Tenth District Court of Appeals Issues Watershed ERAC Opinion

In a sweeping victory for MD client, Commercial Liability Partners (CLP), the Tenth Appellate District ruled that Neighbors Opposed to Pit Expansion, Inc. (NOPE), a local environmental advocacy group, lacked standing under R.C. 3745.04 to pursue an appeal of a Permit to Install (PTI) issued by Ohio EPA at the former Beckjord facility in New Richmond, Ohio. Further, under R.C. 3745.07, NOPE filed the appeal after the statute of limitations. The Tenth District remanded the case to the Environmental Review Appeals Commission (ERAC) for dismissal of the appeal.

The Tenth District Court of Appeals heard the appeal of a January 2024 ruling by ERAC, an administrative tribunal which hears matters involving actions by the Director of Ohio EPA. This matter involves the issuance of a PTI which allowed CLP to “close” a surface impoundment known as Pond B at the former Beckjord power plant near Cincinnati. On September 3, 2021, Ohio EPA issued the PTI; NOPE filed its appeal to ERAC on October 13, 2021. NOPE asserted 16 different issues with the PTI, including several related to the presence of coal combustion residuals (CCR) in Pond B.

ERAC held a three-day hearing in May 2023 followed by a formal opinion issued in January 2024. ERAC determined that the Ohio EPA Director acted reasonably and lawfully in issuing the PTI, and the opinion upheld Ohio EPA’s issuance of the PTI. During the ERAC proceeding, CLP raised standing and statute of limitations as procedural issues, but ERAC rejected those arguments.

NOPE appealed the ERAC ruling in the Tenth Appellate District of Ohio, asserting four issues on appeal. CLP cross-appealed, raising both standing and statute of limitations issues. The Court of Appeals held oral arguments in January 2025.

On June 26, 2025, the Tenth Appellate District ruled that NOPE did not in fact have standing to appeal the PTI before ERAC under the two statutory provisions, R.C. 3745.04 and 07. The Court held that NOPE did not meet the standing requirements to “participate” in a proceeding under 3745.04 therefore NOPE did not qualify under that statute to appeal the PTI issuance. The Court further held that NOPE missed the deadline to file its appeal to ERAC under 3745.07 because the appeal was filed more than 30 days after issuance of the permit. Because CLP prevailed on its procedural arguments, the Court did not consider the NOPE arguments on appeal.

Prior to this opinion, little case law existed relating to how both R.C. 3745.04 and 3745.07, the prerequisites to filing an ERAC appeal, apply. This CLP case is a watershed opinion on ERAC procedural issues, so we anticipate that parties will often cite this ruling in future matters.