Kentucky Citizens Win Major Victory in Air Pollution Suit Against Gallatin Steel Mill

Four Gallatin County, Kentucky, residents won a major victory on October 15, 2001, in their efforts to stop Gallatin Steel Company and Harsco Corporation from dumping and processing slag near their homes without any air pollution controls. Vernon Ellis, his two sons, Richard and Tom, and LaVerne Brashear claim that these two companies have evaded their obligations under the federal Clean Air Act. The Secretary of Kentucky’s Natural Resources and Environmental Protection Cabinet agreed with the Ellises and Brashear yesterday, ruling that the two companies are under common control and are a single major source of pollution. As a result, the companies must obtain a federal air pollution control permit and install pollution controls based on the best available pollution control technology.

"The Commonwealth of Kentucky upheld our position that, because Gallatin controls Harsco’s emissions, the two companies’ emissions must be added together, and their emissions are large enough to require a federal permit and air pollution controls,"said plaintiffs’ co-counsel Jeffrey Sanders of Covington, Kentucky. "That’s what the law requires. Clearly, Gallatin controls Harsco’s emissions, because Gallatin cannot make steel without making slag, and Gallatin controls when and where the slag is dumped and processed."

"The Secretary’s ruling sets an important precedent under the Clean Air Act," said co-counsel Jim Hecker, Environmental Enforcement Director for Trial Lawyers for Public Justice, a national, public interest law firm headquartered in Washington, D.C. "This victory means that polluters cannot artificially separate their polluting activities to evade state and federal permitting requirements."

Gallatin produces steel in an electric arc furnace at a large facility near the Ohio River on U.S. Highway 42 in western Gallatin County. In producing steel, Gallatin also produces over a hundred million pounds of molten slag per year. Gallatin decides when to pour the slag into slag pots. However, by contract, Gallatin farmed out the job of moving and dumping the pots to Harsco. Harsco dumps the slag pots onto the ground without any pollution controls, generating huge clouds of dust that drift over the community. Sometimes the hot slag explodes when it contacts water on the ground, sending pieces of slag flying onto adjoining property.

The Ellis family has lived on a farm just east of the mill for more than 100 years, and Brashear also lives near the mill. They are suffering the effects of this pollution.

"The molten slag looks like lava coming out of volcano, and lights up the sky at night with an eerie red glow," said Vernon Ellis. "Mushroom clouds of slag dust rise up hundreds of feet and drift over our farm, leaving a gray dust on everything. The slag explosions sound like sonic booms and rattle my house."

In addition to Sanders and Hecker, the Ellises are represented by Jon Conte, an attorney in Cincinnati, Ohio. The citizens’ environmental enforcement lawsuit, Ellis v. Gallatin Steel, was filed in July 1999 in the U.S. District Court for the Eastern District of Kentucky.

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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 2,500 outstanding trial lawyers to pursue precedent-setting and socially significant litigation. It has a wide-ranging litigation docket in the areas of consumer rights, environmental protection, toxic torts, 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.