Lead Opinion
Aрpellants first argue that the applicant for a hazardous waste facility permit is required by R.C. 3734.05(C)(6)(c) to produce evidence of alternative technologies in order to prove that its facility represents the minimum adverse environmental impact. If it does not, the board may not issue the permit. Although this proposition is certainly correct, we find that it has no application to the instant cause for the following reasons.
R.C. 3734.05(C)(6) provides:
“The board shall not approve an application for a hazardous waste facility installation and operation permit unless it finds and determines:
“(c) That the facility represents the minimum adverse environmentаl impact, considering the state of available technology and the nature and economics of various alternatives, and other pertinent considerations.”
Appellants contend that the board illegally relieved the applicant WTI of its burden to prove minimal impact and to adduce evidence оf alternative technology. We disagree.
In its order, the board acknowledged that the statute normally would require the board to evaluate the nature and economics of alternative technologies to determine whether a more advanced, more environmentally protective technology cаn and should be utilized. We agree. We also concur with the board’s statement that where an applicant demonstrates that the technology it proposes is the most advanced, most environmentally protective technology available, no further examination of other technologies is necessary. The bоard’s determination that the proposed technology was the most advanced is itself a finding that alternative
We also reject apрellants’ contention that the board improperly failed to consider alternative sites for the proposed facility. R.C. 3734.05 contains no requirement that the board consider alternative sites in every case, as appellants propose. The board must consider alternative sites only if it deems such evidence to be a “pertinent consideration” under R.C. 3734.05(C)(6)(c), but it is under no statutory obligation to do so. In the cause sub judice, the board did consider the appropriateness of the proposed location, and decided not to require additional siting information. This court will not substitute its judgment for that of the board, especially in areas of аdministrative expertise. Dudukovich v. Housing Authority (1979),
Appellants next challenge the board’s order on the ground that the board failed to adequately address the questions of whether the proposed facility represents the minimum risk of contamination of ground and surface waters, fires or explosions, and transportation accidents in accordance with the requirements of R.C. 3734.05(C)(6)(d).
Appellants next contend that the board violated R.C. 3734.05(C)(3)(a)
*85 “Upon receipt of the completed application for a hazardous waste facility installation and operation permit and a preliminary determination by the staff of the environmental protection agency that that apрlication appears to comply with agéncy rules and to meet the performance standards set forth in divisions (D), (I), and (J) of section 3734.12 of the Revised Code,*86 the director of environmental protection shall transmit the application to the hazardous waste facility board, which shall:
“(a) Promptly fix a date for public hearing thereon, not fewer than sixty nor more than ninety days after receipt of the completed application. At the public hearing, any person may submit written or oral comments or objections to the approval or disapproval of the application. * * *"
The next argument posed by appellаnts is whether the board erred by allowing a former employee of the Ohio EPA to serve as hearing examiner at the adjudication hearing, to which the EPA was a party. Appellants maintain that the hearing examiner was biased by virtue of his former employment, and that they were thereby prejudiced in the presentation of their сause. For the reasons that follow, we reject this contention.
It is well-settled that a reviewing court must presume that the decision of an administrative agency is valid and was reached in a sound manner. See, e.g., Cleveland v. Budget Comm. (1977),
Appellants’ next argument alleges that the board committed prejudicial error when it failed to adopt the recommendations of the hearing examiner without articulating its reasons therefor. This cоntention is baseless. The board is under no duty to adopt the hearing examiner’s recommendation. R.C. 119.09 provides that the recommendations “may be approved, modified, or disapproved” by the board. Ohio Adm. Code 3734-1-18(B) provided in pertinent part that “[w]hen the board’s final action modifies or disapproves all or part of the [hearing examiner’s]
Finally, appellants argue that the board may not grant a permit subject to conditions requiring that the applicant provide further information in the future to the Ohio EPA. Appellants contend that this condition constitutes an unlawful delеgation to the Ohio EPA of the board’s exclusive authority
Accordingly, based on the foregoing, the judgment of the court of appeals is hereby affirmed.
Judgment affirmed.
Notes
R.C. 3734.05(C)(6) provides in pertinent part:
“The board shall not approve an application for a hazardous waste facility installation and operation permit unless it finds and determines:
“(d) That the facility represents the minimum risk of:
“(i) Contamination of ground and surface water;
“(ii) Fires or explosions from treatment, storage, or disposal methods;
“(in) Accident during transportation of hazardous waste to or from the facility * *
R.C. 3734.05(C)(3) provides in pertinent part:
These matters include WTI’s contingency, closure and personnel training programs, the safe handling of ignitable, reactive and incompatible substancеs, and the volume of wastes to be stored or treated at the facility.
The Ohio EPA recommended that the permit contain conditions requiring updated waste analyses, an updated analysis plan, and master instructions for specific wastes to the Director of the Ohio EPA, to be submitted before operation of the faсility. The Ohio EPA further recommended that operation of the facility be forbidden until the Ohio EPA Director gives written approval of these documents.
R.C. 3734.05(C)(2)(b).
Dissenting Opinion
dissenting. I am compelled to dissent from the majority opinion because it fails to address the real environmental concerns at issue. While approving WTI’s perfunctory compliance with the “form” of Ohio’s hazardous waste laws, the majority ignores the “substance” of environmental protection.
A permit to operate a hazardous waste treatment facility should not be granted as a matter of law when: (1) the facility is to operate on the bank of a major waterway; (2) the facility is to operate above a community’s potential major source of drinking water; (3) the facility is located within the corporate limits of a municipality; and (4) the exact nature and volume of the hazardous waste are unknown.
One reason the permit in the case sub judice should not be granted is because no evidence has been presented by WTI concerning possible alternative locations for this facility. In its written order and opiniоn of April 27, 1984, the board stated in part:
“In this case, the Applicant has proposed hazardous waste treatment technologies and environmental protection technologies and systems for the proposed facility which are exemplary * * *.
“The WTI facility, as proposed, minimizes adverse environmental impаcts to such a degree that the Applicant was not obliged to have presented evidence on alternative sites * *
While I applaud the innovative approach taken by WTI to combat hazardous waste disposal problems and the advanced technology it plans to implement in this proposed fаcility, I believe the choice of a site for this facility is inappropriate because an enormous number of persons would be adversely affected by an unexpected “accident” on this site.
This proposed facility will be located on the bank of one of our great natural resources, the Ohio River. The ecological balance and many lives could be destroyed by an accident of even de minimis proportions because of this location. By way of example one need only look to the millions of Europeans currently affected by the recent contamination of the Rhine.
The hazardous waste thаt will be delivered to the plant for disposal by truck and by rail will likely be transported through numerous residential areas and pass by a hospital, schools, taverns, churches and the business district of East Liverpool. The grievous potential for danger engendered by a derailment or highway accident is an additional concern militаting against the plant’s proposed location. Recently, near Miamisburg, Ohio, hundreds of people had to be evacuated from their homes following the derailment of a train carrying toxic chemicals. Clearly, in the present case, an alternative site is required.
WTI requests a permit when it cannot describe the еxact nature or volume of the hazardous waste it intends to treat, store and dispose. It is unclear from the record how adequate safety precautions can be taken when the mixture of hazardous substances in question is unknown.
The pleas of the citizenry of East Liverpool and surrounding areas have virtually been ignorеd. Appellants claim all the local governmental bodies are opposed to the proposed location of the facility. This includes a majority of council of East Liverpool, council of Wellsville, Columbiana County Board of Health, Columbiana County Board of Commissioners and the county and municipal gоvernments in Hancock County, West Virginia.
Despite the finding of the board that the proposed facility is exemplary, I believe the widespread effects of a potential disaster on the site are too great and too many questions remain unanswered. Moreover, the board herein seems blinded by the technologicаl sophistication of the plant when time and again human error has managed to overcome “fail-safe” technology from Bhopal to Chernobyl to the Rhine. One cannot and should not presume that the worst will occur. However, proper planning requires fallback measures to ensure that even a “minor” accident by plant management standards does not turn the southern portion of this state into a wasteland. There cannot be any reason good enough, in my view, for the plant’s current proposed location. Prudent land management and conservation are ill served by the decision today.
Accordingly, I will not join in today’s decision and I cannot condone the hasty action by the board in approving the plant site.