89 Ohio St. 3d 477 | Ohio | 2000
Lead Opinion
The Court of Appeals for Sandusky County journal-ized an entry in R&R Service v. Petroleum Underground Storage Tank Release Comp. Bd. that certified: “[T]his court finds that our judgment in the instant appeal [which upheld the validity of Ohio Adm.Code 3737-l-07(A)(l) ] is in conflict with Amoco Oil Co. v. Petroleum Underground Storage Tank Release Comp. Bd. (June 30, 1999), Montgomery App. No. 17672, unreported [1999 WL 961243], on the issue of whether Ohio Adm.Code 3737-l-07(A)(l) is an invalid rule.” For the following reasons, we find that Ohio Adm.Code 3737-l-07(A)(l) is a valid rule and affirm the judgment of the Sandusky County Court of Appeals.
Appellee Amoco makes three arguments as to why Ohio Adm.Code 3737-1-07(A)(1) is invalid.
Ohio Adm.Code 37'37-1-07(A)(1) Is Necessary and Appropriate
It is well settled that the General Assembly cannot delegate legislative authority, but it can delegate rule-making authority to agencies. Belden v. Union Cent. Life Ins. Co. (1944), 143 Ohio St. 329, 342, 28 O.O. 295, 300-301, 55 N.E.2d 629, 635. In delegating this authority, ordinarily the General Assembly must provide standards to guide the agency in its rulemaking. Id. at paragraph three of the syllabus. The administrative agency must adopt rules within the standards provided by the General Assembly in order for the rules to be valid. Burger Brewing Co. v. Thomas (1975), 42 Ohio St.2d 377, 379, 71 O.O.2d 366, 367, 329 N.E.2d 693, 695.
The General Assembly’s grant of authority to the Board to adopt rules to administer the Fund is found in R.C. 3737.90(B). It states:
“The board may:
U * # *
Pursuant to this broad grant of authority, the Board adopted Ohio Adm.Code 3737-1-07, which states:
“(A) As a prerequisite to determining fund payment of or reimbursement for corrective action costs for an accidental release of petroleum, the director * * * shall issue a determination of eligibility for payment * * * where all of the following conditions are established:
“(1) * * * for releases which are or were reported to the fire marshal * * * on or after January 1, 1996, receipt [of a completed eligibility application] within one year from the date the release is or was required to be reported to the fire marshal * * * which has been made by a responsible person.”
Ohio Adm.Code 1301:7-9-13(C) requires “[o]wners and operators [of USTs] [to] report a release or suspected release to the fire marshal * * * within twenty-four hours of discovery by the owner or operator.” Thus, Ohio Adm.Code 3737-1-07 requires the owner or operator of a UST to file an eligibility application within one year and one day of the date of the discovery of a release.
Amoco argues that the one-year time limit for submitting an eligibility application is neither necessary nor appropriate becausé the eligibility criteria set out in R.C. 3737.92(D) and Ohio Adm.Code 3737-1-07 are not time sensitive. Amoco is incorrect.
It is the Director who determines whether a UST owner is eligible. See R.C. 3737.92(B)(1), incorporating R.C. 3737.92(D) by reference. One of the criteria required under the eligibility claim is that “[a]t the time that the release was first suspected or confirmed, a responsible person possessed a valid certificate of coverage * * * for the petroleum underground storage tank system from which the release occurred.” This language “for the petroleum underground storage system tank from which the release occurred” unambiguously places an obligation on the Director to determine the origin of the release. Thus, the Director is responsible for tracing a release to the leaking tank in order to make sure the release occurred from a tank with a valid certificate of coverage. R.C. 3737.92(D)(1). Tracing petroleum is a time-sensitive task that becomes more difficult with the passage of time because the petroleum diffuses, making it more difficult to trace.
Further, the Fire Marshal has no obligation to determine if a UST owner has a valid certificate of coverage from the Fund and may not obtain all the information the Director requires to determine eligibility.
Finally, even if the Fire Marshal has traced the release to the leaking tank, it does not absolve the Director of'his independent responsibility to trace the release. The Director of the Board has an independent duty to trace the release to the tank from which it emanated pursuant to R.C. 3737.92(D)(1) for the purpose of determining whether the release emanated from a tank with a valid certificate of coverage. Therefore, regardless of the Fire Marshal’s responsibilities, tracing a release to the leaking tank is a responsibility to be determined by the Director of the Board. Thus, the one-year time limit for submitting an eligibility application set out in Ohio Adm.Code 3737-1-07 has a temporal connection to the Director’s obligation to trace the release.
The one-year time limit for submitting an eligibility application also assists the Board in budgeting for the Fund. The rule addressing eligibility applications requires that owners or operators of USTs submit cost estimates of the required corrective actions. Ohio Adm.Code 3737-l-07(A)(4). Absent this one-year time limit on submission of interim cost estimates, the Board would not become aware of a UST owner’s or operator’s costs for corrective actions until submission of a
The Court of Appeals for Montgomery County in the Amoco case held, and Amoco argues, that because the General Assembly has provided the Board authority to raise the fee assessment to tank owners and to pay claims in installments, the one-year time limit in Ohio Adm.Code 3737-1-07 is not necessary or appropriate because the Board can address any shortfalls in the Fund by using these tools to raise revenue. While the Board does have these tools at its disposal, it does not alleviate the need for early submission of cost estimates to assist in forecasting the budget for the Fund.
Similar to a substantial fee increase, the cost of financing a shortfall in the Fund by issuing a substantial amount of bonds in a short period could result in dramatically increased interest costs. This too could result in a steep increase in costs to the UST owners and operators because the Board can pass on interest costs to the UST owners/operators. The mere fact that the Board has the authority to issue bonds does not supplant the Board’s obligation to manage the Fund in an optimum manner. Budgeting is one of the tools that facilitates proper management of the Fund.
Finally, implementation of installment payments to reimburse costs for corrective action could be detrimental to the environment. Where UST owners are unable to afford to finance cleanup costs up front, they will be unable to pay cleanup contractors until they receive payments from the Fund. Where cleanup contractors require immediate payment for their services, cleanup will only occur as the money is dispensed over the installment period. Depending on the length of the cleanup, installment payments by the Board could cause cleanup to be stretched out over years. Delayed cleanup can only be detrimental to the environment.
The purpose of administrative rulemaking is to facilitate an administrative agency’s placing into effect the public policy embodied in legislation to be administered by the agency. Chambers v. St. Mary’s School (1998), 82 Ohio
Ohio Adm.Code 3737-1-07 Does Not Conflict with the Revised Code
Rules adopted by administrative agencies are valid and enforceable unless unreasonable or in conflict with the statutory enactment covering the same subject matter. State ex rel. DeBoe v. Indus. Comm. (1954), 161 Ohio St. 67, 53 O.O. 5, 117 N.E.2d 925.
Amoco argues that Ohio Adm.Code 3737-l-07(A)(l) impermissibly adds an unauthorized one-year time limitation period to the statutory eligibility criteria. Amoco is correct that an administrative rule cannot add or subtract from the legislative enactment. See Cent. Ohio Joint Vocational School Dist. Bd. of Edn. v. Ohio Bur. of Emp. Serv. (1986), 21 Ohio St.3d 5, 10, 21 OBR 269, 273, 487 N.E.2d 288, 292. However, this court has distinguished between substantive and procedural rights. Viers v. Dunlap (1982), 1 Ohio St.3d 173, 175, 1 OBR 203, 205, 438 N.E.2d 881, 883, overruled on other grounds, Wilfong v. Batdorf (1983), 6 Ohio St.3d 100, 6 OBR 162, 451 N.E.2d 1185. In recognizing this distinction, this court has held that an administrative rule placing a time limit within which a party must act is procedural and within the agency’s rule-making authority. See, generally, State ex rel. Curry v. Indus. Comm. (1979), 58 Ohio St.2d 268, 12 O.O.3d 271, 389 N.E.2d 1126; Hartzell Propeller, Inc. v. Ohio Bur. of Emp. Serv. (1989), 65 Ohio App.3d 575, 584 N.E.2d 1263; Martin v. Franklin Cty. Sheriffs Dept. (June 25, 1991), Franklin App. Nos. 90AP-1342 and 90AP-1343, unreported, 1991 WL 123981.
Ohio Adm.Code 3737-l-07(A)(l) requires that eligibility applications be submitted within one year of the date on which a discovered release is to be reported to the Fire Marshal. There are no other statutorily set time limitations in R.C. Chapter 3737 that pertain to the eligibility application. Thus, Ohio Adm.Code 3737-l-07(A)(l) does not impermissibly add to, or conflict with, the General Assembly’s legislative enactment addressing USTs, it merely provides a time limitation that is within the Board’s rule making authority. DeBoe and Curry, supra.
Amoco argues that the one-year limitation for submitting eligibility claims violates the Board’s public policy mandate because it denies eligibility to owners or operators of USTs who otherwise meet the statutory criteria for eligibility.
The public policy of the Board is “to contribute toward one or more of the following: to preserve and protect the water resources of the state and to prevent, abate, or control the pollution of water resources, particularly ground water, for the protection and preservation of the public health, safety, convenience, and welfare, to assist in the financing of repair and replacement of petroleum underground storage tanks and to improve property damaged by any petroleum releases from those tanks, and to preserve jobs and' employment opportunities or improve the economic welfare of the people of the state.” R.C. 3737.94(A).
The Board administers the Fund primarily for the purpose of reimbursing qualified UST owners and operators for the cost of corrective actions. R.C. 3737.92(A)(3). While upholding the one-year limitation in Ohio Adm.Code 3737-1-07(A)(1) could preclude some otherwise qualified owners or operators of USTs from becoming eligible for compensation, we have determined in our discussion above that the deadline is necessary and appropriate for the Board to administer the Fund. For example, the one-year time limit assists the Board in budgeting for the Fund, and allows the Board to more gradually increase tank fees. This “improve[s] the economic welfare of the people of the state,” one of the enumerated public policy goals of the Board, by easing the impact of tank fees on tank owners.
The One-Year Time Limit in Ohio Adm.Code 3737-1-07 Is Reasonable
Ohio Adm.Code 3737-1-07 provides the responsible person one year to present the Board with the eligibility application from the time the release was required to be reported to the Fire Marshal. Amoco argues that the one-year time period is unreasonable. Amoco correctly states that a site assessment requires approval by the Fire Marshal. Amoco argues that because the Fire Marshal is not subject to any deadline for approving a site assessment, the time for filing the eligibility application may expire before the site assessment is approved. Implicit in Amoco’s argument is that the information contained in the site assessment must be included in the eligibility application. There is nothing in the rules that indicates that all this information must be included in an eligibility application. The eligibility criteria only require that a UST owner or operator be in compliance with the Fire Marshal’s orders at the time the eligibility application was filed. See R.C. 3737.92(D)(3); Ohio Adm.Code 3737-l-07(A)(6).
Thus, we hold that Ohio Adm.Code 3737-1-07 is a necessary and appropriate rule for the administration of the Fund. It does not conflict with or add to other provisions of the legislative enactment pertaining to regulation of USTs, and the time limit is not unreasonable. Accordingly, we affirm the judgment of the Court of Appeals for Sandusky County in the R&R Service case, but reverse the judgment of the Court of Appeals for Montgomery County in the Amoco case.
Judgment affirmed in case No. 99-1780.
Judgment reversed in case No. 99-U8L
. Amoco and R&R Service submitted a joint brief asserting that Ohio Adm.Code 3737-1-07 is invalid. For purposes of simplicity, we will refer to these joint arguments as being made by Amoco.
Concurrence Opinion
concurring in judgment only. I agree with the majority that Ohio Adm.Code 3737-l-07(A)(l) is valid, that the judgment of the court of appeals in Amoco should be reversed, and that the judgment of the court of appeals in R&R should be affirmed. My reasons for concurring, however, revolve around the following points, emphasized by the court of appeals in R&R to illustrate why the rule is a permissible exercise of the Board’s authority to adopt rules that are “necessary and appropriate” for the administration of the Fund.
First, R.C. 3737.92 places procedural conditions on a responsible person’s eligibility for payment from the Fund. Eligibility and entitlement to payment, therefore, are not synonymous under the statute. Furthermore, R.C. 3737.90(B) expressly authorizes the Board to adopt rules that are necessary and appropriate for the administration of the Fund, and sets out a nonexhaustive list of ways it might do that. Procedural rules adopted by the Board, then, are not rendered invalid merely because they impose conditions on entitlement to payment that are not found in the statute.
Finally, the fact that the deadline may preclude some otherwise eligible persons from obtaining payment from the Fund does not render it violative of public policy, as “the [Fund’s] goal of financial responsibility for corrective action necessitated by a petroleum leak is [as] important” as the “overall purpose of * * * promoting] environmental health and safety by encouraging owners and operators to comply with environmental standards.” R&R appellate opinion.
Dissenting Opinion
dissenting. The one-year limitations period at issue in this case, Ohio Adm.Code 3737 — 1—07(A)(1), exceeds the Board’s rule-making authority because it is neither necessary nor appropriate. R.C. 3737.90(B). It is not necessary because there are many lesser sanctions that would serve a similar purpose; it is not appropriate because it is as likely to thwart the purposes of the Board as to advance them. See R.C. 3737.94(A) (charging the Board “to preserve and protect the water resources of the state and to prevent, abate, or control the pollution of water resources, * * * to assist in the financing of repair and replacement of petroleum underground storage tanks and to improve property damaged by any petroleum releases from those tanks”).
Preventing stale claims and ensuring fiscally sound management are solid goals. They can be readily accomplished through lesser sanctions, such as providing a lesser percentage of total cost or placing stale claims at the end of the payment line. The total cutoff for eligibility claims effected by the one-year limitations period is the province of the General Assembly. Accordingly, I would affirm the judgment in the Amoco case and reverse it in the R&R Service case, and hold that the one-year limitations period exceeds the Board’s rule-making authority. I dissent.