Opposition — Cleveland Electric Illuminating Co. v. Williams

Supima Cour. Ug, >

FILED

IN THE

Supreme Court of the United $

October Term, 1978

No. 78-152

THE CLEVELAND ELECTRIC ILLUMINATING

COMPANY,

Petitioner,

vs.

NED E. WILLIAMS, DIRECTOR

OHIO ENVIRONMENTAL PROTECTION

AGENCY,

and

NORTHERN OHIO LUNG ASSOCIATION,

Respondents.

On Petition For A Writ of Certiorari

To The Ohio Supreme Court

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

an

SEGRETI & TOUSEY Co., L.P.A.

169 East Livingston Avenue

Columbus, Ohio 43215

(614) 221-8181

By: MICHAEL N. TOUSEY

A. MARK SEGRETI, JR.

Attorneys for Respondent

Northern Ohio Lung Association

MIDWEST LAW PRINTERS ANP PUBLISHERS, INC., Columbus, Ohio 43216

SUBJECT INDEX

Page

THE PETITION FOR A WRIT OF CERTIO-

RARI SHOULD BE DENIED perch he sy 1

ARGUMENT .......... 1

PROCEDURAL DUE PROCESS DOES NOT

REQUIRE THAT A PERSON SUBJECT TO

ADMINISTRATIVE REGULATIONS BE

GIVEN AN ADJUDICATORY HEARING TO

CHALLENGE THE REGULATIONS, ESPE-

CIALLY WHERE PUBLIC QUASI-LEGIS-

LATIVE HEARINGS WERE HELD, THE

PERSON PARTICIPATED, AND ADMINIS-

TRATIVE APPEALS WERE AVAILABLE

BUT NOT EXERCISED ............ —

A. Petitioner Had Numerous Opportunities To

Challenge The Ohio Air Pollution Regula-

tions But Failed To Exercise The Oppor-

tunities At The Right Time And In The

BGR FOVOE os ees pA a 1

B. Ohio Court Decisions Are Not Inconsistent

With Eunevy Train v. Natural Resources

Deter = “an seil, Inc., 421 U.S. 60 (1975)

Or " 2ctric Co. v. EPA, 427 US.

ed a PE ee ee ee | 5

CONCLOSION ...............-.4... ne

PS lt) eer rT ae en

TABLE OF AUTHORITIES

Page

Cases:

Buckeye Power, Inc. v. EPA, 481 F.2d 162 _—

Cir. 1973) 4

Buckeye Power, Inc. v. EPA (“Buckeye 1D"), 525

F.2d 80 (6th Cir. 1975) 4

Burger Brewing Co. v. Liquor Control Comm’n,

34 Ohio St. 2d 93 (1973) 3

Northern Ohio Lung Association, et al. v. EPA,

572 F.2d 1148, 1148 n. 9 (6th Cir. 1978) 2, 5

Ohio Environmental Council v. U.S. District

Court, 565 F.2d 393 (6th Cir. 1977)

Train v. NRDC, 421 U.S. 60 (1975) 5, 6, 7

Union Electric Co. v. EPA, 427 U.S. 246

eee 4,7, 8

West Penn Power Co. v. Train, 538 F.2d 1020 (8d

Cir. 1976) | 3

Statutes:

Section 110(a)(1), Clean Air Act, 42 U.S.C.,

Section 7410(a) (1) 3

Section 119.03, Ohio Revised Code , 3, 5

Section 3704.04, Ohio Revised Code 8, 5

Section 3745.04, Ohio Revised Code | 8, 5

Federal Register Notices:

39 Fed. Reg. 34533 7

41 Fed. Reg. 2099 (January 14, 1976) 5

41 Fed. Reg. 41691 (September 23, 1976) 5

ii

Miscellaneous:

K. Davis, Administrative Law Text, Section 7.05

(3d ed. 1972)

Ohio EPA Regulation OAC 3745-17-04

Ohio EPA Regulation OAC 3745-35-03

iil

Page

IN THE

Supreme Court of the United States

October Term, 1978

No. 78-152

THE CLEVELAND ELECTRIC ILLUMINATING

COMPANY,

Petitioner,

vs.

NED E. WILLIAMS, DIRECTOR

OHIO ENVIRONMENTAL PROTECTION

AGENCY,

and

NORTHERN OHIO LUNG ASSOCIATION,

Respondents.

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

THE PETITION FOR A WRIT OF CERTIORARI

SHOULD BE DENIED

The subject Petition does not involve a federal ques-

tion of substance not heretofore determined by this

Court, and the Ohio courts have not decided this case

contrary to applicable decisions of this Court.

ARGUMENT

PROCEDURAL DUE PROCESS DOES NOT RE-

QUIRE THAT A PERSON SUBJECT TO ADMIN-

ISTRATIVE REGULATIONS BE GIVEN AN AD-

JUDICATORY HEARING TO CHALLENGE THE

REGULATIONS, ESPECIALLY WHERE PUBLIC

QUASI-LEGISLATIVE HEARINGS WERE HELD,

THE PERSON PARTICIPATED, AND ADMINIS-

TRATIVE APPEALS WERE AVAILABLE BUT

NOT EXERCISED.

A. Petitioner Had Numerous Opportunities To Chal-

lenge The Ohio Air Pollution Regulations But

Failed To Exercise The Opportunities At The

Right Time And In The Right Forum.

It is well established that quasi-legislative decisions

in administrative rule-making do not require trial

type hearings. K. Davis, Administrative Law Text,

Section 7.05 (3d ed. 1972).

The Cleveland Klectric Illuminating Company’s

(“CEI”) claim is that an adjudication hearing is re-

quired where there was no other forum to challenge

the regulation. There is no need to consider when an

adjudication hearing may be required because CEI’s

underlying premise is erroneous. It has not shown, nor

can it, that it has not had the opportunity to object to

the air pollution regulations involved.

CEI advanced this same argument before the United

States Court of Appeals for the Sixth Circuit in North-

ern Ohio Lung Association, et al. v. EPA, 572 F.2d

1143, 1148 n. 9 (6th Cir. 1978). The Sixth Circuit

refused to consider the argument due to the avail-

able opportunities for such a challenge, citing its rejec-

tion of the same argument by another electric utility

in Ohio Environmental Council v. U.S. District Court,

565 F.2d 393, 397 (6th Cir. 1977), where the Court

stated :

“We decline to reach defendant’s arguments that

enforcement would unconstitutionally deny it a

2

due process hearing, for even if a Section 307 (b)

(1) hearing were unavailable in the existing cir-

cumstances, there has been no showing that de-

fendant had no other opportunity to voice Its

objections to the emission limitations involved

here. See Section 110(a) (1), 42 U.S.C., Section

1857¢e-5(a)(1) (notice and hearing required in

formulation of state plan); Ohio Rev. Code Ann.

Section 3745.04 (appeals to Environmental Board

of Review).”

The same argument was also rejected in West Penn

Power Co. v. Train, 538 F.2d 1020 (3d Cir. 1976).

CEI has had the following opportunities to object

to the Ohio air pollution regulations.

First, the regulations were adopted by the Air Pol-

lution Control Board in 1972, after notice and public

hearings in accordance with Section 3704.04 and Sec-

tions 119.01 to 119.03 of the Revised Code.’ CEI par-

ticips ted in those hearings. Section 110(a) (1) of the

Clean Air Act, 42 U.S.C., Section 7410(a) (1) required

that these regulations be adopted after notice and

public hearing.

Second, the regulations adopted by the Air Pollution

Control Board were self-executing and immediately

applicable to CEI. Violations were prohibited and were

subject to criminal penalty. CEI did not seek a state

court challenge to the regulations by a declaratory

judgment action. Burger Brewing Co. v. Liquor Con-

trol Comm’n, 34 Ohio St. 2d 93 (1973).”

‘The ambient standards were adopted by U.S. EPA na-

tionally. CEI could have challenged them in the District of

Columbia United States Court of Appeals, 42 U.S.C., Section

7607. It did not.

CEI asserts that a declaratory judgment action is not

available, citing State, ex rel. Williams v. Bozarth, 55 Ohio St.

2d 34 (1978), which held that such attacks on Ohio EPA

3

Third, the regulations were approved by action of

the U.S. EPA under Section 110 of the Clean Air Act

and CEI appealed that approval to the Court of Ap-

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

Cir. 1973). In that appeal CEI obtained further oppor-

tunity to object.

Fourth, U.S. EPA reapproved the Ohio regulations

through informal rule-making. CEI participated and

appealed the reapproval to the Court of Appeals. Buck-

eye Power, Inc. v. EPA (“Buckeye II’), 525 F.2d 80

(6th Cir. 1975). CEI’s petition for review was dis-

missed.* It did not appeal that dismissal to the Supreme

Court.

actions must be by way of an administrative appeal to the

Environmental Board of Review under Section 3745.04, Ohio

Revised Code. This assertion is misleading because the regu-

lations CEI complains about were adopted by the Ohio Air

Pollution Control Board in February, 1972, before the crea-

tion of the appeals board. A declaratory judgment action was

available at that time.

%In support of its claim of inconsistency, CEI cites lan-

guage in Buckeye I], that the technological and economic in-

feasibility claims were being dealt with at the state agency

level in the variance hearing held by the Ohio EPA Hearing

Panel, in which an attack upon the regulations was allowed.

Petition, at 12. In refusing to hear those claims, the Sixth

Circuit correctly noted that such claims could be considered

at the state level, however, it did not purport to tell the state

at what proceedings they could be raised. The irony of CEI’s

position is that the attack upon the regulations relied upon by

CEI was erroneous as a matter of state law. Thus, the Hear-

ing Panel’s recommendations were rejected by Ohio EPA, the

Environmental Board of Review, and the Franklin County

Court of Appeals, and not reviewed by the Ohio Supreme

Court. Nevertheless, the Sixth Circuit could not have consid-

ered those claims. Union Electric Co. v. EPA, 427 U.S. 246

(1976).

ee

Fifth, in July, 1975 Ohio EPA amended the Ohio

SIP deadline regulation which CEI challenges, chang-

ing the deadline for compliance from July 1, 1975 to

April 15, 1977. This amended regulation was adopted |

after notice and public hearings in accordance with

Section 3704.04 and Sections 119.01 to 119.03 of the

Revised Code. CEI participated in these hearings and

objected to the specification of the deadline.

Sixth, after Ohio EPA adopted the amended regu-

lation on July 28, 1975, CEI had the opportunity to

obtain a de novo review hearing before the Environ-

mental Board of Review under Section 3745.04 of the

Revised Code. Jt did not exercise this right to appeal.

Seventh, Ohio EPA’s amended regulation was sub-

mitted to U.S. EPA for approval. U.S. EPA approved

the regulation in informal rule-making procedures.

41 Fed. Reg. 2099 (Jan. 14, 1976) and 41 Fed. Reg.

41691 (Sept. 23, 1976). CEI participated in these pro-

ceedings objecting to the regulations.

Eighth, after U.S. EPA approved the amended regu-

lation setting the deadline at April 15, 1977, CEI ap-

pealed the approval to the Court of Appeals. Northern

Ohio Lung Association, et al. v. EPA, 572 F.2d 1143

(6th Cir. Feb. 2, 1978). After its petition for review

was dismissed, CEI did not appeal or file for a writ of

certiorari from this Court.

Due process does not require that CEI succeed in its

challenges. The petition for a writ of certiorari should

be denied.

B. Ohio Court Decisions Are Not Inconsistent With

Either Train v. Natural Resources Defense Coun-

cil, Inc., 421 U.S. 60 (1975) Or Union Electric Co.

v. EPA, 427 U.S. 246 (1976).

CEI claims that the Franklin County Court of Ap-

peals misconstrued the decision in Train v. NRDC,

5

421 U.S. 60 (1975). See Petition, at 16. This assertion

is erroneous.

The Franklin County Court of Appeals in Cleveland

Electric Illuminating Co. v. Williams, Case Nos.

76AP-929 and 938 (December 8, 1977), Appendix,

beginning at A-4, correctly referred to the Train v.

NRDC, supra decision as allowing a state to provide

for variances beyond the attainment date for ambient

standards “only insofar as such post-attainment vari-

ances do not prevent attainment or maintenance of

ambient air quality standards” in the state. App. at

A-17. However, the Court of Appeals held that Ohio

law did not permit post-attainment variances. It stated

that Ohio Revised Code Section 3704.05(A) “flatly

prohibits” violations of emission limitations without a

variance and that “R.C. 3704.03(H) authorizes, but

does not require, the Director to issue variances from

his regulations to sources of air pollution which have

[not] attained compliance with applicable emission

standard regulations.” Jd. The Ohio EPA (and the

prior Air Pollution Control Board) had interpreted

and implemented this section by authorizing variances

only to the attainment date. See OAC 3745-17-04 and

OAC 3745-35-03 (formerly designated EP-32-03),

quoted in App., at A-10. The state agency thus by

regulation terminated its discretion to issue variances

after the attainment date.

The Franklin County Court of Appeals, as a matter

of Ohio law, held,

“Considering the entire context of R.C. Chapter

3704. and the manner in which it was enacted, it

is reasonable to interpret R.C. 3704.03(H) to pro-

hibit issuance of a variance that is in conflict with

the Federal Clean Air Act, in particular, where

the variance defers compliance beyond the time

established for national enactment [sic], or which

prevents timely attainment of the air quality stan-

6

dards of the act [sic].” Appendix, at pages A-17-

18.

The Court went on to explain that the regulation

“places the Ohio act in compliance with national stan-

dards giving rise to adoption of the law in Ohio.”* The

Court concluded,

“Thus, the regulation of the Board [Air Pollu-

tion Control Board] prohibiting any variances

beyond April 15, 1977, is lawful in accordance

with the mandates of Ohio law, as set forth in

R.C. 3704.03, which was promulgated for the pur-

pose of achieving and maintaining compliance

with national] ambient air quality standards.” Ap-

pendix, at A-18.

It is apparent that the Franklin County Court of

Appeals correctly interpreted Train v. NRDC, 421

U.S. 60 (1975). In the context of the Ohio statutory

scheme which prohibited all violations of the emission

regulations without a lawful variance, and which was

intended to comply with the national objectives of

timely attainment of air quality standards by a date

certain, the Court held that it was re»sonable to pro-

hibit variances after the attainment date.”

Petitioner cites dictum in Union Electric Company

v. EPA, 427 U.S. 246 (1976) that “claims of economic

and technological infeasibility” could be considered by

‘U.S. EPA regulations required that the attainment date be

specific and that every source subject to a control strategy

requirement “must comply with such requirement no later

than the specified attainment date.” 39 Fed. Reg. 34533.

* This case does not address the issue in Train v. NRDC,

where the state statute allowed post-attainment variances

and the Court held that the state plan was still approvable but

revisions must not jeopardize timely attainment of National

Ambient Air Quality Standards. Also, in this case, evidence

was that ambient standards were being violated. See Environ-

mental Board of Review decision, Appendix, at A-62-63.

7

the state in “formulating the implementation plan.”

Petition, at 13. However, CEI has made no showing

(nor could it), that such claims were not considered by

Ohio in adopting the regulations originally. In fact,

CEI was not only accommodated for three years (from

1972 to 1975) but for five years (from 1972 to 1977),

due to the change in the attainment date. See Northern

Ohio Lung Asso. v. EPA, 572 F.2d 1143 (6th Cir.

1978).

In summary, CEI’s petition for a writ of certiorari

is due to its failure to elect the appropriate time and

forum in which to litigate its technological and eco-

nomic infeasibility claims. It has had the opportunity

to challenge the regulations and it has done so. It has

not been successful. Moreover, CEI fails to understand

that Union Electric, supra, did not purport to tell the

states when, how and to what extent they should con-

sider these infeasibility claims. The holding of the

highest courts in Ohio is that CEI raised these claims

in the wrong proceeding and that the state regulations

are reasonable. Due process has not been denied and

the issues raised by CEI are insubstantial.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted,

MICHAEL N. TOUSEY

A. MARK SEGRETI, JR.

SEGRETI & TOUSEY Co., L.P.A.

169 East Livingston Avenue

Columbus, Ohio 43215

(614) 221-8181

Attorneys for Respondent

Northern Ohio Lung Association

ADDENDUM

Ohio EPA Air Pollution Regulation 3745-15-05. Ce»-

trol plan compliance schedule.

“Except as otherwise specified, compliance with the

provisions of all regulations of the Board shall be ac-

cording to the following time schedule:

“(A) New source.

All new sources shall comply as of initial oper-

ation.

“(B) Existing sources.

All owners or operators of existing sources of air

contamination shall demonstrate to the satisfac-

tion of the Board that such sources are in com-

pliance with all regulations of the Board. All

existing sources not in compliance as of the effec-

tive date of this regulation shall, by the time

required in 3745-35-03 for submission of a

variance application, cease any operation which

results in a violation of any regulations of the

Board, or else prepare and submit to the Board,

as required by 3745-35-03, a control plan, includ-

ing necessary emission data, and schedule for

achieving compliance, such plan and schedule to

contain a date on or before which full compliance

will be attained, and such other information as

the Board may require. Such plan may be ap-

proved, modified, or rejected by the Board. If

approved by the Board, such date will be the

date on which the person shall comply. The

Board may require persons submitting such a

plan to submit subsequent periodic reports on

progress in achieving compliance. If a compli-

ance schedule is rejected, the operation for which

a variance is sought shall cease.”’

Ohio EPA Air Pollution Regulation 3745-17-04. Com-

pliance time schedule.

10

“Attainment of established air quality standards for

particulate matter and sulfur dioxide within the area,

through the orderly application of pollution control

techniques, shall be accomplished as soon as possible,

but in no event shall such time be later than April 15,

1977.”

Ohio Revised Code, Section 3704.04. Regulations sub-

ject to administrative procedures act.

“The adoption, modification, and repeal of regula-

tions and the issuance, revocation, modification, and

denial of permits and variances under Chapter 3704.

of the Reivsed Code shall be in accordance with sec-

tions 119.01 to 119.13, Chapter 3745, and division (H)

of section 3704.03 of the Revised Code.”

11