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

627 N.E.2d 538, 68 Ohio St. 3d 377
CourtOhio Supreme Court
DecidedMarch 2, 1994
DocketNo. 92-989
StatusPublished
Cited by67 cases

This text of 627 N.E.2d 538 (State ex rel. Celebrezze v. National Lime & Stone Co.) 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
State ex rel. Celebrezze v. National Lime & Stone Co., 627 N.E.2d 538, 68 Ohio St. 3d 377 (Ohio 1994).

Opinions

Douglas, J.

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(1) 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, 197k * * *•” (Emphasis added.)

[381]*381Ohio 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 3745-31-05. The process of conducting a new source review by the OEPA involves a potentially complicated, costly, and time-consuming procedure. As part of the review, the OEPA determines whether the proposed new source conforms to applicable state and federal air pollution laws, and whether the new source is the best available technology. Id.

Essentially, the requirement of a PTI, with respect to a new source review, can be triggered by the “installation” or “modification” of an air contaminant source that was installed or modified after January 1, 1974. For the most part, a “modification” does not occur unless there is a physical change or deviation in the method of operation of an air contaminant which increases emissions allowable under applicable law, or results in the release of a contaminant into the air that was not previously emitted. Ohio Adm.Code 3745-31-OKJ). The precise focus in this case is not whether a “modification” has in fact occurred but, rather, whether the replacement of the Raymond mill in 1987 with a virtually identical mill constituted the “installation” of an air contaminant source, as that term is defined and set forth in relevant administrative rules.

Appellee asserts, and the court of appeals concluded, that the replacement Raymond mill was “installed,” as defined in Ohio Adm.Code 3745-31-01(1), and, therefore, the mill constituted a “new source of air pollutants” within the meaning of Ohio Adm.Code 3745-31-02(A). National and amici curiae extensively challenge the appellee’s and the court of appeals’ interpretation of Ohio Adm.Code 3745-31-02(A) and they especially take issue with the contention that the replacement of the like-kind Raymond mill amounted to the “installation” of a “new source” of air contaminants. National asserts that “installation,” as defined and used in the rules, does not include like-kind replacement of a piece of equipment which is a component of a complex manufacturing operation. National suggests that the OEPA should have focused on whether the replacement of the mill resulted in a “modification” of an air contaminant source as opposed to whether the replacement amounted to the “installation” of a new source of air contaminants.

In considering the parties’ contentions, the trial court determined that Ohio Adm.Code 3745-31-02(A) does not govern the replacement of any air contaminant source but, rather, requires a PTI only for the installation of a new source of air contaminants or the modification of an air contaminant source. The trial court [382]*382further concluded that the term “replacement” could easily have been included in the rules but, since it was not, the doctrine of expressio unius est exclusio alterius applies. We agree.

As set forth above, “install,” as defined in the administrative rules, means to construct, erect, locate, or affix any air contaminant source. Ohio Adm.Code 3745-31-01 does not, however, provide a definition of the terms “construct,” “erect,” “locate” or “affix.” According to Black’s Law Dictionary (6 Ed.1990) 542, “erect” and “construct” are synonymous terms. “Construct” is defined as “[t]o build; put together; make ready for use * * * [and] is distinguishable from ‘maintain,’ which means to keep up, to keep from change, to preserve.” Id., Black’s at 312. Further, “construction” is defined as “ * * * [t]he creation of something new, as distinguished from the repair or improvement of something already existing. * * * ” (Emphasis added.) Id. See, also, United, States v. Narragansett Improvement Co. (D.R.I.1983), 571 F.Supp. 688, 693 (“The uniform conclusion is that ‘construction’ imports the creation of something new and original that did not exist before.”). In addition, the word “locate” means “ * * * [t]o decide upon the place or direction to be occupied by something not yet in being * * *.” (Emphasis added.) Black’s at 939.

Literally construed, the word “installation,” as defined in Ohio Adm.Code 3745-31-01(1) and used in Ohio Adm.Code 3745-3l-02(A), connotes the establishment or formation of something that has yet to be in existence. The term, however, does not explicitly or implicitly refer to the replacement of a virtually identical (like-kind) component of a complicated manufacturing scheme.

In reaching our conclusion, we are conscious of the long-accepted principle that considerable deference should be accorded to an agency’s interpretation of rules the agency is required to administer. See State ex rel. Brown v. Dayton Malleable, Inc. (1982), 1 Ohio St.3d 151, 155, 1 OBR 185, 189, 438 N.E.2d 120, 123. See, also, Jones Metal Products Co. v. Walker (1972), 29 Ohio St.2d 173, 181, 58 C.C.2d 393, 398, 281 N.E.2d 1, 8.

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Cite This Page — Counsel Stack

Bluebook (online)
627 N.E.2d 538, 68 Ohio St. 3d 377, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-celebrezze-v-national-lime-stone-co-ohio-1994.