Opinion
No. 83-1227
Decided July 3, 1984.
Prohibition — Environmental law — Court of Common Pleas without jurisdiction of matters involving controversies under R.C. Chapter 3745, when — Writ granted, when.
IN PROHIBITION.
On February 28, 1983, the Ohio Environmental Protection Agency ("OEPA") issued a proposed order to be effective April 14, 1983 denying William L. Campbell a license to operate the Montville Sanitary Landfill ("Montville") in Medina County, Ohio. Notice of the proposed order was issued to Campbell by certified mail on February 28, 1983. No objections were filed by Campbell and the order became final on April 14, 1983. Notice by publication of the proposed order was made on May 6, 1983 and no objections were filed in response to this notice.
On July 20, 1983, relator, Director of the OEPA, finding that Campbell was operating Montville without a license, referred the matter to the Attorney General to commence "enforcement litigation." For purposes of those proceedings, relator obtained a search warrant from Judge Philip A. Baird of the Court of Common Pleas of Medina County on July 28, 1983. On July 29, 1983, relator's employees closed Montville to begin obtaining the samples authorized by the search warrant.
As a result of the closing, Brunswick Disposal, Inc., ("Brunswick"), an Ohio Corporation engaged in the business of hauling solid waste refuse in Medina County, was denied access to Montville. On that date Joe Conroy, a resident of Medina County, and Brunswick filed an action for declaratory and injunctive relief in the Court of Common Pleas of Medina County against relator. The complaint contested relator's decision denying Campbell an operator's license.
Upon application of Brunswick, respondent, Judge Neil W. Whitfield, granted a temporary restraining order against relator in Brunswick Disposal, Inc. v. Maynard (July 29, 1983), Medina C.P. No. 42246, unreported, to prevent the closing of Montville and scheduled a hearing for a preliminary injunction for August 12, 1983.
On August 10, 1983, relator brought this action in prohibition alleging that respondent was without jurisdiction to issue the temporary restraining order and proceed in the action filed by Brunswick. Respondent has answered, denying the substantive allegations of the complaint. Brunswick was granted leave to file a brief amicus curiae herein.
On September 15, 1983, respondent granted Brunswick's motion for a preliminary injunction in case No. 42246.
Mr. Anthony J. Celebrezze, Jr., attorney general, Mr. Michael C. Donovan and Ms. Karen Kolmacic, for relator.
Mr. Richard J. Marco, for respondent and urging denial of the writ for amicus curiae, Brunswick Disposal, Inc.
It is well-settled that the statutory procedure for review of OEPA actions set forth in R.C. Chapter 3745 is exclusive and that courts of common pleas are without jurisdiction to proceed in actions for declaratory and injunctive relief involving controversies under R.C. Chapter 3745. State, ex rel. Williams, v. Bozarth (1978), 55 Ohio St.2d 34 [9 O.O.3d 19], and Warren Molded Plastics, Inc. v. Williams (1978), 56 Ohio St.2d 352 [10 O.O.3d 484].
R.C. 3745.07 requires notice of a proposed action to be published "* * * within fifteen days after the date of the proposed action * * *." In the case at bar, notice was published on May 6, 1983, concededly later than the time required by statute. Thus, Brunswick claims it was deprived of the remedies afforded to it by statute and may bring the underlying action against relator. Brunswick, however, did not attempt to take any action in response to the published notice. Had it done so, the issue of whether the notice was timely could have been adjudicated in proceedings under R.C. Chapter 3745. For this reason, the fact that notice was untimely does not create an exception to the rule set forth in State, ex rel. Williams, supra, and Warren Molded Plastics, Inc., supra.
Accordingly, the writ prayed for is allowed.
Writ allowed.
CELEBREZZE, C.J., W. BROWN, SWEENEY, LOCHER, HOLMES, C. BROWN and J.P. CELEBREZZE, JJ., concur.