A federal judge has ruled that the Ohio Environmental Protection Agency has violated the Clean Air Act for more than three years.
Magistrate Mark R. Abel of the U.S. District Court for the Southern District of Ohio ruled yesterday that the Ohio EPA has given small businesses permission to pollute the air.
The decision reverses a 2006 state law that let businesses use less than the "best available" scrubbers and filters if they emit less than 10 tons of air pollution a year.
The Sierra Club sued, arguing that the change would worsen air pollution problems across Ohio. It also said the law violated a provision of the Clean Air Act that orders Ohio and other states to show how any rule changes would not worsen air pollution.
Click on the attachment to read the federal court order in the Ohio EPA case.
Attached is a statement issued by the Ohio Attorney General's Office on behalf of the Ohio EPA regarding the status of the draft NSR permit following a request made by the ERAC Commission. It is reported that "At this time, Ohio EPA is unable to state with specificity when, if at all, a final NSR permit will be issued. Ohio EPA is in the process of responding to comments and questions from U.S. EPA regarding the permit." This Status Report was served to all involved parties on December 16, 2009.
Across nation, controversies brew over possible toxic emissions
This is a USA Today article from 9/14/09, in which the SunCoke battle in Middletown, OH is listed as one of the three legal disputes across the nation being discussed.
..."The Ohio Environmental Protection Agency last year granted SunCoke Energy a permit for the plant, which would make the coal-based fuel that melts iron ore for steel mills. State officials have endorsed the plant, saying it is needed to supply an AK Steel mill that employs 2,000 people in a town hard-hit by the recession. A neighboring town, local activists and national environmental groups oppose the plant, saying it is a threat to public health. The plant would be built next to Amanda Elementary School, a nursing home and a residential neighborhood."
Attached is the court order signed by Judge Sheeran granting SunCoke Watch Inc.’s Motion to Intervene in the legal process challenging ERAC’s recent rulings regarding one hour hearings.
On September 16, 2009, The Natural Resources Defense Council (NRDC) filed a Motion to Intervene in the Ohio Court of Appeals regarding the ERAC hearing procedures issue. Currently, the Environmental Review Appeals Commission (ERAC), as a result of recent legislative decisions, is only allowing de novo hearings to be one hour - hearings which previously could last days. Several companies have filed a lawsuit and this motion is to intervene in that lawsuit.
Attached are the documents filed in the Ohio Court of Appeals.
Following is a link to a Journal article on September 11, 2009. Ohio EPA’s proposed approach would essentially render the compliance certification provision worthless, because most any plant can be made to run in compliance for at least one day no matter how bad of a compliance history they have. The goal of OEPA seems to only be to assist SunCoke in producing a "letter" to satisfy a requirement. This approach fails to certify that SunCoke is truly in CONSISTENT compliance and is committed to running their facilities within the confines of their permit. A "letter" from one day hardly ensures compliance and in no way guarantees on any level a commitment to protecting the health of the community - which is what the OEPA is mandated by law to do. Most anyone can clean up their act for a day!
SunCoke certified its compliance Aug. 28, despite several seemingly unresolved notices of violation issued by the U.S. and Ohio EPAs for the company’s Haverhill North Coke Company facility in Franklin Furnace, Ohio.
However, these violations, while unresolved, would have no impact on SunCoke’s ability to certify compliance as long as its facilities were operating within regulation Aug. 28. The company only needs to prove it was following the emissions guidelines for that one day for the certification to qualify for the NSR permit. The company could go out of compliance at a facility again, but it would not affect its certification, said Heather Lauer, spokeswoman for the Ohio EPA.
“(SunCoke) needs to prove it was operating that day and was in compliance that day they certified,” she said. “It does not mean the certification is not valid because the violations have not been resolved.”
On September 11, 2009, Lisa Frye received this statement in an email from USEPA Region 5 in response to an email sent to them on 8/31/09 asking for clarification on the status of the USEPA violations against SunCoke:
“I can tell you that the alleged violations against Haverhill North Coke Company have not been resolved.”
Sunoco sent a letter to OEPA on Friday, August 28, 2009 stating they were certifying they were in compliance - a legal requirement for NSR permitting.
This email received on 9/11/09 stating the issues have not been resolved was received 12 days after the letter was sent.
Lawsuit filed against the Environmental Review Appeals Commission (ERAC) in Franklin County Court of Appeals
The Environmental Review Appeals Commission (ERAC) has taken an aggressive response to deadlines imposed by the Ohio Legislature compelling ERAC to render decisions in 339 appeals in a matter of months. It issued orders in all pending appeals canceling prior hearings and establishing an expedited hearing format that consists of the following:
• one hour hearings- split between the sides equally
• no presentation of witnesses
• five page briefs
• no meaningful discovery (depositions, document production)
Limits on the hearings were reportedly necessary to comply with new deadlines for ERAC to issue rulings, which were included in the biennial budget bill (HB 1).
The Commission reportedly took 339 cases, divided it by the number of days, minus the number of holidays, which resulted in six de novo hearings a day. Previously, average de novo hearings at ERAC lasted about five days.
The deadlines imposed in the Budget Bill were not opposed by the business community, only environmental groups sought a veto from Governor Strickland. However, now that ERAC has responded to the deadlines with its expedited hearings, businesses are scrambling to address the issue.
A lawsuit was filed in the 10th Appellate Court on behalf of over a dozen companies with forty appeals pending before ERAC. The lawsuit (called a Writ of Mandamus) seeks the Appellate Court to issue an order to compel ERAC to comply with due process requirements. The suit states:
A writ is necessary because the Commission has embarked upon a process of scheduling hearings de novo in over three hundred pending appeals that limit appellants, including the Relators, to not more than one-half hour to present evidence in support of their appeals, as more fully described below. Such a patent deprivation of Relators’ right to a hearing de novo that adheres to the most basic requirements of due process can only be adequately addressed through issuance of the requested writ.
Natural Resources Defense Council (NRDC) submits comments on behalf of NRDC, SunCoke Watch Inc. and Sierra Club to the OEPA on the draft NSR permit-to-install for Middletown Coke
Comments were submitted by the Natural Resource Defense Council (NRDC) on behalf of the NRDC, SunCoke Watch Inc. and the Sierra Club on the draft NSR permit-to-install for Middletown Coke Company on September 8th.
Also attached is the EPA Fact Sheet on the Middletown Coke Company permit, and submitted comments by the City of Monroe, Robert Snook, and Labyrinth Management Group.
As a mother and homeowner, Lisa Frye has done her best to protect her family - even if that means taking on a multibillion dollar company and the plant it wants to build right next door. READ MORE http://www.middletownjournal.com/news/middletown-news/mom-becomes-activi...