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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

James Sampson, et al.,

PLAINTIFFS

v.

SunCoke Energy, Inc., et al.,  

DEFENDANTS

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CASE NO. 1:17‐cv‐658

Judge Michael R. Barrett

PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

Pursuant to Rule 65 of the Federal Rules of Civil Procedure, Plaintiffs James (Jim)

Sampson, Roberta (Bobbi) Sampson, Mary Gannon, and Brian Gannon respectfully

move this Court for a preliminary injunction to prevent the ongoing irreparable harm

that is befalling the Plaintiffs and other residents along Back Road as a result of the

Haverhill coke plant’s (the Coke Plant’s) ongoing releases of toxic air pollution.  

The attached declarations of Mary Gannon, Jim Sampson, renowned air pollution

control and regulation expert William Auberle, and internationally prominent public

health expert Dr. David O. Carpenter, along with site‐specific particulate matter 2.5 data

(PM2.5), amply demonstrate that the Plaintiffs are being exposed to severe, episodic

releases of air pollution that threaten health and welfare. But, the Plaintiffs’ factual

pollution‐related observations, Defendants’ own emission information, and the

scientific and environmental literature on coke plant emissions demonstrate that the

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exposures of the Plaintiffs are not just single‐substance exposures, but instead are a

toxic swarm of metals, volatile organic compounds (VOCs), and other substances that

have resulted in adverse health effects, including headaches, chest pains, respiratory

irritation, difficulty breathing, and vertigo. These episodes, which can strike at any time,

are ongoing and so frequent that the Plaintiffs’ exposures are both acute (harmful

individually) and chronic (harmful collectively over time). The PM2.5 data confirm the

exposure pathway from the Coke Plant to Plaintiffs and elevate the proof of the gravity

of the nuisance, which is proven by the declarations, photographs, and videos. Each

episode of air pollution exposure constitutes further irreparable injury.

To prevent, or at least lessen, further injury to the Plaintiffs, their families, and

their neighbors, the Plaintiffs seek a tailored preliminary injunction with two primary

components. First, the Plaintiffs ask the Court to appoint an expert, with the requisite

public health and technical air pollution knowledge and experience, to:

a. Oversee, in consultation with Plaintiffs, the installation and operation of an

array of reasonably priced, multiple‐chemical air pollution monitors to be

located at strategic locations along or near the Coke Plant’s fence‐line

boundary and in the neighboring community, especially along Back Road, to

perform continuous, real time monitoring of additional air pollutant

emissions from the Coke Plant, including of particulate matter and volatile

organic compounds (VOCs);

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b. Implement and oversee a community reporting program for the Coke Plant’s

neighbors, especially along Back Road, to report nuisance conditions and

events to the expert via text, email, or phone call;

c. Investigate any nuisance reports to attempt to ascertain the root cause of

reported nuisance events (to conduct such investigations, the expert must be

authorized to inquire with Coke Plant personnel about root causes of any

such events, to review plant operations information, and to review air

monitoring data gathered by the monitors);

d. To assess, on a weekly basis, the Coke Plant’s records and data for

compliance with applicable air pollution regulations, including those relating

to proper coke oven pushing and quenching practices; and,  

e. Provide the Court, and all parties, with at least monthly reports on the

community reporting program, including the results of root cause

investigations into nuisance events.

Second, upon the expert verifying any nuisance report—i.e., determining that the

Coke Plant has released air pollution in such quantities or concentrations as to endanger

health, welfare, or safety and/or causing unreasonable injury or damage to property—

and, if possible, identifying the underlying root cause(s) of any such nuisance event, the

Court should require Defendants to take immediate steps, including requiring

immediate operational changes, to abate the nuisance‐creating causes.  

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The Defendants should pay the costs associated with the ordered injunctive

relief.

Plaintiffs demonstrate that they meet each of the injunctive relief elements in the

accompanying memorandum of law, which along with the attached exhibits, form the

basis of this Motion and the relief requested above. In particular, the facts demonstrate:

(1) Plaintiffs are likely to succeed on the merits of their nuisance claims; (2) Plaintiffs are

likely to continue to suffer irreparable harm in the form of exposure to toxic air

pollution from the Coke Plant; (3) the balance of equities warrants issuance of the

injunction; and (4) an injunction is in the public interest, as the requested relief will

minimize ongoing threats from exposure to toxic air pollution that violates federal air

laws. Winter v. Nat. Res. Def. Council, Inc. 555 U.S. 7, 20 (2008).  

Plaintiffs also respectfully request that this Court waive any bond requirement.

Courts in this circuit have long held that “the district court possesses discretion over

whether to require posting of security.” Appalachian Reg’l Healthcare, Inc. v. Coventry

Health & Life Ins. Co., 714 F.3d 424, 431 (6th Cir. 2013) (emphasis in original) (quoting

Moltan v. Eagle Picher Indus. Inc., 55 F.3d 1171, 1176 (6th Cir. 1995)). Imposing a bond

requirement in this case would be especially inequitable given Defendants’ nearly

continuous violations of the Ohio Air Nuisance Rule, OAC § 3745‐15‐07, and Plaintiffs’

strong likelihood of success on the merits. Waiving the bond requirement is also

appropriate since the Plaintiffs seek to vindicate public interests by enforcing federal

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laws. Eagle Picher Indus. Inc., 55 F.3d at 1176 (affirming decision refusing to require

posting of security because of the strength of the plaintiff’s case and the “strong public

interest involved”).

Accordingly, the Plaintiffs respectfully request that the Court grant the requested

injunction.

Respectfully submitted,

s/ D. David Altman __________

D. David Altman (0021457), Trial Attorney

Justin D. Newman (0080968)

Robin A. Burgess (0096442)

AltmanNewman Co. LPA

15 East 8th Street, Suite 200W

Cincinnati, Ohio 45202

(513) 721‐2180

Fax: (513) 721‐2299

daltman@environlaw.com

Attorneys for the Sampsons and Gannons

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TABLE OF CONTENTS AND SUMMARY OF ARGUMENT

I. INTRODUCTION (p. 1)

The Plaintiffs’ declarations describe irreparable harm, including being engulfed

by waves of pollution, degradation of property, interference with the use of their

properties, and physical symptoms they experience after the exposure to toxic clouds of

pollution, that warrants preliminary injunctive relief. This same evidence also

establishes that Plaintiffs are likely to prove hundreds of violations of the Ohio Air

Nuisance Rule, a provision designed to serve as a safety net from localized air pollution.

II. THE COKE PLANT IS CREATING A PUBLIC AIR NUISANCE THAT

THREATENS FURTHER IRREPARABLE INJURY TO THE

PLAINTIFFS (p. 2)

Jim Sampson, Bobbi Sampson, Brian Gannon, and Mary Gannon all live within

the Coke Plant’s immediate zone of pollution. For at least the past 5 years, the Plaintiffs

and their families have frequently, and without warning, been exposed to a wide array

of air pollutants known to be deleterious to health, including PM2.5. The pathways of

exposure from the Coke Plant to the Plaintiffs are active and complete. The Plaintiffs

have visually witnessed hazes and clouds form over the Coke Plant and travel to their

properties. Intense and foul odors often accompany these clouds. The Plaintiffs have

experienced physical symptoms after exposure, including coughing, gagging, nausea,

chest pains, and vertigo. The Plaintiffs have had their security in their homes taken

from them by the Coke Plant, as they often worry when the next pollution cloud may

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strike. Because they live under a constant threat of invasion, the Plaintiffs no longer use

the outdoors like they once did.

Under air expert William Auberle’s monitoring protocol, the Plaintiffs have

gathered data, which Mr. Auberle has analyzed, concluding that PM2.5 concentrations

are significantly higher when the Sampsons’ and Gannons’ properties are being

impacted by Coke Plant emissions. Renowned public health physician Dr. Carpenter

has opined, based on the scientific and medical literature, the Plaintiffs’ sworn

statements, and visual evidence of pollution, that the large quantities of pollutants

emitted by the Coke Plant endanger the health and welfare of the Sampsons and

Gannons.

III. LAW AND ARGUMENT (p. 9)

The four injunctive relief factors support issuance of the injunction, as the

Plaintiffs have a strong likelihood of prevailing on their air nuisance claims; Plaintiffs

will continue to suffer irreparable harm including ongoing exposure to toxic air

pollution; any burden associated with compliance with the injunction is substantially

outweighed by the need to prevent further irreparable harm; and the injunction would

serve the public interest of furthering compliance with the federal Clean Air Act. Planet

Aid v. City of St. Johns, 782 F.3d 318, 323 (6th Cir. 2015).

A. Plaintiffs are likely to prevail on their nuisance claims. (p. 10)

1. Plaintiffs are likely to prove the Coke Plant is an air nuisance in violation

of the Ohio SIP. (p. 10)

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The Ohio Air Nuisance Rule, O.A.C. § 3745‐15‐07, is federally enforceable by

Plaintiffs through the CAA. See Fisher v. Perma‐Fix of Dayton, Inc., S.D.Ohio No. 3:04‐cv‐

418, 2006 U.S. Dist. LEXIS 5389, at *14 (Jan. 27, 2006); City of Ashtabula v. Norfolk S. Corp.,

633 F. Supp. 2d 519, 528‐29 (N.D. Ohio 2009). The provision makes unlawful the

emission of air pollution in such amounts as to endanger the health, safety, or welfare of

the public, or in such amounts to cause unreasonable injury to property. O.A.C. § 3745‐

15‐07. This Court has recognized that air pollution’s interference with the use and

enjoyment of property and reduction of property values were the types of harms the

Ohio Air Nuisance provision protects against. Beck v. Stony Hollow Landfill, Inc. 2017 U.S.

Dist. LEXIS 65874, at *8 (May 1, 2017). The Plaintiffs’ sworn declarations, visual

evidence of pollution, PM2.5 data, and the expert analyses demonstrate that the Coke

Plant has endangered the health and welfare of the public with its toxic emissions and

interfered with the use of property to an unreasonable extent.  

2. Plaintiffs are likely to succeed on the merits of their common‐law

nuisance claims. (p. 16)

The Ohio Air Nuisance Rule is a “legislative declaration” that conduct in

violation of that provision is an unreasonable interference with a public right. Ibid. The

facts set forth in the attached exhibits demonstrate repeated violations of the Ohio Air

Nuisance Rule; the first element of unreasonable interference with a public right is

satisfied. Additionally, the Plaintiffs (who are private landowners) have suffered

injuries distinct in kind from those suffered by the general public, including the

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inability to use and enjoy their properties as they would like, stress about their health

and well‐being, and serious adverse physical symptoms such as vertigo, headaches, and

chest pains following exposure. Beck v. Stony Hollow Landfill, Inc., 2017 U.S. Dist. LEXIS

65874, 5 (S.D. Ohio May 1, 2017).  

The Plaintiffs are also likely to prevail under qualified private nuisance. Little

Hocking Water Assn. v. E.I. du Pont de Nemours & Co., 91 F. Supp. 3d 940, 972 (S.D. Ohio

2015). A qualified private nuisance is essentially a claim for negligence requiring duty,

breach, damages/injury resulting from the breach, and proximate causation between the

breach and injury. Id. at 972‐73. The injury “must be real, material, and substantial.ʺ 

Banford v. Aldrich Chem, Co., Inc., 126 Ohio St. 3d 210, 213, 2010 Ohio 2470, 932 N.E.2d

313, 317 (Ohio 2010). Defendants’ breach of duty and proximate causation are

established by the photographs, videos, declarations, and air monitoring data, all of

which demonstrate the invasion of the Plaintiffs’ interest in the private use and

enjoyment of their land.

B. Plaintiffs will continue to suffer irreparable harm. (p. 19)

Courts have recognized that the “significant health and environmental effects”

associated with toxic air pollution are “irreparable.” Sierra Club v. United States Dep’t of

Agric., 841 F.Supp. 2d 349, 358‐59 (D. D.C. 2012); United States v. Westvaco Corp., 2015

U.S. Dist. LEXIS 176166, at *25‐27 (D. Md. Feb. 26, 2015). Physical invasions and serious

air pollution episodes have been ongoing for years, including hundreds of such events

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in the past four years, all as described in the declarations of Mr. Sampson and Mrs.

Gannon. William Auberle opines that the episodes will continue to occur without

corrective action. Dr. Carpenter opines that immediate corrective steps need to be taken

to reduce the exposures.

C. Issuance of the injunction would not cause substantial harm to others. (p.

22)

Any potential burdens are outweighed by the ongoing irreparable harm to the

Plaintiffs, especially where Defendants have violated the nuisance provision nearly

continuously, monetarily benefited from those violations, and released hundreds of

tons of pollutants known to be harmful to health into the neighboring community.

D. The public interest favors an injunction. (p. 24)

The injunction is in the public interest because it will ensure compliance with

federal air laws and protect health and welfare. Sierra Club, 841 F. Supp. 2d at 360;

Westvaco Corp., 2015 U.S. Dist. LEXIS 176166, *28.

IV. CONCLUSION (p. 25)

Plaintiffs respectfully request that this Court enter an injunction appointing an

expert to create and oversee a community reporting program, to oversee installation of

air monitors, and to investigate root causes. Further, the Court should preliminarily

enjoin Defendants to immediately take all steps necessary to remedy any verified

nuisance event.   

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MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS’ MOTION FOR

PRELIMINARY INJUNCTION

I. INTRODUCTION

The Plaintiffs’ declarations tell this Court about the utter disruption of their lives

by the Coke Plant over the last four years, recounting particular exemplar pollution

attacks, which are ongoing. These sworn statements establish the injuries that require

immediate, albeit preliminary, relief. Exemplar injuries range from Plaintiffs’ specific

reactions to being engulfed by the waves of pollution; to the degrading of their

properties; to their curtailing outdoor use and other uses of their properties; to their

fears about exposure of those who live with them and those that they no longer let visit;

and, to the readings from instruments alerting them to the levels of tiny dangerous

particles, not visible to the naked eye or otherwise detectable. The declarations also

establish the photos, videos, and other records that back up evidence of hundreds of

pollution attacks over the past four years.  

This evidence constitutes overwhelming proof of an air nuisance under Ohio’s

State Implementation Plan and a violation of the anti‐nuisance provision of the Coke

Plant’s air permit. The Coke Plant’s duty not to create an air nuisance is separate and

distinct from its duty not to violate the National Ambient Air Quality Standards—one

protects the ambient air of the United States as a whole, while the anti‐nuisance

provisions protect those nearby from localized air pollution that threatens their health,

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safety, or welfare. The evidence of nuisance produced here demands preliminary

injunctive relief.

II. THE COKE PLANT IS CREATING A PUBLIC AIR NUISANCE THAT

THREATENS FURTHER IRREPARABLE INJURY TO THE

PLAINTIFFS

Plaintiffs James (Jim) Sampson, Roberta (Bobbi) Sampson, Brian Gannon, and

Mary Gannon all live on Back Road and within the zone of impact from the Haverhill

coke plant (the Coke Plant) owned and operated by Defendants. Gannon Decl., Ex. 1, ¶

3–4; Sampson Decl., Ex. 2, ¶ 3–5. Brian and Mary Gannon have lived on Back Road since

1998 and purchased their current home at 2737A Back Road, Franklin Furnace, Ohio

45629 in 2007. Ex. 1, ¶ 3. The Gannon property is approximately 1⁄4 mile from the Coke

Plant. Id., ¶ 4. Jim and Bobbi Sampson have owned and lived on their property at 2737C

Back Road, Franklin Furnace, Ohio 45629 since 1984. Ex. 2, ¶ 3. The Sampson property

is approximately 1,500 feet from the Coke Plant. Id., ¶ 5. Mr. Sampson constructed a

second home for his son, Brian, and his wife, Heather, in 2002. Since that home’s

construction, Brian and Heather have lived there with their children. Brian’s oldest son,

Austin, has lived primarily with Mr. and Mrs. Sampson due to his significant health

challenges.1 Id., ¶ 3.

For the past 5 years—despite entry of a Consent Decree and despite major

modifications to the Coke Plant—the Sampson and Gannon families and their

 

1 Plaintiffs have been granted leave to file a declaration regarding Austin’s health challenges under seal

because it contains confidential medical information.

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neighbors have frequently, and often without warning, been exposed to a wide array of

air pollutants, including smoke, dust, grime, acids, fumes, gases, vapors, and foul

odors, released from the Coke Plant in such manner and in such amounts as to

endanger the health, safety and welfare of the Sampsons and Gannons, and cause

unreasonable damage to the Sampsons’ and Gannons’ properties. The intensity and

frequency of the odors, deposits, plumes, haze, and other Coke Plant releases has gotten

worse over the past two and one‐half years. Ex. 1, ¶ 27; Ex. 2, ¶ 32. These releases occur

as repetitive, acute incidents of varying durations and occur so frequently that they also

constitute chronic exposure. Auberle Decl., Ex. 3, ¶ 11. The nuisance‐creating releases are

ongoing and will continue.  

It is undisputed that the Coke Plant emits a great many and wide variety of air

pollutants, including particles; acid gases; odorous gases; hazardous air pollutants

(HAPs); greenhouse gases; toxic metals; and other chemicals. Ex. 3, ¶ 12–15; Carpenter

Decl., Ex. 4, ¶ 10; Fee Emission Reports for 2013–2016, Atts. C–F to Burgess Decl., Ex. 5.

Hundreds of tons of air pollutants PM10 (particulate matter with a diameter of 10

micrometers or less) and PM2.5 (particulate matter with a diameter of 2.5 micrometers

or less) are emitted annually. Atts. C–F to Ex. 5. All particulate matter emissions emitted

from the Coke Plant and transported by winds offsite and onto neighboring properties,

including the Sampsons’ and Gannons’ properties, are, regardless of size, a mixture of

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organic and inorganic compounds, including the array of toxic metals and chemicals

present in the raw coal used for producing coke. Ex. 3, ¶ 12–15; Ex. 4, ¶ 10.  

The known health effects of the particulate matter, gases, metals, chemicals, and

other pollutants emitted by the Coke Plant range from irritating to deadly. PM2.5 and

other ultrafine particles in air pollution pose a great risk to human health and have been

rated as a Group 1, known human carcinogen. Ex. 3, ¶ 13; Ex. 4, ¶ 11. PM2.5 and other

ultrafine particles can penetrate to the lungs—inducing and contributing to heart

disease, reduced life expectancy, and lung diseases. Ex. 4, ¶ 12, 14. In 2012, coke

production was rated as an occupation known to cause cancer by the International

Agency for Research on Cancer (IARC). Id., ¶ 10. Particulate matter pollutants can

induce sneezing, coughing, respiratory irritation and congestion, and can trigger

asthma attacks. Ex. 3, ¶ 12; Ex. 4, ¶ 13, 15–16. In addition, the reactive gases released

from the Coke Plant can damage paint, wood, metal, and other materials, vegetation

and other organisms. Ex. 3, ¶ 12.

There is ample evidence that the pollution pathway between the Coke Plant and

the Sampsons and Gannons is complete and ongoing. On hundreds of occasions over

the past four years, the Sampsons and Gannons have witnessed hazes and clouds form

over the Coke Plant and watched huge plumes escape from various areas of the Coke

Plant, including the quench towers and stacks, and be pushed by winds towards and

onto their properties. Ex. 1, ¶ 6; Ex. 2, ¶ 8. Intense and foul odors often accompany the

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visible pollution clouds. These same odors have been detected when there is no visible

pollution. Ex. 1, ¶ 7, 12; Ex. 2, ¶ 11, 20. These odor clouds last from minutes to all day

and occur, unpredictably, at all hours of the day and night. Ex. 1, ¶ 7, 11–14; Ex. 2, ¶ 11,

16–22. Due to this unpredictability, Plaintiffs live in constant fear of when the next event

will occur. Ex. 2, ¶ 11.

The hazes, clouds, plumes, and foul odors from the Coke Plant have made Mrs.

Gannon no longer feel safe in her home or on her property and have largely forced her

to reduce all the recreational activities on her property that used to make her happy. Ex.

1, ¶ 20–22, 24, 26. She is afraid that her and her families’ past, present, and ongoing

exposure to the Coke Plant’s pollution will cause cancer or some other disease. Id., ¶ 15.

Exposure to the pollution and odor clouds causes Mrs. Gannon to experience annoying

to unbearable symptoms including coughing; gagging; shortness of breath; irritation of

the eyes, sinuses, and throat; headaches; nausea; chest pains; and vertigo. Id., ¶ 7–9, 11–

14. Brian Gannon suffers from burning sinuses, headaches, and chest pains after being

exposed to Coke Plant pollution. Id., ¶ 10. Mrs. Gannon must often wear a mask in

order to stand being outside, does not have as much energy as she used to, and gets

winded easily. Id., ¶ 8–9. The foul odors prevent Mrs. Gannon from having her

windows open when she wants to, have invaded the Gannons’ home at night, and have

been so invasive as to wake them up. Id., ¶ 11, 22. The Coke Plant’s pollution clouds

leave behind black deposits that cling stubbornly to every surface and have caused Mrs.

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Gannon to stop consuming the food she grows because she is afraid to eat anything

grown in soil or air polluted by the Coke Plant. Id., ¶ 16, 21. The pollution and odor

clouds and black deposits have caused Mr. and Mrs. Gannon to sharply decrease the

amount of time they spend outside enjoying their property. Id., ¶ 20–21, 24–25. Mrs.

Gannon no longer allows her children, grandchildren, and friends to visit her property

because she does not want them exposed to the Coke Plant’s pollution. Id., ¶ 15, 26.

The foul hazes, clouds, plumes, and odors from the Coke Plant have taken the

Sampsons’ security in their home away, and the constant and persistent presence of the

black deposits have taken away the Sampsons’ ability to make their home presentable

and enjoyable. Ex. 2, ¶ 9, 15, 23–28. The Sampsons fear for their health and for the

health of their children and grandchildren who live on their property with them. Id., ¶

9, 23. Out of fear of further exposure to the Coke Plant’s pollution, Mrs. Sampson does

not go outside as often as she used to. Id., ¶ 13. Exposure to the pollution and odor

clouds causes Mr. Sampson to experience irritating to unbearable symptoms including

coughing; gagging; vomiting; irritation of the eyes, sinuses, and throat; shortness of

breath; headaches; and nausea. Id., ¶ 12, 14. Mrs. Sampson coughs and hacks, suffers

from sinus issues, and gets headaches after getting caught in the odorous pollution

clouds. Id., ¶ 13. Mr. Sampson can feel particles from the odorous pollution clouds in

his mouth and throat, which have an unpleasant metallic taste. Id., ¶ 12.  

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The Sampsons’ six grandchildren, ages 19, 16, 13, 8, 6, and 21 months, who live

on their property all have sinus/allergy issues and respiratory problems and two have

asthma. Ex. 2, ¶ 15. Starting approximately 18 months ago, the Sampsons, including

their children and grandchildren, have all experienced severe fatigue after exposure to

the Coke Plant’s pollution. Id., ¶ 23. The black deposits, odorous pollution clouds, and

concerns about their health have caused the Sampsons to stop consuming the produce

their grandson grows on their property and to sharply decrease the time they spend

sitting on their deck or the screened‐in porch and using the grill and fire pit area. Id., ¶

29–31.

While the factual, direct observations and experiences of the Sampsons and

Gannons are more than sufficient to show that the Coke Plant is creating a public

nuisance and causing ongoing irreparable harm, renowned air pollution control and

regulation expert William Auberle and public health expert Dr. David O. Carpenter

both opine that the Coke Plant has and will continue to create an air nuisance and that

immediate steps are needed to reduce the Sampsons’, the Gannons’, and their families’

and neighbors’ exposures to nuisance emissions. Ex. 3, ¶ 11, 28; Ex. 4, ¶ 20, 29.

Mr. Auberle has spent his 50‐year career as an environmental engineer, air

pollution regulator, and air pollution control consultant and has extensive experience

investigating, mitigating, and overseeing abatement of nuisance‐causing air pollution.

Ex. 3, ¶ 4–8. In addition, he has wide experience designing, installing, and operating air

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pollutant monitoring networks. Id., ¶ 9. Mr. Auberle opines that air pollutants released

from the Coke Plant create a public nuisance and are a threat to humans and property

near the Coke Plant, including the Sampsons and Gannons, in multiple forms. Id., ¶ 11–

24. To assess the concentrations of respirable PM2.5 emitted from the Coke Plant, Mr.

Auberle developed a methodology for measuring the Sampsons’ and Gannons’

exposures on their properties using “AirBeam” monitor technology furnished by

Cincinnati’s University Hospital. Id., ¶ 16–21. Under Mr. Auberle’s protocol, the

Sampsons and Mrs. Gannon have collected PM2.5 at times when they visually or

physically perceive pollution traveling from the Coke Plant towards their properties.

Id., ¶ 18. Many of the pollutants emitted by the Coke Plant can be detected by the

human body—and have been detected by the Sampsons and Gannons on numerous

occasions. Because the human body cannot detect or feel PM2.5, the AirBeam monitors

have provided objective PM2.5 data that corroborates the Sampsons’ and Gannons’

accounts of the impacts of the Coke Plant’s pollution. Id., ¶ 23. Mr. Auberle’s analysis of

the data reveals that PM2.5 concentrations are significantly higher when the Sampsons’

and Gannons’ properties are being impacted by Coke Plant emissions. Ex. 3, ¶ 18, 22;

Atts. A and B to Ex. 5.

Public health physician Dr. David O. Carpenter has pursued a career in

biomedical research and public health where he evaluates the causes of health effects in

humans that result from exposure to environmental contaminants. Ex. 4, ¶ 4–9. Based

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on the Sampsons’ and Gannons’ sworn statements, the PM2.5 data, Mr. Auberle’s

analysis, scientific studies and other literature, and his extensive expertise as a public

health expert, Dr. Carpenter opines that the large quantities of pollutants emitted by the

Coke Plant endanger the health and welfare of the Sampsons and Gannons and their

neighbors. Id., ¶ 10–29.  

III. LAW AND ARGUMENT

The focus of a preliminary injunction is to prevent further irreparable injury and

may require the preliminary relief to go beyond preservation of the status quo,

especially where the status quo would lead to further irreparable harm. United Food &

Commer. Workers Union, Local 1099 v. Southwest Ohio Regional Transit Auth., 163 F.3d 341,

348 (6th Cir. 1998). This Court is required to balance four factors to determine whether

to grant a preliminary injunction:

(1) whether the movant has a strong likelihood of success on the merits;

(2) whether the movant would suffer irreparable injury without the

injunction; (3) whether issuance of the injunction would cause substantial

harm to others; and (4) whether the public interest would be served by

issuance of the injunction.

Planet Aid v. City of St. Johns, 782 F.3d 318, 323 (6th Cir. 2015).2 However, “[t]hese four

considerations are ‘factors to be balanced, not prerequisites that must be met.’” Certified

Restoration Dry Cleaning Network, L.L.C. v. Tenke Corp., 511 F.3d 535, 542 (6th Cir. 2007).

A strong showing on likelihood of success and the likelihood of irreparable harm may

 

2 In Winter, the Supreme Court refers to the third factor as a balancing of the equities. The Sixth Circuit

frequently refers to the factor as the “substantial harm to others” analysis, but it is clear that the equities

are balanced regardless of terminology. Winter v. Nat. Res. Def. Council, Inc. 555 U.S. 7, 20 (2008)

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lessen the showing need on the third and fourth factors. As discussed below, each of

these considerations overwhelmingly favors issuance of the preliminary injunction.

A. Plaintiffs are likely to prevail on their nuisance claims.

The facts regarding the severity of the adverse effects of the pollution from the

Coke Plant on the Plaintiffs and their properties demonstrate they are substantially

likely to prevail on both their Ohio Air Nuisance Rule and common law nuisance

claims. Complaint, First and Twenty‐Eighth Claims, Doc. 1, PageID 29 and 59.

1. Plaintiffs are likely to prove the Coke Plant is an air nuisance in violation

of the Ohio SIP.

As part of their Clean Air Act (CAA) citizen suit, the Plaintiffs are authorized to

seek an injunction securing Defendants’ compliance with any requirement of any

federally‐approved State Implementation Plan (“SIP”), and any term and condition of a

permit issued under the CAA. 42 U.S.C. § 7604(a)(1) and (f). Ohio’s public nuisance

prohibition, O.A.C. § 3745‐15‐07, was approved by U.S. EPA as part of Ohio’s SIP on

October 12, 1984.3 In addition, compliance with O.A.C. § 3745‐15‐07 is a term of the

Coke Plant’s PSD Permit. Accordingly, O.A.C. § 3745‐15‐07 is federally enforceable by

Plaintiffs through the CAA. See Fisher v. Perma-Fix of Dayton, Inc., 2006 U.S. Dist. LEXIS 

5389, at *14, 2006 WL 212076 (Jan. 27, 2006); City of Ashtabula v. Norfolk S. Corp., 633 F.

Supp. 2d 519, 528‐29 (N.D. Ohio 2009).

 

3 Plaintiffs are citing and enforcing the version of the provision that has been, and remains, a part of the

Ohio State Implementation Plan.  

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Ohio’s public nuisance prohibition reads, in pertinent part:

(A) Except as provided in paragraph (B) of this rule, the emission or

escape into the open air from any source or sources whatsoever, of smoke,

ashes, dust, dirt, grime, acids, fumes, gases, vapors, odors, or any other

substances or combinations of substances, in such manner or in such

amounts as to endanger the health, safety or welfare of the public, or

cause unreasonable injury or damage to property, is hereby found and

declared to be a public nuisance. It shall be unlawful for any person to

cause, permit or maintain any such public nuisance.

O.A.C. § 3745‐15‐07 (emphasis added).   

While the Ohio environmental regulations do not define “welfare,” the CAA

defines “welfare” to include effects on property, economic values of property, visibility,

and personal comfort and well‐being. 42 U.S.C. § 7602(h) (emphasis added). Terms such as

“endanger,” “damage,” and “unreasonable,”—also not defined in Ohio’s environmental

regulations—should be given their common or plain meaning. Endanger means “[t]o

expose to harm or danger” or “imperil” while “unreasonable” means “[e]xceeding

reasonable limits...” American Heritage Dictionary of English Language, 3rd Edition.

“Safety” refers to “...freedom from danger, risk, or injury,” while “health” is the

“...condition of an organism at a given time.” Ibid. And, “damage” means

“[i]mpairment of the usefulness or value of... property” or “harm.” Ibid.  

Hence, violations of the nuisance provision are shown when a facility releases air

pollution in such amounts as to: (1) expose the happiness or well‐being of the public

(welfare) to harm or danger or to imperil happiness or well‐being; or (2) impair the

usefulness of or cause harm to property beyond reasonable limits; or (3) expose others

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to harm, risk, danger, or injury. This Court has recognized that air pollution’s

interference with the use and enjoyment of property and reduction of property values

were the types of harms the Ohio Air Nuisance provision protects against. Beck v. Stony

Hollow Landfill, Inc., 2017 U.S. Dist. LEXIS 65874, at *8, 2017 WL 1551216 (S.D. Ohio May

1, 2017).   

In the case at bar, the Coke Plant has plagued the community, especially in the

Back Road area—as shown by factual sworn testimony, photographs, and video and as

confirmed by PM2.5 data—with foul emissions of black greasy and oily deposits, dust,

clouds, plumes, and hazes of pollution. Ex. 1; Ex. 2; Ex. 3, ¶ 16–24. The Gannons and

Sampsons have experienced hundreds of severe episodic events over the past four

years, including especially severe releases during the past year. Ex. 1, ¶ 6–14; Ex. 2, ¶ 8–

23.

During and after such severe episodic releases, the Plaintiffs experience adverse

physical symptoms. Both Mrs. Gannon’s and Mr. Sampson’s sworn declarations

describe experiencing severe headaches, stinging/burning of the eyes, upset

stomach/nausea, coughing and sneezing, fatigue, and chest pains. Ex. 1, ¶ 8–13; Ex. 2, ¶

12–21, 23. Mr. Sampson has vomited after exposure to particularly severe pollution

clouds, while Mrs. Gannon has experienced, over the past year, vertigo‐like symptoms

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after exposure.4 Ex. 2, ¶ 12, Ex. 1, ¶ 9. Each of Mr. Sampson’s six grandchildren who live

on Mr. Sampson’s Back Road property suffers from sinus and respiratory difficulties.

Ex. 2, ¶ 15. The types of air pollutants that the Coke Plant releases are linked to these

types of physical effects. Ex. 3, ¶ 12, 27; Ex. 4, ¶ 23.

The Plaintiffs frequently observe the clouds travelling off‐site, from areas such as

the quenching operations, into the neighboring community, or can identify the Coke

Plant as the source of the pollution clouds because of what they recognize to be a

distinctive Coke Plant or “green oven” odor. Ex. 1, ¶ 6–7, 11–13, Ex. 2, ¶ 8, 10–11, 16–21.

The physical effects experienced during and after they are exposed to green oven odors

are especially severe. Ex. 1, ¶ 13, Ex. 2, ¶ 21. The Plaintiffs also “fingerprint” the Coke

Plant as the source of the clouds because of characteristic “tastes” that they know to be

from the Coke Plant (e.g., “metallic” or coke “particle” tastes) and the physical

symptoms associated with such exposures. Ex. 1, ¶ 8; Ex. 2, ¶ 12. For example, Mr.

Sampson describes exemplar episodes from late May 2018:   

Around 9:10 AM on May 26, 2018, I could smell the Coke Plant when I

went outside. The odor was accompanied by a bitter, metallic taste. The

 

4 Mrs. Gannon’s declaration describes several severe episodic releases from the past several months,

including a particularly severe episode on April 3, 2018:  

On April 3, 2018, the Coke Plant had been stinking all day; when I went outside at 1:30

PM, I became nauseated. The smell caused me to sneeze and irritated my sinuses and

throat. It was still stinking badly at 3:30 PM. I went out just after 4 PM and there was a

strong gust of wind; it was stinking really badly. I felt sick to my stomach and my head

felt odd like a headache was going to start; the pollution from the Coke Plant was getting

in my eyes and mouth.  I woke up the next morning with a headache.

Ex. 1, ¶ 11.i.

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Coke Plant smells were very bad around 10 AM, when Austin and I went

over to the Gannons’ property. Austin and I left to run errands and

returned to the Gannons’ around 1:15 PM; the Coke Plant odors were still

really bad. Shortly after we returned home, around 1:49 PM, I could still

smell terrible odors from the Coke Plant. The odors left a metallic taste in

my mouth and gave me a headache, both of which lasted all afternoon. I

could still smell the Coke Plant at 11 PM when I went outside. Early on

May 28, around 1:00 AM, the Coke Plant was very smoggy and smoky

and the stink from the Coke Plant was bad. The fumes made me cough a

lot, irritated my throat and nasal passages, and left a metallic bitter taste in

my mouth. I went out again around 9:10 AM. The Coke Plant was foggy

and I could smell the fumes, which again irritated my throat and nasal

passages and gave me a headache.

Ex. 2, ¶ 19.h.  

Entrained in the toxic and hazardous air pollution from the Plant is PM2.5, for

which health and environmental organizations and public health and medical literature

conclude there is no safe level of exposure. Ex. 4, ¶ 18. Such particles are so small that

they become lodged deep into the lungs and result in severe health effects, especially in

older adults and young children, such as Mr. Sampson’s grandchildren. Id., ¶ 11, 18, 24.

The Defendants’ own records confirm that they knowingly emit approximately one

hundred tons of this particularly harmful pollutant on an annual basis. Atts. C–F to Ex.

5.

Dr. Carpenter concludes that the Coke Plant’s air pollution endangers the health

and welfare of the Sampsons and Gannons and other community residents. Ex. 4, ¶ 20–

29. The PM2.5 data gathered by the Plaintiffs is significant because PM2.5 pollution,

alone, is sufficient to endanger the health and safety of the public, including the

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Plaintiffs. Id., ¶ 11–12, 18, 21, 28. Here, however, the exposures, which are so frequent as

to be both chronic and acute, are multi‐pollutant, including metals and a whole host of

other substances known to be deleterious to health. Ex. 3, ¶ 11–15; Ex. 4, ¶ 10–18, 20–29.

The PM2.5 data also corroborate the pollution‐related observations of the Plaintiffs and

further confirm the presence of completed air pollution migration pathways, as air

pollution expert William Auberle concludes, from the Coke Plant’s operations to the

breathing zones of those on Back Road. Ex. 3, ¶ 23.

Simply stated, the evidence overwhelmingly demonstrates that the Plaintiffs are

likely to prevail on their Ohio Air Nuisance Rule claims because the particulates,

vapors, fumes, dusts, and other substances released from the Coke Plant are

endangering the health and safety of the public, including the Plaintiffs.

The evidence also demonstrates that the Coke Plant is impairing the usefulness

of or causing harm to property beyond reasonable limits.  The greasy and oily deposits

accumulate nearly every day and coat window ledges, decks, lawn furniture, and grass,

and concrete. Ex. 1, ¶ 16–19, 23; Ex. 2, ¶ 24–27. The Gannons’ property is also coated

with materials from the Coke Plant to such an extent that Mrs. Gannon cannot keep her

property clean and has curtailed many of the outdoor activities, such as gardening, that

once made her happy. Ex. 1, ¶ 17, 20, 22–25. Mrs. Gannon and Mrs. Sampson are

basically forced to shut themselves inside their homes frequently to avoid exposure. Ex.

1, ¶ 20–22, 24; Ex. 2, ¶ 13. Both families experience severe worry and apprehension

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about when the next pollution cloud will strike. Ex. 1, ¶ 7, 15, 26; Ex. 2, ¶ 9, 11, 13, 23.

Mrs. Gannon has taken steps to avoid exposure of her grandchildren and friends by

either not inviting them over or limiting the amount of time she allows them on her

property. Ex. 1, ¶ 15, 26. The Plaintiffs’ security in their homes and properties has been

taken away by the Coke Plant. Ex. 1, ¶ 26; Ex. 2, ¶ 9. These same facts also show

Plaintiffs are highly likely to prove at trial that the Coke Plant is exposing the public’s

“happiness, well‐being or prosperity” (welfare) to harm or danger.

2. Plaintiffs are likely to succeed on the merits of their common‐law

nuisance claims.

First, in light of the facts set forth above on their Ohio Air Nuisance claim, the

Plaintiffs are likely to succeed on a claim for common‐law public nuisance. “A public

nuisance is ‘an unreasonable interference with a right common to the general public.’”

Beck, 2017 U.S. Dist. LEXIS 65874, at *5 (quoting Kramer v. Angelʹs Path, LLC, 2007‐Ohio‐

7099, ¶¶ 15‐23 (Ct. App.)). To prevail, the Plaintiffs must show both unreasonable

“interference with a public right” and an injury “different in kind” than that suffered by

the other members of the public. Id. at *5‐6 (quoting Kramer, 2007‐Ohio‐7099, ¶¶ 15‐16).

The Ohio Air Nuisance Rule is a “legislative declaration” that conduct in violation of

that provision is an unreasonable interference with a public right. Id. at *8‐9 (quoting

Hager v. Waste Techs. Indus., 2002‐Ohio‐3466, ¶ 81 (Ct. App.)). In light of the facts

discussed above in Section III.A.1., demonstrating repeated violations of the Ohio Air

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Nuisance Rule, the first element of unreasonable interference with a public right is

satisfied.

Additionally, the Plaintiffs (who are private landowners) have suffered injuries

distinct in kind from those suffered by the general public, including the inability to use

and enjoy their properties as they would like, stress about their health and well‐being,

and serious adverse physical symptoms such as vertigo, headaches, and chest pains

following exposure. As this District has recognized, “property owners are uniquely

situated to pursue a nuisance claim: ‘When the particular harm involved consists of

interference with the use and enjoyment of land, the landowner may recover either on

the basis of the particular harm to her resulting from the public nuisance or on the basis

of private nuisance.’” Beck, 2017 U.S. Dist. LEXIS 65874, at *9 (quoting Brown v. Cnty.

Commʹrs, 622 N.E.2d 1153, 1160 (Ct. App. 1993)). Hence, the Plaintiffs are likely to

prevail on their common‐law public nuisance claim.

Second, Plaintiffs are likely to prevail on qualified private nuisance. A private

nuisance is defined as a ʺnontrespassory invasion of anotherʹs interest in the private use

and enjoyment of land.” Little Hocking Water Assn. v. E.I. du Pont de Nemours & Co., 91 F.

Supp. 3d 940, 972 (S.D. Ohio 2015) (quoting Hager, 2002‐Ohio‐3466, ¶¶ 127‐132). A

qualified private nuisance is essentially a claim for negligence requiring duty, breach,

damages/injury resulting from the breach, and proximate causation between the breach

and injury. Id. at 973.   The injury “must be real, material, and substantial.ʺ Banford v.

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Aldrich Chem, Co., Inc., 126 Ohio St. 3d 210, 213 (Ohio 2010). Conditions affecting one’s

sight, smell, hearing, or that cause physical discomfort satisfy the material injury

requirement. Beck, 2017 U.S. Dist. LEXIS 65874, * 11‐12 (citing Banford, 126 Ohio St. 3d at

318).  

Each of these elements is met. Defendants have a duty to prevent their air

pollution from endangering the health, welfare, and property of neighboring property

owners. Beck, 2017 U.S. Dist. LEXIS 65874 at *9‐10. The Plaintiffs’ sworn testimony

establishes that Defendants have breached their duties and proximately caused injury

by unleashing clouds of pollution that have frequently engulfed Plaintiffs, interfering

with their use and enjoyment of their properties, including by forcing the Plaintiffs to

curtail outdoor activities that they once enjoyed. The breach of duty and proximate

causation are also established by the photographs, videos, and air monitoring data, all

of which demonstrate the invasion of the Plaintiffs’ interest in the private use and

enjoyment of their land. And, the physical injuries are not “trifling,” as the Plaintiffs

have come forward with sworn facts about suffering from vertigo, headaches, chest

pains, being exposed to offensive odors and clouds, and even being woken up in the

middle of the night as a result of air pollution from the Coke Plant. Ex. 1, ¶ 8–14; Ex. 2, ¶

12–23. The physical discomfort, which is at times unbearable, and other adverse effects

from pollution suffered by Plaintiffs are material injuries under the case law.    The

injuries are also foreseeable. Defendants have been aware, for years, about adverse

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impacts on the use and enjoyment of property and have known that the Coke Plant

releases hundreds of tons per year of harmful substances into the surrounding

community. Atts. C–F to Ex. 5. These facts amply demonstrate that the Plaintiffs are

substantially likely to prevail on their qualified private nuisance claim.

B. Plaintiffs will continue to suffer irreparable harm.

The evidence must also demonstrate that irreparable injury is likely in the

absence of an injunction. Winter, 555 U.S. at 22. An injury is irreparable if it cannot be

fully compensated by money damages. Basicomputer Corp. v. Scott, 973 F.2d 507, 511‐12

(6th Cir. 1992) (“...an injury is not fully compensable by money damages if the nature of

the plaintiffʹs loss would make damages difficult to calculate.”). “Environmental injury,

by its nature, can seldom be adequately remedied by money damages and is often

permanent or at least of long duration, i.e., irreparable.” Amoco Prod. Co. v. Vill. of

Gambell, 480 U.S. 531, 545 (1987).  

Here, at issue in this Motion is the ongoing irreparable harm and threatened

additional irreparable harm resulting from Defendants’ ongoing air pollution. As

outlined above, the Plaintiffs have collected data that shows elevated concentrations of

PM2.5 that have reached their properties and been detected via the AirBeam monitors.

Ex. 3, ¶ 16–22. This further demonstrates a completed pathway from the Coke Plant to

the Plaintiffs’ breathing zone. Dr. Carpenter has opined that the significant waves of

pollution, which include PM2.5, threaten human health and have likely contributed to a

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number of the health effects experienced by the Plaintiffs. Ex. 4, ¶ 20–29. Indeed, as Dr.

Carpenter opines, PM2.5 particles lodge deep into the lungs and can work their way

into the blood stream, and PM2.5 is associated with a number of serious adverse health

effects, including heart and lung diseases and other adverse respiratory effects and

symptoms. Id., ¶ 11–14, 18. Dr. Carpenter opines that PM2.5 is a zero‐threshold

pollutant, meaning that there is no safe level of exposure. Id., ¶ 18.

In fact, courts have recognized that the “significant health and environmental

effects” associated with PM2.5 are “irreparable.” United States v. Cinergy Corp., 618 F.

Supp. 2d 942, 963‐64 (S.D. Ind. 2009), revʹd on other grounds, 623 F.3d 455 (7th Cir. 2010);

Sierra Club v. United States Dep’t of Agric., 841 F. Supp. 2d 349, 358‐59 (D. D.C. 2012)

(holding that threat of increased air pollution, including PM2.5 air pollution, constitutes

irreparable harm because of the well‐documented health effects associated with PM2.5

exposure); United States v. Westvaco Corp., 2015 U.S. Dist. LEXIS 176166, at *25‐27, 2015

WL 10323214 (D. Md. Feb. 26, 2015) (finding irreparable harm because PM2.5 threatens

health and the environment, even at levels below national air standards).

Importantly, this case does not involve exposure to just PM2.5 air pollution.

There is a toxic swarm of pollutants that are being emitted from the Coke Plant,

including PM10, sulfur dioxide compounds, nitrogen oxides, volatile organic

compounds, and heavy metals. Ex. 3, ¶ 11–15, 23; Ex. 4, ¶ 10, 20. These other materials

are also deleterious to health. And, the Plaintiffs have on hundreds of occasions during

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the past four years, including severe episodes in the past few weeks, suffered serious

health effects after exposure to clouds and plumes of pollution from the Coke Plant,

including headaches, respiratory irritation, shortness of breath, nausea, vertigo, and

chest pains. Ex. 1, ¶ 8–14; Ex. 2, ¶ 12–23. Dr. Carpenter opines that exposure to the

substances released from the Coke Plant is known to lead to the types of health effects

experienced by the Plaintiffs. Ex. 4, ¶ 20, 23–24. The Plaintiffs also live in constant fear,

which induces stress, about when the next pollution cloud will envelope their

properties and result in exposure for themselves, their children, or their young

grandchildren and fear for their health and their families’ health. Ex. 1, ¶ 7, 15, 20–21,

23–26; Ex. 2, ¶ 9, 11, 15, 23, 30–31. See Save Our Summers v. Wash. Dep’t of Ecology, 132 F.

Supp. 2d 896, 905 (E.D. Wa. 1999) (finding irreparable harm where plaintiffs suffered

from respiratory ailments as a result of challenged action).

Further, the Plaintiffs are suffering irreparable injury to their properties and their

use and enjoyment of their properties that cannot be fully remedied through money

damages. Money damages will not prevent future invasions and interference. Such

invasions and interference have been recognized by Ohio courts to be irreparable injury

for which injunctive relief lies. Adams v. Snouffer, 87 N.E.2d 484, 486 (Ct. App. 1949).

These physical invasions and pollution episodes have been ongoing for years,

including hundreds of such events in the past four years, all as described in the

declarations of Mr. Sampson and Mrs. Gannon. Ex. 1, ¶ 6–14; Ex. 2, ¶ 8–23. Renowned

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air pollution expert William Auberle opines that the episodes will continue to occur

without corrective action, including the community reporting program and root cause

investigation steps he outlines in his declaration. Ex. 3, ¶ 24–28. Dr. Carpenter opines

based on the declarations, data, and medical literature that immediate corrective steps

need to be taken to reduce the exposures of those living on Back Road, including the

Plaintiffs. Ex. 4, ¶ 19–29. Hence, it is clear the Plaintiffs have suffered and will continue

to suffer irreparable harm without the requested injunction.

C. Issuance of the injunction would not cause substantial harm to others.

The third factor balances the relative harms v. benefits that would result from

issuance of the injunction. Because environmental injuries are generally irreparable, if

the environmental injury is sufficiently likely, the “balance of harms will usually favor

the issuance of an injunction to protect the environment.” Amoco Prod. Co., 480 U.S. at

545. In fashioning an equitable remedy under an environmental statute, district courts

should focus on ʺthe underlying substantive policy the [statute] was designed to effect.ʺ 

Id. at 544. “By enacting the Clean Air Act, Congress established a high priority for the

control of air pollution. The legislature recognized that compliance would be expensive

in some cases, but the choice was made to require compliance with [CAA] standards...”

United States v. Painesville, 644 F.2d 1186, 1194 (6th Cir. 1981).

And, “[h]arm to [the] environment outweighs a defendantʹs financial interests,

particularly where violations are of a longstanding and continual nature.ʺ  Idaho

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Conservation League v. Atlanta Gold Corp., 879 F. Supp. 2d 1148, 1161 (D. Idaho 2012).

Further, any “burden” associated with complying with existing legal obligations is not

the type of hardship that tips the analysis in a defendant’s favor. Luxottica Retail N. Am.

Inc. v. CAS‐MAN, Inc., 2011 U.S. Dist. LEXIS 15603, at * 22, 2011 WL 672063 (S.D. Ohio

Jan. 14, 2011) (finding defendants face no hardship by being forced to refrain from

violating trademark law and being forced to comply with contractual obligations); Baker

Hughes Oilfield Operations, Inc. v. Beard, 2016 U.S. Dist. LEXIS 15068, at * 5‐6 (D. Colo.

Feb. 8, 2016) (finding compliance with statutory and contractual obligations does not

place a burden on a party that is relevant to the injunction analysis ).

In this case, the Coke Plant is already required to comply with the Ohio Air

Nuisance Rule, and Plaintiffs simply seek minimum steps to reduce the deleterious

impact of nuisance‐causing operations pending the trial on the merits. The concerns of

any potential burdens associated with complying with the requested injunction should

not, therefore, be balanced against the ongoing irreparable harm to the Plaintiffs,

especially where the evidence shows Defendants have violated the nuisance provision

nearly continuously over the past four years. Defendants continue to monetarily benefit

from these violations and knowingly release hundreds of tons of pollutants known to

be harmful to health into the neighboring community, all the while misleading the

public by characterizing quench plumes loaded with particulates as “water vapor.” Att.

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G to Ex. 5. What is more, any burden is plainly outweighed by the need to lessen the

exposures of the Plaintiffs, their families, and their neighbors.  

D. The public interest favors an injunction.

The requested injunctive relief will serve the public interest by lessening the

adverse impact of Defendants’ persistent violations of the Ohio Air Nuisance Provision

and will protect public health and welfare in the Franklin Furnace and Back Road

community surrounding Defendants’ property. United States v. Apex Oil Co., 2008 U.S.

Dist. LEXIS 59973, at *218 (S.D. Ill. July 28, 2008) (granting injunction under another

environmental statute, the Resource Conservation and Recovery Act, because “it is clear

that entry of the requested injunction would benefit [the public] and promote the

Congressionally‐expressed public interest in ‘minimizing the present and future threat

to human health and the environment’ posed by solid and hazardous wastes.”); United

States v. Westvaco Corp., 2015 U.S. Dist. LEXIS 176166, at * 28, 2015 WL 10323214 (D. Md.

Feb. 26, 2015) (public interest served by “reducing the risk of harm to human health and

the environment”).  

Further, it is in the public interest to ensure federal laws are enforced. Bd. of Edn.

v. U.S. Dept. of Edn., 208 F. Supp. 3d 850, 878 (S.D. Ohio 2016) (holding it was in the

public interest to enforce constitutional rights and Title IX); Sierra Club, 841 F.Supp. 2d

at 360 (public has an interest in ensuring that federal agency actions comply with

federal environmental laws); Westvaco Corp., 2015 U.S. Dist. LEXIS 176166, *28. Here, the

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requested injunction will ensure investigation of the root causes of nuisance events and

prompt correction of those root causes, advancing enforcement of the federally

enforceable Ohio Air Nuisance Rule.

IV. CONCLUSION

The public health and environmental issues at stake in this case warrant a

remedy that is protective of public health and that furthers compliance with federal

clean air laws, including the federally enforceable Ohio Air Nuisance Rule.

Accordingly, the Plaintiffs respectfully request that this Court enter an injunction

appointing an expert to create and oversee a community reporting program, as outlined

in the Motion, and to investigate root causes. Further, the Court should preliminarily

enjoin Defendants to immediately take all steps necessary to remedy any verified

nuisance event. Such an order redressing the harm to the public caused by the Coke

Plant’s excess nuisance‐causing emissions is well within the recognized equitable

powers of this Court.

Respectfully submitted,

s/ D. David Altman________

D. David Altman (0021457), Trial Attorney

Justin D. Newman (0080968)

Robin A. Burgess (0096442)

AltmanNewman Co. LPA

15 East 8th Street, Suite 200W

Cincinnati, Ohio 45202

(513) 721‐2180

Fax: (513) 721‐2299

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daltman@environlaw.com

Attorneys for the Sampsons and Gannons

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CERTIFICATE OF SERVICE

I hereby certify that on July 11, 2018, I electronically filed a copy of the foregoing

motion with the Clerk of the Court using the CM/ECF system. Notice of this filing will

be sent to all parties in the case by operation of the Courtʹs electronic filing system.

Parties may access this filing through the Courtʹs system.  

s/ Robin A. Burgess    

Robin A. Burgess

An Attorney for Plaintiffs

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