Federal appeals court rejects clean-air complaint over Neville Island Coke Plant

The three-judge panel at the U.S. Third Circuit of Appeals on Jan. 6 dismissed a lawsuit filed by an environmental group over air emissions from the Neville Island coke plant, saying that a local county health department’s action against the plant takes precedence.

Coke plants baked coal into coke that can be used for various purposes, including steelmaking.

Group Against Smog and Pollution (GASP) had filed suit against Shenango Inc. in the U.S. District Court for the Western District of Pennsylvania. The District Court granted Shenango’s motion to dismiss for lack of subject matter jurisdiction. The District Court found that the administrative agencies were already “diligently prosecuting” the Clean Air Act violations alleged by GASP.

Said the Jan. 6 appeals court decision: “We will affirm the judgment of the District Court on other grounds, concluding that GASP has failed to state a claim because administrative agencies were ‘diligently prosecuting’ the Clean Air Act violations and that this prosecution ‘requires compliance’ with the Act. In making this determination, we conclude that the diligent prosecution bar of the Clean Air Act is not a jurisdictional limitation and is therefore properly dismissed through a Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief may be granted, rather than Rule 12(b)(1).”

Shenango operates the Neville Island Coke Plant, a coke manufacturing and by-products recovery facility in Allegheny County, Pennsylvania. The plant produces metallurgical coke and byproducts such as tar, light oil, sodium phenolate, and ammonium sulfate. Coke oven gas, which is used to underfire the coke battery and to fuel the boilers, is also produced.

The plant is subject to National Ambient Air Quality Standards (NAAQS) set by the U.S. Environmental Protection Agency under the Clean Air Act. As part of the Act’s encouragement of federal cooperation with state and local governments, Pennsylvania is required to create a state implementation plan (SIP) detailing how it will attain and maintain the NAAQS. In Allegheny County, Pennsylvania delegates the authority for enforcing air pollution laws to the Allegheny County Health Department (ACHD).

In 2012, the EPA, the Pennsylvania Department of Environmental Protection (DEP) and the ACHD filed an action in the U.S. District Court for the Western District of Pennsylvania against Shenango claiming violations of three standards. The parties entered into a Consent Decree to resolve these violations, specifically addressing the twenty and sixty percent combustion stack opacity standards. The District Court entered final judgment on this action in 2012 but retained jurisdiction.

In 2014, GASP sent Shenango a notice of intent to sue, claiming violations of the same three standards. The ACHD then filed an action against Shenango in the Allegheny County Court of Common Pleas, and the parties entered into a Consent Order and Agreement. This agreement appears to address the five percent door emissions standard, and reaffirms the 2012 Consent Decree’s approach to the twenty and sixty percent combustion stack opacity standards. The Court of Common Pleas entered final judgment on this action in April 2014. The ACHD retained authority with respect to any future violations.

In May 2014, GASP filed this citizen suit against Shenango in U.S. District Court, again claiming violations of the same three emissions standards. Shenango moved to dismiss for lack of subject matter jurisdiction and for failure to state a claim upon which relief may be granted. The court granted Shenango’s motion to dismiss for lack of subject matter jurisdiction, finding that GASP could not bring an action because the ACHD was already “diligently prosecut[ing]” an action in court against Shenango to require compliance under the Act. The court rejected two arguments raised by GASP in opposition to the motion to dismiss: that the Consent Decrees do not actually require Shenango to comply with the standards set forth in the Act; and that the 2014 Consent Order and Agreement was deficient because the parties failed to provide an opportunity for the public to intervene or comment on the terms of the order.

Said the Jan. 6 appeals court order: “GASP has failed to state a cause of action in its citizen suit because of the diligent prosecution bar. The ACHD diligently prosecuted the same three Clean Air Act violations GASP now attempts to litigate. The ACHD entered into a Consent Decree and Consent Order and Agreement with Shenango which were still in effect when GASP filed its citizen suit. ACHD’s prosecution requires compliance with the Act. We hold that when a state or federal agency diligently prosecutes an underlying action in court, the diligent prosecution bar will prohibit citizen suits during the actual litigation as well as after the litigation has been terminated by a final judgment, consent decree, or consent order and agreement. In addition, when a state or federal agency diligently pursues an ongoing consent decree that may be modified by the parties and enforced by the agency, the diligent prosecution bar will prohibit citizen suits. Accordingly, we will affirm the District Court’s Order granting Shenango’s motion to dismiss, albeit for somewhat different reasons.”

Incidentally, DTE Energy (NYSE: DTE), the parent of Shenango, announced Dec. 17, 2015, that it it will close this coke plant within the next month, affecting 173 workers. The company said that it decided to close the Neville Island plant “in response to a sharp downtown in the North American steel industry.”

The DTE website lists the Shenango customers as: AK Steel, Midcontinent Coal and Coke, E.J. Bognar, Reutgers, Citgo Petroleum, Wilson Industrial Sales, Ashland Specialty Chemical and Calgon Carbon. Merchantable by-products from the coke plant include: tar, light oil, ammonium sulfate, steam, buckwheat coke and breeze.

About Barry Cassell 20414 Articles
Barry Cassell is Chief Analyst for GenerationHub covering coal and emission controls issues, projects and policy. He has covered the coal and power generation industry for more than 24 years, beginning in November 2011 at GenerationHub and prior to that as editor of SNL Energy’s Coal Report. He was formerly with Coal Outlook for 15 years as the publication’s editor and contributing writer, and prior to that he was editor of Coal & Synfuels Technology and associate editor of The Energy Report. He has a bachelor’s degree from Central Michigan University.