State voids East Toledo coke plant's air permit

6/2/2007

Plans for building a $600 million FDS Coke Plant on the East Toledo-Oregon border were dealt a potentially lethal blow yesterday afternoon.

A state board ruled that former Ohio Environmental Protection Agency Director Joe Koncelik lacked authority in 2005 to relax a highly restrictive permit that had been issued a year earlier by his predecessor, Chris Jones.

The board voided Mr. Koncelik s action.

The ruling issued by the three-member Environmental Review Appeals Commission means that U.S. Coking Group either tries to get the board s decision overturned in court which could take years or live with a permit calling for unprecedented mercury controls, which the investor consortium has called impractical.

U.S. Coking Group has stated that the original permit that Mr. Jones issued on June 14, 2004, would drive compliance costs so high that it would kill the project.

Francis X. Lyons, a Chicago attorney representing U.S. Coking Group, declined comment last night.

The ruling sided with the village of Harbor View and the Ohio chapter of the Sierra Club.

Harbor View has worked with the environmental group to oppose the project because the village would receive fallout of airborne toxic pollutants, yet receive little or no economic value from the plant.

Oregon Mayor Marge Brown, one of the project s most outspoken supporters, declined to comment.

Mr. Koncelik, who served as Ohio EPA director during former Gov. Bob Taft s second term, modified the permit on Sept. 20, 2005.

He set no cap on the amount of airborne mercury that could be released from FDS Coke Plant, but established 51 pounds a year as a goal.

His version also allowed for 48 days annually of uncontrolled venting during maintenance activities.

Opponents called that no simple modification: They claimed it was virtually a complete rewrite of the original, with numerous design changes, and should have been treated as a new permit.

The fact that Mr. Koncelik didn t do that also was crucial to the project, because the original permit barely beat a federal EPA deadline for new ozone regulations that were enacted in the summer of 2004.

A new permit would have been subject to more restrictive ozone rules, which would have driven up costs.

The Ohio EPA has acknowledged that some of its agency staff members and from the Toledo Division of Environmental Services worked nights and weekends in 2004 to help U.S. Coking Group beat the filing deadline.

Overtime costs were passed along to U.S. Coking Group, the Ohio EPA has said.

Mr. Jones, who served as Mr. Taft s first Ohio EPA director, had issued a permit in 2004 that would have prohibited more than 36 pounds of mercury from being released each year, and forbid uncontrolled venting of pollutants for maintenance except during an emergency.

The only other permit issued for a coke plant in Ohio went to a southern Ohio project about a year earlier, with no such limits on mercury.

The Ohio EPA last night had no comment, agency spokesman Dina Pierce said.

Mercury is a neurotoxin known to impair development of children who eat contaminated fish or are exposed to it in the womb.

Children also can be exposed by ingesting mercury in breast milk of mothers who have excessive amounts of the metal in their bodies.

Levels of mercury allowed in U.S. Coking Group s most restrictive permit have drawn intense scrutiny from regulators in other Great Lakes states and in Canada, in part because the plant would be built along the Great Lakes shoreline.

Mercury is one of seven pollutants targeted for reduction from the Great Lakes in 1988 under a multistate agreement put together by the Council of Great Lakes Governors.

Dennis Muchnicki, a Columbus attorney who represented the Sierra Club, said the ruling could be applied broadly to other environmental appeals.

It s really a very, very sweeping decision, he said. It says the [Ohio EPA] director cannot modify the provisions of a permit once an appeal has been filed with ERAC [the state environmental appeals board]. It means that once somebody files an appeal with ERAC, you can t have sweetheart backroom deals any longer.

The ruling guarantees the citizen appellant gets a seat at the negotiating table now, Mr. Muchnicki said.

Sandy Bihn, an Oregon activist and Ohio Sierra Club member, agreed.

She said the ruling means future Ohio EPA directors cannot circumvent the system.

The FDS Coke project s timetable to break ground has been pushed back repeatedly in the past three years, as U.S. Coking Group attempted to lock down investors and secure contracts.

Mr. Lyons, a former chief of the U.S. Environmental Protection Agency s Midwest regional office, said the best-case scenario for groundbreaking would have been mid to late summer. In December, it was to have been held this spring.

The permit was believed to have been within hours of being nullified on Dec. 14, due to continued delays.

That morning, U.S. Coking Group signed what Mr. Lyons described as binding agreements with the projects two prime contractors to keep the permit from being nullified that day.

Neither contractor was named.

Matt Sapara, the Toledo-Lucas County Port Authority s project development manager, said at the time the project was still a go. If built, it is expected to employ 150 people at average salaries of $45,000. There would be a two-year construction phase involving 1,200 to 1,500 construction jobs.

The port had planned to lease 80 acres of land near the Maumee River s mouth to U.S. Coking Group. The land is under lease to CSX Transportation.

The plant began as a $300 million project. Coke, an ingredient of steel, is coal baked to remove impurities. Much of the U.S. steel production has been sent to other countries because of pollution associated with coke production.

Contact Tom Henry at:thenry@theblade.comor 419-724-6079.