City of Cleveland v. Cleveland Elec. Illuminating Co.

• Decision Date: 27 April 1983
• Docket Number: No. 82-292,82-292
• Citation: 448 N.E.2d 130,4 Ohio St.3d 184
• Parties: , 4 O.B.R. 461 CITY OF CLEVELAND, Appellant, v. CLEVELAND ELECTRIC ILLUMINATING COMPANY, Appellee.
• Court: Ohio Supreme Court

Page 184

4 Ohio St.3d 184

448 N.E.2d 130, 4 O.B.R. 461

CITY OF CLEVELAND, Appellant, v. CLEVELAND ELECTRIC ILLUMINATING COMPANY, Appellee.

No. 82-292.

Supreme Court of Ohio.

April 27, 1983.

Syllabus by the Court

1. Due process does not require air pollution inspectors to give suspected air polluters simultaneous or contemporaneous notice of the inspectors' observations of readily visible air pollution.

2. The component steps of Method 9, the technical procedure used by air pollution inspectors in determining a criminal violation of air pollution control codes, are not elements of the criminal offense and each step of the procedure does not have to be proven beyond a reasonable doubt.

3. The testimony of air pollution inspectors, as expert witnesses, may include the ultimate issue of fact in the form of a conclusory opinion concerning the existence or non-existence of an element of the criminal offense to be proven beyond a reasonable doubt.

4. Evidence that Method 9 was followed by air pollution inspectors is sufficient for the trier of fact to find that the inspectors complied with the component steps of Method 9.

Appellant, the city of Cleveland, filed four criminal complaints in the Cleveland Municipal Court against appellee, Cleveland Electric Illuminating Company, on February 9, 1978, charging that appellee had on four separate occasions emitted air contaminants from its steam boilers at a level greater than twenty percent opacity, in violation of Cleveland Municipal Code Section (C.M.C.) 265.01(a). The parties agreed to consolidate the cases for trial.

Appellant's case at trial was based on the testimony of four city air pollution inspectors, certified under Method 9, who made their smoke stack observations using Method 9, 40 C.F.R., Part 60, Appendix A. Method 9 is a detailed procedure established by the federal Environmental Protection Agency, and used at the federal, state and local levels for determining the opacity of smoke plumes by visual observation of trained observers.

Appellant's first witness, Homer Sheffield, an air pollution inspector, testified that he was familiar with the Environmental Protection Agency's visual determination standards, Method 9, that those standards were the standards he used, that he was trained to follow those standards, and that Method 9 is the standard procedure in the appellant's training program.

Sheffield also testified that on January 18, 1978, he observed stack emission from appellee's plant in excess of thirty percent opacity; that these readings were made at fifteen-second intervals over a thirty-minute period, for a total of one hundred twenty readings; and that while he was taking these readings, he was at a ninety degree angle to the plume with the sun in the one hundred forty degree sector at his back.

Sheffield notified appellee's plant manager, James E. Larson, about the violation. Larson did not question the determination, but responded with a letter, dated January 20, 1978, as follows:

" * * * As a result of a critical need for capacity on a continuing basis, these units are now loaded up to their maximum ability prior to the final debugging and fine tuning. In several cases, there are deficiencies in the air supply which need an outage for correction. To operate at a level which would eliminate the stack emissions on this equipment, would call for load reductions which are not feasible during the present emergency."

Air pollution inspectors, Timothy J. Fiorelli, John L. Clemons, Jr. and William Neal, Jr., testified that appellee's emissions on January 18, 24, and 30, 1978, were greater than twenty percent opacity, and that such finding was based on readings every fifteen seconds over at least a thirty-minute period.

The trial court found appellee guilty of all four counts as charged. The court of appeals, however, reversed the trial court's judgment on all four counts.

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

James E. Young, Director of Law, John D. Maddox, Blair Hodgman and Donald F. Black, Cleveland, for appellant.

Guren, Merritt, Feibel, Sogg & Cohen, Stanley M. Fisher, Michael L. Hardy, Dennis P. Henningan, Alan D. Wright and Donald H. Hauser, Cleveland, for appellee.

William J. Brown, Atty. Gen., and Edward D. Hayman, Asst. Atty. Gen., urging reversal for amicus curiae, State of Ohio.

REILLY, Justice.

Appellant asserts four propositions of law as follows:

1. "Due process does not require air pollution inspectors to give suspected air polluters simultaneous or contemporaneous notice of the inspector's observations of readily visible air pollution."

2. "The component steps of Method 9, the technical procedure used by air pollution inspectors in determining a violation, are not elements of the criminal offense and each step of the procedure does not have to be proven beyond a reasonable doubt."

3. "When an element of a criminal offense requires expert witness opinion testimony, such testimony that the element exists is sufficient evidence for the trier of fact to determine that the element is proven beyond a reasonable doubt."

4. "Evidence that Method 9 was followed by air pollution inspectors is sufficient for the trier of fact to find that the component requirements of Method 9 were complied with."

As to appellant's first proposition of law, the court of appeals in this case, in rendering its judgment, relied on Western Alfalfa Corp. v. Air Pollution Variance Bd. (1975), 35 Colo.App. 207, 534 P.2d 796, affirmed in Air Pollution Variance Bd. v. Western Alfalfa Corp. (1976), 191 Colo. 455, 553 P.2d 811, but ignored the due process ruling of the Colorado Supreme Court in Western Alfalfa Corp. at page 462, 553 P.2d 811, which reads as follows:

"Due process contemplates that notice should be given of a visual opacity reading by the Department of Health within a reasonably short period of time following the completion of the inspection. Because surprise may play a crucial role in the course of some inspections, we do not require prior or...