IN THE COURT OF COMMON PLEAS FRANKLIN COUNTY, OHIO

Transcription

1 IN THE COURT OF COMMON PLEAS FRANKLIN COUNTY, OHIO AEP Ohio, on behalf of affiliates Cardinal Operating Co. Columbus Southern Power Co. Ohio Power Co. 1 Riverside Plaza Columbus, Ohio Ashland, Inc Blazer Parkway Dublin, Ohio Case No. 09CVH Judge Sheeran Clean Harbors Recycling Services of Ohio 581 Milliken Dr. Hebron, Ohio Columbus Steel Castings Co Parsons Ave. Columbus, Ohio Duke Energy Ohio, Inc., fna The Cincinnati Gas & Electric Co. and on behalf of affiliate Cinergy Solutions of St. Bernard 139 Fourth St. Cincinnati, Ohio FirstEnergy Corp., on behalf of affiliates Cleveland Electric Illuminating Ohio Edison Toledo Edison 76 S. Main St. Akron, Ohio Ford Motor Company One American Road Dearborn, Michigan Kraton Polymers U.S. LLC 2419 State Route 618 Belpre, Ohio 45714

2 Millennium Inorganic Chemicals, Inc Middle Rd. Ashtabula, Ohio Momentive Performance Materials as successor to } GE Quartz, Inc. 22 Corporate Woods Blvd. Albany, New York PPG Industries, Inc. One PPG Place Pittsburgh, Pennsylvania The Procter & Gamble Company 1 Procter & Gamble Plaza Cincinnati, Ohio Plaintiffs, and > Natural Resources Defense Council 2 N. Riverside Plaza, Suite 2250 Chicago, IL Buckeye Environmental Network 2319 Park Ridge Court Grove City, Ohio Citizens Against American Landfill Expansion 5871 Indian Run Ave SE Waynesburg, Ohio Environmental Community Organization 515 Wyoming Avenue Cincinnati, Ohio National Parks Conservation Association th Street, NW, Suite 300 Washington, DC Ohio Association of Justice 395 E. Broad St., Suite 200 Columbus, Ohio }

3 Ohio Citizen Action 614 W. Superior Avenue #1200 Cleveland, Ohio Ohio Environmental Council 1207 Grandview Ave., Suite 201 Columbus, Ohio Sierra Club 131 N. High St., Suite 605 Columbus, Ohio SunCoke Watch, Inc Niederlander Lane Middletown, Ohio Jill Van Voorhis 5871 Indian Run Ave., SE Waynesburg, Ohio Vivian Baier 4584 Indian Run Ave., SE East Canton, Ohio Ann McCoy 8922 Chapel St., SE Waynesburg, Ohio Proposed Intervening Plaintiffs, State of Ohio Statehouse Columbus, Ohio and The Ohio Environmental Review Appeals Commission 309 S. Fourth St., Room 222 Columbus, Ohio and

4 Christopher Korleski Director of Environmental Protection Lazarus Government Center 50 W. Town St., Suite 700 J Columbus, Ohio Defendants. (PROPOSED COMPLAINT FOR DECLARATORY JUDGMENT AND 1NJUNCTIVE RELIEF For their Complaint, Intervenor-Plaintiffs Natural Resources Defense Council, Buckeye Environmental Network, Citizens Against American Landfill Expansion, Environmental Community Organization, National Parks Conservation Association, Ohio Association of Justice, Ohio Citizen Action, Ohio Environmental Council, Sierra Club, SunCoke Watch, Inc., Jill Van Voorhis, Vivian Baier, and Arm McCoy (collectively, "Citizen Groups" plead as follows: NATURE OF THE ACTION 1. This is an original action, pursuant to R.C. Ch. 2721, seeking a declaratory judgment and injunction requiring the Environmental Review Appeals Commission ("ERAC" or "Commission" to comply with its constitutional and statutory' duties to afford the Citizen Groups a meaningful opportunity to be heard and present evidence in their pending appeals before the Commission. In response to the recent passage by the Ohio General Assembly of House Bill 1, which established arbitrary and tight deadlines for ERAC to decide all appeals pending before it, ERAC has limited de novo hearings in over 300 pending cases to only one hour per appellant. Such schedule leaves each citizen party with a maximum of twenty minutes to argue its case and present evidence, as the one hour time is split between the appellant, the Director of Ohio EPA, and the permitted party appellee. Those arbitrary time limits, along with

5 other restrictions that ERAC has placed on its de novo hearings, deprive the Citizen Groups of the ability to adequately develop their arguments and present evidence in the cases identified below and, therefore, represent a clear violation of the rights granted by the due process clauses of the federal and state constitutions. Such deprivation of the Citizen Groups' due process rights can only be adequately cured through issuance of the requested relief. JURISDICTION 2. This Court has jurisdiction over this matter pursuant to R.C , Ohio's declaratory judgment statute. 3. Personal jurisdiction and venue are proper in this Court because Defendants are the State of Ohio and an agency and official of the State of Ohio, and because Defendants maintain their principal offices in this county. PARTIES 4. The Citizen Groups are public interest, non-profit environmental organizations, each of which has numerous members in Ohio, and three individuals who have appeals pending before ERAC. Combined, the Citizen Groups and their member organizations have thirty-three (33 appeals pending before ERAC. 5. Natural Resources Defense Council ("NRDC" is a national, non-profit, environmental organization with more than 420,000 members nationwide, including 13,853 members in Ohio. NRDC is dedicated to the protection of the environment and public health and, as part of achieving its mission, has actively supported effective enforcement of the Clean Air Act, Clean Water Act, and other environmental statutes on behalf of its members for over 30

6 years. NRDC currently has four (4 appeals pending before ERAC. (ERAC Case Nos , , , and Buckeye Environmental Network ("BEN" works with grassroots individuals in low income and minority communities across Ohio. These communities are the first to be affected by the declining air quality in the state. Additionally, ils members include people who live and breathe air in Ohio and who are affected by Ohio air quality. BEN currently has one (1 appeal pending before ERAC. (ERAC Case No Citizens Against American Landfill Expansion ("CAALE" is a non-profit Ohio corporation whose major purpose is to address the environmental problems posed by the operations at the American Landfill in Stark County. CAALE's board and the members of the community whose interests it represents include people who live and/or own property in the vicinity of the landfill and who are or may be adversely affected by the operations at the landfill. CAALE currently has three (3 appeals pending before ERAC. (ERAC Case Nos , , and Environmental Community Organization ("ECO" is a Greater Cincinnati area network of dedicated individuals that preserves community and environmental health through organizing with communities, action to hold industry and government accountable, and education efforts. Its members include people who live and breathe air in Ohio and who are affected by the quality of Ohio air. ECO currently has one (1 appeal pending before ERAC. (ERAC Case No National Parks Conservation Association ("NPCA" is a national non-profit organization that works to protect and enhance America's National Parks. NPCA has 325,000

7 members nationwide, including 12,247 members in Ohio. NPCA currently has one (1 appeal pending before ERAC. (ERAC Case No The Ohio Association of Justice, fka the Ohio Academy of Trial Lawyers, ("OAJ" is the state's largest victims-rights advocacy association, comprised of 2,000 attorneys dedicated to promoting the public good through efforts to secure safe products, a safe workplace, a clean and safe environment, and quality health care. Its members consist of attorneys who live and/or work in Ohio and represent clients that live and/or work in Ohio. Consequently, the members have an interest in the quality of Ohio's air that they breathe. OAJ currently has one (1 appeal pending before ERAC. (ERAC Case No Ohio Citizen Action ("OCA" is the state's largest environmental organization, with 100,000 dues-paying members. OCA has devoted most of its resources over the past five years to "good neighbor campaigns," which use the power of community organizing to cause major polluters to prevent pollution at their facilities. Its members include people who live and breathe air in Ohio and who are therefore affected by the quality of Ohio air. OCA currently has one (1 appeal pending before ERAC. (ERAC Case No The Ohio Environmental Council ("OEC" is a statewide non-profit environmental organization with 97 member environmental/conservation organizations and 2,842 individual members throughout Ohio. OEC currently has two (2 appeals pending before ERAC (ERAC Case Nos , and , and OEC's member organizations have four (4 appeals pending. (ERAC Case Nos , , , and Sierra Club is the nation's oldest grassroots environmental organization, with approximately 641,000 members nationwide, including approximately 17,500 members in Ohio. Sierra Club's mission is to explore, enjoy, and protect the wild places of the earth, and to educate

8 and enlist humanity to protect and restore the quality of the natural and human environment. The Sierra Club currently has six (6 appeals pending before ERAC. (ERAC Case Nos , , , , , and SunCoke Watch, Inc. is a non-profit organization based in Monroe, Ohio that is dedicated to preserving the environment and health of residents in the areas surrounding metallurgical coke plants. SunCoke Watch has dozens of members and affiliates, and has one (1 appeal pending before ERAC. (ERAC Case No Jill Van Voorhis is president of CAALE and a resident of Waynesburg, located in Stark County, Ohio. She lives in and owns property at 5871 Indian Run Ave. SE, Waynesburg, OH, 44688, which is located within 15 feet of the American Landfill Facility. Ms. Van Voorhis currently has three (3 appeals pending before ERAC. (ERAC Case Nos , , and Vivian Baier is the vice-president of CAALE and a resident of East Canton, located in Stark County, Ohio. She lives in and owns property at 4584 Indian Run, East Canton, OH, 44730, which is located within 1 mile of the American Landfill Facility. Ms. Baier currently has three (3 appeals pending before ERAC. (ERAC Case Nos , , and Ann McCoy is the treasurer of CAALE and a resident of East Canton, located in Stark County, Ohio. She lives in and owns property at 8922 Chapel St. SE: Waynesburg, OH, 44688, which is located within 1 mile of the American Landfill Facility. Ms. McCoy currently has three (3 appeals pending before ERAC. (ERAC Case Nos , , and Respondent Environmental Review Appeals Commission is an administrative agency established by R.C , and is afforded jurisdiction to hear and determine appeals of

9 actions of the Director of Environmental Protection and other public officials and agencies. Actions of the Director include the issuance and denial of applications for permits, the adoption of rules, and issuance of orders. 19. Respondent Director of Environmental Protection is one of the appellees in all of the Citizen Groups' pending ERAC appeals. 20. Prior to the August 20, 2009 order of ERAC, the collective CAALE et al appeals had been scheduled for 3 weeks of hearing commencing on July 6, 2010 and prior to the August 25, 2009 order of ERAC, the Sierra Club/OCA et al. appeals had been scheduled for 4 days of hearing commencing on April 20, FACTUAL BACKGROUND 21. Ohio law provides that any person who is "aggrieved or adversely affected" by an action of the Director of the Ohio EPA, R.C , or who was a party to a proceeding before the Director, R.C (B, may appeal the Director's action to ERAC. If the Director did not hold an adjudication hearing regarding the challenged action and a final action of the Director is challenged, ERAC will generally hold a de novo hearing on the appeal. R.C At the request of a party, the Commission is required to issue subpoenas for witnesses, documents, or records relevant to the proceeding. Id. The Commission is required to create a record of all testimony and evidence presented at the hearing, to vacate or modify the Director's action if the evidence shows that it was unlawful or unreasonable, and to affirm the Director's action if the evidence shows that it was lawful and reasonable. Id. Appeals from ERAC decisions are to the Ohio Court of Appeals, Tenth District, which is generally "confined to the record as certified to it by the commission" in hearing the appeal. R.C

10 22. De novo hearings before the Commission commonly address complicated issues of fact and law, involve the presentation of expert testimony, and routinely require several days or weeks to complete. The Citizen Groups' pending ERAC appeals arc of this nature. For example, in ERAC appeal numbers , , , and , in which Citi/en Groups NRDC, OEC, NPCA, and Sierra Club are jointly challenging a Clean Air Act permit issued by the Director, the parties have identified approximately 30 witnesses, including up to 20 expert witnesses, in order to present evidence regarding more than 50 assignments of error. ERAC had previously scheduled a three-week long hearing in that proceeding, but that hearing has now been replaced by one hour of hearing time for each appellant at a de novo hearing scheduled for December 1, The Ohio General Assembly recently passed H.B. 1, Ohio's biennial budget bill, which took effect on July 17, The bill added language to R.C (F that imposes strict deadlines on the Commission to issue final decisions and orders in all appeals, whether currently pending or to be filed in the future. The amendment reads: The commission [ERAC] shall issue a written order affirming, vacating, or modifying an action pursuant to the following schedule: (1 For an appeal that was filed with the commission before April 15, 2008, the commission shall issue a written order not later than December 15, (2 For all other appeals that have been filed with the commission as of October 15, 2009, the commission shall issue a written order not later than July 15, (3 For an appeal that is filed with the commission after October 15, 2009, the commission shall issue a written order not later than twelve months after the filing of the appeal with the commission. Am H.B. No. 1. There are no qualifiers to the ERAC deadlines to account for discovery disputes, motion practice, or other procedural delays, or to provide appellants with a full and fair opportunity to present their cases. Additionally, the amendment provides no explanation of what TO

11 would happen if ERAC does not meet the new review deadline. 24. In reaction to H.B. 1, ERAC has, in each of the Citizen Groups' pending appeals, issued Orders canceling previously scheduled hearings, suspending case management schedules, noting that a one hour de novo hearing would be held in the appeal, and announcing that it would not rule on any discovery disputes or dispositive motions in the proceedings. In fact, such motions and arguments are arbitrarily prohibited by order of ERAC. For the Citizen Groups7 appeals that were filed before April 15, 2008, the ERAC issued Orders that scheduled de novo hearings of one hour per appellant, announced that the Commission would not consider any requests for hearing continuances, and limited pre-hearing briefs to five pages in length. ERAC scheduled approximately 300 such one hour long de novo hearings to occur between September 8, 2009 and December 1, The Citizen Groups have appeals that fall under the deadlines for pending cases filed before April 15, 2008 and for those filed on or after April 15, In each such appeal, the Citizen Groups have received or expect to receive one of the Orders described in Paragraph 23 scheduling a one-hour de novo hearing and setting other limits on such hearings. Pursuant to these Orders, the Commission has already scheduled the following one-hour de novo hearings in appeals brought by the Citizen Groups: NRDC: Case No Dec. 1, 2009 at Sam BEN: Case No Nov. 6, 2009 at 3pm CAALE: Case No Nov. 2, 2009 at I0:30am Case No Nov. 3, 2009 at 8am Case No Nov. 17, 2009 at 3pm

12 ECO: Case No Nov. 6, 2009 at 1:45pm NPCA: Case No Dec. 1, 2009 at 12:30pm OAJ: Case No Nov. 6, 2009 at 12:30pm OCA: Case No Nov. 6, 2009 at 10:30am OEC: Case No Dec, 1, 2009 at 9:15am Sierra Club: Case No Nov. 6, 2009 at 9:15am Case No Dec. 1, 2009 at 10:30am Vivian Baier: Case No Nov. 2, 2009 at 1:45pm Case No Nov. 3, 2009 at 10:30am Case No Nov. 18, 2009 at 9:15am Ann McCoy: Case No Nov. 2, 2009 at 3pm Case No Nov. 3, 2009 at 12:30pm Case No Nov. 18, 2009 at 10:30am Jill Van Vooris: Case No Nov. 2, 2009 at 12:30pm Case No Nov. 3, 2009 at 9:3 Sam Case No Nov. 18, 2009 at Sam 26. Ohio appellate courts and other courts have held that a party has due process rights in a cause of action, Logan v. Zimmerman Brush Co. (1982, 455 U.S. 422, 102 S. Ct. 12

13 1148, 71 L.Ed.2d 265; In re Cleveland Clinic Found. (1994, 94 Ohio App.3d 348, 355, 640 N.E.2d 900; Salazar v. Ohio Civil Rights Comm 'n (1987, 39 Ohio App.3d 26, 29, 528 N.E.2d 1303, such as the right of an aggrieved or adversely affected party to appeal a final action of the Director of the Ohio EPA as provided by R.C (B, In administrative hearings, such as the Citizen Groups' appeals pending before ERAC, the applicable due process protections require providing a party a "fair and open hearing," dayman v. State Medical Bd. of Ohio (1999, 133 Ohio App.3d 122, , 726 N.E.2d 1098 (Franklin County, at which the party must generally have "the opportunity to submit its own... evidence," LTV Steel Co. v. Industrial Comm 'n (2000, 140 Ohio App.3d 680, 690, 748 N.E.2d 1176 (Franklin County, "at a meaningful time and in a meaningful manner," Gralewski v. Bureau of Workers' Compensation (2006, 167 Ohio App.3d 468, 481, 855 N.E.2d 879 (Franklin County. Denial of the ability to present admissible evidence conflicts with such due process requirements. Gibralter Mausoleum Corp. v. Cincinnati (1981, 1 Ohio App.3d 107, 110, 439 N.E.2d 922 (Hamilton County. 27. Given the de novo hearing system of appeals established by state law as the only means for challenging the actions of the Director, the ERAC Orders imposing one hour time limits and other restrictions on those de novo hearings in the Citizen Groups' pending appeals is a plain deprivation of the Citizen Groups' due process rights. A one-hour hearing, with no opportunity to settle discovery disputes, no opportunity to argue important procedural questions and no effective opportunity to present or challenge witnesses and evidence, plainly does not constitute a meaningful opportunity for the Citizen Groups to be heard in the de novo hearings or to develop an adequate record for ERAC or an appellate court to decide the appeal. In addition, by requiring ERAC to decide hundreds of pending appeals by the arbitrary deadlines of December 15, 2009 and July 15, 2010, H.B. 1's amendment to R.C (F is

14 unconstitutional on its face and as applied because it effectively required ERAC to establish the time limits and other restrictions that violate due process. Such constitutional infirmities are especially problematic given that the Citizen Groups' members will be subjected to health and environmental impacts associated with excessive pollution emissions that are inconsistent with the Clean Air Act and Clean Water Act if the deficiencies in the actions of the Director that are challenged in the Citizen Groups' pending appeals are not rectified. 28. On September 8, 2009, Plaintiffs in the present proceeding filed in the Tenth District Court of Appeals an original action seeking a writ of mandamus ordering the Commission to cancel the one-hour hearings and to schedule hearings that meet with the requirements of due process. On September 15, 2009, Citizen Groups NRDC, NPCA, OEC, Sierra Club, and SunCoke Watch, Inc. filed a motion to intervene in that Court of Appeals proceeding. 29. On September 25, 2009, without ruling on the Citizen Groups' motion to intervene, the Court of Appeals issued ajudgment denying the Plaintiffs' unopposed motion for a peremptory writ of mandamus. That Court concluded there is a right to a meaningful opportunity to be heard before the Commission, stating in part that: [Rjelators have a clear legal right to have meaningful hearings before the commission at which they are afforded a full opportunity to present any evidence relevant to the commission's review of their appeals, and the commission has the clear legal duty to provide such meaningful hearings. The Court of Appeals nevertheless declined to issue the writ of mandamus, finding instead that there is an adequate remedy in law namely, the availability of an action for declaratory judgment and injunctive relief- that prevented it from issuing the requested writ. Plaintiffs have instituted the present action challenging the deadlines set in Am. H.B. 1 and the resulting limits on de novo hearings established by ERAC in their appeals. The Citizen Groups move to 14

15 intervene in order to ensure that they are provided a meaningful opportunity to be heard before the Commission in their pending appeals. COUNT I (Declaratory Judgment 30. The Citizen Groups re-allege each above paragraph of this Complaint as if fully set forth herein. 31. Article II, Section 15(D of the Ohio Constitution requires legislation to include only a single subject. The amendments to R.C (F in Am. H.B. 1 do not concern the general appropriation of funds for the state budget and are therefore unconstitutional as violating Article II, Section 15(D of the Ohio Constitution. 32. Confining the Citizen Groups to the arbitrary, inadequate, and inflexible 20- minute limit to present evidence at a de novo hearing and imposing the other limits described above is a patent deprivation of due process of law and violates the constitutional and statutory duty of the Commission to afford Plaintiffs a meaningful opportunity to be heard. 33. A declaratory judgment by this Court will terminate the controversy. 34. Accordingly, the Citizen Groups are entitled to a declaration that the amendment to R.C (F prescribing deadlines for ERAC to decide pending appeals is unconstitutional both on its face and as applied. COUNT II (Injunctive Relief 35. The Citizen Groups re-allege each above paragraph of this Complaint as if fully set forth herein.

16 36. Confining the Citizen Groups to the arbitrary, inadequate, and inflexible 20- minute limit to present evidence at a de novo hearing and imposing the other limits described above is a patent deprivation of due process of law and violates the constitutional and statutory duty of the Commission to afford the Citizen Groups a meaningful opportunity to be heard. 37. By reason of the acts and conduct of the Commission, the Citizen Groups face substantial and irreparable harm for which there is no adequate remedy at law. The Citizen Groups are, therefore, entitled to permanent injunctive relief. 38. Accordingly, the Citizen Groups respectfully request this Court to compel the Commission to vacate the one-hour hearings in the Citizen Groups' appeals and schedule the hearings in such a fashion that they will comport with the due process and statutory requirements described above. WHEREFORE, the Citizen Groups respectfully request that this Court issue: (1 a declaration that the amendment to R.C (F prescribing deadlines for the decision of appeals pending before ERAC is unconstitutional under the due process clauses of the federal and state constitutions as applied and on its face; (2 a permanent injunction compelling the Commission to vacate the one-hour hearings in the Citizen Groups' appeals and schedule the hearings in such a fashion that the hearings will comport with the due process requirements described above; and (3 such further relief as the Court deems lawful and appropriate to vindicate the Citizen Groups' rights. Respectfully Submitted, October 1,

17 Peter A. Precario (Ohio Bar # S High St, Annex Ste 100 Columbus, Ohio Phone: Fax: precanolaw@aol.com Counsel for the National Parks Conservation Association, Natural Resources Defense Council, Ohio Environmental Council, Sierra Club, and SunCoke Watch, Inc. TrenfDougheptf (Ohi/Bar/rf Director of Legal Affairs ^^^JJ^u_^\J{ Oliio Environmental Council J 1207 Grandview Ave., Suite 201 Columbus, Ohio Phone: Facsimile: trent@theoec.org D. David Altman (Ohio Bar # D. David Altman Co. LPA M^fa>- 15 E. 8th St., Suite 200W ' Cincinnati, OH Phone: Facsimile: daltman@one.net Counsel for Buckeye Environmental Network, Citizens Against American Landfill Expansion, Environmental Community Organization, Ohio Association for Justice, Ohio Citizen Action, Sierra Club, Jill Van Voorhis, Vivian Baier, and Ann McCoy Counsel for the Ohio Environmental Council

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19 CERTIFICATE OF SERVICE I hereby certify that on October 1, 2009 an original of the foregoing MOTION TO INTERVENE, MEMORANDUM IN SUPPORT OF MOTION TO INTERVENE, AND PROPOSED COMPLAINT were filed in person with the Court of Court of Common Pleas, Franklin County, Ohio and that a copy of the Motion, Memorandum, and Complaint were served via U.S. Mail and electronic mail upon the following: David E. Northrop Robert L. Brubaker PORTER WRIGHT MORRIS & ARTHUR, LLP 41 South High Street Columbus, Ohio Phone:( Facsimile: ( Counsel for Plaintiffs, AEP, Ohio, et al Matthew Lampke Keith A. McCarthy John T. Williams Assistant Attorneys General 30 East Broad Street, 26th Floor Columbus, Ohio Dale Vitale Assistant Attorney General Environmental Enforcement Section 30 East Broad Street, 25th Floor Columbus, Ohio Counsel for Defendant Director of Environmental Protection Richard Cordray Ohio Attorney General 30 East Broad Street, 17th Floor Columbus, Ohio Attorney General of Ohio (served per R.C Counsel for Defendant the Ohio Environmental Review Appeals Commission Susan E. Ashbrook Assistant Attorney General 30 East Broad Street, 17th Floor Columbus, Ohio Counsel for Defendant State of Ohio Peter A. Precario #

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