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.
