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West Virginia v. Ohio Hazardous Waste Facility Approval Bd.

Citation: 17 ELR 20675
No. No. 86-153, 502 N.E.2d 625/28 Ohio St. 3d 83, (Ohio, 12/24/1986)

The court upholds the Ohio Hazardous Waste Facility Approval Board's issuance of a permit for a hazardous waste storage and treatment facility to be located along the Ohio River. The court first holds that the statutory provision requiring the board to deny an application for a hazardous waste facility permit unless it finds that the facility represents the minimum adverse environmental impact was satisfied because the applicant successfully demonstrated to the board that the proposed technology was the most advanced and most environmentally protective available. Where such a demonstration is made, the board need not examine alternative technologies. A determination that the proposed technology is the most advanced available amounts to a finding that alternative technologies are inferior. The court then holds that the board must consider alternative sites only if it finds such evidence is pertinent. Hence, the board did not err when it opted not to consider alternative locations for the proposed facility. The court next holds that there was substantial evidence to support the board's findings with respect to the risk of groundwater and surface water contamination, fires, explosions, and transportation accidents, and to establish that the board properly determined the nature and volume of the waste to be treated and stored at the proposed facility. The court then holds that the board did not violate appellants' due process or statutory rights by limiting oral testimony to five minutes per witness at the public hearing. Each person wishing to make his views known to the board was provided a reasonable opportunity to do so. Moreover, the Due Process Clause does not guarantee the right to present oral testimony at a public hearing. The court holds that appellants have failed to prove their claim that the examiner who presided over the adjudication hearing was biased and that they were prejudiced as a result. The examiner's past employment at the Ohio Environmental Protection Agency (EPA) is not enough to overcome the presumption that such a hearing is valid. Similarly, the court rejects the contention that the board failed to fulfill its statutory duty to articulate its reasons for disapproving or modifying the hearing examiner's recommendations. Lastly, the court holds that the board's issuance of the permit subject to the condition that the applicant provide further information at a later date to the Ohio EPA did not amount to an unlawful delegation of the board's authority. The dissent argues that the permit should be denied because the facility will be located along the Ohio River.

Counsel for Appellants
David Tobin
617 St. Claire Ave., E. Liverpool OH 43920-3037
(216) 385-0351

Charles Pierson
Buckingham, Doolittle & Burroughs
P.O. Box 1500, 50 S. Main St., Akron OH 44309
(216) 376-5300

Counsel for Appellee
Richard Fahey
Knepper, White, Arter & Hadden
180 E. Broad St., Columbus OH 43215-3707
(614) 221-3155

CELEBREZZE, C.J., and SWEENEY, HOLMES, CLIFFORD F. BROWN and WRIGHT, JJ., concur.

DOUGLAS J., concurs in judgment only.

LOCHER, J., dissents.