STATE OF OHIO ENVIRONMENTAL REVIEW APPEALS COMMISSION 77 SOUTH HIGH STREET, 17TH FLOOR COLUMBUS, OHIO PHONE: (614) FAX: (614)

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1 STATE OF OHIO ENVIRONMENTAL REVIEW APPEALS COMMISSION 77 SOUTH HIGH STREET, 17TH FLOOR COLUMBUS, OHIO PHONE: (614) FAX: (614) JOHN R. KASICH, GOVERNOR Testimony of Melissa M. Shilling Chair of the Environmental Review Appeals Commission Before the Senate Finance General Government Subcommittee May 6, 2015 at 2:30 P.M. Chairman Jordan, Vice-Chair Gentile, Members of the Senate Finance - General Government Subcommittee, my name is Melissa Shilling, Chair of the Environmental Review Appeals Commission. I am pleased to appear before you today to testify on the Commission s Biennial Budget. INTRODUCTION The Environmental Review Appeals Commission has exclusive, original jurisdiction over appeals of specified final actions taken by the Director of the Ohio Environmental Protection Agency, the Director of the Ohio Department of Agriculture, the State Fire Marshal, the State Emergency Response Commission, and approved county and local boards of health. The Commission is a three-member body appointed by the Governor to staggered six-year terms. Members of the Commission possess significant litigation experience, environmental expertise, and extensive knowledge of the complex state and federal environmental laws. Decisions of the Commission are directly appealable to the courts of appeals. Thus, the Commission effectively sits in lieu of a court of common pleas for environmental appeals throughout the state, allowing for the development of a consistent, statewide body of environmental law for Ohio. This statutorily created system provides the regulated community and interested citizens an important and relatively cost-effective mechanism for independent resolution of highly technical and scientifically complex environmental actions taken by state and local agencies within the Commission s jurisdiction. The Commission is funded solely by the General Revenue Fund. Although the Commission receives a

2 Page 2 of 5 filing fee with each case, all fees collected are deposited with the Treasurer of State for deposit into the General Revenue Fund. As such, fees collected by the Commission have no impact on the Commission's appropriated funding. The Commission s staff currently consists of two full-time staff members: an Executive Director, who serves as the Commission s Executive Secretary, and a Program Administrator/Staff Attorney. The Commission currently has one vacant position. GOALS AND OBJECTIVES The Commission s primary goal and objective is to provide a non-partisan expert forum where citizens and the regulated community may timely resolve appeals from certain final actions of the governmental agencies within its jurisdiction. The Commission believes this structure provides a consistent and predictable body of case law that allows citizens and businesses to flourish in the state of Ohio. During the current biennium, the Commission has maintained and upgraded the substantial changes implemented by the Executive Director and Program Administrator/Staff Attorney during the previous and current biennium. The changes include a redesign of the Commission s web site, which now offers user-friendly information to assist parties who have never attended a proceeding at the Commission, as well as links to recent decisions issued by the Commission, which previously were not easily accessible to the general public. Further changes include streamlining internal operations, which have made the Commission s day-to-day operations more efficient and have improved the quality of and accessibility to the Commission s services. The impact of these changes has been well-received by both the private bar and agencies and individuals appearing before the Commission. Additionally, during the current fiscal biennium, the Commission began the process of developing an electronic filing and online case management system. This has been a desire of the Commission for numerous years but was unobtainable due to lack of funding. The Commission was able to restructure its current biennium funding in order to raise the required funds. Having the capability to offer electronic filing and the ability to instantly review filings in active cases will significantly benefit all parties who appear before the Commission.

3 Page 3 of 5 The Commission anticipates that the electronic system will be fully implemented by the start of the FY biennium. The main objectives of the Commission for the upcoming FY16-17 biennium will be to continue to provide a non-partisan expert forum where citizens and the regulated community may timely resolve appeals from certain final actions of the governmental agencies within its jurisdiction, to maintain all the substantial changes implemented by the Executive Director and Program Administrator/Staff Attorney during the previous and current biennium, and to fully implement the electronic filing system with the ability to fund it for years to come. OPERATIONAL ISSUES Currently, the Commission s docket reflects 240 active cases. In fiscal year 2013, the Commission resolved 100 appeals, 23 with final decisions or final rulings, and in fiscal year 2014, the Commission resolved 88 appeals, 11 with final decisions or final rulings. Notably, no case on the Commission s docket is awaiting a decision or ruling from the Commission. Although the number of appeals filed with the Commission has remained fairly constant in recent years, the overall complexity of the legal and technical environmental issues presented continues to increase. The Commission conducts and issues final opinions for all de novo hearings. The average hearing lasts approximately one week, with the most complex lasting upwards of four weeks. The Commission also hears oral arguments and issues decisions on all record appeals filed after adjudicatory administrative hearings. In addition, the Commission reviews and issues opinions on dispositive motions and routinely issues rulings on a wide variety of discovery and evidentiary disputes. The Commission is a hands on commission; it employs no hearing examiners. The Commission s final opinions are legally and technically complex and require extensive research and drafting. The opinions are statutorily required to contain findings of fact and conclusions of law, which generally range from 30 to well over 100 pages in length.

4 Page 4 of 5 Until the funding changes received in FY and FY 14-15, the members of the Commission performed all research and wrote all opinions and decisions. But with the addition of the Program Administrator/Staff Attorney and an Executive Director with a legal background, the Commission members have been able to rely on in-house expertise to assist with the workload. The Commission s proposed budget of $612,435, as contained in the as-introduced version of H.B. No. 64, will allow the Commission to continue to improve on the substantial changes implemented during the previous and current biennium, and should allow the Commission to complete implementation of a fully operational electronic filing system. This figure does include a funding increase of $66,905 for FY16-17, which will afford the Commission sufficient funds to cover rent expenses previously paid for by the Department of Administrative Services. In March 2015, DAS informed the Commission that it would be charging all agencies their own rent expense, and the $66,905 is specifically for this purpose. Essentially, the Commission will now pay for rent instead of DAS paying it for the Commission. As the Commission is fully funded by the General Revenue Fund, there will be no opportunity to request further funding for this expense at a later date. A reduction in the Commission s available budget, such as the one included in the as-passed version of H.B. 64, would result in the inability to complete the implementation of the electronic filing system. The reduced budget, as passed in H.B. 64, would force the Commission to redirect funds currently intended for the electronic filing system to pay rent to DAS. This change would, in effect, require the Commission to abandon its efforts to implement electronic filing and waste the resources previously spent on the project. ERAC BUDGET REQUEST CHOICES The Commission has one program with three line items. The vast majority of the Commission s expenses arise from services obtained from the Department of Administrative Services ( DAS ) such as internet access, accounts, phone bill, and postage, etc. A new expense for the Commission will be the yearly licensing fee for software associated with the electronic filing system and any on-going maintenance expense for the program. While the Commission is able to approximate the software licensing expenses for FY16-17, it cannot fully predict maintenance costs

5 Page 5 of 5 associated with having the program. The on-going maintenance cost consists of cloud hosting from DAS/OIT, IT support from DAS/OIT, and possibly other expenses for contract work to be performed if needed on the software program running the electronic system. Finally, the Commission s personnel expenses are mandated by statute or fixed by state contract. Accordingly, the Commission has no programs or expenses that can be reduced or altered. No other funding is available to the Commission to help offset its expenses. In upcoming fiscal years 2016 and 2017, the Commission will continue to build on the recent advancements established during its last budget appropriation and will remain dedicated to the timely, efficient, and non-partisan administration of quasi-judicial appellate review of final actions within its jurisdiction. Thus, the Commission respectfully requests that this honorable subcommittee approve the budget as recommended by OBM so that the Commission may continue to improve its functionality and its commitment to the efficient and timely resolution of environmental appeals within the State of Ohio. Thank you for the opportunity to testify. I am pleased to answer any questions you may have regarding the Commission s budget.