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KY Federal Court Halts Steel Mill Pollution and Appoints Special Master to Enforce Compliance Under Clean Air Act

Gallatin Steel and Harsco Corporation Found Liable for Acting "Willfully, Wantonly and Oppressively" in Air Pollution Case

Dust rises up from molten slag. Dust rises from molten slag at the Harsco slag dumping site in Gallatin County, Kentucky. Photo by Thomas Ellis 

The U.S. District Court for the Eastern District of Kentucky issued a major environmental decision on October 3, 2002, granting Trial Lawyers for Public Justice’s request for a permanent injunction to stop Gallatin Steel Company and Harsco Corporation from emitting clouds of dust in violation of the federal Clean Air Act and Kentucky law. The judge also ruled that the defendants must pay $750,000 in punitive damages for acting "willfully, wantonly and oppressively," plus compensatory damages to four Kentucky citizens for loss of property value. In an unanticipated move, the judge appointed a Special Master to oversee the corporate polluters’ compliance.

"Because the companies refused for seven years to stop sending huge clouds of dust across their property line, the judge granted a permanent injunction, and took the groundbreaking action of appointing a Special Master to oversee compliance, because that was the only way to stop the violations," said TLPJ Environmental Enforcement Project Director Jim Hecker, co-counsel for the plaintiffs. "The Court has properly shifted the burden of monitoring compliance from our clients – who spent 8,954 hours photographing and videotaping the pollution – to the polluters themselves, who must pay for the Special Master’s oversight."

TLPJ had filed two citizen enforcement suits in 1999 and 2000 on behalf of four Kentucky residents against Gallatin Steel Company’s steel mill in north central Kentucky and against an adjacent slag dumping and processing area operated by Harsco Corporation. The complaints in the related cases, which the Court combined, alleged that the defendants violated the Clean Air Act and created a common law nuisance.

After TLPJ filed the citizen suits, the U.S. Environmental Protection Agency (EPA) and the Commonwealth of Kentucky filed administrative and judicial enforcement actions raising similar claims and proposing corrective actions. The court approved two EPA consent decrees in June 2002.

In the citizen suits, the Court held a trial on the Clean Air Act and state law nuisance claims in Covington, Kentucky, on September 30 - October 1, 2002. Two days after the trial concluded, U.S. District Court Judge William O. Bertelsman granted the injunction and required the defendants’ compliance with the Clean Air Act and the common law barring nuisances.

In his decision of October 3, Judge Bertelsman acknowledged the EPA’s prior consent decrees, but found that the citizen enforcement was a necessary supplement to ensure full compliance, stating, "the Court finds that enforcement by the EPA due to budgetary constraints and limitations of time and personnel must of necessity be inadequate."

"Without the citizen enforcement efforts of our clients, the pollution would still be continuing," said lead counsel Jeffrey M. Sanders of Covington, Kentucky. "Our clients, Vernon Ellis, his two sons, Richard and Tom, and LaVerne Brashear, live near the mill in Gallatin County, and for seven years, gray clouds of slag dust have blanketed their properties, and explosions from slag dumping have rocked their homes. As a result, they have been forced indoors and deprived of the use and enjoyment of their property."

"The Ellises and Ms. Brashear are pleased that a neutral party will be retained to monitor compliance with the injunction," said co-counsel Jonathan A. Conte of Cincinnati.

"The Court found that the defendants acted in bad faith, followed a ‘scorched earth defense policy,’ ‘defended every inch of turf to the death,’ and are ‘still doing as little as they think they can get away with,’ "said Hecker. "The punitive damage award and the appointment of a Special Master send a message that this outrageous conduct will not be tolerated."

In addition to Sanders, Conte and Hecker, TLPJ's legal team includes Robert Sanders of Kentucky. The decision and TLPJ’s complaint in Ellis v. Gallatin Steel Company and the related case, Brashear v. Harsco Corporation, are posted on TLPJ’s web site at www.tlpj.org.

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Trial Lawyers for Public Justice is the only national public interest law firm dedicated to using trial lawyers’ skills and resources to advance the public good. Founded in 1982, TLPJ utilizes a nationwide network of more than 2,700 outstanding trial lawyers to pursue precedent-setting and socially significant litigation. It has a wide-ranging litigation docket in the areas of environmental protection, toxic torts, consumer rights, worker safety, civil rights and liberties, and access to the courts. TLPJ is the principal project of The TLPJ Foundation, a not-for-profit membership organization. It has offices in Washington, DC, and Oakland, CA. TLPJ’s State Coordinators for Kentucky are Kevin George, tel. (502) 569-2727, and Robert E. Sanders, tel. (859) 491-3000.

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