Ashland Chem. Co. v. JonesAshland Chem. Co. v. Jones
[This decision has been published in Ohio Official Reports at 92 Ohio St.3d 234.]
Environmental protection—Ohio Adm.Code 3745-21-07(G)(2) does not apply to a chemical distribution facility that stores, transfers, and ships photochemically reactive materials to its customers.
Betty D. Montgomery, Attorney General, Bryan F. Zima, Douglas A. Curran and Laura J. Motes, Assistant Attorneys General, for appellee.
Brickler & Eckler, L.L.P., Kurtis A. Tunnell and Anne Marie Sferra, urging reversal for amicus curiae, Ohio Manufacturers’ Association.
Porter, Wright, Morris & Arthur, L.L.P., and Martin S. Seltzer, urging reversal for amicus curiae, Ohio Chemistry Technology Council.
FRANCIS E. SWEENEY, SR., J.
{¶ 1} Appellant, Ashland Chemical Company, owns and operates a chemical distribution facility on Darrow Road in Akron, Ohio. Appellant uses the facility to store, transfer, and ship various chemical products to its customers. The stored chemicals are transferred from stationary tanks or tank cars into smaller, portable containers in accordance with customer specifications. To accomplish this task, three container-filling lines pump various types of chemicals, including liquid organic materials such as photochemically reactive materials, into the smaller containers. No coating operations, chemical manufacturing, or chemical reaction takes place at this facility.
{¶ 2} On October 6, 1995, appellant submitted an application for a permit to install (“PTI“) these lines. Appellee, the Director of Environmental Protection, granted these applications on March 13, 1996. Thereafter, on June 25, 1996, appellant submitted applications for three permits to operate (“PTO“) the lines. The applications were forwarded to the Akron Regional Air Quality Management District (“Akron Agency“), the local air pollution control agency, for initial review. In reviewing the applications, the Akron Agency determined that the three PTOs were subject to
{¶ 3} When appellant received a copy of the draft PTOs, it objected to the proposed enforcement of
{¶ 4} Appellant filed an appeal with the Environmental Review Appeals Commission (“ERAC“), disputing the applicability of
{¶ 6}
“(G) Operations using liquid organic material:
” * * *
“(2) A person shall not discharge more than forty pounds of organic material into the atmosphere in any one day, nor more than eight pounds in any one hour, from any article, machine, equipment, or other contrivance used under conditions other than described in paragraph (G)(1) of this rule for employing, applying, evaporating or drying any photochemically reactive material, or substance containing such photochemically reactive material, unless said discharge has been reduced by at least eighty-five percent.” (Emphasis added.)
{¶ 7} The parties have stipulated that appellant‘s facilities are not being used for “applying,” “evaporating,” or “drying” any photochemically reactive material, as set forth in the administrative rule. The only issue is whether appellant‘s facilities are “employing” any photochemically reactive material in its operations.
{¶ 8} The term “employing” is not defined in the Ohio Revised Code or the Ohio Administrative Code.1 From the inception of this dispute, appellee has argued that the term “employing” should be interpreted to mean “using” in its broadest sense, and that
{¶ 9} ERAC, however, declined to adopt this broad definition of the term “employing.” Instead, ERAC held that the term “employing” must be given a meaning narrower than “using,” as argued by appellee.
{¶ 10} ERAC applied two rules of statutory construction in making this determination. It applied
{¶ 11} Under these rules of statutory construction, ERAC looked at the words “applying,” “evaporating,” and “drying,” which follow the term “employing.”2 ERAC concluded that the term “employing” “must not be construed to its widest extent and must take its meaning from the terms with which it is associated in paragraph (G)(2); that is ‘applying, evaporating or drying.’ ”
{¶ 12} Furthermore, ERAC found that a narrow construction of the term “employing” was appropriate when subsection (G)(2) was read in context with the other subsections in the regulation. According to ERAC, “if the correct definition of ‘employ’ were simply ‘to use,’ then there would be no need for the other subsections of the regulation.” ERAC also reasoned that even “[t]he title of subsection (G), ‘Operations using organic material,’ indicates that the subsequently described operations will be using organic material in some more specific way. To reassign the general definition of ‘use’ to ‘employ’ in paragraph (G)(2) would make the use of the term in the title redundant.”
{¶ 13} The court of appeals found that the interpretation adopted by ERAC was unlawful and that ERAC erred in applying the doctrine of noscitur a sociis. The court reasoned that according to State ex rel. Rear Door Bookstore v. Tenth Dist. Court of Appeals (1992), 63 Ohio St.3d 354, 588 N.E.2d 116, noscitur a sociis should be used only where all the words listed together have analogous meaning. Since the words “employing,” “applying,” “evaporating,” and drying” are not analogous and each has its distinct meaning, the court said the maxim was inapplicable.
{¶ 14} Instead, the court of appeals focused on that portion of
{¶ 15} Our job is to
{¶ 16} Regardless of whether the statutory language is construed pursuant to the doctrine of noscitur a sociis or
{¶ 17} In looking at the common usage of the term “employing,” we find that even under the dictionary definition of the term “employing,” as quoted by the court of appeals, “employing” is not defined solely to mean “to use.” Instead, it is also defined as “to make use of; use * * * to put or bring into action or service; employ for or apply to a given purpose.” Under this definition, appellant‘s facilities are not employing photochemically reactive chemicals, because its container-filling lines are not putting the chemicals into any type of action or service. Nor are the facilities applying the chemicals to a given purpose. Instead, the chemicals are simply being transferred from one container to another for shipment and are not being used to form any final product.
{¶ 18} Moreover, considering the context, we believe that ERAC was correct in interpreting the term “employing” in narrow terms. If the correct interpretation of the term “employing” were simply “using,” then the terms “applying,” “evaporating,” and “drying” as used in paragraph (G)(2) would become superfluous. For instance, as ERAC noted, the term “applying” is defined in the dictionary to mean “to employ for a particular purpose” or to “put on or adapt for a special use.” If we were to accept the court of appeals’ broad definition of “employing” to encompass virtually any use, then the term “applying” would be rendered meaningless. This could not have been the intent behind the regulation.
{¶ 19} Similarly, if we construe the term “employing” in its broadest sense, there would have been no need to include the other subsections within the regulation, which refer to specific processes. See, e.g.,
{¶ 20} Moreover, subsections (D) and (E) regulate the storage and loading of photochemically reactive materials when they are placed, stored, or held in either large stationary containers (over five hundred gallons) or mobile containers such as tank trucks, trailers, and railroad tank cars. The regulations of subsection (D) (the storage and transfer of the organic chemicals) describe the processes at appellant‘s facility, except that the regulations apply only to operations over a certain threshold size (sixty-five thousand gallons). This, too, lends credence to the view that facilities such as appellant‘s were not intended to be subject to
{¶ 21} Furthermore, contrary to the court of appeals’ opinion, there is simply no evidence that
{¶ 22} In sum, when the term “employing” is interpreted according to its common usage and when read in context, it cannot be interpreted to mean “using” in the broadest sense. Because we find that ERAC‘s interpretation of
{¶ 23} Accordingly, we reverse the judgment of the court of appeals and reinstate the order issued by ERAC.
Judgment reversed.
MOYER, C.J., RESNICK, PFEIFER, COOK and LUNDBERG STRATTON, JJ., concur.
DOUGLAS, J., concurs in judgment.