United States v. National Steel Corp.

No. 79-73214 (E.D. Mich. May 23, 1983)

ELR Digest

The court rules that defendant is liable for penalties stipulated in a consent decree settling an enforcement action under the Clean Air Act, as a result of violations of interim and final deadlines in the decree while defendant unsuccessfully sought approval for an alternative compliance scheme under the Environmental Protection Agency's (EPA's) emissions trading (bubble) policy. On March 31, 1981, defendant National Steel Corporation signed a consent decree with EPA, the State of Michigan, and Wayne County establishing a compliance schedule for 11 facilities calling for issuance of purchase orders by December 15, 1980; start of construction by August 31, 1981; installation of controls by August 15, 1982; and compliance with applicable emissions limitations by November 15, 1982. This final date was later extended to December 15, 1982. The decree specified penalties for violations of interim and final deadlines. Defendant decided not to follow the original compliance plan for Basic Oxygen Furnace No. 2 at its Great Lakes Steel plant, but to seek approval of an alternative emissions reduction plan under the EPA bubble policy. The alternative was to substitute operation and maintenance activities elsewhere in the plant for technological controls on the furnace. The county and state approved the proposed alternative and forwarded it to EPA, which in turn proposed approval on December 17, 1982. Public comments identified errors in the modelling supporting the proposed bubble and challenged EPA authority to allow bubbles in nonattainment areas.

EPA concluded that the bubble could not be approved. The United States filed a motion to enforce the decree on April 18, 1983. Ruling from the bench, initially, the court holds that § 304 of the Clean Air Act confers an unconditional right of intervention under Rule 24(a)(1) of the Federal Rules of Civil Procedure, and grants the motion of the Natural Resources Defense Council to intervene. After hearing arguments on the government's motion to enforce the decree and defendant's motion to bar enforcement and to compel EPA to act on its bubble application, the court rules that defendant violated the decree and is liable for stipulated penalties of $5,000 per day from June 1st through August of 1982 and thereafter at $7,500 per day. The court declines to set a compliance deadline or to hold defendant in contempt.

The full text of this transcript opinion is available from ELR (81 pp. $10.75, ELR Order No. C-1322).

[On March 28, 1984 EPA published its final disapproval of National Steel's bubble application, 14 ELR 10212; National Steel filed notice of appeal of the district court opinion on August 24, 1983. The briefs in the appeal are summarized at ELR PEND. LIT. 65821 — Ed.]

Counsel for Plaintiffs
John R. Barker
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-3907

Stephen F. Schuesler, Ass't Attorney General
774 Law Bldg., Lansing MI 48913
(517) 373-1110

Counsel for Defendant
Clyde W. Armstrong, Chester R. Babst, Dean A. Calland
Thorp, Reed & Armstrong
One Riverfront Ctr., Pittsburgh PA 15222
(412) 394-7711

Douglas H. West
Hill, Lewis, Adams, Goodrich & Tait
100 Renaissance Ctr., 32d Floor, Detroit MI 48243
(313) 259-3232

Counsel for Intervenors
David G. Hawkins
Natural Resources Defense Council, Inc.
1725 I St. NW, Suite 600, Washington DC 20006
(202) 223-8210

Steven E. Chester
Air Pollution Control Division
Wayne Cty. Department of Health, 1311 E. Jefferson St., Detroit MI 48207
(313) 224-4650

Taylor, J.

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]