State ex rel. Dewine v. Titan Wrecking & Environmental, L.L.C.
2012 Ohio 1429
Ohio Ct. App.2012Background
- Cleveland Elementary School in Dayton was being demolished as part of a public schools rebuilding program, with Titan contracted to perform the demolition.
- An asbestos abatement contractor, Helix Environmental, conducted work prior to Titan’s demolition; inspections suggested potential asbestos issues.
- Titan notified RAPCA of demolition activities, indicating 12,000 feet of vinyl floor tile containing non-friable asbestos would be removed to recycle concrete.
- RAPCA and ODH inspected the site; samples were taken and analyzed by Data Chem, with reports indicating asbestos presence in several samples.
- The trial court found the floor tile was not regulated RACM and that removal did not render the tile friable; the State appealed asking for reversal.
- The appellate court affirmed the trial court, ruling Titan was not required to follow NESHAP procedures for this tile under the facts presented.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether floor tile constituted RACM under Ohio regulations | State argued tile became RACM if friable or subjected to grinding | Titan and defense argued tile was Category I nonfriable not rendered friable and not ground | Tile not RACM; friability not established; no NESHAP trigger |
| Whether friability must be determined by a specific hand-pressure test | State urged that edge/grinding tests could demonstrate friability | Titan argued no exclusive method required; EPA guidance not binding | Trial court did not require a single mandated method; hand-pressure test not expressly required by statute/regulation; not reversible on this basis |
| Whether the decision was against the manifest weight regarding friability and grinding | State asserted evidence supported RACM via friability or grinding | Titan/defense argued evidence showed tile not friable and not ground | Trial court’s findings supported by competent, credible evidence; not against the manifest weight |
| Whether the State proved that floor tile contained more than one percent asbestos | Data Chem/occurrence of asbestos supported RACM status | Data Chem analyses not conclusive for RACM categorization | State failed to prove tile was RACM under the regulatory criteria; cross-assignment moot |
Key Cases Cited
- State v. DeHass, 10 Ohio St.2d 230 (Ohio 1967) (establishes standard for reviewing witness credibility and weight of evidence)
- C.E. Morris Co. v. Foley Constr. Co., 54 Ohio St.2d 279 (Ohio 1978) (regarding standard of review and weight of circumstantial evidence)