Ohio Chamber of Commerce v. State Emergency Response Commission

597 N.E.2d 487, 64 Ohio St. 3d 619
CourtOhio Supreme Court
DecidedSeptember 9, 1992
DocketNo. 91-1507
StatusPublished
Cited by2 cases

This text of 597 N.E.2d 487 (Ohio Chamber of Commerce v. State Emergency Response Commission) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ohio Chamber of Commerce v. State Emergency Response Commission, 597 N.E.2d 487, 64 Ohio St. 3d 619 (Ohio 1992).

Opinions

Douglas, J.

The question presented to this court is whether the commission exceeded its authority in adopting Ohio Adm.Code 3750-30-20(F)(4) and (H)(7). For the reasons which follow, we answer this question in the negative.

The controversy in this case involves R.C. 3750.02(B)(1), which provides that:

“(B) The commission shall:

[622]*622“(1) Adopt rules in accordance with Chapter 119. of the Revised Code that are consistent mth and equivalent in scope, content, and coverage to the ‘Emergency Planning and Community Right-To-Know Act of 1986,’ 100 Stat. 1729, 42 U.S.C.A. 11001, and applicable regulations adopted under it[.]” (Emphasis added.)

Appellees contend that the language “consistent with and equivalent in scope, content, and coverage” establishes a limit on the commission’s authority and prevents the commission from promulgating rules that are more stringent than what the EPCRA requires. Therefore, urge appellees, because the reporting requirements imposed by Ohio Adm.Code 3750-30-20(F)(4) and (H)(7) exceed that which is necessary to achieve federal compliance, the requirements are unlawful.

The commission argues that R.C. 3750.02(B)(1) sets forth merely minimum reporting requirements that must be followed when promulgating rules. In other words, the commission suggests that the language “consistent with and equivalent in scope, content, and coverage” establishes only a foundation and it (the commission) is free to adopt rules more stringent than federal law. We agree.

R.C. 3750.02(B)(1) is somewhat ambiguous. There is no question that the mapping requirements imposed by Ohio Adm.Code 3750-30-20(F)(4) and (H)(7) are consistent with the federal Act. The ambiguity, however, lies with the term “equivalent.” This term is not defined in R.C. Chapter 3750. Thus, in determining legislative intent, we may consider the circumstances under which the statute was enacted, the objectives of the statute and the consequences of any particular construction. R.C. 1.49.

As noted, supra, the impetus behind the enactment of R.C. Chapter 3750 was the EPCRA. The purpose of the federal Act is to provide the public with information concerning hazardous chemicals in their communities and to encourage and support emergency planning efforts at state and local levels. 52 F.R. 38344 (1987); Section 370.1, Title 40, C.F.R. By explicit terms, the EPCRA does not preempt state or local law. Section 11041(a), Title 40, U.S.Code. In fact, the Act anticipates that state and local authorities will expand upon federal requirements. Section 11041(b) of the EPCRA provides that:

“(b) Effect on MSDS requirements.

“Any State or local law enacted after August 1, 1985, which requires the submission of a material safety data sheet [MSDS] from facility owners or operators shall require that the data sheet be identical in content and format to the data sheet required under subsection (a) of section 11021 of this title. In addition, a State or locality may require the submission of information [623]*623which is supplemental to the information required on the data sheet (including information on the location and quantity of hazardous chemicals present at the facility), through additional sheets attached to the data sheet or such other means as the State or locality considers appropriate.” (Emphasis added.)

A common theme that permeates the federal Act and regulations adopted under the Act is that chemical disasters are ultimately state and local problems, and state and local authorities should have significant flexibility and latitude in planning for potential problems. The United States Environmental Protection Agency (“EPA”), in discussing the integration of the federal Act with state and local programs, explained that:

“ * * * EPA encourages States to modify their community right-to-know requirements to accommodate Title III without eliminating additional requirements that are beneficial to State or local needs. * * * To the extent possible in this final rule, the Agency has attempted to provide flexibility for State and local implementation and integration with their existing programs.

tt * * *

“In the final [inventory reporting] rule, EPA has tried to provide as much flexibility as possible to the local and State officials who must implement this program, while at the same time provide a degree of standardization to the regulated community and ensure that statutory requirements are met. EPA has thus revised the regulations to specify the circumstances under which a State or local form can be used in lieu of the Tier I and Tier II forms published today. Revised §§ 370.40 and 370.41 of the final rule state that facilities will meet the Section 312 requirements if they submit the published form, or any State or local form that contains identical content. ‘Identical content’ means that, at a minimum, the same information requested in the form published in today’s final rule must be requested in some portion of the State form. States may, in addition, use the form as published today but add supplemental questions, either interspersed throughout the form or attached at the end.” (Emphasis added.) 52 F.R. 38357 (1987).

Further, in addressing the design and content of inventory forms, and, in particular, the utilization of a site plan (map) identifying where certain hazardous chemicals are located, the EPA stated, in part, that:

“EPA believes that additional requirements for location information, such as site plans or quadrants or grid systems, may be useful on a site-by-site basis, but are not necessary for each facility. If a State or local government desires such additional information, it may require it to be submitted [624]*624under State or local law as a supplement to the federal form. * * * ” (Emphasis added.) Id. at 38356.

R.C. Chapter 3750 parallels much of the EPCRA. However, in enacting R.C. Chapter 3750, the General Assembly was very much aware of the flexibility and autonomy that the federal program granted the states. Specifically, R.C. 3750.02(B)(1)(e) provides that the commission may establish its own hazardous chemical inventory forms and prescribe the information that must be included in these forms. This subsection further provides that under certain circumstances the commission shall require owners and operators “to submit any additional information required by the commission’s inventory form on an attachment to the federal form.” (Emphasis added.)

Literally construed, R.C. 3750.02(B)(1)(e) allows the commission to adopt rules that require information that is in addition to that required under federal law. Indeed, this information may take the form of a map identifying where certain hazardous chemicals are located.

Additional grants of rule-making authority are set forth in R.C. 3750.-02(B)(2) and 3750.03(E)(5). R.C. 3750.03(E)(5) authorizes local emergency planning committees to adopt rules “for the reporting or providing of information regarding locations where those [extremely hazardous] substances or [hazardous] chemicals are stored at those facilities * * * that are more stringent

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Bluebook (online)
597 N.E.2d 487, 64 Ohio St. 3d 619, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ohio-chamber-of-commerce-v-state-emergency-response-commission-ohio-1992.