Sierra Club v. KoncelikSierra Club v. Koncelik
Rendered on June 27, 2013
D. David Altman Co., LPA, and D. David Altman, for appellants.
Michael DeWine, Attorney, General, Samuel C. Peterson and Cameron Simmons, for appellees.
APPEALS from the Environmental Review Appeals Commission
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
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.”
{¶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,
“[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
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 Air 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
[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.)
{¶9} Immediately after the proposed list for interested party comment period, the Ohio EPA employees began examining the compounds in detail in an effort to revise and reduce the list. (Tr. 94-95.) It was only after the initial comment period that the Ohio EPA began creating toxic compound data sheets, which provide a summary of information summarizing the scientific basis upon which the Ohio EPA made the determination for inclusion of the air contaminants in
{¶10} The Ohio EPA consulted ten different databases that contained information regarding the potentially toxic compounds. Then, the Ohio EPA developed a list of screening criteria to further refine the list. Such criteria included things such as grouping the compounds with an expanded class or definition of compounds. The Ohio EPA determined that some compounds belong to a larger class of compounds that better match the description of the toxic compound, containing the specific element of the toxic compound of interest or that some compounds and classes of compounds are grouped together by the US EPA in the CAA or in other programs. (Synopsis of Scientific Justification for Ohio Administrative Code (OAC) 3745-114 Toxic Air Contaminants [State‘s Exhibit No. 1]).
{¶11} Another criterion for refining the list included eliminating compounds that were determined to be negligible risk air pollutants, demonstrating low toxicity, or compounds with low inhalation toxicity values. Also, compounds whose TLVs were based upon irritation only were removed from the list. Compounds demonstrating limited evidence for toxic effects in humans, especially through the inhalation route of exposure, were removed from the list. Compounds were removed where inhalation toxicity numbers were derived from a single, or a few, emergency air release events that caused a large dosage to the exposed population, resulting in toxic effects. (Synopsis of Scientific Justification for Ohio Administrative Code (OAC) 3745-114 Toxic Air Contaminants [State‘s Exhibit No. 1]).
{¶12} Another criterion developed included compounds where the inhalation route was unlikely for realistic exposure scenarios in Ohio, such as compounds with high oral or dermal toxicity and, therefore, not likely to be released to the atmosphere in a manner to cause inhalation exposure. Additionally, compounds no longer produced, manufactured or otherwise used in Ohio or the United States were removed from the list. (Synopsis of Scientific Justification for Ohio Administrative Code (OAC) 3745-114 Toxic Air Contaminants [State‘s Exhibit No. 1]).
{¶13} Finally, the Ohio EPA removed compounds in consumer products or designated for specific consumer or agricultural uses, including pesticides, or other household or agricultural use pest removal products because the application of many of these products is regulated and licensed by the Department of Agriculture. The Ohio EPA also removed compounds whose route of human exposure results exclusively from use in food, food handling packaging and storage or cosmetic products because the inhalation exposure resulting from the use of these products is unlikely and not covered by the requirements of an air pollution permit. (Synopsis of Scientific Justification for Ohio Administrative Code (OAC) 3745-114 Toxic Air Contaminants [State‘s Exhibit No. 1]).
{¶14} Through this process of elimination, the initial list of 639 compounds was reduced to 303 compounds. (Director‘s Exhibit No. 1.) On June 30, 2006, the Director sent a draft of the
{¶15} On November 20, 2006, the Director promulgated the final version of
Standard of Review
{¶16} In reviewing ERAC orders,
First Assignment of Error—Director‘s Authority under Ohio Adm.Code 3745-114-01
{¶17} By their first assignment of error, appellants contend that ERAC erred in holding that the Director‘s adoption of
(3) Not later than two years after the effective date of this amendment, the director shall adopt a rule in accordance with Chapter 119. of the Revised Code specifying that a permit to install is required only for new or modified air contaminant sources that emit any of the following air contaminants:
* * *
(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.
(Emphasis added.)
{¶18} In the Ohio Air Toxics Rule, the Director promulgated the following language: “Except where exempt under division (F)(4) of section 3704.03 of the Revised Code, the director may require a permit to install, issued in accordance with Chapter 3745-31 of the Administrative Code, for any new or modified air contaminant sources that emit a toxic air contaminant.” (Emphasis added.)
{¶19} The Ohio EPA assistant chief in charge of the permitting section, Michael Hopkins, testified that the administrative rule used the word “may” because the Director needs discretion to interpret the legislative intention and the compounds to regulate. Further, the permitting requirements must be understood in the context of all permitting rules and regulations. Some sources are not required to obtain a permit to install, for example de minimis sources are exempt, and
{¶20} The Ohio EPA emphasizes it is not necessary for the Air Toxics Rule to state specifically when a permit to install is required because the permit to install requirement is provided in other provisions of the administrative code.
{¶21} Interpretation of a statute depends on the legislature‘s intent in enacting the statute. Boley v. Goodyear Tire & Rubber Co., 125 Ohio St.3d 510, 2010-Ohio-2550, ¶ 20. If reviewing the statute conveys a meaning that is clear, unequivocal, and definite, the statute must be applied as written and the inquiry ends with no further interpretation necessary. Columbus City School Dist. Bd. of Edn. v. Wilkins, 101 Ohio St.3d 112, 2004-Ohio-296, ¶ 26. If the meaning of the statute is subject to different interpretations, the appellate court must invoke the rules of statutory construction to determine legislative intent. Symmes Twp. Bd. of Trustees v. Smyth, 87 Ohio St.3d 549, 553 (2000). ” ‘There is no authority under any rule of statutory construction to add to, enlarge, supply, expand, extend or improve the provisions of the statute to meet a situation not provided for.’ ” In re Estate of Roberts, 94 Ohio St.3d 311, 317 (2002), quoting Vought Industries, Inc. v. Tracy, 72 Ohio St.3d 261, 265 (1995).
{¶22} Here, the language at issue in
{¶23} The Director argues that the use of the word “may” is present to make clear that the exemptions found in
{¶24} As a general matter, this court affords due deference to ERAC‘s interpretation of rules and regulations. Parents Protecting Children at ¶ 10. Here, where ERAC‘s interpretation is both logical and consistent with statutory construction, we defer to ERAC‘s special expertise and adopt its interpretation. Id. at ¶ 28. Appellants object to the use of the word “may” rather than “shall” in the rule because they contend the word “may” expands the Director‘s discretion and authority to issue permits to install. ERAC rejected appellants’ interpretation of the rule and agreed with the Director that the rule does not enlarge his discretion and authority.
{¶25} ERAC‘s acceptance of the Director‘s interpretation of the rule is consistent with case law. In Dorrian v. Scioto Conservancy Dist., 27 Ohio St.2d 102 (1971), the Supreme Court of Ohio set forth that “[i]n statutory construction, the word ‘may’ shall be construed as permissive and the word ‘shall’ be construed as mandatory unless there appears a clear and unequivocal legislative intent that they receive a construction other than their ordinary usage.” Id. at paragraph 2 of the syllabus. The Dorrian court cited Dennison v. Dennison, 165 Ohio St. 146 (1956), for the proposition that the statutory use of the word “may” generally is construed to make a provision optional, permissive or discretionary if there is nothing in the language of the provision to require an unusual interpretation. The word “shall” is usually interpreted to make a provision mandatory. Dorrian. Even though “shall” and “may” are typically not used interchangeably, “in order to serve the basic aim of construction of a statute—to arrive at and give effect of the intent of the General Assembly—it is sometimes necessary to give to the words ‘may’ and ‘shall’ as used in a statute, meanings different from those given them in ordinary usage (State v. Budd (1901), 65 Ohio St. 1, 60 N.E. 988; State ex rel. Myers v. Board of Edn. (1917), 95 Ohio St. 367, 116 N.E. 516) and one may be construed to have the meaning of the other (State v. Budd, supra; State ex rel. Myers v. Board of Edn, supra; Gallman v. Board of County Commrs. (1953), 159 Ohio St. 253, 112 N.E.2d 38).” Dorrian at 107-08. However, the intent must be clear. The Director‘s interpretation of
Second Assignment of Error—Removal of Certain Categories of Compounds
{¶26} By the second assignment of error, appellants contend that 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—
{¶27} Former
[A] permit to install is required only for new or modified air contaminant sources that emit any of the following air contaminants:
* * *
(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 * * *.
{¶28} The Ohio EPA argues that the General Assembly did not intend when it enacted
{¶29} In addition, the Director notes that only air contaminants that pose a threat of “adverse human health effects” are required to be on the list. The Director‘s definition of “adverse human health effects” was as follows: “[H]ealth affects [sic] when the federal and state programs does not include the same interpretation regarding acute health effects or irritant health effects. A compound is defined under federal and state level as being causing adverse health effects if it can cause an increase in measurable morbidity, measurable mortality, or serious irreversible health effects -- health effects or incapacitating reversible health effects.” (Tr. 362.) Later, Koval added to the definition by stating:
Within the context of air permitting within the State of Ohio which is based on USEPA requirements for air permitting, irritant only health effects are not included with the same weight or seriousness as the health effects I previously described, morbidity, mortality, serious irreversible health effects or incapacitating temporary health effects are what‘s included in the regulatory evaluation of air toxics for permitting in the State of Ohio and many other states.
(Tr. 432.)
{¶30} Koval testified that every compound excluded or included on the final list was evaluated and a compound substance data sheet was created for every compound. The toxic compound data sheet included a summation of the evaluation process and the reasoning behind the decision. The information examined was also included. (Tr. 444.)
{¶31} Appellants argue that the Director unlawfully excluded certain categories of compounds that met the statutory definition. Appellants contend that the list of compounds must include those that present 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.”
Irritants
{¶32} Appellants contend that the Director‘s definition of adverse human health effects excluded “irritant only” as a category. Koval testified that eye irritation and nasal irritation are adverse human health effects, along with asthmatic attacks and/or weakening of a person‘s immune system. (Tr. 97.) However, he testified that for a compound to be classified as an “irritant only” it meant that it “would cause a health effect that would be immediately or right after succession of exposure to cease. In general it would be defined within the permitting context and the health effects context by USEPA and Ohio EPA would be a compound that does not cause an increase of morbidity or mortality and does not cause severe irreversible health -- health effects or incapacitating reversible health effects.” (Tr. 423.) When Koval was asked if irritants could cause the pulmonary system to swell and the person to expire because they cannot breathe if that would be the result of breathing irritants, he responded that such a compound would not be considered “irritant only,” even though it would be a compound
{¶33} Thus, Koval testified that compounds classified as “irritant only” did not have to be included on the list because this category of compounds did not have “adverse human health effects,” as that phrase is interpreted by Ohio EPA. Given the Director‘s reasonable interpretation of the phrase “adverse human health effects,” his exclusion of “irritant only” from the list was not unlawful.
Acute Exposure Events
{¶34} Appellants argue that the Ohio EPA‘s interpretation of
{¶35} Given that permits to install are not issued for acute exposure events, this category of compounds does not fall within the purview of the air permitting regulation. Therefore, the exclusion of this category of compounds from the list was not unlawful.
Non-inhalation Routes of Exposure
{¶36} Appellants contend that the Ohio EPA‘s exclusion of compounds that are toxic through non-inhalation routes of exposure is contrary to the statute.
Consumer Products
{¶37} Appellants argue that the Director considered screening criterion that were factors not intended by the legislature in enacting
Compounds Not Currently Used in Ohio
{¶38} Appellants argue that the Director unlawfully excluded from the list compounds not currently used or produced in Ohio. Appellants contend that if such compounds meet the statutory criteria, they must be put on the list. We agree.
{¶39} The Director argued that if a compound was to be emitted in the state of Ohio, the source would apply for a permit to install or a permit to operate and list the compounds to be emitted from the source on the permit and any compound not currently being regulated could be subject to rule-making steps and added to the list of regulated compounds. (Tr. 121-22.) This argument does not account for the fact that further rule-making steps could involve a significant amount of time, perhaps years. That would result in a time period where the source would be emitting the hazardous compound, but would not be regulated by a permit to install or permit to operate. Simply because the compounds are not currently being emitted in the state of Ohio does not alter their hazardous state. The Director should not eliminate this category, but look to each individual compound to see if it meets the statutory criteria.
{¶40} In summary, we conclude that the Director‘s categorical exclusion of irritants, acutely toxic compounds and compounds whose route exposure is primarily
Third Assignment of Error—Expert Testimony
{¶41} By their third assignment of error, appellants contend that 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 improperly admitted into evidence. Appellants argue that ERAC abused its discretion in admitting the testimony of Ohio EPA employee Paul Koval as an expert.
{¶42} Appellants argue that Koval‘s testimony should be excluded because appellants did not receive prehearing discovery of his expert opinions. Appellants complain because they did not receive a detailed summary of Koval‘s opinions and, during his deposition, Koval admitted he had not been asked to provide expert opinions. Even during the hearing, ERAC commissioners stated during his testimony that Koval was not testifying as an expert. (Tr. 420; 428.) At the end of his testimony, the Ohio EPA moved to have Koval designated as an expert and ERAC found that his testimony “contains opinions as part of his duties and responsibilities of Ohio EPA. As such, the Commission will accept Mr. Koval as an expert in the field of air toxicology in the regulation of air toxics in Ohio EPA and USEPA as they relate to the Ohio statutes and regulations on air toxins.” (Tr. 495.)
{¶43} Evid.R. 101(A) does not list administrative agencies as forums to which the rules apply. Therefore, any question regarding the admission or exclusion of expert testimony is reviewed under the abuse of discretion standard. Waste Mgt. of Ohio, Inc. v. Bd. of Health, 159 Ohio App.3d 806, 2005-Ohio-1153, ¶ 53 (10th Dist.). An abuse of
{¶44} In Burket v. North Olmsted, 8th Dist. No. 40605 (June 19, 1980), quoting State ex rel. Brown v. Rockside Reclamation, Inc., 48 Ohio App.2d 157, 179-80 (8th Dist.1975), the court explained that “[t]he legislature created the environmental protection agency consisting of a staff of experts to investigate alleged complaints, to conduct hearings on these complaints and to make determinations as to whether the laws in regard to air and water pollution and sewage disposal are being violated.” Administrative agencies are entitled to considerable deference when reviewing an agency‘s interpretation of rules and regulations. Harmony Environmental Ltd. v. Morrow Cty. Dist. Bd. of Health, 10th Dist. No. 04AP-1338, 2005-Ohio-3146, ¶ 8. As stated previously, the General Assembly created these administrative bodies to facilitate certain areas before members with special expertise and that is why they are entitled to deference. Parents Protecting Children, at ¶ 10.
{¶45} Koval was not retained as an expert witness in this case, but testified as Ohio EPA‘s senior toxicologist, who was responsible for overseeing the development of
{¶46} Appellants argue that they did not receive prehearing discovery of Koval‘s expert opinions. While it is true that during his deposition, Koval testified that he had not been asked to provide expert opinions, appellants did conduct a full deposition and were aware of his testimony and opinions before the hearing. Koval testified in his deposition about the development of the Air Toxics Rule, the process and the decisions made by the Ohio EPA in promulgating the Rule and his testimony was consistent at the hearing.
{¶47}
Any party may require any other party to identify each expert witness expected to testify at the hearing and to state the subject matter on which the expert is expected to testify. Thereafter, any party may discover from the expert or other party, facts or data known, or opinions held by the expert which are relevant to the stated subject matter.
{¶49} Appellants argue they were prejudiced by the ruling that Koval was an expert. They argue that the ruling deprived them of the right to cross-examine Koval on his opinions before the hearing. However, they were able to depose Koval prior to the hearing and cross-examine him and present their own expert to rebut Koval‘s conclusions.
{¶50} Finally, appellants contend the ruling was an error because ERAC deferred to Koval as an expert. However, as discussed, the EPA as an agency is comprised of experts regardless of whether Koval was designated or qualified as an expert. Thus, appellants have not demonstrated prejudice by ERAC‘s ruling that Koval was an expert. Appellants’ third assignment of error is overruled.
{¶51} For the foregoing reasons, appellants’ first and third assignments of error are overruled and the second assignment of error is sustained in part as to: (1) the compounds demonstrated toxic through non-inhalation routes of exposure, (2) those compounds no longer used or produced in Ohio, and overruled as to: (a) irritant only, (b) compounds which are acutely toxic, and (c) compounds whose route of exposure is primarily through consumer products. We note that former
Order affirmed in part; reversed in part; cause remanded.
CONNOR and DORRIAN, JJ., concur.