394 N.E.2d 339 | Ohio Ct. App. | 1978
Lead Opinion
This matter comes before this court as an appeal pursuant to R. C.
On October 23, 1974, Republic Steel Corporation (hereinafter Republic) filed an application for a permit to install a new coke battery (Battery No. 1) at its Cleveland district plant and simultaneously began construction of this facility. On December 23, 1975, the Director of the Ohio Environmental Protection Agency (hereinafter Director and O. E. P. A. respectively) denied Republic's application as did the city of Cleveland and the United States Environmental Protection Agency. Subsequently, Republic filed a timely request for an adjudication hearing in accordance with O. A. C.
Subsequently, on August 6, 1976, the Broadway Christian Church, the Broadway United Methodist Church, the Broadway Retirees' Fellowship, the Southwest Civic Association, the Forest Park Civic Association, and the Northern Ohio Lung Association (hereinafter referred to collectively as Broadway) appealed to the Environmental Board of Review (hereinafter the Board), challenging the validity of the Consent and Abatement Order. After an extensive hearing de novo,1 the Board ruled that the Consent and *245
Abatement Order was unlawful because R. C.
Republic's Sole Assignment of Error:
"The board erred in holding that the director had no authority to issue the consent and abatement order herein."
Director's Assignment of Error No. 1:
"The Environmental Board of Review erred in holding that the Director of Environmental Protection has no authority to issue consent orders pursuant to enforcement authority granted by section
The Board held that the Consent and Abatement Order was unlawful because "nowhere in R. C.
"Sec.
"The director of environmental protection may:
"* * *
"(S) Issue, modify, or revoke orders prohibiting or abating emissions which violate applicable emission standards, or requiring emission control devices or measures in order to comply with applicable emission standards. In the making of such orders the director shall give consideration to, and base his determination on, evidence relating to the technical feasibility and economic reasonableness of compliance with such orders, and their relation to benefits to the people of the state to be derived from such compliance." *246
In reaching its conclusion, the Board noted (1) that R. C.
"* * * [u]nder R. C.
In the same vein, it is too confining to suggest that the Director may not issue consent orders. R. C.
The Franklin County Court of Appeals addressed another similar question in Columbia Township Trustees v. Williams,
unreported, Case Nos. 76 AP-107, 76 AP-109, 76-AP-153, decided August 5, 1976. In that case, the Board vacated the Director's issuance of a permit to install a sanitary landfill because the O. E. P. A. did not have legal authority to issue such a permit. The applicable statute, R. C.
"First, contrary to the finding of the EBR, we find nothing violative of the law in the issuance by the director of what the EPA terms a `permit to install.' Although R. C.
Similarly, in the case at bar, the Director issued a consent order in furtherance of his statutorily imposed powers.
In this case, it is necessary to review the facts before the Director and the options available to him. One alternative was to conduct an adjudication hearing on the proposed denial of a permit to install which would inevitably have resulted in a final denial since Republic could not meet the requirements specified in O. A. C.
In Cleveland Electric Illuminating Co. v. Williams,
unreported, Tenth Appellate District, case Nos. 76 AP-929, 76 AP-938, decided December 18, 1977, the Franklin County Court of Appeals recognized that the Director has broad discretionary enforcement options and that he need not necessarily seek an injunction pursuant to R. C.
Accordingly, we hold that the Board erred when it held that the Director does not have the authority to issue consent orders. Republic's sole assignment of error and the Director's Assignment of Error No. 1 are therefore sustained.7 Director's Assignment of Error No. 2:
"The Environmental Board of Review erred in holding that the Director of Environmental Protection must hold evidentiary hearings before settlement of administrative litigation through the issuance of an enforcement order pursuant to Section
In its joint findings of fact, the board found that:
"R. C.
R. C.
Such is the case here. For those who wish to challenge the order, R. C.
Director's Assignment of Error No. 3:
"The Envioronmental Board of Review erred in ordering the Director of Environmental Protection to issue to Republic Steel Corporation conditional operating permits pursuant to Section
Broadway's Assignments of Error No. 1 and No. 2:
"The Environmental Board of Review erred in permitting the immediate operation of Coke Oven Battery No. 1 because the operation of that Battery, in its present condition, violates Ohio law, whether that operation is pursuant to the consent agreement appealed from, or pursuant to a conditional permit."
"The Environmental Board of Review erred in permitting the immediate operation of Coke Oven Battery No. 1 because the operation of a new source of air pollution in a non-attainment region, without the pollution controls required by law, is in violation of applicable federal statutes."
Central to the complaints of Broadway and the Director is Republic's failure to obtain a permit to install Battery No. 1. The acquisition of such a permit is a prerequisite *252
to operation of any new air contaminant source.9 O. A. C.
R. C.
Broadway also alleges that federal regulations (40 C. F. R., Section 51.18(b)) prohibit the construction of new sources such as Battery No. 1 in areas where national ambient air qualitty standards have not been achieved. That section is not a prohibition of such new sources of pollutants, rather it is a guideline to be utilized by the states when promulgating state implementation plans. Moreover, an interpretative ruling of the United States Environmental Protection Agency, in 40 C. F. R., Section 51.18 has provided, in general, that:
"* * * a major new or modified source [may] locate in an area that exceeds a national ambient air quality standard (NAAQS) only if stringent conditions can be met. These conditions are designed to insure that the new source's emissions will be controlled to the greatest degree possible; that more than equivalent offsetting emission reductions (`emission offset') will be obtained from *253
existing sources; and that there will be progress toward achievement of the N.A.A.Q.S. * * *"
Battery No. 1 meets all of the standards. After considerable study and testing, Republic has contracted for the one spot car to be constructed for Battery No. 1, which, upon completion, is expected to achieve national ambient air quality standards. Indeed, the consent order entered by the United States Environmental Protection Agency has found this to be the case.10
The Director's Assignment of Error No. 3 is sustained; Broadway's Assignments of Error No. 1 and No. 2 are sustained only to the extent that Battery No. 1 is illegally operating under a conditional permit.
Broadway's Assignment of Error No. 3:
"The Environmental Board of Review erred in requiring public notice simultaneously with the operation of the new coke oven battery because `simultaneous' notice fails to comply with both state and federal procedural statutory requirements."
The Board ordered the Director to immediately issue a conditional operating permit to Republic "citing therein as its evidentiary basis the facts adduced before the EBR in Case No. 76-24." In addition, the Director was ordered to issue public notice and obtain public participation in order to satisfy the requirements of Chapter 119 of the Revised Code and 40 C.F.R., Section 52.1879 during the sixty day duration of that permit. Prior to the expiration of that period, the Director was instructed to determine whether or not to issue a second conditional operating permit, authorizing operation until the earliest possible date that Republic can install necessary emission controls. Broadway contends that this order violates the federal notice requirements of 40 C. F. R., Section 52.1879.
In light of our holding that the Board erred in ordering the Director to issue a conditional operating permit for *254 Battery No. 1, this assignment of error dealing with notice on permits to install or construct new air pollution sources is rendered moot. Since we have concluded that a consent decree is an enforcement order intended to remedy violations of law, federal regulations dealing with permits are inapplicable.
Accordingly, the Director's Assignment of Error No. 3 is dismissed.
Broadway's Assignments of Error No. 4 and No. 5:
"The Environmental Board of Review erred by placing the ultimate burden of proof upon the appellants."
"The Environmental Board of Review erred by placing upon the appellants the burden of proof with respect to the economic reasonableness of the director's order, where the evidence necessary to prove such an assertion is peculiarly within the sole possession and control of Republic."
At the de novo hearing before the Board, the Board placed theburden of proof on Broadway while the burden of proceeding was imposed on Republic and the Director. The burden of proof may be defined as "[t]he necessity of establishing the existence of a certain fact or set of facts by evidence which preponderates to a legally required extent." Martin v. City of Columbus (1920),
Broadway cites to O. A. C.
When an ajdudication hearing is conducted by the Director, on appeal the Board acts as an appellate agency and reviews the evidence presented below. However, when the Director does not conduct an adjudication hearing, as is the case here, the Board must hold a hearing de novo. R. C.
The judgment is reversed and the cause is remanded for further proceedings consistent with this opinion.
Judgment reversed and cause remanded.
STILLMAN, P. J., and KRUPANSKY, J., concur.
"(D) If, at a prehearing conference or at any other time prior to the termination of the hearing, the parties agree to a settlement, the Hearing Examiner may recommend in writing to the Director that the settlement terms be adopted as a final order;or the parties may prepare a suggested consent order, signed by the parties other than the Agency, which may be submitted along with the file to the Director for adoption after consideration of all materials in the file." (Emphasis added.)
"R. C.
"The director of environmental protection may:
"(S) Issue, modify, or revoke orders prohibiting or abating emissions which violate applicable emission standards, or requiring emission control devices or measures in order to comply with applicable emission standards. In the making of such orders the director shall give consideration to and base his determination on, evidence relating to the technical feasibility and economic reasonableness of compliance with such orders and their relation to benefits to the people of the state to be derived from such compliance.
"(T) Exercise all incidental powers required to carry out sections
"Republic and the Director agreed to resolve all issues raised in this adjudication proceeding as set forth in this Consent and Abatement Order. It is acknowledged that no evidence has been submitted and no issue of law or fact has been tried."
"
"(A) (1) The burden of proof at all hearings with respect to applications, permits, licenses, variances, and certificates shall be upon the applicant."
Concurrence Opinion
I join in the determination of the court with respect to the issues presented upon appeal, but I would add two additional observations which I believe are pertinent to the case.
The first is my view that the determination at which we have arrived is primarily predicated on pragmatic rather than specifically legal considerations.
Republic Steel undertook to construct a facility without having received the requisite permit. Its construction in this regard has now been condoned by the Director of the *256 Environmental Protection Agency of Ohio and this court. I do not believe that such a disregard of the law should be summarily dismissed as insignificant in terms of its potentiality for future abuse. The case before us is not limited in its implications to the specifics of this single occurrence. If we are to genuinely seek the protection of the environment which we profess through the enactment of comprehensive legislation and the establishment of appropriate enforcement agencies, it is necessary to support both the statutes and the agencies through a meaningful application of the law. In the instant case, Republic has promised to install the necessary systems to assure the adequate control of noxious emissions by September 1, 1978. Presumably, this will be done. If, however, further action on behalf of environmental protection groups becomes necessary after that date, this decision may prove unwarrantedly precedential in inhibiting aggressive action.
The second concern which I wish to express relates to the current confusion and overlapping which has developed in the area of environmental control. The fact that both the federal government and the several states are currently seeking to legislate through congressional enactments and statutory law gives rise to the possibility of conflicting judgments and endless litigation. As we have noted in this opinion, the environmental groups in this case are currently contesting a federal consent agreement in the United States Court of Appeals for the Sixth Circuit. Such a process of seemingly vexatious litigation must lend urgency to a resolution of conflicts of this kind. It is possible that the Sixth Circuit case may alter the significance of the decision herein, all to the prejudice of efforts to solve the problems with which we have struggled. It would seem highly desirable in this area for the adoption of uniform state and national legislation to deal with the expanding field of environmental protection. See, StateEnvironmental Policy Acts: A survey of Recent Developments, 2 Harv. Environmental L. Rev. 419 (1977); see also, TheEnvironmental Impact Statement Requirement in Agency EnforcementAdjudication, 91 Harv. L. Rev. 815 (1978). *257