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AK, EPA face off in court

By Thomas Gnau

Journal Business Writer


CINCINNATI -- A hearing in "The United States of America vs. AK Steel" burned slow and long in U.S. District Court Monday -- with lawyers for both sides having plenty to say.

At one table were three representatives for the Middletown-based steelmaker; at another, six representatives for the Ohio and U.S. environmental protection agencies.

In between was Judge Herman J. Weber and a pile of documents almost a foot tall.

During a case status conference held in open court, lawyers for AK argued against letting the OEPA join the U.S. EPA's lawsuit against AK. In a suit filed in June 2000, the U.S EPA alleged that AK violated the Clean Air, Clean Water and Resource Recovery and Conservation acts. The OEPA has joined that action with a magistrate's approval.

At the end of the three-hour hearing, Ohio Assistant Attorney General David Cox sounded confident that the OEPA was still a party to the suit.

"It's clear we can intervene," Cox said.

"You're here, that's for sure," Weber told Cox at one point.

AK's attorneys also argued against the OEPA's August 2000 order to AK telling the steelmaker to clean contaminants from Dicks Creek. AK's attorneys said the state agency was trying to accomplish through that order what it sought to do first in the lawsuit.

Since about 1995, Ohio environmental officials have eyed Dicks Creek. A study AK recently commissioned said the creek poses no risk to humans or the environment. EPA spokespeople have expressed skepticism about the study.

Paul Casper, an attorney for AK, said the message behind the OEPA's August 2000 order was: "The heck with Judge Weber. The heck with this court. We can decide what remedy we want."

There were moments when Weber appeared to agree.

"Somehow or other, you tied my hands from going into that issue in trial by this maneuver," he told environmental agencies' lawyers.

U.S. Department of Justice attorney Chris Peak, appearing for the U.S. EPA, countered by saying what the government wanted was "an expansion of the court's jurisdiction." He argued that the agencies are still free to issue administrative orders.

Also at issue were 1997 and 2000 letters from the OEPA to AK that state attorneys said revoked an exemption from environmental rules they said AK enjoyed since the early 1980s.

Cox said AK's attorneys were waiting on a judgment from Butler County Common Pleas Court Visiting Judge William Stapleton on whether those letters had the weight of law. The OEPA, however, believes Stapleton has no jurisdiction on the question. Casper declined to comment.

Weber told lawyers more than once not to take "solace" in his questions.

He also lamented the length of the case, asking at one point, "How many more amended complaints are we going to have before we get to the merits of this matter?"

Cox blamed AK for delays, saying the company moved to dismiss all of the state's complaints. "They fight at everything."

AK's leaders have said heavy fines and pollution control costs might one day force them to consider whether the company can afford to make steel in Middletown.

Ed Shelly, president of the Armco Employees Independent Federation, which represents more than 3,000 workers at AK's Middletown Works, watched in court Monday.

"That's our No. 1 concern there -- are they going to be able to make steel in Middletown?" Shelley said. "Those are our jobs."

Another open-court session is set for Sept. 10.


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