380 N.E.2d 770 | Ohio Ct. App. | 1978
This is an appeal by Ned E. Williams, Director of Environmental Protection, from the findings of fact and final order issued by the Environmental Board of Review on August 5, 1977, ordering that the Director's dismissal order of January 14, 1976, be vacated and ordering the Director to perform a sufficient investigation of the Coburns' verified complaint sometime during the 1977 peak operating period of appellee Harold Washburn's facility, followed by an order as provided in R. C.
The record reveals that the Coburns filed a complaint under R. C.
The Director in his appeal brings the following two assignments of error:
"1. The Environmental Board of Review erred in failing to dismiss this appeal for lack of jurisdiction.
"2. The Environmental Board of Review erred in ordering that the Director, subsequent to performing an additional investigation of the verified complaint issue an order pursuant to section
R. C.
"An officer of an agency of the state or of a political subdivision, acting in his representative capacity, or any person aggrieved or adversely affected by an alleged violation may file a verified complaint, in writing, with the director of environmental protection alleging that another person is violating or threatens to violate any law, rule, or standard, any order relating to air pollution, water pollution, or solid waste disposal, or, if the person is in possession of a valid license, permit, or variance relating to air pollution, water pollution, or solid waste disposal, that the person is violating or threatens to violate the conditions of such license, permit, or variance. Upon receipt of the complaint, the director shall cause a prompt, thorough investigation to be conducted. If, upon completion of the investigation, there is not probable cause to believe that a violation has occurred or will occur, the director shall, by order, dismiss the complaint. If there is probable cause to believe that a violation has occurred, or will occur, the director shall either cause a copy of the complaint to be served upon the alleged violator, conduct a hearing, and enter such order as may be necessary, or he shall request that the attorney general commence appropriate legal proceedings. * * *" *166
R. C.
"If the director issues, denies, modifies, revokes, or renews a permit, license, or variance without issuing a proposed action, an officer of an agency of the state or of a political subdivision, acting in a representative capacity, or any person who would be aggrieved or adversely affected thereby, may appeal to the environmental board of review, within thirty days of the issuance, denial, modification, revocation, or renewal."
We agree with the argument of the Director that the right to appeal provided in R. C.
R. C.
"As used in this section, `action' or `act' includes the adoption, modification, or repeal of a regulation or standard, the issuance, modification, or revocation of any lawful order other than an emergency order, and the issuance, denial, modification, or revocation of a license, permit, lease, variance, or certificate, or the approval or disapproval of plans and specifications pursuant to law or regulation thereunder.
"Any person who was a party to a proceeding before the director may participate in an appeal to the environmental board of review for an order vacating or modifying the action of the director of environmental protection or local board of health, or ordering the director or board of health to perform an act. The environmental board of review has exclusive original jurisdiction over any matter which may, under this section, be brought before it."
In the present case, upon receipt of the complaint, the Director caused an investigation to be made, finding that there was not probable cause to believe that a violation had occurred; whereupon, the Director by order dismissed the complaint. We find that such order of dismissal by the *167
Director is contained in the definition of action contained in R. C.
With respect to the second assignment of error, we find that under R. C.
Order affirmed as modified.
HOLMES, P. J., and WHITESIDE, J., concur. *168