Shenango’s Latest Consent Agreement: Good Enough?
Shenango, Inc. operates a coke manufacturing plant with a 56-oven coke battery on Neville Island in Allegheny County. Shenango manufactures coke by, essentially, baking the impurities out of coal, so that only nearly pure carbon remains; the coke it produces is used in blast furnaces to smelt iron ore. Based on Shenango’s repeated violations of emissions limits established by law and contained in its operating permits, GASP issued a notice of intent to sue Shenango under the federal Clean Air Act and the Allegheny County Health Department’s (“ACHD”) air pollution control regulations on February 6, 2014. GASP’s notice of intent to sue identified more than 300 days between July 26, 2012 and September 30, 2013 on which Shenango violated at least one applicable emission limitation. As required, GASP served copies of its notice on ACHD, the Pennsylvania Department of Environmental Protection, and the United States Environmental Protection Agency, among other government agencies and officials.
On April 7, 2014, Allegheny County filed a Complaint against Shenango in the Court of Common Pleas for Allegheny County, Pennsylvania. The County’s Complaint sought a judgment that Shenango violated emissions limitations in its operating permit, as well as an order prohibiting Shenango from operating except in compliance with that permit and the applicable regulations and requiring Shenango to pay a penalty to the Allegheny County Health Department Clean Air Fund. Also on April 7, the County and Shenango entered into a Consent Order and Agreement that purports to settle the claims made in the County’s Complaint. Allegheny County Court of Common Pleas Judge Christine Ward approved the Consent Order on the same day it was executed by Shenango and the County.
What does the April 7 consent agreement require and what does it mean?
The April 7 consent agreement generally requires Shenango to pay a fine, undertake an investigation, and make a number of changes to its plant and operating methods. Five of the consent agreement’s requirements particularly merit attention.
First, the April 7 consent agreement requires Shenango to pay a civil penalty of $300,000 to the Allegheny County Health Department Clean Air Fund.
Second, Shenango must complete repairs to its pushing emission control shed and install a shed extension to minimize the size of an existing opening between the plant’s quench tower and main shed.
Third, the consent agreement requires Shenango to undertake a “Supplemental Environmental Project,” pursuant to which it must spend at least $285,000 and up to $300,000 to study other physical changes that could be made to the plant’s quench tower to enhance the tower’s ability to control emissions of particulate matter. If that study costs less than $285,000, Shenango is obligated to either spend the difference between $300,000 and the cost of the study on physical improvements to the quench tower or pay it to ACHD as an additional penalty.
Fourth, the consent agreement requires Shenango to submit a “Baghouse Maintenance Plan” and “Charging Procedures Work Plan” to ACHD for approval. Following ACHD’s approval of those plans, Shenango must implement them.
Fifth, the consent agreement will also force Shenango to maintain a minimum coking time, and increase that time following any rolling three-day period when, on the average, its rate of compliance with applicable limitations on visible emissions falls below 90%. The consent agreement also authorizes Shenango to reduce coking time following periods of three consecutive days when, on the average, its rate of compliance with applicable limitations on visible emissions exceeds 95%. In no event, however, may the coking time be reduced below 17 hours and 30 minutes.
What does the April 7 consent agreement fail to do?
First, the April 7 consent agreement fails to address at least three aspects of Shenango’s operations that have resulted in repeated violations of applicable emissions limitations. Specifically, the April 7 consent agreement does not require Shenango to implement any new measures to control: 1) visible emissions from its coke oven doors; 2) visible emissions from the combustion stack serving its coke oven battery; or 3) the sulfur content of its flared, mixed, or combusted coke oven gas. This is troubling, because the measures that were in place before April 7 have failed miserably to ensure Shenango’s compliance with applicable limitations on those emissions and limits. Between late July 2012 (when Shenango executed its last consent agreement concerning chronic emissions violations) and the end of September 2013 (the last time covered by compliance reports that GASP currently has), Shenango violated those limitations on at least 300 separate occasions. It would not be unreasonable to conclude that Shenango and ACHD have given up trying to comply with these limitations and are willing to allow violations to continue indefinitely.
Second, the April 7 consent agreement fails to impose a fine on Shenango that approaches the maximum fine authorized by law. Although $300,000 is a substantial amount, it pales in comparison to the amount of penalty that ACHD’s regulations and the Pennsylvania Air Pollution Control Act authorized it to impose on Shenango: up to $25,000 per day of violations. Based on the approximately-300 days between July 26, 2012 and September 30, 2013 on which documented violations occurred, ACHD could have imposed on Shenango a penalty in excess of $7,500,000.
Third, there is no requirement in the April 7 consent agreement that the required physical alterations and repairs to the plant yield emissions reductions or compliance with applicable emissions standards. Indeed, ACHD may be allowing Shenango to escape full liability for its violations of applicable emissions limitations in exchange for plant upkeep that Shenango would (or should) have performed absent the agreement.
Fourth, the consent order does not require Shenango to alter its facility or undertake any operational changes that may be identified by the “Supplemental Environmental Project,” even if those alterations or changes might yield greatly increased compliance or other substantial environmental benefits.
Fifth, the consent agreement does not specify what provisions the “Baghouse Maintenance Plan” and “Charging Procedures Work Plan” that Shenango is required to submit to ACHD must include in order to be approved by ACHD. Nor does the consent agreement explicitly require that the plans ultimately yield any actual emissions reductions after they are implemented. It is thus uncertain what, if any, benefits the consent agreement will yield in terms of increased compliance or emissions reductions.
Finally, the April 7 consent agreement does not require Shenango to comply with applicable emissions limitations in the law and its current operating permit 100% of the time. Rather, Shenango is authorized to reduce coking times (to its benefit) when the rolling three-day average compliance percentage is as low as 95%.
On April 30, representatives from the Allegheny County Health Department will attend a public meeting where they will present the merits of this agreement and what it means for air quality in the region. Please attend if, like us, you have questions about the strength of this agreement. Event details:
Wednesday, April 30
6 to 7:30 PM
Avalon Borough Building
640 California Avenue
Pittsburgh, PA 15202
–post by John Baillie, Staff Attorney