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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.

The Supreme Court reversed the OPSB, invalidating the certificate for Middletown Coke. The Supreme Court found that the OPSB relied on a false distinction between “coke plant” and “electrical generating equipment.” As a result of that error, the OPSB did not fulfill its legal duty to consider the impacts of the entire electrical generating plant, and unreasonably limited Monroe’s opportunities to develop and present evidence. The Court sent the matter back to the OPSB to reconsider the certificate after properly considering the environmental effects of the coke plant’s other processes that relate to electrical generation.

If you would like to see the Court’s summary of its decision, you can access the summary at http://www.sconet.state.oh.us/PIO/summaries/2010/1201/090941.asp. This web page also has a link to the video of the oral argument held in the case in the event you would like to watch it.
 


Chris Walker
SunCoke Lawsuit Attorney for the City of Monroe

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