DocketNumber: Nos. 79AP-21 and 79AP-22
Citation Numbers: 417 N.E.2d 576, 65 Ohio App. 2d 178
Judges: McCORMAC, J.
Filed Date: 6/12/1979
Status: Precedential
Modified Date: 1/13/2023
In 1974 United States Steel (hereinafter U.S. Steel) applied to the Ohio Environmental Protection Agency for variances to operate its Lorain Coke Plant and its Cuyahoga Work Boilers claiming that granting of the variances was required because it was technically infeasible and economically unreasonable to meet the strict requirements for Ohio particulate emissions limitations and sulfur dioxide emissions limitations. U.S. Steel further *Page 179
asserted that granting of the variances would not interfere with the attainment and maintenance of the national ambient air quality standards. The Director of Environmental Protection issued a proposed denial of the variances from which U.S. Steel filed a timely request for an adjudication hearing, pursuant to R. C.
The director summarily dismissed the application for an adjudication hearing on the ground that his regulation, Ohio Adm. Code
U.S. Steel presents the following assignments of error:
"I. The Ohio Environmental Board of Review erred in denying United States Steel Corporation an opportunity to present factual evidence as to its right to variances from Ohio air pollution control regulations.
"II. The Ohio Environmental Board of Review erred in denying United States Steel Corporation an opportunity to present factual evidence for the purpose of demonstrating the unreasonableness of certain Ohio air pollution control regulations as applied to its facilities.
"III. Refusal of the Ohio Environmental Board of Review or the Director to grant an adjudication hearing to allow U.S. Steel to present factual evidence as to its rights for variances from Ohio air pollution regulations is a denial of U.S. Steel's right to due process of law under the United States and Ohio Constitutions."
The basic issue is whether R. C.
In Cleveland Electric Illum. Co. v. Williams (1977),
It is inconsistent with the legislative directive of R. C.
The director argues that a more flexible regulation for variances has been proposed, but that adoption should be solely within his prerogative. He also argues that if we eliminate the flat prohibition part of his variance regulation *Page 181
that we will be rewriting the regulation. Neither argument is valid. The remainder of his variance regulation is still in effect and the statutory considerations criteria of R. C.
U.S. Steel's first and second assignments of error are sustained. The causes are remanded to conduct an adjudicatory hearing to determine whether granting of the variances would violate federal law and, if not, to then consider whether U.S. Steel is entitled to variances under R. C.
U.S. Steel's third assignment of error is overruled as moot, as the director is required to conduct an adjudication hearing.
U.S. Steel's first and second assignments of error are sustained. U.S. Steel's third assignment of error is overruled. The orders of the Ohio Environmental Board of Review are reversed and the causes are remanded for further procedure consistent with this decision.
Orders reversed andcauses remanded.
STRAUSBAUGH, P. J., and WHITESIDE, J., concur. *Page 182