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

Alice Robie Resnick, J.,

dissenting. While I agree with the majority’s assessment that the agency’s interpretation would produce some harsh results in this case, I do not believe that it is the function of this court .to assay the wisdom of a policy choice made by the agency entrusted to make such a decision.

*386Ohio Adm.Code Chapter 3745-31 governs review of “new sources” of air pollution. Essentially, the regulations require a PTI, the issuance of which is preceded by a new source review, to be obtained for any “new source” of air pollutants. Ohio Adm.Code 3745-31-02(A), 3745-31-04 and 3745-31-05. As relevant here, the regulations define “new source” to include “any air contaminant source * * * for which an owner or operator undertakes a continuing program of installation * * * after January 1, 1974 * * *.” (Emphasis added.) Ohio Adm.Code 3745-31-01(K). “Install” and “installation” are defined as “to construct, erect, locate, or affix any air contaminant source.” Ohio Adm.Code 3745-31-01(1). “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).

This case presents two questions: (1) whether the Raymond mill at National’s limestone plant may be ranked as an “air contaminant source”; and, if so, (2) whether the term “installation” can be construed to encompass like-kind replacement. Although the majority’s analysis is focused entirely on the issue of whether like-kind replacement constitutes an “installation,” its ultimate holding inexplicably includes a factual determination that the Raymond mill at National’s limestone plant is “a piece of equipment that is a component of a complex manufacturing operation.” (Emphasis added.) The majority, therefore, makes a sub silentio finding that the Raymond mill does not rank as an “air contaminant source.” It is necessary, therefore, to consider both prongs of the definition of “new source,” i.e., “air contaminant source” and “installation.”

I. Standard of Review

Although the majority gives lip service to “the long-accepted principle that considerable deference should be accorded to an agency’s interpretation of rules the agency is required to administer,” it does not pay homage to that principle.

The General Assembly has enacted in R.C. Chapter 3704 a technical and complex regulatory scheme to comply with the federal Clean Air Act, Section 7401 et seq., Title 42, U.S.Code, and to deal with the problems of air pollution that confront Ohio. It has entrusted the OEPA with the responsibility of administering the statute, and has delegated to it certain policy-making authority. In contrast, “[j]udges are not experts in the field, and are not part of either political branch of the Government.” Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. (1984), 467 U.S. 837, 865, 104 S.Ct. 2778, 2793, 81 L.Ed.2d 694, 717. Thus, where the legislature “has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construe*387tion of the statute.” (Footnotes omitted). Id. at 843, 104 S.Ct. at 2782, 81 L.Ed.2d at 703. This principle of deference has particular force where the agency interprets its own regulations. Wisconsin Elec, Power Co. v. Reilly (C.A.7, 1990), 893 F.2d 901, 907.

In determining whether the agency’s interpretation is permissible under the statute, the United States Supreme Court in Chevron, supra, explained that:

“When a challenge to an agency construction of a statutory provision, fairly conceptualized, really centers on the wisdom of the agency’s policy, rather than whether it is a reasonable choice within a gap left open by Congress, the challenge must fail. In such a case, federal judges — who have no constituency— have a duty to respect legitimate policy choices made by those who do. The responsibilities for assessing the wisdom of such policy choices and resolving the struggle between competing views of the public interest are not judicial ones: ‘Our Constitution vests such responsibilities in the political branches.’ TVA v. Hill, 437 U.S. 153, 195 [98 S.Ct. 2279, 2302, 57 L.Ed.2d 117, 147] (1978).” Chevron, 467 U.S. at 866, 104 S.Ct. at 2793, 81 L.Ed.2d at 717.

Instead of respecting these principles, the majority steadfastly violates them. Concerned with the “sharp teeth” of Ohio’s Air Pollution Control Act, the majority takes it upon itself “to reach a balance between promoting and enhancing clean air and protecting and encouraging economic growth.” In so doing, the majority, in direct contrast to every tenet of agency deference, actually proposes that “any uncertainty with regard to the interpretation of R.C. Chapter 3704 and rules promulgated thereunder should be construed in favor of the person or entity (manufacturer or otherwise) affected by the law,” and that the balance should tip in favor of the business entity “absent a precise and reasonable directive from the General Assembly or a reasonable rule properly promulgated by the Director of OEPA on the subject.” As a result, the majority has turned the principle of agency deference on its head in order to substitute its policy choices for the policy choices made by the agency entrusted to make such choices.

II. Air Contaminant Source

Since the majority has failed to explain the basis of its finding that National’s Raymond mill is “a piece of equipment that is a component of a complex manufacturing operation,” it has left its reasoning to speculation. The majority tells us neither why the Raymond mill itself falls short of being a “separate operation or activity,” nor what the “complex manufacturing operation,” of which the Raymond mill is a “component,” consists of. In any event, it is clear that it is permissible, both legally and factually, for the OEPA to rank the Raymond mill as an air contaminant source.

*388Prior to 1975, the United States Environmental Protection Agency (“EPA”) ranked individual pieces of equipment, including mills, as a “stationary source” under the federal Clean Air Act. See ASARCO, Inc. v. Environmental Protection Agency (C.A.D.C.1978), 578 F.2d 319, 322-323. See, also, Butler, New Source Netting in Nonattainment Areas Under the Clean Air Act (1984), 11 Ecology L.Q. 343, at 349, 353. Between 1975 and 1981, the EPA introduced successive plantwide definitions of “stationary source” into its various regulations governing the programs set forth in Parts A, C and D of the federal Clean Air Act. Id. at 350, fn. 67; Chevron, supra, 467 U.S. at 853-857, 104 S.Ct. at 2787-2789, 81 L.Ed.2d at 709-712.

The EPA now gives the states the option of adopting the following plantwide definition of “stationary source” in their state implementation plans:

“Stationary source means any building, structure, facility, or installation which emits or may emit any air pollutant subject to regulation under the Act.

“Building, structure, facility, or installation means all of the pollutant-emitting activities which belong to the same industrial grouping, are located on one or more contiguous or adjacent properties, and are under the control of the same person (or persons under common control) * * *.” Sections 51.165(a)(1)® and (ii) (Part D permit requirements for state implementation plans), and 51.166(b)(5) and (6), Title 40, C.F.R.

The EPA, however, continues to approve state implementation plans that deviate from the plantwide definition if the state “specifically demonstrates that the submitted definition is more stringent, or at least as stringent, in all respects.” Sections 51.165(a)(1) and 51.166(b), Title 40, C.F.R. See, also, Section 7416, Title 42, U.S.Code.

In clear contrast to the EPA-authorized plantwide definition of “stationary source” as a combination of “all of the pollutant-emitting activities which belong to the same industrial grouping,” the General Assembly and the OEPA have chosen to define an “air contaminant source” as “each separate operation or activity.” (Emphasis added.) R.C. 3704.01(C); Ohio Adm.Code 3745-31-01(D). In turn, the OEPA has consistently interpreted R.C. 3704.01(C) and Ohio Adm.Code 3745-31-01(D) to allow for the ranking of individual pieces of equipment as sources of air pollution subject to PTI review.2

*389Rather than precluding regulation at the level of equipment, the definition of “air contaminant source” set forth in R.C. 3704.01(C) and Ohio Adm.Code 3745-31-01(D) gives flexibility to the OEPA to regulate at different levels. Nothing in these definitions prevents a factual determination that the smaller process of grinding, rather than the larger process of hydrate production, constitutes a “separate operation or activity,” or that the operation or activity of grinding could factually consist entirely of a single piece of equipment such as the Raymond mill.

In fact, the PTI regulations compel the conclusion that there are times when an operation or activity will consist entirely of a single piece of equipment. Ohio Adm.Code 3745-31-03(A)(l) contains a laundry list of new air contaminant sources that are exempted from a PTI review. Many of the sources in this list are specifically identified as equipment. By negative implication, this listing evinces an intent to allow individual pieces of equipment to be ranked as air contaminant sources if not excepted. If the definition of “air contaminant source” precluded the ranking of equipment as a source, there would be no need to exempt certain specific types of equipment.

Clearly, it is improper for this court to find as a matter of law that the only operation or activity taking place at National’s limestone plant is the entire “complex manufacturing operation.” To do so is to incorporate into the statute and regulation the very plantwide definition of “air contaminant source” that the General Assembly and the OEPA chose not to adopt. Further, the record in this case clearly reveals sufficient facts to support the finding made by the OEPA that the operation or activity of grinding at National’s plant is a separate operation or activity consisting entirely of the Raymond mill. The production of hydrate begins with the extraction of dolomitie limestone from the earth through the use of explosives. The extracted limestone is crushed and screened, then burned in kilns at approximately 2,300 degrees Fahrenheit. The result is dolomitie quicklime. When the quicklime cools, it is screened and fed into a hydrator, where it is mixed with water to form hydrate. The .hydrate is then fed into the Raymond mill, where it is ground into finer material in accordance with customer specifications. It is at this point in production that the air-polluting particles at issue in this case are generated. The only reason that these particles are not released at the site of the mill is that they are trapped, along with the rest of the hydrate, in an air stream that circulates through an essentially closed-air system, and are routed to a baghouse where they are filtered out before the air is emitted into the atmosphere.

*390Certainly, under these facts the OEPA can determine that the Raymond mill is an air contaminant source. It is the Raymond mill by itself that generates the particulate matter that is sought to be regulated. The routing of the particulate matter that the mill generates does not vitiate the status of the mill as a source of air pollutants any more than the rerouting of exhausts from an automobile would change its status as a source of air pollutants.

III. Like-Kind Replacement Versus Installation

The majority concludes that “[t]he interpretation of ‘installation’ [as including ‘replacement’] proposed by appellee is, in our opinion, unreasonable.” In reaching its conclusion, the majority selectively extrapolates dictionary definitions of the terms “construct,” “construction” and “locate” to illustrate that “[l]iterally construed, the word ‘installation,’ as defined in Ohio Adm.Code 3745-31-01(1) and used in Ohio Adm.Code 3745-341-02(A), connotes the establishment or formation of something that has yet to be in existence.” (Emphasis sic.)

As the majority points out, the terms “construct” and “construction” mean the creation of something new, as distinguished from the repair or improvement of something already existing. See Webster’s Ninth New Collegiate Dictionary (1983) 281; Black’s Law Dictionary (6 Ed.1990) 312. This, however, does not disclose whether the replacement of an entire air contaminant source is to be considered a mere repair or improvement, or whether it is to be considered as the creation of something new. Depending upon the statutory or contractual context of their use, the terms “construct” and “construction” can mean “replacement” as opposed to repair or improvement; and the terms “replace” and “replacement” can mean the comparable exchange of something new for something old or worn out, as opposed to the maintenance or repair of something existing. See 8A Words and Phrases (1951) 470; 37 Words and Phrases (1950) 11; Webster’s Ninth New Collegiate Dictionary, supra, at 999.

It would indeed be an interesting display of linguistic gymnastics were a member of the majority to attempt to convince the carpet salesperson, who replaced his worn-out carpet with like-kind carpet, that installation charges are unwarranted because the word “ ‘installation’ connotes the establishment or formation of something that has yet to be in existence.”

Clearly, the use of such common, ordinary meanings is woefully inadequate to decisively classify replacement sources of air pollution as falling outside the definition of “installation.” The majority’s conclusion, resting as it does on such a precarious foundation, is unstable at best.

One of the stated purposes of Ohio’s Air Pollution Control Act is to enable the state, through the Director of Environmental Protection, to develop a program that is consistent with the federal Clean Air Act. R.C. 3704.02(A)(2) and *3913704.01(K) (formerly [H]). In addition, former R.C. 3704.02(B) provided, in pertinent part, that:

“The provisions of Chapter 3704. of the Revised Code, all regulations adopted pursuant to Chapter 3704. of the Revised Code, and all permits * * * shall, to the extent reasonably possible, be construed to be consistent with the federal Clean Air Act * * *.” Am.Sub.S.B. No. 258, 138 Ohio Laws, Part I, 847, 849.

The federal Clean Air Act embodies a construction/modification dichotomy similar to the OEPA’s installation/modifieation dichotomy set forth at Ohio Adm.Code Chapter 3745-31. As relevant here, the Clean Air Act provides for various sets of requirements applicable to newly constructed or modified stationary sources of air pollution.

Like Ohio’s regulations, the federal Act makes its permitting provisions applicable to new sources of air pollution. Sections 7410(A)(2)(D), (2)(I) and (4), Title 42, U.S.Code.3 Similar to Ohio Adm.Code Chapter 3745-31, the federal Act defines the term “new source” as including “construction or modification,” and defines “modification” as any change “which increases the amount of any air pollutant emitted by such source or which results in the emission of any air pollutant not previously emitted.” Section 7411(a)(2) and (4), Title 42, U.S.Code.

In enacting the Clean Air Act, particularly the Clean Air Act Amendments of 1977, Pub.L. 95-95, 91 Stat. 685, Congress had fully considered the proper political “balance between promoting and enhancing clean air and protecting and encouraging economic growth” which the majority of this court has taken upon itself to reconsider. The House Committee Report succinctly specifies that the section of the Act governing nonattainment areas seeks “the dual goals of attaining air quality standards and providing for new economic growth.” H.R.Rep. No. 95-294, 2 U.S.Code Cong. & AdmimNews (1977) 1077, 1091. The report goes on to explain that:

“In revising its plan to permit new growth, the * * * State plan * * * must require permits for the construction and operation of new or modified major sources. Additionally, the owner or operator of a prospective new source (or modification) must demonstrate that all sources owned by him * * * are in compliance or on a schedule for compliance. The source must also demonstrate that the issuance of a permit will not cause or contribute to concentrations of any air pollutant, for which national ambient air quality standards have not been promulgated, which would pose a significant risk to health.” Id.

*392The portion of the Senate Committee Report dealing with nonattainment areas explains further that:

“A major weakness in implementation of the 1970 Act [Clean Air Amendments of 1970, Pub.L. 91-604, 84 Stat. 1676] has been the failure to assess the impact of emissions from new sources of pollution on State plans to attain air quality standards by statutory deadlines. States have permitted growth on the assumption that a deadline was sufficiently distant so that future emissions reductions could be made to compensate for the initial increase. It can now be seen that these assumptions were wrong. Some mechanism is needed to assure that before new or expanded facilities are permitted, a State demonstrate that these facilities can be accommodated within its overall plan to provide for attainment of air quality standards.” S.Rep. No. 95-127 (1977) 55.

With these considerations in mind, Senator Muskie made the following poignant remarks in submitting the Conference Committee Report:

“I should note that the test for determining whether a new or modified source is subject to the EPA interpretative regulation — and to the permit requirements of the revised, implementation plans under the conference bill — is whether the source will emit a pollutant into an area which is exceeding a national ambient air quality standard for the pollutant — or precursor. Thus, a new source is still subject to such requirements as ‘lowest achievable emission rate’ even if it is constructed as a replacement for an older facility resulting in a net reduction from previous emission levels.
“A source — including an existing facility ordered to convert to coal — is subject to all the nonattainment requirements as a modified source if it makes any physical change which increases the amount of any air pollutant for which the standards in the area are exceeded.” (Emphasis added.) 123 Cong.Rec. (1977) 26847.

In light of the foregoing legislative history of the Clean Air Act, it is obvious that, after giving thoughtful consideration to the competing interests of clean air and economic growth, Congress intended for replacement sources to be governed by the regulations applicable to newly constructed sources.

The majority, in an effort to bolster its position, states that “[i]t is interesting to note that following the trial court’s ruling the OEPA proposed that Ohio Adm.Code 3745-31-01(D) be amended to negate the interpretation reached by the trial court” and that a letter by Donald E. Waltermeyer, an OEPA employee, proposed a further change of “adding the words ‘ “new or replacement” prior to “air contaminant source” in the definition for “Install.” ’ ” The majority deduces therefrom that “[i]f the definition of ‘installation’ is as clear as appellee presently urges, there would be no need for a clarification to ‘solidify’ the OEPA’s position.”

*393I cannot accept the majority’s view of the reasons behind the proposed amendment. The agency’s amendment “to negate the interpretation reached by the trial court” is just that. The need for “clarification to ‘solidify’ the OEPA’s position” was not the result of anything the agency had done, but a result of what the trial court had done. The majority’s treatment of the proposed amendment as tantamount to a judicial admission ignores the very letter by Waltermeyer proposing the amendment. That letter specifically explains that:

“The Ohio EPA Division of Air Pollution Control, has always considered the act of replacing an existing air contaminant source as being one that requires a Permit to Install. This has always been Ohio EPA’s interpretation of the rules, even when the new equipment is identical to the equipment being replaced.”

Based on the foregoing, I would find the OEPA’s interpretation to be a permissible one and affirm the decision of the court of appeals.

AW. Sweeney and F.E. Sweeney, JJ., concur in the foregoing dissenting opinion.

. In his uncontroverted affidavit, Robert F. Hodanbosi, Manager of the Air Quality Modeling and Planning Section of the Division of Air Pollution Control in the OEPA, states:

“I have consistently determined, since I began my current duties as Manager in the Division of Air Pollution Control in 1978, that sources like the ‘nev/ Raymond Mill * * * are new sources * * * which must obtain permits to install, as required by O.A.C. Rule 3745-31-02.”

*389In addition, a review of the Ohio EPA Weekly Review from April 1973 to the present reveals that for the last twenty years, the OEPA has applied its various definitions broadly to include individual pieces of equipment as subject to the PTI requirements.

. After the replacement of the Raymond mill, Congress enacted the Clean Air Act Amendments of 1990, effective November 15, 1990. See Pub.L. 101-549, Title VII, Section 711(b), November 15, 1990,104 Stat. 2399, 2684. The 1990 amendments made no substantive changes that are relevant to the case sub judice. All citations in this dissenting opinion are to the Clean Air Act prior to the 1990 amendments.