Environmental Review Appeals Commission (ERAC) issues Notice and Cancellation of Hearing; Federal Lawsuit filed by the City of Monroe is dismissed on policy grounds, not due to the merits of the case
On August 19, 2009, the Environmental Review Appeals Commission (ERAC) issued a Notice and Cancellation of Hearing on the appeals filed on the Middletown Coke Company netting permit-to-install. The Notice states "To comply with amendments to Ohio Revised Code ("R.C.") 3745.05(F) adopted in the biennial budget bill, please be advised that the de novo hearing scheduled in the above-captioned matter is hereby cancelled. Further, any existing deadlines and proceedings currently scheduled in this action are suspended. To conform to the mandate..., this matter will be scheduled for a one hour de novo hearing, to be held after January 1, 2010...A written order affirming, vacating, or modifying the action appealed from will be issued by the Commission no later than July 15, 2010."
Layman translation: This hearing was scheduled in February 2010 for one full week of testimony for the appeals filed. It is impossible for the citizens who oppose permits issued by the Ohio EPA to have due process with only one hour allotted for such a hearing. Numerous other ERAC appeals pending in the state of Ohio are also effected by this bill, not just those appeals involving the Middletown Coke permit.
On August 20, 2009, Judge Dlott dismissed the federal lawsuit filed by the City of Monroe against Middletown Coke Company.
The Order states:
"Where timely and adequate state-court review is available, a federal court sitting in equity must decline to interere with the proceedings or orders of state administrative agencies (1) when there are difficult questions of state law bearing on policy problems of substantial public import whose importance transcends the result in the case then at bar; or (2) where the exercise of federal review of the question in a case and in similar cases would be disruptive of state efforts to etablish a coherent policy with respect to a matter of substantial public concern."
Layman translation: Due to the fact that the ERAC process is available and issues of policy and public concern exist, the federal court has ruled that it must not interfere with the proceedings underway at this time. The federal court's decision was a matter of process, not based on the merits of the case. No decision was rendered regarding the permit itself.