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Proposed EPA rule change would make life easier for Ohio polluters

Change could impact AK Steel emissions fight
Posted: 9:07 AM, Sep 21, 2020
Updated: 2020-09-21 19:28:49-04
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MIDDLETOWN, Ohio — Donna Ballinger wipes a hand against her windshield to reveal the black soot that drifts regularly to her home from the coke oven at AK Steel.

“It’s horrible,” said Ballinger, 56. “I don’t even like to let the grandkids outside to play because you can touch anything on my property and everything on you would be black.”

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Donna Ballinger, 56, lives less than 1,000 feet from AK Steel's coke oven.

Records show Ballinger has complained 398 times since 2017 to the Southwest Ohio Air Quality Agency. The complaints led to a $150,000 fine against AK Steel in 2017, along with a court order requiring new emission controls that Ohio EPA says the company has completed.

And yet the fallout continues.

“I absolutely don’t think they’re complying with anything,” Ballinger said. “My house, see all the black stuff? That’s just a constant, constantly on there no matter how many times you clean it.”

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Ballinger claims fallout from AK Steel's coke oven damaged her siding and gutter.

The I-Team made several attempts to reach AK Steel and Cleveland-Cliffs Inc., which acquired the steel maker in March. None of our calls and emails were returned.

Ballinger wants to sue AK Steel for creating an air pollution nuisance in her neighborhood. But the U.S. EPA is trying to eliminate the rule that makes such a lawsuit possible, saying it isn’t needed for Ohio to comply with federal clean air standards.

Ballinger’s attorney, Dave Altman, said Ohio’s air pollution nuisance rule was enacted in 1974 to give victims a voice when regulators fail to act. A veteran environmental attorney, Altman has used the rule dozens of times to force Ohio companies to reduce emissions.

“The government should be doing that for you,” Altman said. “That’s why these agencies are there. But the agencies think that their client is the alleged polluter. It’s like that Ray Bradbury story ("Fahrenheit 451") where the fire department doesn’t put out fires. It sets them.”

Part of a trend

The proposed rule change is the latest example of regulatory dismantling by the Trump administration, according to the Brookings Institution. Its deregulation tracker shows the EPA has altered dozens of environmental rules since 2017 on such wide-ranging topics as mercury and methane emissions, oil and gas exploration, energy-efficiency standards for appliances and guidelines for solid waste landfills.

In February, President Donald Trump proposed eliminating 50 EPA programs as part of a 26% budget reduction, his fourth straight year of proposed EPA cuts.

And in March, the EPA announced it would suspend enforcement of pollution-reporting requirements because COVID-19 made it too difficult for companies to comply. The EPA phased out the policy in August after nine states sued.

Environmental activist Marilyn Wall says the EPA’s local enforcement is far from robust.

“What they’re fundamentally doing is eliminating tools for enforcement, doing less enforcement,” said Wall, a longtime volunteer for the local chapter the Sierra Club. “You don’t even know the extent of the problem if nobody’s taking samples, monitoring the air and so on.”

Donna vs Goliath

Wall has been working with Ballinger for more than three years to document pollution in her neighborhood, tucked into the southwest corner of AK Steel’s 2,800-acre Middletown Works, one of Butler County’s largest employers.

An I-Team analysis of 2018 emissions data shows Ballinger lives in Greater Cincinnati’s 10th most polluted census tract, with 55,000 pounds of chemicals released per acre – based on company-reported estimates to the EPA’s Toxics Release Inventory program. Our analysis shows toxic-chemical emissions are concentrated in low-income census tracts that have a higher percentage of minority residents than the rest of the region.

AK Steel is the third-largest emitter of TRI chemicals in the Tri-State, according to EPA data, and one of six companies that reported emissions in Ballinger’s South Middletown census tract in 2018.

None of this is news to Ballinger.

“Every day you have fallout, the smells, the noise,” she said. “There’s chronic sinus infections, itchy sore throat, especially with all these odors.”

Records show Ballinger is one of more than 50 Middletown residents to complain about dust, odors and particle pollution on residential streets near AK Steel. The complaints peaked at nearly 20 per month in 2019 and are running at a pace of about 14 per month in 2020.

A review of Ohio EPA’s online documents and public records provided to the I-Team by Altman and Wall show enforcement activity peaked in 2017 with six notices of violation sent to AK Steel, followed by two each in 2018 and 2019.

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Ballinger shows the dust she collected with one swipe of her car's windshield.

How big a health hazard?

In 2017, Ohio EPA sent five notices of violation to AK Steel that relate to issues raised by Ballinger. In October of that year, Altman delivered a 60-day notice to AK Steel that he intended to sue on Ballinger’s behalf, using Ohio’s nuisance abatement rule. Two days before the expiration of that 60-day period, Ohio EPA entered into a consent decree with the company.

Altman alleged the agreement was an “attempt to hinder” his planned lawsuit, in an August 2018 letter to AK Steel. He also objected to its filing “in state court with no notice to the affected community.” And he predicted it wouldn’t solve the problem, as it “fails to require abatement of the unlawful nuisance conditions.”

AKS ConsentDecree by Dan Monk

But the EPA wasn’t done with AK Steel. In May 2018, the U.S. EPA “inspected and monitored AK Steel’s operations” with Ohio EPA and SWOAQA, according to a statement to the I-Team from the agency’s Chicago office. That led to two violation notices in May and September of 2018.

Although the agencies didn’t reveal it publicly at the time, the Sierra Club said the U.S. EPA’s May 2018 visit led to a significant air-quality finding it discovered through the Freedom of Information Act. The October 2018 report from the EPA’s Air Monitoring and Analysis Section, which Wall provided to WCPO, documented “high concentrations” of Benzene, Toluene, Ethylbenzene and Xylenes “on the western side of the coke ovens.” The report added: “These mobile and stationary data indicate a potential acute human health hazard.”

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A Hamilton County inspector documented "particulate falling" and "strong odors" near AK Steel's coke oven in 2019.

The potential health risk combined with the fact residents continue to report regular fallout from the plant leave Wall mystified that the agency hasn’t taken stronger action.

“Their permit is very lax but still there is a lot of evidence that they are in fact violating it,” Wall said. “And so, does it still go on? Are there other problems beside what they tested for?”

Finding the answer

The U.S. EPA and SWOAQA declined to be interviewed for this story and referred questions about enforcement to Ohio EPA. Here is Ohio’s statement on why pollution problems continue at AK Steel three years after a consent decree was signed to fix them:

“AK Steel is in compliance with requirements in paragraph 15 of 2017 consent order, which requires specific actions by the company; however, additional violations have occurred, resulting in notices of violation. AK Steel is expected to operate the steel mill and coke plant in compliance with conditions in its permit and Ohio and federal regulations and as required in paragraph 14 of the consent order. Each notice of violation requires actions by AK Steel to return to compliance and prevent further violations. Ohio EPA maintains the option of taking additional enforcement action. Ohio EPA encourages residents living near the facility to report odors and other environmental concerns to Southwest Ohio Air Quality Agency in Cincinnati, which operates under a contract with Ohio EPA.”

Ballinger continues to call the SWOAQA hotline, 513-946-7777, every time she sees excessive smoke and dust from the coke oven that operates 24-7 just a few football fields away from her Ottowa Street home.

As her number of complaints increases, Ballinger claims the EPA is getting less responsive. Earlier this year, she said an air-quality inspector from Hamilton County suggested she should solve the problem by moving, which she can’t afford.

“That was his question, ‘Why do you live here?’ I said, ‘Why do you live where you live?’ You should be allowed to live where you want and not have this nuisance 24-7,” Ballinger said.

The employee who allegedly made the comment has retired and could not be reached. His former boss, SWOAQA Assistant Director Brad Miller, responded via email: “A statement like that would be inappropriate. We cannot confirm that our employee made that statement.”

Changing the rule

To Altman, Ballinger’s story demonstrates why the U.S. EPA is “misguided” in its attempt to eliminate Ohio’s air pollution nuisance rule.

“Because low-income households and people of color are more likely to live in close proximity to major stationary sources of air pollution, the air pollution nuisance rule is an important tool for bringing about environmental justice within Ohio,” Altman wrote in a 105-page letter opposing the rule change.

He also argues the EPA is violating the 1970 Clean Air Act by using its “error correction” provision to remove the nuisance rule from Ohio’s state implementation plan, or SIP, which is the regulatory framework that states adopted to comply with the landmark legislation.

Altman filed an affidavit from a former EPA adviser who said the nuisance rule was deliberately added to Ohio’s SIP to give citizens a tool for fighting pollution. Altman argues the U.S. EPA reviewed and approved Ohio’s nuisance rule in 1984 and again in 2012. To change it now, he argues, would require public hearings and an agency finding that the change has legal or scientific justification.

“The approval of Ohio’s air pollution nuisance provision was not an error,” Altman wrote. “The U.S. EPA cannot lawfully, and should not, finalize the proposed rule.”

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Environmental lawyer Dave Altman

The U.S. EPA says it’s considering all public comments to the proposed rule change but offered no timeline on a decision. The proposed change has Ohio EPA’s support.

“Because the rule does not have a connection to the attainment and maintenance of national ambient air quality standards, Ohio does not oppose the rule being withdrawn,” said a statement from the agency. “Many other states across the nation, including all Great Lakes states, had their nuisance rules withdrawn from their SIPs or never had them in their SIPs in the first place.”

If it’s repealed, the nuisance rule would remain in the Ohio Administrative Code and could still be used to “ensure the public is protected from air emissions that pose a threat to health,” said Ohio EPA’s statement. “Ohio EPA retains full authority to ensure compliance with the rule and can initiate enforcement action when necessary.”