West Virginia v. Ohio Hazardous Waste Facility Approval Board

502 N.E.2d 625, 28 Ohio St. 3d 83, 28 Ohio B. 179, 17 Envtl. L. Rep. (Envtl. Law Inst.) 20675, 1986 Ohio LEXIS 799
CourtOhio Supreme Court
DecidedDecember 24, 1986
DocketNo. 86-153
StatusPublished
Cited by26 cases

This text of 502 N.E.2d 625 (West Virginia v. Ohio Hazardous Waste Facility Approval Board) 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
West Virginia v. Ohio Hazardous Waste Facility Approval Board, 502 N.E.2d 625, 28 Ohio St. 3d 83, 28 Ohio B. 179, 17 Envtl. L. Rep. (Envtl. Law Inst.) 20675, 1986 Ohio LEXIS 799 (Ohio 1986).

Opinions

Per Curiam.

Appellants first argue that the applicant for a hazardous waste facility permit is required by R.C. 3734.05(C)(6)(c) to produce evidence of alternative technologies in order to prove that its facility represents the minimum adverse environmental impact. If it does not, the board may not issue the permit. Although this proposition is certainly correct, we find that it has no application to the instant cause for the following reasons.

R.C. 3734.05(C)(6) provides:

“The board shall not approve an application for a hazardous waste facility installation and operation permit unless it finds and determines:
“(c) That the facility represents the minimum adverse environmental impact, considering the state of available technology and the nature and economics of various alternatives, and other pertinent considerations.”

Appellants contend that the board illegally relieved the applicant WTI of its burden to prove minimal impact and to adduce evidence of alternative technology. We disagree.

In its order, the board acknowledged that the statute normally would require the board to evaluate the nature and economics of alternative technologies to determine whether a more advanced, more environmentally protective technology can and should be utilized. We agree. We also concur with the board’s statement that where an applicant demonstrates that the technology it proposes is the most advanced, most environmentally protective technology available, no further examination of other technologies is necessary. The board’s determination that the proposed technology was the most advanced is itself a finding that alternative [85]*85technologies were inferior, thereby fulfilling the requirement for such a finding under the above statute. The board should not be required to waste its time evaluating systems demonstrated to be inferior.

We also reject appellants’ contention that the board improperly failed to consider alternative sites for the proposed facility. R.C. 3734.05 contains no requirement that the board consider alternative sites in every case, as appellants propose. The board must consider alternative sites only if it deems such evidence to be a “pertinent consideration” under R.C. 3734.05(C)(6)(c), but it is under no statutory obligation to do so. In the cause sub judice, the board did consider the appropriateness of the proposed location, and decided not to require additional siting information. This court will not substitute its judgment for that of the board, especially in areas of administrative expertise. Dudukovich v. Housing Authority (1979), 58 Ohio St. 2d 202, 207 [12 O.O.3d 198].

Appellants next challenge the board’s order on the ground that the board failed to adequately address the questions of whether the proposed facility represents the minimum risk of contamination of ground and surface waters, fires or explosions, and transportation accidents in accordance with the requirements of R.C. 3734.05(C)(6)(d).1 Appellants also contend that the board failed to determine properly the nature and volume of the waste to be treated and stored at the facility as mandated by R.C. 3734.05(C)(6)(a). We cannot agree. Our careful review of the pertinent portions of the record and the board’s lengthy order reveals that the board’s findings on these matters are in fact supported by substantial, reliable and probative evidence and are in accordance with law. We are bound to defer to the board’s interpretation and application of R.C. 3734.05 as the agency charged with implementation of that statute. Where the board’s interpretation and application are lawful and supported by the requisite degree of evidence, its decision will not be disturbed. R.C. 3734.05(C)(7); Columbus v. Pub. Util. Comm. (1950), 154 Ohio St. 107, 119 [42 O.O. 186].

Appellants next contend that the board violated R.C. 3734.05(C)(3)(a)2 [86]*86and deprived appellants of due process by limiting oral testimony to five minutes per witness. In rejecting this argument, we first note that the above statute merely requires that an opportunity for oral or written comments be provided. No particular duration for oral testimony is mandated. Under the circumstances of this case, we do not find that the five-minute limitation is unreasonable, given the fact that even with this restriction, the hearing lasted almost eight hours. Moreover, there was no restriction whatsoever on written comments, which were invited by the hearing officer. In sum, we find that the board afforded a reasonable opportunity for all interested persons to make their views known to the board. Lastly, we remark that there is no constitutional guarantee of a due process right to present oral testimony at a public hearing. Federal Communications Comm. v. WJR (1949), 337 U.S. 265.

[85]*85“Upon receipt of the completed application for a hazardous waste facility installation and operation permit and a preliminary determination by the staff of the environmental protection agency that that application appears to comply with agéncy rules and to meet the performance standards set forth in divisions (D), (I), and (J) of section 3734.12 of the Revised Code, [86]*86the director of environmental protection shall transmit the application to the hazardous waste facility board, which shall:
“(a) Promptly fix a date for public hearing thereon, not fewer than sixty nor more than ninety days after receipt of the completed application. At the public hearing, any person may submit written or oral comments or objections to the approval or disapproval of the application. * * *"

The next argument posed by appellants is whether the board erred by allowing a former employee of the Ohio EPA to serve as hearing examiner at the adjudication hearing, to which the EPA was a party. Appellants maintain that the hearing examiner was biased by virtue of his former employment, and that they were thereby prejudiced in the presentation of their cause. For the reasons that follow, we reject this contention.

It is well-settled that a reviewing court must presume that the decision of an administrative agency is valid and was reached in a sound manner. See, e.g., Cleveland v. Budget Comm. (1977), 50 Ohio St. 2d 97, 99 [4 O.O.3d 207]. This presumption imposes upon appellants the burden of proving their contention that the hearing examiner in this cause was biased, partial or prejudiced to such a degree that his presence adversely affected the board’s decision. Ohio Motor Vehicle Dealers Bd. v. Central Cadillac Co. (1984), 14 Ohio St. 3d 64, 67. Appellants rely on the examiner’s former employment with the EPA at the time WTI’s application was received as the sole support for an inference of bias. We do not consider this solitary factor sufficient to overcome the presumption of the integrity of the proceedings below.

Appellants’ next argument alleges that the board committed prejudicial error when it failed to adopt the recommendations of the hearing examiner without articulating its reasons therefor. This contention is baseless. The board is under no duty to adopt the hearing examiner’s recommendation. R.C.

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Bluebook (online)
502 N.E.2d 625, 28 Ohio St. 3d 83, 28 Ohio B. 179, 17 Envtl. L. Rep. (Envtl. Law Inst.) 20675, 1986 Ohio LEXIS 799, Counsel Stack Legal Research, https://law.counselstack.com/opinion/west-virginia-v-ohio-hazardous-waste-facility-approval-board-ohio-1986.