State ex rel. Ohio Attorney General v. Shelly Holding Co.
946 N.E.2d 295
Ohio Ct. App.2010Background
- State sued Shelly entities under R.C. 8704.06(B) and 3734.18(C) for air-quality violations; action sought injunctive relief and civil penalties.
- Shelly operates in about 75 of Ohio’s counties with asphalt plants, limestone/concrete operations, and generators; 20 counts addressed at 27 asphalt plants, 30 portable generators, 1 terminal.
- Shelly stipulated liability on 32 claims in 12 counts; trial court found liability on 13 counts and imposed $350,123.52 penalty.
- Issues were narrowed to four assignments of error raised by the state regarding PTI/PTE definitions and fugitive emissions.
- Court considered both state and Shelly arguments on potential to emit and enforceability of limits, and addressed procedural back-and-forth about PTO/PTI timing.
- Remand ordered for recalculation of potential to emit and related liability/penalties consistent with statutory and regulatory framework.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Potential to emit defined and applied | State argues PTI limits must reflect maximum capacity with enforceable controls. | Shelly argues limits may include non-federally enforceable restrictions if legally practicable by state. | Sustained in part; remand to recalculate PTE per law. |
| Fugitive-emissions PTI exemption at Plant 24 | Shelly violated PTI rules during interim period. | F-sources exempt as existing prior to PTI dates after 1974 not clearly proven. | Sustained; remand to award penalties for 4/1/1997–9/21/2000. |
| Plant 40 operator status and PTI obligation | Shelly operated F-sources as owner/operator without PTI. | Shelly did not own quarry; at most an operator, not owner, of F-sources. | Sustained; Shelly as operator violated PTI for F-sources. |
| Emissions-testing penalties and duration | Tests show noncompliance; penalties should reflect ongoing violations. | Stack-test day-only violation; ongoing period not penalized beyond test date. | Sustained; recalculation of violation-days and penalties required. |
Key Cases Cited
- Alabama Power Co. v. Costle, 636 F.2d 323 (D.C. Cir. 1979) (potent to emit includes design capacity and enforcement considerations)
- Louisiana-Pacific Corp. v. United States, 682 F.Supp. 1141 (D. Colo. 1988) (limits to potential to emit tied to federally enforceable restrictions)
- Duquesne Light Co. v. Environmental Protection Agency, 698 F.2d 456 (D.C. Cir. 1983) (potential to emit based on maximum design capacity with control equipment)
- WEPCO v. Reilly, 893 F.2d 901 (7th Cir. 1990) (proper handling of past operating conditions vs. continuous operation in PTE calculations)
- Natl. Mining Assn. v. EPA, 59 F.3d 1351 (D.C. Cir. 1995) (effective controls count toward potential to emit if demonstrably effective and enforceable)
- Chem. Mfrs. Assn. v. EPA, 70 F.3d 637 (D.C. Cir. 1995) (reassignment of PTE definitions post Natl. Mining; enforceability concepts clarified)