Petition — Chase Foundry & Manufacturing Co. v. Ohio

82-1996 MAY gy 1983

NO. CLERK

IN THE SUPREME COURT

OF THE UNITED STATES

October TERM, 1982

CHASE FOUNDRY & MANUFACTURING CO.,

Petitioners

Vv.

STATE OF OHIO,

Respondent

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF OHIO

C. WILLIAM BROWNFIELD,

Counsel of Record

WILLIAM H. ARNOLD

Brownfield, Bowen & Bally

140 East Town Street

Columbus, Ohio 43215

(614) 221-5834

Counsel for Petitioners

QUESTIONS PRESENTED

1. A statute, as construed, that

provides for the issuance of an

injunction, the effect of which is to

force a company out of business,

irrespective of the circumstances

involved or the past interactions between

the OEPA and the company, violates the

company's right to due process of law.

2 A statute, as construed, that

subverts the judiciary into a ministerial

agent for the OEPA, by requiring that the

court issue an injunction when requested

Dy the OEPA, violates the Principle of

Separation of powers between co-equal

branches of government.

PARTIES

Petitioner is Chase Foundry &

Manufacturing Co. Respondent is’~ the

State of Onio.

ii

TABLE OF CONTENTS

QUESTIONS

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REASONS FOR GRANTING THE

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Judgment Entry of the Supreme Court

of Ohio, sua sponte, dismissing

Petitioners’ Appeal from the Court of

Appeals for Franklin County .... Al,

433

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ix

A-2

Judgment Entry of the Supreme Court

of Ohio, dismissing Petitioners'

Motion to Certify the Record of the

Franklin County Court of Appeals......A-3

Decision of Franklin County, Ohio

Court of Appeals, rendered on

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Decision of Franklin County, Ohio

Court of Common

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Cover page and itemization of

Propositions of Law presented for

review by the Ohio Supreme

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iv

TABLE OF AUTHORITIES

Page

CASES

Hecht v. Bowles (1944) 321 U.S.

BEE OO DMs 1eBicckcesccesn 38, 39,

40, 44

Weinberger v. Romero-Barcelo,

U.S. s ta £4.40 91,

a0n) 2. Ct. (294) wicca 38, 40,

42

STATUTES

Ohio Revised Code §3704.03(H)... 29

Ohio Revised Code §3704.03(S)... 20, 23

Ohio Revised Code §3704.04...... 42

Ohio Revised Code §3704.06...... aa, a4,

aGs 26;

38, 40,

47

V

NO.

IN THE SUPREME COURT

OF THE UNITED STATES

October Term, 1982

CHASE FOUNDRY & MANUFACTURING CO.,

Petitioner,

vs.

STATE OF OHIO,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF OHIO

Petitioners pray that a Writ of

Certiorari issue to review the judgment

of the Ohio Supreme Court entered in the

above case wherein said Court's

jurisdiction was refused with respect to

Petitioners' appeal of the Decision of

vi

the Franklin County, 20 Couct oF

Appeals, entered on March 2, 1983 and to

review the said November L6, 1982

Decision of the lower appellate court.

OPINIONS BELOW

Petitioners’ motion to certify the

record was dismissed by the Ohio Supreme

Court without public report. The

November 16, 1982 Decision of the Court

of Appeals of Franklin County, Ohio,

which was left standing by the Ohio

Supreme Court's refusal to extend

jurisdiction over this matter has not as

yet been and may not be _ publicly

reported. The pertinent Decisions and

Entries are included with the Appendix to

this Petition.

vii

JURISDICTION

The Ohio Supreme Court's sua sponte

refusal ro grant jurisdiction over

Petitioners' appeal was entered herein on

March 2, i983 and this petition for a

weit of certiorari was filed within

ninety (90) days following entry of that

judgment. The jurisdiction of this Court

is invoked under 28 U.S.C. §2101l(c) and

Rule 17.1(b), (c), United States Supreme

Court Rules.

CONSTITUTIONAL PROVISIONS INVOLVED

A. Fourteenth Amendment to the

United State Constitution. * . « « ROE

shall any State deprive any person of

life, liberty, or property, without due

orocess Of LAW 2. » «

vili

B. "This Constitution, and the Laws

of the United States which shall be made

in Pursuance thereof; and all Treaties

made, or which shall be made, under the

Authority of the United States, shall be

the supreme Law of the Land; and the

Judges in every State shall be bound

thereby, any Thing in the Constitution or

LawS of any State to the Contrary

notwithstanding."

Ga "No State shall ... deny to any

person within its jurisdiction the equal

protection of the laws."

ix

STATEMENT OF THE CASE

This action was commenced by the Ohio

Attorney General on behalf of the Ohio

Environmental Protection Agency ("OEPA")

on August 7, 1978 to enjoin the operation

of Chase Foundry's plant. The Complaint

seeking the injunction was filed in six

"counts", the first three alleging that

Chase Foundry had failed or refused to

comply with certain Findings and Orders

issued by the Director of the OEPA on

Ruauet 7, <s376 in failing to install

required pollution control equipment or

an electric induction furnace, and in

that regard in failing to meet

achievement deadlines set forth therein

and to submit progress reports of the

fact of such achievement. Counts Four

through Six were alleged without

reference to the aforementioned findings

and orders, Five and Six averring that

Chase Foundry was emitting particulate

matter and visible air contaminants,

respectively. Count Six alleged that

Chase Foundry was operating as a source

of air contaminants without a permit to

operate. The Court was asked to enjoin

further operation until a permit to

Operate was obtained. The availability

Or status of a variance was not mentioned

in the Complaint as a permissible form of

license, although the Ohio Revised Code

specifically provides for such an

Operating mechanism and virtually no

Manufacturer in Ohio operates under a

permit, as opposed to a variance -- and

even though Chase Foundry had previously

operated under a variance, not a permit.

Neither a temporary restraining order nor

Preliminary injunction was sought by the

OEPA in the complaint or by motion.

After a substantial period of

discovery the matter came before’ the

trial court on cross-motions for summary

judgment, pursuant to Rule 56, Ohio Rules

Of Civil Procedure. The court denied the

OEPA's motion, finding as to the first

three counts based on issuance of the

Findings and Orders that they had been

invalidly issued and were void, ab

initio, Pursuant to the pertinent

statute. The court also found by

implication that the OEPA had presented

insufficient evidence in response to the

motion on Counts Four and Five to avoid

adverse judgment or justify issuance of

an injunction under its own Cross-Motion,

and further refused to enjoin the

Company's operations on the basis of

Count Six (absence of permit) under the

circumstances of this case (the Common

Pleas Court's Decision is annexed hereto

as “Appendix A").

On appeal by the OEPA, the Franklin

County Court of Appeals ruled that by the

time of its decision the matter of the

validity of the Findings and Orders had

become moot, the effective period covered

thereby having’ expired. It remanded

Counts Five and Six to the trial court

for further evidenciary proceedings,

apparently disregarding the rule that the

respondent had the burden of setting

forth sufficient evidence to avoid

summary judgment in making a response to

a Rule 56 motion -- which the OEPA had

failed to do. As to Count Six, however,

the Court altogether reversed the trial

court, holding that the absence of a

permit to operate dictated that an

injunction issue (the Court of Appeals

Decision is annexed hereto as "Appendix

a). The fact that Chase Foundry had

been operating under the authority of the

improper Findings and Orders was not even

mentioned by the appellate court, and

that court specifically held that

evidence that it had attempted to file a

variance application during the

litigation was irrelevant to the case.

Chase Foundry operates a small grey

iron foundry at 2300 Parsons Avenue,

Columbus, Ohio. AS a&@ ect of. 28

industrial process, Chase Foundry melts

scrap iron, recycling the iron into new

castings. In producing these castings,

the Company's employees spend

approximately 6 to 6-1/2 hours per work

day preparing sand molds for castings and

approximately 1 to 1-1/2 hours actually

melting scrap iron and pouring the molten

iron into the molds, generally four days

per week, but often only three days a

week.

To melt the scrap iron, Chase Foundry

Owns and operates a small cupola, also

known aS a blast furnace, with a melting

capacity of approximately 5 tons per hour

(as rated by the manufacturer). The

cupola is operated by Chase Foundry at a

maximum melting rate of approximately 4

tons per hour.

During calendar year 1974, Chase

Foundry was issued a variance by the OEPA

whereby it was permitted to operate its

cupola without control equipment in

place, provided that a compliance

schedule, attached to the variance, was

met. That compliance schedule required

the installation of emissions’ control

equipment on Chase Foundry's cupola.

In response to that variance and

compliance schedule Chase Foundry

embarked on an investigation of the

technology and equipment then available.

As a result the conclusion was reached

that the most efficient control equipment

which Chase Foundry could possibly afford

was a "Water Curtain Cupola Collector," a

type of control equipment commonly

referred to as a “wet cap". Chase

Foundry then decided to purchase such a

System to satisfy the OEPA and, by letter

of Mr. Paul Smith, President, of November

22, 1974, so notified the OEPA. The

total costs and expenses involved in that

purchase could well have exceeded One

Hundred Thousand dollars ($100,000) at

that time, a most substantial commitment

for a company the size and financial

condition of Chase Foundry. MThe OEPA's

response was delivered to Chase Foundry

in a letter dated December 10, 1974, and

more forcefully in a telephone call of

March 6, 1975. Both responses reflected

the OEPA's opinion that, if Chase Foundry

were to install a wet cap on its cupola,

the OEPA would require that the system

perform satisfactorily during a "stack

test." Both responses also reflected the

OEPA's further opinion that the wet cap

would not be able to pass such a test and

would therefore not be issued a variance

or permit to operate. In both

communications, the OEPA clearly conveyed

to Chase Foundry that if the stack test

were not successfully completed, Chase

Foundry would not be permitted to operate

its cupola and that a variance permitting

the "partially" effective equipment to

operate would not be issued,

notwithstanding the installation and

expenditure of funds.

In the telephone conversation between

Robert Carey and Paul Smith, mentioned

above, however, Mr. Carey advised Chase

Foundry to disregard the remaining

"milestones" of the 1974 variance, except

the requirement that Chase Foundry

provide the OEPA with progress reports.

As to these reporting requirements, Mr.

Carey advised Chase Foundry to submit

“working at it" reports. Mr. Carey also

indicated that the Company should await

either the development of less expensive

but more effective technology or the

loosening of regulations as they applied

to small foundries.

Many months later, on September 14,

1977, by letter from the Director of the

OEPA, Mr. Smith was advised of the OEPA's

opinion that Chase Foundry was violating

Ohio's air pollution control

regulations. Mr. Williams’ letter went

on to state that, despite Chase Foundry's

expression of willingness to purchase a

wet cap collector, discouraged by the

OEPA, Chase Foundry nad *so far,

completely failed to make more than the

most meager attempts to comply with Ohio

air pollution control regulations ... :"

and advised Mr. Smith that Chase Foundry

faced a $10,000 per day fine for failing

to comply with the Director's demands.

In response to this letter, Mr. Smith

wrote to then-Governor, James A. Rhodes,

informing him of the OEPA's threats, of

the competitive pressures facing Chase

Foundry, and of the potentially

disastrous effect on Chase Foundry's

existence. The Governor responded by

inviting Mr. Smith to meet with him and

with OEPA Director in an attempt to

resolve the problems facing the parties.

Mr. Smith subsequently attended a

meeting at the Governor's office and

explained to the Governor, the Director,

and other OEPA officials that the

Foundry's cupola was, on ae relative

basis, very small and was operated only

during a short period of time every day,

at the most four days a week, that Chase

Foundry did not enjoy the strong

financial condition that would be

required if the company were to make the

investment demanded by the OEPA and still

retain the ability to withstand adverse

economic and operating situations. He

also asserted that such an investment was

not juctified by Chase Foundry's limited

operation of the cupola, even if it could

be handled financially.

Governor Rhodes greeted Mr. Smith's

Statements with apparent understanding

and responded by instructing the Director

to meet with Mr. Smith again and to take

some type of action to relieve the burden

faced by the Company.

Following the Governor's

instructions, the Director delegated his

oe

duty to meet with Mr. Smith to a deupty,

Mr. Jack Wunderle. Mr. Wunderle met with

Mr. Smith on October 14, 1978,

approximately one week prior to Mr.

Wunderle's retirement from the _ OEPA.

This meeting was not productive, because

of Mr. Wunderle's imminent retirement.

However, Mr. Wunderle did indicate to Mr.

Smith that the OEPA knew that compliance

with the agency's regulations imposed a

Substantial financial hardship on small

foundries and that he would like to see

something done to relieve the burden but

despaired of any short-term progress in

that direction.

After repeated requests, and at Mr.

Smith's insistence, a meeting was then

arranged between Mr. Smith and _ other

representatives of Chase Foundry, and

Director Williams, Mr. James Orlemann,

and other OEPA representatives. At this

meeting, Mr. Smith stated that the

Director appeared to be ignoring

available statutory authority for

providing Chase Foundry some relief from

OEPA regulations, and again stated that

Chase Foundry could not possibly afford

to make an investment of the size

insisted upon by the OEPA. Mr. Smith

invited the Director to examine’ the

company's financial reports and to

determine for himself that Mr. Smith was

being truthful. The essence of Mr.

Williams' response was that finances were

irrelevant and that Chase Foundry would

have to install adequate control

equipment or shut its operation down.

The Director indicated that he had no

discretion in the matter, "because it was

all caused by the Feds."

This meeting concluded’ with the

Director's statement that Chase Foundry's

2) os

"case" was to be referred to the Attorney

General's office for prosecution of an

injunction unless the company would meet

with the OEPA's staff and agree on steps,

Satisfactory to the OEPA, that Chase

Foundry would take.

Mr. Smith was so discouraged by the

_Director's position that the decision was

made to meet with OEPA staff members in

an attempt to find some way of avoiding

the threatened shutdown. Mr. Smith

eventually met with Mr. James Orlemann

who reiterated the Director's position

about the irrelevancy of financial

matters and who even went so far as to

tell Mr. Smith that if Chase Foundry was

experiencing financial difficulties, it

was solely "due to poor management."

In the meetings with Mr. Orlemann,

Mr. Smith was advised to consider melting

scrap with an electric induction

ee

furnace. Mr. Orlemann offered electric

melting as an alternative to the cupola

as modified with control equipment.

Insofar as Mr. Smith was uninformed about

electric melting, and because Mr.

Orlemann seemed to harbor some enthusiasm

for that process, Mr. Smith agreed to

investigate the possibility.

Mr. Orlemann then arranged for the

drafting of proposed Findings and Orders,

One set of the orders pertaining to the

installation of an electric induction

furnace and one pertaining to a

high-energy scrubber. Attached to these

Findings and Orders was a written Waiver

reciting that Chase Foundry waived

administrative and judicial review of the

findings and orders permitted by statute,

to which Mr. Smith objected. Mr.

Orlemann responded that the Waiver was

Standard with all Orders, that Chase

~ tt ow

Foundry had to sign the Waiver if the

Orders were to issue, and if the Orders

did not issue the entire matter would be

referred to the Attorney General for

suit. No stack tests had been conducted

by the OEPA to actually measure the

Company's emissions.

On or about ioe 24, 1978, the final

version of the Orders was delivered to

Mr. Smith along with a letter demanding

that he sign the Waiver. Mr. Smith then

signed the Waiver and returned the Orders

to the OEPA. Mr. Smith still strongly

objected to the necessity for the Waiver,

however, and covered the executed Waiver

with a letter saying so. At no time

during these events was Chase Foundry

represented by legal counsel.

Mr. Smith immediately began his own

investigation of the control technology

available in 1978, and into the alleged

- 46 «

alternative of induction furnaces. Tt

became readily apparent that compliance

with the Orders would be _ financially

impossible.

Induction furnaces with capacities of

more than one ton per hour were, even at

that time, far beyond Chase Foundry's

financial reach due to their extremely

high purchase price -- particularly

induction furnaces with the capacity to

melt approximately one when necessary

Production and structural change factors

were considered.

Specifically, with the lower melting

rate the electric furnace would have to

be operated roughly six hours a day,

generating intense heat throughout the

day. Presently, with the cupola melting

Caty a&@ short period of time, the

Operation is referred to as a "batch"

process. The workers are able to make

molds for castings for the major portion

of the work day and are exposed to heat

from molten iron for only a short period

of time.

With a continuous melting process,

and the present physical plant, the

workers would be exposed to the heat from

the furnace and to the more than 1300

degree heat from the molten iron all day

long in a small, closed quarter. To

modify Chase Foundry's old physical plant

to segregate the molders from the furnace

and the poured molten iron would require

extensive structural revisions, the cost

of which, when added to the purchase

price of the smaller furnace, would then

have exceeded $300,000 and could likely

have approached $500,000.00. By

comparison, the total book value of the

entire foundry physical plant was

approximately $220,000. Its stock had no

—

ready market value, being a close

corporation.

Another problem facing Chase Foundry

with regard to the purchase of either

control equipment or an electric furnace

was that, in addition to the large

initial investment for either type of

equipment, both types would entail a

substantial increase in operating expense

over the Company's present operation.

Chase Foundry's income (before taxes)

from operations for fiscal years 1976

through 1982 was as follows:

1976 $ 22,167.00

L977 8,949.00

1978 140,693.00

1979 102,431.00

1980 (40,551.00)

1981 20,857.00

1982 (120,426.00)

For the reasons above described,

Chase Foundry discovered that _*

absolutely could not meet the

28 «

requirements imposed by the OEPA's

Findings and Orders and so informed the

OEPA. As a result, the OEPA brought the

instant action in order to close down

Chase Foundry's plant, as described

above.

In its summary judgment motion,

granted by the trial court, Chase Foundry

presented evidence to the trial court

demonstrating that the Findings and

Orders had not been issued by the OEPA in

compliance with the statutory

requirements of Section 3704.03(S) which

mandated, inter alia, that the Company's

financial condition be taken into account

by the Director of the OEPA in

considering variances and ordering

compliance with proposed orders.

Further, Chase Foundry presented evidence

concerning why it technically had no

permit Or variance (even

tnougn a variance had been applied for by

Chase Foundry and returned by the OEPA as

if not filed during the period following

the filing of OEPA's Complaint).

Chase Foundry attempted to appeal the

above-described Decision of the Court of

Appeals to the Ohio Supreme Court. Chase

Foundry contended, inter alia, that the

Decision of the appellate court

constituted a denial of the Company's due

process of law.

On March 2, 1983, the Supreme Court

of Ohio refused to extend jurisdiction

over Chase Foundry's appeal, dismissing

the appeal without opinion sua sponte.

~ 26 4

REASONS THE WRIT SHOULD BE GRANTED

Chase Foundry does not now have a

permit or variance from the OEPA. The

Franklin County Court of Appeals held

that upon this fact alone Chase Foundry

must be enjoined from operation of its

plant pursuant to Ohio Revised Code

Section 3704.06, which requires such a

permit or variance for operation. The

Court of Appeals held that the trial

court had no power to consider’ the

circumstances concerning why Chase

Foundry did not have a permit or variance

in determining whether an injunction was

appropriate. The Court of Appeals felt

constrained by ORC 3704.06 to issue an

injunction because of the lack of the

permit or variance. Such interpretation

of ORC 3704.06 by the Court of Appeals in

the context of the case at bar not only

violates Petitioners' guranteed right to

due process but, in addition,

unconstitutionally subverts the court.

from a co-equal branch of government to a

ministerial agent for the OEPA.

In 1974 Chase Foundry was operating

its cupola under a variance granted by

the OEPA. After this variance expired

Chase Foundry was informed by the OEPA

that the only alternative to closing down

its plant was to agree to Findings and

Orders prepared by the OEPA. Faced with

these alternatives as earlier detailed,

the Company acquiesced to Findings and

Orders and to a Waiver also required by

the OEPA, such Findings having been

issued without measurement of the actual

rate of emissions at Chase Foundry or of

the total emission level.

The trial court found that the OEPA

had wrongfully ignored the statutory

requirements of §3704.03(S) in issuing

= 23 «

the Findings and Orders, particularly as

to financial impact upon the defendant.

This express finding was not disturbed by

the Franklin County Court of Appeals.

After Chase Foundry found that it

could not comply with the unlawfully

issued Findings and Orders, the OEPA

brought the instant action not only to

enforce the Orders but also to enjoin the

continued operation of Chase Foundry's

plant because Chase Foundry did not have

a permit to operate or variance. The

primary reason Chase Foundry did not have

a permit or variance was, of course,

because it had been operating under the

Findings and Orders subsequently found to

be invalid.

The OEPA brought the instant action,

in part, to obtain an injunction pursuant

to Ohio Revised Code §3704.06. At the

time this action was filed §3704.06

provided in part as follows:

~ 26

The court shall have jurisdiction

to grant injunctive relief or

enter such other judgment, and

Orders enforcing such judgment,

as the public interest and

equities of the case require.

The "violations" of regulations

Claimed by the OEPA to have occurred all

stem from the operation of Chase

Foundry's cupola. Specifically, the OEPA

alleges that the cupola Operated by Chase

Foundry emits approximately 17 pounds of

Particulates per ton of scrap iron

melted, To actually determine the rate

of emissions from the cupola would

require a "stack test," a measurement in

accordance with the American Society of

Mechnical Engineers Power Test Codes ii -

PTC-27, "Determining Dust Concentration

in a Gas Stream." A stack test has never

been run on Chase Foundry's cupola, with

the result that the OEPA's assertion that

the cupola emits 17 pounds of

~

Particulates per ton of scrap melted has

never been substantiated, and remains to

this date simply an assertion. Chase

Foundry continues to take the position

that it has not violated any of the

regulations cited by the OEPA, and that

the OEPA has never obtained and did not

Provide on motion hearing proof of such

violation.

Assuming that Chase Foundry committed

the claimed violations, arguendo, it fell

upon the trial court to enjoin. the

further operation of the cupopla "or to

enter such other judgment, and orders

enforcing such judgment, as the public

interest and equities of the case

required." RC. §3704.06 (emphasis

added).

AS was acknowledged by the trial

court, Chase Foundry is not a party which

has resolutely refused to do anything to

~ 26 =

satisfy the OEPA's regulations or demands

for action. On the contrary, Chase

Foundry's reasonable attempts to obtain

control equipment and to in- general

Satisfy the OEPA's demands, aand_ the

reactions of the OEPA to these attempts,

have been previously discussed.

in addition to its decision to

install a "“wet cap collector" system

earlier mentioned, Chase Foundry

indicated to the OEPA on a number of

occasions its willingness to purchase and

install affordable equipment on the

cupola if a control equipment

manufacturer would guarantee ultimate

compliance with the OEPA's regulations,

Or if the OEPA itself would agree to

grant a variance to Chase Foundry if the

installed equipment did not achieve

Strict compliance with the regulations.

Despite Paul Smith's rather extensive

search, Chase Foundry has been unable to

find a single manufacturer willing to

guarantee its product. Likewise, the

OEPA has proven itself uncooperative and

inflexible in this regard, having

informed Mr. Smith that any equipment

purchased would be required to achieve

the regulated reduction in emissions

before a permit to operate would issue or

variance would issue.

AS a result, since the beginning of

its confrontation with the OEPA, Chase

Foundry has been faced with the risk of

borrowing and investing what would be for

Chase Foundry the expenditure of an

enormous amount of capital for equipment

which would possibly not be effective to

cure this alleged emissions problem, only

to then see its position with the OEPA

not improve, and to still face threats of

closure. Such a situation would be the

financial death of a venerable central

Ohio enterprise, and of the jobs it

provides.

Chase Foundry has never disputed

that at all pertinent times it must have

either a permit or a variance. Indeed,

as earlier stated, Chase Foundry

attempted to apply for a variance during

the pendency of this case after it became

clear the Orders could not be satisfied.

The OEPA refused tO even accept the

application and referred further

communication to the Assistant Attorney

General handling the injunction action.

Chase Foundry asserted in its application

that it was entitled to a variance under

R.C. §3704.03(H). Four of the five

subsections in that statute are directly

relevant to Chase Foundry's’- position

(subsections 1-4) -- yet the OEPA refused

to even accept Chase Foundry's

submission.

In its letter in response to Chase

Foundry's variance application, the OEPA

stated that one deficiency of the

application was Chase Foundry's failure

to demonstrate either that tne ambient

air quality standards for particulates

are being met in the Columbus region or

that Chase Foundry's particulate

emissions will not prevent or interfere

with the attainment of this particulate

standard. Another stated deficiency was

Chase Foundry's failure to demonstrate

that its facility does not prevent or

interfere with the maintenance of ambient

air quality standards for particulates.

According to the OEPA in its letter, at

the time of Chase Foundry's application,

the ambient air quality standards for

particulates were being violated in the

Columbus region. As of March 28, 1983,

said standards were not being violated in

» 36 -

the Columbus region, notwithstanding

Chase Foundry's continued operation.

Thus, both of these requirements have

been met, since Chase Foundry has

continued to do the same minimal level of

cupola melting while, at the same time,

the ambient air quality of the Columbus

region has actually improved.

It has long been the law that one

who has acted unjustly cannot’ obtain

equitable relief. There can be no doubt

but that the OEPA, by issuing Chase

Foundry what the trial court found to be

arbitrary, invalid and unreasonable

orders, by coercing Chase Foundry into

executing the above-mentioned Waiver, by

discouraging Chase Foundry from taking

Substantial affirmative steps, and in

ignoring the spirit and the letter of the

Statutory scheme for issuing variances,

has rendered any potential equitable

oS ae

action against Chase Foundry

inequitable. But the equities of the

case vis-a-vis the parties directly

involved in this suit are not the only

relevant considerations. The public

interest also favors the position of

Chase Foundry.

Notwithstanding the fact that Chase

Foundry has in the past conditionally

offered to assume the financial burden

associated with the most affordable

control equipment, Chase Foundry could

theoretically install expensive control

equipment, bring its cupola "into

compliance" and actually increase its

amount of emissions while still being "in

compliance".

The irony inherent in the OEPA's

desire to have Chase Foundry's cupola

brought “into compliance" is that, given

the manner in which Chase Foundry has

» 32 «

always operated its cupola, if Chase

Foundry were to purchase and install the

expensive control equipment apparently

required by the OEPA, such an alteration

could in fact bring about a modification

of its operations so as to cause a net

increase in the absolute amount of

emissions, while still being "in

compliance." Such fact is particularly

pertinent in light of the OEPA's

reference to "ambient air quality" in the

Franklin County, Ohio area generally in

its analysis of the Chase Foundry's

alleged contribution to the area's

environment and the reference to such

data in the OEPA's determination of

whether to grant or refuse variance

applications.

The OEPA claims, but has not proven

(Or even tested to determine), that for

each ton of scrap metal melted, the

cupola emits 17 pounds of particulates.

Using the maximum figure of six tons of

scrap per day, the claimed rate of

emission would result in 102 pounds of

particulates per day, or 408 pounds per

week, at four days of operation per

week. The OEPA insists that Chase

Foundry must reduce the rate of emission

by approximately 82%, to about’ three

pounds per_ ton. However, since the

cupola is not being operated at or near

its daily or weekly capacity, Chase

Foundry could install control equipment,

reach the desired rate of emissions, and

then operate the cupola five times as

often each day, one or two extra days per

week, and legaliy emit more particulates

On an absolute basis than it is now

Claimed to emit. In.§6fact,. at Chase

Foundry's present melting rate of four

tons of scrap per hour, and at the

allowable emissions rate of three pounds

OF particulates per ton of scrap, if

Chase Foundry were to melt scrap eight

hours per day, five days per week, it

would legally emit 480 pounds of

particulates, or in excess of 70 pounds

per week more than the OEPA claims is now

being emitted!

The foregoing discussion demonstrates

that the OEPA has ordered Chase Foundry

to effect changes to its manufacturing

Process at a prohibitive cost so as to

reduce the rate of emissions from a

source with a claimed emissions’ rate

which offends the OEPA but which is a

source operated such a small portion of

the time that its absolute emissions,

whatever they truly are, are negligible.

Chase Foundry sees neither equity nor

service of the public interest in that

proposed course of action -- nor did the

trial court.

= 58 os

Indeed, the OEPA has not argued that

the equities of this case require that an

injunction issue against Chase Foundry.

Rather, the OEPA argues that the 1980

Amendment to ORC §3704.06 during the

pendency of this action removed the trial

court's jurisdiction to consider

"equities" before granting an

injunction. Section 3704.06 as amended

reads as follows:

Prosecution by attorney general;

injunction; complaint.

The attorney general, upon

the request of the Director of

environmental protection, shall

prosecute any person who

violates Section 3704.05 of the

Revised Code.

The attorney general, upon

request of the director, shall

bring an action for an

injunction or any other

appropriate proceedings in any

court of competent jurisdiction

against any person violating or

threatening to violate section

3704.05 of the Revised Code.

The court shall have

jurisdiction to grant injunctive

» 36 «=

relief or enter such other

judgment, and orders enforcing

such judgment, as the public

interest and equities of the

case require. [Emphasis added.]

Upon written complaint by

any person, the director shall

conduct such investigations and

make such inquiries as are

necessary to secure compliance

with this chapter. The director

may, upon complaint or upon his

own initiative, investigate or

make inquiries into any alleged

violation or act of air

pollution.

The OEPA's position has been that the

trial court was automatically obligated

to enter an injunction in this case in

rubber stamp fashion. This position is

untenable. The Court of Appeals'

decision that the trial irt possessed

such unconscionably limited discretion in

reaching equitable determinations in OEPA

injunction cases is based on an incorrect

interpretation of the case law construing

equity jurisdiction over statutory

injunctions and upon an improper’ and

- 37 -

unconstitutional theory of the general

powers of Common Pleas Courts.

A precise statement of the law

regarding the trial court's discretion to

fashion an appropriate remedy under R.C.

§3704.06 is found in the principles set

forth by this Court in Hecht v. Bowles

(1944), 321 U.S. 321, 88 L.Ed. 754 and

Weinberger V. Romero-Barcelo,

U.S. ’ 72 Ed.2d 91, 102, S.

ce. ...—s«é(49G2). «‘Precisiy on point with

the issues involved in the present

controversy, this Court states:

The question in this case is

whether the Administrator,

having established that a

defendant has engaged in acts or

practices violative of §4 of the

Act, is entitled as of right to

an injunction restraining the

defendant from engaging in such

acts or practices or whether the

court has some discretion to

grant or withhold such relief.

{[Hecht, supra, 88 L.Ed.,

p. 756 (emphasis added) }

=e & @

Others provide that an

injunction or restraining order

shall be granted “upon a proper

Showing" that federal district

courts shall have jurisdiction

to restrain violations "for

cause shown." The argument is

that when Congress desired to

give the district courts

discretion to grant or withhold

relief by injunction, it chose

apt words to makes its desire

plain. (See 3704.06(B);

3704.03(H), in case at bar).

(Hecht, supra, 88 L.Ed., Pp.

759; parenthetical added)

2 * £

We do not stop to compare the

Provisions of §205(a) with the

requirements of other federal

statutes governing

administrative agencies which,

3t is. said, make it mandatory

that those agencies take action

when certain facts are shown to

exist. We are dealing here with

the requirements of equity

Practice with a background of

several hundred years of

history. Only the other day we

Stated that "An appeal to the

equity jurisdiction

conferred on federal district

courts is an appeal to the sound

discretion which guides the

determinations of courts of

equity." Meredith vy. Winter

Haven, 320 U.S. 228, 235, ant,

o 39 «

9, 13, 64 S.Ct. 7. The historic

injunctive process was designed

to deter, not to punish. The

essence of equity jurisdiction

has been the power of the

Chancellor to do equity and to

mold each decree to the

necessities of the particular

case. Flexibility rather than

rigidity has distinguished it.

The qualities of mercy and

Practicality have made equity

the instrument for nice

adjustment and reconciliation

between the public interest and

Private needs as well as between

competing private claims.

(Hecht, supra, 88 L.Ed., Pp.

760, emphasis added]

This holding clearly demands that

equity practice not be discarded or

treated lightly simply because one party

is of "public" character. The trial

court's jurisdiction under R.c. §3704.06

must be construed in view of these well

established principles.

In Weinberger, supra, the U. S. Navy

was using an island near Puerto Rico for

weapons training. The Governor of Puerto

- 40 <-

Rico sought an injunction against the

Navy on the ground that the Navy had not

obtained a permit from the _ EPA. The

District Court held that the Navy had

violated the Federal Water Pollution

Control Act. The district court ordered

tne Navy to apply for a permit, but

refused to enjoin the Navy operations

pending consideration of the permit

application.

The First Circuit Court of Appeals

held that the district court erred in

undertaking a traditional balancing of

competing equities. The Court of Appeals

remanded the case with instructions to

grant an immediate injunction. This

court reversed.

Justice White, writing for the

majority, began by noting that:

[Aie@ insueeetion .+«- if aet

remedy which issues as of course

(Weinberger, Supra,

72 % Bd.ad at 98].

The essence of equity has been

the power of the chancellor to

do equity and to mold_- each

decree to the necessities of the

particular case. Flexibility

rather than rigidity has

distinguished it.

(Weinberger, supra,

72 GL EdG.2a at 99]

This Court concluded as

follows:

Rather than requiring a

district court to issue an

injunction for any and all

Statutory violations, the FWPCA

permits the district court to

Order that relief it considers

necessary to secure prompt

compliance with the act.

[Weinberger, supra,

72 & Ba.24 at i163)

Flexibility and discretion are

particularly essential in weighing

alleged violations under R.C. §3704.04.

In particular, R.C. §3704.04(S) states

that:

» 49 «-

The director of environmental

protection may:

. £2

Issue, modify, or revoke orders

prohibiting or abating emissions

which violate applicable

emission standards, or requiring

emission control devices Or

measures in order to comply with

applicable emission standards.

In the making of such orders the

director shall give

consideration to, and base his

determination on, ev idence

relating to the technical

feasibility and economic

reasonableness of compliance

with such’ orders, and their

relation to benefits to the

people of the state to be

derived from such compliance.

By so providing, the Ohio legislature

has determined that the public interest

in any particular circumstance in seeking

air pollution control is a complex

matter, requiring careful weighing of all

the relevant facts. The subjective

decisions to be made under Chapter 3704

demand the flexibility inherent in equity

jurisdiction to balance legisatively

recognized, sometimes competing

considerations in order to determine

where the public interest lies.

The radical departure from equity

jurisdiction advocated by the OEPA is not

even supported by the new statutory

language itself. The statute, for

example, specifically authorizes

"mandatory" injunctive relief which, on

its face, requires some meaningful

judicial analysis of tne requirements to

be mandated, as opposed to the pure

negative restraint of injunction. Under

reasonable interpretation and application

G& Chico statutory law, the trial court

obviously need not have become merely a

rubber stamp for the OEPA, yet the Court

of Appeals considered the statutes.

In Hecht v. Bowles, supra, 88 L.Ed.,

p. 761, this Court astutely commented:

We do not believe that such a

« £4 «

major departure from that long

tradition as is here proposed

should be lightly implied.

£4

If Congress desired to make such

an abrupt departure from

traditional equity practice as

is suggested, it would have made

its desire plain. Hence we

resolve the ambiguities of

§205 (a) in favor of that

interpretation which affords a

full opportunity for equity

courts to treat enforcement

proceedings under this emergency

legislation in accordance with

their tranditional practices, as

conditioned by the necessities

of the public interest which

Congress has sought to protect.

United States v. Morgan, 307

U.Ss £63, L947 GS EeeBGe L245

1216, $9 $.Ct. 795, ene cases

cited.

~ 45 «+

CONCLUSION

Does the Court of Appeals' decision

mean that a Court is powerless to do

anything other than summarily enter an

injunction against the operation of Chase

Foundry's plant even when confronted by

the facts of the instant case? The

Court's jurisdiction cannot be so

unconscionably limited that it cannot

fairly deal with a situation such as has

been presented in the case at bar.

Chase Foundry does not contend that

the significance of the trial court's

decision is to allow it to indefinitely

Operate its cupola without a permit to

Operate or a variance. Chase Foundry

applied for a variance and will apply

again. Petitioner will expect that the

OEPA fairly review and weigh the factors

specified by Chapter 3704 before permits

Or variances are issued or denied.

- 46 «

However, Chase Foundry must be

afforded the opportunity to continue in

business for a reasonable time while it

seeks to obtain a variance, in Liens of

the reasons why Chase Foundry does not

now have such a variance. The trial

court's authority to enter such a

judgment should be found to remain in

Place. Not only does the Court certainly

have such authority under §3704.06 as it

existed when this action was commenced,

but the authority must also exist under

§3704.06 as amended, consistent with the

federal constitution.

Chase Foundry cannot Constitutionally

and for the public good be required to

cease operating on the evidence before

the trial court. Indeed the evidence

Presented upon the parties cross-motions

Clearly supports the correctness of the

trial court's ruling favorable to Chase

Foundry.

This Court should accept jurisdiction

of this case in order to review the truly

substantial constitutional questions

involved herein, and to provide redress

to Chase Foundry under circumstances in

which the highest court in Ohio has

refused to extend its jurisdiction over

the matter.

Respectfully submitted,

C. William Brownfield,

William H. Arnold

Counsel of Record

BROWNFIELD, BOWEN & BALLY

140 E. Town Street

Columbus, Ohio 43215

(614) 221-5834

Counsel for Petitioners

May 31 , 1983

» 48 «

STATE OF OHIO : 1983 TERM

To wit: March 2,

¢ 4960

Appellee, : No. 83-58

APPEAL FROM THE

City of Columbus

vs. : COURT OF APPEALS

: for Franklin

Chase Foundry & : County

Manufacturing Co., :

Appellant.

This cause, here on appeal as of

right from the Court of Appeals for

Franklin County, was considered in the

Manner prescribed by law, and, no motion

to dismiss such appeal having been filed,

the Court sua sponte dismisses the appeal

for the reason that no substantial

constitutional question exists herein.

It is further ordered that a copy

of this entry be certified to the Clerk

of the Court of Appeals for Franklin

County for entry.

I, James W'm. Kelly, Clerk of the

Supreme Court of Ohio, certify that the

A-1

foregoing entry was correctly copied from

the Journal of this Court.

Witness my hand and the

seal of this Court

mie... day

of ae

, Clerk

, Deputy

59-275

THE STATE OF OHIO, : 1983 TERM

City of Columbus. : To wits: March 2,

1983

State of Ohio, ex rel. : No. 83-58

William J. Brown, : MOTION FOR AN

Attorney General, : ORDER DIRECT-

$ ING THE COURT

Appellee, : OF APPEALS

: for Franklin

vs. : County TO

s CEREIFe ITs

Chase Foundry & : RECORD

Manufacturing Co.,

Appellant.

It is ordered by the Court that this

motion is overruled.

COSTS:

Motion Fee, $20.00, paid by

Brownfield, Bowen & Bally.

I, James W'm. Kelly, Clerk of the

Supreme Court of Ohio, certify that the

foregoing entry was correctly copied from

the Journal of this Court.

Witness my hand and the

seal of the Court

this day

of ae

IN THE COURT OF APPEALS

FOR FRANKLIN COUNTY, OHIO

State of Ohio, ex rel. :

William J. Brown, Attorney :

General of Ohio,

Plaintiff-Appellant,

Ve No.

8 2AP-

Chase Foundry and Manu- aia

facturing Company, : Regular

: Calendar

Defendant-Appellee. :

OF 7 8 GC eR

Rendered on November 16, 1982

MR. WILLIAM J. BROWN, Attorney General

MR. ROBERT J. STYDUHAR and

MR. JACK VAN KLEY, Assistants,

State Office Tower

Environmental Law Section

30 East Broad Street, 17th Floor,

Columbus, Ohio 43215,

For Plaintiff-Appellant.

BROWNFIELD, BOWEN & BALLY,

MR. C. WILLIAM BROWNFIELD,

MR. WILLIAM H. ARNOLD, of Counsel,

140 East Town Street,

Columbus, Ohio 43215,

For Defendant-Appellee.

GUERNSEY, J.

This is an appeal by the state of

Ohio from a judgment of the Court of

Common Pleas of Franklin County, in an

action brought by the attorney general,

said to be on relation of the state of

Ohio, for prohibitory and mandatory

injunctive relief against the defendant,

Chase Foundry and Manufacturing

Company. The parties have throughout

referred *o themselves as plaintiff and

defendant, rather than relator and

respondent, and for convenience we will

do likewise.

The complaint filed on September l,

1979, alleges, and the defendant admits,

that it is engaged in the business of

manufacturing at its facility in

Columbus, Ohio, operating a melting

furnace called a cupola which is used to

produce gray iron castings; that, while

A-5

in operation, the cupola emits smoke;

that, on August 7, 1978, the Director of

Environmental Protection isssued certain

findings and orders, a copy of which is

attached to the complaint as exhibit A,

which findings and orders speak for

themselves; that the defendant has not

replaced its cupola with an electric

induction furnace, or replaced it on the

schedule as set forth in paragraph 2 of

the orders, and in exhibit A; and that

defendant has not submitted written

progress reports to the Environmental

Protection Agency (hereinafter referred

to as OEPA), as referred to in paragraph

4 of the orders in exhibit A.

The complaint also alleges, but the

defendant does not admit, that, while in

Operation, the deffendant's cupola emits

"air contaminants", as that term is

defined in R. C. 3704.01(A), including

A-6

"particulate matter" as that term is

defined in Ohio Adm. Code 3745-17-01(J);

that the findings and orders included in

exhibit A were issued pursuant to R. C.

3704.03(S); that (as mo. Count 1)

defendant has violated Order No. 1 by

failing to either install pollution

control equipment on the cupola, or to

replace the cupola with an electric

induction furnace; that (as to Count 2)

defendant has violated the requirements

of Order No. 2 by failing to meet the

scheduled achievement deadlines set

forth in the compliance schedule; that

(as to Count 3) defendant has violated

the requirements of Order No. 4 by

failing to submit written progress

reports to the OEPA; that (as to Count

4) the operation by the defendant of its

cupola causes the emission of

particulate matter as defined in Ohio

A-7

Adm. Code 3745-17-01(J), in excess of

that allowed by Ohio Adm. Code

a749-h7"14) Chat fas te Count 5) the

Operation of the cupola causes’~ the

emission of visible air contaminants as

defined in R. C. 3704.01(A) in excess of

that allowed by Ohio Adm. Code

3745-17-07; and that (as to Count 6)

defendant's cupola is a source of air

contaminants operating without a permit

to operate in violation of Ohio Adm.

Code 3745-35-02.

The complaint prayed (A) that

defendant be enjoined from operating its

cupola until such time as a permit to

Operate has been obtained; (B) that the

defendant be ordered to comply as soon

as possible with all terms and

conditions of Orders Nos. 1, 2 and 4,

contained in exhibit’ A; (C) that

defendant be enjoined from violating

A-8

Ohio Adm. Code 3745-17-07; and that

defendant be enjoined from violating

Ohio Adm. Code 3745-17-11.

The trial court, on March 16, 1982,

entered a judgment dismissing the action

pursuant to its granting defendant's

motion for summary judgment and denying

plaintiff's cross-motion for summary

judgment for "the reasons stated in the

written Decision rendered *** on March

3, 1982." That decision treats only the

validity under R. C. 3704.03(S) of the

findings and orders set forth in exhibit

A to the complaint and determines that

they are void because the Director of

Environmental Protection "failed to take

into account the economic reasonableness

of said findings and orders.”

The plaintiff makes the

following assignments of

error:

ai Se The court erred in

granting judgment to

defendant by excusing

defendant's unlawful conduct

of operating an air

contaminant source without an

Ohio EPA permit to operate.

"ea The court erred in

granting judgment to the

defendant by excusing

defendant's violations of

Ohio EPA Administrative

Orders in the following

respects:

"A. The court lacked

jurisdiction to examine the

validity of the

administrative orders;

"B. The court was barred by

res judicata from examining

the validity of the

administrative orders;

"C. The court was barred from

examining the validity of the

administrative orders by the

defendant's express waiver of

its right to collaterally

attack the orders;

"Dp. In holding the

administrative orders

invalid, the court applied an

erroneous standard of law,

i.e. that the Ohio EPA, prior

to issuance of an order, must

examine the wealth of the

recipient of the order; and

A-10

"E. Assuming the trial court

applied the correct standard

of law, the granting of

summary judgment that the

administrative orders were

invalid was erroneous due to

the presence of issues of

material fact."

We shall consider these assignments

of error in reverse order.

The second assignment of error

pertains to the trial court's action in

finding the administrative orders made by

the Director of Environmental Protection

on August 7, 1978 void, pursuant to

defendant's motion for summary judgment.

It should be observed initially that

the cause before the trial court does not

readily lend itself to review on the

basis of the arguments because of the

condition of the record from the

standpoint of summary judgment

proceedings. Neither the motion of

plaintiff nor the cross-motion of

A-11

defendant for summary judgment details

the evidentiary documentation relied upon

by each movant in support of his, or its,

respective motion. The principal

affidavit of the officer of defendant is

not made specifically on personal

knowledge, includes allegations of fact

and argument not admissible in evidence,

and does not show that the affiant is

competent to testify to all the matters

Stated therein. Documents relied upon by

the parties and attached as exhibits to

various memoranda are not made exhibits

to affidavits and are neither sworn nor

certified. Four depositions filed in the

cause remain sealed and were obviously

not considered by the trial court. The

Original of two other depositions with

exhibits thereto are missing from the

file. Finally, the judgment of the trial

court, and its decision, does not

A-12

disclose the evidentiary documentation

either before the court on the motions,

or relied upon by the court in arriving

at its decision.

Nevertheless, there are controlling

and undisputed facts which enable us to

arrive at dispositive determinations as a

matter of law.

Basic to Ohio's implementation of the

Federal Clean Air Act by legislation

enacted and regulations adopted prior to

August 7, 1978, and effective at the time

of the rendering by the director of the

Orders in question, is the concept that

no person may permit the operation of any

air contaminant source, air conteminants

(including smoke), being defined by R. C.

3704.010(A), without applying for and

obtaining a permit to operate from the

OEPA R. C. 3704.03(G) and Ohio Adm. Code

3745-35-02. As the defendant has

A-13

admitted that its cupola, when operating,

emits smoke, there is no question that it

is an air contaminant source and that its

continued operation was, and is, subject

to the possession of a permit. An

exception to the permit requirements,

when the operator cannot make a

satisfactory showing to the director that

its equipment is being operated in

compliance with applicable emission

standards and other regulations, and when

the air contaminant source emits any air

pollutant in violation of any applicable

air pollution’ control law, is the

variance prescribed by R. C. 3704.03(H)

and Ohio Adm. Code 3745-35-03, which may

be issued by the director in compliance

with such sections. In effect, a permit,

if the operator can show compliance with

clean air standards, is issued

substantially as a matter of right;

A-14

whereas, a variance, if the Operator can

show as provided by the statutes and

regulations, either excusable hardship or

an ability in time to comply with clean

air standards, is granted substantially

as a matter of grace or privilege in the

exercise of a sound discretion by the

director.

Here, the findings and Orders

(exhibit A to the complaint) constituted

yet another alternative to a permit,

being executed Substantially in the form

of a variance but issued, instead, under

the provisions of R. C. 3704.03(S) and

(zt) @ncd R. C. 3704.031, as well as in

accordance with Section 113(d) of the

Clean Air Act, as amended, Section 7401,

Title 26, U.S. Code, et seq. Under such

authority, the orders permitted delayed

compliance beyond the termination date in

defendant's variance which had previously

A-15

expired. The orders specified that final

compliance with state and federal

statutes and regulations shall be

achieved by July 1, 1979. Admittedly,

the defendant did not achieve final

compliance by that date and it appears in

the record and was admitted at oral

argument on appeal that the defendant has

not been granted a permit to operate its

cupola. It also appears that the

defendant does not possess a current

variance or any other order allowing

current operation of the cupola.

Thus, under either the specific terms

of the orders of August 7, 1978, or by

operation of the provisions of Section

113(d) of the Clean Air Act, Section

7413(d), Title 42, U.S. Code, then in

effect, whicn prohibited time extensions

for compliance beyond July 1, 1979, the

operation of the orders respecting both

A-16

the privilege of temporarily continuing

non-complying emissions as well as the

obligations of compliance expired and

terminated on July 1, 1979. After that

date, any substantive Or procedural

issues pertaining to the issuance of such

Orders and their validity, with respect

to the relief sought in the first three

counts of the complaint, became moot.

Cf. Cleveland Electric Illum. Coe. Vv.

Wiliiams (1977), 55 Ohio App. 2d 272,

282.

Although there is respectable

authority that the orders under

consideration were not void ab initio

(State, ex rel. Stough, v. Bd. of Edn.

(1977), 50 Onio St. 2d 47), and that the

principles of res judicata apply

preventing the trial court from reviewing

whether or not the Director of the Ohio

Environmental Protection Agency properly

A-17

considered the economic factors involved

(State, ex rel. Stough, v. Bd. of Edn. ,

Supra; Cincinnati, ex rel. Crotty, v.

Cincinnati (1977), 50 Ohio st. 24 27;

State, ex rel. Williams, v. Bozarth

(1978), $8 OQhio st. 24 34; and Warren

Molded Plastics, INC. » Vv. Williams

[aevers.)6 6©696hCUChie@ 68t. «0628 C352), thee

issues, as well as all the other issues

raised by the appellant under the second

assignment of error, were moot in the

determination of whether or not. the

Plaintiff was entitled to an injunction

against the defendant under the first

three counts of the complaint.

As to these counts, plaintiff's

prayer was that the defendant and its

agents be ordered "to comply with all

terms and conditions of Order numbers One

(1), two (2), and four (4) *** as soon as

possible." However, the orders had

A-18

terminated and the Director of

Environmental Protection has done nothing

to permit noncompliance or two require

compliance after July 1, 1979. For the

trial court to order compliance after

July 1, 1979, would, in effect, be a

substitution of that court's judgment and

discretion for that of the director,

would be the making of an order not

authorized by law, and would not be the

enforcement of the orders of August 7,

1978, which terminated on July 1, 1979.

After that date, any injunctive relief is

not available under the orders of August

uP 1978, or by reason of the

noncompliance with such orders, but is

available, if at all, by reason of

continued violations of the clean-air

standards and the statutes and

regulations applicable when the operator

possesses no permit, no variance, and no

A-19

other order allowing non-complying

emissions.

Accordingly, the trial court

committed technical error in refusing an

injunction and dismissing the entire

complaint on the ground that the orders

under consideration were void. However,

for the reasons heretofore stated, the

plaintiff was not entitled to an

injunction for any supposed violation of

the August 7, 1978 orders and, therefore,

not entitled to injunctive relief under

any of the first three counts of the

complaint.

We return then to a consideration of

the first assignment of error.

As we have already’ seen, is USS

undisputed that the defendant, in the

Operation of its cupola, was, at the time

the complaint was filed and still is

emitting an air contaminant, smoke, from

A-20

an air conteminant source, its cupola,

without a permit in violation of R. C.

3704.06 and Ohio Adm. Code, Section

3745-35-02. As we have also seen and

determined at the time of, and since the

time of, filing the complaint, the

defendant has not possessed a currently

applicable variance or any other order

allowing the emission of such air

contaminant in the absence of a permit.

This situation brought into force and

effect the enforcement provisions of R.

Ce 3704.06 requiring the attorney

general, upon request of the director, to

bring an action for an injunction (or any

other appropriate proceedings) against

the defendant.

At the time the complaint was filed,

R. C. 3704.06(B) then prescribed:

"eee The Court shall have

jurisdiction to grant

injunctive relief or enter

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such other judgment, and

orders enforcing such

judgment, as the public

interest and equities of the

case require.”

The defendant claims that the phrase

"as the public interest and equities of

the case require", is applicable to and

qualifies the phrase, "grant injunctive

relief", and that, before an injunction

is granted, the trial court must balance

the public interest and equities against

the interest and equities favorable to

the defendant.

It is also **guable that the last

phrase of the sentence is applicable to

and qualifies only the words "or enter

such other judgment, and orders enforcing

such judgment."

However, effective December 19, 1980,

while this action was pending and before

either party had moved for summary

judgment, the General Assembly amended

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the quoted sentence of R. C. 3704.06(B)

dealing with the jurisdiction of the

court to read:

“eek The court shall have

jurisdiction to grant

prohibitory and mandatory

injunctive relief and to

require payment of a civil

penalty upon the showing that

such person has violated

Chapter 3704. of the Revised

Code or regulations adopted

thereunder."

The amending act, 138 v. S258, did

not prescribe that the amendment would be

applicable to pending proceedings, nor

did it prescribe otherwise.

In our opinion, the quoted portion of

the amendment to R. C. 3704.06(B) is of a

remedial or procedural mature and not

substantive. In Kilbreath v. Rudy

(1968), 16 Ohio St. 2d 70, the Supreme

Court held in the second paragraph of the

syllabus:

"Laws of a remedial nature

providing rules of practice,

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courses of procedure, or

methods of review are

applicable to any proceedings

conducted after the adoption

of such laws (Paragraph one

of the syllabus of State, ex

rel. Holdridge, Vv. Indus.

Comms, s4 USO Bt. 26 sia

approved and followed.

Cincinnati, Hamilton & Dayton

aa, ©CO. Vs Beaees, Gs Case

St. 339, criticized.)"

Although this rule of law was applied

in Kilbreath, supra, to a situation where

a cause of action had accrued but the

complaint had not been filed, its

application was extended by the Supreme

Court in Denicola v. Providence Hospital

(1979), 57 Ohio: St. 2d 115, to situation,

as here, where the amendment became

effective after the complaint had been

filed, but before trial. The amendment

here was thus applicable prospectively to

the trial court's determination of the

summary judgment motion of the plaintiff

as to whether an injunction should be

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granted against the defendant under count

6 of the complait alleging a continuing

Statutory violation. Accordingly, as

determined in Ackerman ar Tri-City

Geriatric & Health Care, Inc. (1978), 55

Ohio St. 2d 51, 56, the statute granting

a specific injunctive remedy to the

state:

"kkk the party requesting the

inuunction ‘need not aver and

show, as under ordinary rules

in equity, that great or

irreparable injury is about

to be done for which he has

no adequate remedy at law

een ,* Stephan v. Daniels

(1875), at. 6 GRACO. OBR 527,

536. (See, also, State v.

Alexander Brothers, Inc.

{1974], 43 Ohio App. 2d 154;

29 Ohio Jurisprudence 2d 176,

Injunctions, Section 13; and

42 American Jurisprudence 2d

776, Injunctions, Section 38,

for further support of the

propositions that the

traditional concepts for the

issuance of equity

injunctions do not apply in

statutory injunction

actions.)"

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Justice William Brown additionally

57

said

that:

in Ackerman, supra, at page

“eee R. C. 3721.08 was

designed by the General

Assembly to benefit society

by proscribing behavior (the

unlicensed operation of

nursing homes) which the

General Assembly has

determined not to be in the

public interest. It would,

therefore, be redundant to

require the Director of

Health to show irreparable

damage or lack of an adequate

legal remedy once he has

already proved that the

conditions which the General

Assembly has deemed worthy of

injunctive relief exist. In

addition, it would be

inappropriate to balance the

equities or require the

Director of Health to do

equity in an R. C. 3721.08

injunction action because R.

C. 3721.08 injunctions and

similar injunctions which

authorize a governmental

agent to sue to enjoin

activities deemed harmful by

the General Assembly are ot

designed primarily to do

justice to the parties but to

prevent harm to the general

public. ****

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In our opinion, the rules and

observations thus set forth in Ackerman,

supra, are equally applicable to _ the

situation here, and the trial court

committed error prejudicial to the

appellant in dismissing the complaint

without sustaining the appellant's

cross-motion for summary judgment and

rendering judgment granting the

injunction sought by count 6 of the

complaint.

Although it is not fully apparent as

to how same is part of the trial court

record pertinent to this appeal, the

defendant has referred, both in its brief

and in its oral argument, to the fact

that, during the pendency of the cause in

the trial court, {¢ applied fer &

variance to permit it to operate its

cupola and that the application was

returned without action. Suffice it to

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say, we do not deem this relevant to the

issue of injunctive relief because

neither the clean-air statutes nor the

clean-air regulations provide that

noncomplying emissions may be continued

without order during the pendency of an

application for a variance. If the

defendant has been aggrieved by a lack of

action on its application, its remedies

lie other than in this cause.

For rendering summary judgment for

the defendant dismissing the entire

complaint for the wrong reasons, and for

failing to render summary judgment for

the plaintiff on the plaintiff's

cross-motion for summary judgment for an

injunction as prayed for under count 6 of

the complaint, both of which actions were

prejudicial to the plaintiff, the

assignments of error are sustained for

the reasons and to the extent indicated;

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and the judgment of the Court of Common

Pleas of Franklin County must be reversed

and the cause is remanded with

instructions to enter final judgment for

the plaintiff, granting an injunction on

count 6 of the complaint, and for the

defendant on the first three counts of

the complaint. As this leaves the fourth

and fifth counts of the complaint, which

did not involve the administrative orders

and were not involved in the plaintiff's

motion for summary judgment, unresolved,

the cause is also remanded to the trial

court for further proceedings on those

counts. The assignments of error are

sustained.

Judgment reversed;

and cause remanded

with instructions.

WHITESIDE, P.J., and NORRIS, J.,

concur.

GUERNSEY, J. of the Third Appellate

District, sitting by designation in the

Tenth Appellate District.

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IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State of Ohio, ex rel.

William J. Brown,

Attorney General of

Ohio,

Plaintiff-Appellant

*

*

Vv. : No. 82AP-273

(Regular

Chase Foundry and : Calendar)

Manufacturing Company,

Defendant-Appellee.

JOURNAL ENTRY OF JUDGMENT

Por the reasons stated in the opinion

of this court rendered herein on November

16, 1982, the assignments of error are

Sustained to the extent indicated, and it

is the judgment and order of this court

that the judgment of the Franklin County

Court of Common Pleas is reversed, and

this cause is remanded to that court with

instructions to enter final judgment for

the plaintiff, granting an injunction on

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court 6 of the complaint, and for the

defendant on the first three counts of

the complaint, and for further

proceedings on the fourth and fifth

counts of the complaint.

WHITESIDE, Pode, NORRIS &

GUERNSEY, JJ.

By

Judge J. Thomas Guernsey, of

the Third Appellate District,

sitting by assignment in the

Tenth Appellate District.

cc: Robert J. Styduhar and

Jack Van Kley

C. William Brownfield and

William H. Arnold

A-31

STATE OF OHIO, ex rel.

William J. Brown,

Attorney General of Ohio,

Plaintiff, : Case No.

V : Case No.

79CV-09-4495

CHASE FOUNDRY & : Judge Martin

MANUFACTURING CO.,

Defendant.

JUDGMENT ENTRY

For the reasons stated in the written

Decision rendered by this Court on March

3, 1982, the Defendant's Motion for

Summary Judgment is hereby granted, and

Plaintiff's Cross-Motion for Summary

Judgment is hereby denied.

This action is dismissed, costs to

Plaintiff.

Judge

APPROVED:

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Robert J. Styduhar, Esquire

Assistant Attorney General

30 East Broad Street, 17th Floor

Columbus, Onio 43215

(614) 466-2766

Counsel for Plaintiff

C. William Brownfield, Esquire

Brownfield, Bowen & Bally

140 East Town Street, Suite 1200

Columbus, Ohio 43215

(614) 221-4834

Counsel for Defendant

A-33

COURT OF COMMON PLEAS

OF FRANKLIN COUNTY, OHIO

State of Ohio, ex rel.

William J. Brown, $

Attorney General of :

Ohio, ;

Plaintiff,

vs. : Case No.

79CV-09-4495

Chase Foundry &

Manufacturing Co.,

** «1°.

Defendant. :

DECISION

Rendered this _—_—s—s day of March,

1982. MARTIN, J.

The State of Ohio has instituted the

present action seeking injunctive relief

and the assessment of fines against

Defendant Chase Foundry & Manufacturing

Co. Now before the Court are Plaintiff's

and Defendant's cross-motions for summary

judgment. Plaintiff, on behalf of the

Director of Environmental Protection, has

alleged that the Defendant is polluting,

A-34

to wit: emitting air contaminants as

defined in Ohio Administrative Code

Regulation 3745-17-0l1(J) in excess of

that allowed by Regulations 3745-17-1ll

and 3745-17-07. Plainciff alleges that

these air contaminants are emitted from

the grey iron cupola that is operated by

Defendant foundry. Plaintiff has also

alleged that Defendant has failed to

adhere to the orders ostensibly

promulgated by the Director of

Environmental Protection pursuant to Ohio

Revised Code Section 3704.03(B) and

issued on August 7, 1978. Defendant has

denied that it pollutes in violation of

the aforementioned sections but does

admit that it has not complied with said

orders. Said orders were issued

conjunctive with findings and said

findings stated that Defendant emitted

particulants and smoke in violation of

A-35

Ohio's Environmental Protection laws.

Defendant admits signing a waiver to the

right of review of said findings and

Orders with respect to their validity.

It thus appears to this Court that if

Said waiver is effective, then Defendant

is in violation of the state statutes

regarding air contaminants ance enjoinment

of Defendant's activities until

compliance is met with said orders should

take place.

The threshhold determination with

respect to this action must be (1)

whether the findings of fact and order

issued by the Director to the Defendant

met the requirements of Ohio Revised Code

Section 3704.03(S) and, (2) whether the

waiver executed by Paul Chase [sic] on

behalf of the Chase Foundry was valid and

effective. Once said determinations are

made, it must be this Court's decision to

A- 36

either issue the Plaintiff's requested

injunctive relief or deny the same.

There is no contention by Plaintiff

that the Director failed to accept

financial data from the Defendant before

he issued his findings and. orders.

Although the findings themselves’ state

that they are promulgated pursuant to

Section 3704.03(S) of the Ohio Revised

Code, the interrogatories and other

eivdence presented to this Court indicate

that no financial scrutiny was attempted

by Plaintiff before the findings and

orders were issued. The pertinent

portion of Section 3704.03(S) states that

the Director’ shall "to the extent

consistent with the Federal Clean Air

Act, give consideration to and base his

determination on evidence relating to the

technical feasibility and economic

reasonableness of compliance with such

A-37

orders, and their relation to the

benefits to the people of the state to be

derived from such compliance." ("to the

extent consistent with the Federal Clean

Air Act” is an amendment added to the

Original statute and made effective

December 10, 1980.)

The mandatory language of said

section requires Plaintiff to assume the

burden of snowing complaince with said

considerations and it is uncontroverted

that the Director failed to consider

Chase Foundry's economic status but

rather, based upo a state-wide survey,

decided that since other foundries in the

state were able to follow such a course

as was dictated to Chase Foundry in said

orders, Chase Foundry should have been

able to do so. st 64s)6 6Uthis €6Court’s

opinion that the Director should have,

but did not, give consideration to and

A-38

base his determinations on the economic

reasonableness of compliance with respect

to the individual Defendant.

This finding does not determine the

instant matter, however, since Defendant

executed a waiver which puportedly waived

any rights to further review of said

findings and orders. Based upon the case

of Parente v. Day, 16 Ohio App. 2d 35

(1968), a determination must be made as

to whether the findings and orders are

matters that are void or merely

voidable,

It is this Court's opinion that the

Director failed to issue his findings in

consonance with the previously discussed

Statutory requirements. In order for the

findings to have a validity from the

point of their origination, they must

meet said statutory requirements and the

Director having failed to take into

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account the economic reasonableness of

said findings and orders, this Court must

find that they are void and not merely

voidable. While the waiver was

apparently intelligently made and

Supported by consideration, it is not

legally effective to estop Defendant from

asserting the invalidity of the

findings.

The State of Ohio in this action has

requested injunctive relief and monetary

fines. It must be this Court's decision,

based upon the reasoning supra, that the

State failed to show a right to

injunctive relief. Accordingly,

Plaintiff's motion for summary judgment

is OVERRULED and Defendant's motion for

Summary judgment is SUSTAINED. Counsel

for defendant shall prepare a judgment

entry accordingly.

A-40

Paul W. Martin, Judge

APPEARANCES:

Robert J. Styduhar, A.A.G.

Attorney for Plaintiff

C. William Brownfield

Attorney for Defendant

A-41

PROPOSITION OF LAW NO. I:

THE 1980 AMENDMENT TO OHIO REVISED

CODE §3704.06 ENACTED DURING THE

PENDENCY OF AN ACTION INITIATED BY

THE OHIO ATTORNEY GENERAL ON BEHALF

OF THE OHIO E.P.A. APPLIES

PROSPECTIVELY ONLY AND DOES NOT ALTER

THE JURISDICTION OF THE TRIAL COURT

AS THE SAME EXISTED AT THE TIME THE

ACTION WAS FILED.

PROPOSITION OF LAW NO. ITI:

WHERE AN INJUNCTION ACTION WAS

BROUGHT BY THE OHIO ATTORNEY GENERAL

ON BEHALF OF THE OHIO E.P.A. PURSUANT

TO R.C. §3704.06 PRIOR TO Its

AMENDMENT IN 1980, THE TRIAL COURT

HAD JURISDICTION AND AUTHORITY TO

DETERMINE THAT SUCH INJUNCTION SHOULD

OR SHOULD NOT ISSUE BASED, INTER

ALIA, UPON GENERAL PRINCIPLES OF

EQUITY, WHETHER OR NOT SUCH AMENDMENT

WAS PROPERLY APPLIED RETROSPECTIVELY,

SUCH EQUITABLE PRINCIPLES BEING

APPLICABLE BOTH PURSUANT TO SAID

STATUTE, AS AMENDED, AND UNDER

CONSTITUTIONAL LAW.

PROPOSITION OF LAW NO. III:

WHERE A FOUNDRY COMPANY, WHILE

OPERATING UNDER A VARIANCE ISSUED BY

THE OEPA, AS EXTENDED BY FINDINGS AND

ORDERS, COULD NOT COMPLY WITH SUCH

FINDINGS AND ORDERS SUBSEQUENTLY

FOUND BY THE COMMON PLEAS COURT TO

HAVE BEEN ISSUED IN VIOLATION OF THE

STATUTORY REQUIREMENTS OF

§3704.03(S), AND FOLLOWING ISSUANCE

A-42

OF SUCH FINDINGS AND ORDERS ' THE

COMPANY APPLIED FOR A VARIANCE, ONLY

TO HAVE THE APPLICATION RETURNED BY

THE OEPA AS IF NOT FILED, SUCH

FACTORS WERE PROPERLY CONSIDERED BY

THE COURT FAVORABLY TO THE DEFENDANT

COMPANY IN AN ACTION BROUGHT BY THE

ATTORNEY GENERAL ON BEHALF OF THE

OEPA TO ENFORCE SAID FINDINGS AND

ORDERS AND TO ENJOIN THE OPERATION OF

THE COMPANY'S PLANT ON THE GROUNDS

THAT THE COMPANY DID NOT HOLD A

CURRENT VARIANCE OR PERMIT.

PROPOSITION OF LAW NO. IV:

WHERE THE OEPA REFUSED TO CONSIDER A

VARIANCE APPLICATION FILED DURING THE

PENDENCY OF A COURT ACTION BROUGHT BY

THE ATTORNEY GENERAL ON BEHALF OF THE

OEPA, RETURNING THE VARIANCE

APPLICATION AS IF NOT FILED AND

STATING THAT ANY COMMUNICATION

CONCERNING THE APPLICATION MUST BE

DIRECTED TO THE ASSISTANT ATTORNEY

GENERAL RESPONSIBLE FOR’ LITIGATION

PENDING AGAINST THE COMPANY, SUCH

CONDUCT AND THE SUBSEQUENT ORDER FOR

ISSUANCE OF INJUNCTION BY THE COURT

OF APPEALS IN REVERSING THE TRIAL

COURT, CONSTITUTED A DENIAL OF DUE

PROCESS OF LAW AND A VIOLATION OF THE

DEFENDANT'S RIGHT TO EQUAL PROTECTION

OF THE LAWS AS GUARANTEED BY THE 14TH

AMENDMENT TO THE CONSTITUTION OF THE

UNITED STATES AND BY ARTICLE I,

SECTION 2, ARTICLE I, SECTION 16, AND

ARTICLE II, SECTION 26 RESPECTIVELY

OF THE OHIO CONSTITUTION, WHERE THE

OEPA IN SUCH ACTION HAD DEMANDED AN

INJUNCTION AGAINST FURTHER OPERATION

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OF THE COMPANY'S FOUNDRY WITHOUT SUCH

CURRENT PERMIT OR VARIANCE.

PROPOSITION OF LAW NO. V:

WHERE A GREY-IRON CASTINGS PLANT

UTILIZED ITS CUPOLA LESS THAN SIX

HOURS PER WEEK, ONE AND ONE-HALF

HOURS PER DAY, FOUR DAYS PER WEEK, IT

WAS PROPER FOR THE TRIAL COURT TO

CONSIDER SUCH LIMITED ACTIVITY AND

THE LEVEL OF TOTAL STACK EMISSIONS IN

AN ACTION BROUGHT ex 6 6hCOTHE. 0 Os GTO

ATTORNEY GENERAL ON BEHALF OF THE

OHTO E.P.A. PURSUANT TO OHIO REVISED

CODE §3704.06 TO ENJOIN THE CONDUCT

OF THE DEFENDANT'S OPERATIONS.

A-44