Keep Pittsburgh Water Public–Using Your Voice in the May 20th Election

What is the ballot referendum?  

On May 20th, Pittsburgh voters will get to decide whether they want to keep their water systems public. The question will be displayed on the ballot as follows:  

“Shall the Pittsburgh Home Rule Charter be amended and supplemented by adding a new Article 11:  RIGHT TO PUBLIC OWNERSHIP OF POTABLE WATER SYSTEMS, WASTEWATER SYSTEM, AND STORM SEWER SYSTEMS, which restricts the lease and/or sale of the City’s water and sewer system to private entities?” 

Voting YES is a vote for public water. Voting YES would add an amendment to the Pittsburgh Home Rule Charter and protect our water systems from privatization.  

Voting NO would fail to protect Pittsburgh water systems from privatization by rejecting the proposed Home Rule Charter Amendment. 

The effort to place this question on the ballot was community-led by the Our Water Table Coalition. The referendum has received broad support by Mayor Gainey, Pittsburgh City Council, Pittsburgh Water (former known as Pittsburgh Water and Sewer Authority), Fair Shake Environmental Legal Services, and more. 

Who can vote? 

Anyone who resides in the City of Pittsburgh and is registered to vote!  

Independents, Greens, Libertarians, Republicans, Democrats, etc. can all vote for ballot measures! Unlike a normal primary election, party affiliation does not matter! 

Check your voter registration here: Voter Registration Status  

• Note: many people are taken off the registration list after a Presidential Election so be sure to check! 

Not sure where to vote? Check here: Polling Place Information 

Why is it important?  

Water is a human right, and we should protect water as a public resource rather than allowing it to become a commodity for profit. Unfortunately, Pennsylvania has seen an increase in efforts to privatize our water in recent years. According to Food and Water Watch, 1 in 3 Pennsylvanian’s are served by a private water system, as compared to the national average of 1 in 10.  

Privatized water systems have been shown to cause an increase to water rates. In Pennsylvania, some residents have seen price hikes as high as 100%, forcing families to bear another financial burden on a service that is essential. Both their rates and management practices are influenced by their pressure to report profitable margins to shareholders and investors, rather than simply being held accountable to the customers they serve. 

Image sourced from Food & Water Watch, Water Privitization: Facts and Figures

By contrast, public water systems are directly held accountable by the public. It gives the city more control over the water supply and as a result is more transparent. Public water systems have lower rates, more reliable, and are more likely to make long-term investments in supporting public health.  

Why now?  

Pittsburgh has faced efforts to privatize over the years. Most notably, Pittsburgh’s water systems were previously managed by a private company, Veolia. In 2016, their contract was terminated after Pittsburgh residents experienced widespread issues and a lawsuit was filed. Former Pittsburgh Mayor Peduto stated, “It is clear Veolia cared more about their bottom line than providing residents with the high-quality water and customer service they deserve.” The same private company, was sued for allegations of “fail[ing] to properly identify corrosion control treatment issues, which exacerbated and prolong[ing] the water crisis” in Flint, Michigan. Additionally, the Pennsylvania Legislature shows little signs of reigning in the privatization efforts across the state. 

We cannot let Pittsburgh fall victim to the increasing privatization of Pennsylvania’s water systems.  While the current Board of Pittsburgh Water is committed to maintaining operations as a public entity, there are no laws that would prohibit future Board members from selling the water system to a private company. Passing this ballot referendum would ensure that the Pittsburgh Home Rule Charter prohibits privatization of our water and sewer systems and preserves public ownership.

How can you support? 

Individuals  

• Sign-on to endorse 

• Share this blog on social media 

• Make a plan to vote and ask five of your friends to come vote 

• Request a mail-in ballot and vote from the comfort of your home 

• Join the Pittsburgh United’s Our Water Table Coalition for efforts to raise awareness about the ballot referendum  

Organizations  

• Share general awareness that the question will be on the ballot   

• Note: Non-profits can conduct unlimited non-partisan get out the vote and voter registration drive efforts.* 

• Sign-on to endorse 

• Note: Non-profits can support ballot initiatives! There are some limitations, such as the expenditure limitations and expenses may be subject to reporting requirements. To learn more about non-profits and ballot initiatives see our previous blogpost here: Tips for Navigating an Election Year as a 501(c)(3) Nonprofit — Fair Shake Environmental Legal Services.* 

• Share this blog on social media  

Fair Shake Environmental Legal Services is a 501(c)(3) non-profit law firm and we endorse passage of this ballot referendum. At Fair Shake we believe all people and communities should have access to the tools of change, and that everyone has the right to make decisions about the air, water, and land where they live, work, and play. Our organizational decision-making is guided by ensuring our work supports community-led efforts that promotes environmental justice outcomes.  

The efforts to place this referendum on the ballot have been community-led by the Our Water Table Coalition. We believe protecting public access to water is an environmental justice issue because too often marginalized communities face systemic barriers to clean and affordable water. Our team provided assistance in navigating the ballot referendum process and chose to endorse this referendum because ballot referendums have the opportunity to play a unique role for communities that are seeking to protect environmental rights, as well as for direct democracy and community-driven decision-making.  

"I am grateful to have the chance to support this community-driven ballot referendum, especially at a time when public services and environmental justice are under attack. This initiative not only reflects our shared commitment to affordable, safe water but also demonstrates the power communities have to create change.” Brooke Christy, Fair Shake Equal Justice Works Fellow, sponsored by Fenwick & West LLC. 

*Disclaimer: Navigating electoral advocacy as a 501(c)(3) is not always easy but we hope these tips are helpful for those interested. All the information provided is for general educational purposes and does not constitute legal advice. This is merely intended to address questions that our Fair Shake team is frequently asked. If you have questions or concerns, we encourage you to reach out to our Fair Shake team! We provide legal services on a sliding-scale and have experience serving as general counsel to non-profit organizations. Other resources that may be helpful for nonprofit organizations:  

• IRS: Fact Sheet 

• Non-profit Vote: Staying Nonpartisan: Permissible Election Activities Checklist 

• Alliance for Justice: Practical Guidance: Nonprofit Voter Assistance Series 

• Alliance for Justice: Ballot Measure Toolkit 

• Fair Shake: ‘green-light’ and ‘red-light’ lobbying and advocacy activities for 501(c)(3)’s 

What Does the Edgar Thompson Class Action Settlement Mean for Me?

For Educational Purposes Only - This presentation is not legal advice and people should consult with an attorney about their specific rights before taking action.

Update on the East Palestine Train Derailment

by Addison Caruso, Esq. - Staff Attorney at Fair Shake ELS

Much has happened in the East Palestine community in the past year and a half since the Norfolk Southern train derailment – lawsuits have been filed, government investigations were carried out, and laws were proposed in response.    Many nonprofit organizations, including Fair Shake, have worked to help the community deal with the accident and the collective response.  As a nonprofit law firm, Fair Shake’s primary goal in reaction to the derailment has been to educate the community on the legal response.  We’ve done this by helping to hold free legal clinics for community members, by providing advice to responding organizations, and by giving general legal education about the accident.   In keeping with Fair Shake’s legal education goals and given the scope of the response to date, we believe that a general update on the derailment is in order.  As such, here is where things stand as of August 2, 2024:

Summary

Around 9:00 pm on February 3, 2023, a Norfolk Southern freight train derailed in East Palestine, Ohio.[1] Of the 150 train cars, 50 were affected by the derailment, with the rest being uncoupled and removed from the scene.[2] Approximately twenty of those derailed cars contained hazardous materials, such as vinyl chloride.[3] Following the derailment, acting on information from Norfolk Southern and its contractors that a dangerous chemical reaction was occurring within a vinyl chloride train car, the incident commander managing the response made a decision to vent and burn the tanks obtaining vinyl chloride.[4] It is still unclear what lasting health effects this decision had on the surrounding community, but following the derailment, residents have reported a wide variety of health symptoms such as eye irritation, skin lesions, brain fog, and raised concerns about cancer.[5] Following the derailment, studies were undertaken surrounding the accident, legislation was proposed to prevent similar derailments from occurring in the future, and lawsuits were filed by both individuals and the federal/state governments against Norfolk Southern. Updates on each of these responses to the derailment are detailed below.

National Transportation Safety Board Investigation

Following the derailment, the National Transportation Safety Board (NTSB)  conducted an investigation into Norfolk Southern’s conduct that specifically focused on: (1) communications about hazards and emergency responder preparedness for the initial response to the derailment; (2) circumstances that led to the decision to vent and burn the five vinyl chloride tank cars; (3) the types or patterns of freight car wheel bearing failure, such as overheating, wear, or material defects, and failures of the wayside detection systems; and (4) tank car derailment damage, crashworthiness, and hazardous materials package information.[6] During this investigation, NTSB staff spoke with representatives from Norfolk Southern, held investigative hearings, and reviewed various reports published during and after the vent burning.[7]

As of July 5, 2024, the NTSB has not published its final report but has released an abstract of the report.[8] One of the more notable findings from the report is that the venting and burning of the five train cars carrying the toxic chemical vinyl chloride, which occurred three days after the derailment, was unnecessary and released 115,000 gallons of vinyl chloride into the environment.[9] They concluded that the decision to vent and burn rather than pursue alternative methods was “based on incomplete and misleading information provided by Norfolk Southern” and that they withheld critical data and context about the state of the train cars from the governor of Ohio and first responders.[10] Furthermore, Jennifer Homendy, the NTSB chair, said that Norfolk Southern “demonstrated complete disregard” for the rules and regulations put in place to protect the integrity of the investigation and described the company’s behavior as “unprecedented, reprehensive, unethical and inappropriate.”[11]  As of August 2, 2024,  the final report has not yet been published but should be in the next few weeks.[12]

Department of Justice and Ohio Attorney General Lawsuits

The U.S. Department of Justice (DOJ) filed a lawsuit against Norfolk Southern (Case No. 4:23CV00675) along with the Ohio Attorney General’s (AG) office (Case No. 4:23CV00517). Both cases were consolidated under the AG’s case in the Northern District of Ohio.

Department of Justice Lawsuit: On May 23, 2024, the DOJ and EPA announced a settlement valued at over $310 million with Norfolk Southern.[13] In the settlement, Norfolk Southern agreed to address and pay for the damage caused by the February 3, 2023, train derailment.[14] The settlement, subject to court approval, requires Norfolk Southern to pay a $15 million civil penalty, improve rail safety, pay for health monitoring and mental health services for the surrounding communities, and fund long-term environmental monitoring.[15]Specifically, Norfolk Southern has agreed to:[16]

·      Spend $235 million for all past and future cleanup costs;

·      Pay $25 million for a 20-year community health program;

·      Pay $15 million to implement a long-term monitoring of groundwater and surface water;

·      Pay $15 million for a private drinking water monitoring fund;

·      Implement a waterways remediation plan with an estimated budget of $6 million in Leslie Run and Sulfur Run to address historical pollution and reduce non-point source pollution through infrastructure upgrades and stormwater management; and

·      Pay $175,000 for natural resource damages to be used by the United States to restore, rehabilitate, replace, or acquire the natural resources injured because of the derailment.[17]

Additionally, the consent decree requires Norfolk Southern to work on projects that will improve the safety of transporting hazardous materials by rail, which includes the installation of additional devices to detect overheated wheel bearings early enough to prevent derailment.[18] These enhancements are estimated to cost Norfolk Southern approximately $200 million.

Following the settlement, the DOJ set aside time to answer the public’s questions about the proposed settlement on July 15 and 16 at the EPA Welcome Center in East Palestine located at 25 N. Market St., East Palestine, OH 44413.[19] The EPA also allowed members of the public to comment on the settlement up until August 2, 2024.[20] The DOJ will read all the comments it receives and consider whether any changes to the settlement are necessary, and tell the Court why it decides to make a change, or not, based on the comments.[21] The full settlement is available here.

Ohio Attorney General Lawsuit: On May 23, 2024, the Ohio Attorney General announced, shortly after the DOJ and EPA announcement, that they would not be participating in the settlement out of concerns that it could undercompensate the residents of East Palestine and wanted to allow the NTSB to complete its investigation into the circumstances leading up to the derailment and the decision-making process which resulted in the “vent and burn” of the derailed tanker cars.[22] Recently, on June 15, 2024, Ohio Attorney General Dave Yost held a community discussion in East Palestine to provide updates on the case and discuss next steps.[23]Specifically, the discussion was meant to “gauge the public’s reaction to the U.S. government’s settlement, direct whether or not Ohio will object to it in court and to help steer any negotiation the state may have with the railroad concerning its own lawsuits.”[24] He reiterated that Ohio “isn’t interested in settling” and that one of his priorities was to get Norfolk Southern to agree to create a health fund for the community.[25] It is unclear whether a settlement between Norfolk Southern and the state of Ohio will occur in the near future.

Class Action Lawsuits: Following the derailment, numerous class action lawsuits were filed against Norfolk Southern on behalf of individuals in the East Palestine community. They were consolidated under theFeezle lawsuit (Case No. 4:23CV0242) in the Northern District of Ohio. On April 9, 2024, Norfolk Southern and the attorneys representing the class actions suits agreed to a Settlement where Norfolk Southern would pay $600 million in total to residents and their attorneys.[26]  Approximately 190,000 households are entitled to the funds along with 15,000 businesses.[27] The households that were closest to the derailment site will likely receive about $70,000, but payments will vary depending on family size, extent of property damage, whether a resident was permanently relocated, etc.[28] The amount a family receives will also depend on whether they have received any previous payments from Norfolk Southern.[29]

This Settlement, if approved by the court, would resolve all class action claims within a 20-mile radius from the derailment and resolve personal injury claims for all individuals within 10-miles of the derailment.[30] The Settlement does not include or constitute any admission of liability, wrongdoing, or fault.[31] Individuals in East Palestine must have filed a request for an exclusion from the settlement or objected to its terms by July 1, 2024.[32] To receive money under the Settlement, an individual must submit a claim by August 22, 2024.[33] If the Settlement applies to you, you can submit an individual claim here. If an individual does not submit a claim, or file an exclusion or objection to the settlement, they will not receive any benefits from the Settlement and will be bound by the terms of the Settlement.[34] They will not, however, give up any past, present, or future personal injury claims.[35] On September 25, 2024, a hearing will be in court held to determine if the Settlement is a fair, reasonable, and adequate resolution, and, if it is determined to be so, the Settlement will be finalized.[36] More information about the Settlement can be found here: https://www.eastpalestinetrainsettlement.com/.

Federal Legislation: Introduced in March 2023, less than a month after the derailment, Senators Brown (D-OH), Vance (R-OH), Fetterman (D-PA), Casey (D-PA), Rubio (R-FL), and Hawley (R-MO),  introduced in the Senate the Railway Safety Act (S.576).[37] This bill, if passed, would increase safety requirements for all rail carriers and trains transporting hazardous materials, like the train that passed through East Palestine.[38] Specifically, it would require that all rail carriers or shippers that carry hazardous materials:[39]

·      Provide state emergency response commissioners with advanced notice and information about the hazardous materials;

·      Reduce blocked rail crossings; and

·      Require railway companies to comply with certain requirements regarding train length and weight specifications, track standards, speed restrictions, and response plans.

The bill also establishes requirements for wayside defect detectors, which detect defects and failures along the tracks, such as wheel bearing failures, while increasing fines for noncompliance with safety regulations.[40]Additionally, the bill increases Department of Transportation rail car inspection regulations, requires a minimum two-person crew for certain freight trains, and provides funding for research and development to improve railway safety, among other provisions.[41] The bill has been referred to out of its Senate committee but as of August 2, 2024, the Senate has not held a full vote on the bill because it likely does not have the sixty votes needed to overcome a Senate filibuster.[42]

[1] https://www.epa.gov/east-palestine-oh-train-derailment/background

[2] https://www.epa.gov/east-palestine-oh-train-derailment/background

[3] https://www.epa.gov/east-palestine-oh-train-derailment/background

[4]https://www.ntsb.gov/investigations/Documents/East%20Palestine%20Ohio%20Board%20Meeting%20Summary%20with%20Amendments.pdf (page 1)

[5] https://www.cbsnews.com/news/east-palestine-ohio-train-derailment-residents-health-issues-norfolk-southern/

[6] https://www.ntsb.gov/news/events/Pages/East-Palestine-Hearing-Event.aspx

[7] https://insideclimatenews.org/news/27062024/norfolk-southern-east-palestine-derailment-ntsb-investigation/; https://data.ntsb.gov/Docket/?NTSBNumber=RRD23MR005

[8] https://www.ntsb.gov/news/press-releases/Pages/NR20240625.aspx

[9] https://insideclimatenews.org/news/27062024/norfolk-southern-east-palestine-derailment-ntsb-investigation/

[10] https://insideclimatenews.org/news/27062024/norfolk-southern-east-palestine-derailment-ntsb-investigation/

[11] https://insideclimatenews.org/news/27062024/norfolk-southern-east-palestine-derailment-ntsb-investigation/

[12] https://www.ntsb.gov/news/press-releases/Pages/NR20240625.aspx

[13] https://www.justice.gov/opa/pr/united-states-reaches-over-310-million-settlement-norfolk-southern-address-harms-caused-east

[14] https://www.justice.gov/opa/pr/united-states-reaches-over-310-million-settlement-norfolk-southern-address-harms-caused-east

[15] https://www.justice.gov/opa/pr/united-states-reaches-over-310-million-settlement-norfolk-southern-address-harms-caused-east

[16] https://www.justice.gov/opa/pr/united-states-reaches-over-310-million-settlement-norfolk-southern-address-harms-caused-east

[17] https://www.justice.gov/opa/pr/united-states-reaches-over-310-million-settlement-norfolk-southern-address-harms-caused-east

[18] https://www.justice.gov/opa/pr/united-states-reaches-over-310-million-settlement-norfolk-southern-address-harms-caused-east

[19] https://www.epa.gov/system/files/documents/2024-07/env-enforcement-3764639-v3-east-palestine-fact-sheet-final_7-8.pdf (page 1).

[20] https://www.epa.gov/system/files/documents/2024-07/env-enforcement-3764639-v3-east-palestine-fact-sheet-final_7-8.pdf (page 1).

[21] https://www.epa.gov/system/files/documents/2024-07/env-enforcement-3764639-v3-east-palestine-fact-sheet-final_7-8.pdf

[22] https://www.ohioattorneygeneral.gov/Media/News-Releases/May-2024/Senator-Vance-and-Attorney-General-Yost-React-to-E

[23] https://www.morningjournalnews.com/news/local-news/2024/06/ohio-attorney-general-hears-from-east-palestine-residents/

[24] https://www.morningjournalnews.com/news/local-news/2024/06/ohio-attorney-general-hears-from-east-palestine-residents/

[25] https://www.morningjournalnews.com/news/local-news/2024/06/ohio-attorney-general-hears-from-east-palestine-residents/

[26] https://www.eastpalestinetrainsettlement.com/files/Settlement_Agreement_5dfe847545.pdf (page 3)

[27] https://www.post-gazette.com/local/region/2024/06/30/east-palestine-settlement-train-derailment-ntsb/stories/202406280119

[28] https://www.post-gazette.com/local/region/2024/06/30/east-palestine-settlement-train-derailment-ntsb/stories/202406280119

[29] https://www.eastpalestinetrainsettlement.com/files/Settlement_Agreement_5dfe847545.pdf (page 22)

[30] https://www.eastpalestinetrainsettlement.com/files/Settlement_Agreement_5dfe847545.pdf (pages 28–29).

[31] https://www.eastpalestinetrainsettlement.com/files/Settlement_Agreement_5dfe847545.pdf (page 30).

[32] https://www.eastpalestinetrainsettlement.com/

[33] https://www.eastpalestinetrainsettlement.com/

[34] https://www.eastpalestinetrainsettlement.com/files/Settlement_Agreement_5dfe847545.pdf (exhibit D page 6)

[35] https://www.eastpalestinetrainsettlement.com/files/Settlement_Agreement_5dfe847545.pdf (page 29).

[36] https://www.post-gazette.com/local/region/2024/06/30/east-palestine-settlement-train-derailment-ntsb/stories/202406280119

[37] https://www.congress.gov/bill/118th-congress/senate-bill/576

[38] https://www.congress.gov/bill/118th-congress/senate-bill/576

[39] https://www.congress.gov/bill/118th-congress/senate-bill/576

[40] https://www.congress.gov/bill/118th-congress/senate-bill/576

[41] https://www.congress.gov/bill/118th-congress/senate-bill/576

[42] https://www.congress.gov/bill/118th-congress/senate-bill/576/all-actions

THE SHELL CONSENT ORDER – WHAT HAPPENED, WHAT DOES IT MEAN, AND WHAT COMES NEXT?

On May 24, 2023, the Pennsylvania Department of Environmental Protection (DEP) entered into a Consent Order and Agreement (COA) with Shell. This COA orders Shell to pay $5 million into a fund that benefits the community in Beaver County plus an additional $4.9 million in civil penalties to the state’s Clean Air Fund.

Background: Why Was the COA Necessary?

The facility, the Shell Polymers Monaca Site, is an ethylene cracker plant located in Potter and Center Townships in Beaver County, Pennsylvania. Shell’s plan to open and operate the facility was first approved by the Pennsylvania Department of Environmental Protection in 2015, with amendments in March 2021 and September 2022. The Plan Approval allowed Shell to begin operations at the facility, but it set limits on the amount of air pollutants that could be released from the facility over a 12-month period.

Shell is currently operating within the commissioning phase, meaning they are starting up operations and getting the equipment running.  However, beginning in September 2022, they began to approach their 12-month limits on several types of air contaminants.  Over the next six months, the facility went past their limits, including:

• The facility exceeded its rolling 12-month limit on Volatile Organic Compounds (VOCs) in each month between October 2022 to April 2023;

• Carbon Monoxide (CO) emissions exceeded the 12-month limitations between February and April of 2023, and;

• Nitrogen Oxides (NOx) and Hazardous Air Pollutant (HAP) emissions exceeded their limits in every month between December 2022 and April 2023.

• Each air contaminant and each month in which it was exceeded counts as one violation of the approved plan.

Additionally, Shell’s facility had multiple flaring violations, wastewater treatment violations, and violations of good operating practices of an air contamination source. This activity is unlawful under the Air Pollution Control Act, Pennsylvania’s law that governs air quality and emissions. Shell attributes some of the violations to malfunctions in its equipment. As a result, the facility temporarily shut down on March 25, 2023 to make repairs.

The Present: What does the COA Do?

A consent order is an agreement between an administrative agency like the Department of Environmental Protection and a private party such as Shell that can be used to enforce the agency’s rules. In this case, the Department of Environmental Protection has ordered Shell to lower their emissions and comply with their original Plan Approval, and Shell has agreed to the Department’s terms by signing it as well. The consent order adds several new mandatory monitoring and reporting requirements for Shell as the facility resumes operations. Shell will be required to do additional modeling of the malfunctioning flares, monthly reporting of the facility’s emissions, and details of their plans for making repairs.

            Further, Shell is required to set aside $5 million in a community fund “to benefit the environment, health and quality of life of the community near the Facility.” DEP required their Office of Environmental Justice to create the rules for this $5 million community fund.  To help create these rules, the Office of Environmental Justice created a steering comprised of DEP members and local community organization representatives to determine where these funds are invested. The Steering Committee created and approved a Environmental Mitigation Community Fund Protocol which details the process by which the $5 million can to be spent.  The Protocol includes some of these requirements:

• All eligible projects will be based in Beaver County.

• One project must provide independent and regular air monitoring.

• One project must  educate and engage the community on how it can create ongoing solutions to improve to health and qualify of life in communities close to the Shell plant.

• Only Beaver County nonprofits or entities that partner with them can apply.

• A disclaimer must be attached to all publicity, press release, and/or advertisement of approved Community Projects, which reads: “This Community Project was funded, in whole or part, by the Environmental Mitigation Community Fund created pursuant to a Consent Order and Agreement that was executed between Shell Chemical Appalachia, LLC and the Pennsylvania Department of Environmental Protection, regarding violations of the Air Pollution Control Act and regulations.”

• The fund will be overseen and administered by an independent trustee.

The COA also describes the civil penalties that Shell will need to pay because of its air pollution violations between September 2022 and April 2023. DEP is requiring Shell to pay a penalty of $4,935,023 to the state’s Clean Air Fund.

Moving Forward: What Comes Next?

It is important to understand that this consent order does not shut down the Shell Polymers Monaca facility. Shell resumed operations at the facility in early June. However, they are now legally bound to the terms of the consent order and agreement and have admitted to the violations that DEP stated. If they do not comply with the additional reporting, modeling, and monitoring requirements, Shell will be required to pay an additional $1,000 for each day that they are not in compliance with the new plan approval.

Within 60 days of the COA, Shell will meet with DEP to come up with the protocol on how projects will be selected and supported to benefit the community. This will determine how the $5 million community fund will be spent and who will determine what gets funding.

Regarding the $4.9 million in civil penalties, those fees only cover Shell’s past violations. If the facility exceeds its 12-month limitations in any month going forward, they will be required to pay additional fines for each contaminant that is over the limit for each month in which the limit was exceeded. Shell estimated that they should achieve compliance with all of their 12-month limitations by November of 2023. This may result in DEP imposing additional fines for exceedances in the coming months as they continue operations.

By Lillian Ostrander, Fair Shake Legal Intern

Proposed Aliquippa Steel Manufacturing Plant - What You Need To Know

Photograph of an artist’s rendering of the proposed 72 Steel manufacturing plant, in Chrissy Suttles, Company to build $218 million steel plant on former J&L land in Aliquippa, Beaver County Times (May 16, 2023), https://www.timesonline.com/story/news/local/2023/05/16/company-to-build-218-million-steel-plant-on-former-jl-land-in-aliquippa-beaver-county/70219169007/.

On May 16, 2023, 72 Steel held a groundbreaking ceremony to announce its plans to build a new steel manufacturing plant in Aliquippa, PA. 72 Steel will build the proposed plant at the former Jones & Laughlin/LTV steel mill site. 72 Steel is a Brooklyn, NY based company that distributes steel products primarily from their Brooklyn service center. Private investors associated with 72 Steel from New York and New Jersey will fund the projected $218 million plant. 72 Steel is also looking to receive federal tax credits made possible by the Biden Administration’s Bipartisan Infrastructure Law, allocating funds to workforce hubs such as Pittsburgh.

This Aliquippa facility will make steel parts for 72 Steel’s products using an Electric Arc Furnace (EAF). The plant is projected to produce 500,000 tons of steel rebar a year with the potential to expand to steel beam and anchor production. The Aliquippa plant will be 72 Steel’s first venture into steel manufacturing.  72 Steel expects a production capacity and output value of $400 million. Despite the ambitious planning, 72 Steel has yet to close on the property according to the current landowner, Chuck Betters. Also, 72 Steel has yet to complete the appropriate local and state land development permits prior to construction. Much of the permitting process includes opportunities for public participation and comment. The permits listed below are the anticipated stamps of approval 72 Steel needs to satisfy prior to construction.

Local Permits

At the local level, 72 Steel (through its developer) must satisfy multiple different permits and zoning requirements before it can begin constructing the manufacturing plant. Below is a list of local permits and opportunities for public participation.  See Fair Shake's Commenting Tips for ideas and strategies for public commenting.

Preliminary Land Development Plan

72 Steel must submit a preliminary land development plan application that complies with the Aliquippa Subdivision and Land Development Ordinance (SALDO). The plan will include a comprehensive description of the steel plant development including land surveys, erosion plans, stormwater management plans, construction details, phasing schedules, traffic impact studies and other SALDO required documentation. 72 Steel will submit the application to the zoning officer who sends it to the city engineer and planning commission. The city engineer and planning commission will submit recommendations of approval, approval with conditions, or disapproval. Both the city engineer and the planning commission consider the SALDO, zoning ordinances, and other city ordinances that are relevant. If recommended for approval, the city council may hold a public hearing or meeting discussing the application and will make a final approval decision no later than ninety days after filing.

Before approval, the city will provide a complete preliminary application for public review and public written or oral comment. The public comments (written or oral) will be received at a public hearing or the next Aliquippa City Council meeting at City Hall where members of the public or organizations can request to be placed on the agenda. Upon a final preliminary approval decision, members of the public can file an appeal to the City Council decision within thirty days in the Court of Common Pleas. In the case of an appeal, the appellant (person appealing) must establish that the approved development directly affects the person’s property rights. The preliminary approval process provides some of the most opportunities for public participation.

Final Land Development Plan

Once a preliminary plan is approved, 72 Steel will file a final land development plan application. This approval process is similar to the preliminary plan process except that a condition of the final approval is the completion of a developer’s agreement. This process typically involves less deliberation since most of the issues were discussed in the preliminary approval process.

Similarly, to the preliminary approval process, the public is invited to review and comment on the final plan application. However, there are more opportunities for City Council consideration during the preliminary plan stage since most of the land development plan is set in place at the final stage. Members of the public whose property rights are directly affected by the land development activities can waive their right to appeal at the preliminary stage until the final plan is approved.

Zoning Concerns

Since the site is located within an Industrial (I) zoning district, 72 Steel will most likely not have to request any zoning adjustments. In the case that it does, some of the zoning related concerns may include zoning variances, conditional use applications, special exceptions, rezoning, or substantive changes to the Zoning Ordinance.

The city will make all proposed zoning issues known to the public and will provide opportunities for public comment. Members of the public can attend the specified zoning hearing board meeting to challenge zoning variances, special exceptions, rezoning, or any substantive changes to the Ordinance as a protestant. Members of the public can attend the specified city council meeting to challenge any conditional use applications as a protestant. To qualify as a protestant, the zoning exception or change in question must directly affect the individual’s property rights.

Other Local Permits

Once the final land development plan is approved, 72 Steel will submit building permit applications to the city council. There is little opportunity for public participation at this stage since building permits are usually not made available to the public.

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State Permits

72 Steel (through its developer) will have to apply for permits at the state level as well. State permits come with their own opportunities for public participation. .  See Fair Shake's Commenting Tips for ideas and strategies for public commenting. These permits are listed below.

NPDES Permits for Discharges of Stormwater Associated with Construction Activities

72 Steel will have to apply for a NPDES stormwater permit for construction and postconstruction stormwater discharges which may contain various types of pollutants. In this application, 72 Steel will need to include their plans to control stormwater erosion, post construction management, as well as their compliance with the Beaver County Act 167 Plan for stormwater management. When the application is submitted to the PA Department of Environmental Protection (DEP), the public will be notified through the most recent volume of the PA Bulletin under the Department of Environmental Protection section.

72 Steel has yet to apply for a NPDES construction permit (as recent as Bulletin Number 26, Volume 53, July 1, 2023) but once the notice is published, the public can access permit information upon DEP request. Members of the public can submit comments on the application anytime before a final decision is made on the application. After a NPDES construction permit is issued, it can be appealed to the Environmental Hearing Board within 30 days of issuance.

NPDES Permits for Discharge of Sewage and Water Quality Management: (Part II) Permits

72 Steel will also have to apply for an NPDES and water quality management permit to treat the wastewater discharged by the steel manufacturing plant. This permit differs from the previously mentioned NPDES permit since it regulates wastewater from operation rather than construction stormwater. Similarly, to the NPDES construction permit, 72 Steel has yet to apply for a NPDES water quality management permit (as recent as Bulletin Number 26, Volume 53, July 1, 2023). This permit has the same procedures for public participation as the NPDES construction permit.

Act 537 Sewage Approval

Unless the plant falls under an Act 537 exception (individual on-lot systems or a sewage extension that does not overload the current system), 72 Steel needs to receive sewage facility planning approval. If the municipality approves 72 Steel’s application for a sewage modification, Aliquippa Water Authority will submit a proposed Act 537 sewage modification to the DEP. Once the modification request reaches the DEP, the DEP will either approve of a revision or supplement to the existing Act 537 Plan.

The DEP will notify the public of 72 Steel’s new sewage plan, as well as where public comments will be received. After submission to the DEP, The City of Aliquippa is not required to conduct a public hearing on an Act 537 revisal. However, the city may hold a meeting or hearing at the request of concerned citizens regarding the sewage plan modification. After the DEP posts notice of a sewage plan approval, members of the public can appeal to the Environmental Hearing Board within 30 days.

Highway Occupancy Permits

72 Steel may require a Highway Occupancy permit from the Pennsylvania Department of Transportation (PennDOT) if the steel manufacturing plant needs state highway access for construction or operation purposes. An example of highway use may be to install and access utility lines. There are little opportunities for public participation since highway occupancy permits are typically not made available to the public. However, if the access to a highway is deemed a “major federal action”, PennDOT would have to follow the National Environmental Policy Act (NEPA) procedures for public participation, attached here.

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Federal Opportunity

Community Benefits Plan through Biden Administration’s Bipartisan Infrastructure Law          

72 Steel may apply for some funding opportunities from the Bipartisan Infrastructure Law and through the Department of Energy (DOE). Many DOE funding opportunities require a “community action plan” as part of the application. The plan requires companies to write how they will make sure their work benefits the local community. The plan will include twenty percent of the grading criteria for proposals and includes details about how the development will meet four core policy priorities, including: investing in the workforce; engaging communities and labor; advancing diversity, equity, inclusion, and accessibility; and implementing Justice 40.  This is an opportunity for community to be advocate for strong community benefits that are needed and transparent.  See Fair Shake’s Community Benefit Agreement for more information and resources on community benefits.

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Concluding Thoughts

Since 72 Steel is still in its initial stages of development, there are plenty of opportunities for public participation in both the local and state permitting processes. As listed above, some of these actions include making a written or oral public comment or challenging approvals in the proper court or tribunal. Participating in these types of actions helps ensure the public’s wishes and concerns are heard with the new industrial development in the Aliquippa area. There are also changes to local laws - such as new zoning rules, local law changes, and stronger community benefits protection - that can help to create transparency and protections for future developments to help all Aliquippa residents stay healthy, well, and happy. SeeFair Shake’s Community Democracy River