Fairfield County Board of Commissioners v. Nally
34 N.E.3d 873
Ohio2015Background
- Fairfield County operates the Tussing Road wastewater-treatment plant discharging into Blacklick Creek and applied for renewal of its NPDES permit; Ohio EPA issued a renewed permit on June 30, 2006 that added a new phosphorus limit based on Ohio EPA’s Big Walnut Creek TMDL report.
- The county challenged the phosphorus limitation, arguing Ohio EPA failed to follow Ohio Administrative Procedure Act (R.C. Chapter 119) rulemaking before adopting the TMDL and thus denied stakeholders a meaningful opportunity to be heard.
- ERAC upheld Ohio EPA’s factual foundation for the limit but vacated the limit for failure to consider technological feasibility and economic reasonableness under R.C. 6111.03(J)(3).
- The Tenth District affirmed ERAC on the factual foundation and treated the federally approved TMDL as effectively unassailable in the permitting context.
- The Ohio Supreme Court held that a TMDL issued by Ohio EPA is a “rule” under R.C. 119.01(C) and therefore must be promulgated pursuant to R.C. Chapter 119 before submission to U.S. EPA or use as a basis for NPDES permit limits.
- The court vacated the phosphorus limitation in the permit (for lack of an adopted rule) and remanded to Ohio EPA to proceed with required rulemaking procedures before implementation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a TMDL is a “rule” requiring promulgation under R.C. Chapter 119 | TMDL sets numeric pollutant ceilings and allocates loads broadly, functioning as a general, uniform standard that must be promulgated | TMDL is guidance/technical tool, not a binding rule; permit process provides adequate review | TMDL is a rule (standard with general and uniform operation) and must be promulgated under R.C. Chapter 119 before use in permits |
| Whether federal approval of a TMDL substitutes for state rulemaking and insulates it from state procedural challenge | County: federal approval does not cure Ohio EPA’s failure to follow state rulemaking; stakeholders need state-level notice and comment first | Ohio EPA: U.S. EPA approval makes TMDL binding and sufficient to base permit limits on | U.S. EPA approval does not replace R.C. Chapter 119; Ohio EPA must complete state rulemaking before submitting to U.S. EPA or applying TMDL in permits |
| Whether permitting-phase review (ERAC) provides adequate due process to challenge a TMDL | County: permitting adjudication is not a substitute for full rulemaking; ERAC review limited if TMDL treated as essentially unreviewable | Ohio EPA: permit-level challenges and ERAC review are sufficient to test TMDL application | Court: Rulemaking protections (notice, comment, hearings) under R.C. Chapter 119 are required to provide meaningful opportunity to be heard; permit review alone is insufficient |
Key Cases Cited
- State ex rel. Saunders v. Industrial Commission, 101 Ohio St.3d 125 (2004) (effect of a document depends on whether it enlarges or interprets existing rules)
- Northeast Ohio Regional Sewer District v. Shank, 58 Ohio St.3d 16 (1991) (rulemaking procedures protect full and fair analysis of proposed standards)
- Condee v. Lindley, 12 Ohio St.3d 90 (1984) (agency policies that replace case-by-case analysis require rulemaking)
- Jackson Cty. Environmental Committee v. Schregardus, 95 Ohio App.3d 527 (10th Dist. 1994) (agency guidelines with general effects are rules requiring promulgation)
- Asarco, Inc. v. State of Idaho, 69 P.3d 139 (Idaho 2003) (TMDL-based permit limits invalid without promulgation)
- Friends of the Earth, Inc. v. Environmental Protection Agency, 446 F.3d 140 (D.C. Cir. 2006) (TMDLs must be incorporated into permits following approval)