United States v. LTV Steel Company, Inc., Civil Action No. 98-570 (W.D. Pa. 9/29/2000)
| Decision Date | 29 September 2000 |
| Docket Number | Civil Action No. 98-570. |
| Parties | UNITED STATES OF AMERICA Plaintiff, ALLEGHENY COUNTY HEALTH DEPARTMENT, Intervenor Plaintiff, GROUP AGAINST SMOG AND POLLUTION, Intervenor Plaintiff, v. LTV STEEL COMPANY, INC., Defendant. |
| Court | U.S. District Court — Western District of Pennsylvania |
Henry Miller, III, Allegheny County Health Department, Pittsburgh, PA, for intervenor-plaintiff.
Paul M. Pohl, John D. Goetz, Kevin P. Holewinski, Jones, Day, Reavis & Pogue, Pittsburgh, PA, for defendant.
William V. Luneburg, University of Pittsburgh School of Law, Pittsburgh, PA, intervenor-plaintiff.
William Roy Crum, Jr., Pittsburgh, PA, movants.
The United States of America filed the instant civil action for penalties for defendant LTV Steel Company, Inc.'s ("LTV") alleged violations of certain Allegheny County Health Department ("ACHD") Rules and Regulations governing air emissions from coke oven batteries within Allegheny County. Pending before the court are several motions which we address below.
The facts as alleged in the complaint are as follows. LTV owns, and until February 28, 1998, operated, a coke production plant located in the Hazelwood Section of Pittsburgh, Pennsylvania (the "Pittsburgh Coke Works"). Air emissions from the Pittsburgh Coke Works were subject to Article XXI, Sections 2105.21(e) and 2105.21(f), and Article XX, Sections 520.F and 520.G of the ACHD Rules and Regulations. Article XXI governs emissions that occurred on or after July 12, 1996, and Article XX governs emissions that occurred before July 12, 1996.1
ACHD has been responsible at the local level for monitoring LTV's compliance with Sections 520 and 2105.21 at the Pittsburgh Coke Works, in coordination with the United States Environmental Protection Agency ("U.S. EPA"). Sections 520 and 2105.21 of the ACHD Rules and Regulations are part of Pennsylvania's State Implementation Plan (the "Pennsylvania SIP") which is a program designed to implement the Federal Clean Air Act (the "CAA"). See 40 C.F.R. § 52.2020. Thus, Sections 520 and 2105.21 are federally enforceable under the CAA. 42 U.S.C. § 7413 (a)(1) and (b)(1)
In the last quarter of 1994, ACHD inspectors detected a few pushing emissions violations. Such violations continued through 1995 and early 1996. In November 1996, U.S. EPA inspectors also observed numerous pushing emissions violations. In 1995, ACHD inspectors detected sporadic combustion stack emissions violations. In October and November 1996, U.S. EPA inspectors also observed combustion stack emissions violations.
U.S. EPA issued a Notice of Violation ("NOV") on March 6, 1997, informing LTV that it was in violation of Sections 520.F and 520.G. A revised NOV was issued by U.S. EPA on September 21, 1998, clarifying that the violations occurring before July 12, 1996 were governed by Sections 520.F and 520.G and that the violations on or after July 12, 1996 were governed by Sections 2105.21(e) and (f).
LTV permanently shut down all coke oven batteries at the Pittsburgh Coke Works on February 28, 1998. The United States commenced the instant suit under the CAA on March 25, 1998, to recover a civil penalty for the alleged air emission violations that occurred at the Pittsburgh Coke Works over the past few years.
LTV moves for leave to file a supplemental brief to its motion to dismiss.
LTV has already filed a brief in support of its motion to dismiss with supporting exhibits, and a reply brief, measuring approximately two inches in height. LTV now seeks to add an additional two inches in briefs and exhibits. A review of the proffered materials reveals that they add little to the already exhaustive presentation and discussion of issues contained in LTV's current submissions.
Accordingly, LTV's motion for leave to file a supplemental brief (Doc. No. 111) is DENIED.
The United States filed a motion seeking the withdrawal of two of three affidavits it submitted in opposition to LTV's motions to dismiss. LTV opposes the withdrawal of the affidavits and moves to dismiss the United States,' amended complaint with prejudice as a sanction for what it contends was the commission of a fraud on the court by the United States.
The three affidavits are as follows:
1) "Affidavit of Michael I. Ioff," attached as Exhibit 1 to the Exhibits In Support of The United States' Response To LTV's Motion To Dismiss (Doc. No. 23) ("Affidavit No. 1")
2) "Affidavit of Michael I. Ioff," attached as Exhibit 3 to the Exhibits In Support of The United States' Response To LTV's Motion To Dismiss The Amended Complaint (Doc. No. 59) ("Affidavit No. 2")
3) "Revised Affidavit of Michael I. Ioff", submitted on October 22, 1999 with the United States' Motion To Substitute Exhibit (Doc. No. 62) ("Affidavit No. 3")
Affidavit No. 1 was submitted in opposition to LTV's motion to dismiss the initial complaint, which was denied as moot in light of the United States' filing of a notice of intent to file an amended complaint. Affidavit No. 2 was submitted in opposition to LTV's motion to dismiss the amended complaint. Affidavit No. 1 and Affidavit No. 2 differ as to Mr. Ioff's educational credentials. In Affidavit No. 1, Mr. Ioff states that he holds "both a Bachelor of Science and a Master of Science degree in Civil/Structural Engineering for the University of Sankt-Petersburg, Russia. . . ." Affidavit No. 1 at ¶ 3. In Affidavit No. 2, Mr. Ioff states that he holds "a Diploma as Civil-Construction Engineer from the Leningrad Order of the Labor Red Flag Institution of Civil Engineering .. . [and also] holds a Credential for successfully completing advanced courses for engineers from the Leningrad Order of Lenin State University (currently the University of Sankt-Petersburg). . . ."
Affidavit No. 2 at ¶ 3. In both Affidavit No. 1 and No. 2, however, Mr. Ioff states that his:
Diploma in engineering was evaluated by International Consultants of Delaware, Inc. (ICD) which is approved by the U.S. Office of Education as a provider of specialized services to evaluate foreign educational credentials for a comparable level of educational achievement in the United States [and that] ICD considered the Diploma to be the equivalent to a Bachelor of Science degree in the United States.
Affidavit No. 1 at ¶ 3 and Affidavit No. 2 at ¶ 3.
On October 22, 1999, the United States filed a motion to substitute Affidavit No. 2 with Affidavit No. 3, which the court granted. The United States indicated in the motion that the substitution was being sought to correct a few inaccuracies in Affidavit No. 2. Affidavit No. 3 differs from Affidavit No. 2 in two respects. First, Mr. Ioff further elaborates on his educational credentials stating:
I hold a Certificate from the Leningrad Order of Lenin State University, USSR (currently the University of Sankt-Petersburg, Russia) for successfully completing elected advanced courses for engineers. . . . As a result of my emigration, my copy of the Certificate remained in the USSR until 1985, when it was mailed to me. As a result of this delay, the Certificate was not submitted to ICD for evaluation and, consequently, was not considered in their evaluation process in 1983. As a whole, I consider my educational credentials equal to a Master's degree in Structural Engineering in the United States.
The other difference in Affidavits No. 2 and No. 3 is with regard to Mr. Ioff's status as a certified smoke opacity reader. In Affidavit No. 2, Mr. Ioff states:
I have been certified as a smoke opacity reader by successfully completing an initial certification course in 1993, and thereafter semi-annual recertification courses conducted by personnel from the Air Pollution Training Program, Department of Environmental Sciences, Rutgers University, since 1993.
Affidavit No. 2 at ¶ 4. In contrast, Mr. Ioff states in Affidavit No. 3:
I am a certified smoke opacity reader. I initially obtained my certification course at the Environmental and Occupational Health Science Institute (EOHSI) affiliated with the Rutgers University in Piscaraway, New Jersey on May 27-28, 1993. Since that time, I have successfully completed recertification courses on a semi-annual basis with one exception for the period from November 1997 through May 1998. The recertification courses were conducted by personnel from either EOHSI/Rutgers University or Eastern Technical Associates of Raleigh, North Carolina.
Mr. Ioff was deposed by counsel for LTV on October 25 and 26, 1999, shortly after the filing of the United States' October 22, 1999 substitution motion. The United States indicated in the instant motion to withdraw Affidavit No. 2 and No. 3 that Mr. Ioff's deposition raised certain concerns regarding his credentials that the government wished to investigate. The United States maintained that it would report the results of the investigation to the court but in the meantime, the government was moving to withdraw Mr. Ioff's affidavits.
The United States recently filed the results of its investigation. See United States' Report To Court Concerning Michael Ioff (Doc. No. 113). The United States retained Orion Management International ("Orion"), a private investigation service, to...
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