[Cite as Albany v. Butler, 2018-Ohio-660.]


                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

The Village of Albany, Ohio,                       :

                 Appellant-Appellant,              :           No. 17AP-277
                                                           (ERAC No. 16-6876)
v.                                                 :
                                                        (REGULAR CALENDAR)
Craig Butler, Director of the                      :
Environmental Protection Agency and
Alexander Local School District,                   :

                 Appellees-Appellees.              :




                                             D E C I S I O N

                                    Rendered on February 22, 2018


                 On brief: Lavelle and Associates, and Robert R.
                 Rittenhouse; Robe Law Office, and Scott M. Robe, for
                 appellant. Argued: Robert R. Rittenhouse.

                 On brief: Michael DeWine, Attorney General, and Nicole
                 Candelora-Norman, for appellee Craig Butler, Director of
                 Environmental Protection Agency. Argued:          Nicole
                 Candelora-Norman.

                 On brief: Bricker & Eckler LLP, Christopher L. McCloskey,
                 Christine Rideout Schirra, Desmond J. Cullimore, and
                 Tarik M. Kershah, for appellee Alexander Local School
                 District. Argued: Desmond J. Cullimore.

                APPEAL from the Environmental Review Appeals Commission
DORRIAN, J.
        {¶ 1} Appellant, the Village of Albany, Ohio ("Village"), appeals from an order of
the Environmental Review Appeals Commission of Ohio ("ERAC") granting a motion to
dismiss for lack of standing filed by appellee Alexander Local School District ("School
District") in an appeal to ERAC from a permit-to-install ("PTI") issued by appellee Craig
Butler, Director ("Director") of the Ohio Environmental Protection Agency ("OEPA"). For
the reasons that follow, we affirm.
No. 17AP-277                                                                              2


I. Facts and Procedural History
       {¶ 2} The Village is located in Athens County, Ohio; pursuant to an
intergovernmental agreement between the Village and Athens County, the Village agreed
to provide wastewater treatment service to an area defined as the Greater Albany Service
Area, which included properties outside the Village's corporate limits. The School District
is located in part in Athens County, and a portion of the School District's property is
located outside the corporate limits of the Village but within the Greater Albany Service
Area. In 2004, the Village enacted sewer use regulations providing, in relevant part, that
no private sewage disposal system could be constructed in the area within the jurisdiction
of the Village unless no public sanitary sewer was available. The regulations further
provided that if a public sanitary sewer became available to a property served by a private
sewage disposal system, a connection would be made to the public sanitary sewer and the
private sewage system would be abandoned. Also in 2004, the School District undertook
renovations at a facility on Ayers Road and, as part of the renovations, the Village and the
School District entered into an agreement to extend public sewer lines and install a public
sewer tap at that location.
       {¶ 3} In 2010, the Village enacted an ordinance providing that public sewer taps
would not be provided outside the Village unless the property served by the tap was
annexed into the Village.
       {¶ 4} In 2015, the School District began planning construction of a wellness
center at its Ayers Road facility. The School District submitted an initial PTI application
to OEPA on August 12, 2015 indicating that the new wellness center would connect to the
public sanitary sewer system. The Village advised the School District and OEPA that it
would not permit the School District to connect the wellness center to the public sanitary
sewer unless the property was annexed into the Village. The School District then filed an
amended PTI application with OEPA on February 22, 2016, seeking to install an on-site
sewage treatment system for the wellness center incorporating a septic tank and leach
field. On April 13, 2016, the Director granted the School District a PTI for the on-site
sewage treatment system.
       {¶ 5} The Village filed a notice of appeal of the PTI with ERAC on May 12, 2016.
On November 14, 2016, the School District filed a motion to dismiss the appeal for lack of
standing. ERAC heard oral argument on the motion on February 15, 2017. On March 22,
No. 17AP-277                                                                                3


2017, ERAC issued a ruling granting the School District's motion to dismiss, based on its
conclusion that the Village failed to establish that it was aggrieved or adversely affected by
the Director's issuance of the PTI.
II. Assignment of Error
       {¶ 6} The Village appeals and assigns the following single assignment of error for
our review:
               The Environmental Review Appeals Commission erred in
               determined [sic] that the Appellant lacked standing in
               bringing its appeal.

III. Discussion
       {¶ 7} The Village argues in its sole assignment of error that ERAC erred by
finding it lacked standing to appeal the Director's issuance of the PTI. In reviewing an
appeal from an ERAC order, a court of appeals "shall affirm the order complained of in
the appeal if it finds, 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." R.C. 3745.06.
A. Standing to appeal to ERAC
       {¶ 8} Standing is a threshold issue that must be resolved before an appeal to
ERAC may proceed. Helms v. Koncelik, 10th Dist. No. 08AP-323, 2008-Ohio-5073, ¶ 22,
citing New Boston Coke Corp. v. Tyler, 32 Ohio St.3d 216, 217 (1987). The challenger
seeking to appeal to ERAC bears the burden of demonstrating that it has standing.
Olmstead Falls v. Jones, 152 Ohio App.3d 282, 2003-Ohio-1512, ¶ 21 (10th Dist.). R.C.
Chapter 3745 provides two avenues of appeal to ERAC. First, pursuant to R.C. 3745.04(B)
"[a]ny person who was a party to a proceeding before the director of environmental
protection may participate in an appeal to [ERAC] for an order vacating or modifying the
action of the director or a local board of health, or ordering the director or board of health
to perform an act." Second, pursuant to R.C. 3745.07, when the director of environmental
protection acts without issuing a proposed action, "any person who would be aggrieved or
adversely affected" by the director's action may appeal to ERAC.
       {¶ 9} This court has interpreted R.C. 3745.04(B) to hold that "the statutory
language 'party to a proceeding before the director' encompassed 'any person affected by
the proposed action who appears in person, or by his attorney, and presents his position,
arguments, or contentions orally or in writing, or who offers or examines witnesses or
No. 17AP-277                                                                                               4


presents evidence tending to show that said proposed rule, amendment or rescission, if
adopted or effectuated, will be unreasonable or unlawful.' " Stark-Tuscarawas-Wayne
Joint Solid Waste Mgt. Dist. v. Republic Waste Servs. of Ohio II, LLC, 10th Dist. No.
07AP-599, 2009-Ohio-2143, ¶ 22, quoting Cincinnati Gas & Elec. Co. v. Whitman, 10th
Dist. No. 74AP-151 (Nov. 19, 1974). Accordingly, we employ a two-part test to determine
whether a person or entity is a party for purposes of R.C. 3745.04(B): (1) did the person or
entity appear before the director and present arguments in writing or otherwise, and
(2) was the person or entity affected by the action or proposed action. Girard Bd. of
Health v. Korleski, 193 Ohio App.3d 309, 2011-Ohio-1385, ¶ 13 (10th Dist.).
         {¶ 10} ERAC concluded the Village satisfied the first element of the two-part test
because it expressed its position to OEPA in response to the School District's initial PTI
application. That conclusion has not been challenged on appeal. Therefore, we will limit
our analysis to whether ERAC erred by finding the Village failed to demonstrate that it
was affected by the Director's order issuing the PTI.
         {¶ 11} An order affects a person or entity if (1) it will cause injury in fact, economic
or otherwise, and (2) the interest sought to be protected is within the realm of interests
regulated or protected by the statute at issue. Girard Bd. of Health at ¶ 15. The person or
entity must show that he or she will suffer a specific injury from the challenged action and
that the injury is likely to be redressed if the challenged action is invalidated. Id. The
alleged injury must be concrete, rather than abstract or suspected. Id. An alleged injury
may be actual or threatened, but a person or entity alleging a threatened injury must
demonstrate a realistic danger arising from the challenged action. Republic Waste at
¶ 24.1
         {¶ 12} The Village asserts it was or will be injured in three ways by the Director's
issuance of the PTI. First, the Village claims it suffered economic damages as a result of
the PTI. Second, the Village claims it will be injured due to potential adverse
environmental effects. Third, the Village claims it was injured by the PTI because it
resulted in a violation of the Village's sewer use regulations. ERAC found each of these




1In Republic Waste, this court stated that it has "employed the same analysis in determining whether an
appellant has been or will be 'affected' under R.C. 3745.04(B) or has been or will be 'aggrieved or adversely
affected' under R.C. 3745.07." Republic Waste at ¶ 24. Thus, under either statutory section, our analysis of
the Village's standing to appeal to ERAC would be the same.
No. 17AP-277                                                                               5


alleged injuries insufficient to confer standing on the Village. We will consider ERAC's
conclusion as to each alleged injury in turn.


B. Lost revenue
       {¶ 13} The Village asserts it suffered economic damage as a result of the issuance
of the PTI because the School District disconnected an existing weight room facility from
the Village's sewer system after receiving the PTI. The Village claims this resulted in less
discharge into the Village's sewer system, which led to a loss of revenue for the Village.
Citing this court's decision in Johnson's Island Prop. Owners Assn. v. Schregardus, 10th
Dist. No. 96APH10-1330 (June 30, 1997), the Village argues that it was affected by
issuance of the PTI as a result of this immediate economic damage.
       {¶ 14} ERAC rejected the Village's lost revenue argument, concluding that, even if
issuance of the PTI caused the Village to lose revenue, the type of lost revenue asserted by
the Village was not within the realm of interests protected by the PTI program and would
not be redressed if ERAC invalidated the PTI. ERAC concluded that Ohio Adm.Code
Chapter 3745-42, under which the PTI was issued, was intended to assure the attainment
or maintenance of water quality in Ohio. While acknowledging that Ohio Adm.Code
3745-42-04 permitted the Director to consider social or economic impacts in determining
whether to grant a PTI, ERAC concluded that those social or economic impacts were
limited to those resulting from water pollutants or other adverse environmental effects
resulting from issuance of the PTI. ERAC also concluded that the Village's alleged lost
revenue would not be redressed by an order vacating the PTI, because the School District
could choose to abandon the wellness center project and existing weight room if the PTI
was not granted.
       {¶ 15} As noted, the Village cites this court's decision in Johnson's Island in
support of its claim that economic damages may be sufficient to establish standing.
Although the Johnson's Island decision recognizes that, under the first prong of the
standing analysis, a person or entity must "demonstrate that the challenged action has
caused or will cause him or her injury in fact, economic or otherwise," the facts of the case
did not involve a claim of economic damages. In Johnson's Island, a property owners'
association sought to appeal the issuance of PTI authorizing construction of a sanitary
sewer system on Johnson's Island in Sandusky Bay. This court found that members of the
No. 17AP-277                                                                               6


association expressed concerns about "(1) the possible breakage of an eight-inch
pressurized line to be laid along the causeway leading to Johnson's Island, (2) the
possibility of overflows and odors emanating from the pump stations and manholes
created by the construction of the sewer system, (3) possible damage to a historic
cemetery for Confederate officers caused by the construction of the sewer system, and
(4) the effect the construction could have on the Lake Erie watersnake habitat, which is
indigenous to the island." Johnson's Island. Members of the association also indicated
that some of their homes had been shaken by blasting that was associated with
construction of a portion of the sewer. Thus, none of the claimed injuries in Johnson's
Island were based on economic damages and this court's finding that the association
established that its members suffered injury in fact for purposes of standing analysis is
not directly relevant to the School District's claim of lost revenue.
       {¶ 16} The PTI at issue in this appeal was issued on April 13, 2016. At the time the
PTI was issued, the Ohio Administrative Code provided that the Director was required to
consider the following criteria in determining whether to issue a PTI:
               The director shall issue a permit to install or plan approval on
               the basis of the information appearing in the application or
               information gathered by or furnished to the Ohio
               environmental protection agency, or both, if he determines
               that the installation or modification and operation of the
               disposal system or land application of sludge will:

               (1) Not prevent or interfere with the attainment or
               maintenance of applicable water quality standards contained
               in Chapter 3745-1 of the Administrative Code;

               (2) Not result in a violation of any applicable laws; and

               (3) Employ the best available technology.

Former Ohio Adm.Code 3745-42-04(A), effective Oct. 17, 2003.2              The water quality
standards contained in Chapter 3745-1 of the Administrative Code are intended "to
establish minimum water quality requirements for all surface waters of the state, thereby
protecting public health and welfare; and to enhance, improve and maintain water quality
as provided under the laws of the state of Ohio, section 6111.041 of the Revised Code, the
federal Clean Water Act, and rules adopted thereunder." Ohio Adm.Code 3745-1-01(A).
2 We note that Ohio Adm.Code 3745-42-04 has been amended, effective March 31, 2017, which was
subsequent to issuance of the PTI and the ERAC decision at issue in the present appeal.
No. 17AP-277                                                                              7


In light of these regulatory provisions, we cannot conclude that ERAC erred by finding
that "the mere loss of revenue for a third-party public sewer system, without any evidence
of associated harm to water quality" was not within the sphere of interests protected or
regulated under the PTI process. (Emphasis added.) (Mar. 22, 2017 ERAC Order at ¶ 47.)
C. Adverse environmental impact
       {¶ 17} The Village further argues it was injured by the PTI due to potential
degradation of the water quality in the watershed located downstream from the School
District's property. The Village claims its sewer system utilizes the same stream and that
further pollution of the stream would adversely affect the Village's discharge limitation.
In support of this argument, the Village cites an affidavit from Gary Silcott, professional
engineer for the Village, in which Silcott averred that permitting an on-site sewage system
under the PTI would result in a lower degree of sewage treatment and a greater burden to
the discharge stream.
       {¶ 18} ERAC rejected the Village's claim that it had standing based on the alleged
potential adverse environmental impact resulting from installation of the on-site system
under the PTI. In its decision, ERAC noted that at oral argument the Village's counsel
conceded the alleged adverse impact would only occur in the event of a failure or
malfunction of the School District's on-site treatment system. ERAC held that, absent
evidence to the contrary, it must presume that a permit holder will comply with a permit.
ERAC noted that the Silcott affidavit did not assert there were any flaws in the design of
the School District's system as authorized under the PTI, nor address the potential for
failure or malfunction of that system. Thus, ERAC held that Silcott's assertion regarding a
lower degree of sewage treatment and increased burden on the discharge stream was an
unsupported conclusory statement. Finding the Village failed to present evidence that the
School District would be unable to comply with the terms of the PTI, ERAC concluded the
Village failed to establish that issuance of the PTI would result in injury to the Village
through a negative impact on water quality within the Village or the Village's ability to
operate its own sewage system.
       {¶ 19} On appeal, the Village argues this court held in Johnson's Island that even if
a threatened injury is slight and borders on overly speculative, it may support a
conclusion that a person or entity has standing before ERAC.          As discussed above,
however, the homeowners in Johnson's Island claimed several forms of injury or potential
No. 17AP-277                                                                               8


injury. The court found that some of the alleged potential injuries bordered on overly
speculative, but that the evidence, when viewed in its totality, supported a finding that the
homeowners had suffered an injury in fact. Johnson's Island. In this case, by contrast, the
Village only alleges one form of potential environmental impact, which it admitted before
ERAC would only result if the School District's on-site sewage system malfunctioned. The
Village failed to support the claim of potential injury with any evidence establishing the
likelihood of such a malfunction. Thus, unlike in Johnson's Island, even when viewed in
its totality, the Village's evidence regarding adverse environmental effects failed to
establish that it was likely to suffer an injury in fact as a result of issuance of the PTI.
Based on the evidence presented to ERAC related to the possible adverse environmental
impact, we cannot conclude ERAC erred by finding the Village failed to establish it
suffered or would suffer an injury in fact sufficient to confer standing to challenge the
issuance of the PTI.
D. Violation of sewer use regulations
       {¶ 20} Finally, the Village asserts it suffered injury because the PTI resulted in a
violation of its sewer use regulations. Specifically, the Village asserts that if the School
District constructs an on-site sewage system it will result in a violation of a provision of
the Village's regulations prohibiting construction of a private on-site sewage system when
a property is already being served by the public sewer system and requiring that a
property owner must connect to the public sewer system when it is available to that
property. The Village claims the PTI results in "erosion of the respect and enforcement of
[the] Village's local laws" that "jeopardizes the Village's continued ability to operate its
public sewer system." (Appellant's Brief at 21.)
       {¶ 21} ERAC rejected this argument, finding the Village failed to present any
evidence demonstrating that the Director's issuance of the PTI prevented the Village from
enforcing its ordinances through the courts or other venues. ERAC further concluded the
PTI was based on the Director's conclusion that the proposed on-site sewage system
complied with water pollution control laws, but did not relieve the School District from
complying with local laws and regulations.
       {¶ 22} In Olmstead Falls, the city of Olmstead Falls sought to appeal a decision by
OEPA to waive its authority to act on a request for certification under the federal Clean
Water Act related to a permit to discharge materials into United States waters during an
No. 17AP-277                                                                               9


expansion project at the Cleveland Hopkins International Airport. Olmstead Falls at ¶ 2.
Considering the issue of standing on appeal, this court concluded that Olmstead Falls
failed to demonstrate how it would be injured by the discharges allowed under the permit.
The court noted that Olmstead Falls was located 2.2 miles from the airport, but concluded
that "being a city within close proximity of the airport is not a concrete or specific injury
as required to demonstrate standing." Id. at ¶ 29. Olmstead Falls claimed it was affected
by OEPA's waiver because, as a city, it had responsibility for providing for public health
and safety, but the court rejected that argument, holding that "merely being a city does
not confer standing without demonstrating the adverse impact or injury resulting from
[OEPA's waiver]." Id. at ¶ 30.
       {¶ 23} In the present case, the Village's argument that the PTI erodes respect for its
local regulations is analogous to the city of Olmstead Falls' claim that it had standing
based on its responsibility to provide for public health. The fact that the Village has
authority to enact local sewer use regulations and an interest in ensuring that those
regulations are followed is not sufficient to confer standing to challenge the PTI, absent a
showing of specific injury. Moreover, with respect to the Village's argument that the PTI
authorizes the School District to violate the local sewer use regulations, the PTI expressly
provides that "[i]ssuance of this permit does not relieve you of the duty of complying with
all applicable federal, state, and local laws, ordinances, and regulations." (Apr. 13, 2016
OEPA, Application No. 1082296, Permit to Install at 2.) Accordingly, we cannot conclude
ERAC erred by finding the Village failed to demonstrate it suffered injury from the
issuance of the PTI by preventing the Village from enforcing its sewer use regulations.
IV. Conclusion
       {¶ 24} For the foregoing reasons, we overrule the Village's sole assignment of error
and affirm the order of the Environmental Review Appeals Commission.
                                                                            Order affirmed.
                          BROWN, P.J., and TYACK, J., concur.
