Ashland Chem. Co. v. Jones, 00-1154.

• Decision Date: 11 July 2001
• Docket Number: No. 00-1154.,00-1154.
• Citation: 749 NE 2d 744,92 Ohio St.3d 234
• Parties: ASHLAND CHEMICAL COMPANY, APPELLANT, v. JONES, DIR., APPELLEE.
• Court: Ohio Supreme Court

92 Ohio St.3d 234

749 NE 2d 744

ASHLAND CHEMICAL COMPANY, APPELLANT, v. JONES, DIR., APPELLEE.

No. 00-1154.

Supreme Court of Ohio.

Submitted April 4, 2001.

Decided July 11, 2001.

Porter, Wright, Morris & Arthur, L.L.P., Robert L. Brubaker and Katerina M. Eftimoff, for appellant.

Betty D. Montgomery, Attorney General, Bryan F. Zima, Douglas A. Curran and Laura J. Motes, Assistant Attorneys General, for appellee.

Brickler & Eckler, L.L.P., Kurtis A. Tunnell and Anne Marie Sferra, urging reversal for amicus curiae, Ohio Manufacturers' Association.

Porter, Wright, Morris & Arthur, L.L.P., and Martin S. Seltzer, urging reversal for amicus curiae, Ohio Chemistry Technology Council.

Submitted April 4, 2001 at the Lawrence County Session.

FRANCIS E. SWEENEY, SR., J.

Appellant, Ashland Chemical Company, owns and operates a chemical distribution facility on Darrow Road in Akron, Ohio. Appellant uses the facility to store, transfer, and ship various chemical products to its customers. The stored chemicals are transferred from stationary tanks or tank cars into smaller, portable containers in accordance with customer specifications. To accomplish this task, three container-filling lines pump various types of chemicals, including liquid organic materials such as photochemically reactive materials, into the smaller containers. No coating operations, chemical manufacturing, or chemical reaction takes place at this facility.

On October 6, 1995, appellant submitted an application for a permit to install ("PTI") these lines. Appellee, the Director of Environmental Protection, granted these applications on March 13, 1996. Thereafter, on June 25, 1996, appellant submitted applications for three permits to operate ("PTO") the lines. The applications were forwarded to the Akron Regional Air Quality Management District ("Akron Agency"), the local air pollution control agency, for initial review. In reviewing the applications, the Akron Agency determined that the three PTOs were subject to Ohio Adm.Code 3745-21-07(G)(2), an administrative rule that regulates the amount of organic compounds, including hydrocarbons and photochemically reactive materials, that can be discharged into the atmosphere per hour and per day. The prior PTIs had not stated that the lines would be subject to this rule. The Akron Agency submitted its recommendations to appellee, and appellee incorporated the administrative rule into the draft PTOs.

When appellant received a copy of the draft PTOs, it objected to the proposed enforcement of Ohio Adm.Code 3745-21-07(G)(2) on the ground that it did not believe its facilities fell within the scope of the rule. After receiving appellant's written comments, the Akron Agency agreed to remove any reference to Ohio Adm.Code 3745-21-07(G)(2). However, appellee disagreed and ultimately issued the PTOs subject to the requirements of Ohio Adm.Code 3745-21-07(G)(2).

Appellant filed an appeal with the Environmental Review Appeals Commission ("ERAC"), disputing the applicability of Ohio Adm.Code 3745-21-07(G)(2). Following a hearing, ERAC concluded that the administrative rule did not apply to the container-filling lines at the Darrow Road facility, and ordered that mention of this rule be removed from the PTOs. Appellee appealed to the Tenth District Court of Appeals, which overruled ERAC's decision. The cause is now before this court upon allowance of a discretionary appeal. We are asked to decide whether Ohio Adm.Code 3745-21-07(G)(2) applies to a chemical distribution facility that is involved in the transfer, packaging, and shipping of photochemically reactive materials.

Ohio Adm.Code 3745-21-07(G)(2) regulates the discharge of photochemically reactive material into the atmosphere:

"(G) Operations using liquid organic material:

"* * *

"(2) A person shall not discharge more than forty pounds of organic material into the atmosphere in any one day, nor more than eight pounds in any one hour, from any article, machine, equipment, or other contrivance used under conditions other than described in paragraph (G)(1) of this rule for employing, applying, evaporating or drying any photochemically reactive material, or substance containing such photochemically reactive material, unless said discharge has been reduced by at least eighty-five percent." (Emphasis added.)

The parties have stipulated that appellant's facilities are not being used for "applying," "evaporating," or "drying" any photochemically reactive material, as set forth in the administrative rule. The only issue is whether appellant's facilities are "employing" any photochemically reactive material in its operations.

The term "employing" is not defined in the Ohio Revised Code or the Ohio Administrative Code.¹ From the inception of this dispute, appellee has argued that the term "employing" should be interpreted to mean "using" in its broadest sense, and that Ohio Adm.Code 3745-21-07(G)(2) applies to the container-filling procedures at the Darrow Road facility, since appellant is "employing" or "using" the chemicals in its distribution process.

ERAC, however, declined to adopt this broad definition of the term "employing." Instead, ERAC held that the term "employing" must be given a meaning narrower than "using," as argued by appellee.

ERAC applied two rules of statutory construction in making this determination. It applied R.C. 1.42, which states, "Words and phrases shall be read in context and construed according to the rules of grammar and common usage." (Emphasis added.) ERAC also applied a related rule of statutory construction known as noscitur a sociis, "it is known from its associates." Under this doctrine, where the meaning of a word is unclear, a court will look at the surrounding words to ascertain the doubtful word's meaning. 2A Singer Sutherland, Statutory Construction (6 Ed.2000), Section 47:16.

Under these rules of statutory construction, ERAC looked at the words "applying," "evaporating," and "drying," which follow the term "employing."² ERAC concluded that the term "employing" "must not be construed to its widest extent and must take its meaning from the terms with which it is associated in paragraph (G)(2); that is `applying, evaporating or drying.'"

Furthermore, ERAC found that a narrow construction of the term "employing" was appropriate when subsection (G)(2) was read in context with the other subsections in the regulation. According to ERAC, "if the correct definition of `employ' were simply `to use,' then there would be no need for the other subsections of the regulation." ERAC also reasoned that even "[t]he title of subsection (G), `Operations using organic material,' indicates that the subsequently described operations will be using organic material in some more specific way. To reassign the general definition of `use' to `employ' in paragraph (G)(2) would make the use of the term in the title redundant."

The court of appeals found that the interpretation adopted by ERAC was unlawful and that ERAC erred in applying the doctrine of noscitur a sociis. The court reasoned that according to State ex rel. Rear Door Bookstore v. Tenth Dist. Court of Appeals (1992), 63 Ohio St.3d 354, 588 N.E.2d 116, noscitur a sociis should be used only where all the words listed together have analogous meaning. Since the words "employing," "applying," "evaporating," and "drying" are not analogous and each has its distinct meaning, the court said the maxim was inapplicable.

Instead, the court of appeals focused on that portion of R.C. 1.42 that states that words shall be construed according to common usage. It then construed "employing" according to its common dictionary meaning, which is "`to make use of; use * * * to put or bring into action or service; employ for or apply to a given purpose,'" quoting Webster's New World College Dictionary (2 Ed.1972). The court of appeals found that the administrative rule applied, since appellan...