City of Monroe Attorney, Chris Walker, Releases Statement on Supreme Court Reversal

Monroe Attorney: Ohio Supreme Court Sides with Monroe
Wednesday, December 01, 2010 3:43:40 PM - Monroe Ohio

For your information, yesterday the Ohio Supreme Court issued its decision in Monroe’s appeal of the Ohio Power Siting Board (OPSB) certificate to Middletown Coke. The Court, in a 5-1 vote, agreed with Monroe’s argument that the OPSB should have considered the environmental effects of all coke plant equipment involved in electricity generation, not just the electric cogeneration equipment. The Court reversed the OPSB’s order, which effectively terminates MCC’s certificate to build the plant, and remanded the case to the OPSB.

As you know, the Middletown Coke project includes an electrical cogeneration station that would use steam from the coke plant to generate electricity. Because the electrical generating capacity of the plant exceeded 50 MW, the plant is required to obtain a certificate from the OPSB prior to beginning construction. Middletown Coke has described the cogeneration station as essential to the viability of the overall facility.

Monroe intervened in the OPSB case, arguing that the OPSB must consider the entire coke plant—not just the electrical generating equipment—and therefore must evaluate the environmental impact of the 2,000+ tons of pollution that the coke plant would emit each year. The OPSB disagreed and considered only the cogeneration equipment, which it claimed was a “zero-emission facility.” The OPSB refused to consider the environmental impacts of the coke-making processes that would generate the steam necessary to produce electricity. As a result, OPSB prevented Monroe from conducting discovery or presenting evidence concerning the impacts of, or alternative sites for, the overall coke plant.

SunCoke Watch and City of Monroe file Appeals in Franklin County Court of Appeals following ERAC's Denial of the City of Monroe's Motion for Clarification

Attached are four documents for your review: Monroe's Motion for Clarification, SunCoke, AK Steel and the OEPA’s Joint Response to Monroe’s Motion for Clarification, SunCoke Watch, Inc.’s memo of support and Monroe’s subsequent response.

To summarize, Monroe asked the Environmental Appeals Commission to state that the netting permit (1st permit) is truly moot and would be unable to be resurrected if/when the New Source Review permit is overturned. The Commission stated it was void, but didn’t speak to what would happen in that instance.

ERAC has denied the City of Monroe's clarification request, which has resulted in SunCoke Watch and the City of Monroe filing separate appeals with the Franklin County Court of Appeals. Appealing to the court was necessary in order to ensure that justice is served and that our ability to challenge the first netting permit still exists if our opponents ever attempted to fall back on that permit with a defeat of the NSR permit in court. As it stands now, our appeals have been dismissed, but ERAC has been unwilling to state that the first netting permit is permanently void/moot regardless of what happens with the NSR permit. Initially we were encouraged by ERAC’s willingness to define supersede as void, but after further legal evaluation the definition wasn’t taken far enough for our legal comfort.

If our opponents would ever choose to resurrect the first netting permit and our appeals were not in existence for our “day in court,” then SunCoke could potentially be allowed to construct and function under that first permit without any legal challenge in a court of law due to ERAC's decision rendered without addressing what would happen in this instance.

The attachments are self explanatory.

I went back and found this quote from SunCoke:

Middletown - #18 Worst City for Ozone Pollution in the U.S. - This is before the addition of a SunCoke facility!

List: Worst Cities For Ozone Pollution

18. Cincinnati-Middletown-Wilmington, OH-KY-IN

Total Population: 2,198,337

Pediatric Asthma: 51,712

Adult Asthma: 157,199

Chronic Bronchitis: 72,080

Emphysema: 27,598

NRDC Files Comments with Ohio EPA on DEGS (formerly P&G) Permit Modification regarding Emission Offsets for SunCoke

Comments have been submitted on behalf of the Natural Resources Defense Council and SunCoke Watch, Inc. regarding the Ohio EPA's draft administrative modification of the permit-to-install for DEGS Facility, which was originally permitted and built by Procter and Gamble.

The Ohio EPA is attempting nine years after this permit was issued in 2001 to "correct the amount of remaining emissions available to be used as emissions credits." It's obvious the only reason that the Ohio EPA is taking this administrative action nine years later is to assist SunCoke in locating available ERC's (Emission Reduction Credits) for their New Source Review permit on the border of Middletown and Monroe.

The comments are attached and clearly summarize the legal issues at hand. Also attached is the draft permit modification.

SunCoke Watch, Inc. and the Natural Resources Defense Council File a Joint Notice of Appeal with the Environmental Review Appeals Commission on March 10, 2010

SunCoke Watch, Inc. and the Natural Resources Defense Council filed a joint Notice of Appeal on March 10, 2010 with the Environmental Review Appeals Commission (ERAC) on the Director's issuance on February 9, 2010 of a Final Air Pollution Permit to Install ("PTI") to the Middletown Coke Company.

ANOTHER Notice of Violation issued to SunCoke on 2/17/10

Yet another violation issued to the Haverhill North Coke Company on February 17th, 2010 by the USEPA!

Please note page 7 of the PDF, which identifies SO2 violations of 232% over the permit limit, PM violations of 644% over the permit limit, and "excess bypass venting" that "collectively constitutes 116 rolling months of failure to comply with operational standards" since Jan. 1, 2009.

SunCoke's compliance certification letter is dated August 28, 2009 (see attachment). This 2/17/10 NOV clearly shows on page 7 of the PDF that SunCoke was NOT in compliance in the month of August - or any month last year for that matter!

SunCoke’s negligent environmental actions once again documented.

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