Opposition — Cleveland Electric Illuminating Co. v. Williams

Supreme Court, U. S.

FILED

AUG29 1978

IN THE MICHAEL RODAK, JR., CLERK

Supreme Court of the United States

OCTOBER TERM, 1978

No. 78-152

THE CLEVELAND ELECTRIC ILLUMINATING CO.

Petitioner,

vs.

NED E. WILLIAMS, DIRECTOR

Ohio Environmental Protection Agency

Respondent.

RESPONDENT'S BRIEF IN OPPOSITION

TO PETITION FOR A WRIT OF

CERTIORAR! TO THE SUPREME

COURT OF OHIO

———— — — LL

————————

— —— —

WILLIAM J. BROWN

Attorney General of Ohio,

DAVID E. NORTHROP

Assistant Attorney General

Environmental Law Section

30 East Broad Street, 17th Floor

Columbus, Ohio 43215

(614) 466-2766

ATTORNEY FOR RESPONDENT

Conclusion

INDEX

TABLE OF CONTENTS

The Clean Air Act does not require a state

to issue post-attainment date variances should

Oe Eo ok ns badd aesesseawes

The Clean Air Act does not require that a

state provide a forum within which an air

polluter may mount a_ pre-enforcement

challenge to emission standard

PRI, 2 il dic + hack eae on Oh > 0 BA Kae ia

The Due Process Clause of the fourteenth

amendment does not require that a state

provide a forum within which an air polluter

may mount a pre-enforcement challenge to

emission standard regulations ..............

*’e¢ @ 8 © 4 8-0.8.4:.6 2'S..6.8:9.46;4 €:6,06. 8 6 8 6.6

Mo Mx ee

INDEX Contd.

TABLE OF AUTHORITIES

Cases:

Page

Abbott Laboratories v. Gardner,

Se OS 5 nace pea secsnceecesnewhaaseen 10,11

Buckeye Power, Inc., et al., v. E.P.A.

Be Fn ils, Cis ec ccccccccccccescucsessonns 8

Buckeye Power, Inc., et al., v. E.P.A.,

525 F.2d 80 (6th Cir., 1975). ............. beeen tees 8,9

Burger Brewing Co. v. Liquor Contro/ Commission,

I so ne't eG neta ede ke waneeee eet 7

Goldberg v. Kelley,

cn Lc calncccecedesevenheaeeseees 10

State ex rel. Williams v. Bozarth,

RD CURE SE UU. cc cece ccccccecccccoscescsecen 8

Train v. Natural Resources Defense Council,

ey EEE. oc cn cecvocceseseeyestucdwe weuwen 6

Union Electric Company v. E.P.A., Te

497 US. BAB (IDS)... wc cccccccccccccccccccees 6,7,5,

Yakus v. United States,

Ee. Ge WEN. once nc cestadesenaeenos ene rebent 9

State Statues and Regulations:

Section 119.03, Ohio Revised Code.........-.0eeeeeeees 3

Chapter 3704, Ohio Revised Code. ..........-0++0+00> 2,3

Section 3704.03(H), Ohio Revised Code ............+.-+: 4

Section 3704.03(S), Ohio Revised Code..............+-- 3

Section 3745-17-04, Ohio Administrative Code........... 3

Section 3745-17-10, Ohio Administrative Code........... 3

Section 3745-17-13, Ohio Administrative Code...... 3,4, 11

Section 3745-35-03, Ohio Administrative Code. 2,3, 4,5, 6, 7

Federal Statutes:

a Se SED, . ivisewcseusdsccanewnaan 5,7

eg ra 6,7

IN THE

Supreme Court of the United States

OCTOBER TERM, 1978

No. 78-152

THE CLEVELAND ELECTRIC ILLUMINATING CO.

Petitioner,

vs.

NED E. WILLIAMS, DIRECTOR

Ohio Environmental Protection Agency

Respondent.

ee

STATEMENT OF THE CASE

1. Nature of the Case

This matter arose upon application by Petitioner Cleveland

Electric Illuminating Co. (hereinafter, CE!) for variances from

air pollution abatement requirements imposed by regulations of

the Ohio Environmental Protection Agency. CEI appeals from

the order of Respondent Director of Environmental Protection

denying the applications, and refusing to permit the admini-

strative evidentiary hearing, held to grant Petitioner the oppor-

tunity to demonstrate its eligibility for variances pursuant to

applicable regulations, to be converted into a forum for a broad-

based challenge to air contaminant emission standards. CEI

now claims that the Director's refusal to ignore or invalidate

his regulations in a quasi-judicial context is in violation of the

Clean Air Act and the Due Process Clause of the Fourteenth

Amendment.

2. Course of Proceeding

In February, 1972, the Air Pollution Control Board

promulgated regulations to remedy the pervasive problem of

poor air quality in Ohio. The regulations resulted from amend-

ment, in 1971, of Chapter 3704, Revised Code, in which the

Ohio General Assembly granted the Board the authority

necessary so that Ohio would ‘comply with the 1970 amend-

ments of the Federal Clean Air Act,’’ uncodified Section 4,

Amended Substitute Senate Bill No. 370, 134 Laws of Ohio,

page 650. The regulations established ambient air quality

standards (prescribing concentrations of pollutants in the out-

door air necessary to protect public health and welfare),

emission standards (applicable to each source of air contam-

inants), and regulations governing the issuance of permits and

variances. The latter regulation unambiguously limited issuance

of variances ---- which authorize emissions in excess of

applicable emission standards ---- to contaminant sources which

would commit to an abatement program resulting in compli-

ance with emission standards, and prescribed dates beyond

which variances would no longer issue. The regulations are now

administered by the Director of Environmental Protection, and

are substantially unchanged from their original promulgation

over six years ago. The variance regulation, now numbered

OAC 3745-35-03 (Appendix G, p. A 165, Petition for Writ of

Certiorari), has been amended to extend the deadline dates, but

has never been altered so as to delete the requirement of

ultimate compliance with emission standards (OAC 3745-35-

03 (F) (1) ), and the preclusion of issuance of variances beyond

a specified date (OAC 3745-35-03 (F) (2) ).

CE!l, in August of 1972, applied for variances for air

contaminant sources at its Lake Shore plant. The anplications

did not, despite the clear provisions of OAC 3745-35-03,

commit CEI to timely compliance with emission standards, but

rather sought to challenge the air pollution regulatory code as

unlawful and therefore inapplicable to Lake Shore. The

Director was requested, in effect, to respond to CEl’s

applications by declaring his own regulations unlawful and

granting to CEI a new, lenient emission standard in an

administrative order to be denominated a ‘‘variance."’

The Director declined CEl’s request to ignore ais own

regulations, but rather, in May, 1973, issued proposed variances

to the Lake Shore plant which, as required by OAC 3745-35-

03, contained schedules by which applicable emission standards

in OAC 3745-17-10 and OAC 3745-17-13 (Appendix G, p. A

164, Petition for Writ of Certiorari) were tobe attained. CEI,

in June, 1973, requested adjudication hearings, thereby pre-

venting the proposed variances from becoming final until

completion of hearing proceedings. At hearing, CEI did not

attempt to demonstrate its eligibility for variances under CAC

3745-35-03, but rather adduced evidence upon which the

Director was requested to rule that OAC 3745-17-10, OAC

3745-17-13, and OAC 3745-35-03, in spite of their clear

applicability to Lake Shore, were to be shunted aside and

variances issued containing more lenient terms acceptable to

CEl. Thus, CEI persisted in its quest for a rewriting of the air

pollution regulatory code applicable to the Lake Shore plant.

On December 12, 1974, the Director issued his decision

(Appendix E, p. A 101, Petition for Writ of Certiorari).

Because he was nowconvinced that his sulfur dioxide emission

standard regulation, OAC 3745-17-13, was more stringent than

necessary to achieve the purposes of Chapter 3704, Revised

Code, the Director appropriately declined to issue the variances

sought by CEI, for, as required by OAC 3745-35-03 (F) (1),

such variances would necessarily contain a schedule within

which CE! would be required to comply with such emission

standard. As to emissions of particulate matter, however, the

Director found no reason to further delay compliance with the

emission standard regulation. He therefore issued an enforce-

ment order pursuant to Section 3704.03 (S), Revised Code,

requiring compliance with the particulate matter emission

standard regulation by April 15, 1977, the date prescribed by

OAC 3745-17-04 upon which the ambient air quality stand-

ards are to be attained. The Director again explicitly declined

to rewrite his regulations, stating, at page 16 of his opinion:

The Director is bound by law and his own regulations to base

his final decision in any adjudication hearing solely on the

evidence presented in the record. When deciding the outcome

of an adjudication hearing, the Director can not act in a

legislative (rulemaking) capacity. He must act as judge.

And, at page 20:

The Director is nota liberty to address the general validity of

his own regulations in the context of this final findings and

order, Regulations may be amended or rescinded only

through the procedures established in Section 119.03 of the

Ohio Revised Code.

Therefore, the quasi-judicial rulemaking sought by CEI was not

forthcoming from the Director.

In January, 1975, CEI appealed the Director's action to the

Environmental Board of Review. The Northern Ohio Lung

Association (herinafter referred to as NOLA), which had parti-

cipated as a party in the proceedings before the Director, also

appealed, The Board, in October, 1976, reversed the Director

only insofar as he had failed to require compliance with the

sulfur dioxide emission standard, OAC 3745-17-13, and ordered

the Director to issue variances to the Lake Shore plant imposing

thirty-six month schedules for compliance with OAC 3745-17-

13. The Board failed to note that such schedules extended

beyond the deadline date of April 15, 1977, prescribed by OAC

3745-35-03 (F) (2). The Board expressly affirmed the

Director's refuse’ to engage in de facto rulemaking in the con-

text of a quasi-judicial administrative hearing.

CE! and NOLA appealed to the Court of Appeals, Franklin

County, which holds appellate jurisdiction pursuant to Sec-

tion 3745.06, Revised Code. NOLA assigned as error the

Board's order that the Director issue variances beyond the date

of April 15, 1977, prescribed by OAC 3745-35-03 (F) (2), be-

yond which variances would not issue. The Director joined in

NOLA‘s contention, and argued that OAC 3745-35-03 (F) (2),

as a lawful regulation, required the court to reverse the Board’s

order that variances issue after April 15, 1977. CEI persisted in

its contention that the Director should have given cognizance to

its challenge to the air pollution regulatory code and that, in

any event, the April 15, 1977, date prescribed by OAC 3745-

35-03 (F) (2) beyond which variances would not issue was

unlawful as in conflict with Section 3704.03 (H), Revised Code.

The court rendered its decision on December 8, 1977

(Appendix C, p. A 4, Petition for Writ of Certiorari). i. a

lengthy and unanimous opinion, the court correctly concluded

that, a.) the provision in OAC 3745-35-03 (F) (2) that variances

not issue after April 15, 1977, to sources ‘such as Lake Shore)

located in dirty air areas (Priority 1 regions) is a lawful and rea-

sonable regulation, and therefore dispositive in requiring

reversal of the Board’s order that variances issue to Lake Shore

after that date; b.) OAC 3745-35-03 (F) (1), requiring that each

variance, if issued, require abatement of emissions to attair.

compliance with emission standards, is lawful as in conformancy:

with express provisions of Section 3704.03 (H), Revised Code;

and c.) an adjudication hearing, being quasijudicial, is not a

proper forum for a generic challenge to an administrative regula-

tion for the purpose of achieving a de facto modification or

rescission of the regulation. The court therefore reversed the

Board as to the first holding, and affirmed the Board and

Director on the latter two. The court remanded the case to the

Board for further proceedings consistent with the court's

opinion.

Upon appeal, the Supreme Court of Ohio refused jurisdic-

tion, noting the lack of a “substantial constitutional question.”

(Appendix B, p. A 2, Petition for Writ of Certiorari).

CEI, on or about July 28, 1978, filed its Petition for Writ of

Certiorari in this Court raising two bases upon which the

petition is to be granted. The first, that the result below con-

travenes the Clean Air Act, 42 U.S.C. 7401, et. seq., is

erroneous in contending that such enactment imposes standards

of leniency upon the States in regulating sources of air

pollution. The second, that the Clean Air Act and due process

require that a State provide a forum for a pre-enforcement

challenge to air contaminant emission standards, is also in error,

and asks the Court to discover in the Due Process Clause a new

and hitherto unarticulated procedural imposition upon State

regulatory processes. Neither basis warrants granting the

petition.

QUESTIONS PRESENTED

1. Does the denial of an application for a post-attainment

variance from emission standards contravene the Clean Air Act,

42 U.S.C. 7401, et seg., when such deial is based upon an

expired deadline date prescribed by OAC 3745-35-03 (F) (2),

which regulation has been upheld as lawful under Ohio law?

2. Do the Clean Air Act or the Due Process Clause of the

Fourteenth Amendment impose a requirement upon the State

of Ohio to provide to CEI! a forum within which it may mount

a pre-enforcement challenge to air contaminant emission

standards?

REASONS FOR DENYING

THE PETITION FOR WRIT OF CERTIORARI

1. The Clean Air Act Does Not Require A State To

Issue Post-Attainment Date Variances Should It

Choose Not To Do So.

At pages 14 through 16 of the Petition for Writ of

Certiorari, CE! argues that OAC 3745-35-03 (F) (2), which

prohibits issuance of variances to CE! after the attainment date

of April 15, 1977, for particulate matter and sulfur dioxide,

is violative of the Clean Air Act. Such acontention is flatly in

error.

It should be noted at the outset that we deal here with a

regulatory provision upheld below as lawful under Ohio law by

the Court of Appeals, Franklin County, Ohio (Appendix C,

p. A 18, Petition for Writ of Certiorari). Therefore, unless held

to violate federal law, the variance deadline date of April 15,

1977, is dispositive of CEl’s attempt to obtain a variance.

The Clean Air Act is drafted to scrupulously protect a

State’s option to impose requirements more stringent than the

minimum requirements of the Act. 42 U.S.C. 7416, entitled

Retention of State Authority, unambiguously provides, in

pertinent part:

... [NJ] othing in this Act shall preclude or deny the

right of any State or political subdivision tnereof to

adopt or enforce (1) any standard or limitation respect-

ing emissions of air pollutants or (2) any requirement

respecting control or abatement of air pollution;

except that if an emission standard or limitation is in

effect under an applicable implementation plan or

under section 111 or 112, such State or political sub-

division may not adopt or enforce any emission

standard or limitation which is less stringent than the

standard or limitation under such plan or section.

(Emphasis added).

Therefore, CEl’s argument that the Clean Air Act imposes

maximum levels of stringency upon the States with regard to

issuance of variances flatly contradicts 42 U.S.C. § 7416.

Moreover, nothing in this Court’s decisions in Train v.

Natural Resources Defense Council, 421 U.S. 60 (1975), and

Union Electric Company v. EPA, 427 U.S. 246 (1976),

warrants the conclusion that the Clean Air Act requires a

State to issue post-attainment variances consistent with attain-

ment of ambient air quality standards. Rather, such cases

merely interpret the Act to authorize such variances as part of

fs ae

a State’s implementation plan, should requisites of 42 U.S.C.

§ 7410 be met. This distinction between requirement and

authorization was recognized by the Court in Union Electric,

supra. There, having earlier discussed 42 U.S.C. § 7416, the

Court concluded, at 427 U.S. 269, that a challenge in a federal

forum to a State’s implementation plan as overly stringent

“would [improperly] permit the Administrator or a federal

court to reject a State’s legislative choices in regulating air

pollution, even though Congress plainly left with the States, so

long as national standards were met, the power to determine

which sources would be burdened by regulation and to what

extent.”

Clearly therefore, CEl’s argument that OAC 3745-35-03

(F) (2) is somehow invalid as more stringent than authorized

by the Clean Air Act must fail as the very type of challenge

disapproved of in Union Electric, supra. Such contention,

surely, does not warrant issuance of a writ of certiorari.

2. The Clean Air Act Does Not Require That A

State Provide A Forum Within Which An Aix

Polluter May Mount A Pre-enforcement Challenge

To Emission Standard Regulations.

Equally faulty is CE!’s argument, at pp. 11 through 14 of

its Petition, that the Clean Air Act requires provision by a

State of a pre-enforcement remedy by which an air polluter

may seek invalidation of emission standard regulations. Surely,

to so conclude is to invade the State’s right, protected by 42

U.S.C. $7416, to regulate air pollution as it pleases in a manner

not less stringent than the Clean Air Act. Moreover, CE! points

to nothing in the Act which imposes upon the States such a

judicial or quasi-judicial remedy as part of the State’s regulatory

program.

CEI also errs in contending that it never had available to

it a pre-enforcement remedy against emission standards. Prior

to creation of the Environmental Board of Review on October

23, 1972, and the vesting of exclusive jurisdiction in the Board

over environmental matters of this sort, Section 3745.04,

Revised Code, CE! had available to it an action in declaratory

judgment, Burger Brewing Co. v. Liquor Control Commission,

34 Ohio St.2d 93 (1973). Although extinguished when the

Board was created, State, ex rel. Williams v. Bozarth, 55 Ohio

St.2d 34 (1978), an action in declaratory judment was a remedy

available to, but not used by, CE! for a period in excess of eight

months after promulgation of the challenged emission

standards.

Even assuming, arguendo, that the State of Ohio never pro-

vided to CE! a pre-enforcement remedy to challenge emission

standard regulations, CE! errs in contending that cases inter-

preting the Clean Air Act impose upon the State the obliga-

tion to provide such a remedy. Primary reliance is placed by

CEI upon the Court's statement in Union Electric, supra, at 427

U.S. 266:

Perhaps the most important forum for consideration of claims

of economic and technological infeasibility is before the state

agency formulating the implementation plan. . . Moreover, if

the industry is not exempted from, or accommodated by, the

original plan, it may obtain a variance. . . Lastly, an industry

denied an exemption from the implementation plan, may be

able to take its claims of economic or technological infeasi-

bility to state courts. (Emphasis added).

CE! misconstrues this passage to constitute a delineation of

requirements placed upon the States by the Clean Air Act.

Rather, the Court was merely pointing out the likelihood that

States may”, as a matter of state law, provide the very remedy

sought by Union Electric in a federal forum. Moreover, the

Court’s choice of the present tense in use of the term

“formulating” indicates that the Court was referring to partici-

pation by air polluters in the plan development process, rather

than provision of a remedy to challenge the plan after its

promulgation. In sum, the quoted passage simply does not sup-

port CEl’s reading of the Clean Air Act as requiring provision

of a pre-enforcement remedy to challenge emission standards.

Equally unhelpful are the two Buckeye decisions of the

Sixth Circuit, Buckeye Power, Inc., et al., v. E.P.A., 481 F.2d

162 (6th Cir., 1973) (Buckeye /); Buckeye Power, /nc., et al.,

v. E.P.A., 525 F.2d 80 (6th Cir., 1975) (Buckeye //). Buckeye /

vacated the Administrator’s initial approval of Ohio’s implemen-

tation plan on procedural grounds arising under the Administra-

tive Procedure Act, and did not address this issue. Also

inapposite is Buckeye //, in which the court declined to address

appellants’ challenges to the reapproved implementation plan

on the mistaken belief that the Ohio Environmental Protection

Agency adjudicatory hearings on CEl’s (and other utilities’)

variance applications constituted a "process of adjustment”’

of the implementation plan, 525 F.2d at 84. The court should

not have erred in its assessment of the scope of the state

hearing, for the hearing had concluded over ten months earlier

with the Director's decision of December 12, 1974, (Appendix

E, p. A 101, Petition for Writ of Certiorari) in which the

Director flatly held that, as a matter of Ohio law, such hearing

did not constitute a forum within which the implementation

plan may be adjusted. Nevertheless, it is clear from the opinion

in Buckeye // that, as in Union Electric, the court was

describing its understanding of state procedures, and not setting

forth procedures required by the Clean Air Act.

In sum, CEI’s contention that the Clean Air Act requires

provision of a pre-enforcement remedy against emission

standards is without merit, and does not warrant issuance of a

writ of certiorari.

3. The Due Process Clause Of The Fourteenth

Amendment Does Not Require That A State

Provide A Forum Within Which An Air Polluter

May Mount A Pre-enforcement Challenge To

Emission Standard Regulations.

On pages 16 through 18 of its Petition, CEI asserts that the

Due Process Clause requires provision of a pre-enforcement

remedy to challenge emission standards. This quite remarkable

assertion, to this writer’s knowledge, has never been adopted by

the Court. Indeed, the existence of a remedy in defense to

enforcement would seem, under accepted due process analysis,

to fulfill Ohio’s obligation to provide a timely opportunity

to CEI to assert its challenge to the regulations.

The three opinions of this Court upon which CEI relies

do not support its novel due process analysis. In Yakus v.

United States, 321 U.S. 414 (1944), the Court addressed several

questions arising under the Price Control Act of 1942. Per-

tinent here is the Court's review of the statutory preclusion of

pre-enforcement judicial review in favor of an exclusive admin-

istrative pre-enforcement review process. The Court held such

preclusion to be constitutionally sound, and concluded that the

procedural nature and timing of the remedy to challenge

regulations is a matter committed, to a large degree, to legislative

judgment. The Court stated, at 321 U.S. 439:

10

lf the alternatives, as Congress could have concluded,

were wartime inflation or the imposition on individuals

of the burden of complying with a price regulation while

its validity is being determined, Congress could consti-

tutionally make the choice in favor of the protection of

the public interest from the dangers of inflation.

And, at page 422:

Our decisions leave no doubt that when justified by

compelling public interest the legislature may author-

ize summary action subject to later judicial review of its

validity.

Such passages are hardly consistent with CEI’s view that Ohio

must provide a pre-enforcement remedy against regulations

designed to protect public health. Therefore, CEI’s contention

that Yakus “implie(s]"’ (petition for Writ of Certiorari, page

18) such a due process-imposed obligation does not survive a

close reading of the case.

Also wo art is Goldberg v. Kelley, 397 U.S. 254 (1970).

CE! draws from that case the principle that a hearing must be

afforded to a beneficiary of government programs ‘‘at a mean-

ingful time and in a meaningful manner,” 397 U.S. at 267.

Such case is, of course, distinguishable from the instant case, in

which CEI is subject to police power regulations, not public

beneficence. Moreover, if an analogy is to be drawn, a defense

in the enforcement action pre-dates imposition of sanctions for

violation of a regulation in the same manner that a pre-term-

ination hearing pre-dates cessation of benefits. Such a defense

is, therefore, at a meaningful time and place. Go/dberg is,

therefore, of no help to CEI.

CEI’s reliance upon Abbott Laboratories v. Gardner, 387

U.S. 136 (1967), is even more misplaced, for such case is better

cited for the proposition that the Due Process Clause does not

go as far as CEI contends. No constitutional issue was

presented in Abbott Laboratories, but rather, “whether

Congress by the Federal Food, Drug, and Cosmetic Act

intended to forbid pre-enforcement review of this sort of regula-

tion promulgated by the Commissioner.’’ 387 US. at 139.

Upon examination of that statute, the Administrative Procedure

Act, and the Declaratory Judgment Act, the Court decided the

issue in the negative. The Due Process Clause was not part of

the analysis.

11

The Court did, however, note that had the intent of

Congress been to the contrary, the Court would be bound

thereby, thus necessarily concluding that Congress is under no

constitutional mandate to provide the pre-enforcement remedy.

Such is apparent from the passage set forth at page 153:

Where the legal issue presented is fit for judicial resolu-

tion, and where a regulation requires an immediate and

significant change in plaintiffs’ conduct of their affairs

with serious penalties attached to noncompliance,

access to the courts under the Administrative Proce-

dure Act and Declaratory Judgment Act must be per-

mitted, absent a statutory bar or some other unusual

circumstance, neither of which appears here.

(Emphasis added).

Because Congress may impose ‘a statutory bar’’ to availability

of a pre-enforcement remedy, such a remedy cannot be required

by the Due Process Clause. CEI’s reliance on Abbott Laborator-

ies, therefore, is wholly in error.

The Court should decline to accept CEI’s invitation to

stretch the Due Process Clause well beyond its recognized

scope, and deny the Petition for Writ of Certiorari.

4. The Director Has Rescinded The Ohio Sulfur

Dioxide Emission Standard Regulation.

At page 10 of its Petition, CEl seeks review on the ground

that it must comply with both federal and state sulfur dioxide

emission standards. Although not a proper basis for review,

CEl’s perceived difficulties have been obviated by the

Director's rescission, or; August 8, 1978, of OAC 3745-17-13,

the Ohio sulfur dioxide emission standard. Therefore, the

Court need not address the dual regulation contention through

issuance of a writ of certiorari.

12

CONCLUSION

The denial of CEI‘S applications for variances violates

neither the Clean Air Act nor the Due Process Clause as inter-

preted by this Court. Accordingly, a writ of certiorari should

not issue.

Respectfully submitted,

WILLIAM J. BROWN

Attorney General of Ohio

DAVID E. NORTHROP

Assistant Attorney General

Environmental Law Section

30 East Broad Street, 17th Floor

Columbus, Ohio 43215

Attorney for Respondent