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United States v. United States Steel Corp.

United States District Court, N.D. Indiana, Hammond Division

April 18, 2014

UNITED STATES OF AMERICA, et al., Plaintiffs,
v.
UNITED STATES STEEL CORPORATION, Defendant

For United States of America, Plaintiff: Arnold Stephen Rosenthal, U.S. Department of Justice - Was/DC/7611, Washington, DC; Iva Ziza, U.S. Department of Justice - Was/DC/EES/601, Washington, DC; Wayne T Ault, U.S. Attorney's Office - Ham/IN, Hammond, IN.

For Indiana State of, Plaintiff: Timothy J Junk, Valerie M Tachtiris, LEAD ATTORNEYS, Indiana Attorney General's Office - IAG/302, Indianapolis, IN.

For Michigan Department of Environmental Quality, Plaintiff: Neil David Gordon, Michigan Department of Attorney General, ENRA Division, Lansing, MI.

For Illinois State of, Plaintiff: Rachel R Medina, Illinois Attorney General's Office - Spr/IL, Springfield, IL.

For United States Steel Corporation, Defendant: J Van Carson, LEAD ATTORNEY, Emily Louise Seidman, John D Lazzaretti, Squire Sanders (U.S.) LLP - Cle/OH, Cleveland, OH; David W Hacker, United States Steel Corporation, Pittsburgh, PA; Terence M Austgen, Burke Costanza & Carberry LLP - Mer/IN, Merrillville, IN.

OPINION

Page 945

OPINION AND ORDER

PHILIP P. SIMON, CHIEF UNITED STATES DISTRICT JUDGE.

The Environmental Protection Agency and three similar state agencies from Indiana, Michigan and Illinois filed a complaint against U.S. Steel Corporation alleging violations of the Clean Air Act relating to plants U.S. Steel operates in those three states. In Count One of its complaint, the EPA sought both damages and an injunction for alleged violations of the Clean Air Act relating to construction work done at U.S. Steel's Gary, Indiana plant in 1990. U.S. Steel moved to dismiss on the basis that the claims were initiated well past the five-year statute of limitations period that U.S. Steel says applies to the alleged violations. Shortly before I filed my opinion, the Seventh Circuit issued an opinion in United States v. Midwest Generation, LLC, 720 F.3d 644 (7th Cir. 2013), dealing with some of the same issues I face in this case, and I applied that ruling as I interpreted it. In my original Opinion, I agreed with U.S. Steel that the statute of limitations barred any claim for damages relating to those long ago events. However, I agreed with the government that the statute of limitations didn't bar injunctive claims. (Docket Entry 54.)

U.S. Steel now asks me to reconsider the latter ruling ? the one relating to the request for an injunction ? based on its interpretation of Midwest Generation. After closely reading Midwest Generation I am now persuaded that my earlier ruling was wrong, and that the request for an injunction based on a claimed permit violation from 24 years ago cannot stand under Midwest Generation. So for the following reasons I will the Motion to Reconsider and DISMISS the claim for injunctive relief contained in Claim One.

BACKGROUND

I won't rehash everything in my initial opinion on the motion to dismiss. I will include only the facts necessary to this opinion and the application of Midwest

Page 946

Generation to the issue at hand ? whether the government can obtain an injunction against U.S. Steel for commencing construction in 1990 on a major modification to its facility without first obtaining certain permits. The plaintiffs in this case are both federal and state environmental agencies, but for ease of reference I will refer to them collectively as the EPA.

In 1990, U.S. Steel performed a " reline" of its No. 4 furnace at its Gary Works facility in Gary, Indiana. A reline is the process whereby the furnace is completely shut down and the interior lining is updated. U.S. Steel didn't get a construction permit for the reline ? it argues a permit wasn't necessary ? and now more than twenty years later the EPA says it should have.

In order to understand the issues in this case, one must understand the permitting process under the regulatory scheme established by the Clean Air Act (the " CAA" ). There are two types of permits: construction permits and operating permits. Midwest Generation, 720 F.3d at 645. Both types of permits are at issue in this case. But for present purposes, because U.S. Steel's Motion to Dismiss is only attacking Count One (and a portion of Count ...


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