Concerned Residents of Salem Twp. v. Stevenson ( 2023 )


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  • [Cite as Concerned Residents of Salem Twp. v. Stevenson, 
    2023-Ohio-2135
    .]
    IN THE COURT OF APPEALS OF OHIO
    TENTH APPELLATE DISTRICT
    Concerned Residents of Salem Township                 :        Nos. 22AP-393, 22AP-394,
    et al.,                                                     22AP-395, 22AP-396, 22AP-397,
    :     22AP-398, 22AP-399, 22AP-400,
    Appellants-Appellants,                      22AP-401, 22AP-402, 22AP-403,
    :     22AP-404, 22AP-405, 22AP-406,
    v.                                                          22AP-407, 22AP-408, 22AP-409,
    :      22AP-410, 22AP-411, 22AP-412,
    Laurie Stevenson et al.,                                     22AP-413, 22AP-414, 22AP-415
    :               & 22AP-416
    Appellees-Appellees.                         (ERAC Nos. 22-7119, 22-7120, 22-7121,
    :       22-7122, 22-7123, 22-7124, 22-7125,
    22-7126, 22-7127, 22-7128, 22-7129,
    :       22-7130, 22-7131, 22-7132, 22-7133,
    22-7134, 22-7135, 22-7136, 22-7137,
    :       22-7138, 22-7139, 22-7140, 22-7141,
    & 22-7142)
    :
    D E C I S I O N
    Rendered on June 27, 2023
    On brief: Fair Shake Environmental Legal Services, and
    John A. Heer, for appellants. Argued: John A. Heer.
    On brief: Vorys, Sater, Seymour and Pease LLP, Kristin L.
    Watt, and Ryan D. Elliott, for appellee Airstream
    Compression, LLC. Argued: Ryan D. Elliott.
    On brief: Dave Yost, Attorney General, Casey L. Chapman,
    and Rebecca E. Kanz, for appellee Director, Ohio
    Environmental Protection Agency. Argued: Casey L.
    Chapman.
    APPEALS from the Environmental Appeals Review Commission
    EDELSTEIN, J.
    {¶ 1} Appellants, Concerned Residents of Salem Township and 40 of its individual
    members (collectively “CRST” or “appellants”), appeal from an order of the Environmental
    Nos. 22AP-393, 22AP-394, 22AP-395, 22AP-396, 22AP-397, 22AP-398, 22AP-399                2
    22AP-400, 22AP-401, 22AP-402, 22AP-403, 22AP-404, 22AP-405, 22AP-406,
    22AP-407, 22AP-408, 22AP-409, 22AP-410, 22AP-411, 22AP-412, 22AP-413,
    22AP-414, 22AP-415, & 22AP-416
    Review Appeals Commission of Ohio (“ERAC”), dismissing their administrative appeal
    challenging the decision of appellee, Laurie Stevenson, Director of the Ohio Environmental
    Protection Agency (“OEPA”) (“Director”), to issue a permit to appellee, Airstream
    Compression, LLC (“Airstream”), authorizing the emission of air pollutants at its natural
    gas booster station. Because ERAC’s order granting the motion to dismiss is supported by
    the evidence and in accordance with law, we affirm.
    I. Facts and Procedural History
    {¶ 2} The OEPA regulates sources of air pollution by setting contaminant emission
    rates and other conditions of operation through a permitting process. On December 28,
    2021, the Director issued a permit authorizing Airstream to install and operate two natural
    gas compressors at the Applegath Booster Station in East Springfield, Ohio. The Permit-
    to-Install and Operate (“PTIO”) was deemed a final action and went into effect that same
    day.
    {¶ 3} CRST, a community organization comprised of residents who live near the
    station, as well as 40 of its individual members, appealed the Director’s decision to issue
    the Applegath permit to ERAC on January 27, 2022. In the consolidated Notice of Appeal
    to ERAC, CRST raised the following two assignments of error:
    The Director’s issuance of the Permit is arbitrary, capricious,
    and otherwise inconsistent with law. Specifically,
    a. The Permit’s emission limits and other requirements do not
    take into consideration the local airstream already being
    saturated with emissions from the neighboring Williams
    Compressor Station and other similar sources in the near
    vicinity, and thus the Permit fails to assure compliance with
    permit conditions and state air nuisance requirements.
    b. The Permit’s failure to account for the already harmful
    emissions from the neighboring Williams Compressor Station
    and the further inadequate limits imposed by this Permit will
    allow the Facility to operate in such a manner as to emit odor,
    smoke, ashes, dust, dirt, grime, acids, fumes, gases, vapors, and
    other substances or combinations of substances, and to
    Nos. 22AP-393, 22AP-394, 22AP-395, 22AP-396, 22AP-397, 22AP-398, 22AP-399                  3
    22AP-400, 22AP-401, 22AP-402, 22AP-403, 22AP-404, 22AP-405, 22AP-406,
    22AP-407, 22AP-408, 22AP-409, 22AP-410, 22AP-411, 22AP-412, 22AP-413,
    22AP-414, 22AP-415, & 22AP-416
    endanger the health, safety, and welfare of the public or cause
    unreasonable injury or damage to property in violation of Ohio
    Adm. Code 3745-15-07.
    {¶ 4} On April 1, 2022, Airstream moved to dismiss the appeal. Airstream argued
    that appellants lacked standing to bring the appeal because they failed to allege injury from
    the issuance of the permit and that both assignments of error failed to state a claim upon
    which relief can be granted. Airstream asserted the first assignment of error fails as a
    matter of law because the Director is not required to consider other sources of air pollution
    when determining emission limits. Airstream argued appellants’ second claim also fails as
    a matter of law because they cannot allege conduct constituting nuisance at this stage
    because the facility has not yet begun to operate. Airstream attached to their motion an
    affidavit from James Lebeck, Vice President of Airstream’s “parent” company, Encino
    Acquisition Partners. Appellants filed a memorandum in opposition on April 22, 2022,
    attaching the affidavits of appellant Darlene Williamson and Dr. Yuri Gorby, a research
    scientist who conducted air monitoring around the proposed location of the Applegath
    Booster Station. Dr. Gorby averred in his affidavit that the emissions authorized by the
    Applegath permit will cause “Appellants to suffer additional risk of harm” and endanger
    the “health, safety, and welfare of the Appellants and the public.” (Gorby Aff. at ¶ 7-8.)
    Although named in the appeal, OEPA did not participate in the briefing.
    {¶ 5} On June 8, 2022, ERAC issued a ruling granting Airstream’s motion to
    dismiss both assignments of error. ERAC noted it relied on the standard from
    Civ.R. 12(B)(6) to determine whether appellants had stated claims upon which relief could
    be granted. ERAC determined appellants did not adequately allege in their first assignment
    of error how the issuance of the permit was unlawful because they did not describe a specific
    rule or regulation the Director failed to comply with. (June 8, 2022 ERAC Decision at ¶ 16-
    17.) ERAC next turned to whether the issuance of the permit was reasonable. (ERAC
    Decision at ¶ 17-23.) There, appellants argued granting the permit was unreasonable
    because the Director failed to consider whether the emission limits authorized by the
    permit and existing sources of air pollution would constitute a public nuisance under Ohio
    Nos. 22AP-393, 22AP-394, 22AP-395, 22AP-396, 22AP-397, 22AP-398, 22AP-399                 4
    22AP-400, 22AP-401, 22AP-402, 22AP-403, 22AP-404, 22AP-405, 22AP-406,
    22AP-407, 22AP-408, 22AP-409, 22AP-410, 22AP-411, 22AP-412, 22AP-413,
    22AP-414, 22AP-415, & 22AP-416
    Adm.Code 3745-15-07(A). ERAC found appellants failed to allege which permit condition
    would create an unreasonable risk of harm, what type of harm it would cause, or how it
    would do so. Finding both assignments of error failed to state a claim upon which relief
    can be granted, ERAC determined the issue of standing was moot and entered an order
    dismissing the appeal.
    {¶ 6} Appellants timely appealed the ERAC order to this court. Because individual
    appeals were before ERAC, notices of appeal were filed from each of the 24 cases in the
    underlying proceedings. The appeals were consolidated for briefing and argument.
    II. Assignment of Error
    {¶ 7} Appellants assign the following assignment of error for our review:
    The findings by ERAC that Appellants “have not alleged that
    the emissions from Applegath Booster Station will pose an
    unreasonable risk of harm” (italics original) and that
    Appellants “do not allege that the Director acted unlawfully”
    were erroneous and contradicted by the record; thus, the
    rulings were not “supported by reliable, probative, and
    substantial evidence” and not “in accordance with law”
    pursuant to Ohio Revised Code §3745.06.
    III. Discussion
    A. Controlling Law and Standard of Review
    {¶ 8} The decision to grant a permit application authorizing a new source of air
    contaminant emissions is made by the Director of the OEPA. “R.C. 3745.01 gives the
    Director authority to make initial decisions on environmental permitting issues. For
    purposes of making such decisions, the Director has the authority to hire experts to collect
    and apply necessary technical information.” Licking Cty. Citizens for a Safe Environment
    v. Schregardus, 
    136 Ohio App.3d 645
    , 648 (10th Dist.2000). “An application will be
    deemed complete when all the statutory and regulatory enumerated and mandatory
    components of the application have been reasonably and fully answered.” Citizens Against
    Megafarm Dairy Dev., Inc. v. Dailey, 10th Dist. No. 06AP-836, 
    2007-Ohio-2649
    , ¶ 12.
    {¶ 9} Actions of the Director, such as the decision to grant or deny a permit
    application, are appealable to ERAC. The commission reviews decisions of the Director
    Nos. 22AP-393, 22AP-394, 22AP-395, 22AP-396, 22AP-397, 22AP-398, 22AP-399                  5
    22AP-400, 22AP-401, 22AP-402, 22AP-403, 22AP-404, 22AP-405, 22AP-406,
    22AP-407, 22AP-408, 22AP-409, 22AP-410, 22AP-411, 22AP-412, 22AP-413,
    22AP-414, 22AP-415, & 22AP-416
    under the standard set forth in R.C. 3745.05(F) to determine whether the challenged action
    was “lawful and reasonable.” ERAC is required to affirm an order if it is both lawful and
    reasonable. If ERAC finds the act was either unlawful or unreasonable, it must modify or
    vacate the Director’s order. 
    Id.
     “Under this standard, the term ‘unlawful’ means ‘that which
    is not in accordance with law,’ and the term ‘unreasonable’ means that which does not have
    a valid factual foundation.” Citizens Against Am. Landfill Expansion v. Koncelik, 10th Dist.
    No. 12AP-741, 
    2014-Ohio-123
    , ¶ 12. “It is only where [ERAC] can properly find from the
    evidence that there is no valid factual foundation for the Director's action that such action
    can be found to be unreasonable.” Club 3000 v. Jones, 10th Dist. No. 07AP-593, 2008-
    Ohio-5058, ¶ 28, citing Citizens Commt. to Preserve Lake Logan v. Williams, 
    56 Ohio App.2d 61
    , 70 (10th Dist.1977). ERAC may not substitute its judgment for that of the
    Director or weigh the factual determinations made by the Director in its review. Sandusky
    Dock Corp. v. Jones, 10th Dist. No. 03AP-98, 
    2003-Ohio-7027
    , ¶ 3. See also Licking Cty.
    Citizens for a Safe Environment at 648, citing R.C. 3745.05, Citizens Commt. to Preserve
    Lake Logan at paragraph two of the syllabus (“ERAC was established to be a reviewing
    board and is authorized only to consider the reasonableness and the lawfulness of the
    Director's actions. As a reviewing board, ERAC is not permitted to stand in the place of the
    Director and substitute its judgment for that of the Director.”).
    {¶ 10} We review ERAC determinations pursuant to the standard in R.C. 3745.06.
    This court must affirm an ERAC order if we find “upon consideration of the entire record
    and such additional evidence as the court has admitted, that the order is supported by
    reliable, probative, and substantial evidence and is in accordance with law.” R.C. 3745.06.
    “In the absence of such a finding,” we must “reverse, vacate, or modify the order or make
    such other ruling as is supported by reliable, probative, and substantial evidence and is in
    accordance with law.” 
    Id.
    {¶ 11} Applying this standard to the present appeal, we must determine whether
    ERAC’s dismissal of the complaint challenging the Director’s issuance of the Applegath
    permit is supported by the evidence and in accordance with law. “In determining whether
    an ERAC order is supported by reliable, probative, and substantial evidence, this court must
    Nos. 22AP-393, 22AP-394, 22AP-395, 22AP-396, 22AP-397, 22AP-398, 22AP-399                     6
    22AP-400, 22AP-401, 22AP-402, 22AP-403, 22AP-404, 22AP-405, 22AP-406,
    22AP-407, 22AP-408, 22AP-409, 22AP-410, 22AP-411, 22AP-412, 22AP-413,
    22AP-414, 22AP-415, & 22AP-416
    weigh and evaluate the credibility of the evidence.” Columbus Steel Castings Co. v. Nally,
    10th Dist. No. 11AP-932, 
    2012-Ohio-4417
    , ¶ 15.
    {¶ 12} “A Civ.R. 12(B)(6) motion to dismiss evaluates the sufficiency of the
    complaint.” Ohio Neighborhood Preservation Assn. v. Alaura, 10th Dist. No. 22AP-347,
    
    2023-Ohio-1281
    , ¶ 7. In ruling on a motion to dismiss, the court must presume the truth
    of the factual allegations and draw all reasonable inferences in favor of the nonmoving
    party. Mitchell v. Lawson Milk Co., 
    40 Ohio St.3d 190
    , 192 (1988).
    {¶ 13} Ohio is a notice pleading state, and, as such, does not require parties to plead
    their claims with particularity outside of the requirements described in Civ.R. 9(B).
    Maternal Grandmother, ADMR v. Hamilton Cty. Dept. of Job & Family Servs., 
    167 Ohio St.3d 390
    , 
    2021-Ohio-4096
    , ¶ 10. “Ohio law does ‘not require a complaint to contain
    anything more than brief and sketchy allegations of fact to survive a motion to dismiss
    under the notice pleading rule.’ ” Ohio Neighborhood Preservation Assn. at ¶ 10, citing
    York v. Ohio State Hwy. Patrol, 
    60 Ohio St.3d 143
    , 146 (1991) (Moyer, C.J., concurring).
    Notice pleading is met if a claim is pled with sufficient operative facts to allow the defending
    party to understand the nature of the allegation. Montgomery v. Ohio State Univ., 10th
    Dist. No. 11AP-1024, 
    2012-Ohio-5489
    , ¶ 20. It is thus possible to satisfactorily plead a
    statutory violation without referencing a specific statutory citation if notice can be derived
    from the supporting factual allegations and discussion. Thatcher v. Lauffer Ravines,
    L.L.C., 10th Dist. No. 11AP-851, 
    2012-Ohio-6193
    , ¶ 44. “The court need not, however,
    accept as true any unsupported and conclusory legal propositions advanced in the
    complaint.” Byrd v. Meyer, 10th Dist. No. 21AP-578, 
    2022-Ohio-1827
    , ¶ 13.
    B. Lawfulness of the Challenged Action
    {¶ 14} Under the notice pleading standard, appellants were required to plead
    sufficient operative facts to put the Director on notice of their claim that the Director’s
    actions were unlawful. With respect to appellants’ lawfulness argument, ERAC concluded
    that “[a]ppellants do not argue that the Director acted unlawfully by failing to require
    Airstream to submit any specific data or analysis expressly required by Ohio’s air pollution
    statutes and regulations. Rather, appellants argue that the Director acted unreasonably
    Nos. 22AP-393, 22AP-394, 22AP-395, 22AP-396, 22AP-397, 22AP-398, 22AP-399                    7
    22AP-400, 22AP-401, 22AP-402, 22AP-403, 22AP-404, 22AP-405, 22AP-406,
    22AP-407, 22AP-408, 22AP-409, 22AP-410, 22AP-411, 22AP-412, 22AP-413,
    22AP-414, 22AP-415, & 22AP-416
    because the operation of the Applegath Booster Station will result in a nuisance.”
    (Emphasis sic.) (ERAC Decision at ¶ 17.) Appellants allege this determination was
    erroneous because ERAC applied the wrong standard of review. Specifically, appellants
    assert their challenge to the lawfulness of the Director’s actions was sufficiently pled to
    survive a motion to dismiss and “[t]o require more than Appellants’ allegations at a motion
    to dismiss phase is contrary to established Ohio law.” (Appellants’ Brief at 18.) In support,
    appellants cite their allegation in the Notice of Appeal that “[t]he Director’s issuance of the
    Permit is arbitrary, capricious, and otherwise inconsistent with law.” (Id., citing Notice of
    Appeal to ERAC at ¶ 16.)
    {¶ 15} Appellants failed to indicate in their Notice of Appeal which specific law or
    regulation was violated by the issuance of the permit, either by an express reference to a
    statute or rule or in a manner discernable from the pled operative facts. The allegation that
    “the Permit fails to assure compliance with permit conditions and state air nuisance
    requirements” (Notice of Appeal to ERAC at ¶ 16) is an unsupported legal conclusion, not
    a factual allegation. And it is not sufficiently specific as to which conditions and
    requirements the permitting process violated. Furthermore, permit applicants receive “a
    presumption of compliance absent reliable, probative and substantial evidence to the
    contrary.” Thermal-Tron, Inc. v. Schregardus, 
    89 Ohio App.3d 816
    , 820 (10th Dist.1993).
    Appellants did not plead any facts to support their claim that Airstream will be unable to
    comply with the conditions set forth in the permit. Similarly, broad allegations that
    Airstream will not comply with state air nuisance requirements do not adequately explain
    appellants’ basis for the claim.
    {¶ 16} Conclusory statements that the Director’s actions were “otherwise
    inconsistent with law” are likewise insufficient under notice pleading requirements without
    any allegations supporting a basis for the claim. “Ohio Adm.Code 3745-31-05(A)(2)
    empowers the OEPA director to issue a permit if he [or she] determines, among other
    things, that the action will not violate air pollution laws, including emissions standards
    adopted by the OEPA. The director is required to consider compliance with all applicable
    laws prior to issuing a permit.” (Emphasis sic.) Concerned Citizens of Cent. Ohio v.
    Nos. 22AP-393, 22AP-394, 22AP-395, 22AP-396, 22AP-397, 22AP-398, 22AP-399                     8
    22AP-400, 22AP-401, 22AP-402, 22AP-403, 22AP-404, 22AP-405, 22AP-406,
    22AP-407, 22AP-408, 22AP-409, 22AP-410, 22AP-411, 22AP-412, 22AP-413,
    22AP-414, 22AP-415, & 22AP-416
    Schregardus, 
    148 Ohio App.3d 31
    , 35 (10th Dist.2002). At no point did the Notice of
    Appeal to ERAC allege the Director failed to consider a particular law, administrative rule,
    or environmental regulation prior to issuing the Applegath permit.
    {¶ 17} Other portions of the Notice of Appeal to ERAC are factual but irrelevant and
    fail to state a claim that the Director’s actions were unlawful. For example, appellants noted
    that an application for a Permit-to-Install must assure compliance with the “Best Available
    Technology” (“BAT”), requirement set forth in Ohio Adm.Code 3745-31-05(A)(3).
    However, appellants did not allege this requirement applied to the Applegath permit or that
    the Director erred by failing to consider it. It is undisputed by the parties and plainly stated
    in the permit that the Applegath Booster Station is considered a “non-major” emissions
    source with the potential to emit less than ten tons of air pollution per year. Ohio Adm.
    Code 3745-31-02(A)(1)(b); Ohio Adm.Code 3745-31-05(A)(3)(ii). BAT requirements are
    only applicable to major sources. R.C. 3704.03(T); see also Ohio Adm.Code 3745-31-
    05(A)(3)(ii). Therefore, this generic statement concerning the BAT requirement set forth in
    Ohio Adm.Code 3745-31-05(A)(3) cannot be said to provide sufficient notice of the
    appellants’ claim in the first assignment of error.
    C. Reasonableness of the Challenged Action
    {¶ 18} This fatal ambiguity continues through appellants’ second assignment of
    error, which alleged the permit unreasonably authorizes the facility to operate in violation
    of Ohio Adm.Code 3745-15-07, causing a public nuisance. ERAC determined dismissal was
    appropriate because appellants failed to allege why the decision to issue the permit was
    unreasonable, stating “Appellants point to no specific aspect of Airstream’s proposed
    operation of the Applegath Booster Station that will result in an unreasonable risk of harm
    to Appellants.” (Emphasis sic.) (ERAC Decision at ¶ 23.) Specifically acknowledging the
    statements in Dr. Gorby’s affidavit, ERAC concluded: “Appellants broadly assert that ‘odor,
    fumes, gases, vapors and other substances and particulate matter’ are generally harmful.
    They do not, however, distinguish such emissions from any other permitted emissions from
    Nos. 22AP-393, 22AP-394, 22AP-395, 22AP-396, 22AP-397, 22AP-398, 22AP-399                                    9
    22AP-400, 22AP-401, 22AP-402, 22AP-403, 22AP-404, 22AP-405, 22AP-406,
    22AP-407, 22AP-408, 22AP-409, 22AP-410, 22AP-411, 22AP-412, 22AP-413,
    22AP-414, 22AP-415, & 22AP-416
    any other source, or indeed articulate the manner in which the risks posed by the emissions
    from the Applegath Booster Station will be unreasonable.” (ERAC Decision at ¶ 23.)
    {¶ 19} All parties agree that here, in order to establish unreasonableness in this case,
    appellants would have to prove the existence of a statutory nuisance. Nuisance is the
    wrongful invasion of a legal right or interest. Scott v. Nameth, 10th Dist. No. 14AP-630,
    
    2015-Ohio-1104
    , ¶ 11. Nuisance claims may be brought for an unreasonable interference
    with a public right or for the wrongful invasion of private property. 
    Id.
     Nuisance claims—
    both public and private—are additionally categorized as either absolute or qualified. Natale
    v. Everflow Eastern, Inc., 
    195 Ohio App.3d 270
    , 
    2011-Ohio-4304
    , ¶ 21 (11th Dist.). The
    classification depends on the conduct giving rise to the nuisance: absolute nuisance is
    caused by an intentional act or abnormally dangerous condition, while qualified nuisance
    is caused by negligence. Scott at ¶ 12. “In addition to common-law public nuisance, Ohio
    has adopted statutes and administrative regulations which define certain conduct as being
    a public nuisance. These statutes amount to a legislative declaration that the proscribed
    conduct is an unreasonable interference with a public right.” Brown v. Cty. Commrs., 
    87 Ohio App.3d 704
    , 712 (4th Dist.1993). “This is especially true where a comprehensive set
    of legislative acts or administrative regulations governing the details of a particular kind of
    conduct exist.” Id. at 713.
    {¶ 20} Ohio’s air pollution nuisance rule states the “emission or escape into the open
    air from any source or sources whatsoever, of smoke, ashes, dust, dirt, grime, acids, fumes,
    gases, vapors, or any other substances or combinations of substances, in such manner or in
    such amounts as to endanger the health, safety or welfare of the public, or cause
    unreasonable injury or damage to property, is hereby found and declared to be a public
    nuisance. It shall be unlawful for any person to cause, permit or maintain any such public
    nuisance.” Ohio Adm.Code 3745-15-07(A).1
    1 In their briefs, Airstream and OEPA dispute whether ERAC applied the correct standard to analyze nuisance.
    Agreeing with ERAC, Airstream asserts that statutory public nuisance claims require a showing of negligence
    because such claims concern lawful conduct creating an unreasonable risk of harm. OEPA contends that the
    standard is set forth in the rule: “[i]t shall be unlawful for any person to cause, permit or maintain any such
    Nos. 22AP-393, 22AP-394, 22AP-395, 22AP-396, 22AP-397, 22AP-398, 22AP-399                                   10
    22AP-400, 22AP-401, 22AP-402, 22AP-403, 22AP-404, 22AP-405, 22AP-406,
    22AP-407, 22AP-408, 22AP-409, 22AP-410, 22AP-411, 22AP-412, 22AP-413,
    22AP-414, 22AP-415, & 22AP-416
    {¶ 21} On appeal before this court, appellants specifically cite five portions of the
    record below to establish they satisfied the notice pleading requirement as to their nuisance
    claim:
    1. “Appellants ‘will be adversely affected by the Facility’s carbon
    dioxide emissions and other greenhouse gases and the climate
    change to which such emissions will contribute.’ ”
    2. “OEPA’s issuance of the Permit in this matter will allow an
    additional source of similar air pollution to adversely affect
    CRST’s members and the use and enjoyment of their
    properties. Additionally, they will be aggrieved and personally
    affected by the increases in the levels of pollution in the air
    caused by the Facility and by the Facility’s emissions of carbon
    dioxide, formaldehyde, and other greenhouse gasses and the
    climate change to which such emissions will contribute.”
    3. “Adding more of the same pollutants and contaminants to
    the same air flow in the same neighborhood will cause worse
    medical problems and health conditions in CRST members and
    other Ohio citizens. Allowing this permit to proceed will worsen
    an already significant local public health crisis.”
    4. “The Director’s issuance of the Permit is arbitrary,
    capricious, and otherwise inconsistent with law.”
    5. “The Permit’s failure to account for the already harmful
    emissions from the neighboring Williams Compressor Station
    and the further inadequate limits imposed by this Permit will
    allow the Facility to operate in such a manner as to emit odor,
    smoke, ashes, dust, dirt, grime, acids, fumes, gases, vapors,
    and other substances or combination of substances, and to
    endanger the health, safety, and welfare of the public or cause
    unreasonable injury or damage to property in violation of
    Ohio Adm. Code 3745-15-07.”
    public nuisance.” Ohio Adm. Code 3745-15-07(A). It is not necessary, however, to resolve this disagreement
    for purposes of the present appeal because, under either standard, CRST fails to allege which conditions of the
    permit will result in nuisance and how.
    Nos. 22AP-393, 22AP-394, 22AP-395, 22AP-396, 22AP-397, 22AP-398, 22AP-399                  11
    22AP-400, 22AP-401, 22AP-402, 22AP-403, 22AP-404, 22AP-405, 22AP-406,
    22AP-407, 22AP-408, 22AP-409, 22AP-410, 22AP-411, 22AP-412, 22AP-413,
    22AP-414, 22AP-415, & 22AP-416
    (Emphasis deleted.) (Appellants’ Brief at 15.) In addition, appellants suggest three specific
    statements in the Gorby and Williamson affidavits provide evidence in support of their legal
    arguments:
    1. “The additional air emissions from the proposed Booster
    Station will add to the harmful conditions already existing in
    the area and will cause me and my loved ones to suffer
    additional risk of harm to our health, safety and welfare.”
    2. “Even if Airstream is able to comply with the Permit
    conditions, the additional air emissions from the Booster
    Station will add to the harmful conditions already in the area
    and cause Appellants to suffer additional risk of harm to their
    health, safety and welfare.”
    3. “By allowing the emissions set forth in the Permit at issue
    in this matter, the Ohio EPA’s issuance of the Permit will
    result in odor, fumes, gases, vapors and other substances and
    particulate matter in the air in, on, and around the Appellants’
    properties, thereby endangering the health, safety, and
    welfare of the Appellants and the public.”
    (Id. at 16.) This, appellants argue, “satisfied their burden by presenting allegations and
    evidence of an unreasonable risk of harm,” whereas ERAC’s order suggests an expectation
    that appellants should “be able to prove negligence at the pleading stage of an appeal[.]”
    (Emphasis sic.) (Id. at 16-17.)
    {¶ 22} But these statements are insufficient to satisfy notice pleading requirements
    as they amount only to a description of the detrimental effects of air pollution generally and
    within this specific community already plagued by the effects of another local facility.
    Appellant Darlene Williamson averred by affidavit that “the additional air emissions from
    the proposed Booster Station will add to the harmful conditions already existing in the area
    and will cause me and my loved ones to suffer additional risk of harm to our health, safety
    and welfare.” (Williamson Aff. at ¶ 6.) She then drew from the language of the nuisance
    statute to state the conditions authorized in the permit “will result in odor, fumes, gases,
    vapors, and other substances and particulate matter in the air in, on, and around my
    property, thereby endangering my health, safety, and welfare and that of my family and
    Nos. 22AP-393, 22AP-394, 22AP-395, 22AP-396, 22AP-397, 22AP-398, 22AP-399                    12
    22AP-400, 22AP-401, 22AP-402, 22AP-403, 22AP-404, 22AP-405, 22AP-406,
    22AP-407, 22AP-408, 22AP-409, 22AP-410, 22AP-411, 22AP-412, 22AP-413,
    22AP-414, 22AP-415, & 22AP-416
    loved ones.” (Williamson Aff. at ¶ 7.) Dr. Gorby averred that “the additional air emissions
    from the Booster Station will add to the harmful conditions already in the area and cause
    Appellants to suffer additional risk of harm to their health, safety and welfare.” (Gorby Aff.
    at ¶ 7.)
    {¶ 23} Neither the Notice of Appeal to ERAC nor the affidavits set forth specific
    emission limits or permit conditions that will cause the anticipated harm. Additionally,
    appellants failed to describe which harmful conditions were already present in the area due
    to the operation of the Williams Compressor Station. Finally, appellants failed to identify
    specific effects of the emissions; rather, they merely restated language from the nuisance
    rule. For example, while appellants did point to specific types of pollutants (such as carbon
    dioxide, formaldehyde, and other greenhouse gases), they failed to articulate which parts
    of the permit authorize these emissions and how the pollutants will create an unreasonable
    risk of harm to appellants and others living nearby. Despite having access to the Applegath
    permit, data concerning the Williams facility’s operation, and a research scientist who
    reviewed the permit and performed air monitoring tests at several of the properties near
    the site of the Booster Station, appellants still failed to allege which aspects of the proposed
    operation of the Applegath facility will result in an unreasonable risk of harm. Without vast
    speculation, we cannot determine how appellants believe the facility’s authorized activity
    will cause the anticipated risk of harm.
    {¶ 24} Notice pleading requires more. Here, neither assignment of error in the
    ERAC appeal provided the Director adequate notice. While appellants are not required to
    prove their claims at this stage of the proceedings, they must connect their claims to a
    minimal amount of operative facts.
    IV. Disposition
    {¶ 25} We find ERAC’s decision granting Airstream’s motion to dismiss is supported
    by reliable, probative, and substantial evidence and is in accordance with law because
    appellants failed to state a claim upon which relief can be granted. See Civ.R. 12(B)(6).
    Appellants’ sole assignment of error is therefore overruled.
    Nos. 22AP-393, 22AP-394, 22AP-395, 22AP-396, 22AP-397, 22AP-398, 22AP-399    13
    22AP-400, 22AP-401, 22AP-402, 22AP-403, 22AP-404, 22AP-405, 22AP-406,
    22AP-407, 22AP-408, 22AP-409, 22AP-410, 22AP-411, 22AP-412, 22AP-413,
    22AP-414, 22AP-415, & 22AP-416
    Judgments affirmed.
    DORRIAN and LUPER SCHUSTER, JJ., concur.
    

Document Info

Docket Number: 22AP-393, 22AP-394. 22AP-395, 22AP-396, 22AP-397, 22AP-398, 22AP-399, 22AP-400, 22AP-401, 22AP-402, 22AP-403, 22AP-404, 22AP-405, 22AP-406, 22AP-407, 22AP-408, 22AP-409, 22AP-410, 22AP-411, 22AP-412, 22AP-413, 22AP-414, 22AP-415 & 22AP-416

Judges: Edelstein

Filed Date: 6/27/2023

Precedential Status: Precedential

Modified Date: 6/27/2023