New Boston Coke Corp. v. Tyler

Locher, J.,

concurring. I fully agree that the appellant herein lacks *219the necessary standing to challenge the administrative rule promulgated by the OEPA. In my view, however, today’s decision misses the forest for the trees. The real issue here involves the protection of one of our most vital natural resources: the air that we breathe.

There is no doubt that the quality of our air has been steadily worsening over the years. Congress created the Clean Air Act as the means by which such problems as smog, toxic air pollution and acid rain can be dealt with. Section 7401 of the Act provides as follows:

“(a) The Congress finds—

* *

“(2) that the growth in the amount and complexity of air pollution brought about by urbanization, industrial development, and the increasing use of motor vehicles, has resulted in mounting dangers to the public health and welfare, including injury to agricultural crops and livestock, damage to and the deterioration of property, and hazards to air and ground transportation;

* *

“(b) The purposes of this title are—

“(1) to protect and enhance the quality of the Nation’s air resources so as to promote the public health and welfare and the productive capacity of its population; * *

Likewise, R.C. 3704.02 states that the purposes of R.C. Chapter 3704, Ohio’s counterpart to the Clean Air Act, are, inter alia, “[t]o protect and enhance the quality of the state’s air resources so as to promote the public health, welfare, and economic vitality of the people of the state; * * *.”

The above purposes must be kept in mind when resolving questions arising under these statutes and the regulations issued pursuant thereto. Otherwise, because of the technical intricacies that are often involved in interpreting these statutes and regulations, it becomes easy to lose sight of the goals of preserving and improving the quality of our atmospheric resources. Too often the real issue of environmental protection is obscured by the complication of administering the system and enforcing the rules.

As I see it, the OEPA’s regulation amending the coke oven door leak limitation from sixteen percent to ten percent is perfectly consistent with the purposes of the Clean Air Act and R.C. Chapter 3704. The regulation is designed to reduce the amount of particulate matter polluting the air of our state, so that we can meet the national air quality standards formulated by the USEPA under the Clean Air Act. Furthermore, R.C. 3704.02(B) states that “all regulations adopted pursuant to Chapter 3704. of the Revised Code * * * shall, to the extent reasonably possible, be construed to be consistent with the federal Clean Air Act and to promote the purposes of Chapter 3704. of the Revised Code.” For these reasons, I would uphold the validity of the regulation in question in addition to holding that the appellant lacks the standing necessary to challenge it.