Columbus & Franklin Cty. Metro. Park Dist. v. Shank, 91-1721

• Decision Date: 10 November 1992
• Docket Number: No. 91-1721,91-1721
• Parties: , 36 ERC 1628 COLUMBUS & FRANKLIN COUNTY METROPOLITAN PARK DISTRICT et al., Appellees, v. SHANK, Director of Environmental Protection, et al., Appellants.
• Court: Ohio Supreme Court

Page 86

65 Ohio St.3d 86

600 N.E.2d 1042, 36 ERC 1628

COLUMBUS & FRANKLIN COUNTY METROPOLITAN PARK DISTRICT et al., Appellees, v. SHANK, Director of Environmental Protection, et al., Appellants.

No. 91-1721.

Supreme Court of Ohio.

Submitted May 6, 1992.

Decided Nov. 10, 1992.

[600 N.E.2D 1046]SYLLABUS BY THE COURT

1. Pursuant to Ohio Adm.Code 3745-1-05, the Ohio Director of Environmental Protection may not issue a permit authorizing an activity that would degrade waters which exceed water quality standards unless (1) he has complied with the public notice and intergovernmental coordination requirements of Parts 25 and 29, Title 40, C.F.R., (2) he has conducted a public hearing to consider the technical, economic and social criteria provided in Sections 1311 and 1312, Title 33, U.S. Code, and (3) as a result of the public hearing, he has chosen to allow lower water quality in the receiving stream. Where this determination has been made, the degradation of water quality must be kept to an absolute minimum by the employment of the most stringent statutory and regulatory controls for waste treatment and under no circumstances may such degradation interfere with or become injurious to any existing or planned uses of the receiving waters.

2. The "degradation" of high quality waters within the meaning of Ohio Adm.Code 3745-1-05 occurs whenever the permitted activity increases the amount of pollutants.

3. The most stringent statutory and regulatory controls for waste treatment to which Ohio Adm.Code 3745-1-05 refers constitute that level of technology applicable to new sources of pollution which achieves the greatest reduction of pollutants. Where the United States Environmental Protection Agency has not prescribed an effluent limitation for a new source category, the Ohio Director of Environmental Protection shall, pursuant to Ohio Adm.Code 3745-31-05(D), require as a condition of the permit the greatest effluent reduction achievable through the best available demonstrated control technology, processes, operating methods or other alternatives.

4. The public hearing requirement to which Ohio Adm.Code 3745-1-05 refers must be satisfied before a permit may be issued to install a new source of pollution pursuant to Ohio Adm.Code 3745-31-02(A).

This is an appeal of the issuance of permits to install wastewater treatment plants.

Blacklick Creek is a watercourse in eastern Franklin County, Ohio, which empties into Big Walnut Creek and, ultimately, the Scioto River. During its journey, the stream flows through Blacklick Woods Metropolitan Park, which is administered by appellee Columbus & Franklin County Metropolitan Park District. The stream has been classified as an exceptional warmwater habitat from its headwaters to Ohio Route 16. The Ohio Environmental Protection Agency ("OEPA") has established water quality standards for exceptional warmwater habitats. ¹ Blacklick Creek currently exceeds these numerical water quality standards. ²

The high water quality of Blacklick Creek is largely attributable to the elimination of several sewage treatment plants which formerly discharged effluent into the stream. In particular, plants serving residents of Reynoldsburg and Minerva Park, Ohio, have ceased operations. Instead, these residents are currently served by a regional wastewater treatment system administered by appellee city of Columbus through the extension of an intercepting sewer line to these communities. As a result of the extension, the effluent previously discharged into Blacklick Creek is conveyed to the Columbus Southerly Wastewater Treatment Plant in Lockbourne. This plant discharges further downstream, into the Scioto River.

OEPA is responsible for establishing planning areas for treatment facilities throughout the state. This responsibility is conferred upon the agency pursuant to Section 208 of the Federal Clean Water Act, Section 1288(a)(2), Title 33, U.S. Code. In the exercise of this authority, OEPA established a Facilities Planning Area for central Ohio. In 1976, the city of Columbus developed a facilities plan pursuant to Section 201 of the Clean Water Act, Section 1281, Title 33, U.S. Code, which was designed to comply with the state plan and to obtain federal funding for wastewater treatment facilities. The facilities plan, as revised, was incorporated into a comprehensive Section 208 The Section 201 facilities plan established service and planning areas within the boundaries prescribed by the OEPA. The service area encompasses territory for which the city currently provides wastewater treatment or for which a contract to provide future service has been executed. The planning area includes this service area and additional territory which could be served by the system in the future.

planning document developed by the state to coordinate, on a regional basis, the management of wastewater treatment.

The Columbus wastewater treatment system currently serves the city of Reynoldsburg. Columbus has executed a contract to provide wastewater treatment services to New Albany. Jefferson Township lies between New Albany and Reynoldsburg. The planning area includes Jefferson Township and Columbus envisioned that its interceptor sewer line would extend through Jefferson Township to New Albany.

In the summer of 1987, an application for the formation of appellant Jefferson Water & Sewer District ("JWSD") was submitted to the Franklin County Common Pleas Court pursuant to R.C. Chapter 6119. The OEPA objected to the formation of the district, based on the potential adverse effects of effluent from the district on the stream. On December 23, 1987, the Jefferson Water & Sewer District was created to operate the proposed plant.

On July 1, 1988, appellant, Lionmark Development Partners ("Lionmark"), applied to the OEPA for a permit to install a wastewater treatment facility to serve approximately four hundred thirty households in the Colts Neck subdivision. The proposed facility is designed to discharge 160,000 gallons of effluent per day into Blacklick Creek upstream from Blacklick Woods Metropolitan Park. The Lionmark proposal contemplates a "package plant" inasmuch as it would employ a standard design. The plant is expected to discharge 1.5 milligrams per liter ("mg/l") of ammonia during the summer into Blacklick Creek and 4 mg/l of ammonia during the winter based on a thirty-day average. ³ Assuming these concentrations, Lionmark officials projected On October 7, 1988, JWSD applied for a permit to install a wastewater treatment facility to serve four hundred fifty households. The JWSD facility would have the capacity to discharge 180,000 gallons of effluent per day into a tributary of Blacklick Creek downstream from the proposed Lionmark facility and upstream from Blacklick Woods Metropolitan Park. ⁵

that the summertime ammonia concentration in Blacklick Creek downstream from the point of discharge would be 0.44 mg/l when the facility is operating at capacity. ⁴

The JWSD facility is likewise a package plant and is similar to the Lionmark facility in design. The JWSD facility is also expected to produce effluent with ammonia concentrations of 1.5 mg/l in the summer and 4.0 mg/l in the winter.

Assuming these effluent concentrations, JWSD officials predict that the summertime ammonia concentration of Blacklick Creek downstream from the point of discharge would be .09 mg/l when the facility is operating at capacity. ⁶ This calculation assumes no contribution of effluent to the stream by the Lionmark facility.

The Lionmark and JWSD facilities would both be located in Jefferson Township. The JWSD plant would be approximately one and one-half miles from the terminus of the existing sewer line connected to the Columbus wastewater treatment system. On completion, the line would extend to within four fifths of a mile from the JWSD plant. The distance between the JWSD plant and the Lionmark plant is approximately 2.3 river miles. Since the sewer line parallels Blacklick Creek, the distance between the Lionmark plant and the terminus of the line under construction is approximately 3.1 miles. ⁷

The sewer line is sixty-six inches wide and has the capacity to carry 20,000,000 gallons of effluent per day.

Each of the proposed plants is anticipated to discharge 1.5 mg/l of ammonia into Blacklick Creek. ⁸ The OEPA expected each facility to elevate the ammonia concentration in Blacklick Creek to 0.5 mg/l. The OEPA, however, did not calculate the combined effect of both facilities. ⁹ Technology exists for removing additional ammonia from effluent produced by wastewater treatment facilities. One such technology, biological denitrification, ¹⁰ was not incorporated into the design of either plant because of its expense relative to the limited capacity of the facilities ¹¹ and because it was projected that the facilities would attain their effluent limitations without that technology. It was estimated that biological denitrification would reduce the ammonia concentration in the effluent from 1.5 to 1.0 mg/l.

On December 21, 1988, appellant Director of OEPA issued a permit to Lionmark to install its proposed sewage treatment facility. Appellant likewise issued a permit to JWSD on December 22, 1988 to install its wastewater treatment plant. On August 15, 1989, OEPA prepared a draft National Pollutant Discharge Elimination System ("NPDES") permit for the JWSD plant. The permit remained pending at the time of the hearing.

On January 20, 1989, appellees appealed to the Ohio Environmental Board of Review ("EBR"). In a de novo hearing before the EBR that began on October 24, 1989, testimony was adduced regarding the compliance of the facilities with technological requirements and water quality criteria. In arguing that the plants would comply, the OEPA used water quality standards applicable to exceptional warmwater habitats. ¹² These standards provide that the concentration of ammonia in the receiving stream may not...