Summary
In Bozarth it was argued that R.C. Chapter 3745 did not oust a common pleas court of its jurisdiction in a declaratory judgment concerning the validity of the Director's regulations. Disposing of that argument, this court held, at page 36, that the "exclusivity" of the "statutory process" outlined in R.C. 3745.04 and 3745.06 provided the company with "adequate access to judicial review" and therefore "[d]ue process and equal protection are afforded the applicant under this scheme."
Summary of this case from Warren Molded Plastics, Inc., v. WilliamsOpinion
No. 77-1385
Decided July 5, 1978.
Environmental protection — Air pollution emission standards — Denial of variance application — Appeal to board of review — Collateral relief not available.
IN PROHIBITION.
The Hayes-Albion Corporation ("applicant") owns and operates a foundry in Seneca County near Tiffin, Ohio. Part of the foundry involves the operation of five electric channel induction furnaces ("facilities"). The stacks from these furnaces emit particulate matter which is a form of "air contaminant" as that term is defined in R.C. 3704.01(A). On April 29, 1975, applicant submitted applications to the Director of Environmental Protection for "variances" from air pollution emission standards, specifically Ohio Administrative Code Regulation 3745-17-11. This regulation imposes limitations on the emission into the ambient air of particulate matter from industrial processes such as applicant's foundry.
On May 21, 1976, the Director, relator herein, issued proposed actions to deny the applications for variances. In essence, the reason given for the proposed denials was that the variance applications failed to include a schedule for bringing applicant's facilities into ultimate compliance with the applicable regulations. The proposed actions indicated on their face that they would go into effect on July 5, 1976, if no request for an adjudication hearing was filed with the Ohio Environmental Protection Agency (EPA) within 30 days of date of issuance of the proposed action.
On June 21, 1976, applicant filed a timely adjudication request concerning the Director's proposed denials, thereby suspending their effectiveness. On June 23, 1976, the EPA acknowledged applicant's adjudication request, and referred the matter to a hearing examiner for an adjudication hearing. Four days prior to the EPA adjudication hearing on April 18, 1977, applicant filed a collateral action in the Court of Common Pleas of Seneca County (case No. 37706) against the Director seeking declaratory and injunctive relief with regard to the Director's application of Regulations 3745-17-11 and 3704-32-03 to applicant's facilities.
Applicant's collateral action was accompanied by motions for a temporary restraining order and preliminary injunction to prevent the EPA from holding the adjudication hearing. On April 15, 1977, Judge Harry L. Bozarth, respondent herein, issued the restraining order requested by applicant.
On May 13, 1977, the Director filed with respondent a motion to dismiss which alleged, inter alia, that respondent lacked subject matter jurisdiction to hear the matters alleged in applicant's complaint in case No. 37706, including applicant's request to temporarily restrain and preliminary enjoin the commencement of the EPA adjudication hearing. Respondent, on May 27, 1977, conducted a consolidated hearing on applicant's motion for a preliminary injunction and relator's motion to dismiss. Respondent announced no decision on either motion at that time.
On May 31, 1977, respondent signed an entry extending the temporary restraining order indefinitely "until further order of the Court." Relator, on October 17, 1977, filed a motion to dissolve the perpetual extension of the "temporary" restraining order. In that motion relator stressed, inter alia, that the unlimited extension violated Civ. R. 65(A).
On November 7, 1977, respondent held a hearing in chambers on relator's motion to dissolve the unlimited extension of the temporary restraining order. Respondent indicated that it was his intent to deny relator's motion to dismiss, grant applicant's motion for a preliminary injunction and that at some unspecified date he would be drafting an entry to that effect.
Relator then commenced this action to prohibit respondent from proceeding in the cause before him.
Mr. William J. Brown, attorney general, Mr. E. Dennis Muchnicki and Mr. Larry J. Baisden, for relator.
Mr. Thomas R. Spellerberg, prosecuting attorney, and Ms. Elaine J. Knutson, for respondent.
Respondent judge asserts basically that a declaratory judgment proceeding is the only method by which the applicant can test the Director's regulations without jeopardy of a fine and that R.C. Chapter 3745 did not oust common pleas courts of their jurisdiction in a declaratory judgment proceeding in this area.
These assertions ignore the administrative scheme of R.C. Chapter 3745 which gives the applicant adequate access to judicial review. Due process and equal protection are afforded the applicant under this scheme.
R.C. 3745.04 provides that:
"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." (Emphasis added.)
R.C. 3745.06, then provides, that if one has not received satisfaction before the Environmental Board of Review he "* * * may appeal to the court of appeals of Franklin county, or, if the appeal arises from an alleged violation of a law or regulation, to the court of appeals of the district in which the violation was alleged to have occurred."
The exclusivity of this statutory process has been recognized and upheld by his court. In Cincinnati, ex rel. Crotty, v. Cincinnati (1977), 50 Ohio St.2d 27, at page 30, it was stated:
"* * * under R.C. 3745.04, an appeal `for an order vacating or modifying the action of the Director of Environmental Protection' may be brought before the Environmental Board of Review and `the Environmental Board of Review has exclusive original jurisdiction over any matter which may, under * * * [R.C. 3745.04], be brought before it.' Appeal thereafter may be taken only `to the Court of Appeals of Franklin County, or, if the appeal arises from the alleged violation of a law or regulation, to the Court of Appeals of the district in which the violation was alleged to have occurred.' R.C. 3745.06.
"It is apparent that this statutory scheme for review of actions by the Director of Environmental Protection is exclusive, and that the Court of Common Pleas of Hamilton County accordingly lacked jurisdiction over the complaint at bar, which seeks to have an order issued by the director set aside." See, also, State, ex rel. Brown, v. Rockside (1976), 47 Ohio St.2d 76.
Respondent stresses Herrick v. Kosydar (1975), 44 Ohio St.2d 128, as standing for the proposition that declaratory judgment is an alternative to a special statutory scheme. However, the statutory scheme (of state income taxation) in Herrick does not impress the Board of Tax Appeals with "exclusive original jurisdiction."
In view of the clear legislative intent and this court's decision in Crotty, supra, the requested writ will be allowed.
Writ allowed.
O'NEILL, C.J., HERBERT, CELEBREZZE, W. BROWN, P. BROWN, SWEENEY and LOCHER, JJ., concur.