Babst Calland: Ohio Supreme Court Rules That a Failed Stack Test Creates a Rebuttable Presumption of Continuing Noncompliance With Air Pollution Emission Standards

The Ohio Supreme Court has ruled that a reference method stack test showing that an air contaminant source is exceeding emission standards creates a rebuttable presumption that the source is in continuing noncompliance with emission standards, State, ex rel. Ohio Attorney General v. Shelly Holding Co., 2012-Ohio-5700, 2012 Ohio LEXIS 3107 (December 6, 2012). A trial court in an enforcement action should therefore impose daily civil penalties throughout the period of presumed noncompliance. The source operator, however, can rebut the presumption of continuing noncompliance, and therefore avert imposition of continuing daily penalties, with evidence "show[ing] that the permit violation was not of a continuing nature, such as evidence that the operating conditions documented during the stack testing no longer existed, that mechanical failures were repaired, [or] that raw materials and fuels were changed", Slip Opinion at 17. Evidence that the source operating conditions during the stack test "do not reflect normal operating conditions", however, "without more" is insufficient to rebut the presumption, Slip Opinion at 17, 18. The court's reasoning relied heavily upon language in Section 113(e)(2) of the Federal Clean Air Act, 42 U.S.C. Section 7413(e)(2), which prescribes a similar rebuttable presumption of ongoing noncompliance for imposition of penalties under the Act.

If you would like to discuss this decision or other aspects of Ohio's air pollution control program, please contact Michael H. Winek at 412-394-6538 or mwinek@babstcalland.com, David E. Northrop at 412-394-6590 or dnorthrop@babstcalland.com, or Ryan D. Elliott at 412-394-5432 or relliott@babstcalland.com.

Copyright 2012• Babst, Calland, Clements and Zomnir, P.C. • Two Gateway Center, Pittsburgh, PA 15222 • 412-394-5400 • Administrative Watch is distributed by Babst, Calland, Clements and Zomnir, P.C., for the general information of its clients, friends and readers. It is not designed to be, nor should it be considered or used as, the sole source of analyzing and resolving legal problems. If you have, or think you may have, a legal problem or issue relating to any of the matters discussed in the Administrative Watch, consult legal counsel.

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