New Boston Coke Corp. v. Tyler

Herbert R. Brown, J.,

dissenting. Because I believe that the majori *224 ty’s disposal of the issues in this case on jurisdictional grounds has neither a factual nor a legal foundation, I must dissent.

It is necessary to recite the basis upon which this case arises. The challenge to the environmental regulation in question was made by appeal to the Environmental Board of Review. That appeal was filed by three parties: Armco, Inc., Republic Steel Corp. and New Boston Coke Corp. Armco and Republic Steel did appear and oppose the rule at issue during the hearing process. Thus they, under any interpretation of R.C. 3745.04, had standing to appeal. Subsequently, Armco settled and Republic voluntarily dismissed its appeal, leaving New Boston as the solé appellant. The question of jurisdiction with respect to New Boston was raised before the board by the Director of Environmental Protection. The board made these findings of fact:

“13. Comments were submitted by various Ohio steel companies opposing the proposed 10% limit. These comments urged, inter alia, that the 10% limit was unreasonable, that OEPA should not adopt the 10% limit at all unless ambient air quality would be appreciably improved thereby. * * *

“17. New Boston’s appeal to the Environmental Board of Review raises the same issues as do the comments of Ohio steel companies referred to in Finding No. 13, above, which comments were rejected by OEPA in the rulemaking proceeding appealed from.” (Emphasis added.)

These fact findings have not been challenged and must be accepted.

The board then concluded, as a matter of law:

“1. Section 3745.04 O.R.C. states in pertinent part, ‘[A]ny person who was a party to a proceeding before the Director may participate in an appeal to the Environmental Board of Review.’ A ‘proceeding’ includes a rule-making proceeding as well as an adjudicatory hearing. See Cincinnati Gas & Electric Co. v. Whitman, 11 Ohio Ops. 3d 192 (Franklin Cty. App., 1974). ‘Persons adversely affected by the promulgation of a regulation by the Director may appeal to the Board pursuant to R.C. 3745.04.’ (C.E.I., et al. v. Williams, et al., Franklin Cty. App. No. 76AP-929, 1977.) The Board’s jurisdiction under Section 3745.04 O.R.C. has been interpreted broadly. * * * New Boston was not required under the facts of this case to participate in the notice and comment proceedings before the Director in order to invoke the Board’s jurisdiction.”

The majority fails to deal with the disposition of the jurisdictional issue by the board. Indeed, the majority fails to mention the board’s findings on this issue.

The board, in rejecting the challenge to its jurisdiction, was acting on the basis of well-settled administrative law. In Natural Resources Defense Council, Inc. v. U.S. Environmental Protection Agency (C.A.D.C. 1986), 804 F. 2d 710, 714 , the court explained:

“Courts have long required that a party seeking review of agency action exhaust its administrative remedies before seeking judicial relief. See, e.g., Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 50-51 , 58 S. Ct. 459, 463 , 82 L. Ed. 638 (1938). In the case before us, the administrative remedy was participation in the rulemaking proceedings during the comment period. Indeed, this court generally requires such participation as a prerequisite to petitioning for direct review of the resulting regulations. See Environmental Defense *225 Fund v. EPA, 598 F. 2d 62 , 91 (D.C. Cir. 1978).

“The NRDC did not participate in the rulemaking proceedings in this case, but argues that we should not dismiss its petition for review because the agency in fact considered the statutory issue pressed on appeal. The NRDC is correct. This court has excused litigants from their exhaustion obligations as to a particular issue so long as the agency in fact considered the issue. See Washington Association for Television & Children v. FCC, 712 F. 2d 677 , 682 n. 10 (D.C. Cir. 1983); Etelson v. Office of Personnel Management, 684 F. 2d 918, 923 (D.C. Cir. 1982); ASARCO, Inc. v. EPA, 578 F. 2d 319 , 320-21 n. 1 (D.C. Cir. 1978); Safir v. Kreps, 551 F. 2d at 452. Thus, courts have waived exhaustion if the agency ‘has had an opportunity to consider the identical issues [presented to the court]... but which were raised by other parties, ’ see Buckeye Cablevision, Inc., v. United States, 438 F. 2d 948, 951 (6th Cir. 1971), or if the agency’s decision, or even a dissenting opinion, makes it clear that the agency had ‘the opportunity to consider’ ‘the very argument pressed’ by the petitioner on judicial review. Office of Communication of the United Church of Christ v. FCC, 465 F. 2d 519, 523 (D.C. Cir. 1972).” (Emphasis added.)

In the case sub judice, the board of review found that the issues raised by New Boston were presented to the OEPA by two other parties during the rulemaking proceeding. Beyond that, those two other parties, together with New Boston, initiated the very appeal to the board of review which has now found its way to us.

Thus, the majority should not avoid the substantive issues in this case, notwithstanding the superficial allure of the claim of lack of standing. This case should be decided on the merits. In doing so, I would resolve the issues as Justice Douglas has done in his separate dissenting opinion.

Moyer, C.J., concurs in the foregoing dissenting opinion.