[Cite as Schrenk v. Butler, 2017-Ohio-8745.]


                             IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT

John Schrenk,                                    :

                 Appellant-Appellee,             :
                                                                 No. 16AP-504
v.                                               :            (ERAC No. 15-6851)

Craig W. Butler, Director                        :           (REGULAR CALENDAR)
Ohio Environmental
Protection Agency,                               :

                 Appellee-Appellant.             :



                                           D E C I S I O N

                                  Rendered on November 30, 2017


                 John Schrenk, pro se.

                 On brief: Michael DeWine, Attorney General, L. Scott
                 Helkowski, and Tasha N. Miracle, for appellant. Argued:
                 Tasha N. Miracle.

                        APPEAL from the Environmental Review Appeals
                                        Commission

BRUNNER, J.
        {¶ 1} Appellant here, appellee below, the Ohio Environmental Protection Agency
("OEPA"), appeals a decision of the Environmental Review Appeals Commission ("ERAC")
issued on June 8, 2016, which reversed in part and affirmed in part a decision by the
director of OEPA. The director's decision, which issued on June 10, 2015, had determined
to suspend John Schrenk's Class II Water Supply Operator Certificate and Class III
Wastewater Treatment Operator Certificate for a period of five years. Because we find
ERAC's criticisms of OEPA director's decision to be without merit, we now reverse and
reinstate the decision of OEPA's director.
No. 16AP-504                                                                            2


I. FACTS AND PROCEDURAL HISTORY
       {¶ 2} On April 11, 2014, OEPA sent a letter to Schrenk asserting that he had violated
record-keeping requirements for hours spent running and maintaining various water
supply and wastewater treatment facilities, had not spent sufficient hours inspecting and
maintaining such facilities as required by regulations, had operated a facility he was not
qualified to operate, and had operated one facility above its rated capacity. (Hearing Ex.
18.) The letter informed Schrenk that a suspension of five years would be imposed unless
he requested a hearing to dispute the allegations. Id. On May 4, 2014, Schrenk requested
a hearing on the matter. (OEPA Docket Item 15.)
       {¶ 3} After a number of status conferences, OEPA held a hearing before a hearing
examiner on December 16, 2014. (Dec. 16, 2014 Hearing Tr.; see also OEPA Docket Items
11-14.) In an order issued November 5, 2014, OEPA required that the parties file a
prehearing statement with OEPA on or before December 9 identifying documents and
evidence to be introduced at the hearing. (OEPA Docket Item 11.) OEPA timely filed a
prehearing statement identifying documents. (OEPA Docket Item 10.) However, the day
prior to the hearing, on December 15, 2014, OEPA filed an amended list that added three
subject-matter groups of documents likely to be introduced and removed one group of
documents from its previous list. (OEPA Docket Item 9.)
       {¶ 4} At the hearing, Andrew Barienbrock testified on behalf of OEPA. (Hearing
Tr. at 13.) Barienbrock testified that he was an environmental manager for OEPA and had
been with OEPA in that capacity and other supervisory capacities for more than 11 years.
Id. Barienbrock also testified at length to his extensive experience and education in the
field of environmental management. Id. at 13-18. Barienbrock testified from knowledge of
OEPA's business records about 20 exhibits introduced by OEPA at the hearing. Id. in
passim. Schrenk did not object to any of these exhibits or to Barienbrock's testimony. And
when he was specifically offered a chance to object Schrenk, declined to do so:
              [COUNSEL FOR OEPA]: Thank you. At this time, your Honor,
              I would like to move to enter all the exhibits into evidence.

              HEARING EXAMINER WILSON: Any objections?

              MR. SCHRENK: No.
No. 16AP-504                                                                               3


              HEARING EXAMINER WILSON: All the exhibits are so
              entered.

              (EXHIBITS ADMITTED INTO EVIDENCE.)
Id. at 79.
       {¶ 5} Exhibits 1 through 5, according to Barienbrock's testimony, list Schrenk as
Operator of Record for drinking water production facilities and wastewater treatment
facilities at St. Hazards Resort and the Lake Erie Utilities Company. Id. at 19-27; see also
Hearing Exs. 1-5. According to the records, he became Operator of Record at the two Lake
Erie Utilities plants on April 2, 2012 and the two St. Hazards Resort plants on June 1, 2012.
(Hearing Tr. at 19-27; Hearing Exs. 1-5). With respect to the Lake Erie Utilities Public
Water Supply, Schrenk's service as Operator of Record was problematic, according to
Barienbrock, because the facility was a Class III Public Water Supply, and in 2012, Schrenk
only held a Class II Water Supply Operator Certificate. (Hearing Tr. at 23-26.) This was
not merely an academic problem according to Barienbrock, because the Class II
certification is for treatment of ground water and not surface water, and each presents
different treatment and safety concerns. Id. at 25. The Lake Erie facility was a Class III
facility treating Lake Erie surface water for drinking. Id. at 25, 82-83. Barienbrock testified
from the records that Schrenk was not removed as an Operator of Record from the Lake
Erie Utilities Public Water Supply until 2013. Id. at 26-27; Hearing Ex. 5.
       {¶ 6} OEPA introduced logbooks for the Lake Erie Utilities Wastewater Treatment
Plant, for the Lake Erie Utilities Public Water System, for the St. Hazard Water Treatment
Plant, and the St. Hazard Wastewater Treatment Plant as Exhibits 7-10 respectively.
(Hearing Tr. at 36-47.) Each logbook shows that Schrenk almost never recorded his time
in or out for the sites and rarely entered details about his repair or maintenance work at
each site. Id.; see also Hearing Exs. 7-10. Barienbrock testified that this conduct violated
several regulations and stated:
              It's important for operators to document exactly what they are
              doing at the facilities so that Ohio EPA can see what's going on
              and also to ensure that they protect themselves in the event that
              there is an issue. Certified operators are part of Ohio EPA's
              multi-barrier approach to ensuring compliance at facilities.
              Ohio EPA can't be at every facility every day of the week and
              certified operators act as our arm out in the field and they are
              ensuring us that they are doing things properly at facilities and
No. 16AP-504                                                                              4


              this logbook and the information that is contained in the
              documentation that shows that they are doing their job
              correctly.
(Hearing Tr. at 38-39.) Barienbrock further explained that OEPA relies on recorded in and
out times to ensure minimum staffing at treatment plants such that at least what is barely
necessary to keep plants operating is assured for public safety. Id. at 29-31. Based on the
log books, Barienbrock could not testify that minimum staffing levels were met at the Lake
Erie Utilities wastewater treatment and drinking water facilities. Id. at 47-51; see also
Hearing Exs. 11-12 (enforcement logs created by OEPA based on log books to reconstruct
when, according to the log books, someone was on site at the Lake Erie Utilities plants and
for how long).
       {¶ 7} Barienbrock next identified a number of notices of violation. He testified that
on May 9, 2012 (according to a June 12, 2012 notice of violation to Lake Erie Utilities
Company), the Lake Erie Utilities Public Water Supply failed to monitor the residual
disinfectant concentration of the water entering the distribution system once every four
hours while the plant was in operation. (Hearing Tr. at 56-57; Hearing Ex. 14.) Barienbrock
explained that the same facility was evaluated by OEPA according to a September 2012
notice of violation. (Hearing Tr. at 67-69; Hearing Ex. 16.) Among a host of issues, OEPA
found that the facility was exceeding its approved capacity in May, June, July, and August
2012, the staff were not calibrating the turbidity meters, and OEPA was not able to
document minimum staffing requirements on multiple occasions during the past year
based on the logs kept. (Hearing Tr. at 67-69; Hearing Ex. 16.) Barienbrock also testified
concerning another notice of violation that, on October 1-4, 7-10, 13, 15, 20, 27, 30, and 31,
2012, the same plant failed to monitor the temperature of the water for the purpose of
determining chlorine contact time to ensure the appropriate pathogen kill rate and also that
the plant exceeded its maximum rated flow rate for 14 days in October 2012. (Hearing Tr.
at 57-60; Hearing Ex. 15.) He testified these problems to both be a risk to the public health.
(Hearing Tr. at 57-60.) Finally, Barienbrock identified an August 1, 2013 notice of violation
that he had drafted, citing that Schrenk did not document times in or out, that minimum
staffing levels were not met, that entries of repairs and maintenance were insufficient, that
the old plant was in an unacceptable condition according to an audit, and that effluent
No. 16AP-504                                                                             5


violations of nitrogen, ammonia, and suspended solids had been occurring. (Hearing Tr.
at 60-71; Hearing Ex. 17.)
           {¶ 8} Throughout the hearing, Barienbrock also testified that Schrenk violated
multiple regulations, and he detailed the content of each regulation and Schrenk's specific
conduct that violated it. (Hearing Tr. at 28-29 (discussing Ohio Adm.Code 3745-7-
09(A)(3)(b) record-keeping of date and times of arrival and departure for operators of
record); Hearing Tr. at 31-32 (discussing Ohio Adm.Code 3745-7-09(A)(3)(c) requirement
that operators note maintenance activities that have the potential affect quality of sewage
or water conveyed or produced); Hearing Tr. at 54-56 (discussing former Ohio Adm.Code
3745-83-01(H)(2) (effective April 19, 2012)1 requiring the Operator of Record to sign
Monthly Operating Reports ("MORs") attesting to the accuracy of information contained
therein); Hearing Tr. at 62 (discussing Ohio Adm.Code 3745-7-09(C)(1) requiring
operators to perform responsible and effective on-site management and supervision of
technical operation); Hearing Tr. at 27-28 (discussing Ohio Adm.Code 3745-7-12(A)(7)
being Operator of Record without appropriate certification); Hearing Tr. at 29-31
(discussing Ohio Adm.Code 3745-7-03(C) and 3745-7-04(C) minimum staffing
requirements for public water and wastewater systems); Hearing Tr. at 60-61 (discussing
Ohio Adm.Code 3745-91-02(A) and 3745-91-08(G)(1) requiring prior approval before any
change to a plant, including a change in capacity, and prohibiting changes not within plan);
Hearing Tr. at 64-66 (discussing Ohio Adm.Code 3745-7-12(A)(2) making incompetence
and negligence in fulfilling duties of an operator grounds for revocation or suspension of
certifications); Hearing Tr. at 66-67 (discussing Ohio Adm.Code 3745-7-12(A)(4)
prohibiting operation in a manner endangering the public health and providing suspension
or revocation of certifications as a penalty).)
           {¶ 9} Barienbrock summed up Schrenk's problems:
                   Ohio uses a multi-barrier approach to protecting public health
                   and safety in both water and wastewater treatment. One of
                   those barriers is the certified operator. We depend on certified
                   operators to be a professional in the field. We depend on that
                   person to be knowledgeable and experienced in water and
                   wastewater treatment. And we depend on that person to kind



1   This provision is included in the current rule at Ohio Adm.Code 3745-83-01(I)(2).
No. 16AP-504                                                                             6


                of be our eyes and ears in the field because we don't have
                enough staff to be at the facilities on a daily or weekly basis.

                That person is out there. That person is knowledgeable of the
                rules and is knowledgeable of treatment. They have
                demonstrated that knowledge through that experience and
                through the examination they take. They also are required to
                get continuing education to keep up with things that are in their
                field, to keep up with treatment practices, to keep up with the
                rules and regulations related to their field, so based on that
                information, we depend on those people to be knowledgeable
                experts out there.

                Owners of treatment facilities hire these people for their
                expertise. The owners aren't familiar with Ohio EPA's rules and
                regulations. They depend on these certified professional –
                these certified professional individuals to guide them through
                the process of dealing with the Ohio EPA and ensuring
                compliance and protecting public health and safety.
(Hearing Tr. at 77-78.)
       {¶ 10} Schrenk presented neither witnesses nor exhibits at the hearing and, when
given a chance to testify on his own behalf, declined to do so:
                HEARING EXAMINER WILSON: You don't care to take the
                witness stand?

                MR. SCHRENK: No, sir.
Id. at 84. Virtually the only remarks Schrenk made during the hearing were in closing
arguments as follows:
                MR. SCHRENK: I did take advantage of training. I kept my
                licenses current. I took classes at the Elyria water works so I co
                – classes at the Elyria water works so I could pass my III and
                over the years I took sanctioned classes at a different Water
                Works in Lorain, you know, to pass tests. So I did take
                advantage of classes.

                These exhibits in here are just not complete. If you look at
                them, you'll see that I — maybe I didn't put the time in and the
                time out, but I put in about repairs. It was a real mess up there.
                I don't know if it's still a mess or not. I tried to help, and I guess
                I didn't. That's all.
Id. at 88-89.
       {¶ 11} Both parties submitted detailed post-hearing briefs. (OEPA Docket Items 6-
7.) OEPA objected to Schrenk's brief on the grounds that it asserted and relied upon facts
No. 16AP-504                                                                              7


that were not introduced or testified to during the hearing. (OEPA Docket Item 5 (citing
Ohio Adm.Code 3745-47-12(G) for the proposition that new facts may not be introduced
outside of the hearing unless after the conclusion of an adjudication hearing and prior to
the submission of a report and recommendation, the hearing examiner, upon motion of a
party, may permit the parties to file newly discovered documentary evidence that by due
diligence could not have been discovered prior to the adjudication hearing).)
           {¶ 12} On March 26, 2015, the hearing officer released a report and
recommendation concluding that Schrenk had violated a number of Ohio Administrative
Code regulations on numerous occasions, some of which endangered public health and
welfare. (OEPA Docket Item 3 at 19-24.) Two weeks later, on June 10, 2015, the director
of OEPA adopted the findings and conclusions of the hearing officer and ordered suspended
for five years Schrenk's Class II Water Supply Operator Certificate (WS2-1012476-11) and
Class III Wastewater Treatment Operator Certificate (WW3-1012476-96). (OEPA Docket
Item 2.)
           {¶ 13} On July 13, 2015, Schrenk filed a letter declaring his intention to appeal.
(ERAC Docket Item A.) ERAC construed the letter as a notice of appeal but ordered
Schrenk to file and properly serve an amended notice of appeal including the facts and
issues of the appeal under Ohio Adm.Code 3746-5-07. (ERAC Docket Item B.) On August
12, 2015, after a preliminary prehearing conference, ERAC again ordered Schrenk to file an
appropriate notice of appeal, this time by September 2, 2015, or face dismissal for want of
prosecution. (ERAC Docket Item E.)
           {¶ 14} On September 2, 2015, Schrenk filed a notice of appeal setting forth four
issues for review. (ERAC Docket Item F.) The first was that OEPA e-mailed additional
evidence to him on the morning of the hearing. Id. at 1. The second was that OEPA did not
consider his time card records and instead merely relied on the log books. Id. Had OEPA
considered both, Schrenk asserted, it would have realized there were more hours worked
than necessary to fulfill the minimum staffing requirements. Id. The third was that he was
not the Operator of Record for the Lake Erie Utility Public Water Supply and thus the fact
that the water temperature was not recorded in order to appropriately time the contact with
the purifying agent was not his responsibility.2 Id. Fourth, that he was turned down as a


2   Schrenk incorrectly references Exhibit 14 here when he is discussing Exhibit 15.
No. 16AP-504                                                                                               8


potential Operator of Record for the Lake Erie Utility Public Water Supply due to his
insufficient certification on May 8, 2012, and thus the later violations as to that plant cannot
be attributed to him. Id. at 1-2. Schrenk also manifested an intention to introduce further
exhibits and call further witnesses during the appeal.
        {¶ 15} On January 14, 2015, Schrenk provided ERAC with copies of his Uni-Tech
Environmental Services Inc. time sheets for the relevant time period. (ERAC Docket Item
N.) The sheets showed he had as few as 13 to 14 hours in some two-week periods and as
many as 51 hours in others. Id. Both parties presented briefs (Schrenk attempted to include
exhibits with his) and both sides appeared and argued at oral argument.3 (ERAC Docket
Items O-P; Schrenk ERAC Hearing Exs.) Following argument, upon request of ERAC,
OEPA supplemented the record with materials that were not introduced in the original
hearing. (ERAC Docket Item Q.)
        {¶ 16} On June 8, 2016, ERAC issued a decision affirming in part and reversing in
part OEPA's decision. (June 8, 2016 ERAC Decision). ERAC reversed in three respects:
ERAC reversed OEPA's findings that Schrenk had failed to meet minimum staffing
requirements, that he had violated record keeping requirements by failing to include
certain information in MORs, and that Schrenk had violated certification regulations by
allowing Lake Erie Utilities Public Water Supply to operate above its approved capacity.
(ERAC Decision at ¶ 108.)
        {¶ 17} OEPA now appeals, and it filed a timely brief on August 9, 2016. Schrenk
filed no brief.4
II. ASSIGNMENTS OF ERROR
        {¶ 18} OEPA argues two assignments of error.
                 [1.] The Environmental Review Appeals Commission
                 unlawfully shifted to the Director the burden of proving a
                 negative when it determined that Mr. Schrenk's failure to
                 record his arrival and departure times did not establish that
                 Mr. Schrenk failed to meet minimum staffing requirements.




3No transcription of the argument before ERAC has been made part of the record before this Court.
4 Schrenk did file a letter with this Court six days before OEPA's brief making a number of accusations,
assertions, and arguments generally unrelated to the limited issues before this Court. As this document failed
to comply with substantially any of the rules applying to the submission of briefs before this Court, we do not
regard it as an appellee brief and consider it no further.
No. 16AP-504                                                                           9


             [2.] The Environmental Review Appeals Commission erred in
             sua sponte determining that Mr. Barienbrock's testimony
             concerning certain Notices of Violation was inadmissible
             hearsay.
III. DISCUSSION
   A. Standard of Review
      {¶ 19} ERAC was confined by statute to the record certified to it from OEPA's
adjudicatory hearing:
             In hearing the appeal, if an adjudication hearing was conducted
             by the director of environmental protection in accordance with
             sections 119.09 and 119.10 of the Revised Code * * *, the
             environmental review appeals commission is confined to the
             record as certified to it by the director * * * .
R.C. 3745.05(A). And the "commission may grant a request for the admission of additional
evidence when satisfied that such additional evidence is newly discovered and could not
with reasonable diligence have been ascertained prior to the hearing before the director."
Id. Based on the record, "[i]f * * * the commission finds that the action appealed from was
lawful and reasonable, it shall make a written order affirming the action, or if the
commission finds that the action was unreasonable or unlawful, it shall make a written
order vacating or modifying the action appealed from." R.C. 3745.05(F).
      {¶ 20} This Court must affirm an ERAC order if it "is supported by reliable,
probative, and substantial evidence and is in accordance with law." R.C. 3745.06. "[T]his
court affords due deference to ERAC's resolution of evidentiary conflicts." Helms v.
Koncelik, 187 Ohio App.3d 231, 2010-Ohio-1782, ¶ 20 (10th Dist.). Questions of law,
however, are reviewed de novo. Taylor Bldg. Corp. of Am. v. Benfield, 117 Ohio St.3d 352,
2008-Ohio-938, ¶ 34 ("Courts review questions of law de novo.").
   B. First Assignment of Error – Proving a Negative and Minimum Staffing
      {¶ 21} ERAC decided the hearing officer and OEPA director should not have
concluded from Schrenk's failure to record his in and out times in the logs that he had not
satisfied minimum staffing standards. ERAC stated:
             By its very nature, Mr. Schrenk's failure to record arrival and
             departure times resulted in a lack of information regarding the
             time he was present on certain occasions. It did not, however,
             affirmatively establish that he was absent. In fact, by creating
             an entry in the log books, albeit without specific information
             regarding duration, Mr. Schrenk provided evidence that he
No. 16AP-504                                                                               10


              may have been present on those days. Accordingly, the
              Commission finds the Director lacked a valid factual
              foundation for his conclusion that Mr. Schrenk failed to satisfy
              minimum staffing requirements at each of the four facilities at
              issue in this appeal.
(Emphasis sic.) (ERAC Decision at ¶ 85.)
       {¶ 22} According to Ohio Adm.Code 3745-47-15(A), the burden of proof "with
respect to applications for permits, licenses, variances, certificates, or other authorizing
actions" is upon the applicant. But division (B) of the rule provides that when revocations,
orders, or modifications are initiated by the agency, the burden of proof is on the agency.
Ohio Adm.Code 3745-47-15(B)(1) through (3). Since OEPA sought to suspend Schrenk's
certifications, it bore the burden. Ohio Adm.Code 3745-47-15(B).
       {¶ 23} But OEPA argues division (D), an exception to the burden established by
division (A) of the rule. Division (D) provides that "[n]otwithstanding paragraph (A) of this
rule, there shall be a legal presumption in favor of facts asserted by a party that can be
disproved by evidence available to and under the control of an opposing party. In order to
rebut this presumption, the party having control of such evidence shall show that the
nonexistence of the presumed fact is more likely than the existence of such fact." Ohio
Adm.Code 3745-47-15(D). But division (B) of the rule is not affected by division (D). Id.
As a matter of law, the burden of proof set forth in division (B) rather than (A) was to control
at the agency adjudicatory hearing. See supra, at ¶ 22.
       {¶ 24} Thus the question on review must be analyzed according to whether it was
"reasonable" under R.C. 3745.05 for the director and hearing officer to have concluded that
OEPA had met its burden to prove Schrenk violated the minimum staffing rules, and based
on this, whether ERAC's reversal of OEPA's decision was "supported by reliable, probative,
and substantial evidence and [was] in accordance with law." R.C. 3745.06. Schrenk did
not testify, and OEPA did not produce a witness who was present at all the facilities all day,
every day, to directly verify staffing levels through personal observation. But as ERAC
recognized, Schrenk was required to record his in and out times as a matter of rule and he
unquestionably failed to do so. (ERAC Decision at ¶ 15-25; Hearing Tr. at 36-47; Hearing
Exs. 7-10.) Barienbrock testified, and ERAC recognized, that OEPA relies on these logs to
determine whether minimum staffing levels are met. (Hearing Tr. at 38-39; ERAC Decision
at ¶ 24.) According to Evid.R. 803(7), even though this is indirect evidence and otherwise
No. 16AP-504                                                                              11


unreliable hearsay that minimum staffing levels were not met, reliance on the logs based
on the absence of an entry in regularly kept business records is permitted.
       {¶ 25} ERAC's decision that OEPA's director "lacked a valid factual foundation for
his conclusion" is in error. (ERAC Decision at ¶ 85.) ERAC did recognize the fact that there
was a lack of time entries in regularly kept business records. But it construed that not to be
admissible evidence. Id.; see also Evid.R. 803(7). It also construed such evidence to evince
a complete lack of evidence. By our legal analysis, the lack of time entries in regularly kept
business records was admissible, circumstantial evidence that is permissible proof of facts
in both punitive and civil proceedings. Williams v. Akron, 107 Ohio St.3d 203, 2005-Ohio-
6268, ¶ 27; State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph one of the syllabus. Even
though the OEPA director may have lacked direct evidence that people (including Schrenk)
failed to staff the sites for the minimum number of days and hours, the fact that the business
records were incomplete provided circumstantial and reliable evidence that supported the
OEPA director's factual findings. (ERAC Decision at ¶ 85.)
       {¶ 26} OEPA's first assignment of error is sustained.
   C. Second Assignment of Error – Hearsay and the Content of the MORs
       {¶ 27} On the topic of Schrenk's alleged failures to include full and correct
information within the MORs, OEPA's director reached the following conclusions:
              6. During the period from April 2, 2012, to March 14, 2013,
              Respondent was acting as an Operator of Record for the Lake
              Erie Utilities public water system. Monthly operating reports
              ("MOR's") kept during that period documented the
              performance of the public water system. Examination of the
              Lake Erie Utilities public water system MOR's reveals several
              omissions, including the failure to monitor the residual
              disinfectant concentration of the water entering the Lake Erie
              Utilities public water distribution system at least once every
              four hours that the plant was in operation on May 9, 2012.

              7. The MORs also revealed that Respondent and his fellow
              operators of record failed to monitor for the temperature of
              disinfected water at the Lake Erie Utilities public water system
              on at least fourteen occasions in October 2012. Without a
              temperature measurement, neither Respondent, nor his fellow
              operators could determine the length of time chlorine needed
              to be in contact with the water so that the chlorine could
              properly disinfect the water. Without a temperature
              measurement, Ohio EPA could not verify whether potentially
No. 16AP-504                                                                      12


             harmful pathogens were being killed by the chlorine or whether
             harmful algal toxins such as microcystin were being properly
             treated by sufficient contact with chlorine, since the Lake Erie
             Utilities public water system receives its water from Lake Erie.

             8. In May, June, July, and August, 2012, Respondent allowed
             the Lake Erie Utilities public water system plant to exceed the
             approved capacity of 115,000 gallons per day on at least fifteen
             separate occasions in October 2012, as well as the approved
             filtration capacity of 90 gallons per minute. Facilities such as
             the Lake Erie Utilities public water system are designed for a
             specific maximum flow rate above which there is a potential
             path for pathogens and algal toxins to pass through the process.
(OEPA Docket Item 2 at 2-3.)
      {¶ 28} ERAC disagreed:
             Regarding the Director's finding that Mr. Schrenk failed to
             include certain required information in MORs, however, the
             Commission finds that the Director acted unreasonably.

             At the adjudication hearing, Mr. Barienbrock testified that two
             [Notices of Violation] NOVs indicated the Agency reviewed
             MORs submitted to Ohio EPA and determined that the Lake
             Erie Utilities [Public Water Supply] failed to record residual
             disinfectant concentration on May 9, 2012, and failed to record
             the temperature of disinfected water on 14 separate occasions
             in October 2012.

             Significantly, however, based upon the testimony presented at
             the adjudication hearing, it is unclear to the Commission
             whether Mr. Barienbrock or another Ohio EPA staff member
             reviewed the MORs and prepared the NOVs. Further, the
             Certified Record does not include any testimony or other
             record of the Agency's underlying analysis of the MORs or the
             data contained therein.

             Without any supporting testimony or other evidence, the
             Commission finds that the NOVs are merely the Agency's own,
             unsubstantiated assertions. Although the Commission must
             not substitute its judgment for that of the Director as to factual
             issues, the Director's conclusions must be supported by a valid
             factual foundation. Ohio Fresh Eggs, LLC v. Wise, 10th Dist.
             Franklin No. o7AP-780, 2008-Ohio-2423, ¶32.

             Here, the Director presented only unsubstantiated assertions
             regarding the contents of various MORs. The testimony did not
             establish that Mr. Barienbrock had personal knowledge of the
No. 16AP-504                                                                  13


           contents of the MORs, nor were the MORs themselves
           introduced as exhibits. Instead, Mr. Barienbrock simply
           reviewed two NOVs and restated their conclusions. The
           Commission finds that such testimony is inadmissible hearsay
           and is therefore insufficient to support the truth of the matter
           asserted. Specifically, the NOVs are insufficient evidence to
           support the conclusion that the MORs, which were not
           otherwise included in the Certified Record or otherwise
           addressed in the testimony, lacked certain required
           information.

           Accordingly, the Commission finds the Director acted
           unreasonably in concluding that Mr. Schrenk violated
           recordkeeping requirements with respect to the MORs he
           submitted to Ohio EPA.

           ***

           Finally, regarding the finding that he operated the Lake Erie
           Utilities [Public Water Supply] above its approved capacity,
           Mr. Schrenk again argued that he could not be held legally
           responsible for those violations because his application to be
           added as an operator of record for that facility was ultimately
           rejected. Further, Mr. Schrenk argued that the NOVs presented
           at the adjudication hearing did not contain any underlying
           evidence to support the allegation that the plant operated
           above its approved capacity.

           The Commission finds Mr. Schrenk's argument well-taken.

           As discussed above, without supporting evidence, the NOVs
           presented at the adjudication hearing are merely the Agency's
           own, unsubstantiated assertions. The testimony at the
           adjudication hearing did not establish that Mr. Barienbrock
           had personal knowledge of the contents of the MORs, nor were
           the MORs themselves introduced as exhibits. Instead, Mr.
           Barienbrock simply reviewed two NOVs and restated their
           conclusions. Thus, Commission finds that such testimony is
           inadmissible hearsay and insufficient to support the truth of
           the matter asserted. Specifically, the NOVs are insufficient to
           support the conclusion that certain MORs, which were not
           otherwise included in the Certified Record or otherwise
           addressed in the testimony, contained information that led
           Ohio EPA to determine that the Lake Erie Utilities [Public
           Water Supply] operated above its approved capacity.

           Accordingly, the Commission finds the Director acted
           unreasonably with respect to his conclusion that Mr. Schrenk
No. 16AP-504                                                                                14


              violated Ohio's operator certification regulations by allowing
              the Lake Erie Utilities [Public Water Supply] to operate above
              its approved capacity.
(ERAC Decision at ¶ 98-107.)
       {¶ 29} ERAC's criticism of the Notices of Violation is not without legal basis as OEPA
used them to establish the content of the MORs to the effect that Schrenk had deficiently
reported on operations and had run the plant above capacity. This hearsay problem
troubled ERAC. OEPA argues that it was cured by the business records exception of Evid.R.
803(6). But Barienbrock did not testify that he ever saw the MORs or about his personal
knowledge underlying the Notices of Violations.
       {¶ 30} However, Schrenk did not object to any aspect of Barienbrock's testimony or
to any exhibits until long after the hearing was over. See, e.g., Hearing Tr. at 70. And ERAC
"[was] confined to the record as certified to it by the director." R.C. 3745.05(A). Thus, it
was not within ERAC's power to retroactively make and sustain an evidentiary objection on
behalf of Schrenk in order to effectively remove evidence from the record as certified to it
by the director. ERAC's retroactive exclusion of evidence was legal error, and thus, ERAC
in addition failed to base its decision on substantial, reliable, and probative evidence.
       {¶ 31} OEPA's second assignment of error is sustained.
IV. CONCLUSION
       {¶ 32} ERAC erred as a matter of law when it recognized that circumstantial
evidence existed to show that minimum staffing levels were not met but conflated this to
an entire lack of evidence since it was not direct evidence. ERAC also erred as a matter of
law when it retroactively made and sustained an evidentiary objection in favor of Schrenk
in order to effectively exclude evidence from the record before it as certified by the OEPA
director. We sustain both assignments of error and reverse and remand this cause to ERAC
for proceedings consistent with this decision.
                                                     Judgment reversed, cause remanded.
                       KLATT and LUPER SCHUSTER, JJ., concur.
