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United States v. Wheeling-Pittsburgh Steel Corp.

Citation: 17 ELR 20672
No. No. 79-1194, 642 F. Supp. 468/24 ERC 1968/(W.D. Pa., 06/02/1986)

The court holds that defendant steel company violated certain emission standards established in a consent decree in a Clean Air Act enforcement action at a West Virginia coke plant. The court first holds that defendant violated the decree's provision requiring a demonstration of compliance with the coke oven door emission standard. The fact that the tests were conducted when the coke ovens were operating at less than their normal maximum production rates does not invalidate defendant's demonstration of compliance, since the decree does not explicitly require the tests to be conducted at any particular level of operation. However, defendant improperly excluded two doors that were obstructed from view and rounded down the percentage of leaking doors in calculating compliance with the oven door standard. The court holds that defendant's demonstration of compliance with the charging emission standard is not invalidated by the fact that the tests were conducted when the ovens were operating below normal production rates or by the fact that the tests lasted only four days, since the decree cannot be read to imply a particular level of production or a durational requirement for the testing. The court next holds that defendant's substantial compliance with the decree's prohibition against use of a nonstage larry car is a valid defense to the Environmental Protection Agency's contempt motion, since the prohibition was not derived from the West Virginia state implementation plan. The court holds that defendant violated the decree's provision requiring it to maintain compliance with the door emission standard.

The court rules that economic and technological infeasibility are not defenses to Clean Air Act enforcement actions. The court rules that they are also not defenses to actions to enforce consent decrees, since a contrary result would elevate the form of the proceedings over their substance. Even if defendant could assert substantial compliance as a defense, compliance with the door emission standard 54 percent of the time does not constitute substantial compliance. The court holds that defendant has also violated the decree's provisions requiring it to maintain compliance with the charging emissions standard. Finally, the court holds that defendant is liable for violations of the decree's pushing emission standards caused by unreasonable delays in repairing the emissions control system.

[On September 2, 1986, the court entered judgment for the United States for $486,000, the amount of stipulated penalties agreed on by the parties for defendant's failure to demonstrate compliance with the door emission standard.]

Counsel for Plaintiff
Thomas Au
Dept. of Environmental Resources
Box 2063, Harrisburg PA 17120
(717) 787-4489

William D. Evans Jr.
Finley, Kumble, Wagner, Heine, Underberg, Manley, Myerson & Casay
1120 Connecticut Ave. NW, Washington DC 20036
(202) 857-4000

Counsel for Defendant
George Raynovich Jr.
Buchanan Ingersoll, PC
57th Fl., 600 Grant St., Pittsburgh PA 15219
(412) 562-8800