While I agree with the majority outcome, I do so because the decision of the Appeals Commission does not affect a substantial right. *Page 690
In applicable part, R.C. 2505.02 provides that an order is final when it is made in a special proceeding and affects a substantial right. R.C.2505.02 (B). A substantial right is a "legal right entitled to enforcement and protection by law[.]" In re Estate of Wyckoff (1957),166 Ohio St. 354, 358, 2 O.O.2d 257, 260, 142 N.E.2d 660, 664. An order affects a substantial right "only if, in the absence of N.E.2d immediate appeal, [the order] forecloses appropriate relief in the future[.]" Kelm v. Kelm (1994), 93 Ohio App. 3d 686, 691, 639 N.E.2d 842, 845, citing Bell v. Mt. Sinai Med. Ctr. (1993), 67 Ohio St. 3d 60, 63, 616 N.E.2d 181,183-184. For Ian order to affect a substantial right, appellant must, as a threshold matter, establish that the right may not be vindicated on appeal after final judgment. Galloway v. Galloway (May 20, 1999), Franklin App. No. 98AP-1007, unreported, 1999 WL 356282. "A substantial right is not affected merely because an order has the immediate effect of restricting or limiting that right. Rather, a substantial right is affected when there is virtually no opportunity for an appellate court to provide relief on appeal after final judgment from an order that allegedly prejudiced a legally protected right." State v. Chalender (1994),99 Ohio App. 3d 4, 7, 649 N.E.2d 1254, 1256.
The substantial right appellant claims is being affected, receiving an NPDES permit without unlawful or unreasonable administrative constraints, can be vindicated on appeal after a final judgment. The Appeals Commission's decision below denied only appellant's request to increase the BOD5 limitation in its NPDES permit without addressing the reduction of the ammonia limitation in the same permit. The limitation-increase refusal can be appealed after a final decision is rendered as to both of appellant's claimed errors involving the NPDES permit, and appropriate relief may be provided on appeal. If error is found, this court may then remand the matter with instructions to the Appeals Commission to increase the limitation or otherwise modify the permit.
Because appellant's asserted right may be vindicated on appeal after a final judgment, appellant has not demonstrated that a substantial right has been affected by the Appeals Commission's decision. Given the foregoing, the Appeals Commission's decision is not final and appealable. Because appellant's appeal is not taken from a final and appealable order, I would dismiss the appeal. *Page 691