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Sierra Club v. Koncelik

Court of Appeals of Ohio, Tenth District

June 27, 2013

Sierra Club et al., Appellants-Appellants, (Environmental Community Action et al., Appellants-Appellants),
v.
Joseph P. Koncelik, Director of Environmental Protection, Ohio Environmental Protection Agency et al., Appellees-Appellees.

APPEALS from the Environmental Review Appeals Commission Nos. 256002, 186003, 316005.

D. David Altman Co., LPA, and D. David Altman, for appellants.

Michael DeWine, Attorney, General, Samuel C. Peterson and Cameron Simmons, for appellees.

DECISION

KLATT, P.J.

{¶1} Appellants, the Sierra Club, Ohio Citizen Action ("OCA"), and Environmental Community Action ("ECO") appeal from an order of the Environmental Review Appeals Commission ("ERAC") concluding that the Director ("Director") of the Ohio Environmental Protection Agency ("Ohio EPA") acted lawfully and reasonably in promulgating Ohio Adm.Code 3745-114-01 and 3745-31-05. For the following reasons, we affirm in part and reverse in part ERAC's order.

Implementation of the Clean Air Act

{¶2} The primary purpose of the Clean Air Act ("CAA") is "to protect and enhance the quality of the Nation's air resources so as to promote the public health and welfare and the productive capacity of its population." 42 U.S.C. 7401(b)(1). The CAA establishes a framework for the protection of air quality standards and provides responsibilities for federal and state governments. The United States Environmental Protection Agency ("US EPA") implements the federal component and state and local governments are given the primary responsibility to regulate "air pollution control at its source." 42 U.S.C. at 7401(a)(3).

{¶3} States are required pursuant to the CAA to develop a State Implementation Plan ("SIP") that provides for the implementation, maintenance, and enforcement of National Ambient Air Quality Standards ("NAAQS"). The Ohio Air Pollution Control Act, R.C. Chapter 3704, is designed to meet the CAA requirements. In 2006, the Ohio General Assembly adopted Am.Sub.S.B. No. 265 ("SB 265"), which required the Director to adopt a rule in accordance with R.C. Chapter 119 within two years which specifies:

"[T]hat a permit to install is required only for new or modified air contaminant sources that emit any of the following air contaminants:
(a) An air contaminant or precursor of an air contaminant for which a national ambient air quality standard has been adopted under the federal Clean Air Act;
(b) An air contaminant for which the air contaminant source is regulated under the federal Clean Air Act;
(c) An air contaminant that presents, or may present, through inhalation or other routes of exposure, a threat of adverse human health effects, including, but not limited to, substances that are known to be, or may reasonably be anticipated to be, carcinogenic, mutagenic, teratogenic, or neurotoxic, that cause reproductive dysfunction, or that are acutely or chronically toxic, or a threat of adverse environmental effects whether through ambient concentrations, bioaccumulation, deposition, or otherwise, and that is identified in the rule by chemical name and chemical abstract service number.

Promulgation of Agency Rules

{¶4} As the result of SB 265, the Director promulgated Ohio Adm.Code 3745- 114-01, commonly referred to as the Air Toxics Rule and amended Ohio Adm.Code 3745-31-05, commonly referred to as the Best Available Technology ("BAT") Rule, on November 20, 2006. Appellants filed a notice of appeal to ERAC and, after a de novo hearing, ERAC held that the Director acted lawfully and reasonably in promulgating Ohio Adm.Code 3745-114-01 and 3745-31-05. Appellants filed a timely notice of appeal to this court and, on appeal from ERAC, appellants raised the following assignments of error:

First Assignment of Error: The Ohio Environmental Review Appeals Commission (ERAC) erred in holding that the Director's adoption of Ohio Adm.Code 3745-114-01 (Ohio Ar Toxics Rule) was reasonable and lawful because binding precedent makes clear that the Director cannot, via rule, enlarge the authority that he is delegated by statute.
Second Assignment of Error: ERAC erred in holding the Director's adoption of the Ohio Air Toxics Rule was reasonable and lawful because the Director's removal of clearly toxic compounds that meet statutory criteria from the air toxics list was based on the Director's ignoring essential health-protective language in the air toxics statute-R.C. 3704.03(F)(3)(c).
Third Assignment of Error: ERAC erred in holding that the Director's adoption of the Ohio Air Toxics Rule was reasonable and lawful because ERAC's holding rests upon incompetent, previously undisclosed "expert" testimony that ERAC abused its discretion by admitting into evidence.

Air Contaminant Source-Permits to Install

{¶5} The state of Ohio requires a permit to install prior to installation or modification of an air contaminant source. See R.C. 3704.03(F). Prior to the adoption of the Ohio Air Toxics Rule, the Ohio EPA did not have any established rules regarding regulation of air toxics or even a prepared written list of regulated air toxics. (Tr. 365-66.) The Ohio EPA regulated air toxics based on a policy identified as "Option A" Option A relied on a chemical's threshold limit value ("TLV"), which is a measurement of exposure developed by the American Conference of Governmental Industrial Hygienists ("ACGIH"). Prior to SB 265, there were approximately 700 chemicals under the air toxics policy. The TLV is:

[A] concentration of a compound that was established by [the ACGIH which is] * * * a group of industrial hygienists that studies the occupational environment and acquires information from the scientific literature to make a determination what concentration someone might be exposed to and it's set for an occupational setting which is typically a 40 hour a week for the lifetime of the worker which would be something from the age of 18 to 19 -- 20 to 65, so it's not a lifetime continuous exposure * * * and that's 8 hours a day 40 hours a week type of exposure.

(Tr. 306-07.)

{¶6} Option A modified the base information from the TLV to apply to an air ambient air pollution standard by dividing the TLV by a safety factor. The safety factor is 10, to adjust between the working population to the general population and account for susceptible populations and a variety of unknowns and mathematically adjust from an 8-hour day to a 24-hour day, 7 days per week and that yields the Maximum Achievable Ground Level Concentration ("MAGLC"). (Tr. 369-70.)

{¶7} This policy attempts to achieve the goal of protecting against adverse health effects by making the ACGIH standard more conservative or more protective of public health by adding the safety factors in the numerical calculation and also provides a modeling process to ensure this exposure level is realistically not exceeded. (Tr. 370.)

Implementation of SB 265-Establishing List of Regulated Air Toxics

{¶8} In 2006, SB 265 required the establishment of a list of regulated air toxics using Option A to evaluate air toxics and emissions in Ohio. Paul Koval, the supervisor of the air toxics unit for the Ohio EPA, testified on behalf of the Director and stated that the Ohio EPA began the process of implementing SB 265 by issuing a notice of interested party rulemaking that was accompanied by an initial list of 639 chemicals or compounds that had TLVs assigned to them. (Tr. 87-91.) The list of 639 compounds was created by taking the "mother list" and sorted by TLV by a college intern. (Tr. 377.) The mother list was dated August 2005 and contained a list of approximately 1, 092 chemicals. (Exhibit No. 4.) (Tr. 45; 82.) Compounds with ACGIH TLVs greater than 1, 000 milligrams per meter cubed ...


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