New Boston Coke Corp. v. Tyler

513 N.E.2d 302, 32 Ohio St. 3d 216, 1987 Ohio LEXIS 372

• Court: Ohio Supreme Court
• Decided: September 2, 1987
• Docket: No. 86-1798
• Status: Published

Opinions

Sweeney, J.

The present action has been predicated upon what consideration, if any, the Director of the Ohio Environmental Protection Agency must afford the criteria prescribed by R.C. 3704.03(E)(1) through (3) in amending Ohio Adm. Code 3745-17-07(E)(4). It is the contention of appellant that the director was required to consider the factors set forth in the aforementioned statute prior to the promulgation of the ten percent particulate emission limitation contained in the rule. Appellee responds that such consideration is required only “to the extent consistent with the federal Clean Air Act.” R.C. 3704.03(E). Given the virtual certainty that failure to adopt the ten percent limitation would result in federal disapproval of Ohio’s Part D SIP, appellee essentially contends that consideration of the R.C. 3704.03(E)(1) through (3) criteria and subsequent adoption of less stringent standards would amount to a futile act. Appellee further maintains that consideration of the criteria was in fact undertaken by the director shortly after initial rulemaking was commenced in 1978.

Preliminary to consideration of the relative merits presented by these arguments, however, is the threshold question of appellant’s standing to prosecute the instant appeal.

R.C. 3745.04 governs appeals of OEPA rulemaking to the Environmental Board of Review. It provides in part:

“Any person who was a party to a proceeding before the director may participate in an appeal to the environmental board of review for an order vacating or modifying the action of the director of environmental protection or local board of health, or ordering the director or board of health to perform an act. The environmental board of review has exclusive original jurisdiction over any matter which may, under this section, be brought before it.” (Emphasis added.)

The unmistakable import of this section is that review by the Environmental Board of Review is confined to those entities which actually appeared in the rulemaking proceeding before the director. The intent of the legislation was clearly to promote administrative and judicial economy and to assure that any objection interposed with regard to agency rules be considered ab initio by the authority responsible for promulgating them. Thus, in General Motors v. McAvoy (1980), 63 Ohio St. 2d 232, 238, 17 O.O. 3d 143, 147, 407 N.E. 2d 527, 531, it was observed: “Under R.C. 3745.04 the right to appeal to the EBR is limited to ‘any person who was a party to a proceeding before the director.’ ” (Emphasis added.) .

A “party” for purposes of EBR review under R.C. 3745.04 was further defined in Cincinnati Gas & Electric Co. v. Whitman (App. 1974), 11 O.O. 3d 192, 198, as “any person affected by the proposed action who appears in person, or by his attorney, and presents his position, arguments, or contentions orally or in writing, or who offers or examines witnesses or presents evidence tending to show that said proposed rule, amendment or rescission, if adopted or effectuated, will be unreasonable or unlawful[,] * * * [or] * * * a person who appears in person, or by his attorney, and presents his position, arguments or contentions as to the lawfulness and reasonableness of such proposed rule, amendment or rescission.”

It is beyond question that appellant failed to meet the criteria of a party as prescribed by R.C. 3745.04. Appellant neither appeared in person nor through counsel in the hearing conducted by the director. Appellant did not present evidence or arguments, and did not call witnesses or examine witnesses called by others. It was thereby precluded from pursuing an appeal to the Environmental Board of Review.

Accordingly, we hold that an entity which fails to appear, submit evidence or otherwise participate in a rulemak-ing proceeding conducted by the Director of Environmental Protection lacks standing to challenge administrative rules resulting therefrom in an appeal to the Environmental Board of Review pursuant to R.C. 3745.04.

While acknowledging that it did not participate in the rulemaking proceeding before the director, appellant maintains that any objections based on standing have been waived by appellee because they were not raised on appeal to the Environmental Board of Review or assigned as error before the court of appeals. However, the issue of standing, inasmuch as it is jurisdictional in nature, may be raised at any time during the pendency of the proceedings. See United States v. Storer Broadcasting Co. (1956), 351 U.S. 192, 197.

Accordingly, the decisions of the court of appeals and the Environmental Board of Review are hereby vacated and the appeal is dismissed.

Appeal dismissed.

Locher, Holmes and Wright, JJ., concur. Moyer, C.J., Douglas and H. Brown, JJ., dissent.