Buried in the thousand pages of the Ohio Budget Bill (H.B. 1) is an amendment that could have a major impact on hundreds of pending and future appeals of environmental decisions. The budget bill amendment includes language placing strict deadlines for issuing decisions on environmental appeals. The deadlines could impact some very controversial permit appeals, including the Natural Resource Defense Council (NRDC) appeal of AMP Ohio’s air permit for its new baseload coal-fired power plant.
By law the Environmental Review Appeals Commission (ERAC) hears and issues decisions on a multitude of actions by Ohio EPA as well as a limited number of actions by other state agencies. The appeals heard by ERAC include:
- Ohio EPA rules
- Ohio EPA enforcement orders
- Ohio EPA permitting decisions in air, water, solid waste, hazardous waste, etc.
- Actions by the Boards of Health related to solid waste facilities
- Ohio EPA decision related to the Voluntary Action Program (brownfields)
- Orders of the State Fire Marshall relative to underground storage tanks (BUSTR)
- Water permits and orders issued by Ohio Department of Agriculture for large factory farms
At any given time ERAC will typically have hundreds of appeals pending. Some appeals can sit before ERAC for years, but this is typically by mutual consent of the parties in the appeal. However, its not uncommon in complex cases for hearings to be scheduled 18 to 24 months after appeal has been filed.
Obviously someone felt concerned that ERAC was taking too long in issuing the majority of its decisions because the Ohio Budget Bill included strict deadlines for making determinations. Here is the language (click here for the actual H.B. 1 Budget amendment):
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, 2009.
(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, 2010.
(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.
The language is silent on what happens if ERAC fails to adhere to the deadlines. If left as is the language could create a right to file an action against ERAC to compel it to issue a decision (called a mandamus action).
I am told that the legislative intent of the language was to remove the appeal from ERAC’s jurisdiction and allow the Court of Appeals to hear the appeal. If that was indeed the intent it would appear to be unworkable given the Court of Appeals doesn’t accept testimony of witnesses. In addition, there would be no assurance a Court, with its very busy docket, would make a determination any quicker.
Regardless, the new deadlines could have a significant impact. With so many appeals pending before ERAC, the Commission may be forced to shorten hearings, reduce discovery or take other steps to speed up the decision making process. It is also possible the deadlines could influence ERAC’s level of scrutiny of Agency actions.
Indeed, the language could impact some very controversial actions currently under appeal, including the NRDC appeal of the AMP Ohio air permit on multiple grounds including regulation of greenhouse gases. According to ERAC’s docket, a hearing is scheduled to begin March 8, 2010. The original appeal was filed in early spring of 2008. Under the imposed deadlines a decision would have to be issued no later than December 15, 2009.
It is possible that the Legislature will used the Budget Correction Bill to amend the language. Given the fact that the public hasn’t had an opportunity to see it or provide input we may yet see substantial revisions.