347 N.E.2d 541 | Ohio Ct. App. | 1975
This case involves the interrelationship and effect of R. C. Chapter 1509, entitled "Oil and Gas," *198
and R. C. Chapter 6111, entitled "Water Pollution Control." Specifically, we are concerned with the construction and application of R. C.
Ohio Liquid Disposal, an Ohio corporation, collects liquid waste by-products from industries in Ohio and Michigan and transports them to its treatment facility located in Sandusky County, Ohio. At the present time, the liquids are stored in a series of surface lagoons. To alleviate the environmental problems associated with surface storage of liquid waste, Ohio Liquid Disposal conducted a general feasibility study for the disposal of liquids into the Mount Simon geological zone. The Mount Simon sandstone stratum is found at a depth of approximately 2,800 feet in the area in question. It underlies most of the state of Ohio and continues into states bordering Ohio and beyond. The standstone composition contains a brine solution. The water concentration is minimal. The case does not involve contamination of upper level aquifiers which terminate at a level of 605 feet.
On June 6, 1972, Ohio Liquid Disposal made an application to the Ohio division of oil and gas, pursuant to R. C.
Following the mandates of R. C.
After the denial, the following order was entered on the records of the department of natural resources:
"September 19, 1972
Ohio Liquid Disposal, Inc.
504 Liberty Street
Fremont, Ohio 43420
"The following Adjudication Order, effective without prior hearing under Section
"The Chief of the Division of Oil and Gas this day made and entered the following order:
"That the application for a liquid disposal well filed by Ohio Liquid Disposal, Inc., as owner, is hereby denied.
"Further, such application with its various enclosures shall be returned to the applicant forthwith.
"This action is based on the following: * * *"
Ordinarily, an appeal would be taken from the agency which denied the permit, in this case the oil and gas division; however, R. C.
"* * * In an appeal from such an order where the application was denied because of lack of approval by an agency or agencies other than the division of oil and gas, the appeal shall be taken under section
R. C.
O. L. D. filed in the water pollution control board a notice of its intent to appeal to the Court of Common Pleas of Sandusky County, from the order made by G. Lyman Dawe, chief of the division of oil and gas, denying the application of O. L. D. for a permit. Thereafter, in the Court of Common Pleas, G. Lyman Dawe filed a motion to dismiss the appeal based on the claim that he was not a proper party to the appeal. W. P. C. B. filed a motion to dismiss the appeal on the ground that O. L. D. had not complied with R. C.
"No adjudication order of an agency shall be valid unless said agency is specifically authorized by law to make such order.
"No adjudication order shall be valid unless an opportunity for a hearing is afforded in accordance with sections
"The following adjudication orders shall be effective without a hearing:
"(A) Orders revoking a license in cases where an agency is required by statute to revoke a license pursuant to the judgment of a court;
"(B) Order suspending a license where a statute specifically permits the suspension of a license without a hearing;
"(C) Orders or decisions of an authority within an agency if the rules of the agency or the statutes pertaining to such agency specifically give a right of appeal to a higher authority within such agency or to another agency and also give the appellant a right to a hearing on such appeal." *202
After overruling both motions to dismiss, the trial court granted O. L. D.'s motion to admit additional evidence under R. C.
The decision of the court, based upon the evidence produced by O. L. D. in open court, depositions submitted to the court by stipulation of the parties, exhibits, motions, oral arguments and written memoranda of counsel for all parties, was that the Mount Simon geological horizon cannot be considered waters of the state within the meaning of R. C.
Following the trial court's denial of motions by G. Lyman Dawe and the department of natural resources to vacate and a motion for a new trial, an appeal was prosecuted to this court alleging the following assignments of error:
"1. The court of common pleas erred in holding that it had subject matter jurisdiction over an appeal from an order made pursuant to section
"2. The court of common pleas erred in holding that the waters contained in the Mount Simon geological formation into which appellees propose to inject liquid industrial wastes do not fit within the statutory definition of `waters of the state' contained in section
"3. The court of common pleas erred by failing to grant a full hearing and adjudication of all issues at trial."
The agency's first assignment of error challenges the *203
jurisdiction of the Court of Common Pleas to hear the appeal since there was no R. C.
In the instant case, W. P. C. B. did not issue an order and O. L. D. was not a party to the W. P. C. B. proceedings. The W. P. C. B., under the statute, was to give its approval or disapproval to the chief. In effect, it did not make an R. C.
Nevertheless, O. L. D. in this court states that it was entitled to an administrative pre-adjudication hearing, but asserts it had neither notice nor an opportunity to be heard. The only notice O. L. D. received involving the adverse action was the communication of September 19, 1972. O. L. D., in effect, could not have requested a hearing prior to the adjudication because it never received notice that its application was to be ruled on. O. L. D. attempted to arrange an administrative adjudication hearing after notice had been filed of the appeal to the Court of Common Pleas, but no hearing was provided.
The agency admits it did not follow the statute3 but asserts that O. L. D. should have, by mandamus, required it to do that which it was aware by statute it should do but elected not to. We hold that the agency is estopped to assert error based on its own violations. Secondly, it did not *204 afford a hearing, even after it was requested to do so. Thirdly, the agency in the appeal to the Court of Common Pleas was afforded, in effect, a de novo hearing, at which time it could have submitted any evidence to establish the merits of its claims and it failed to do so. Finally, considering the agency's argument on the law in the Court of Common Pleas and in this court, an adjudication hearing would be a vain act as the agency clearly asserts that no approval would ever be forthcoming for the injection of industrial fluids into the Mount Simon stratum. We, therefore, find appellant's first assignment of error not well taken.
Having so ruled on the first assignment of error, the cause, both in the Court of Common Pleas and on appeal to this court, resolves into a determination of the statutory definition of "Waters of the state" contained in R. C.
R. C.
"(H) `Waters of the state' means all streams, lakes, ponds, marshes, watercourses, waterways, wells, springs, irrigation systems, drainage systems, and all other bodies or accumulations of water, surface and underground, natural or artificial, which are situated wholly or partly within, or border upon, this state, or are within its jurisdiction, except those private waters which do not combine or effect a junction with natural surface or underground waters."
This court is limited to the facts as we find them in the record below and we must determine the merits of the assignment of error based on that record. In the determination of whether or not the Mount Simon stratum contained "waters of the state" and if injection of industrial wastes into that zone might possibly contaminate other zones that do contain waters of the state, the agency presented no probative evidence except that adduced by the cross examination of O. L. D.'s witnesses. It was established by a preponderance of the evidence that the industrial fluid injected *205 into the Mount Simon zone cannot escape. The injected fluids are trapped in the Mount Simon zone and cannot contaminate other strata. Lateral movement is minimal.
Judge Robert Wilson, in a well reasoned decision and judgment entry filed in the lower court, applied the rule of ejusdemgeneris (see State v. Aspell [1967],
R. C.
"`Pollution' means the placing of any sewage, industrial waste, or other wastes in any waters of the state."
O. L. D. admits that its industrial liquids are pollutants and, in fact, disposal of industrial pollutants is its business. The agency says that its requested interpretation and definitions would not, in effect, repeal R. C.
The issuance of a permit does not terminate effective state supervision. R. C.
For the foregoing reasons, we therefore, find that assignment of error No. 2 is not well taken. The assertions in the third assignment of error, considering the stipulations made in the trial court and in the record, are not well taken. The judgment of the Court of Common Pleas is affirmed.
Judgment affirmed.
BROWN, P. J., and WILEY, J., concur.
The chief of the division of geological survey shall approve the application unless he determines that the proposed injection would present an unreasonable risk of loss or damage to valuable mineral resources.
The chief of the division of water shall make a report and recommendation to the director of natural resources.
The water pollution control board shall approve the application if it determines that the proposed injection will not cause pollution as defined in division (A) of section
Upon approval by the water pollution control board, the department of health under section
If the chief is unable to obtain the required approvals, he shall issue an order denying the application. In an appeal from such an order where the application was denied because of lack of approval by an agency or agencies other than the division of oil and gas, the appeal shall be taken under section