back. We have sample language outlining concerns with the agreement and opportunities to make it stronger, as well as a simple form that automatically routes your comments to the Assistant Attorney General of the Environment and Natural Resources Division for review.
Stay tuned! GASP continues to follow this issue closely and will keep you updated as the process continues.