Opinion
No. 86-518
Decided July 9, 1986.
Environmental law — Review of EPA actions — Jurisdiction — Courts without jurisdiction to proceed in controversies under R.C. Chapter 3745, when.
IN PROHIBITION.
In 1970, the Ohio Water Pollution Control Board filed a complaint against the city of Cleveland in the Court of Common Pleas of Cuyahoga County seeking to bring under control water pollution problems in the Cuyahoga County area. The case has always been assigned to respondent, Judge George J. McMonagle, and remains assigned to him now. As a result of that suit, the Cleveland Regional Sewer District was created which has now been succeeded by the Northeast Ohio Regional Sewer District ("NEORSD"), intervening respondent herein. In connection with this suit, respondent has ordered the construction of sewer projects in the Cleveland area and imposed deadlines for the completion of construction and time for operation. These projects are being built in contemplation of receiving federal funding. Intervening respondent claims that these projects are entitled to seventy-five percent funding from federal funds under the federal Clean Water Act.
On October 2, 1985, the Ohio Environmental Protection Agency ("OEPA") finalized a project priority list establishing priorities for the receipt of federal funds and establishing that any one entity could not receive in excess of twenty percent of the federal monies available. In January 1986, NEORSD filed a notice of appeal with the Ohio Environmental Board of Review ("EBR") challenging the twenty percent limitation. It did not request a stay of execution of the priority list pending appeal.
NEORSD then also filed a motion for preliminary injunction and declaratory judgment action on March 11, 1986 in the ongoing case pending before respondent. It sought a declaration that the twenty percent limitation was unlawful and sought an injunction prohibiting its application against NEORSD. The OEPA filed a motion to dismiss which was denied.
This original action in prohibition was filed on April 3, 1986 seeking the issuance of a writ to prohibit respondent from proceeding on the motion for preliminary injunction and for declaratory judgment pending in the EBR appeal. Relators are Warren W. Tyler, the OEPA's Director, Mehmit B. Tin, the OEPA's Chief of the Division of Construction Grants, the cities of Cincinnati, Columbus, Toledo, Newark, Greenville, Barberton and Elyria, and the village of Wauseon, which municipalities are entitled to receive federal construction grants. An alternative writ was allowed on April 7, 1986 to prohibit respondent from proceeding in the common pleas court action pending the conclusion of the EBR hearing.
Anthony J. Celebrezze, Jr., attorney general, Margaret A. Malone and Terrence M. Fay, for relators Tyler and Tin.
Richard A. Castellini, city solicitor, and W. Peter Heile, for relator city of Cincinnati.
Ronald J. O'Brien, city attorney, and John Klein, for relator city of Columbus.
Sheldon M. Rosen, law director, and Mary G. Trimboli, for relator city of Toledo.
Michael Radabaugh, law director, for relator city of Newark. Michael J. McNulty, law director, for relator city of Barberton.
Jeffery L. Amick, law director, for relator city of Greenville.
James E. Barber, law director, for relator village of Wauseon.
Terry S. Schilling, city solicitor, and Scott Serazin, law director, for relator city of Elyria.
John T. Corrigan, prosecuting attorney, and Patrick J. Murphy, for respondent.
Squires, Sanders Dempsey, Van Carson and George M. von Mehren, for intervening respondent.
In State, ex rel. Maynard, v. Whitfield (1984), 12 Ohio St.3d 49, 50, this court reiterated the well-established rule that "* * * the statutory procedure for review of OEPA actions set forth in R.C. Chapter 3745 is exclusive and that courts of common pleas are without jurisdiction to proceed in actions for declaratory and injunctive relief involving controversies under R.C. Chapter 3745. State, ex rel. Williams, v. Bozarth (1978), 55 Ohio St.2d 34 [9 O.O.3d 19], and Warren Molded Plastics, Inc. v. Williams (1978), 56 Ohio St.2d 352 [10 O.O.3d 484]."
There has been no contention made by respondents that the EBR lacks jurisdiction to allocate the federal funding at issue. They contend only that the respondent judge has authority to do what is necessary to enforce his own orders. That right, however, must yield to the unambiguous requirement set forth in Maynard, supra, regarding the exclusive jurisdiction of the EBR.
The writ prayed for is allowed.
Writ allowed.
CELEBREZZE, C.J., SWEENEY, LOCHER, HOLMES, C. BROWN, DOUGLAS and WRIGHT, JJ., concur.