The U.S. Environmental Protection Agency conceded in federal court that it failed to properly regulate certain aspects of coke ovens, like U.S. Steel’s plant in Clairton, outside of Pittsburgh.
The lawsuit, filed in the U.S. District Court for the Northern District of California last year by PennFuture and other organizations, and represented by EarthJustice, argued that EPA wasn’t doing its job under the Clean Air Act. The groups made four claims against the agency, and the agency admitted fault in three of them. The court declined to rule on the fourth claim.
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Coke ovens are used to convert coal into coke, the fuel used to produce steel. Different aspects of the coke-making process were at issue in this case.
“Coking operations like Clairton Coke Works, produce more than 40 highly toxic air pollutants,” said PennFuture vice president of legal and policy Abby Jones. “These cause not only breathing problems in the community, but also include known carcinogens that destroy air quality, and cause devastating health complications for the communities.“
For each part of the industrial process, the Clean Air Act directs EPA to take a two-phase approach to regulation.
First, EPA must require that industry use the best available technology for controlling pollution. This is supposed to be updated every eight years.
Second, the agency is expected to perform a risk assessment to determine if additional restrictions should be imposed. This is done initially when new technology standards are put in place. How often risk assessments should be updated was the one issue in this case that the court did not decide.
The Claims About (Lack of) Regulation of Two Coke Over Processes
At coke ovens, coal is heated at very high temperatures, usually 1800 °F to 2000 °F, to create coke, and then that coke is cooled. This part of the process is called quenching.
PennFuture’s lawsuit said the EPA has not been regulating quenching.
“They’ve never even done the initial risk assessment or technology-based standard review,” Jones said. “And so we challenged their failure to set the initial standard, and to revise the standard as necessary.”
The EPA conceded that it had not created these standards, or done a risk assessment.
The agency also admitted that it’s been 15 years since it updated the technology-based standards on coke oven batteries, the term for a group of ovens at these facilities.
“From this lawsuit, we are finally getting a revised technology-based standards review for the coke oven battery,” Jones said.
The court has given EPA 30 months to create standards and do a risk assessment for quenching, and to update the technology standards for coke oven batteries.
“So, taken together, these are going to hopefully result in much more protective standards for these coke oven facilities.”
One Key Issue Still Undecided
In addition to seeking updated technology-based standards for coke oven batteries, the lawsuit wanted EPA to update its risk-based standards as well. The court decision states that PennFuture and the other groups have reasonable legal and policy arguments for this, “But having a reasonable argument is not enough in this context,” according to the ruling.
The court found that the Clean Air Act does not speak clearly to whether updating risk-based standards is mandatory, and so it does not have jurisdiction, and did not rule on this issue.
Jones says PennFuture is considering whether to appeal on that issue. Still, she calls the majority of the case a victory.
“I don’t want that jurisdictional loss to take away from what I think will be a very positive health and environmental impact,” she said.
The Clairton Coke Works is located in what’s known as an environmental justice area, meaning it has a certain percentage of residents who are people of color and/or live in poverty. Coke ovens are often environmental justice(EJ) communities, according to Jones.
“I believe we owe it to communities like Clairton, like Allegheny County, and other EJ communities across Pennsylvania, to do everything in our power that we can to cut these toxic and hazardous emissions that are spewing from the facilities, that have for too long overburdened these communities,” she said. “We’re hopeful that this court order will have a real and meaningful impact on the frontline communities that disproportionately suffer the impacts of this pollution.”