Petition — Cleveland Electric Illuminating Co. v. Williams

October Term, 1978

Ne. EG" KD

THE CLEVELAND ELECTRIC ILLUMINATING

COMPANY,

Petitioner,

VS.

NED E. WILLIAMS, DIRECTOR

OHIO ENVIRONMENTAL PROTECTION AGENCY,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

To the Ohio Supreme Court

Guren, Meanitt, Socc & Conen

650 Terminal Tower

Cleveland, Ohio 44113

By: Micnas. L. Harpy

Davin A. SCHAFFER

and

Donatp H. Hausen, General Attorney

Tue CLevetann Evectraic ILLUMINAT-

1InG COMPANY

P. O. Box 5000

Cleveland, Ohio 44101

Counsel for Petitioner

—ooyEEEeEeEeEeEeEeEeEeEeEeEeEyN505NQMQC—_—NNqQqQqQqQ oe — = —

THE GATES LYGAL PUBLISHING CO, CLEVELAND, O110—TEL. (216) 691-8007

ao cudosomannbnesnenstbanepinoa II

Opinions Below 2 1

I Tr censpueuinphpensensentenatenanoten 2

he ne CT 2

Constitutional and Statutory Provisions Involved ........ 2

Statement of Facts .......... . a 3

Reasons for Granting the Writ ‘- a 11

1. The Decisions of the Ohio Supreme Court and

the Franklin County Court of Appeals Conflict

With Decisions of This Court and the Sixth Cir-

cuit Court of Appeals Since They Effectively

Have Denied Petitioner the Opportunity to Chal-

lenge Air Pollution Regulations Applicable to It 11

2. The Decisions Below Deny Petitioner Its Consti-

tutional Right to Procedural Due Process of Law 16

Conclusion 19

Appendix (Printed under separate cover):

A. Decision of the Ohio Supreme Court Denying

Petitioner's Motion for Rehearing . Al

B. Decision of the Ohio Supreme Court Dismissing

Petitioner's Appeal and Denying Its Motion to

OEE anncccneoxe-conneosneeoreorneconnsorneesneverneeensensccesecenecees A2

Cc. Siiidten of the Secciitin County Count of fp

SEITE (sosipiceinipatendiGlepnestesideckennimibehtibcecteescontinuunnenebebenescseseen A4

D. Dosen of the Ohio Daten Board of

E. Final Findings and Orders of the Director of the

Ohio Environmental Protection Agency —........ A101

II

F. Findings of Fact and Conclusions of Law of the

Hearing Panel of the Ohio Environmental Pro-

aia csc annihceeidsptemmnpinasssanaions A138

G. Pertinent Constitutional, Statutory, and Reg-

EE SE ae en A154

TABLE OF AUTHORITIES

Cases

Abbott Laboratories v. Gardner, 387 U.S. 136 (1967) .... 18

Armco Steel, T3-AV-164 (1974) ..........cccccccecccseceserveevesseees 19

Buckeye Power, Inc. et al. v. EPA, 481 F.2d 162 (6th

SEAS eiee IRE Seth 5 eee eee ae 5, 9, 11, 14

Buckeye Power, Inc. et al. v. EPA, 525 F.2d 80 (1975)

a aaah enesbionienbinine 12,14

Burger Brewing Co. v. Liquor Control Commission, 34

I IE OE SII» co, ks srenetntniandabnibnoniaabomiceensseres 18

Fortner v. Thomas, 22 Ohio St. 2d 13 (1970) ................ 13

Getty Oil Company v. Ruckelshaus, 467 F.2d 349 (3rd

EISSN BE AEN at 18

Goldberg v. Kelly, 397 U.S. 254 (1970) -........eeeeeeeeeeeeee 18

Natural Resources Defense Council, Inc. v. EPA, 478

fF LS | | SE ea 15

Natural Resources Defense Council, Inc. v. EPA, 494

I IE I RIOTED cicnenicencsssncstncsccsernesccevsensvsnensascevis 15

Natural Resources Defense Council, Inc. v. EPA, 489

SE IE I IID. pciietsstccevsscvewebenecmsonstynandunisnevcsenes 15

Natural Resources Defense Council, Inc. v. EPA, 483

SR I UI RS BIUIED nscencenisecrevsnsenssncvenessonsonnanecccecetsns 15

Ormet Corporation, 73-AV-119 (1974) 2......ceecececteeeeeeeees 19

Rankin-Thomas v. Caldwell, 42 Ohio St. 2d 436 (1975) 13

Raper v. Lucy, 488 F.2d 749 (1st Cir. 1973) 2.000... 18

Rheingans v. Clark, 314 F. Supp. 1398 (N.D. Cal. 1968) 18

Ill

State ex rel. Foster v. Evatt, 144 Ohio St. 65 (1944) ... 15

State ex rel. Williams, Director v. Bozarth, Judge, 55

RO Ge, Se ee CD eerinctsscenrenstessesessccsesscsenniniipiappieane 7,18

Train v. Natural Resources Defense Council, Inc., 421

SE Te. CNG. cite esicdetnleldicibdinictinpeiniai 12, 15, 16, 19

Tumey v. State of Ohio, 273 U.S. 510 (1927) ................ 11

Union Electric Company v. EPA, 427 U.S. 246, 96 S. Ct.

SEE SANTEE. | Canines tinniccenctsiedtnsbehecenbatbemapniamanientin 12, 14, 16, 19

Yakus v. United States, 321 U.S. 414 (1944) 200... 17, 18

Constitutional Provisions, Statutes, and Regulaiions

United States Constitution, Amendment XIV, Section

RII scent sincthaneidbasinsinilaiietecheadasdesnhess le aholeicengieathalecistantincataatens 2, 16

Oe es I Me BI ccscecesseteinsckcesstnemperrborensiaierestanbneservenatncs 1l

ee is, A seinen ergs eel reeenasenremeccnionen 4

Oe i I etaseccccscesacie ite tectienteitons 2, 5, 16

Ae ee ee a aire stectartnerseessecctcrienceasennsintancncs 11

Oe Sa es EI RIOD | ithccicinccsnecocopretineetninbicss 9

ee Fg ce rae ein AG ce 4

er Un: SPENT: | <csuiccheesicteesosiianteiaeaiuhdandbsbanigmacnapeanndibinatateamnaiions 7

Ohio Revised Code, Chapter 119 ~......00.......... 2, 5, 6, 7, 13, 14

Ohio Revised Code, Chapter 3745 o2.......eeeceeeeeeeeeeeees 13

Ohio Revised Code, Section 3704.03(D) .2....0..00..00.200... 2,4

Ohio Revised Code, Section 3704.03(E) -.......2...2.....---- 3,4

Ohio Revised Code, Section 3704.03(H) 200.0020... 3, 14

Ohio Revised Code, Section 3745.04 0000000000. 3, 7,14

Ohio Revised Code, Section 3745.06 —......0...0000..ceee 3, 7,8

Georgia Code Annotated Section 88-912 000000000000... 15

Miscellaneous

I I i samnentananaions 3,4

OU, TREN cckesictiicssenecenisctnsdicnintsscintccianseninteenin 3, 4

IV

OAC3745-17-13, AP-3-14 2.2.2... eceeeeeeecceeeeeeeneeneees

OAC3745-35-03, EP-32-03 -.......----------eceeeeeeeeeess

Davis, ADMINISTRATIVE LAw, (3rd ed. 1972)

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Supreme Court of the United States

October Term, 1978

Rs

THE CLEVELAND ELECTRIC ILLUMINATING

COMPANY,

Petitioner,

vs.

NED E. WILLIAMS, DIRECTOR

OHIO ENVIRONMENTAL PROTECTION AGENCY,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

To the Ohio Supreme Court

Petitioner, The Cleveland Electric Illuminating Com-

pany, respectfully prays that a writ of certiorari issue to

review the decisions of the Ohio Supreme Court entered

in this proceeding on May 5, 1978, denying Petitioner’s

Motion for Rehearing and April 7, 1978, overruling Peti-

tioner’s Motion to Certify and dismissing Petitioner’s appeal

from the judgment of the Franklin County Court of Appeals

rendered on December 8, 1977.

OPINIONS BELOW

The orders of the Ohio Supreme Court and the opinion

of the Franklin County Court of Appeals, not yet reported,

appear in Appendices A, B, and C, respectively. The opin-

ions of the Ohio Environmental Board of Review, the

Director of the Ohio Environmental Protection Agency,

2

and the Findings of Fact and Conclusions of Law of the

Hearing Panel of the Ohio Environmerital Protection

Agency appear in Appendices D, E, and F, respectively.

JURISDICTION

The order of the Ohio Supreme Court denying Peti-

tioner’s Motion for Rehearing was entered on May 5, 1978.

This petition for certiorari was filed within 90 days of that

date in accordance with 28 U.S.C. Section 2101(c). This

Court’s jurisdiction is invoked under 28 U.S.C. Section

1257(3).

QUESTIONS PRESENTED

1. Whether the decisions below conflict with prin-

ciples of federal law established in decisions by this Court

and the Sixth Circuit Court of Appeals.

2. Whether Petitioner was denied procedural due

process guaranteed to it by the Fourteenth Amendment

to the United States Constitution since Petitioner was not

permitted to challenge certain regulations promulgated

by Respondent having a substantial adverse effect on Peti-

tioner.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

U.S. Constitution, Amendment XIV

42 U.S.C. Section 7410 (Supp. 1977)

Ohio Revised Code, Chapter 119

Ohio Revised Code, Section 3704.03(D) (Pages

1971)

Pwo Ne

3

5. Ohio Revised Code, Section 3704.03(E) (Pages

1971)

6. Ohio Revised Code, Section 3704.03(H) (Pages

1971)

7. Ohio Revised Code, Section 3745.04 (Pages 1971)

8. Ohio Revised Code, Section 3745.06 (Pages 1971)

9. Ohio Administrative Code 3745-17-02, AP-3-02

10. Ohio Administrative Code 3745-17-10, AP-3-11

11. Ohio Administrative Code 3745-17-13, AP-3-14

12. Ohio Administrative Code 3745-35-03, EP-32-03

Pertinent provisions of all of the above are excerpted

in Appendix G.

STATEMENT OF FACTS

In January, 1972, Ohio commenced its present program

for air pollution control. At that time, the Ohio Air

Pollution Control Board adopted a series of regulations

for the control of various air pollutants. Among the reg-

ulations promulgated were ambient standards, emission

limitations, and variances from the emission limitations.!

The ambient standards established the goals for the

quality of the air in Ohio. These standards were stated

1. These regulations were originally codified as AP-3-02

(ambient standards), AP-3-11 and AP-3-14 (emission limita-

tions), and AP-9-04 (variances). Subsequently AP-9-04 was

restated as EP-32-03. On January 1, 1977, all of these regulations

were renumbered as a part of the official citation system im-

posed by the Ohio General Assembly in Am. Sub. H.B. 317 (1976).

Thus, AP-3-02 is now designated as OAC3745-17-02; AP-3-11,

OAC3745-17-10; AP-3-14, OAC3745-17-13; and EP-32-03, OAC

3745-35-03. Citations in this Memorandum will be to the OAC

numbers. Parallel citations to the former numbers are provided

in the Table of Authorities.

4

in terms of the permissible amount of a given pollutant

in the ambient air. [See Section 3704.03(D), Ohio Re-

vised Code, and Ohio Administrative Code (“OAC”) 3745-

17-02, Appendix G, infra.] Ohio’s standards called for

ambient levels below those required by federal law.”

In order to attain these stringent ambient air quality

standards, the Air Pollution Control Board developed a

second set of regulations. These regulations—called emis-

sion limitations—imposed limitations on the levels of pol-

lutants each source could emit. In developing these reg-

ulations, the Air Pollution Control] Board incorporated ex-

tremely restrictive assumptions.* As a general rule, these

emission limitations required each source in Ohio to reduce

the amount of its emissions from then existing levels.

[See Section 3704.03(E), Ohio Revised Code and OAC

3745-17-10, -13, Appendix G, infra.] These emission lim-

itations required instantaneous compliance. If a source

found immediate compliance impossible to achieve (which

was the common situation), it could apply for a variance

from the emission limitations. The variance could delay

the time for achievement of the emission limitation for

up to three years. [0AC3745-35-03, Appendix G, infra.]

2. Clean Air Act, 42 U.S.C. §7401 et seq. In 40 C.F.R. §50.4

et seq., the United States Environmental Protection Agency

(“USEPA”) prescribed ambient air quality standards for sulfur

dioxide, and in 40 C.F.R. §50.6 et seq., USEPA established com-

parable standards for particulate matter. Ohio’s annual average

standard for sulfur dioxide, for example, was 60 micrograms per

cubic meter compared to the 80 micrograms per cubic meter cri-

terion provided for in 40 C.F.R. §50.4(a).

3. In developing the emission limitations, the Air Pollution

Control Board employed a relatively crude “worst spot” approach.

That is, the Air Pollution Control Board found the area in the

state with the highest concentrations of a given pollutant, and

determined the reductions in emissions necessary to achieve the

desired ambient level at that spot. The resulting prescribed

level of reductions was incorporated into the emissions standards

for all sources in the state, even for those sources having little

or no impact on the “worst spot”.

4)

These and other regulations were submitted to the

USEPA as a part of the Ohio Implementation Plan in

accordance with Section 110(a) of the Clean Air Act of

1970, 42 U.S.C. §1857c-5 (1977).4 USEPA approved the

Plan in May, 1972, but the Sixth Circuit Court of Appeals

vacated that approval on June 18, 1973, in Buckeye Power,

Inc. et al. v. EPA, 481 F.2d 162 (6th Cir. 1973) [“Buckeye

ag F

By the time of the Sixth Circuit’s action, Petitioner

had applied for variances from the emission limitations

applicable to its plants. The variance applications con-

tained requests for relief from the applicable emission

limitations on the grounds, inter alia, that the full reduc-

tion in emissions prescribed by the applicable emission

limitations was more than necessary to attain the ambient

air quality standards in the vicinity of Petitioner’s plants

and therefore would lead to unjustified costs of com-

pliance.

In May, 1973, the Director of the Ohio EPA proposed

variances which disregarded Petitioner’s requested relief.

The Director’s proposed variances would have required

Petitioner to achieve in three years the full reductions in

emissions prescribed by the emission limitations.

Believing that the emission limitations were unnec-

essary to attain ambient standards in the vicinity of its

plants, Petitioner requested adjudication hearings pursuant

to Chapter 119 of the Ohio Revised Code (Appendix G,

4. As a result of the Clean Air Act Amendments of 1977,

this section has been renumbered to 42 U.S.C. §7410 (Supp.

1977) (see Appendix G, infra).

5. After these applications were submitted to the Ohio Air

Pollution Control Board, the Ohio General Assembly abolished

the Board and created the Ohio Environmental Protection

Agency (“Ohio EPA’’) to replace the Board and also created the

Office of the Director (“Director”) to head the new agency.

As a result, the variance applications were transferred to the

Director for consideration.

6

infra). In its requests, Petitioner stated that it intended

to challenge the illegality and unreasonableness of the

Director’s variances, as applied to Petitioner’s facilities,

because the variances incorporated the unnecessarily strin-

gent emission limitations. Early in 1974, Petitioner’s re-

quest for adjudication hearings was consolidated with those

of other Ohio electric utilities. On March 4, 1974, the

adjudication hearings commenced as consolidated proceed-

ings (In The Matter of Consolidated Electric Utility

Hearings, Case No. 73-AP-120 et al.).

A three member Hearing Panel presided over these

proceedings. After analyzing nearly 7,000 pages of testi-

mony and many technical exhibits, the Hearing Panel, in

September, 1974, issued a 417 page report with recom-

mendations (The Findings of Fact and Conclusions of Law

of the Hearing Panel are attached as Appendix F, infra).

The Hearing Panel essentially agreed with Petitioner’s

(and the other utilities’) challenges. The Hearing Panel

concluded that Ohio’s ambient air quality standards and

emission limitations were not necessary to meet the re-

quirements of federal and state law and, therefore, urged

the Director to embark on new rule-making (in accordance

with Chapter 119 of the Ohio Revised Code) in order to

develop regulations which would not be subject to the

many defects found in the original regulations. Until this

rule-making was completed, the Hearing Panel ruled, the

Director should not require compliance with the defective

emission limitations.

On December 12, 1974, the Director rendered his opin-

ion and final order (See Appendix E, infra). The Director

stated that he considered the Hearing Panel’s recommenda-

tions for new rule-making to be “‘advisory” only. Accord-

ingly, the Director did not agree to institute proper pro-

ceedings to repeal the existing rules in favor of new rules,

7

and he did not accept the recommendation to stay the

applicability of the emission limitations pending comple-

tion of the rule-making. He further ruled that the Hearing

Panel should not have entertained challenges to the par-

ticulate and sulfur dioxide standards in adjudication hear-

ings conducted pursuant to Chapter 119 of the Ohio Re-

vised Code (Appendix E, A116, infra).

The Director did concur, however, with the Hearing

Panel’s finding that it was not necessary to reduce sulfur

dioxide emissions to the level prescribed by the emission

limitations. Therefore, his order stated that Petitioner

and the other electric utilities would not be required to

comply with the emission limitations for sulfur dioxide.

The Director, however, ordered Petitioner and the other

electric utilities to comply with the particulate emission

limitations by April 15, 1977.

Unable to comply at one of its six facilities (its Lake

Shore Plant) with the portion of the Director’s order

mandating compliance with the particulate regulations,

Petitioner appealed to the Ohio Environmental Board of

Review (“EBR”) in January, 1975.6 Petitioner questioned

the Director’s ruling that an adjudication hearing was not

a proper forum to entertain a challenge to the particulate

and sulfur dioxide regulations. In addition, Petitioner

cited the 1973 oil embargo and certain federal regulations’

6. The EBR was created on October 23, 1972, as the forum

having the exclusive and original jurisdiction over appeals from

the actions of the Director. Sections 3745.04, 3745.06 Ohio Re-

vised Code, Appendix G, infra. That the EBR has exclusive

jurisdiction was recently reaffirmed in State, ex rel. Williams v.

Bozarth, Judge, 55 Ohio St. 2d 34 (1978).

7. 10 C.F.R. §215.3(a) (1975), since rescinded, was originally

promulgated by the Federal Energy Administration in response

to the oil embargo. It prohibited the combustion of petroleum

products as primary boiler fuel after December 7, 1973, in any

major fuel burning installation which had not burned such fuel

on December 7, 1973. The regulation was promulgated after Pe-

titioner had spent nearly $7,000,000 on its oil conversion project,

but before Petitioner was able to commence use of oil fuel.

8

as the chief reasons for its inability to complete its

$11,000,000 oil conversion program in time to meet the

April 15, 1977, compliance date applicable to the Lake

Shore Plant. This oil conversion program was described

in detail in Petitioner’s variance applications as Petitioner’s

proposed plans for compliance with particulate regulations

at four boilers at its Lake Shore Plant.

At the same time, the Northern Ohio Lung Association

(“NOLA”) also appealed to the ERR. NOLA contended

that the Director erred in not requiring compliance with

the sulfur dioxide emission limitations.

In October, 1976, the EBR rendered its decision. The

EBR reversed the Director for his failure to order Peti-

tioner to comply with the sulfur dioxide emission limita-

tions, and upheld the Director’s order requiring compliance

with the particulate emission limitations by April 15, 1977,

together with his ruling that the particulate and sulfur

dioxide regulations were beyond attack in an adjudication

hearing. The EBR ordered Petitioner to comply with the

sulfur dioxide emission limitations by November, 1979.

Both Petitioner and NOLA appealed to the Franklin

County Court of Appeals. NOLA requested that Court

to reverse the EBR’s order setting November, 1979, as the

compliance date for the sulfur dioxide limitations. Peti-

tioner specified six assignments of error, which principally

focused on the orders requiring compliance with the sulfur

dioxide and particulate emission limitations. Petitioner

further assigned as errors the rulings by the EBR that

Ohio’s particulate and sulfur dioxide standards were be-

8. NOLA previously had intervened in the adjudication

proceedings with respect to Petitioner’s Lake Shore Plant.

9. By reason of Section 3745.06, Ohio Revised Code (Ap-

pendix G, infra), the Franklin County Court of Appeals has ex-

clusive and original jurisdiction over appeals from the EBR.

yond challenge and that variance regulation, OAC3745-

35-03, was proper.

On December 8, 1977, the Franklin County Court of

Appeals sustained three of Petitioner’s assignments of error

and reversed the EBR with respect thereto. It also ruled,

however, that the Director should have required compli-

ance with the sulfur dioxide and particulate emission

limitations by no later than April 15, 1977, and agreed

with the EBR that the particulate and sulfur dioxide reg-

ulations were beyond challenge and that OAC3745-35-03

was not violative of federal law.

On January 4, 1978, Petitioner filed a Notice of Appeal

in the Ohio Supreme Court. On April 7, 1978, the Ohio

Supreme Court, sua sponte, dismissed Petitioner’s appeal

for the reason that no substantial constitutional question

existed,’® and on May 5, 1978, Petitioner’s Motion for Re-

hearing was denied by the Ohio Supreme Court.

Independently of these state proceedings, the USEPA

promulgated new rules for the control of sulfur dioxide

emissions in Ohio."' For Petitioner’s Lake Shore Plant,

these regulations contained emission limitations which are

significantly less stringent than Ohio’s regulations.”

10. Under Rule II, Section 3(B) of the Ohio Supreme Court

Rules, the Notice of Appeal is treated as a Motion To Certify.

When appellant (Petitioner herein) claims that the case involves

a constitutional question, the Ohio Supreme Court will, sua

sponte, consider the case as on a motion to dismiss the appeal as

one not involving any substantial constitutional question, at the

same time it considers the Motion to Certify.

11. After the Sixth Circuit in Buckeye I, supra, vacated

USEPA’s approval of Ohio’s sulfur dioxide plan, the Governor

of Ohio, on August 27, 1973, withdrew the sulfur dioxide plan

from consideration for federal approval. This prompted USEPA

to develop its own sulfur dioxide plan for Ohio pursuant to Section

110(c) of the Clean Air Act.

12. 40 C.F.R. §52.1881(b)(23)(iv) (1977), for example,

would allow emissions from Lake Shore boilers 91 through 94

at levels nearly double those permitted under Ohio’s regulations.

10

As a result, Petitioner now is governed by two sets

of differing reguiations administered and enforced by inde-

pendent federal and state agencies. On the one hand,

Petitioner must comply with the federally promulgated

sulfur dioxide -tandards. On the other hand, the nearly

twice-as-stringent Ohio regulations remain in force, not-

withstanding that these regulations are “out of date’, ac-

cording to the Franklin County Court of Appeals, and

despite the fact that the Court of Appeals strongly con-

cluded these regulations “‘. . . should no longer be appli-

cable”.** This incongruity has occurred because the state

courts and agencies below have refused to entertain Peti-

tioner’s challenges.

13. Opinion of the Franklin County Court of Appeals, Ap-

pendix C at A2l.

11

REASONS FOR GRANTING THE WRIT

1. THE DECISIONS OF THE OHIO SUPREME

COURT AND THE FRANKLIN COUNTY COURT OF

APPEALS" CONFLICT WITH DECISIONS OF THIS

COURT AND THE SIXTH CIRCUIT COURT OF AP-

PEALS SINCE THEY EFFECTIVELY HAVE DE-

NIED PETITIONER THE OPPORTUNITY TO CHAL-

LENGE AIR POLLUTION REGULATIONS APPLI-

CABLE TO IT.

A. The Particulate and Sulfur Dioxide Regulations

In Buckeye I, various public utilities filed petitions’

for review of the action by the Administrator of the

USEPA approving Ohio’s plans for implementation of

ambient air quality standards. The Sixth Circuit vacated

the Administrator’s approval of these plans and held, in

part, that approval by the Administrator without per-

mitting participation by interested parties, including Peti-

tioner, was a violation of the Administrative Procedure

Act, 5 U.S.C. §500 et seq. (1977).

The Sixth Circuit declined to pass on the challenges

to the regulations themselves. According to the Court, the

Petitioner’s challenges to those regulations were to be

permitted in subsequent state proceedings in which the

state was seeking to apply the regulations. 481 F.2d at

173. As discussed below, the only such proceedings herein

14. Under this Court’s decision in Tumey v. State of Ohio,

273 U.S. 510 (1927), this writ of certiorari is properly taken to the

Ohio Supreme Court. Since the Ohio Supreme Court did not

hear this case on the merits, the decision of the Franklin County

Court of Appeals is the highest decision of a state court on the

merits of Petitioner’s claim.

15. The filing of “petitions” is provided for in 42 U.S.C.

§1857-h5(b) (i) (1977), now found in 42 U.S.C. §7607(b) (1)

(Supp. 1977).

12

were the administrative adjudication hearings conducted

before the Ohio EPA Hearing Panel.

Thereafter, in Buckeye Power, Inc. et al. v. EPA, 525

F.2d 80 (1975) [Buckeye II], the Sixth Circuit con-

sidered the USEPA’s reapproval of the particulate regula-

tions, and the electric utilities renewal of their challenges

to the regulations.

The Sixth Circuit held that the issues in dispute were

not ripe for adjudication:

Our conclusion is that the disputes which Peti-

tioners seek to have this court resolve are being

worked out at the state agency level where the EPA

statute, as construed by the Supreme Court, clearly

contemplates they should be. ... 525 F.2d at 82.

(Emphasis supplied.)

r

Since the record now before us demonstrates that

these processes of adjustment are presently proceed-

ing exactly as, and where the statute contemplated,

and that no final resolution as to them has been

arrived at, this case is not presently ripe for judicial

review. 525 F.2d at 84. (Citations omitted.)

The state proceedings referred to by the Sixth Circv.it

were the adjudication hearings below in which the Hear’ ag

Panel unanimously agreed with Petitioner and recom-

mended revision of Ohio’s regulations. See further Train

v. Natural Resources Defense Council, Inc., 421 U.S. 60

(1975).

Finally, in Union Electric Company v. EPA, 427 U.S.

246, 96 S. Ct. 2518 (1976), this Court held that an appeal

from the federal approval of state adopted air pollution

control regulations may not address substantive challenges

to the approved state regulations. As stated by this Court:

13

Perhaps the most important forum for consideration

of claims of economic and technological infeasability

is before the state agency formulating the implemen-

tation plan. .. Moreover, if the industry is not ex-

empted from, or accommodated by, the original plan,

it may obtain a variance... Lastly, an industry de-

nied an exemption from the implementation plan, may

be able to take its claims of economic or technological

infeasibility to state courts. 96S. Ct. at 2529.

Thus, it is clear that such challenges are to be made at

the state level.

In Ohio, however, such a challenge could only have

been made by Petitioner in an adjudication hearing pursu-

ant to Chapter 119 of the Ohio Revised Code (Appendix G,

infra). No other forum existed, since at the time the

Ohio Air Pollution Control Board promulgated the rules

establishing the ambient air quality standards and emis-

sion limitations applicable to Petitioner, an appeal to the

judiciary was impossible because of the Ohio Supreme

Court’s controlling decision in Fortner v. Thomas, 22 Ohio

St. 2d 13 (1970), approved and followed, Rankin-Thoman

v. Caldwell, 42 Ohio St. 2d 436 (1975). These two cases

unequivocally hold that the Ohio Constitution does not

provide Ohio courts with jurisdiction to entertain chal-

lenges to administrative actions taken in quasi-legislative

(rule-making) proceedings.

Nor was there an administrative appeal available at

the time of the Ohio Air Pollution Control Board’s prom-

ulgation of the regulations establishing the ambient air

quality standards or emission limitations, since the EBR

was not yet in existence. These regulations were prom-

ulgated in January, 1972, but it was not until October 23,

1972, that the Ohio General Assembly enacted Chapter

3745 of the Ohio Revised Code (Appendix G, infra), which

14

created the EBR and posited with it the exclusive and

original jurisdiction to consider challenges to the Director’s

rule-making.”®

Thus, under Ohio law, such a challenge could only

be made at the state level in a proceeding pursuant to

Chapter 119 of the Ohio Revised Code—there was no other

judicia) or administrative procedure available to Petitioner.

The orders of the Ohio Supreme Court in the instant

case, however, failed to recognize the significance of the

adjudication hearing and have foreclosed Petitioner’s last

opportunity to challenge the regulations at the state level.

Therefore, those decisions and the decision below of the

Franklin County Court of Appeals were not in accord

with principles established in Buckeye I, II, and Union

Electric, supra. These failures to adhere to those prin-

ciples justify the grant of certiorari to review the judg-

ments below.

B. Variance Regulation OAC3745-35-03.

Before the Franklin County Court of Appeals, Peti-

tioner challenged Ohio EPA regulation OAC3745-35-03 on

the grounds, inter alia, that the regulation, in effect, ne-

gated and repealed the statutory basis for variances. Peti-

tioner demonstrated the manner in which the regulation

was patently contrary to, and totally inconsistent with,

Section 3704.03(H) of the Ohio Revised Code by demon-

strating that the regulation precluded the issuance of vari-

ances after April 15, 1977, even though Section 3704.03(H),

had no such cut-off date. Petitioner therefore contended

that the regulation was unlawful and unreasonable, since

16. Section 3745.04 of the Ohio Revised Code, which vests

original and exclusive jurisdiction in the EBR, literally refers

to “an action of the director ...” The actions challenged in the

adjudication hearings were the actions of the Air Pollution Con-

trol Board in establishing the ambient and emission standards.

15

it was tantamount to an administrative repeal of a legis-

lative enactment. State ex rel. Foster v. Evatt, 144 Ohio

St. 65 (1944),

While recognizing that Petitioner’s argument “(a)t

first blush appears to be valid”, the Franklin County Court

of Appeals rejected the challenge on the grounds that this

Court’s decision in Train v. Natural Resources Defense

Council, Inc., supra, provided justification for the Ohio

EPA’s variance regulation, That court read Train as pro-

hibiting variances which “. . . defer compliance beyond the

time established for national enactment... .”’" In so hold-

ing, the Court of Appeals blatantly misinterpreted this

Court’s decision in Train.

Indeed, this Court, in Train, explicitly and unequivo-

cally held that a state can issue variances from its emission

limitations even beyond the date for attainment of the am-

bient air quality standards. This Court further indicated

that such variances must be approved by the USEPA if the

increased emissions allowed thereby do not jeopardize the

attainment and maintenance of the ambient air quality

standards, In so ruling, this Court rejected the reasoning

of the First, Second, Fifth and Eighth Circuits in various

decisions where those courts rejected post-attainment date

variance mechanisms.’”* Furthermore, in so holding, this

Court specifically upheld USEPA’s approval of a Georgia

implementation plan containing provisions which would

have allowed post-attainment date variances.””

17. Appendix C, at Al6.

18. Natural Resources Defense Council, Inc. v. EPA, 478

F.2d 875 (1st Cir. 1973); Natural Resources Defense Council, Inc.

v, EPA, 494 F.2d 519 (2d Cir. 1974); Natural Resources Defense

Council, Inc. v. EPA, 489 F.2d 390 (5th Cir. 1974) and Natural

Resources Defense Council, Inc. v. EPA, 483 F.2d 690 (8th Cir.

1973).

19. Ga, Code Ann, §88-912 (1971).

16

Furthermore, the holding of the Franklin County

Court of Appeals also contravenes the clear holding of this

Court in Union Electric Company v. EPA, supra. That de-

cision reaffirmed the authority of a state to grant vari-

ances after the ambient attainment date had passed, Such

variances, according to this Court, could provide relief

from economically unreasonable, technically infeasible, or

unnecessarily stringent regulations within the framework

of the Clean Air Act,

Train and Union Electric do not provide justification

for a variance regulation with a cut-off date of April 15,

1977. The decisions below, therefore, conflict with Train

and Union Electric, thereby justifying the grant of this pe-

tition.

2. FUNDAMENTAL PRINCIPLES OF PRO-

CEDURAL DUE PROCESS GUARANTEED BY THE

FOURTEENTH AMENDMENT TO THE UNITED

STATES CONSTITUTION REQUIRED THE PRO-

VISION OF AN OPPORTUNITY TO PETITIONER TO

CHALLENGE THE PARTICULATE AND SULFUR

DIOXODE REGULATIONS IN AN ADJUDICATION

HEARING SINCE NO OTHER FORUM EXISTED

FOR SUCH A CHALLENGE.

The effect of the Ohio Supreme Court’s rulings in the

instant case is to foreclose Petitioner from the only forum

available to challenge regulations having an adverse im-

pact on it. This results because the Franklin County Court

of Appeals held that the consolidated adjudication proceed-

ings could not properly consider challenges to the regula-

tions establishing Ohio’s ambient air and emission limita-

tion standards. Petitioner’s due process rights have thus

been infringed,

17

Petitioner will be required to spend millions of dollars

to comply with regulations which all parties agreed below

are “out of date and should no longer be applicable.’”*°

Even though they were promulgated nearly seven years

ago, the regulations have not yet been, and will never be,

subjected to independent review, despite that they con-

tinue to be applied to Petitioner’s detriment. These reg-

ulations, therefore, stand inviolate and beyond scrutiny—a

unique status in American jurisprudence.

It has long been recognized by authorities in the field

of administrative law that a party with a sufficient interest

ir a determination of governmental action is entitled to

present and cross examine witnesses in an adjudication

hearing. See, e.g., K. Davis, ADMINISTRATIVE LAw, Section

703 (3d ed. 1972). Certainly, Petitioner, which will have

to spend millions of dollars to comply with obsolete regula-

tions, had such an interest and was entitled to challenge

those regulations,

It has also long been established that basic principles

of constitutional due process guarantee one, who is subject

to regulations, an opportunity, at sere" point in the ad-

ministrative process, to challencr’ ©«°7 tgulations. Yakus

v. United States, 321 U.S. 414 ( ' lakus, this Court

stated as follows:

The present statute is not even to the objection that

Petitioners are compelled to serve the public as in the

case of a public utility, or that the only method by

which they can test the validity of the regulations

promulgated under it is by violating the statute and

thus subjecting themselves to the possible imposition

of severe and cumulative penalties. 321 U.S. at 437-8.

(Citations omitted.)

20. Opinion of the Franklin County Court of Appeals, Ap-

pendix C at A2l.

18

Petitioner, on the other hand, is in precisely this predica-

ment. It is a public utility and has been put in the

position of having to violate the regulations in question,

and incurring penalties, before it can challenge the regula-

tions. This Court implied in Yakus that it is not only

unfair to put someone in this position, but also that it is

violative of principles of due process. As stated by this

Court in Goldberg v. Kelly, 397 U.S. 254 (1970):

The fundamental requisite of due process of law is the

opportunity to be heard. . . The hearing must be at a

meaningful time and in a meaningful manner. 397

U.S. at 267. (Citations omitted.)

See further Getty Oil Company v. Ruckelshaus, 467 F.2d

349 at 356 (3rd Cir. 1972); Raper v. Lucy, 488 F.2d 749 at

753 (1st Cir. 1973).

Petitioner, of course, has the option of spending the

millions of dollars necessary to comply with the violated

regulations or, as noted above, it can violate the regulations

and challenge them in an enforcement proceeding. This

Hobson’s choice cannot be harmonized with accepted no-

tions of due process.** Abbott Laboratories v. Gardner,

387 U.S. 136, 153 (1967); Rheingans v. Clark, 314 F. Supp

1398 (N.D. Cal. 1968). Certainly, the Constitution entitles

Petitioner to pre-enforcement review of these regulations.

21. Before the Franklin County Court of Appeals, the Di-

rector argued that there was no deprivation of due process since

Petitioner could have filed a declaratory judgment action under

the doctrine of Burger Brewing Co. v. Liquor Control Commis-

sion, 34 Ohio St. 2d 93 (1973). This proposition was recently

rejected by the Ohio Supreme Court in State, ex rel. Williams,

Director v. Bozarth, Judge, supra, thereby affirming Petitioner’s

argument that its only opportunity to challenge the regulations

was in the pre-enforcement adjudication hearings. Moreover,

(Continued on following page)

19

CONCLUSION

The decisions below of the Ohio Supreme Court and

the Franklin County Court of Appeals foreclose Petitioner

from challenging the particulate and sulfur dioxide regula-

tions in question at the state level. Yet this is precisely

where this Court and the Sixth Circuit have held that such

challenges must be made.

In addition, the decisions below conflict with this

Court’s decisions in Train and Union Electric.

Petitioner has been denied its guaranteed constitu-

tional right of procedural due process of law. The deci-

sions of the Ohio Supreme Court and the Franklin County

Court of Appeals have foreclosed Petitioner from any

opportunity to challenge outmoded regulations, which will

require Petitioner to expend a substantial sum of money

if it is to comply with them. Its only other “choice” is

to violate the regulations and challenge them in an en-

forcement proceeding. This Court, however, has said that

this is no choice at all, and therefore has said that pre-

enforcement review is required.

This case involves important questions of federal con-

stitutional law requiring resolution at this time. Further,

the misinterpretation and misapplication of decisions of

Footnote continued—

prior decisions of the Director indicated that he viewed the adju-

dication proceedings as the vehicle to “waive” the strict applica-

tion of general emission standards to specific sources when it can

- or te that such hy, aT were unreasonable as applied.

rmet Corporation, 73-AV-119 (1974) at 38-39; Arme t

73-AV-164 (1974). ' este

20

this Court make it uniquely important that this petition

be granted.

Respectfully submitted,

GuREN, MErrItTT, Socc & COHEN

650 Terminal Tower

Cleveland, Ohio 44113

By: MIcHAEL L. HARDY

Davip A. SCHAEFER

and

DonaLp H. HAuser, General Attorney

THE CLEVELAND ELECTRIC JLLUMINAT-

ING COMPANY

P. O. Box 5000

Cleveland, Ohio 44101

Counsel for Petitioner