617 N.E.2d 761 | Ohio Ct. App. | 1992
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *593
This matter is before this court upon the appeal of the Franklin County Regional Solid Waste Management Authority ("Authority"), appellant, from the September 11, 1991 findings and orders of the Environmental Board of Review ("EBR"), appellee. According to the joint statement of facts, in November 1988, the Franklin County Commissioners ("commissioners") established the Franklin County Solid Waste Management District pursuant to R.C.
"3. The governing body of the Authority is the Board of Trustees (the `Board'), which consists of seven members. The Board members are Jack Foulk,1 who is President of the Franklin County Board of County Commissioners; Denise Franz King, who is a member of the City of Dublin City Council; M.D. *594 Portman, who is a member of the City of Columbus City Council; Jeffrey Cahill, who is the Assistant Director of the Franklin County Board of Health; Fred Carter, who is the Deputy Director of the City of Columbus Services Department; Mat Flanagan, who is a Township Trustee for Jefferson Township; and John Kane, who is Chief Executive Officer and President of Ross Laboratories. The duties and responsibilities of the Board of Trustees of the Authority are prescribed by statute." (Footnote added to Joint Statement of Facts, No. 3.)
The key employees of the Authority include Michael Long, the Executive Director, James Mental, Deputy Director of Operations, and David Gubanc, Chief Engineer.
This case is premised upon R.C.
In his September 11, 1991 findings and orders, the director exempted the Authority from the one hundred eighty-day waiting period for approval. In regard to the Authority's request for an exemption from the R.C.
"Pursuant to ORC Section
The Authority asked the director for a clarification of his order and, while awaiting a response, filed a notice of appeal, without asserting any grounds, in order to preserve its right to an appeal. In a letter dated October 11, 1991, the *595 EPA responded to the Authority with a clarification. Thereafter, the Authority filed an amended notice of appeal.
The parties filed a joint statement of facts and agreed to submit the legal issues to the EBR. In a motion for summary resolution, the Authority sought an immediate disposition by the EBR that the September 11, 1991 findings and orders of the director were unreasonable and unlawful. Appellee not only opposed this motion but, also, moved to dismiss the appeal. In June 1992, the EBR upheld the director's order and overruled appellee's motion to dismiss. Thereafter, this appeal ensued.
Appellant asserts the following three assignments of error:
"FIRST ASSIGNMENT OF ERROR:
"The Environmental Board of Review erred in failing to rely on OAC
"SECOND ASSIGNMENT OF ERROR:
"The Environmental Board of Review erred in failing to hold that the order of the Director of the Ohio Environmental Protection Agency requiring members of the Board of Trustees of the Solid Waste Authority of Central Ohio to disclose information is unreasonable and unlawful because it conflicts with OAC
"THIRD ASSIGNMENT OF ERROR:
"The Environmental Board of Review erred in finding that the members of the Board of Trustees of the Solid Waste Authority of Central Ohio are `key employees' under ORC Section
The Director of the Environmental Protection Agency, Donald R. Schregardus, has filed a cross-appeal from the EBR's June 11, 1992 order overruling the director's motion to dismiss and affirming the director's September 11, 1991 findings and orders. The director's cross-assignment of error provides:
"The EBR erred in overruling Appellee Director's motion to dismiss for lack of jurisdiction over the subject matter, where Appellant Franklin County Regional Solid Waste Management Authority (the Authority) failed to satisfy the necessary prerequisites for perfecting an appeal to the EBR; where the Authority lacked standing to bring such an appeal; and where the Authority's appeal concerned an exemption request never presented to the Director." *596
Since appellee's cross-assignment of error raises issues regarding the EBR's jurisdiction and the propriety of the appeal, this court is compelled to address these issues initially. In relying upon the holding and rationale of Am.Restaurant Lunch Co. v. Glander (1946),
"The appeal shall be in writing and shall set forth the action complained of and the grounds upon which the appeal is based.
"The appeal shall be filed with the board within thirty days after notice of the action. Notice of the filing of the appeal shall be filed with the appellee within three days after the appeal is filed with the board.
"Within seven days after receipt of the notice of appeal the director or local board of health shall prepare and certify to the board a record of the proceedings out of which the appeal arises, including all documents and correspondence, and a transcript of all testimony.
"Upon the filing of the appeal, the board shall fix the time and place at which the hearing on the appeal will be held. The board shall give appellant and the appellee at least ten days' written notice thereof by certified mail. The board shall hold the hearing within thirty days after the notice of appeal is filed. The board may postpone or continue any hearing upon its own motion or upon application of appellant or of the appellee.
"The filing of an appeal does not automatically suspend or stay execution of the action appealed from. Upon application by the appellant the board may suspend or stay such execution pending immediate determination of the appeal without interruption by continuances, other than for unavoidable circumstances."
The Director of the EPA issued his findings and orders on September 11, 1991. On October 11, 1991, the Authority filed the following notice of appeal:
"Notice is hereby given that the Franklin County Regional Solid Waste Management Authority (the Authority) appeals to the Environmental Board of Review from the action of Donald R. Schregardus, Director of Environmental Protection, Ohio Environmental Protection Agency, dated September 11, 1991, issuing Findings and Orders to the Authority. A copy of the Director's Findings and Orders is attached to this Notice of Appeal.
"Appellant and Appellee are currently engaged in discussions regarding the possible clarification of the Director's order. Appellant is filing this Notice of Appeal solely for the purpose of preserving its right of appeal under Ohio law. *597
"A copy of this Notice of Appeal is being filed with Appellee Donald R. Schregardus."
Subsequently, on December 4, 1991, appellant filed the following "Amended Notice of Appeal":
"Notice is hereby given that the Franklin County Regional Solid Waste Management Authority (the Authority) appeals to the Environmental Board of Review from the action of Donald R. Schregardus, Director of Environmental Protection, to Environmental Protection Agency, dated September 11, 1991, issuing Findings and Orders to the Authority. A copy of the Director's Findings and Orders is attached to this Amended Notice of Appeal.
"Appellant appeals from the Director's action on the grounds that it was unreasonable and unlawful for the Director to issue Order Number 2 of the Director's Findings and Orders, which, as clarified by a letter dated October 11, 1991, from Joan DeMartin to Michael D. Saad (copy attached), requires members of the Authority's Board of Trustees to file background information with the Director and the Attorney General.
"WHEREFORE, Appellant prays that:
"(a) Order Number 2 of the Director's Findings and Orders issued to the Authority on September 11, 1991, be declared unlawful and unreasonable; and
"(b) the Board grant Appellant such other relief as is just and proper."
The issue presented by appellee's cross-assignment of error is whether appellant's notice of appeal was in compliance with R.C.
The requirements and procedures set forth in R.C.
There is no dispute that the appeal was filed within the thirty-day time period as prescribed by statute. However, R.C.
Furthermore, the recent trend has permitted amendments to cure defective appeals if the appellee's interest was not unfairly prejudiced. See Maritime Mfrs., Inc. v. Hi-SkipperMarina (1982),
In the facts before this court, the October 11, 1991 notice of appeal notified all parties that appellant was challenging the September 11, 1991 findings and orders of the director. Appellant sought clarification of the director's orders, appellee responded to that clarification, and appellant acted within a reasonable amount of time to cure the defect in the initial notice of appeal. The amended notice of appeal set forth the specific grounds upon which it was basing its appeal once it received the requested clarification.
The clarification was a letter dated October 11, 1991 from Joan DeMartin, an EPA attorney, to Michael Saad, then counsel for appellant. Had the letter been from the director, it might have been construed as a modification of the original order, perhaps extending the time for which to file an appeal. However, since the notice of appeal was filed timely, and the amended notice of appeal was filed within a reasonable time from the EPA's response to appellant's request for a clarification, this court is inclined to follow the holdings of the more recent decisions of Mullins, Fisher and Maritime Mfrs., supra.
In hindsight, it may have been appropriate to assert a general assignment of error for the purpose of complying with the statute and preserving the right of appeal, in order to avoid this type of problem, and then asserting a more specific assignment of error on an amended notice of appeal once clarification from the director was received. Accordingly, appellee was not unfairly prejudiced by the amendment to the notice of appeal and, thus, the appeal and the subsequent amendment properly invoked the jurisdiction of the EBR.
The next issue which appellee asserts is that the Authority lacked standing to appeal the findings and orders of the director. Appellee contends that the Authority does not have standing, since it cannot demonstrate an injury in fact. Appellee argues that, since the September 11, 1991 order of the director fulfills appellant's exemption request, appellant has suffered no injury and, thus, has no standing as an aggrieved party. *599
It is appellant's contention that the Authority made a request to the director on behalf of its key employees and the board for a conditional exemption from the background disclosure requirements of R.C.
Upon review, in order to establish standing, the appellant must demonstrate an injury or a threat of injury. The analysis focuses upon whether the litigant is the proper party in the lawsuit, and not whether the issue itself is justiciable. The auxiliary requirements for standing vary from state court proceedings to federal court proceedings. However, basic to the establishment of standing is that the challenged action has caused, or will cause, the appellant injury in fact, economic or otherwise, and that the interest sought to be protected is within the realm of interests regulated or protected by the statute or constitutional right being challenged. See Assn. ofData Processing Serv. Org., Inc. v. Camp (1970),
At the appellate level, the term "standing" is more commonly referred to as a litigant's "right to appeal." As applied to the facts of this case, R.C.
"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. * * *"
Thus, pursuant to R.C.
Last, appellee asserts that the issue presented by appellant on appeal is an exemption request which was never presented to the director. Appellee asserts that appellant never asked the director to excuse the four "non-exempt" board members from submitting any disclosure information. However, before the EBR, appellant argued that the four "non-exempt" trustees should not be required to file an R.C.
It is appellant's contention that it asked the director to exempt the key employees and members of the board required to file disclosure statements pursuant to R.C.
Upon review, it is apparent that appellant's initial request to the Director of the EPA did not include a request for an exemption for the entire membership of the board. Once the director issued his September 11, 1991 findings and orders, the issue which appellant asserted on appeal was whether the "non-exempt" board members, who were not public officials in another capacity and not key employees, were required to file a disclosure statement pursuant to R.C.
In the first and second assignments of error, appellant asserts that the EBR erred in failing to rely on Ohio Adm. Code
It is important to note that the purpose for the regulations as set forth in the Ohio Administrative Code is to enhance the legislation of the Ohio Revised Code and set forth rules, as lawfully promulgated, to supplement that legislation with the practicalities of enforcement, compliance and administration. Thus, this court's primary focus, as was the EBR's, is the disclosure requirements as set forth in R.C.
The public policy of the state mandates strict licensing requirements for prospective owners and permittees of solid waste facilities. R.C.
"(D) That strict licensing standards will help ensure that members of the waste management industry in this state will continue to maintain standards of professionalism and responsibility;
"(E) That it therefore is vital to the interests of this state to prevent either direct or indirect entry into the operations of the off-site solid waste disposal and transfer and the off-site hazardous waste treatment, storage, and disposal, industries of persons who are not competent and reliable or who have pursued economic gains in an occupational manner or context violative of the criminal code or civil public policies of the state, and it is to the end of excluding such persons from those industries that the regulatory and investigatory powers and duties provided in sections
Pursuant to R.C.
"(G) The director may by order exempt any person generating, storing, treating, disposing of, or transporting solid wastes or hazardous waste, in such quantities or under such circumstances that, in the determination of the director, are unlikely to adversely affect the public health or safety or the environment from any requirement to obtain a permit or license or comply with the manifest system or other requirements of this chapter. Any such exemption shall be consistent with and equivalent to the regulations adopted by the administrator of the United States environmental protection agency under the `Resource Conservation and Recovery Act of 1976,'
In order to determine whether the EBR properly upheld the director's discretionary exercise of his exemption authority, this court must first review the basic requirements for submitting an application for a transfer of a license to operate a solid waste facility and decide whether the director's order was in accordance with the policy of the state.
R.C.
"(A)(1) Every applicant shall file a disclosure statement on a form developed by the attorney general, with the director of environmental protection and the attorney general at the same time he filed his application for a permit with the director.
"* * *
"(F)(1) Whenever there is a change in ownership of any off-site solid waste facility, including incinerators, any transfer facility, any off-site infectious waste treatment facility, or any off-site hazardous waste treatment, storage, or disposal facility, the prospective owner shall file a disclosure statement with the attorney general and the director at least one hundred eighty days prior to the proposed change in ownership. Upon receipt of the disclosure statement, the attorney general shall prepare an investigative report and transmit it to the director. The director shall review the disclosure statement and investigative report to determine whether the statement or report contains information that if submitted with a permit application would require a denial of the permit pursuant to section
An "applicant," as set forth in R.C.
"`Applicant' means any person seeking a permit or license for an off-site facility."
Since a government entity is comprised of the individual's empowered to act on its behalf, this court finds that the members of the board are "applicants" *603
for purposes of this appeal. In Rings v. Nichols (1983),
"* * * The Board's evaluation of the testimony leads to but one conclusion and that is the Franklin County Commissioners will be in complete daily control of the landfill operations whether or not there is a subcontractor involved who provides equipment and operators for the actual construction movement." (EBR case Nos. 25839-25845.)
Based upon the Rings finding that the Franklin County Commissioners are the operators of the Franklin County Solid Waste Facility, it was not unreasonable for the director to base his decision on the premise that the Authority, as the prospective owner, was not only the applicant but would also become the operator of the Franklin County Solid Waste Facility, since the Franklin County Commissioners were not only transferring their ownership but presumably all of their duties as well.
Thus, pursuant to the intent of the applicable statutes, the legislature intended for the director and the Attorney General to maintain strict licensing standards and require every person who submits an application to subject himself and herself to the disclosure process in order to maintain the standards of professionalism and responsibility, and to preclude any element of criminal behavior from infiltrating the waste management industry in Ohio. In analyzing the tone of R.C.
R.C.
Since the Authority is a governmental entity, this court will analyze the relevant sections of Ohio Adm. Code
"(1) Every applicant shall file with the attorney general a disclosure statement in accordance with these rules:
"* * *
"(3) If there is a change of ownership of an off-site facility, a prospective owner shall file a disclosure statement with the attorney general, as required by division (F) of section
"* * *
"(6) If the applicant or permittee is a governmental entity:
"(a) The information required by paragraphs (C)(1) to (C)(31) of this rule for each key employee of the applicant or permittee whose primary duties concern the operation of the subject facility; and
"(b) The name, address, and telephone number of the applicant or permittee and information required by paragraphs (D)(11) to (D)(16) and (D)(21) of this rule for the applicant or permittee[.]" (Emphasis added.)
In analyzing R.C.
In applying R.C.
In the third assignment of error, appellant asserts that the EBR erred in finding that the members of the board are "key employees" under R.C.
"CONCLUSIONS OF LAW
"1. In general, the disclosure and background investigation procedures relating to solid and hazardous waste operators were created by House Bill 592 in Ohio Revised Code sections
"2. ORC section
"The Director may by order exempt any person * * * from any requirement to obtain a permit or license or comply with the manifest system or other requirements of this chapter. * * *
"3. In relevant portion, Section
"`"Key employee"' means any individual, other than a public official or employee as defined in Division (B) of section
"4. The Attorney General of the State of Ohio has adopted regulations under the authority of chapter 3734 regarding the filing and disclosure requirements. In these regulations, adopted as Chapter 109:6 of the Ohio Administrative Code, the Attorney General has recognized a distinction between government entity applicants and other applicants. Pursuant to OAC
"5. The action of the Director under appeal in the present case, while recognizing the regulations of the Ohio Attorney General, has predicated its order solely upon the authority granted to the Director in section
"6. While the regulations adopted by the Attorney General recognize a distinction between government entity applicants and other applicants, chapter 3734 of the Ohio Revised Code does not explicitly create [or] recognize such a distinction.
"7. Section
"8. By the same token, if that employee is not required to file a disclosure statement pursuant to section 102 and meets the balance of the `key employee' definition of section
"9. With respect to the question of whether compensation is an element of being a `key employee' the Revised Code sheds little light on the subject. Section
"10. The final element of section
"11. Pursuant to section
"12. The action of the Director exempting those board members from the filing of disclosure statements pursuant to ORC section
"12. [sic, 13] The Director's motion to dismiss is not well taken and should be dismissed."
In light of this court's disposition of appellant's first and second assignments of error, the four "non-public official" board members who were not exempt from filing disclosure statements pursuant to R.C. Chapter 3734 were still required to file disclosure statements pursuant to R.C. Chapter 3734 by our interpretation of that chapter and when considering the explicit public policy of the state as set forth in R.C.
The first consideration for status as a "key employee" pursuant to R.C.
The next elements for consideration are whether the employee is working in a supervisory capacity or is empowered to make discretionary decisions with respect to the solid waste facility. It is appellant's argument that the board members, serving as executive policymakers without compensation, act as a unit and give directions by consensus and, thus, do not exercise an individual discretion. Furthermore, the duties set forth in R.C.
Ohio Adm. Code
"(1) Means any individual:
"(a) Employed by the applicant or the permittee or the prospective owner in a supervisory capacity for the subject facility; or
"(b) Empowered to make discretionary decisions for the subject facility."
The phrase "empowered to make discretionary decisions" is further defined at Ohio Adm. Code
"* * * [A]ny individual, including a foreman, who has been delegated authority which:
"(1) Is delegated in the interest of the employer;
"(2) Involves the exercise of that individual's independent judgment;
"(3) Is not merely authority to perform a routine or clerical task; and
"(4) Is authority which relates to any one or more of the following aspects of solid, infectious, or hazardous waste operations: the management of (including but not limited to evaluation of, identification of, labeling of, and monitoring of the effects of), handling of, disposal of, transportation of, storage of, or treatment of, solid waste, infectious waste or hazardous waste."
Each time the board acts or makes a decision, every individual board member exercises his or her independent judgment. The ultimate decision may be a result of a collective consensus; however, each individual board member is empowered to voice his or her independent opinion and or vote on any matter before the board. Under circumstances which may elicit divided opinions, an individual's independent vote may be the deciding factor in a matter before the board. Furthermore, the key employees, the Executive Director, Deputy Director *609 of Operations and Chief Engineer, are not only accountable to the board but take their directions from the board. As the ultimate voice in decisions involving the Franklin County waste facility, the EBR properly concluded that the board members were empowered to make discretionary decisions regarding the solid waste facility.
The next consideration is whether compensation is an element for status as a "key employee." Appellant relies on the common meaning of the word "employee," which defines "employee" as "one employed by another usu[ally] in a position below the executive level and usu[ally] for wages," citing Webster's Third New International Dictionary (1981) 743. Although the issue of compensation as it relates to a "key employee" is not discussed in R.C.
Based on the foregoing, appellant's first, second and third assignments of error are not well taken and are overruled. Appellee's cross-assignment of error is overruled. The final order of the Environmental Board of Review is hereby affirmed.
Order affirmed.
BOWMAN and PETREE, JJ., concur.