Big River Steel: Suit Alleging Clean Air Act Violations Has No Merit

A challenge to a $1.3 billion steel mill in Mississippi County could face additional hurdles if a suit against the superproject goes forward, attorneys for Big River Steel said in court papers late last week.

Attorneys for Little Rock-based Mitchell Williams and Washington, D.C.-based Baker Hostetler filed a 50-page reply memorandum in support of a motion to dismiss the suit against Big River Steel.

Nucor Steel filed suit Aug. 11 in federal court at Jonesboro alleging the construction of the steel mill near Osceola would violate the federal Clean Air Act.

The project, which broke ground in September, is expected to hire 2,000 construction workers and at least 550 employees once the mill opens, supporters of the project have said.

In the brief, attorneys for Big River Steel argue that Nucor has already lost the case at the state permit level.

“Nucor’s opposition to Big River Steel’s motion to dismiss confirms that it has already challenged Big River Steel’s air permit before the Arkansas Pollution Control & Ecology Commission, but received an adverse 71-page decision affirming that Big River Steel’s permit meets all applicable requirements of Arkansas and federal law,” the brief from attorney Adria W. Conklin said. “The question for this court is whether Congress intended for the Clean Air Act to authorize dissatisfied litigants, like Nucor, to run to federal court to challenge any or all of those 688 permits? (number of permits expected each year to be approved by federal regulators). Big River Steel respectfully suggests that the answer is ‘no.'”

The attorneys also argued that a negative ruling will create more problems.

“The consequences of a contrary decision are staggering. Should Nucor prevail on this issue, (federal) District Courts could become the forum for adjudicating the validity of the nearly 700 PSD permits that are obtained by new sources or major modifications each year,” Conklin said in the brief.

“This would be in addition to a state court appeal process that also would be available to serial litigators like Nucor. That conclusion defies common sense, is contrary to the Eighth Circuit’s admonition that Section 304 should not be used to ‘upset the reasonable expectations of facility operators and undermine the significant investment of regulatory resources made by state permitting agencies’ and would violate Congress’ intent to provide for citizens’ suits in a manner that would be at least likely to clog already burdened federal courts and most likely to trigger governmental action which would alleviate any need for judicial relief,” Conklin added.

An attempt to reach Nucor spokesman Katherine Miller Monday morning at the company’s Charlotte office was not successful.

However, company officials did say in September that a new mill could create problems in the region as well.

“Nucor has a practical, economic interest in maintaining a healthy, contented and motivated workforce as well as a pool of healthy potential employees. Having healthy employees and a healthy potential workforce pool minimizes the amount of time Nucor employees miss at work due to illness, thus preventing scheduling issues, missed shifts, sick leave and other losses,” Nucor’s attorneys said in September.

No trial date has been set to hear the case.