A federal judge on Wednesday threw out a lawsuit by a Mississippi County steel company that a competitor was violating federal environmental law.
Chief Judge Leon Holmes dismissed the suit without prejudice filed by Nucor Steel Arkansas and Nucor-Yamato Steel against Big River Steel.
The Nucor companies filed suit in United States District Court in Jonesboro in 2014, saying Big River Steel was violating the federal Clean Air Act. Nucor Steel, which operates three steel mills in Mississippi County, filed the suit to stop the state’s first superproject, Big River Steel, from locating in a nearby area in the county.
“This is a citizen suit brought under the Clean Air Act seeking an injunction to stop the construction of a steel mill for which the appropriate regulatory authority has issued a construction permit. The question is whether the Clean Air Act authorizes such a suit. It does not,” Holmes wrote in the 16-page order.
Big River Steel received a final permit from the Arkansas Department of Environmental Quality in Sept. 2013 to build the $1.3 billion mill south of Osceola.
Holmes’ order noted Nucor requested a commission review and hearing by the state Pollution Control and Ecology Commission soon after the permit was granted. The commission had a four-day hearing and issued a 71-page ruling, affirming the decision by ADEQ, Holmes said in his ruling.
Nucor then filed an appeal with the Arkansas Court of Appeals and objected to the permit to the Environmental Protection Agency. Attorneys with Big River Steel filed to have at least 27 different allegations of violating the Clean Air Act by Nucor dismissed. The allegations ranged from failure to provide proper dust control and scrap management plan to unachievable and undemonstrated emissions rates and emissions factors.
Big River Steel requested the suit be dismissed due to lack of jurisdiction and the case working its way through state court.
In his order, Holmes agreed.
“Because the Clean Air Act does not authorize citizen suits such as this one, which collaterally attacks a facially valid state-issued permit, the Court will dismiss Nucor’s complaint without addressing Big River Steel’s other arguments for dismissal,” Holmes said.
However, Holmes did say in his ruling that Nucor has the opportunity to appeal the decision.
“This is not to say that Nucor has no avenue for redress. In addition to its right to appeal to the Arkansas Court of Appeals …, Nucor has the right to petition the EPA to object to the permit issued to Big River Steel, and it has the right to seek judicial review under 42 USC 7607 if the EPA declines to do so,” Holmes said.
You can read the order here.
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