If your proposed construction project has a permit on appeal before the Environmental Review Appeals Commission (ERAC), or there is a possibility your permit may be denied, you need to pay close attention to this article. Many projects require environmental permits in order to proceed with construction. Failure to secure a permit in a timely manner, or delay in the appeals process, can significantly obstruct an owner’s plan to commence construction. Recently, the Franklin County Court of Common Pleas issued a Temporary Restraining Order against ERAC for its proposed plan to implement one-hour hearings before the Commission.
Cobbled on to Am.Sub. H.B. 1, the 2009 budget bill, was a requirement that ERAC, the quasi-judicial body that has initial jurisdiction to hear appeals of actions of the Ohio EPA, conduct hearings and issue decisions on its entire backlog of pending appeals. Appeals filed prior to April 15, 2008, (currently about 300 cases) must be heard and decided by December 15, 2009. Cases filed between April 15, 2008, and October 15, 2009, must be heard and decided by July 15, 2010. All cases filed after October 15, 2009, must be heard and decided within one year of filing.
In response to this enactment, ERAC issued orders in all cases within the first group (to be decided by December 15, 2009,) suspending all prior case management orders, revoking established hearing dates, and requiring that the parties in each case appear for a one-hour “hearing” on a specified date. The first of these one-hour “hearings” was to commence September 14, 2009. All 300 cases were dealt with in this manner.
Ordinarily, ERAC appeals are highly technical in nature, with the presentation of expert testimony and facts through several witnesses and hundreds of pages of documents. It is not unusual for an ERAC hearing to last several days, and occasionally several weeks. ERAC’s review in most cases is de novo, which means that a complete record must be developed through the hearing process. Thus, the prospect of having only a one-hour hearing to address complex issues with potentially multiple witnesses was of great concern to many ERAC appellants.
Earlier in September, several of these concerned parties sought relief in the 10th District Court of Appeals in Franklin County, asking the court for a writ of mandamus to prevent ERAC from proceeding with its one-hour hearing plan. In State of Ohio, ex rel. AEP Ohio, et al., v. The Ohio Environmental Review Appeals Commission, Case No. 09 AP-839 (Franklin App. September 25, 2009), the Court initially granted a temporary suspension of the ERAC order, on final review, however, the Court denied relief.
The Court found that even though the request for relief was unopposed, the appellants failed to demonstrate that relief by extraordinary writ of mandamus was the only legal remedy available. The Court suggested in dictum that the appellants could seek a declaratory judgment in the court of common pleas declaring that the deadlines imposed by Am. Sub. H.B. 1 on ERAC were directory, rather than mandatory. Presumably, the court felt such finding would enable ERAC to fashion a more appropriate schedule to address its pending case backlog.
On September 28, 2009, a declaratory judgment action was filed by the unsuccessful appellants, which asked the Franklin County Common Pleas Court to issue an injunction delaying implementation of the ERAC one-hour hearing order. A temporary injunction suspending the ERAC one-hour hearing order as to the ERAC appeals involving the plaintiffs in this case until further notice from the court has been issued; however, when, or if, this case is ultimately successful, or the affects on cases of persons not parties to this common pleas court case remains to be seen.
Other possibilities for relief include a legislative “fix” to the problem created by Am.Sub. H.B. 1, or simply individual appeals of each case subject to the one-hour hearing limitation to the Court of Appeals on the ground that the losing party was denied due process of law as defined in the statutes and rules governing the ERAC appeal process.
As of September 28, 2009, the ERAC order for onehour hearings is suspended as to some, but not all, ERAC appellants. All affected parties with interests pending before ERAC should continue to monitor developments in this court case.