A Green Strategies Bulletin

Full text of the Court's opinion

On December 1, 2010, the Ohio Supreme Court issued a 5-1 decision reversing and remanding an Ohio Power Siting Board (OPSB) decision granting the Middletown Coke Company a certificate to construct a cogeneration facility that will produce both purified coal (coke) and more than 50 MW of electricity. In re Application of Middleton Coke Co. (December 1, 2010), Slip Opinion No. 2010-Ohio-5725.

Based on the size of the electric generation portion of the facility, Middletown filed an application with the OPSB seeking approval of only the “electricity-producing turbine and related apparatus,” and not the land and facilities used to produce the coke. Contrary to the urging of the City of Monroe, the OPSB approved the application and “disclaimed jurisdiction over land and facilities used in coke production.” The City of Monroe appealed this decision to the Ohio Supreme Court, contending that the OPSB erred in determining the scope of its jurisdiction.

The Ohio Supreme Court decision focused on Ohio Revised Code Section 4906.01, which grants the OPSB jurisdiction over major electric facilities. Major utility facilities include “[e]lectric generating plant and associated facilities designed for, or capable of, operation at a capacity of 50 megawatts or more.” Expanding on the scope OPSB’s jurisdiction, the Court explained that it “extends to land, buildings and equipment employed in carrying on the business of generating electricity.” In the context of the Middletown cogeneration facility, this meant that certain land and equipment used for coke production could fall under the OPSB’s jurisdiction.

Rather than continuing with its analysis, the Court remanded the case to the OPSB with instructions to: 1) examine whether some of the equipment categorized as “coke plant” equipment also constitutes electric generating plant under the OPSB’s jurisdiction; and 2) allow the City of Monroe to present its case, through an adversarial proceeding, whether the cogeneration facility “represents the minimum adverse environmental impact” based on available technology and the economics of various alternatives.

The lone dissenting opinion from Justice Stratton highlighted the majority opinion’s misunderstanding of the OPSB’s jurisdiction. First, Justice Stratton noted that coke plants do not fall within the scope of the OPSB’s jurisdiction over major utility facilities by concluding that the “proposed coke plant is not designed for, nor will it be capable of, producing electricity.” Perhaps more importantly, Justice Stratton noted that Ohio EPA retains jurisdiction over the regulation of coke plants and “any consideration by the [OPSB] regarding the emissions of the proposed coke ovens necessarily intrudes upon the Ohio EPA’s jurisdiction.”