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Judge rules EPA notices to AK are void

By Thomas Gnau

Journal Business Writer

E-mail: tgnau@coxohio.com

A visiting Butler County Common Pleas Court judge has ruled that two "notice of violation" letters from the Ohio Environmental Protection Agency to AK Steel Corp. have "no legal effect."

The ruling means an Ohio EPA exemption from certain pollution regulations for AK's Middletown Works is intact, according to Alan McCoy, AK vice president of public affairs.

McCoy also believes the ruling weakens the basis for some of the claims made against AK in a federal lawsuit against the company.

"The court hereby declares the two letters to be null and void and of no legal effect due to the (Ohio EPA) director's failure to follow his own internal procedure rules," Judge William J. Stapleton wrote.

"It validates our belief from the outset that we have continued to be in full compliance with our regulatory exemption," McCoy said.

"The state is disappointed," said Stephanie Beougher, spokeswoman for the Ohio Attorney General. She said no decision has been made on appealing the ruling.

At issue are two Ohio EPA letters to AK, dated June 20, 1997, and Feb. 3, 2000, alleging that AK's Middletown ironmaking and steelmaking furnaces were causing or contributing to particulate or dust pollution. AK denied the allegations.

The Ohio EPA alleged that the letters revoked a regulatory exemption for AK.

The exemption springs from an early-1980s plan by what was then Armco to cut particulate pollution at the Middletown Works. That plan cut pollution by nearly 4,000 tons a year and "afforded the company an exemption from the OEPA's" dust emissions standards for the plant's ironmaking and steelmaking furnaces, AK said in a statement.

Further moves cut pollution by about another 1,400 tons a year, McCoy said.

The plan was approved by the Ohio EPA and U.S. EPA, and the company's exemption was codified under state and federal law, AK said. The plan had the company using carpooling, paving, and watering both roads and piles of raw materials, AK said.

Those efforts have helped the Middletown area achieve National Ambient Air Quality standards for particulate matter since 1983, AK said.

In a lawsuit filed in Cincinnati's federal court on June 29, 2000, the U.S. Department of Justice, on behalf of the U.S. Environmental Protection Agency, pursued eight environmental allegations against AK. The Ohio EPA has been allowed to conditionally intervene in that action.

On the same day, AK filed suit in Butler County Common Pleas Court, seeking a declaration that the company's exemption was intact, McCoy said.

"To the extent the (Ohio EPA) director intended through the issuance of the two (notice of violation) letters to revoke the company's codified exemption, he did not do so as a matter of law," Stapleton wrote. He added that the exemption is intact until the Ohio EPA takes a "valid final appealable action that revokes it."

If the exemption is intact, then the basis for five state and federal claims against AK are removed or weakened, McCoy said.

AK's attorneys will notify the federal court of Stapleton's judgment, seeking to dismiss relevant state and federal claims, McCoy said.

Beougher contended that AK should have appealed to the state's Environmental Review Appeals Commission. McCoy disagreed, saying the Ohio EPA's letters were not "final appealable orders," so there was no need or "mechanism" to appeal to the commission.

In fact, the state has dismissed other appeals when appellants sought dismissal for letters similar to the ones AK received from the Ohio EPA, McCoy said.

Stapleton, a retired Brown County Common Pleas judge, declined to comment.

 



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