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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 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’
"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
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.
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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