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Published: Thursday, 10/6/2005

EPA erred in restricting coal dust, court rules

BY STEVE MURPHY
BLADE STAFF WRITER

COLUMBUS - The Ohio Supreme Court yesterday upheld an appeals court's ruling against an attempt by state environmental regulators to tighten pollution controls at a Sandusky coal-handling facility.

In a 7-0 decision, the court ruled that the Ohio Environmental Protection Agency cannot modify a company's air quality permit without addressing whether the changes would be technically feasible and economically reasonable.

The ruling overturns an Oct. 17, 2001, decision by the Ohio Environmental Protection Agency that coal dust emissions from Sandusky Dock Corp. were a public nuisance.

Responding to customers at a nearby marina who said the dust was damaging their boats, then-EPA director Chris Jones added tough air pollution standards to Sandusky Dock's operating permit. Among them was a requirement that the site have "no visible [coal dust] emissions except for 13 minutes in any hour."

The coal piles at the facility, which has a pier that extends about a mile into Sandusky Bay, are typically about 60 feet high and contain as much as 200,000 tons of coal, court records show.

During oral arguments in February, deputy state solicitor Diane Brey argued that Mr. Jones used a section of state law that did not require him to consider "economic reasonableness or technical feasibility" before changing the permit. But the justices did not agree, ruling that another section of the same law required the EPA director to hear evidence and issue formal findings on whether the proposed pollution controls were feasible and reasonable.

"Consideration of these factors is necessary to ensure that the balance between regulation and encouragement of business is properly struck," Justice Paul Pfeifer wrote in the opinion.

The justice also wrote that under the state's argument, the EPA director could modify a company's permit-to-operate "without considering feasibility and reasonableness," yet it must include those factors in deciding whether to restrict pollution at a facility without a permit.

"That distinction would disadvantage facilities having [permits] and defies common sense," Justice Pfeifer wrote.

Rudy Husband, a spokesman for Norfolk Southern, which owns Sandusky Dock, said the company was pleased with the case's outcome.

"It was the decision Norfolk Southern was hoping for," he said. "Beyond that, there's really nothing more to say."

The ruling upheld a 2-1 decision issued by the 10th District Court of Appeals in 2003.

In their appeal to the Supreme Court, state attorneys had said that upholding the lower-court decision would remove one of two administrative options the EPA had to try to control "excessive air pollution" in the state.

Yesterday, EPA spokesman Dina Pierce said the agency was studying the ruling's impact. "Definitely we're disappointed in the decision," she said. "We haven't had a chance to evaluate how that might affect our regulatory enforcement authority."

Ms. Pierce said EPA has continued to get dust complaints on Sandusky Dock, including several this year.

Contact Steve Murphy at:

smurphy@theblade.com

or 419-724-6078.



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