EPA

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."

http://www.usatoday.com/news/nation/environment/2009-09-14-toxic_N.htm

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! 

Journal article...

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.”

READ MORE http://www.middletownjournal.com/news/middletown-news/violations-may-not...

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.

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.

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...

TV Middletown will be airing the EPA hearing from September 2nd on the following dates at www.tvmiddletown.org:

Sunday, September 13th at 3:00 p.m. and late that evening at 1:30 a.m.

Tuesday, September 15th @ 9:00 p.m. and late that evening at 1:30 a.m.

Wednesday, September 16th at 5:00 p.m.

Once the first one is aired on September 13th, it will automatically load on the website so it can be seen over the web at http://tvmiddletown.blip.tv/.

It will be listed as the OEPA public hearing from September 2nd. This is only the “public hearing” portion of that meeting, as the question and answer time, which was quite lengthy, was not recorded.

"The applicant (SunCoke) must certify that all existing major stationary sources owned or operated by the applicant (or any entity controlling, controlled by, or under common control with the applicant) in Ohio as the proposed major stationary source or major modification are in compliance with all applicable emission limitations and standards under the Clean Air Act (or are in compliance with an expeditious schedule which is federally enforceable or contained in a court decree."

Attached is a summary of six (6) Notices of Violation and one (1) warning letter issued by Portsmouth Air Agency to Haverhill North Coke Facility and two (2) USEPA NOV's issued.  To date, the 7/17/09 two NOV's and the two USEPA NOV's are unresolved.

On Friday, August 28, 2009, Sunoco issued a statement certifying that their facilities were in compliance in an attempt to satisfy this Clean Air Act requirement for the Middletown Coke NSR permit.  I've attached the letter for your review.

You can also visit the following EPA database to locate compliance information:

http://www.epa-echo.gov/echo/compliance_report_air.html

Summarized below is additional violation information for SunCoke, Sunoco and AK Steel:

Haverhill North Coke Facility

U.S. EPA’s Enforcement & Compliance History Online (“ECHO”) database reports that the Haverhill North facility has been a High Priority Violator (“HPV”) of Clean Air Act requirements since July 2008. HPV is the “most serious level of violation noted in EPA databases,”[1] and those violations are identified as unaddressed on the database. The ECHO report notes violations of PSD requirements at the facility for the last four quarters, and of the sulfur dioxide requirements for the current quarter.

Sunoco, Inc. Haverhill Facility (Sunoco is the parent company of SunCoke)