458 N.E.2d 886 | Ohio Ct. App. | 1983
This is an appeal, pursuant to R.C.
These rules were promulgated by the director, appellant herein, as modifications and additions to Ohio's water quality standards, after three public hearings were held on the proposed modifications and additions to said standards and numerous public comments were received. Following appellant's promulgation of said rule changes and additions, twenty-five cities and industries, appellees herein, filed appeals to the board.
Because of a running dispute between the OEPA and the United States Environmental Protection Agency ("United States EPA"), as to the proposed rule changes and additions, the parties to the various appeals pending before the board agreed to proceed, by briefs and oral arguments, only as to assignments of error alleging procedural irregularities committed by the director in adopting the new standards.
The various appellees claimed before the board that appellant had prevented meaningful public comment at the three public meetings, because the OEPA prepared its scientific and technical rationale for the standards after the public comment period was closed, depriving the public of the opportunity to prepare meaningful comment; that OEPA had engaged in ex parte contacts with the United States EPA concerning said proposed rules and failed to allow public comment on the data and other information received; and that the final rules promulgated by OEPA were not consistent with the notice of the public hearing as required by R.C.
Following a hearing on November 17, 1981, the board, in a split decision, vacated "[t]hat portion of the Director's Order of December 30, 1977 promulgating O.A.C. Rules
In support of its order, the board issued the following three rulings:
"1. Where scientific and technical support data are essential to understand the Agency's proposed rules such data must be disclosed to the public and disclosed in time such that meaningful public comment is capable of being prepared and timely submitted in advance prior to the end of a comment period.
"2. Where a party engages in the submission of ex parte comments to the Agency on proposed rules the Agency must either refuse to consider these submissions or provide a substantial summary for public review and a reasonable period for opposing parties to respond. This restriction extends to all parties including the United States Environmental Protection Agency.
"3. Where final rules are so substantially different from the proposed rules or the public notice of the proposed rules that meaningful comment on the final rules was impossible to prepare during the comment period, a new comment period must be provided."
Appellant has appealed the order of the board and has filed the following five assignments of error:
"1. The Environmental Board of Review erred by requiring the Ohio Environmental Protection Agency to publish and provide an additional opportunity for public comment on its rationale for adoption of a proposed rule.
"2. The Environmental Board of Review erred by forbidding the Ohio Environmental Protection Agency from accepting or considering any communication regarding a proposed rule, unless the agency gives notice of the communication to all affected persons and provides an opportunity for response by those persons.
"3. The Environmental Board of Review erred by forbidding the Ohio Environmental Protection Agency from making any revisions in its rules unless the revisions are publicly noticed or requested by the commentators on the rules.
"4. The Environmental Board of Review erred by making findings of fact as to facts which were material and *137 disputed without holding a de novo hearing.
"5. The Environmental Board of Review erred in vacating that portion of the Director's order of December 30, 1977 promulgating amended water quality standards without also vacating the portion of the Director's order rescinding the pre-existing water quality standards."
The assigned errors are well-taken.
In his first three assigned errors, appellant contends that the board erred in requiring rulemaking procedures by the OEPA beyond those required by R.C.
The purpose of the Environmental Board of Review is to hear appeals from any party to a proceeding before the director of the OEPA from the actions of the director. As a result of such an appeal, the board has the power to determine if the action appealed from was lawful and reasonable. R.C.
The procedure for state agencies in Ohio to follow in adopting, amending or rescinding rules is set forth in R.C.
In the cause sub judice, the board added certain requirements to the procedure provided by R.C.
However, R.C.
As this court stated in Ohio Grape Growers, Vintners BottlersAssn. v. Bd. of Liquor Control (1961),
"* * * Under Section
In addition to its three added procedural requirements, the board also found the public notice of the public meetings did not comply with the requirements of R.C.
R.C.
"A synopsis of the proposed rule, amendment, or rule to be rescinded or a general statement of the subject matter to which the proposed rule, amendment, or rescission relates;" *138
The public notice published by the director in the instant cause, in pertinent part, reads:
"Under authority vested in its Director by Ohio Revised Code Section
"These major amendments contemplate an abandonment of the all uses, all times surface waters classification in present 3745-1 and a partial return to the system of variable use designations and varied standards in effect prior to adoption of 3745-1 in July 1973. Other major changes are also proposed."
Appellant does not contend that the public notice included a synopsis of the proposed changes in the rules applying to water quality standards, but contends the notice included a general statement of the subject matter to which the proposed rules, amendments, and rescissions related.
The terms "general" and "statement" are defined in Webster's Third New International Dictionary (1971), as follows:
"General
"[3]b: concerned or dealing with universal rather than particular aspects * * * 4: marked by broad overall character without being limited, modified, or checked by narrow precise considerations: concerned with main elements, major matters rather than limited details, or universals rather than particulars: approximate rather than strictly accurate * * *."
"Statement
"1: the act or process of stating, reciting, or presenting orally or on paper * * * 2: something stated: as a: a report or narrative (as of facts, events, or opinions): ACCOUNT, RECITAL * * *."
We conclude that the public notice did include a general statement, within the meaning of R.C.
As to the consistency requirement of R.C.
"Amendments which are finally adopted pursuant to Section
We further conclude that the final rules promulgated by appellant were consistent with the public notice as required by R.C.
In his fourth assignment of error, appellant contends that the board erred in making findings of fact when it did not conduct ade novo hearing. Appellant points to the board's findings of fact that "[t]echnical support data for many of the proposed standards was [sic] not compiled by Ohio EPA until after the comment period had closed," and the board's finding that the final standards adopted by the appellant were a "product" of the meetings between OEPA and United States EPA when it had no evidence before it from which to reach such findings.
In Union Camp Corp. v. Whitman (1975),
"R.C.
A hearing de novo is defined as "* * * a new hearing or a hearing for the second time, contemplating an entire trial in same manner in which matter was originally heard and a review of previous hearing. * * *." Black's Law Dictionary (5 Ed. 1979).
This court, in Columbia Township Trustees v. Williams (App. 1976), 11 Ohio Op. 3d 233, at page 236, stated:
"A fair hearing before the EBR would require that a determination or finding of this board must be based upon evidentiary facts which are introduced, admitted and spread upon the record of the hearing. A finding and order of such board may not be reached upon that which is not to be found within the record. In a review of such record before the board, this court, in order to affirm such order, must find that it is supported by reliable, probative and substantial evidence and is in accordance with law."
In the instant cause, the board and the parties agreed that the parties would brief and orally argue the assignments of error going to alleged procedural defects on the part of the director in promulgating the new water quality standards. However, the transcript of proceedings of the November 17, 1981 hearing before the board indicates no evidentiary facts were "introduced, admitted and spread upon the record of the hearing."
R.C.
Once evidentiary facts as to said procedural issues are before the board, then the parties may brief and orally argue to the board as to said procedural issues. Subsequently, the board may issue an order as to the lawfulness and reasonableness of the director's procedures and include in that order written findings of fact upon which the order is based.
Having no evidentiary facts before it, the board erred in making findings of fact and issuing an order, based upon said findings, which vacated the director's promulgated rules.
In his last assignment of error, appellant contends that it was error on the part of the board to vacate only the amended water quality standards portion of the director's order of December 30, 1977, and, thus, leave standing that portion of the director's order which rescinded existing water quality standards.
R.C.
"If, upon completion of the hearing, the board finds that the action appealed from was lawful and reasonable, it shall make a written order affirming the action[;] if the board finds that the action was unreasonable or unlawful, it shall make a written order vacating or modifying the action appealed from. Every order made by the board shall contain a written finding by the board of the facts upon which the order is based. Notice of the making of the order shall be given forthwith to each party to the appeal by mailing a certified copy thereof to each party by certified mail, with a statement of the time and method by which an appeal may be perfected."
We conclude that the board erred in vacating only a portion of the action appealed from. Having, in effect, determined the action of the director in rescinding the existing water quality standards and promulgating new standards in their place was unlawful and unreasonable, the board was under a statutory duty to vacate "the action appealed from" which included both the *140 rescission of existing standards and the promulgation of new standards.
Order reversed and cause remanded for further proceedings.
Order reversed and cause remanded.
STRAUSBAUGH and NORRIS, JJ., concur.
COOK, J., of the Eleventh Appellate District, sitting by assignment in the Tenth Appellate District.
