495 N.E.2d 444 | Ohio Ct. App. | 1985
This matter is before us on the appeal of the city of Independence, Ohio, and John J. Nicastro on behalf of the Save Our Independence Land Committee ("appellants"), from an order of the Environmental Board of Review ("board") and upon the cross-appeal of Pete Boyas, Independence Development Sanitary Landfill and Boyas Excavating, Inc. ("Boyas") from the same order of the Board.
The Director of the Ohio Environmental Protection Agency ("director") issued a permit to Boyas, which was effective February 1, 1982, permitting him to install a sanitary landfill in a site in Independence, Ohio, that consisted of thirty-one acres at the northwest corridor to the Cuyahoga Valley National Recreation Area ("recreation area"). The director also approved plans to install the sanitary landfill and granted waivers of Ohio Adm. Code
The director's order was appealed to the board by appellants herein. The first appeal was dismissed upon the motion of the director and Boyas when it was learned by the director that the plans and the permit would have authorized deposition of solid waste material within two hundred feet of Hemlock Creek, in violation of Ohio Adm. Code
Boyas submitted a second application, which was approved by the director and which was appealed by appellants herein. It is the appeal from the director's issuance of the second permit that is the basis of the appeal to this court. The permit site is located within the Cuyahoga River Valley, is wooded and contains a number of flora and fauna, two streams, one of which empties into the Cuyahoga River, and is surrounded by land that is used for educational, recreational, residential and commercial purposes. The closest home to the site is approximately eight hundred to one thousand feet, and the air in the neighborhood is reasonably clean and odor free.
After a hearing de novo, the board found that the director was not required to consider the social and economic impact of granting the permit; that the director has discretion whether to consider and evaluate separate and distinct governmental interests with respect to the property in question; that the landfill will not create a nuisance; that Ohio Adm. Code
Appellants assert the following seven assignments of error in support of their appeal:
"1. The Environmental Board of Review erred in concluding that Congressional legislation and the hearing record reflected insufficient evidence to establish that the Director of Environmental Protection's final action was inconsistent with, and therefore preempted by, superior Federal law.
"2. The Environmental Board of Review erred in concluding that the Director of Environmental Protection could refuse to consider the social and economic impact of the landfill on the Cuyahoga Valley National Recreation Area and surrounding land uses and the actions of other governmental entities to preserve the Cuyahoga Valley for public park uses.
"3. The Environmental Board of Review erred in concluding, as a matter of fact and law, that the proposed landfill will not create an unlawful nuisance with respect to adjacent landowners and users of this Cuyahoga Valley National Recreation Area.
"4. The Environmental Board of Review erred in concluding that the applicant, Pete Boyas, was not barred as a matter of law by Ohio Administrative Code Section
"5. The Environmental Board of Review erred in concluding, on motion, that its prior vacation of a permit to install previously granted to the applicant with respect to the same permit area and proposed use, did not bar the Director of Environmental Protection's subsequent final action as a matter of law under the doctrine of res judicata.
"6. The Environmental Board of Review erred in failing to conclude that the waivers granted to the applicant pursuant to Ohio Administrative Code Section
"7. The Environmental Board of Review erred in concluding that the Director of Environmental Protection's final action should be vacated in part and affirmed in part, rather than vacated in its entirety."
In support of their first assignment of error, appellants argue that, because the permit site is within the geographical boundaries of the Cuyahoga Valley National Recreation Area, it violates a purported pre-emption that the United States government has regarding the use of the land within the recreation area. There is considerable testimony and other evidence in the record regarding the effect the proposed landfill would have upon the adjacent land that would be used as a recreation area. However, although it is apparent that Congress, in adopting Sections 460ff to 460ff-5, Title 16, U.S. Code, intended to preserve the thirty-two thousand acres of land designated as the recreation area, the question is whether Congress, in fact, complied with the strict test for pre-empting land use. *23
In determining that issue, we consider first the legislation by which the recreation area was created by Congress. The purpose for establishment of the recreation area was to preserve and protect for public use and enjoyment the historic, scenic, natural and recreational areas of the Cuyahoga River and the adjacent lands of the Cuyahoga Valley and to provide needed recreational open space in an urban environment. (Id. at Section 460ff.) The legislation then refers to a boundary map, a copy of which is a part of the record before the board, and states that the Secretary of Interior may make minor revisions of the boundaries of the recreation area when necessary:
"* * * Provided, That with respect to the property known as the Hydraulic Brick Company located in Independence, Ohio, the Secretary shall have the first right of refusal to purchase such property for a purchase price not exceeding the fair market value of such property on the date it is offered for sale. When acquired such property shall be administered as part of the recreation area, subject to the laws and regulations applicable thereto." (Id. at Section 460ff-1[a].)
The Act specifically provides for the purchase or acquisition by gift of lands, improvements, waters or interests therein, a schedule by which the Secretary of Interior was to submit to Congress a plan which would indicate the lands and areas the secretary deemed essential to the protection and public enjoyment of the recreation area, the lands he had previously acquired, and an annual five-year acquisition program.
The Act also contains a reference to local zoning in the following words: "* * * In providing assistance pursuant to this subsection, the Secretary shall endeavor to obtain provisions in such zoning laws or ordinances which * * *" would have the effect of prohibiting commercial and industrial use of the real property adjacent to the recreation area and aid in preserving the character of the recreation area. (Id. at Section 460ff-3[f].)
Finally, Congress made it clear that it was not directing the secretary to violate the
The United States Supreme Court observed in Commonwealth EdisonCo. v. Montana (1981),
"`* * * Pre-emption of state law by federal statute or regulation is not favored "in the absence of persuasive reasons — either that the nature of the regulated subject matter permits no other conclusion, or that the Congress has unmistakably so ordained."'* * * [Citations omitted.] In cases such as this, it is necessary to look beyond general expressions of `national policy' to specific federal statutes with which the state law is claimed to conflict. * * *"
The issue in Montana, inter alia, was whether a Montana severance tax *24
on the mining of coal on federal land violated the Supremacy Clause in view of the impact of the severance tax upon royalty payments to the federal government. While the facts in Montana
are not similar to the facts in this case, the general test stated in Montana should be applied to the federal statute and the facts in this case. When that is done, we conclude that the granting of a permit by the Director of the Ohio Environmental Protection Agency to a private company, to use land within the boundaries of an area designated by Congress as a national park where the land is not owned by the federal government and the Act creating the park area does not expressly pre-empt the use of land for any purpose authorized by the state, does not violate Clause 2, Article
The cases cited by appellants in support of their argument do not require a finding that the Supremacy Clause has been violated in this case. Furthermore, a holding that a violation of the Supremacy Clause has occurred where no compensation has been paid for the land in question would violate the
Appellants have filed a supplemental brief arguing that the enactment by Congress of Public Law
The arguments raised in appellants' supplemental brief are not persuasive for the following reasons:
1. We are confined to the record and the transcript of the proceedings below in determining whether the order of the Environmental Board of Review is supported by reliable, substantial and probative evidence and is in accordance with law.
2. The question before the Environmental Board of Review was whether the permit to install issued by the director complied with the environmental protection laws and regulations of Ohio and, to the extent they are applicable, of the United States. Neither the director nor the board has jurisdiction to prohibit the installation of a landfill for the reason that another government agency may object to such installation. See City ofGarfield Heights v. Williams (Sept. 29, 1977), Franklin App. No. 77AP-449, unreported, and Little Miami, Inc. v. Williams (Dec. 23, 1976), Franklin App. Nos. 76AP-292 and -285, unreported.
3. The question of the applicability of a federal statute to the use of land within a federal park system and the question of the cession of authority from Ohio over lands not acquired by the federal government should be resolved in a proceeding initiated by the appropriate federal agency. The first assignment of error is not well-taken and is overruled.
In support of their second assignment of error, appellants argue that the director abused his discretion when he failed to consider the social and economic impact of his granting of the permit. Appellants argue that the director should have considered such non-technical conditions as the opinions of other agencies, interference with recreational and educational activities within the park, and the preservation of *25
historical sites in the recreation area. Appellants also wish the court to consider, specifically, the director's failure to follow the recommendation of the Ohio Department of Natural Resources and the master plan for the city of Independence, which recommended the phasing out of commercial and industrial uses in the Cuyahoga Valley. In disposing of the second assignment of error, we observe first that R.C.
The director has adopted a number of rules to facilitate the implementation of the environmental protection laws of Ohio. One of the rules, Ohio Adm. Code
Appellants acknowledge that the director has no direct authority over the establishment of national parks, local zoning or surface mine reclamation. This court, in Little Miami, Inc.,supra, at 11, interpreted the predecessor to Ohio Adm. Code
"* * * Moreover, the Director is required to coordinate environmental protection activities with various other agencies and to consider their plans and projects as part of a planning process. Such is a general procedure but is not a required determination each time a permit to install is issued. It remains the responsibility of local zoning officials, commissions, boards of appeals, and courts to regulate the various social and economic concerns within the jurisdiction of particular subdivisions. Determination whether or not to grant or deny a permit to install a facility is predicated upon the impact of the proposed facility on the environment or public health. Zoning and pollution control are separate and distinct governmental interests, independently enforced and administered by different governmental units. The zoning issue, in particular, is separate and apart, and not the subject of this appeal."
The opinion recognizes, at least impliedly, that the direction of Ohio Adm. Code
The question of whether a proposed landfill will create a nuisance is a question that attends virtually every request for a permit to install a landfill, because virtually every person would prefer not to live, or work or attend school near a landfill. However, every person in our society creates material waste that must be disposed of somewhere. It is in that context that the director and the Environmental Board of Review necessarily consider the issue raised by appellants' third assignment of error.
The board recognized this dilemma in its thirty-seventh finding of fact. After stating in its findings of fact that the operation of the proposed landfill may be offensive to the senses, may interfere with the comfortable enjoyment of life in adjacent property, and may affect a considerable number of persons by reason of the emission of noise from vehicles and equipment and, after concluding that the control of blowing debris is not the best available current technology and that the production of methane gas at the site could create a serious hazard if produced in sufficient volume, the board concluded upon the evidence in the director's record and at the de novo hearing that the landfill will not create a nuisance. The reasons the board gave were that the site is isolated from residential structures and from the areas used by visitors to the recreation area, the close proximity of the site to industrial and commercial enterprises and the board's assumption that Boyas would comply with the conditions in the permit designed to prevent a nuisance from occurring. The board's conclusions were apparently based, at least in part, upon its own view of the site. R.C.
"`Nuisance' means anything which is injurious to human health or offensive to the senses; interferes with the comfortable enjoyment of life or property; and affects a community, neighborhood, or any considerable number of persons (although the extent of annoyance or damage inflicted upon individual persons may be unequal)."
Our review of the transcript causes us to conclude that there is reliable, probative and substantial evidence upon which the board could conclude that the director's order would not create a nuisance, as defined in the Administrative Code and as applied by this court in City of Garfield Heights v. Williams (June 14, 1979), No. 78AP-683 to -688, unreported. Garfield Heights,supra, is important to this case because of the distinction that can be made between the opinion in that case and the board's conclusions of law in this case. In Garfield Heights, we observed that the board had considered the economic impracticality of eliminating the nuisance created by the landfill to adjacent property owners. In this case, the board concluded that Boyas' compliance with the permit will provide protection against the creation of a nuisance and that the dust, noise, odors and blowing debris are controllable and will not be injurious to human health, or offensive to the senses, nor will they interfere with the comfortable *27 enjoyment of life and property, if the landfill is operated in accordance with the permit and other applicable laws and regulations. That conclusion is based upon reliable, substantial and probative evidence in the record that conflicted with some of the evidence offered by appellants. The third assignment of error is not well-taken and is overruled.
We observe at the outset of our disposition of appellants' fourth assignment of error that none of the parties has discussed the question of whether the board has the authority to adopt a rule such as Ohio Adm. Code
Ohio Adm. Code
Appellants argue that, because we held in City of GarfieldHeights v. Williams, supra, that the granting of a permit to Rockside, which was operated by Boyas, would constitute the licensing of a nuisance, the director did not have the authority to grant Boyas a permit for the site herein. In City of GarfieldHeights, the board had found that the original Rockside site was attracting birds and vermin and was technically creating a nuisance, but that it did not constitute a nuisance under the terms of R.C.
We first observe that a rule such as that in Ohio Adm. Code
The rule in question would appear to be an example of the antithesis of such reasoning. Both the board and this court, inGarfield Heights, observed that the operator (Boyas) had done everything he could to prevent and eliminate *28
the nuisance that his landfill apparently created. In such a case, it would appear that a mandatory rule saying, in effect, that such an operator can never operate another landfill is an example of the excesses that can be produced by administrative rule making. On the record before us, it cannot be said that the board's order affirming the director's interpretation of Ohio Adm. Code
Appellants' fifth assignment of error has no merit. The parties agree that the director initially issued to Boyas a permit to install and plan approval that would have authorized the deposition of solid waste into Hemlock Creek in violation of Ohio Adm. Code
New plans were then submitted by Boyas, which modified the design and eliminated the solid waste deposition within two hundred feet of Hemlock Creek. That proposal was approved by the director, who issued a new permit to install, a plan approval and a waiver of Ohio Adm. Code
"Res judicata embraces the doctrine of collateral estoppel which holds that when an issue of fact or law is determined by a valid judgment, the determination being essential to that judgment, that determination is conclusive against a party who attempts to relitigate the issue in a subsequent action, whether that subsequent action is with the opposing party in the first action, or is with another person. * * *" Barthany v. Denton (July 9, 1981), Franklin App. No. 81AP-73, unreported.
It is important to emphasize in this case that no evidence was presented to the board and the board made no findings of fact or conclusions of law with respect to the first order which was the basis of appellants' motion to dismiss. While res judicata does apply to administrative hearings, it should be applied with flexibility and only where the administrative proceeding has been of a judicial nature and the parties have had an adequate opportunity to litigate the issues in the proceeding. SeeSuperior's Brand v. Lindley (1980),
In the case before us, the second permit to install was issued upon different facts than was the first permit to install. For that reason and because the parties had presented no evidence to the board when the director moved to dismiss the first appeal, the board did not err when it concluded that res judicata did not apply to the director's second order. In fact, if we were to adopt the reasoning argued by appellants, we would produce the anomalous result of penalizing an applicant for a new permit by holding that the director is bound by a mistake he made in issuing a previous permit to install, in a situation in which he subsequently took the initiative to correct his own error. The fifth assignment of error is overruled.
In support of their sixth assignment of error, appellants argue that the board erred when it did not rule upon the question of whether the director had properly granted waivers pursuant to Ohio Adm. Code
In support of their seventh assignment of error, appellants seem to argue that, if the board finds that the director's order is unlawful or unreasonable in any respect, the board must vacate the order in its entirety and that the board has no jurisdiction to affirm those parts of the order that it finds to be reasonable and lawful and order a modification of that part of the order that it finds to be unreasonable and unlawful. We have resolved that issue in Citizens Committee v. Williams (1977),
Boyas, as cross-appellant, asserts the following four assignments of error in support of his cross-appeal:
"1. The board erred in ruling that the action of the director in granting the permit was unlawful because the plans failed to provide for a leachate collection system.
"2. The board erred in concluding that state and federal permits were required for the discharge of wastes into the waters of the state and the relocation of a drainage ditch.
"3. The board erred in vacating the action of the director in granting the permit because it incorrectly found that the director had not complied with the criteria set forth in OAC §
"4. The board erred in concluding that the evidence established that the proposed landfill will violate all applicable state and federal laws."
The board received a considerable amount of testimony and evidence regarding the leachate collection system proposed by Boyas. The director may not issue a permit to install a solid waste disposal facility unless the information available to the director indicates that the facility will not prevent or interfere with the attainment or maintenance of applicable ambient water quality or air quality standards; that it will not result in a violation of any applicable laws, including the laws governing effluent standards, emission standards, and federal standards of performance; that it will employ the best available technology; and that it will not cause significant degradation of the air or water.
We have reviewed the extensive evidence upon which the board concluded that the proposed landfill will, in fact, prevent or interfere with the attainment or maintenance of ambient water quality standards, as they apply to Hemlock Creek. Boyas refers to evidence that is contrary to the board's conclusion of law, but such evidence is much more general in nature than the evidence upon which the board's finding is made. We conclude that the board's conclusion of law, which is that the plans fail to include a leachate collection system using *30 the best available technology, is supported by substantial, reliable and probative evidence. For example, the characteristics of the Chagrin shale constitute a significant fact in support of Boyas until the more specific observations and technical testimony are reviewed, as these indicate that the shale is permeable and that Boyas had performed permeability tests on the floor and sidewalls of the quarry and had not submitted detail plans regarding the sequency of the various pits he proposed to use.
Furthermore, the assertion of Boyas, that the board's order with respect to the leachate system in this case has the effect of issuing a regulation requiring that all solid waste disposal sites will generate leachate, and therefore they must all have a leachate removal system if plans are to be approved, is not persuasive. The board's conclusions of law are clearly confined to the facts of this case. The first assignment of error of the cross-appeal is overruled.
In support of his second assignment of error, Boyas contends that the board erred by concluding that the director should not have issued the permit until Boyas had obtained a National Pollutant Discharge Elimination System ("NPDES") permit for the discharge of water and wastes from the settling basin and that Boyas should have been required to obtain a permit pursuant to Section 402(a) of the Clean Water Act, Section 1344, Title 33, U.S. Code.
Ohio Adm. Code
The board concluded that the construction and operation of the landfill will be unlawful without the issuance of a permit, with respect to the alteration of the easterly stream of Hemlock Creek into a drainage ditch. The stream will be relocated to provide drainage from the landfill site. Under Section 1344, Title 33, U.S. Code, Boyas would be required to obtain a permit for the dredging of the stream if it is "navigable," as that term is defined in Section 1362(7), Title 33, U.S. Code. The stream was relocated in order to provide for the diversion of surface waters from the landfill site. Navigable waters are defined as "the waters of the United States, including the territorial seas." Under that broad definition, it would appear that the easterly stream, although it is obviously a very small stream, is a navigable water for purposes of the Clean Water Act. We further assume, because neither the director nor Boyas has argued otherwise, that the easterly stream is technically water of the United States, rather than the state of Ohio or some other political subdivision. The board's conclusion of law number eighteen is supported by substantial, reliable and probative evidence and is in accordance with law, and the second branch of Boyas' second assignment of error is overruled.
The third assignment of error of the cross-appeal is overruled. In conclusion of law number thirteen, the board found that the permit does not require compliance with the criteria described in Ohio Adm. Code
Boyas argues that the plans he *31 submitted with his application for a permit indicate that erosion control will be produced by a dam and that the site is under the jurisdiction of the Division of Reclamation of the Department of Natural Resources and is therefore controlled to the extent required by the environmental protection laws. However, the director's order does not appear to be based upon Boyas' compliance with the mining laws of Ohio, and we are unable to find in the record before the director evidence that would contradict the evidence produced in the hearing before the board, which evidence indicates that drainage and the condition of the overburden have not been properly provided for in the permit. The order of the board is therefore supported by reliable, probative and substantial evidence, and the third assignment of error is overruled.
Ohio Adm. Code
For the foregoing reasons, the order of the Environmental Board of Review is affirmed, except to the extent that we have sustained Boyas' second cross-assignment of error.
Judgments affirmed, except to the extent that the secondcross-assignment of error is sustained.
STRAUSBAUGH and MCCORMAC, JJ., concur.