West Virginia v. Ohio Hazardous Waste Facility Approval Board

No. 86-153 (502 N.E.2d 625, 28 Ohio St. 3d 83) (Ohio December 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.

[17 ELR 20675]

Syllabus by the court:

In 1982, Waste Technologies Industries ("WTI") submitted an application pursuant to R.C. Chapter 3734 for a hazardous waste facility installation and operation permit to the Ohio Environmental Protection Agency ("EPA"). WTI sought to locate a hazardous waste storage and treatment facility in East Liverpool, Ohio, along the Ohio River. The EPA carried out a preliminary review of the application, during which WTI submitted additional application documents. On November 17, 1982, WTI submitted a revised application which superseded prior applications. Following the EPA's preliminary finding that the application appeared to be in compliance with its rules and with the performance standards contained in R.C. 3734.12(D), the application was transmitted to the Ohio Hazardous Waste Facility Approval Board ("board") pursuant to R.C. 3734.05(C)(3) for final determination.

The board held a public hearing on January 25, 1983, followed by an adjudication hearing in March. The parties to the adjudication included WTI, the Ohio EPA, the Board of County Commissioners of Columbiana County, the Columbiana County Board of Health, the Mayor of East Liverpool, and the Community Protection Association. The state of West Virginia participated in the adjudication hearing as a guest of the board. On April 27, 1984, the board issued its written order and final opinion granting the permit subject to certain conditions.

The court of appeals affirmed, holding that the board did not err by placing a five-minute limitation on oral testimony at the public hearing. Nor was there any [17 ELR 20676] indication that the hearing examiner was prejudiced by reason of his former employment with the Ohio EPA. The court held that the board did not violate R.C. 3734.05 by allowing WTI to provide additional information after its submission of the permit application, or by placing conditions on the permit to ensure future compliance. The court rejected the argument that the board did not properly determine the nature of the waste intended for the facility with sufficient specificity. As to the requirement that the board determine volume, the court reasoned that the volume could not be accurately determined at the time because it was dependent to a large degree on future events. The board fulfilled its duty by placing a condition on the permit to ensure that the plant's capacity was not exceeded, which fulfills the purpose of the requirement for a volume determination. The court further held that the record reflects substantial, reliable and probative evidence to support the board's findings that the proposed facility posed a minimal risk of ground and surface water contamination, accidents during transportation, and fire or explosion due to improper treatment or storage.

The cause is now before this court pursuant to the allowance of a motion to certify the record.

PER CURIAM.

Appellants 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 environmental 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 of 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 can 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 board's determination that the proposed technology was the most advanced is itself a finding that alternative technologies were inferior, thereby fulfilling the requirement for such a finding under the above statute. The board should not be required to waste its time evaluating systems demonstrated to be inferior.

We also reject appellants' 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 administrative expertise. Dudukovich v. Housing Authority (1979), 58 Ohio St.2d 202, 207, 389 N.E.2d 1113 [12 O.O.3d 198].

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).¹ Appellants also contend that the board failed to determine properly the nature and volume of the waste to be treated and stored at the facility as mandated by R.C. 3734.05(C)(6)(a). We cannot agree. Our careful review of the pertinent portions of the record and the board's lengthy order reveals that the board's findings on these matters are in fact supported by substantial, reliable and probative evidence and are in accordance with law. We are bound to defer to the board's interpretation and application of R.C. 3734.05 as the agency charged with implementation of that statute. Where the board's interpretation and application are lawful and supported by the requisite degree of evidence, its decision will not be disturbed. R.C. 3734.05(C)(7); Columbus v. Pub. Util. Comm. (1950), 154 Ohio St. 107, 119, 93 N.E.2d 693 [42 O.O. 186].

Appellants next contend that the board violated R.C. 3734.05(C)(3)(a)² and deprived appellants of due process by limiting oral testimony to five minutes per witness. In rejecting this argument, we first note that the above statute merely requires that an opportunity for oral or written comments be provided. No particular duration for oral testimony is mandated. Under the circumstances of this case, we do not find that the five-minute limitation is unreasonable, given the fact that even with this restriction, the hearing lasted almost eight hours. Moreover, there was no restriction whatsoever on written comments, which were invited by the hearing officer. In sum, we find that the board afforded a reasonable opportunity for all interested persons to make their views known to the board. Lastly, we remark that there is no constitutional guarantee of a due process right to present oral testimony at a public hearing. Federal Communications Comm. v. WJR (1949), 337 U.S. 265, 69 S. Ct. 1097, 93 L.Ed. 1353.

The next argument posed by appellants 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 cause. 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., [17 ELR 20677] Cleveland v. Budget Comm. (1977), 50 Ohio St.2d 97, 99, 362 N.E.2d 999 [4 O.O.3d 207]. This presumption imposes upon appellants the burden of proving their contention that the hearing examiner in this cause was biased, partial or prejudiced to such a degree that his presence adversely affected the board's decision. Ohio Motor Vehicle Dealers Bd. v. Central Cadillac Co. (1984), 14 Ohio St.3d 64, 67, 471 N.E.2d 488. Appellants rely on the examiner's former employment with the EPA at the time WTI's application was received as the sole support for an inference of bias. We do not consider this solitary factor sufficient to overcome the presumption of the integrity of the proceedings below.

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 contention 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] report and recommendations, the final order shall include the reason for such modification or disapproval." We do not agree with appellants' contention that the board failed to comply with this requirement. The hearing examiner herein made two recommendations. He first urged the board to delay granting the permit until additional information on certain matters³ could be obtained. Second, he recommended that if the permit was issued, the board should incorporate into the permit the conditions recommended by the EPA, and also that the board should require WTI to complete the "planning processes described in its application" and to operate the facility as stated therein. The board chose to reject the first recommendation based on its own findings. For every point on which the board disagreed with the hearing examiner, it stated its reasons for reaching an opposite conclusion. As to the second recommendation, the board adopted it essentially as given. The permit contained all the conditions recommended by the Ohio EPA⁴ and it incorporated the rather generalized additional recommendations made by the hearing examiner. We find that the board has completely fulfilled its duty to state its reasons in those instances where it disapproved or modified the hearing examiner's recommendations.

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 delegation to the Ohio EPA of the board's exclusive authority⁵ to determine whether an applicant has met all the conditions prerequisite to the granting of a permit. We do not agree. First, R.C. 3734.05(C)(6) expressly grants the board the power to issue a permit "upon such terms and conditions as the board finds are necessary to ensure the construction and operation of the hazardous waste facility in accordance with standards of this section." Nor does the board's direction that WTI should submit further information to the Ohio EPA constitute a delegation of the board's authority. After the issuance of an operation permit, the facility "shall be subject to the rules and supervision of the director of environmental protection during the period of its operation, closure, and post-closure care, if applicable." R.C. 3734.05(D)(4). Thus, after the permit is issued, monitoring of the facility is the responsibility of the Ohio EPA, and the requirement that future information be directed to that agency is not an improper delegation of the board's authority.

Accordingly, based on the foregoing, the judgment of the court of appeals is hereby affirmed.

Judgment affirmed.

1. 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;

"(iii) Accident during transportation of hazardous waste to or from the facility * * *."

2. R.C. 3734.05(C)(3) provides in pertinent part:

"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 application appears to comply with agency rules and to meet the performance standards set forth in divisions (D), (I), and (J) of section 3734.12 of the Revised Code, 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. * * *"

3. These matters include WTI's contingency, closure and personnel training programs, the safe handling of ignitable, reactive and incompatible substances, and the volume of wastes to be stored or treated at the facility.

4. 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 facility. The Ohio EPA further recommended that operation of the facility be forbidden until the Ohio EPA Director gives written approval of these documents.

5. R.C. 3734.05(C)(2)(b).

[17 ELR 20677]

LOCHER, Justice, 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 opinion 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 impacts 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 facility, 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. Another problem is that the site apparently sits above a one thousand gallon per minute aquifer which is a future high yield source of drinking water for those in Columbiana County. Although there is no evidence that the proposed facility is dependent upon the river or the aquifer, the risks associated with this location can be grave.

The hazardous waste that 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 militating 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 exact nature or volume of the hazardous waste it intends to treat, store [17 ELR 20678] 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 ignored. 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 governments 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 technological 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.