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Ohio EPA Must Follow Rulemaking Process for Water Pollutant Limit

Image of a creek

A limit on the release of pollutants into Fairfield County’s Blacklick Creek was at issue in a Supreme Court decision today. (Photo by ChristopherM/CC BY 3.0)

Image of a creek

A limit on the release of pollutants into Fairfield County’s Blacklick Creek was at issue in a Supreme Court decision today. (Photo by ChristopherM/CC BY 3.0)

The Ohio Environmental Protection Agency must abide by the state’s rulemaking process before implementing specific, technical pollutant limits for a body of water in the state, the Ohio Supreme Court held in a decision today.

The state EPA had included a new phosphorus limit in a 2006 discharge permit required by the federal Clean Water Act that was issued to a Fairfield County wastewater treatment plant. In an opinion written by Justice Judith Ann Lanzinger, the court ruled that the EPA must follow the procedures in R.C. Chapter 119, which requires public notice, public comment, a public hearing, and other protections before a rule can be imposed. The court concluded that this process must be completed before the state EPA submits the limit to the U.S. EPA for approval and incorporates the limit into a facility’s discharge permit.

The decision sets aside the phosphorus standard that was included in the permit for the Tussing Road Water Reclamation Facility in Pickerington and returns the case to the Ohio EPA for additional proceedings.

The Tenth District Court of Appeals also vacated the pollutant limit, but the Supreme Court did so for different reasons.

The Tussing Road plant, owned by Fairfield County, releases treated wastewater into Blacklick Creek, which is part of the Big Walnut Creek watershed. As mandated by the federal Clean Water Act, the facility must obtain a National Pollutant Discharge Elimination System (NPDES) permit from the Ohio EPA to discharge certain substances into the creek.

Based on the results of a survey, the Ohio EPA concluded that the Tussing Road plant was causing a negative environmental situation, which could lead to an overgrowth of aquatic weeds and algae and potentially causing pipes and filters to clog, interference with water recreation, and foul odors and taste.  
The state EPA renewed the county’s permit for the plant in June 2006, and for the first time added a limit on the discharge of phosphorus, which the county appealed to an environmental review commission, the Tenth District, and the Ohio Supreme Court.

Clean Water Act
Justice Lanzinger explained that the Clean Water Act controls and reduces water pollution by setting “technology-based effluent limitations” and establishing “water-quality standards.” Each state develops pollutant limits, or “total maximum daily loads” (TMDLs), for polluted waterways and submits them to the U.S. EPA for approval. Once federally approved, the state implements the standards. She noted that the state EPA on May 9, 2013, was developing TMDLs for about 86 bodies of water in Ohio.

TMDLs Are Rules
Justice Lanzinger reviewed the definition of “rule” in the administrative procedure statute. She reasoned that a TMDL is a “rule,” based on the law, because it is a “standard” with “a general and uniform operation.” It also creates new obligations on those affected.

“[A TMDL] does more than simply aid in the interpretation of existing rules or statutes,” she wrote. “Instead, it prescribes a legal standard that did not previously exist. As such, it must first be formally promulgated as a rule pursuant to R.C. Chapter 119 before it can be enforced against the general public.”

Rulemaking procedures “[ensure] that all stakeholders in the watershed have an opportunity to express their views on the wisdom of the proposal and to contest its legality if they so desire,” she explained.

Administrative Procedures
As a consequence of holding the phosphorus TMDL to be a rule, Justice Lanzinger wrote that the Ohio EPA must follow the rulemaking provisions in R.C. Chapter 119 before making the phosphorus limit part of the Tussing Road plant’s NPDES permit. Due process required notice and an opportunity to be heard.

“Because the TMDL did not undergo the rigors of rulemaking before being submitted to U.S. EPA, the stakeholders in the Big Walnut Creek watershed were denied meaningful review,” she added. “The first time the county had an opportunity to challenge the TMDL was after U.S. EPA had approved it and after Ohio EPA had applied the standards to the county in the … permit.”

She noted that the rulemaking process, described in R.C. 119.03, requires public notice, electronic filing of the rule with specific public offices, submission to the state legislature’s rule review committee, a full public hearing, along with other steps.

The phosphorus standard for the Tussing plant was vacated, and the case was remanded to the Ohio EPA.

The majority opinion was joined by Chief Justice Maureen O’Connor and Justices Paul E. Pfeifer, Judith L. French, and William M. O’Neill.

Justice Terrence O’Donnell agreed only with the court’s judgment in a concurring opinion joined by Justice Sharon L. Kennedy.

Justice O’Donnell stated that the TMDL lacks the general and uniform operation needed to categorize it as an administrative rule because it simply interprets a water-quality standard for one permit holder and for a specific part of a tributary. In his view, the General Assembly did not intend TMDLs to be subject to the state’s rulemaking procedures.

He explained that the state legislature directed the EPA by statute to engage in the rulemaking process as part of adopting water quality standards.

“In contrast to the water quality standards, the General Assembly has not expressly required a TMDL to be promulgated as an administrative rule, even though it provided other requirements for the development of TMDLs,” Justice O’Donnell wrote. “[A] TMDL does not represent a policy preference of Ohio EPA or a new water quality standard, but rather provides the factual and technological data, derived from observation and application of scientific principles, needed for Ohio EPA to implement the water quality standard.”

“Today’s majority decision is far-reaching in that Ohio EPA has issued 1,761 TMDLs for watercourses throughout Ohio, including 132 TMDLs for phosphorus alone,” he noted. “None apparently have been promulgated through R.C. Chapter 119 rulemaking, and thus the majority’s decision invalidates all of them, leaving the enforceability of numerous permits in question.” 

Pointing to recent toxic algae blooms in the western basin of Lake Erie near Toledo, at Grand Lake St. Marys, and at Buckeye Lake, Justice O’Donnell observed that the majority’s ruling will delay attempts to protect the state’s bodies of water from pollutants by requiring the Ohio EPA to go through lengthy rulemaking procedures.

Justice O’Donnell would have upheld the TMDL for the Tussing Road plant and would not have compelled the state EPA to submit TMDLs to administrative rulemaking before incorporating pollutant limits into a permit.

2013-1085. Fairfield Cty. Bd. of Commrs. v. Nally, Slip Opinion No. 2015-Ohio-991.

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