City of Cleveland v. the Cleveland Electric Illuminating Co.
| Decision Date | 22 December 1981 |
| Docket Number | 41811,41809,41808,41810,81-LW-2779 |
| Parties | CITY OF CLEVELAND APPELLEE, v. THE CLEVELAND ELECTRIC ILLUMINATING CO. APPELLANT. |
| Court | Ohio Court of Appeals |
APPEAL FROM CLEVELAND MUNICIPAL COURT No. CRB 4408 [41808], CRB 4409 [41809], CRB 4410 [41810], CRB 4411 [41811].
For plaintiff appellee: Thomas E. Wagner, Director of Law, Donald F. Black, Assistant Director.
For defendant appellant: Stanley M. Fisher, Michael L. Hardy, Of Counsel: Donald H. Hauser.
JOURNAL ENTRY AND OPINION
This cause came on to be heard upon the pleading and the transcript of the evidence and record in the Common Pleas Court, and was argued by counsel; on consideration whereof the court certifies that in its opinion substantial justice has not been done the party complaining, as shown by the record of the proceedings and judgment under review, and judgment of said Common Pleas Court is reversed. Each assignment of error was reviewed by the court and upon review the following disposition made:
SEE OPINION, KRENZLER, C.J., INCORPORATED HEREIN BY REFERENCE AND ATTACHED HERETO.
This cause is reversed and the defendant is discharged.
It is therefore, considered that said appellant(s) recover of said appellee(s) its costs herein.
It is ordered that a special mandate be sent to said Court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions.
Note: This Journal Entry and Opinion was journalized December 22, 1981, and the 30 day period for the filing of a Notice of Appeal begins to run this 22nd day of December, 1981.
N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run.
1. Criminal violations of air pollution control codes may be proven by the results of emission density tests such as the visual equivalent opacity test known as Method 9 (codified at 40 C.F.R., Part 60, Appendix A), by which the density of an emission is visually determined in terms of its percent opacity by a certified inspector.
2. Method 9 sets forth the precise procedures to be followed by an inspector in determining the opacity of emissions. When Method 9 is employed in a criminal case, evidence must be introduced demonstrating that it was complied with in all respects before the trier of fact has before it evidence of guilt beyond a reasonable doubt.
3. Since Method 9 clearly states that it contains in its application an inherent error, this error must be taken into account when determining violations of emission opacity standards. A positive error of 5% is so probable in an application of Method 9 that all emission opacity readings must be adjusted by this amount. A determination of unlawful emission opacity thus involves a two-step process. Initially an inspector will testify as to his compliance with Method 9 and as to the percent opacity observed. It is then necessary to apply the positive error of plus or minus 5% to the observed opacity. Only if the adjusted range of opacity at its lower level exceeds the proscribed standard may there be a criminal violation of the antipollution code.
4. Due process requires that in a criminal air pollution prosecution based upon a visual determination of the density of instantly dissipating columns of smoke by the use of Method 9, the accused polluter be given simultaneous notice of the inspection so that he may avail himself of the opportunity to observe the inspector's procedure as well as to simultaneously record his own opacity determinations by visual or mechanical means.
OPINIONOn February 9, 1978, the City of Cleveland, complainant-appellee, hereinafter referred to as the "city," filed four separate criminal complaints in Cleveland Municipal Court against defendant-appellant Cleveland Electric Illuminating Company, hereinafter referred to as "CEI," alleging violations of the city air pollution control ordinances.
The city charged that CEI's Lakeshore Plant at 6800 South Marginal Road in the City of Cleveland violated Section 265.01(a) of the City of Cleveland Municipal Code by emitting air contaminants of greater than 20% opacity from four of its steam boilers at the times and dates set forth below:
Prior to trial, CEI moved to dismiss the four complaints, claiming that jurisdiction lay with the Court of Common Pleas because of a stipulation and consent decree which was earlier executed by the city and CEI in Common Pleas Case No. 928,514, and which exempted CEI from compliance with the city air pollution code. CEI argued that this decree, which was to expire on December 31, 1977, was still in effect on the dates of the alleged violations because of a "force majeure" clause extending CEI's required compliance time if CEI could not comply due to circumstances beyond its control, in this case a national coal strike which commenced December 6, 1977. CEI further argued that the effect of the consent decree was that jurisdiction over CEI's compliance or non-compliance rested exclusively in the Common Pleas Court. The city argued that the consent decree expired on December 31, 1977 and therefore was not in effect at the time of the foregoing alleged violations and that the Cleveland Municipal Court did have jurisdiction to hear the complaints. The trial court overruled a motion to dismiss and a joint trial commenced on all four complaints before a judge of the Cleveland Municipal Court.
CEI was found guilty and convicted of all four counts. These judgments are the subject of the instant appeal.®1¯
Footnote 1 The January 18 complaint for unit 17 was tried as Cleveland Municipal Court No. 78-CRB-4408 and is Court of Appeals No. 41808; the January 18 complaint for unit 14 was Cleveland Municipal Court No. 78-CRB-4409 and Court of Appeals No. 41809; the January 24 complaint was Cleveland Municipal Court No. 78-CRB-4410 and Court of Appeals No. 41810, and the January 30 complaint was assigned Cleveland Municipal Court No. 78-CRB-4411 and is here on appeal as No. 41811. All four cases were consolidated both for trial and on appeal.
Before reviewing the trial testimony and discussing CEI's assigned errors, it will be helpful to present an overview of the subject matter of this case.
In 1955, the United States Congress enacted the federal Clean Air Act, 42 U.S.C. ] 7401 et seq. (). This Act had as its purposes the following:
Following the federal lead, in 1967 Ohio enacted R.C. Ch. 3704, "Air Pollution Control." In 1969 the city of Cleveland enacted Cleveland M.C. Title 5, "Air Pollution Code of the City of Cleveland," in order to prevent air pollution, which it has defined as follows:
"'Air pollution' means the presence in the atmosphere of one or more air contaminants, such as dust, fumes, gas, mist, odor, smoke or vapor in quantities, of characteristics and of duration such as to be injurious to human, plant or animal life or to property, or which unreasonably interferes with the comfortable enjoyment of life and property or the conduct of business." Cleveland M.C. ] 251.04.
All of the above legislation created administrative agencies to enforce the new laws, giving these agencies the authority to promulgate regulations necessary to facilitate enforcement of the clean air provisions. The federal Environmental Protection Agency regulations may be found at 40 C.F.R., Part 60, and the Ohio Environmental Protection Agency regulations at Ohio Administrative Code Ch. 3745-17. The City of Cleveland Division of Air Pollution Control did not adopt enforcement regulations.
Cleveland M.C. ] 265.01 sets forth the prohibitory section of the city Air Pollution Code as follows:
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