Court Finds Ohio Budget Move to Eliminate Air Nuisance Rule Unconstitutional

A Franklin County judge has ruled that Ohio lawmakers violated the Constitution by using last year’s state budget bill to eliminate an air nuisance rule, marking a significant development in a years-long fight over possible pollution in Middletown. The ruling concerns a rule that an attorney for one resident describes as an important means of challenging potentially hazardous emissions.

Donna Ballinger, who lives near a steel production facility, has been challenging companies around her home since 2017. Speaking to WCPO 9 for its Oct. 22 report, she said she had contacted pollution hotlines three times that day. Before the interview began, she complained about the odor and pulled her sweatshirt over her face.

Ballinger’s complaints have been documented over several years. A WCPO 9 examination of state records in 2020 found that she had reported air quality concerns 397 times during a three-year period. The station previously featured her efforts in reporting it called “Donna vs. Goliath.” Ballinger said little had changed since that coverage, but she remained determined to continue her campaign.

“I’m not going to back down,” Ballinger said. “I’m going to stay and fight.” The court decision was recent good news for her after years of raising concerns about conditions around her home.

Marilyn Wall, who has worked with Middletown community members for nearly a decade to improve air quality, often visits Ballinger’s street. Beyond a fence stands a production facility belonging to one of the country’s largest steel manufacturers. Wall and Ballinger first connected because of the odor, which Wall said still surprises her despite her frequent visits. “Terrible,” Wall said. “You can feel it in your nose.”

Environmental attorney Dave Altman, who represents Ballinger, said the air nuisance rule is among the few tools available to ordinary residents seeking to compel companies to reduce potentially hazardous emissions. He distinguished a failure to enforce a law from using unlawful means to prevent residents from enforcing it themselves.

Altman also criticized the state agency’s response to people with pollution concerns. “The Ohio Environmental Protection Agency is not protecting people that need protection,” he said. In court filings, state officials argued that eliminating the nuisance rule would save thousands of dollars.

Neither the Ohio EPA nor Cleveland-Cliffs responded to WCPO 9’s interview requests. Residents can submit concerns online through a Cleveland-Cliffs outreach program. Air quality complaints can also be submitted to state officials online or by calling 513-946-7777.