[Cite as In re Application of Middletown Coke Co., 127 Ohio St.3d 348, 2010-Ohio-5725.] 

IN RE APPLICATION OF MIDDLETOWN COKE COMPANY; CITY OF MONROE,

APPELLANT; POWER SITING BOARD ET AL., APPELLEES. 

[Cite as In re Application of Middletown Coke Co., 

127 Ohio St.3d 348, 2010-Ohio-5725.] 

Power Siting Board — Jurisdiction to certify building of cogeneration station — 

Siting board erred in determining the scope of its jurisdiction — Further 

development of record required — Order reversed, and cause remanded. 

(No. 2009-0941 — Submitted April 20, 2010 — Decided December 1, 2010.) 

APPEAL from the Power Siting Board, No. 08-0281-EL-BGN. 

__________________ 

LANZINGER, J. 

{¶ 1} This case comes before us as an appeal from an administrative 

order of the Power Siting Board. The siting board granted the Middletown Coke 

Company a certificate to build a “cogeneration station,” which is part of an 

integrated industrial facility that will produce both purified coal and electricity. 

The city of Monroe, which borders the project site, appeals from that order on 

four grounds, mainly relating to whether the siting board erred in refusing to 

exercise jurisdiction over portions of the facility used to generate electricity and 

also to produce coke. 

{¶ 2} We agree with Monroe and hold that the siting board erred in 

determining the scope of its jurisdiction. The siting board’s ruling unreasonably 

denied Monroe an opportunity to test the company’s assertion that its preferred 

location—a half-mile from Monroe’s neighborhoods and 1,200 feet from a 

school—poses the “minimum adverse environmental impact” under R.C. 

4906.10(A)(3). Accordingly, we reverse the order and remand this case for 

further proceedings. 
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I. Background Facts 

A. The Siting Board’s Authority 

{¶ 3} In Ohio, a “major utility facility” may not be built without the 

approval of the Power Siting Board. R.C. 4906.04. Under R.C. 4906.01(B)(1), a 

“major utility facility” includes “[e]lectric generating plant and associated 

facilities designed for, or capable of, operation at a capacity of fifty megawatts or 

more.” The parties agree that some part of the proposed project constitutes 

“electric generating plant” but disagree as to what extent. 

B. Middletown Coke’s Application 

{¶ 4} The applicant in this case, the Middletown Coke Company, 

manufactures coke, a purified form of coal used in steel-making. The company 

optioned a 250-acre site in Middletown, Ohio, near the city of Monroe, where it 

intends to produce both coke and electricity. The coke will be supplied to the 

adjacent AK Steel Middletown Works, and the electricity will be used or sold. 

{¶ 5} Because it will produce over 50 megawatts of power, the project 

required siting board approval. R.C. 4906.01(B)(1) and 4906.04. On April 21, 

2008, the company notified the siting board of its intent to build, and on June 6, it 

filed its application to build what it termed “the cogeneration station.” 

{¶ 6} As explained in the application, the cogeneration process begins 

when coal is “baked” in ovens to make coke, and the baking process produces 

superheated gases, which must be cooled to remove pollutants. Devices called 

“heat recovery steam generators” cool these gases and, as the name implies, 

generate steam. By channeling this steam into a generation turbine, what began 

as waste heat becomes electricity. 

{¶ 7} The company defined the cogeneration station (and thus limited 

the application) to include only the electricity-producing turbine and related 

apparatus, such as cooling towers and control equipment. The application, 

however, excluded the equipment that burned coal and produced steam — that is, 
January Term, 2010 

3 

the coke ovens and heat recovery steam generators. With the coal-burning 

equipment excluded, the company listed the cogeneration station as a “zero 

emission” project. 

C. The Siting Board’s Proceedings 

{¶ 8} Before it approves construction of any major utility facility, the 

siting board must determine that the facility “represents the minimum adverse 

environmental impact.” R.C. 4906.10(A)(3). In addition, the siting board’s rules 

require applicants to provide a detailed explanation of the process used to select 

the proposed site and a description of alternative sites. Ohio Adm.Code 4906-13-

03 (“Site alternatives analyses”) and R.C. 4906.06(A)(4) (requiring applicants to 

explain “why the proposed location is best suited for the facility”). 

{¶ 9} Middletown Coke sought and was granted a waiver from the 

requirement to develop an alternative-site analysis. The company reasoned, and 

the siting board agreed, that the location of the cogeneration station depended on 

“the location of the coke manufacturing facility, which is not required to undergo 

a formal site selection study.” In accordance with this waiver, the application’s 

description of the site-selection process consisted of one paragraph explaining that 

the location of the cogeneration station was “constrained by the need to be 

adjacent to the energy source, which is the coke facility.” The application did not 

explain whether the company had considered other sites for the entire project (that 

is, including the coke facility) or how it settled on the location chosen. 

D. Intervention of Monroe 

{¶ 10} The site selected by Middletown Coke borders the city of Monroe 

and lies a half-mile from the city’s residential neighborhoods and about 1,200 feet 

from a school. On September 12, 2008, Monroe filed a motion to intervene, 

opposing the application. It asserted that the source of steam for the project (the 

coke ovens and heat recovery steam generators) would annually emit over 2,700 

tons of air pollutants and up to 160 pounds of mercury. The city stated that 
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construction of the facility had not yet begun and that “it makes no more sense to 

disregard the source of steam for this Project than to disregard the combustion 

sources for a new coal-fired utility.” On this basis, it asked the siting board to 

review the environmental impact of the entire facility, including the land and 

facilities used to produce coke, and to consider alternative sites. 

{¶ 11} The siting board allowed the city of Monroe to intervene but 

disclaimed “jurisdiction over any permits for construction of the coke plant.” 

This disclaimer set a pattern. Over the months that followed, Monroe frequently 

attempted to bring the full project within the scope of the siting board’s review, 

and the siting board consistently denied that it had jurisdiction to review the 

environmental impact or location of “the coke plant.” On that basis and to that 

extent, the board disallowed Monroe’s discovery requests, its questions on crossexamination, and its proffered evidence. For example, the siting board would not 

consider testimony that nearby residents and schoolchildren were downwind of 

the plant and “likely to be exposed to air-borne particulate and toxic air 

pollutants,” “daily increases” of which “are followed by increases in the number 

of people who die from respiratory and cardiovascular causes.” 

E. The Administrative Order 

{¶ 12} On October 30, 2008, Middletown Coke and the siting board’s 

staff filed a stipulation recommending that the board approve the application. A 

hearing followed, and on January 26, 2009, the siting board issued an opinion and 

order approving the stipulation and granting the certificate for construction of the 

cogeneration facility. The order, consistent with prior rulings, disclaimed 

jurisdiction over land and facilities used in coke production. 

{¶ 13} The city of Monroe sought rehearing, which the siting board 

denied on March 23, 2009. Monroe has appealed, and Middletown Coke has 

intervened in support of appellee, the siting board. 

II. Legal Analysis 
January Term, 2010 

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A. Standard of Review 

{¶ 14} Pursuant to R.C. 4906.12, this court must apply the standard of 

review to power siting determinations that it applies to orders of the Public 

Utilities Commission. Chester Twp. v. Power Siting Comm. (1977), 49 Ohio 

St.2d 231, 238, 3 O.O.3d 367, 361 N.E.2d 436. “R.C. 4903.13 applies to board 

proceedings pursuant to R.C. 4906.12 and provides that an order ‘shall be 

reversed, vacated, or modified by this court only when, upon consideration of the 

record, the court finds the order to be unlawful or unreasonable.’ ” In re 

Application of Am. Transm. Sys., Inc., 125 Ohio St.3d 333, 2010-Ohio-1841, 928 

N.E.2d 427, ¶ 17, quoting Constellation NewEnergy, Inc. v. Pub. Util. Comm., 

104 Ohio St.3d 530, 2004-Ohio-6767, 820 N.E.2d 885, ¶ 50. We have “ 

‘complete and independent power of review as to all questions of law’ ” in 

appeals from the board. Ohio Consumers’ Counsel v. Pub. Util. Comm., 121 

Ohio St.3d 362, 2009-Ohio-604, 904 N.E.2d 853, ¶ 13, quoting Ohio Edison Co. 

v. Pub. Util. Comm. (1997), 78 Ohio St.3d 466, 469, 678 N.E.2d 922. 

{¶ 15} Monroe offers four reasons for reversing the siting board. All 

favor the city if the siting board erred in determining the scope of its jurisdiction. 

For the following reasons, we agree with the city that the siting board erred and 

accordingly reverse the order and remand this case for further proceedings. 

B. Error in the Board’s Scope of Jurisdiction

{¶ 16} All the parties agree that some part of the proposed project 

constitutes “electric generating plant.” No one disputes that the siting board is the 

agency charged with ensuring that such facilities “represent[] the minimum 

adverse environmental impact.” R.C. 4906.10(A)(3). Nevertheless, although the 

facility is less than a mile from residential neighborhoods and only 1,200 feet 

from a school, the siting board declined even to consider whether there was 

another feasible location posing less environmental impact. 
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{¶ 17} The siting board reached this result by limiting its jurisdictional 

analysis to whether the contested facilities constituted “coke plant.”1 Finding that 

they did, the siting board disclaimed jurisdiction. In resolving the issue this way, 

the board disregarded the governing statute. 

{¶ 18} R.C. 4906.01(B)(1) controls the jurisdictional analysis and grants 

the siting board jurisdiction over “[e]lectric generating plant and associated 

facilities designed for, or capable of, operation at a capacity of fifty megawatts or 

more.” “Plant” means “the land, buildings, machinery, apparatus, and fixtures 

employed in carrying on * * * a mechanical or other industrial business.” 

Webster’s Third New International Dictionary (Ed.1986) 1731. In context, then, 

the siting board’s jurisdiction extends to land, buildings, and equipment employed 

in carrying on the business of generating electricity. 

{¶ 19} The statute’s additional coverage of “associated facilities” suggests 

that the term should not be read restrictively. And while the statute provides a 

jurisdictional cut-off based on capacity (“fifty megawatts or more”), it makes no 

exception for an electric generating plant and “associated facilities” that produce 

more than one commodity. The General Assembly could have modified or 

limited the siting board’s jurisdiction with respect to cogeneration facilities, but it 

has not done so, and the statute “ ‘must be applied as written.’ ” Weiss v. Pub. 

Util. Comm. (2000), 90 Ohio St.3d 15, 17, 734 N.E.2d 775, quoting State ex rel. 

Purdy v. Clermont Cty. Bd. of Elections (1997), 77 Ohio St.3d 338, 340, 673 

N.E.2d 1351. 

 

1. Counsel for the siting board raise one jurisdictional argument that the board did not mention or 

rely on in its orders below. (We assume, without deciding, that this is appropriate.) 

Characterizing the city’s appeal as an attack on a decision of the director of the Ohio 

Environmental Protection Agency, the siting board’s counsel argue that decisions on permits 

regarding the coke plant fall within the exclusive jurisdiction of the Environmental Review 

Appeals Commission (“ERAC”). See R.C. 3745.04(B). This argument lacks merit. Monroe 

plainly is not appealing from an action of the Ohio EPA, so ERAC’s exclusive jurisdiction is not 

implicated. 
January Term, 2010 

7 

{¶ 20} The siting board, as far as its orders show, never asked whether the 

contested land and equipment constituted “electric generating plant.” It 

characterized as “the coke plant” anything used to make coke and then disclaimed 

jurisdiction, regardless of whether it was also used to generate electricity. The 

statute, however, grants jurisdiction over “electric generating plant” and does not 

deny jurisdiction over “coke plant.” The question, then, is whether the contested 

land and facilities constitute electric generating plant. Concluding that they are 

“part of [a] coke plant” does not answer that question. 

{¶ 21} The assumption that any given parcel of land or piece of 

equipment can fit into only one of two categories—coke plant or electric 

generating plant—is false. The siting board has not explained why, as a matter of 

logic, the same land or equipment cannot be both coke plant and electric 

generating plant. Nor has it cited any legal authority in support of its either-or 

analysis. Factually, this case demonstrates that the same land and equipment may 

be used in both processes and thus fit both categories. 

{¶ 22} We reverse the siting board’s jurisdictional ruling. 

C. The Proceedings on Remand 

{¶ 23} The siting board committed the jurisdictional error early in the 

proceedings. In addition to affecting the scope of its substantive investigation and 

analysis, the siting board also limited the scope of discovery, cross-examination, 

and Monroe’s ability to introduce its own evidence into the record. It would be 

inconsistent with our reviewing function to conduct the requisite jurisdictional 

analysis in the first instance, particularly in the absence of a developed record. 

See, e.g., Indus. Energy Users-Ohio v. Pub. Util. Comm., 117 Ohio St.3d 486, 

2008-Ohio-990, 885 N.E.2d 195, ¶ 4 (remanding “matter to the commission for 

further findings” where “record [was] not fully developed”); W. Res. Transit Auth. 

v. Pub. Util. Comm. (1974), 39 Ohio St.2d 16, 19, 68 O.O.2d 9, 313 N.E.2d 811 

(matters arising under R.C. Chapter 4905 related to the general powers of the 
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Public Utilities Commission “are best heard, in the first instance, as required by 

law, by the * * * Commission”). Therefore, on remand, the siting board may 

determine how best to revisit the matters affected by its jurisdictional ruling. 

Nevertheless, in the interests of judicial economy and to provide guidance on 

remand, we address the following points of dispute. 

{¶ 24} First, at least some of the specific equipment over which the siting 

board disclaimed jurisdiction may constitute an “electric generating plant” — that 

is, equipment to be employed in the business of generating electricity. The siting 

board analyzed only one category of “coke plant” equipment in detail: heat 

recovery steam generators. These steam generators perform at least two tasks. 

They cool gas produced during the coking process and produce steam “used to 

generate electricity.” As a company witness testified, “the cogeneration station 

can’t operate without steam,” and there is no “other source of steam * * * aside 

from the steam generated by the * * * steam generators.” Thus, although steam 

generators play a part in producing coke, they may also be essential to generating 

electricity. 

{¶ 25} We leave such questions to the board to resolve in the first 

instance. 

{¶ 26} Furthermore, although the fact that the project will produce a 

substantial amount of coke does not go to jurisdiction, it could well be relevant to 

the substantive analysis. R.C. 4906.10(A)(3), for example, requires the siting 

board to determine “[t]hat the facility represents the minimum adverse 

environmental impact,” but then tempers this stringent minimum-impact 

requirement by requiring the siting board to “consider[] the state of available 

technology and the nature and economics of the various alternatives, and other 

pertinent considerations.” This statute broadly authorizes the siting board to 

balance just the sort of concerns raised by this case. 
January Term, 2010 

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{¶ 27} As a result of its erroneous jurisdictional ruling, the siting board 

never engaged in the balancing of interests required in this case. In any event, 

these balancing decisions must be “render[ed] * * * upon the record,” R.C. 

4906.10(A), and the siting board’s rulings unreasonably limited Monroe’s 

opportunities to develop the record. 

{¶ 28} It may well be that the best place for this generation facility is less 

than a mile from Monroe’s homes and schools, but the city is entitled to test that 

proposition through an effective adversarial proceeding. With a fully developed 

record and fact-supported explanation, effective judicial review will be possible. 

III. Conclusion 

{¶ 29} The order of the Ohio Power Siting Board is reversed, and the 

cause is remanded for further proceedings consistent with this opinion. 

Order reversed 

and cause remanded. 

 PFEIFER, O’CONNOR, O’DONNELL, and CUPP, JJ., concur. 

 LUNDBERG STRATTON, J., dissents. 

 BROWN, C.J., not participating. 

__________________ 

 LUNDBERG STRATTON, J., dissenting.

{¶ 30} I believe that the Power Siting Board has jurisdiction over the 

cogeneration station (power plant) only. Therefore, I respectfully dissent. 

{¶ 31} SunCoke Energy Inc., which owns Middletown Coke Company, 

filed an application for a certificate of environmental compatibility and public 

need to build a power plant as part of a coke plant adjacent to AK Steel 

Middletown Works in Butler County. The power plant is to include a steam 

turbine generator, a steam condensing system, a steam turbine operation and 

administrative building, cooling towers, and a generator step-up transformer. 

Heat from the coke plant’s ovens would be converted into steam, which would be 
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used as fuel for the power plant. The board approved SunCoke’s application for 

the power plant, concluding that the site chosen for the power plant would have 

“minimum adverse environmental impact,” R.C. 4906.10(A)(3), and would “serve 

the public interest, convenience, and necessity.” R.C. 4906.10(A)(6). The board 

did not consider the environmental impact of the proposed coke plant in making 

this decision. 

{¶ 32} The majority holds that the board has jurisdiction to examine the 

impact of the proposed power plant and the proposed coke plant. Consequently, 

the majority holds that on remand, the board may consider additional issues, such 

as whether coke production has an adverse environmental impact. 

{¶ 33} Although we have “complete and independent power of review as 

to all questions of law” in appeals from the siting board, Ohio Edison Co. v. Pub. 

Util. Comm. (1997), 78 Ohio St.3d 466, 469, 678 N.E.2d 922, we “may rely on 

the expertise of a state agency in interpreting a law where ‘highly specialized 

issues’ are involved and ‘where agency expertise would, therefore, be of 

assistance in discerning the presumed intent of our General Assembly,’ ” Ohio 

Consumers’ Counsel v. Pub. Util. Comm., 121 Ohio St.3d 362, 2009-Ohio-604, 

904 N.E.2d 853, ¶ 13, quoting Consumers’ Counsel v. Pub. Util. Comm. (1979), 

58 Ohio St.2d 108, 110, 12 O.O.3d 115, 388 N.E.2d 1370. In the instant case, I 

would defer to the board’s conclusion that it had jurisdiction over the power plant 

but not the proposed coke plant. 

Coke Plants Are Not “Associated Facilities” 

{¶ 34} Pursuant to R.C. 4906.04, the board has jurisdiction over 

construction of a “major utility facility,” which is defined as an “[e]lectric 

generating plant and associated facilities designed for, or capable of, operation at 

a capacity of fifty megawatts or more.” (Emphasis added.) R.C. 4906.01(B)(1). 

{¶ 35} The majority reasons, “The statute’s additional coverage of 

‘associated facilities’ suggests the term should not be read restrictively.” 
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(Emphasis added.) Majority opinion at ¶ 19. The majority later concludes that 

the proposed coke plant is an associated facility as defined in R.C. 4906.04(B)(1). 

{¶ 36} I believe that the majority takes the term “associated facilities” out 

of context. The rule of noscitur a sociis assists in defining the terms “electric 

generating plant” and “associated facilities.” The rule of noscitur a sociis, the 

word “ ‘is known from its associates,’ * * * follows from the premise that ‘the 

coupling of words denotes an intention that they should be understood in the same 

general sense.’ ” Wilson v. Stark Cty. Dept. of Human Servs. (1994), 70 Ohio 

St.3d 450, 453, 639 N.E.2d 105, quoting 2A Sutherland Statutory Construction 

(5th Ed. Singer Rev.1992) 183, Section 47.16. 

{¶ 37} Applying this rule, I would hold that the phrase “designed for, or 

capable of, operation at a capacity of fifty megawatts or more” modifies both 

“[e]lectric generating plant” and “associated facilities.” Thus, contrary to the 

majority, I would find that “associated facilities” is a restrictive term, not an 

expansive term. Specifically, a facility would qualify as an “associated facility” 

only if it is “designed for” or is “capable of” producing electricity. 

{¶ 38} In the instant case, the proposed coke plant is not designed for, nor 

will it be capable of, producing electricity. It is intended to make coke. The heat 

that is used to create steam as fuel for the power plant is merely a waste product 

of that process. Thus, I would hold that the proposed coke plant is not an 

associated facility as defined in R.C. 4906.01(B)(1). 

The EPA Has Jurisdiction over Coke Plants 

{¶ 39} The majority also supports its holding by reasoning that while R.C. 

4906.01(B)(1) “grants jurisdiction over an ‘electric generating plant,’ ” it “does 

not deny jurisdiction over ‘coke plant.’ ” (Emphasis sic.) Majority opinion at ¶ 

20. Consequently, the majority indicates that on remand, the board may consider 

the environmental impact of the coke plant in deciding whether the power station 

should be permitted. The majority’s reasoning and the scope of this remand are 
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especially troubling when considered in the context of arguments made by 

appellant, the city of Monroe, that the proposed coke plant will threaten the 

“region’s air quality.” 

{¶ 40} The Ohio Environmental Protection Agency (“EPA”) regulates 

coke ovens. R.C. 3704.03(F)(1). See also State ex rel. Sierra Club v. Koncelik, 

Franklin App. No. 05AP-643, 2005-Ohio-6477, ¶ 3 (construction of coke ovens 

requires a permit from the Ohio EPA). Consequently, any consideration by the 

board regarding the emissions of the proposed coke ovens necessarily intrudes 

upon the Ohio EPA’s jurisdiction. 

{¶ 41} At the hearing before the administrative law judge in the instant 

case, the following exchange took place: 

{¶ 42} F. Joseph Schiavone, an intervenor in the dispute, stated: “Your 

Honor, at this time I would ask a continuance of this matter in so much as to 

proceed at this time would be premature based upon — two reasons. First of all, 

the Ohio EPA has yet to rule on Middletown Coke’s Application for permit to 

install and there is a possibility if this Board were to –- or if this Judge were to 

grant the permit, construction would begin immediately on this cogeneration 

plant. And we could find ourselves in a situation with a generation plant without 

an upstream power source if the Ohio EPA were to find that for whatever reason a 

permit would not be granted or it would be granted conditionally upon conditions 

that could not be met by Middletown Coke.” 

{¶ 43} M. Howard Petricoff, attorney for Middletown Coke, responded: 

“Your Honor, the premise on which this motion is based is that the project would 

have to be ready to go and have approvals from other agencies other than the 

Power Siting Board before the Power Siting Board could rule. There is no 

citation in this motion as to any statute, rule, regulation, or other legal requirement 

that calls for the EPA permit to have been issued or for all the land to be 

purchased.” 
January Term, 2010 

13 

{¶ 44} From this conversation, it is evident that the parties anticipated that 

the coke plant would be regulated by the Ohio EPA, not the board. Moreover, 

one of the board members who signed the board’s opinion, order, and certificate 

considering and approving the power plant only was Christopher Korleski, who is 

also the director of the Ohio EPA. 

{¶ 45} The majority’s holding will provide the board the authority to 

trump the EPA regarding the construction of the proposed coke plant. 

Conclusion 

{¶ 46} I believe that the majority’s holding expands the board’s 

jurisdiction beyond what the General Assembly intended and that it encroaches 

upon the Ohio EPA’s jurisdiction to regulate coke ovens. Consequently, I would 

defer to the board’s decision that it has jurisdiction over the proposed power plant 

but not the proposed coke plant. Thus, I would affirm the decision of the Power 

Siting Board. Accordingly, I respectfully dissent. 

__________________ 

Van Kley & Walker, L.L.C., Jack Van Kley, and Christopher A. Walker; 

and K. Philip Callahan, Monroe Law Director, for appellant. 

Richard Cordray, Attorney General, and Samuel Peterson, Margaret A. 

Malone, Duane W. Luckey, and Thomas G. Lindgren, Assistant Attorneys 

General, for appellee, Ohio Power Siting Board. 

Vorys, Sater, Seymour & Pease, L.L.P., M. Howard Petricoff, and Stephen 

M. Howard, for intervening appellee, Middletown Coke Company. 

______________________