State ex rel. Celebrezze v. Natl. Lime & Stone Co.

• Decision Date: 02 March 1994
• Docket Number: No. 92-989,92-989
• Citation: 627 N.E.2d 538,68 Ohio St.3d 377
• Parties: , 38 ERC 1620 The STATE ex rel. CELEBREZZE, Atty. Gen., Appellee, v. NATIONAL LIME & STONE COMPANY, Appellant.
• Court: Ohio Supreme Court

Page 377

68 Ohio St.3d 377

627 N.E.2d 538, 38 ERC 1620

The STATE ex rel. CELEBREZZE, Atty. Gen., Appellee, v. NATIONAL LIME & STONE COMPANY, Appellant.

No. 92-989.

Supreme Court of Ohio.

Submitted Sept. 15, 1993.

Decided March 2, 1994.

SYLLABUS BY THE COURT

A like-kind replacement of a piece of equipment that is a component of a complex manufacturing operation involving the emission of an air contaminant does not constitute "the installation of a new source of air pollutants" within the meaning of Ohio Adm.Code 3745-31-02(A).

Appellant, National Lime & Stone Company ("National"), operates a limestone quarry and lime processing plant in Carey, Ohio, and has done so since 1927. At its Carey facility, National produces, among other things, a product known as Type N hydrated dolomitic quicklime ("hydrate"). Hydrate has many uses, the majority of which involve environmental protection, such as treatment of industrial wastes.

The manufacture of hydrate begins with the extraction of dolomitic limestone from the earth. The extracted limestone is crushed, screened and fed into Calcimatic kilns and burned at extreme temperatures, resulting in dolomitic quicklime. The quicklime is then cooled with ambient air, further screened and fed into a hydrator, where it is mixed with water to form hydrate.

The hydrate is then carried by way of elevator to a piece of equipment known as a Raymond mill. The function of the Raymond mill is to grind the hydrate into a fine dust-like material to meet customer specifications. During this process, air enters through the base of the Raymond mill, causing ground hydrate to be vented upward to a mechanism called a Whizzer classifier. The Whizzer classifier separates particles of hydrate, returning oversized particles to the Raymond mill for further reduction and discharging hydrate which meets certain specifications to a Cyclone collector. The Cyclone collector separates hydrate from the air and releases it into packer bins. Clean air is recirculated to the base of the Raymond mill.

The system including the Raymond mill and Cyclone collector has been stated to be a "closed-air" system. Most of the air involved in the milling procedure is recirculated and any excess air, which inevitably enters the system with the hydrate and which may collect a small amount of particulate matter, is vented through a baghouse. However, no air is vented directly from the Raymond mill to the baghouse. If air were vented directly from the mill to the baghouse it would cause the entire process to shut down. The baghouse is a filtration and pollution control device, filtering particulates from the air before the air is emitted from a stack into the atmosphere. The filtered hydrate that is collected in the baghouse is also conveyed to the packer bins. Hydrate from the packer bins is then either bagged or discharged by a pump into bins for loading onto trucks or rail cars.

In 1927, National installed two Raymond mills at its Carey plant, one known as the East mill and the other known as the West mill. In January 1974, a single permit to operate ("PTO") the two mills was granted by the Ohio Environmental Protection Agency ("OEPA"). In January 1986, the single PTO was split, providing a separate PTO for each mill. Sometime between 1986 and 1987, the East Raymond mill was taken out of service. In April 1987, due to its poor condition, the West Raymond mill was removed and replaced with a "like-kind" Raymond mill.

The replacement Raymond mill, which apparently occupies the same location in the plant as the prior West Raymond mill, cost approximately $350,000 to purchase and set up. The replacement mill differs from the prior mill only in that it has four rollers and a fifty-four-inch grinding ring, as compared to three rollers and a forty-two-inch grinding ring. The rollers and rings contribute to the actual grinding process.

The pollution control device (the baghouse) was installed in 1973. According to National, the baghouse constitutes the best available technology for particulates and has a design efficiency of more than ninety-nine percent. National also claims that plant personnel perform visible emissions checks on a daily basis to confirm that there are no visible emissions from the stack. On August 25, 1989, National's safety and environmental compliance officer, who was certified at the time, performed a Method 9 opacity test, finding a zero percent opacity. See Part 60, Appendix A, Title 40, C.F.R.

Sometime in 1988, Donald E. Waltermeyer of OEPA's Northwest District Office became aware of the replacement Raymond mill. Consequently, on September 28, 1988, the OEPA and National met to discuss permit requirements for the replacement mill. At this meeting, the OEPA informed National that a permit to install ("PTI") was required for the mill and that a PTO was required for its continued operation. In December 1988, National sought to renew its existing PTO for the West Raymond mill. A PTO had been granted to National when the old mill was in operation and this permit was to expire in January 1989. By letter dated April 27, 1989, Waltermeyer reaffirmed the OEPA's position that a PTI was required for the replacement mill and that an application should be submitted no later than May 24, 1989. In this letter, Waltermeyer attached a memorandum from the OEPA's legal department, which concluded that the replacement mill was an "air contaminant source" and a "new source" of air pollutants within the meaning of applicable administrative rules.

On March 23, 1990, at the request of the OEPA, appellee, the Attorney General, filed a complaint against National for injunctive relief and civil penalties in the Court of Common Pleas of Wyandot County. Appellee alleged that National had violated Ohio Adm.Code 3745-31-02(A) and 3745-35-02(A) by failing to secure a PTI before installation of the replacement Raymond mill and by operating the mill without obtaining a PTO. Apparently, no action has been taken on National's application to renew its PTO pending resolution of this case.

National and appellee filed cross-motions for summary judgment. The trial court granted National's motion and denied appellee's motion, determining that a PTI was not required for the replacement Raymond mill. The trial court concluded that the administrative rules did not apply to replacement of an air contaminant source. The trial court also held that the existing PTO covered the Raymond mill and, further, ordered that appellee's complaint be dismissed with prejudice.

The court of appeals reversed the judgment of the trial court. Interpreting certain administrative rules differently than the trial court, the court of appeals held that National was required to obtain a PTI from the OEPA, since the replacement of the mill constituted an "installation of a new source of air pollutants" within the meaning of Ohio Adm.Code 3745-31-02(A).

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

Lee I. Fisher, Atty. Gen., David G. Cox and Timothy Kern, Asst. Attys. Gen., for appellee.

Marshall & Melhorn, Thomas W. Palmer, Donald F. Melhorn, Jr. and Amy M. Natyshak, Toledo, for appellant.

Vorys, Sater, Seymour & Pease, John W. Hoberg and Theodore A. Boggs, Columbus, urging reversal for amici curiae, Ohio Aggregates Ass'n, Ohio Chamber of Commerce and Ohio Mfr's Ass'n.

Frost & Jacobs, Paul W. Casper, Jr. and K. Denise Grant, Cincinnati, urging reversal for amicus curiae, Greater Cincinnati Chamber of Commerce.

DOUGLAS, Justice.

The issue in this case is whether National acted contrary to law in replacing its West Raymond mill with a like-kind mill without obtaining a PTI from the OEPA. Resolution of this issue hinges on an interpretation of certain administrative rules promulgated by the Director of OEPA.

Former R.C. 3704.03(F) ¹ authorized the Director of OEPA to "[a]dopt, modify, and repeal rules consistent with the purposes of this chapter prohibiting the location, installation, construction, or modification of any air contaminant source * * * unless an installation permit therefor has been obtained from the director or his authorized representative." (Emphasis added.) Am.Sub.H.B. No. 694, 139 Ohio Laws, Part II, 3460, 3740. Pursuant to this statutory authority, the director promulgated Ohio Adm.Code 3745-31-02(A), which provides that:

"[N]o person shall cause, permit, or allow the installation of a new source of air pollutants * * * or cause, permit, or allow the modification of an air contaminant source * * * without first obtaining a permit to install from the director. * * * " (Emphasis added.)

"Install" and "installation" are defined in Ohio Adm.Code 3745-31-01(I) as "to construct, erect, locate, or affix any air contaminant source or any treatment works." "Air contaminant source" means "each separate operation or activity that results or may result in the emission of any air contaminant." Ohio Adm.Code 3745-31-01(D). See, also, R.C. 3704.01(C). Particulate matter, such as dust, is within the definition of "air contaminant." Ohio Adm.Code 3745-31-01(C). See, also, R.C. 3704.01(B).

Ohio Adm.Code 3745-31-01(K) defines "new source" as "any air contaminant source * * * for which an owner or operator undertakes a continuing program of installation or modification or enters into a binding contractual obligation to undertake and complete, within a reasonable time, a continuing program of installation or modification, after January 1, 1974 * * *." (Emphasis added.)

Ohio Adm.Code Chapter 3745-31 sets forth PTI regulations which govern "new sources" of air pollution. In brief, the rules require that a PTI be obtained for any new source of air contaminants. Ohio Adm.Code 3745-31-02(A). The applicant must submit information about the new source to the OEPA, Ohio Adm.Code 3745-31-04, and, based on this information, the OEPA has discretion whether to grant or deny the permit, Ohio Adm.Code...