Opinion
No. 76-1149
Decided October 27, 1976.
Environmental protection — Appeal to board of review — R.C. 3745.04 — Immediate determination of appeal mandated — Exceptions — "Unavoidable circumstances," construed.
IN MANDAMUS.
Relator, Republic Steel Corporation, filed a complaint in this court, on October 14, 1976, for a writ of mandamus to compel respondent Environmental Board of Review to "proceed to an immediate determination of the appeal in case No. EBR 76-24, without interruption by continuances or further delays * * *."
Case No. EBR 76-24 is an appeal, filed August 6, 1976, from a consent order between Republic Steel and the Director of Environmental Protection concerning operation of a coke-making facility of Republic Steel. On August 12, 1976, appellants in EBR 76-24, intervening respondents herein, filed a motion for stay of the consent order, and a stipulation was filed with the board on August 27. That stipulation states, in part:
"1. The appellants, the Broadway Christian Church, the Broadway United Methodist Church, the Broadway Retiree's Fellowship, the Northern Ohio Lung Association, the Forest City Park Civic Association, and the Southwest Civic Association, by and through counsel, agree to voluntarily withdraw their motion for an expedited stay pending their appeal in the instant case to the Environmental Board of Review, which was filed August 11, 1976.
"2. In consideration of, and in return for, the above-stipulated action of the appellants, the appellee, Republic Steel Corporation, by and through counsel, hereby agrees that it will not charge coal into the ovens, in the appellee's Coke Oven Battery Number One (1) located at the appellee's Cleveland steel production facility, located at 3100 East 45th Street, Cleveland, Ohio, prior to the fifth (5th) day of October, 1976."
Subsequently, on September 21, 1976, the motion for stay was renewed and the board ruled that the director's action of July 7, 1976, in entering into a consent order with Republic Steel be stayed with the exception that Republic be allowed to maintain the coke battery at an appropriate temperature. The stated objective of the ruling was that the battery "not be charged with coal." The board stated that its order be in effect until December 14 or until it "issues a final order * * * whichever occurs sooner."
On October 12, Republic Steel filed with the board a motion "for immediate determination of the appeal without interruption by continuances."
Denying the motion, the board stated, as follows:
"The board denied appellee Republic Steel Corporation's * * * motion for immediate determination of the appeal without interruption by continuances, because it has expeditiously set the above-captioned case for hearings on October 27, 28, 29 and November 3, 4 and 5, 1976, dates that were indicated as acceptable by all parties on the record. There will not be scheduled hearings during the week of October 18-22 due to the expiration of one of the board members term. During that week the board must conclude its deliberations and issue opinions in a number of previously heard appeals. For these reasons the board denied appellee Republic Steel Corporation's * * * motion * * * as also falling within the spirit and intent of the `unavoidable circumstances' provision of Section 3745.04 R.C. * * *."
Messrs. Jones, Day, Reavis Pogue, Mr. Victor E. DeMarco, Mr. James C. Sennett, Ms. Kathleen B. Burke and Mr. James L. Warsley, III, for relator. Mr. William J. Brown, attorney general, Mr. Richard P. Fahey and Mr. Christopher R. Schraff, for respondent Environmental Board of Review.
Ms. Ann Aldrich, Mr. Joseph P. Meissner and Mr. Jeffrey H. Olson, for respondent intervenors.
R.C. 3745.04, which provides for appeals to the Environmental Board of Review from actions of the Director of Environmental Protection, provides, in pertinent part:
"The filing of an appeal does not automatically suspend or stay execution of the action appealed from. Upon application by the appellant the board may suspend or stay such execution pending immediate determination of the appeal without interruption by continuances, other than for unavoidable circumstances."
In its ruling denying relator's motion for immediate determination of the appeal without interruption by continuances, the board concluded that the expiration of the term of one of its members and the deliberations and issuance of opinions with respect to previously heard appeals constituted "unavoidable circumstances" within the "spirit and intent" of that language as employed in R.C. 3745.04. In its answer, respondent board specified as an additional "unavoidable circumstance" the unavailability, before October 25, 1976, of its own expert witness on coke battery pollution technology.
The language of R.C. 3745.04, providing that there should be an "immediate determination of the appeal without interruption by continuances," where an appeal is filed with the Environmental Board of Review and an order is issued staying the action of the Director of Environmental Protection, evinces a legislative intent that in such instances the appeal is to proceed without delay.
It is the conclusion of this court that mandamus is an appropriate remedy in this cause ( State, ex rel. Pressley, v. Indus. Comm., 11 Ohio St.2d 141), and that the reasons given by the respondent board for denying relator's motion for immediate determination of the appeal in question neither individually nor collectively constitute "unavoidable circumstances" which excuse compliance with the mandate of R.C. 3745.04 requiring "immediate determination of the appeal."
Writ allowed.
O'NEILL, C.J., HERBERT, CORRIGAN, STERN, CELEBREZZE, W. BROWN and P. BROWN, JJ., concur.