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Ohio Businesses Can Appeal Ohio EPA Decisions

Q: I own a small manufacturing business that holds air emission and water discharge permits from the Ohio EPA. The Ohio EPA recently sent me new permit terms and conditions that are more stringent than the old permits and impose expensive controls on my production equipment. Is there anything I can do?
A: If your business is adversely affected by an official Ohio EPA decision, you may have the right to appeal the decision. An official EPA decision might include the following “acts” or “actions”:

  • adopting or modifying of a rule or regulation;
  • issuing, modifying, or revoking an order;
  • issuing, denying, modifying, or revoking a license or permit;
  • approving or disapproving any plans or designs.

Any decision by the EPA director that determines a controversial right or privilege is an official “act” or “action” of the EPA. The director’s refusal to decide on a matter or the EPA’s sending out of correspondence or notices may not be an official act or action of the EPA.

Q: Who would consider my appeal?
A:
If you are adversely affected by an official EPA act or action, you may appeal the EPA’s decision to the Ohio Environmental Review Appeals Commission (“ERAC”), a three-member panel appointed by the governor. The ERAC is independent of the Ohio EPA and is charged with hearing appeals that spring from EPA decisions.

Q: When must I file my appeal?
A:
Your appeal must be filed with ERAC no later than 30 days from the time the EPA issues its official decision, and during the appeal you must demonstrate that the EPA’s decision was unlawful and unreasonable. The ERAC may accept any evidence deemed relevant, though it is not authorized to rule on constitutional questions.

Q: If I file the appeal, do I have to comply with the terms and conditions of the EPA’s new permit or can I rely on the old terms and conditions?
A:
You can no longer rely on the old terms and conditions. Your appeal to ERAC does not automatically stop or delay whatever act or action is adversely affecting your business.

Rather, after holding a hearing to consider all the evidence, ERAC will issue a written order stating either that the Ohio EPA’s action is lawful and reasonable or that it is unlawful and unreasonable. If the latter happens, ERAC may modify the act or action or set aside the EPA’s decision and send the matter back to the EPA. You may appeal ERAC’s decision to the Franklin County Court of Appeals. The ERAC’s decision will be reversed if it is found to be unlawful and unsupported by reliable, probative and substantial evidence.

Q: Where can I get find out more about the Ohio EPA and how its regulations affect my business?
A:
Because the Ohio EPA is concerned with the impact its decisions and regulations have on small businesses in Ohio, a Small Business Compliance Assistance Office has been created. The Small Business Compliance Assistance Office provides newsletters and other notices to small business as well as training and assistance in understanding and complying with Ohio EPA’s laws and regulations. Ohio EPA’s Small Business Assistance Office can be reached at (800) 329-7518.

If your business is either directly involved with Ohio EPA or adversely impacted by an EPA decision, you have a right to be heard. However, if you do not exercise your rights, you may not be able to make objections in the future. For advice about Ohio EPA’s laws and regulations, talk with a lawyer who is familiar with environmental laws and regulations.

5/1/2013

This "Law You Can Use" legal information column was provided by the Ohio State Bar Association. It was prepared by Charles R. Dyas Jr., past chair of the Ohio State Bar Association Environmental Law Committee and an attorney with the Columbus law firm of Barnes & Thornburg LLP.

Articles appearing in this column are intended to provide broad, general information about the law. Before applying this information to a specific legal problem, readers are urged to seek advice from an attorney.

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