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releases from Ohio.
Judge Rules in Favor of AK Steel in
MIDDLETOWN, Ohio, Aug. 1 /PRNewswire/ -- AK Steel (NYSE: AKS) said today
that a state court judge has ruled in the steelmaker's favor on a key element
of environmental lawsuits filed against the company.
(Photo: http://www.newscom.com/cgi-bin/prnh/19990901/AKSLOGO )
Butler County (OH) Common Pleas Judge William J. Stapleton found that two
letters issued by the Ohio Environmental Protection Agency (OEPA) to AK Steel
were "null and void and of no legal effect." The judge made the ruling July
27, 2001. The letters are considered central to some of the most onerous
allegations against AK Steel in lawsuits initiated by OEPA and U.S. EPA.
At issue were two letters sent to AK Steel by the OEPA that the agency
termed "Notice of Violation" or NOV letters. The letters, dated June 20, 1997
and February 3, 2000, alleged that AK Steel's Middletown ironmaking and
steelmaking furnaces were causing or contributing to a public nuisance due to
particulate matter (dust) emissions. AK Steel responded to both letters in a
timely fashion, denying the allegations.
Then, for the first time since the first letter was sent more than three
years prior, OEPA attempted to claim in court documents filed in August of
2000 that the NOV letters were "final appealable actions" by the directors of
OEPA's attorneys further alleged that the NOV letters had automatically
revoked a longstanding regulatory exemption the company had been granted by
OEPA and U.S. EPA more than twenty years ago, effective with the issuance of
the first NOV letter in 1997. The regulatory exemption covers certain opacity
and reasonably available control measure ("RACM") standards for fugitive dust
emissions in AK Steel's operating permits.
Both the U.S. EPA and the OEPA have argued that the alleged revocation of
the exemption has caused AK Steel to be in violation of air pollution laws
since 1997 and subject to penalties of as much as $27,500 per day since the
revocation. AK Steel has strongly denied the accusations.
AK Steel said that the directors of OEPA never indicated that the NOV
letters were final appealable actions until the agency's attorneys filed
motions in August of 2000 responding to a lawsuit AK Steel brought against the
State of Ohio and the director of OEPA in June of 2000. AK Steel said the NOV
letters bore virtually none of the traditional indicia of final appealable
actions, several of which are required by OEPA's own rules and the State of
Ohio's Administrative Procedures Act. Final appealable actions give charged
parties rights of notice and appeal, constitutional protections the OEPA
sought to deny AK Steel.
According to AK Steel's research, the Ohio Attorney General's office and
OEPA have consistently held and argued, for the past 27 years, that NOV
letters such as were at issue in this case are, without exception, not final
appealable actions. The sole exception in nearly three decades, it seems, was
in the case of AK Steel.
Judge Stapleton agreed with AK Steel, citing the fact that the directors
of OEPA failed to follow both internal OEPA procedures and separate procedures
for adjudication of private rights under Ohio Revised Code Chapter 119 if they
truly intended for the NOV letters to constitute final appealable orders.
Judge Stapleton concluded that, since the two NOV letters were null and
void, AK Steel's regulatory exemption remains intact. Therefore, AK Steel's
ironmaking and steelmaking furnaces are not subject to the opacity and RACM
requirements that U.S. EPA and OEPA claim the company has violated in the
lawsuits filed on their behalf.
"It is completely disingenuous for OEPA and its attorneys to now suggest
that they simply 'forgot' they had revoked AK Steel's exemption four years ago
and have unwittingly allowed us to make several million tons of iron and steel
in violation of environmental law," said Alan H. McCoy, vice president, public
affairs for AK Steel.
"Through its callous disregard for AK Steel's constitutional due process
rights, OEPA has attempted to rewrite the history of its own actions to fit
its fervent desire to sue AK Steel," said Mr. McCoy. "The U.S. EPA has
blindly followed OEPA's callous strategy in its own lawsuit."
Through the U.S. Attorney General, U.S. EPA also alleged in a lawsuit
filed June 29, 2000 that AK Steel was in violation of RACM requirements and
"Incredibly," Mr. McCoy continued, "Both OEPA and U.S. EPA have suggested
with their court arguments that both the June 20, 1997 letter and the February
3, 2000 letter revoked our exemption. If OEPA truly intended to revoke our
exemption in 1997, why would it have been necessary to 're-revoke' it two and
a half years later?"
AK Steel said that despite OEPA's recent court pronouncements, the agency
never took actions that were consistent in any manner with a position that it
had, or intended to revoke AK Steel's regulatory exemption. To the contrary,
by its actions, OEPA consistently demonstrated that it had not, and did not
intend to revoke AK Steel's regulatory exemption.
For example, in January of 2000, OEPA issued to AK Steel a draft Title V
air permit for the entire Middletown Works, including the ironmaking and
steelmaking furnaces. The draft permit clearly indicated that OEPA considered
the regulatory exemption intact and valid, and that AK Steel was in compliance
with its operating permits. Title V permits are part of the 1990 amendments
to the federal Clean Air Act.
In March of 2000, OEPA's own legal counsel informed AK Steel by letter
that the February 3, 2000 NOV letter was not a final appealable action. As
recently as February of 2001, counsel for the Ohio Attorney General's office
stated to AK Steel's attorneys in a letter that "...an NOV is not a final
action, nor does it culminate in one."
Ironically, the regulatory exemption in question has actually yielded
annual reductions in dust emissions from the Middletown plant more than six
times greater than would have been realized without the exemption.
AK Steel's Regulatory Exemption
In the early 1980's, AK Steel (then Armco) developed an innovative plan to
reduce particulate matter emissions from its Middletown Works by nearly 4,000
tons annually. In return, the plan afforded the company an exemption from the
OEPA's opacity standards and RACM requirements for fugitive dust emissions
from its ironmaking and steelmaking furnaces.
OEPA and U.S. EPA both approved the plan, and the exemption was codified
not only under Ohio law, but also under federal law as part of Ohio's
federally approved Clean Air Act State Implementation Plan. It is this
exemption that U.S. EPA and OEPA have only recently claimed was automatically
revoked up to four years ago by way of the Notice of Violation letters.
Utilizing AK Steel's innovative plan (commonly referred to as the "bubble
concept") and additional voluntary reductions, the company has actually
reduced dust emissions at its Middletown Works by approximately 5,400 tons per
year. The company uses common sense and cost-effective approaches such as
paving roadways, carpooling and watering roadways and raw material storage
piles daily to reduce dust emissions.
By contrast, the EPA's source-specific RACM fugitive dust controls (from
which the Middletown Works was exempted) would have reduced dust emissions by
only about 650 tons per year. AK Steel said it would be completely irrational
for OEPA to insist that AK Steel now install expensive RACM controls and
abandon its bubble concept regulatory exemption.
"First of all, why would OEPA want to mandate that AK Steel take a huge
step backward and actually increase annual dust emissions by 3,300 tons per
year by now installing their 20-year-old RACM controls?" questions Mr. McCoy.
"In addition, newer, more stringent maximum achievable control technology
("MACT") rules have now been proposed for ironmaking and steelmaking
facilities and will soon both replace RACM rules and eliminate AK Steel's
"Despite the many false and defamatory allegations of its environmental
compliance record, AK Steel spends millions of dollars each year in pollution
control and pollution prevention projects," said Mr. McCoy. "Ironically, AK
Steel just last month became the first U.S. integrated steelmaker to achieve
ISO 14001 registration, a rigorous international standard for environmental
management systems. Our pollution reduction efforts at Middletown have, in
fact, helped the Middletown area achieve National Ambient Air Quality
Standards for particulate matter since 1983."
In addition, AK Steel was honored by then-Vice President Al Gore for what
he called "one of the most successful emission reduction efforts ever
With headquarters in Middletown, Ohio, AK Steel produces flat-rolled
carbon, stainless and electrical steel products for automotive, appliance,
construction and manufacturing markets, as well as standard pipe and tubular
steel products. The company has about 11,500 employees in steel plants and
offices in Middletown, Coshocton, Mansfield, Walbridge, Warren and Zanesville,
Ohio; Ashland, Ky.; Rockport, Ind.; and Butler, Sharon and Wheatland, Pa.
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