[Cite as Martin Marietta Materials, Inc. v. Butler, 2014-Ohio-4822.]

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT



Martin Marietta Materials, Inc.,                        :                  No. 13AP-713
                                                                          (ERAC No. 096484)
and                                                     :                  No. 13AP-736
                                                                          (ERAC No. 096485)
Ohio Aggregates and                                     :                  No. 13AP-737
Industrial Minerals Association,                                          (ERAC No. 256486)
                                                        :                  No. 13AP-739
                 Appellants-Appellees,                                    (ERAC No. 256487)
                                                        :                  No. 13AP-740
v.                                                                        (ERAC No. 096491)
                                                        :                  No. 13AP-741
[Craig W. Butler], Director of                                            (ERAC No. 256492)
Environmental Protection,                               :                  No. 13AP-742
                                                                         (ERAC No. 11-09655)
                 Appellee-Appellant.                    :                  No. 13AP-743
                                                                         (ERAC No. 11-256556)
                                                        :              (REGULAR CALENDAR)



                                          D E C I S I O N

                                     Rendered on October 30, 2014


                 Bott Law Group LLC, April Bott Moore, Sarah L. Herbert,
                 and MacDonald W. Taylor, for appellee Martin Marietta
                 Materials, Inc.

                 Eastman & Smith Ltd., and Brian P. Barger, for appellee
                 Ohio Aggregates and Industrial Minerals Association.

                 Michael DeWine, Attorney General, Wednesday M. Szollosi,
                 and Elizabeth R. Ewing, for appellant.

                APPEALS from the Environmental Review Appeals Commission

SADLER, P.J.
        {¶ 1} Appellant, Craig Butler, Director of Environmental Protection ("appellant"
or "director"), appeals from an order of the Environmental Review Appeals Commission
Nos. 13AP-713, 13AP-736, 13AP-737, 13AP-739, 13AP-740,
13AP-741, 13AP-742, and 13AP-743                                                          2


("ERAC") concluding the director acted unlawfully in failing to apply R.C. 3704.03(T),
that went into effect on August 3, 2006, to the permits requested by appellee Martin
Marietta Materials, Inc. ("Martin Marietta"). For the reasons that follow, we reverse
ERAC's order.
I. BACKGROUND
       {¶ 2} Martin Marietta, a producer of construction aggregates, operates several
facilities throughout Ohio. As is relevant to this action, the director issued Permits to
Install and Operate ("PTIOs") to four of Martin Marietta's facilities located in Cedarville,
Troy, Fairborn, and Hamilton, Ohio. Appellees Martin Marietta and Ohio Aggregates and
Industrial Minerals Association filed notices of appeal with ERAC challenging certain
terms and conditions included in those PTIOs. Specifically, appellees challenged the
particulate emission ("PE") limitations applicable to the air contaminant sources
identified in the PTIOs as "storage piles" and "roadways." Appellees argued the PE
limitations in the PTIOs were unlawful because they conflicted with R.C. 3704.03(T),
which proscribes the manner in which the director must express best available technology
requirements. The director argued, in relevant part, that the current version of R.C.
3704.03(T) is inapplicable to the PTIOs issued for the Cedarville, Troy, and Fairborn
facilities. It was the director's position that the PTIOs for these facilities were renewal
permits, rather than new or modified permits, such that current R.C. 3704.03(T) was
inapplicable. Without deciding whether the PTIOs were new or renewals, ERAC found
that current R.C. 3704.03(T) applied regardless.      As such, ERAC concluded the PE
limitations contained in the PTIOs were unlawful.
II. ASSIGNMENT OF ERROR
       {¶ 3} This appeal followed, and the director brings the following assignment of
error for our review:
              The Environmental Review Appeals Commission erred as a
              matter of law when it found that the current version of R.C.
              3704.03(T) applies to renewal permits to install and operate.
Nos. 13AP-713, 13AP-736, 13AP-737, 13AP-739, 13AP-740,
13AP-741, 13AP-742, and 13AP-743                                                          3


III. DISCUSSION
       {¶ 4} In reviewing ERAC orders, R.C. 3745.06 provides that this court "shall
affirm the order" if we find "upon consideration of the entire record and such additional
evidence as the court has admitted, that the order is supported by reliable, probative, and
substantial evidence and is in accordance with law. In the absence of such a finding, [the
court] shall reverse, vacate, or modify the order or make such other ruling as is supported
by reliable, probative, and substantial evidence and is in accordance with law." "Reliable
evidence is evidence which can be trusted. In order for evidence to be reliable, there must
be a reasonable probability that it is true. Probative evidence is evidence which tends to
prove the issue in question, while substantial evidence is evidence which carries weight, or
evidence which has importance and value." Perrysburg v. Schregardus, 10th Dist. No.
00AP-1403 (Nov. 13, 2001), citing Our Place, Inc. v. Ohio Liquor Control Comm., 63 Ohio
St.3d 570, 571 (1992). In determining whether an ERAC order is supported by reliable,
probative, and substantial evidence, this court must weigh and evaluate the credibility of
the evidence. Parents Protecting Children v. Korleski, 10th Dist. No. 09AP-48, 2009-
Ohio-4549, ¶ 10. However, in doing so, we must remember the fact that the General
Assembly created these administrative bodies to facilitate certain areas of the law by
placing the administration of those areas before members with special expertise, and,
thus, we afford due deference to ERAC's interpretation of rules and regulations and
resolution of evidentiary conflicts. Id.
       {¶ 5} The Ohio Rules of Civil Procedure apply with some exceptions to all courts
of the state but not to administrative bodies. Civ.R. 1(A); Village of Harbor View v.
Jones, 10th Dist. No. 10AP-356, 2010-Ohio-6533, ¶ 54. Therefore, Civ.R. 56 may guide
ERAC when it decides motions for summary judgment, but the rule does not bind ERAC's
review. Waste Mgmt. of Ohio, Inc. v. Bd. of Health of the City of Cincinnati, 159 Ohio
App.3d 806, 2005-Ohio-1153, ¶ 93 (10th Dist.). To prevail on a motion for summary
judgment, the moving party must demonstrate that, when the evidence is construed most
strongly in favor of the nonmoving party, no genuine issue of material fact remains to be
litigated and that it is entitled to judgment as a matter of law. Civ.R. 56(C). A genuine
issue of material fact exists unless it is clear that reasonable minds can come to but one
Nos. 13AP-713, 13AP-736, 13AP-737, 13AP-739, 13AP-740,
13AP-741, 13AP-742, and 13AP-743                                                            4


conclusion and that conclusion is adverse to the nonmoving party. Williams v. First
United Church of Christ, 37 Ohio St.2d 150, 151 (1974).
       {¶ 6} The appeal before ERAC concerned four PTIOs. On appeal to this court, the
director agrees that the current version of R.C. 3704.03(T) applies to the PTIO issued to
the Hamilton facility, thus, the director challenges ERAC's decision only as it relates to the
PTIOs issued to the Cedarville, Troy, and Fairborn facilities. Our discussion focuses
likewise.
       {¶ 7} R.C. 3704.03 provides in relevant part:
              The director of environmental protection may do any of the
              following:

              ***

              (T) Require new or modified air contaminant sources to
              install best available technology, but only in accordance with
              this division. With respect to permits issued pursuant to
              division (F) of this section beginning three years after
              August 3, 2006, best available technology for air contaminant
              sources and air contaminants emitted by those sources that
              are subject to standards adopted under section 112, Part C of
              Title I, and Part D of Title I of the federal Clean Air Act shall
              be equivalent to and no more stringent than those standards.
              For an air contaminant or precursor of an air contaminant for
              which a national ambient air quality standard has been
              adopted under the federal Clean Air Act, best available
              technology only shall be required to the extent required by
              rules adopted under Chapter 119. of the Revised Code for
              permit to install applications filed three or more years after
              August 3, 2006.

              Best available technology requirements established in rules
              adopted under this division shall be expressed only in one of
              the following ways that is most appropriate for the applicable
              source or source categories:

              (1) Work practices;

              (2) Source design characteristics or design efficiency of
              applicable air contaminant control devices;
Nos. 13AP-713, 13AP-736, 13AP-737, 13AP-739, 13AP-740,
13AP-741, 13AP-742, and 13AP-743                                                          5


              (3) Raw material specifications or throughput limitations
              averaged over a twelve-month rolling period;

              (4) Monthly allowable emissions averaged over a twelve-
              month rolling period.

              Best available technology requirements shall not apply to an
              air contaminant source that has the potential to emit, taking
              into account air pollution controls installed on the source, less
              than ten tons per year of emissions of an air contaminant or
              precursor of an air contaminant for which a national ambient
              air quality standard has been adopted under the federal Clean
              Air Act. In addition, best available technology requirements
              established in rules adopted under this division shall not
              apply to any existing, new, or modified air contaminant
              source that is subject to a plant-wide applicability limit that
              has been approved by the director. Further, best available
              technology requirements established in rules adopted under
              this division shall not apply to general permits issued prior to
              January 1, 2006, under rules adopted under this chapter.

              For permits to install issued three or more years after
              August 3, 2006, any new or modified air contaminant source
              that has the potential to emit, taking into account air pollution
              controls installed on the source, ten or more tons per year of
              volatile organic compounds or nitrogen oxides shall meet, at a
              minimum, the requirements of any applicable reasonably
              available control technology rule in effect as of January 1,
              2006, regardless of the location of the source.

       {¶ 8} The parties agree that current R.C. 3704.03(T) applies only to new or
modified permits and not to renewal permits. As indicated previously, though disputed,
ERAC did not determine whether the permits at issue were renewal or new permits, but,
instead, concluded that current R.C. 3704.03(T) applies regardless. As conceded by the
parties, given the plain language of R.C. 3704.03(T), such conclusion is in error.
Therefore, we sustain appellant's assignment of error. However, the parties dispute, as
they did before ERAC, whether or not the permits sought were renewal or new permits.
Because the record is not developed as to this issue, it is not one that we should decide in
the first instance, but, rather, it is one that ERAC should determine on remand.
       {¶ 9} Accordingly, we sustain appellants assignment of error.
Nos. 13AP-713, 13AP-736, 13AP-737, 13AP-739, 13AP-740,
13AP-741, 13AP-742, and 13AP-743                                                         6


IV. CONCLUSION
       {¶ 10} For the foregoing reasons, appellant's sole assignment of error is sustained,
the order of the Environmental Review Appeals Commission regarding the PTIO's issued
to the Cedarville, Troy, and Fairborn, Ohio facilities is reversed, and this matter is
remanded to that commission for further proceedings consistent with law and this
decision.
                                                                      Judgment reversed;
                                                                         cause remanded.

                           KLATT and DORRIAN, JJ., concur.
                        _____________________________
