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OHIO SUPREME COURT STRIKES DOWN POWER SITING APPROVAL OF SUNCOKE
Wednesday, December 01, 2010 4:38:21 PM - Monroe Ohio

For Immediate Release

Monroe, Ohio, December 2, 2010

OHIO SUPREME COURT STRIKES DOWN POWER SITING APPROVAL OF MIDDLETOWN COKE PLANT

In a 5-1 decision issued December 1, 2010, the Ohio Supreme Court ruled in favor of the City of Monroe and invalidated the Ohio Power Siting Board (OPSB) certificate authorizing the construction of the Middletown Coke facility. The Court 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 terminates MCC’s certificate to build the plant, and remanded the case to the OPSB. As a result, further construction of the coke plant is illegal unless and until the OPSB reissues the certificate after following the Court’s guidance.

“Monroe is very pleased that the Supreme Court recognized that the Power Siting Board must consider all impacts relating to energy generation at Middletown Coke,” stated Mayor Robert Routson. “The flaws in the OPSB certificate are just another example of Middletown Coke’s consistent pattern of illegally dodging the laws intended to protect the public from the coke plant’s pollution.”

This is the second major victory by Monroe in its fight to ensure that Middletown Coke adequately protects public health and the environment. The first victory occurred in response to Monroe’s federal Clean Air Act lawsuit seeking to stop construction of the coke plant until it received the necessary air pollution control permit. In response to that lawsuit, Middletown Coke ceased construction of the coke plant in early 2009 and applied for an air pollution permit under the federal New Source Review program. The New Source Review permit, which was issued in February of 2010, reduced the coke plant’s annual emissions by approximately 20%. The permit reduced sulfur dioxide emissions by 492 tons/year, a 30% reduction. Sulfur dioxide forms fine particles in the atmosphere that cause lung and heart disease and deaths. This is a critical accomplishment, because the concentrations of fine particles in Butler County’s air already exceed EPA’s health standard. This accomplishment will be a major benefit to Monroe’s nearby residential neighborhoods and an elementary school located only 1200 feet away from the coke plant’s facilities.

Today’s Ohio Supreme Court decision interpreted an Ohio law requiring a major utility that produces electricity must obtain an OPSB certificate to ensure that the plant’s operations do not harm the public. Middletown Coke sought to evade these public protections by applying for a certificate covering only the cogeneration equipment that converts heat to steam -- the least harmful equipment in the plant. Most of the plant’s damage to public health will come from its coke oven pollution, which Middletown Coke’s application and OPSB’s certificate completely ignored. Today’s Supreme Court decision reversed the OPSB’s decision to ignore the most harmful aspects of the coke plant’s operations. Middletown Coke has described the cogeneration equipment as essential to the economic viability of the overall facility.

Monroe intervened in the OPSB case, arguing that the OPSB must consider the harmful effects of the entire coke plant—not just the electrical generating equipment—and therefore must evaluate the environmental impact of more than 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.

The Supreme Court’s decision is attached. A summary of the Court’s decision may be found at http://www.sconet.state.oh.us/PIO/summaries/2010/1201/090941.asp.

For further information, please contact Christopher Walker of the Dayton office of Van Kley & Walker at (937) 226-9000.
 

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