Zimmer Power Co., L.L.C. v. Vogel , 2023 Ohio 1953 ( 2023 )

[Cite as Zimmer Power Co., L.L.C. v. Vogel, 2023-Ohio-1953.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Zimmer Power Company, LLC, :
Appellant-Appellant, : No. 22AP-451
(ERAC No. 21-7104)
v. :
(REGULAR CALENDAR)
[Anne M. Vogel], Director of Ohio EPA, :
Appellee-Appellee. :
:
Miami Fort Power Company, LLC,
:
Appellant-Appellant, No. 22AP-452
: (ERAC No. 21-7105)
v.
: (REGULAR CALENDAR)
[Anne M. Vogel], Director of Ohio EPA,
:
Appellee-Appellee.
:
Buckeye Power, Inc., :
Appellant-Appellant, : No. 22AP-453
(ERAC No. 21-7106)
v. :
(REGULAR CALENDAR)
[Anne M. Vogel], Director of Ohio EPA, :
Appellee-Appellee. :
D E C I S I O N
Rendered on June 13, 2023
On brief: Shumaker, Loop & Kendrick, LLP, Michael E.
Born, Marcus A. Miller, and Krystina E. Garabis, for
appellants. Argued: Michael E. Born.
Nos. 22AP-451, 22AP-452, & 21AP-453 2
On brief: Dave Yost, Attorney General, Allen M. Vender, and
Cameron F. Simmons, for appellee. Argued: Allen M.
Vender.
APPEALS from the Environmental Review Appeals Commission
LUPER SCHUSTER, J.
{¶ 1} Appellants, Zimmer Power Company, LLC, Miami Fort Power Company,
LLC, and Buckeye Power, Inc. (collectively “Ohio Utility Group”), appeal from an order of
the Environmental Review Appeals Commission (“ERAC”) affirming the May 2021
adoption of Ohio Adm.Code Chapter 3745-30 by appellee, Laurie A. Stevenson, former
Director of the Ohio Environmental Protection Agency (“Director”). For the following
reasons, we affirm.
I. Factual and Procedural Background
{¶ 2} Ohio Utility Group operates coal-powered electric generating facilities in
Ohio. Coal ash, also known as coal combustion residuals (“CCR”), is a waste produced at
these facilities. In May 2021, and after the necessary rule review process, the Director
adopted a revised version of Ohio Adm.Code Chapter 3745-30, which regulates industrial
or manufacturing waste (“IMW”).1 Pursuant to R.C. 3745.04, Ohio Utility Group appealed
to ERAC from the Director’s adoption of those rules. Ohio Utility Group alleged the
“Director’s action is unlawful and unreasonable because Ohio Adm.Code Chapter 3745-30
requires [Ohio Utility Group] to comply with parallel different state and federal rules
simultaneously.” (June 14, 2021 Appeal at 3.)
{¶ 3} In October 2021, the Director moved for summary judgment, arguing there
was no genuine issue of material fact in Ohio Utility Group’s appeal before ERAC, and she
was entitled to judgment as a matter of law. In opposition to the motion, Ohio Utility Group
argued that summary judgment was not appropriate because it had a statutory right to a de
novo hearing before ERAC, because there are conflicts between the Ohio and federal rules
1 This chapterwas initially promulgated in 1992. See Buckeye Power v. Korleski, ERAC No. 255365-665370,
2008 Ohio ENV LEXIS 6 (Aug. 27, 2008) (discussing history of Ohio’s industrial or manufacturing solid
waste rules).
Nos. 22AP-451, 22AP-452, & 21AP-453 3
regulating CCR, and because there were genuine issues of material fact regarding the
reasonableness of the Director’s action.
{¶ 4} In January 2022, ERAC requested the parties file issue briefs addressing the
following:
1. To the extent Appellants’ appeal is a facial challenge to the
Industrial and Manufacturing Waste (“IMW”) Rules, the
parties shall address the alleged specific conflicts, if any,
between the IMW Rules, Coal Combustion Residuals (“CCR”)
Rules, and any other applicable statutes or regulations.
2. To the extent Appellants’ appeal is an as-applied challenge to
the IMW Rules, the parties shall address the specific factual
scenario(s) under which the alleged conflict has occurred/will
occur. The parties shall also address whether such an as-
applied challenge is ripe for review before ERAC.
(Jan. 26, 2022 Order for Issue Briefing at 1.)
{¶ 5} As to the conflict issue, Ohio Utility Group explained that its appeal “is not
limited to a mere comparison of conflicts between the state and federal rules,” but “the crux
of the Utilities’ appeal is the Director’s adoption of the IMW Rules without a lawful and
reasonable basis, despite any comparison to the CCR Rules. Any comparison between the
IMW and CCR Rules is simply to highlight how inadequate the Director’s action is when
held to the required legal standard.” (Ohio Utility Group’s Issue Brief at 1-2.) It also argued
that “IMW Rules duplicate, overlap, and/or conflict with the CCR Rules in various ways.
Most notably, the groundwater monitoring, assessment monitoring, corrective action, and
closure and post-closure care regulations under the state and federal programs differ,
making compliance with both sets of regulations overly burdensome and unnecessarily
expensive.” (Ohio Utility Group’s Issue Brief at 2.) In response, the Director argued that
Ohio Utility Group failed to identify any conflict between the IMW and CCR rules, and she
noted that Ohio Utility Group acknowledged that it could comply with both sets of rules. In
reply, Ohio Utility Group emphasized that its ability to comply with federal and state rules
simultaneously was not the central issue; rather, “it is the requirement to comply with the
dual regulations that highlights the unreasonableness of the Director’s action.” (Ohio
Utility Group’s Issue Reply Brief at 2.)
Nos. 22AP-451, 22AP-452, & 21AP-453 4
{¶ 6} In June 2022, ERAC issued its decision on the Director’s summary judgment
motion. ERAC noted that the parties agreed the Director acted lawfully in adopting Ohio
Adm.Code Chapter 3745-30, pursuant to her authority under R.C. Chapter 3734. The
dispute centered on whether the Director acted unreasonably. ERAC concluded that there
was no genuine issue of material fact as to whether the Director had a valid factual
foundation to adopt Ohio Adm.Code Chapter 3745-30, and therefore there was no genuine
issue as to whether the Director had acted unreasonably in adopting those rules.
Consequently, ERAC granted the Director’s summary judgment motion and affirmed her
action.
{¶ 7} Ohio Utility Group timely appeals.
II. Assignments of Error
{¶ 8} Ohio Utility Group presents the following assignments of error for our
review:
[I.] The Environmental Review Appeals Commission (“ERAC”)
erred by granting Appellee Lauri[e] Stevenson’s, Director of
Ohio EPA (“the Director”), Motion for Summary Judgment
without conducting a de novo hearing, as required by R.C.
3745.05.
[II.] ERAC erred in granting the Director’s Motion for
Summary Judgment because genuine issues of material fact, as
to the factual foundation supporting the promulgation of the
IMW Rules, remained.
[III.] ERAC’s decision to grant the Director’s Motion for
Summary Judgment is not supported by reliable, probative, or
substantial evidence.
III. Discussion
{¶ 9} Because they involve interrelated issues, we address together Ohio Utility
Group’s three assignments of error. In its first assignment of error, Ohio Utility Group
contends ERAC erred in not holding a de novo hearing as to its challenge to the Director’s
action. Its second assignment of error alleges ERAC erred in granting the Director’s
summary judgment motion because there remained genuine issues of material fact as to
the factual foundation supporting the adoption of the challenged rules. And its third
Nos. 22AP-451, 22AP-452, & 21AP-453 5
assignment of error alleges ERAC’s decision is not supported by reliable, probative, and
substantial evidence. These assignments of error lack merit.
{¶ 10} In reviewing an appeal from an ERAC order, a court of appeals “shall affirm
the order complained of in the appeal if it finds, 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. In the absence of such
a finding, [the court] shall 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.”
R.C. 3745.06. Reliable evidence is “evidence which can be trusted. In order for evidence to
be reliable, there must be a reasonable probability that it is true. Probative evidence is
evidence which tends to prove the issue in question, while substantial evidence is evidence
which carries weight, or evidence which has importance and value.” Perrysburg v.
Schregardus, Dir., 10th Dist. No. 00AP-1403 (Nov. 13, 2001) citing Our Place, Inc. v. Ohio
Liquor Control Comm., 63 Ohio St.3d 570, 571 (1992). Therefore, at issue is whether
ERAC’s order affirming the Director’s adoption of Ohio Adm.Code Chapter 3745-30 is
supported by reliable, probative, and substantial evidence and is in accordance with law.
{¶ 11} As noted above, Ohio Utility Group operates coal-powered electric generating
facilities, which produce CCR (coal ash) as waste. “Because coal ash contains carcinogens
and other toxic chemicals, its improper disposal can substantially harm the environment
and impair the health of anyone living near disposal facilities.” Waterkeeper Alliance, Inc.
v. Regan, Admr., 41 F.4th 654, 656 (D.C. Cir.2022). To address this issue, in 2015, the
United States Environmental Protection Agency (“US EPA”) Administrator adopted a rule
that “set[s] forth guidelines on where and how disposal sites for [coal ash] are to be built,
maintained, and monitored,” and establishes “minimum criteria for the disposal of [coal
ash] in landfills and surface impoundments.” Util. Solid Waste Activities Group v.
Environmental Protection Agency, 901 F.3d 414, 424 (D.C. Cir.2018); 80 Fed.Reg. 21302.
Congress has permitted each state to create “a permit program or other system” of
regulation for coal ash (subject to US EPA approval and oversight), that would “operate in
lieu of” federal regulation. 42 U.S.C. 6945(d)(1)(A).
{¶ 12} In Ohio, R.C. Chapter 3734 addresses the design, construction, and operation
of facilities that produce solid waste, including CCR. Citizens Against Am. Landfill
Nos. 22AP-451, 22AP-452, & 21AP-453 6
Expansion v. Koncelik, Dir., 10th Dist. No. 12AP-741, 2014-Ohio-123, ¶ 37. As pertinent
here, R.C. 3734.02(A) requires the Director to promulgate rules “governing solid waste
facilities and the inspections of and issuance of permits and licenses for all solid waste
facilities in order to ensure that the facilities will be located, maintained, and operated, and
will undergo closure and post-closure care, in a sanitary manner so as not to create a
nuisance, cause or contribute to water pollution, create a health hazard, or violate 40 C.F.R.
257.3-2 or 40 C.F.R. 257.3-8, as amended.” And pursuant to R.C. 3734.12(D), the Director
must adopt rules “[e]stablishing performance standards for owners and operators of
hazardous waste facilities and owners and operators of solid waste facilities, necessary to
protect human health or safety or the environment.” Therefore, the General Assembly has
granted the Director broad statutory authority to adopt solid waste rules to protect human
health and safety and the environment.
{¶ 13} In May 2021, and after the required rule review process was conducted
pursuant to R.C. 106.03, the Director adopted a revised version of the rules governing IMW,
Ohio Adm.Code Chapter 3745-30. IMW “is a type of solid waste,” and it includes waste
generated by coal-burning operations, foundry operations, papermaking operations, and
waste generated by other industrial operations. Ohio Adm.Code 3745-30-01(I)(1). Ohio’s
regulation of CCR has not obtained US EPA approval as a program to operate in lieu of the
federal CCR rules, and thus the federal and Ohio rules both apply to Ohio facilities
producing CCR. In its appeal before ERAC, Ohio Utility Group argued the Director’s
adoption of this regulatory scheme unreasonably required simultaneous compliance with
“parallel different state and federal rules.” (June 14, 2021 Appeal at 3.)
{¶ 14} Before addressing the substance of this dual regulation argument, we review
ERAC’s disposition of the appeal at summary judgment. In an appeal from the Director’s
action, and in the absence of a prior adjudication hearing, under R.C. 119.09 and 119.10, or
before a board of health, ERAC “shall conduct a hearing de novo on the appeal.” R.C.
3745.05(A). “If, upon completion of the hearing, the commission finds that the action
appealed from was lawful and reasonable, it shall make a written order affirming the action,
or if the commission finds that the action was unreasonable or unlawful, it shall make a
written order vacating or modifying the action appealed from.” R.C. 3745.05(F). Under
this standard, the term “unlawful” means “that which is not in accordance with law,” and
Nos. 22AP-451, 22AP-452, & 21AP-453 7
the term “unreasonable” means that which does not have a valid factual foundation.
Citizens Commt. to Preserve Lake Logan v. Williams, Dir., 56 Ohio App.2d 61, 70 (10th
Dist.1977). Because ERAC decided the matter on the Director’s summary judgment
motion, upon finding the Director’s action lawful and an absence of any genuine issue of
material fact concerning the reasonableness of the Director’s action, it did not conduct a
hearing de novo. Ohio Utility Group argues the absence of that hearing requires the
reversal of ERAC’s order. We disagree.
{¶ 15} The Ohio Rules of Civil Procedure apply with some exceptions to all courts of
the state but not to administrative bodies. Civ.R. 1(A); Harbor View v. Jones, Dir., 10th
Dist. No. 10AP-356, 2010-Ohio-6533, ¶ 54. While Civ.R. 56 does not bind ERAC’s review
of a summary judgment motion, this court has noted that the rule may guide ERAC when
it decides such a motion. Waste Mgt. of Ohio, Inc. v. Cincinnati Bd. of Health, 159 Ohio
App.3d 806, 2005-Ohio-1153, ¶ 93 (10th Dist.). Further, although ERAC was statutorily
required to hold a hearing de novo in this matter, we will affirm an ERAC order “ ‘where
the result would not have been any different had the required hearing been held.’ ” Id. at
¶ 88, quoting Conley v. Shank, Dir., 54 Ohio App.3d 185 (10th Dist.1988), syllabus. See
Licking Cty. Citizens for a Safe Environment v. Schregardus, Dir., 136 Ohio App.3d 645,
648 (10th Dist.2000) (“An appealing party is not harmed by ERAC’s failure to conduct a de
novo hearing where the result of the case would not have been any different had the
required hearing been held.”).
{¶ 16} Summary judgment “is a procedural device designed to terminate litigation
and to avoid a formal trial where there is nothing left to try.” Maust v. Bank One Columbus,
N.A., 83 Ohio App.3d 103, 107 (10th Dist.1992), citing Norris v. Ohio Std. Oil Co., 70 Ohio
St.2d 1, 2 (1982). As such, “[i]t must be awarded with caution, resolving any doubts and
construing all the evidence against the moving party.” Id. To prevail on a motion for
summary judgment, the moving party must demonstrate that, when the evidence is
construed most strongly in favor of the non-moving party, no genuine issue of material fact
remains to be litigated and it is entitled to judgment as a matter of law. Civ.R. 56(C). A
genuine issue of material fact exists unless it is clear that reasonable minds can come to but
one conclusion and that conclusion is adverse to the non-moving party. Williams v. First
United Church of Christ, 37 Ohio St.2d 150, 151 (1974). Thus, summary judgment is a
Nos. 22AP-451, 22AP-452, & 21AP-453 8
means to avoid an unnecessary trial—a trial that would not alter the ultimate outcome of
the case. Consequently, if summary judgment is appropriate, then additional proceedings,
including a hearing de novo, are unnecessary to resolve a dispute.
{¶ 17} In its appeal before ERAC, Ohio Utility Group had the burden of
demonstrating there was no factual and legal basis upon which the Director could
promulgate the rules as she did. Buckeye Power, Inc. v. Korleski, Dir., 183 Ohio App.3d
179, 2009-Ohio-2232, ¶ 14 (10th Dist.), citing Johnson’s Island Property Owners’ Assn. v.
Schregardus, Dir., 104 Ohio App.3d 563, 568 (10th Dist.1995). “Where the evidence
demonstrates that it is reasonably debatable as to whether the director should have
promulgated the rules as he did, ERAC’s duty is to affirm the director, rather than merely
to substitute its judgment for his.” Buckeye Power, Inc., 2009-Ohio-2232, at ¶ 15, citing
Citizens Commt. to Preserve Lake Logan at 70.
{¶ 18} Ohio Utility Group concedes the Director’s legal authority to adopt the rules
at issue, but it challenges ERAC’s determination that there was no genuine issue as to
whether there was a factual foundation for those rules. Ohio Utility Group argues the
Director’s submitted evidence did not constitute reliable, probative, and substantial
evidence supporting the adoption of the IMW rules, and the evidence it submitted in
opposition to the summary judgment motion disputed the Director’s evidence. In support,
Ohio Utility Group asserts that the Director’s witness testimony was biased, conclusory,
and not supported by “any facts, data, studies or other objectively verifiable information
substantiating the reasonableness of the IMW Rules or the additional protections the rules
provide to human health and the environment.” (Ohio Utility Group Appellate Brief at 20.)
Ohio Utility Group also asserts its expert’s testimony indicated, in contrast to the Director’s
submitted testimony, that “the conflicts between the IMW and CCR Rules are not more
protective of human health and the environment.” (Ohio Utility Group Appellate Brief at
20.)
{¶ 19} We reject Ohio Utility Group’s argument that the Director’s evidence was not
reliable, probative, and substantial evidence because it was not buttressed with “objectively
verifiable information,” such as data or studies. The Director supported her summary
judgment motion with affidavits of Alison M. Shockley, an Ohio EPA Environmental
Manager with the Division of Materials and Waste Management, and Lindsay C. Taliaferro
Nos. 22AP-451, 22AP-452, & 21AP-453 9
III, an Ohio EPA Geologic Program Supervisor with the Division of Drinking and Ground
Waters. Shockley oversees the enforcement of Ohio’s IMW rules, and she averred that
“[m]ost of the requirements in the IMW rules have existed in prior forms of the rules since
1992.” (Shockley Aff. at 2.) She also averred that, since the promulgation of the federal
CCR rules, the Ohio EPA has been working toward obtaining approval for a state CCR
program to operate in lieu of the federal program. This effort has been unsuccessful,
however, and currently six facilities remain subject to both the federal CCR rules and the
Ohio IMW rules. She further averred that the current IMW rules “provide many
protections that are not present in the federal CCR regulations,” and she detailed some of
these protections. (Shockley Aff. at 3.) Consistent with Shockley, Taliaferro averred that
the Ohio IMW rules “offer additional protections which are not present in the federal
regulations governing CCR.” (Taliaferro Aff. at 2.) Taliaferro detailed enhanced
groundwater monitoring requirements existing under IMW rules that do not exist under
the federal rules. Fundamentally, this evidence demonstrates that Ohio Adm.Code Chapter
3745-30 is a framework to protect the environment and Ohioans from negative effects of
IMW, including CCR, a byproduct of coal-fired electric generating facilities that pose known
significant environmental and health risks. Contrary to Ohio Utility Group’s argument, no
additional evidence was necessary to demonstrate the Director had a factual basis to adopt
the latest version of the IMW rules. Therefore, we reject Ohio Utility Group’s argument
that ERAC’s decision was not supported by reliable, probative, and substantial evidence.
{¶ 20} We also reject Ohio Utility Group’s contention that its expert’s testimony
created a genuine issue of material fact. Ohio Utility Group argues that, to be entitled to
judgment as a matter of law and awarded summary judgment, the Director needed to show
there was no genuine issue that the state IMW rules provide protection to human health or
the environment beyond that provided by the federal CCR rules. Ohio Utility Group
reasons that the Director did not meet this burden, and, therefore, the Director was not
entitled to summary judgment. We disagree.
{¶ 21} As set forth above, the Director’s witnesses both testified that Ohio Adm.Code
Chapter 3745-30 contains environmental and human health protections beyond those of
the federal CCR rules. In contrast, Ohio Utility Group’s witness, Nicholas Kasper, the
environmental regulations compliance manager for Buckeye Power, Inc., averred that the
Nos. 22AP-451, 22AP-452, & 21AP-453 10
Ohio Utility Group “facilities [are] subject to parallel, inconsistent, state and federal
regulations,” and that in these areas “of conflict between the IMW and CCR rules,” the Ohio
IMW rules are unnecessary, burdensome, and often not more protective of human health
and the environment than the federal CCR rules addressing the same issues. (Kasper Aff.
at 2.) Kasper’s affidavit describes the “main sources of conflict between the IMW and CCR
rules” as “the liner design criteria, groundwater detection, monitoring and assessment, and
facility closure requirements.” (Kasper Aff. at 2.) Thus, Kasper’s averments may have
placed at issue whether certain aspects of the Ohio IMW rules provide more protection to
human health and the environment than federal CCR rules addressing the same issues. But
whether certain Ohio IMW rules are more protective than federal CCR rules is not a
material fact for the purpose of determining whether the Director acted unreasonably in
adopting those IMW rules.
{¶ 22} Ohio Utility Group’s challenge to the Director’s May 2021 adoption of Ohio
Adm.Code Chapter 3745-30 began as a general challenge to that regulatory framework on
the basis that rules contained therein allegedly conflicted with federal rules. Further
briefing before ERAC demonstrated that Ohio Utility Group did not allege conflict between
the state and federal rules. Ohio Utility Group conceded that compliance with both is not
impossible, and it did not otherwise allege that federal law preempts the IMW rules.
Instead, Ohio Utility Group clarified that its reference to “conflict” between the rules was
actually a reference to differences between the rules, which it considered unreasonable
because this duality forces unnecessary compliance with two regulatory schemes. The
gravamen of Ohio Utility Group’s challenge to the Director’s action is the contention that
her adoption of the current version of the IMW rules was unreasonable because, with the
2015 promulgation of the federal CCR regulations, this adoption maintains a dual
regulatory framework that Ohio Utility Group facilities must comply with, causing
inefficiencies and additional financial burdens.
{¶ 23} Therefore, Ohio Utility Group’s appeal of the Director’s action ultimately
relies on the faulty premise that, in view of the promulgation of the federal CCR regulations
in 2015, the Director needed to justify her May 2021 adoption of IMW rules, and the
associated burden it places on facilities, with sufficient proof of the necessity of dual
regulation, or that the Ohio IMW rules provide more protection than the federal CCR rules.
Nos. 22AP-451, 22AP-452, & 21AP-453 11
Such a justification was unnecessary. The Director is charged with adopting rules that
protect the environment and human health and safety from the dangers of manufacturing
and industry produced solid waste, and Ohio Utility Group does not contend the Ohio rules
addressing CCR do not provide protection to the environment or human health and safety.
Whether the societal and environmental benefits of protection outweigh the associated
compliance burden on facilities reasonably may be debated as a matter of public policy. But
the Director’s action in adopting rules affecting those competing interests does not
demonstrate unreasonableness simply because federal regulations concerning the same
problem also exist, or because Ohio Utility Group unfavorably views the burden placed on
impacted facilities. Based on these circumstances, we conclude Ohio Utility Group has not
shown that ERAC erred in finding no genuine dispute as to whether the Director’s action
had a valid factual foundation.
{¶ 24} Because ERAC’s order, affirming the Director’s May 2021 adoption of the
IMW rules, is supported by reliable, probative, and substantial evidence, and is in
accordance with law, we must affirm. Accordingly, we overrule Ohio Utility Group’s first,
second, and third assignments of error.
IV. Disposition
{¶ 25} Having overruled all three of Ohio Utility Group’s assignments of error, we
affirm the order of the Environmental Review Appeals Commission.
Order affirmed.
BOGGS and EDELSTEIN, JJ., concur.