STATE OF OHIO ex rel. MICHAEL DeWINE, ATTORNEY GENERAL, PLAINTIFF-APPELLEE, VS. A & L SALVAGE, et al., DEFENDANTS-APPELLANTS.
CASE NO. 11 CO 39
STATE OF OHIO, COLUMBIANA COUNTY IN THE COURT OF APPEALS SEVENTH DISTRICT
February 19, 2013
2013-Ohio-664
Hon. Joseph J. Vukovich, Hon. Cheryl L. Waite, Hon. Mary DeGenaro
CHARACTER OF PROCEEDINGS: Civil Appeal from Common Pleas Court, Case No. 10CV248. JUDGMENT: Affirmed in part; Reversed in part.
For Plaintiff-Appellee: Attorney Michael DeWine Attorney General Attorney Nicholas Bryan Attorney Robert Moormann Assistant Attorneys General 30 East Broad Street, 25th Floor Columbus, Ohio 43215
For Defendant-Appellant: Attorney John Bosco 31805 Vine Street Willowick, Ohio 44095
{¶1} Defendant-appellant A&L Salvage, LLC appeals from the damages order issued by the Columbiana County Court of Common Pleas. The court ordered A&L Salvage to pay plaintiff-appellee State of Ohio, Ohio Attorney General (referred to as the state), $10,632,679.78 for damages and penalties and also ordered A&L Salvage to transfer and record a 99 year lease for all gas, oil, coal and/or other mineral rights on or under any real property owned by A&L Salvage to the Ohio Environmental Protection Agency (Ohio EPA).
{¶2} A&L Salvage argues that the trial court has no authority to order A&L Salvage to execute a lease for the oil, gas, coal and mineral rights because such relief was not sought in the complaint or in the motion for default judgment. A&L Salvage also attacks the trial court’s civil penalties order by asserting it is excessive and not supported by the record.
{¶3} The state disputes both of these positions. It contends that the motion for default judgment clearly demanded “payments, signing bonus’ and royalties received from” A&L Salvage’s oil, gas and mineral rights. Furthermore, it contends that the record supports the civil penalties award.
{¶4} For the reasons expressed more fully below, the trial court’s judgment is affirmed in part and reversed in part. The trial court’s award of civil penalties is supported by the record and does not constitute an abuse of discretion. Thus, that portion of the judgment is affirmed. However, as to the grant of the lease for oil, gas and mineral rights, this relief was not prayed for in the complaint. Thus,
STATEMENT OF THE FACTS
{¶6} A&L Salvage ceased operating in February 2009. Allegedly A&L Salvage refused to close the site by its own efforts. Thus, the Ohio EPA accessed A&L Salvage’s closure bond and hired a contractor to properly close the site. The bond 3.7 million dollars, but the cost to close the site properly was over 4 million dollars. Thus, the state expended $600,000 to close the facility properly.
{¶7} Due to the alleged violations, the state filed a complaint and amended complaint seeking injunctive relief and civil penalties. The amended complaint contains 21 counts and each count alleges a specific type of violation and the date (at least one date) that the violation occurred on. The state sought civil penalties for the violations alleged in counts 1 through 20; some of the violations had a maximum penalty of $10,000 per day for each violation, while others had a $25,000 per day maximum penalty. The state also requested that the court grant any further relief that is necessary. 03/10/10 Complaint; 09/21/10 Amended Complaint.
{¶8} In March of 2011, the state moved for default judgment. In addition to other requests, the state requested a hearing to determine the appropriate civil penalty to be assessed against A&L Salvage. In the default judgment motion, it also requested all payments, signing bonuses and royalties received from the A&L Salvage landfill that is the subject of this case, which would specifically include all oil, gas, coal and mineral rights royalties.
{¶9} On June 7, 2011 the trial court granted the motion for default. That order indicated that A&L Salvage is to pay any and all oil, gas and mineral royalties to
{¶10} The civil penalty hearing was held on October 25, 2011. A few days prior to that hearing, counsel for A&L Salvage moved to withdraw. In the motion to withdraw, counsel indicated that A&L Salvage “is no longer a going concern and has been out of business for two years.” The motion to withdraw was granted and no one appeared on A&L Salvage’s behalf at the civil penalty hearing. At that hearing, the state presented two witnesses. Following the hearing, the trial court ordered A&L Salvage to pay the state $10,632,679.78. This sum included $594,961.57 for repayment of the money expended to close the landfill; $1,087,418.21 for statutorily owed disposal fees; $300 tax for creating a public nuisance; $50,000 to the Attorney General’s office for attorney fees and extraordinary enforcement costs; and $8.9 million for civil penalties. The trial court also made the following order:
Further, this Court finds that * * * Defendant A&L Salvage must transfer and record a 99 year lease of all gas, oil, coal and/or mineral rights on, at or under any real property owned by Defendant A&L Salvage to the Ohio Environmental Protection Agency. * * * The Ohio Environmental Protection Agency my [sic] release this lease for any reason it so desires.
11/09/11 J.E.
{¶11} A&L Salvage appeals from that order.
First Assignment of Error
{¶12} “The Trial Court erred as matter of law when it granted relief on default judgment in excess of the relief sought in the Amended Complaint and in the Demand for Judgment.”
{¶13} A&L Salvage argues that the trial court did not comply with
{¶14} The state disagrees and asserts that A&L Salvage was on notice that it was seeking mineral right royalties due to the prayer for relief in the motion for default judgment.
{¶15} In addition to disagreeing on the merit arguments, the parties also disagree as to what standard of review is applicable to this assignment of error.
{¶16} A&L Salvage contends that a de novo standard of review governs a review of the damages award. It cites the Ninth Appellate District to support that position. McEnteer v. Moss, 9th Dist. Nos. 22201 and 22220, 2005-Ohio-2679, ¶ 6-7. In that case, the court explained:
A trial court‘s decision to grant a motion for default judgment is reviewed under an abuse of discretion standard. Unlike the initial decision to grant a default judgment, however, the determination of the kind and maximum amount of damages that may be awarded is not committed to the discretion of the trial court, but is subject to the mandates of
Civ.R. 55(C) andCiv.R. 54(C) . * * * Therefore, the question of whether a trial court‘s grant of default judgment complies withCiv.R. 55(C) andCiv.R. 54(C) is one of law, which we review de novo.
Id. quoting, Natl. City Bank v. Shuman, 9th Dist. No. 21484, 2003-Ohio-6116, ¶ 6. See also Dye v. Smith, 189 Ohio App.3d 116, 2010-Ohio-3539, 937 N.E.2d 628 (4th Dist.); Bransky v. Shahrokhi, 8th Dist. No. 84262, 2005-Ohio-97.
{¶17} The state disagrees and contends that an abuse of discretion standard of review applies when reviewing a damages award resulting from a default judgment. It cites to the Second, Third, Tenth and Twelfth Appellate Districts. Henry v. Richardson, 193 Ohio App. 3d 375, 2011-Ohio-2098, 951 N.E.2d 1123, ¶ 8 and fn 1 (12th Dist.); Darke Cty. Veterinary Serv. v. Rucker, 2d Dist. No. 1727, 2008-Ohio-4009, ¶ 9; Columbus Invest. Group, Inc. v. Maynard, 10th Dist. Nos. 02AP-271 and 02AP-418, 2002-Ohio-5968, ¶ 27; North Main Motors, Inc. v. Hayes (May 30, 1997), 3d Dist. No. 14-96-34, 1997 WL 282382. These courts note that the Ohio Supreme Court has not adopted the de novo standard of review and cite to the general proposition that an award of damages is reviewed under an abuse of discretion standard of review.
{¶18} We tend to agree with the reasoning of the Ninth, Fourth and Eighth Appellate Districts. Thus, when determining whether the award of damages resulting from a default judgment complies with
{¶19} As aforementioned, there are two issues raised in this assignment of error. One addresses the civil penalties award and the other addresses the trial court’s grant of a 99 year lease to the Ohio EPA for all oil, gas, coal and mineral rights on the land owned by A&L Salvage. Each is addressed in turn.
1. Civil Penalties
{¶20}
H. Pursuant to
R.C. 3714.13(B) , order each Defendant to pay the State a civil penalty of up to ten thousand dollars ($10,000.00) per day for the violations set forth in Counts One (1) through Ten (10), including any violations occurring after the filing of this Complaint;I. Order Defendant A&L Salvage, LLC, pursuant to
R.C. 3704.06(C) , to pay a civil penalty of up to twenty-five thousand dollars ($25,000) per day of each violation set forth in Counts Eleven (11)through Twenty (20), including each day of violation subsequent to the filing of this action;
09/21/10 Amended Complaint.
{¶21} Counts 1 through 20 claim that A&L Salvage has or is violating various sections of the Ohio Revised Code and/or Ohio Administrative Code. These counts also either contain specific dates that violations occurred on or claim that the violations occurred within a specified date range. Conservatively computing the potential civil penalty from the dates listed in the complaint, it is easy to determine that the state is seeking a civil penalty in excess of $10 million.
{¶22} That said, the state does not specifically state a dollar amount it is seeking in civil penalties. However, that lack of specificity does not violate the pleading requirements.
{¶23} Consequently, given the above, we must conclude that the demand for judgment, which included an indication that the state was seeking more than $25,000 in civil penalties, complied with
2. 99 Year Lease
Issue an order pursuant to
R.C. 3714.11(A) and (B) enjoining Defendant A&L to pay any and all payments, signing bonus’ and royalties received from the A&L Salvage C&DD landfill that is the subject to of this case, including but not limited to oil/gas and mineral royalties, directly to Ohio EPA for deposit into the fund established byR.C. 3734.281 titled “Environmental Remediation Protection Fund.”
Motion for Default Judgment.
{¶25} As can be seen, this prayer for relief does not ask for a 99 year lease, rather it merely seeks royalties.
{¶26} While the state may claim that the prayer for relief in the motion for default judgment is sufficient to comply with
A judgment by default shall not be different in kind from or exceed in amount that prayed for in the demand for judgment. Except as to a party against whom a judgment is entered by default, every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded the relief in the pleadings.
{¶27} The second sentence of this rule states that a party shall be granted relief that it is entitled to even if that party did not demand the relief in the pleadings. However, the introductory phrase of that sentence indicates that that rule does not apply to a party that has a default judgment rendered against them. Therefore, when
{¶28} Our sister districts have explained that the primary purpose of
{¶29} Therefore, based on the above, we find that the request for the mineral right royalties in the motion for default judgment was not sufficient to comply with
{¶30} In addition to the above, there is another problematic aspect of the trial court granting the lease in the Ohio EPA’s favor. At the penalty hearing, the state did ask for a lease for all the oil, gas, coal and mineral rights to the land owned by A&L Salvage. Tr. 40. The reasoning for requesting such action was to ensure that it could collect any monetary damages award, which would include civil penalties, that
{¶31} Furthermore, when the trial court granted the lease, this was potentially done to the detriment of other prior creditors, which would include Wells Fargo, the mortgagor. If the state cannot collect on the judgment and initiates execution of judgment proceedings where it seeks to obtain a lease, Wells Fargo is most likely a necessary party to that proceeding. In that instance, Wells Fargo and any other creditor can argue whether such lease should be granted in the Ohio EPA’s favor.
{¶32} Therefore, for those reasons, the trial court erred and/or abused its discretion when it granted the lease in the state’s favor. The trial court’s decision regarding the granting of the lease is reversed.
3. Resolution of First Assignment of Error
{¶33} In regards to the civil penalties award, this assignment of error lacks merit. However, as to the granting of the 99 year lease, this assignment of error is meritorious.
Second Assignment of Error
{¶34} “The Trial Court erred as a matter of law when it ordered A&L Salvage to transfer and record a 99-year lease of all gas, oil, coal and/or mineral rights to the Ohio Environmental Protection Agency.”
{¶35} Similar to the first assignment of error, this assignment of error addresses the 99 year lease. Having found merit and determined that the trial court’s granting of the lease must be reversed, this assignment of error is rendered moot.
Third Assignment of Error
{¶37} This assignment of error solely focuses on the $8.9 million civil penalties award. The assessment of an appropriate civil penalty lies within the sound discretion of the trial court and will not be reversed upon appeal absent evidence that the trial court abused its discretion in imposing the penalty. State ex rel. Cordray v. Morrow Sanitary Co., 5th Dist. No. 10CA10, 2011-Ohio-2690, ¶ 27; State ex rel. Brown v. Dayton Malleable, Inc., 1 Ohio St.3d 151, 157, 438 N.E.2d 120 (1982), and State v. Tri-State Group, Inc., 7th Dist. No. 03BE61, 2004-Ohio-4441. To ensure that the penalty will be significant enough to affect the violator and deter future violations, the trial court has the discretion to determine the exact amount of the penalty. Morrow Sanitary Co., citing State ex rel. Montgomery v. Maginn, 147 Ohio App.3d 420, 426-427, 770 N.E.2d 1099 (12th Dist.2002). In determining the amount of the penalty, the court should consider evidence relating to defendant‘s recalcitrance, defiance, or indifference to the law; the financial gain that accrued to defendant; the environmental harm that resulted; and the extraordinary costs incurred in enforcement of the law. Morrow Sanitary Co.
{¶38} A&L Salvage argues that the award is not supported by the record.
{¶39} As explained earlier, A&L Salvage was adequately put on notice of the civil penalty the state was seeking. There was a 21 count complaint filed against it; the first 20 counts contain violations that are subject to civil penalties. A&L Salvage chose not to defend that civil penalty and thus, did not appear at the civil penalty hearing. If you only use the dates specified in the complaint and only use one violation for when the state claims that a violation continued periodically through a specified time, there are over 900 days of violations asserted. If A&L Salvage received the maximum penalty on all of those violations, the penalty would easily be over $10 million. Thus, from the complaint alone there is sufficient information to support the $8.9 million civil penalty award.
{¶41} Count one of the amended complaint alleges that A&L Salvage accepted pulverized and/or unrecognizable construction and demolition debris in violation of
{¶42} At the damages hearing, Bruce McCoy, a witness for the state inspected the site, testified that his December 27, 2006 inspection report documented the pulverized debris he saw at the site on that date. Furthermore, from our review of the exhibits admitted at the hearing, A&L Salvage accepted pulverized debris on December 27, 2006; January 12, 2007; February 2, 2007; February 16, 2007; May 3, 2007; May 10, 2007; July 26, 2007; and August 1, 2007. Therefore, evidence indicates that A&L Salvage violated that rule at least eight times. Pursuant to
{¶43} Count two alleges unlawful acceptance and disposal of solid waste in violation of
{¶44} Count three alleges unlawful cliffing of debris in violation of
{¶45}
{¶46} The fourth count of the complaint states that A&L Salvage violated
{¶47} The complaint states that unloading zone violations occurred on June 29, 2006 and on other dates unknown. The violation letters that were introduced as exhibits confirm that a violation occurred on June 29, 2006. In our review of all of the violations letters submitted as exhibits, we found at least four other citations to unloading zone violations. These occurred on January 12, 2007; February 2, 2007; February 18, 2007; and August 8, 2007. Thus, the trial court would not have abused its discretion had it issued a $50,000 civil penalty for unloading zone violations.
{¶48} The fifth count in the amended complaint contains allegations concerning surface water pollution.
{¶49} We can find support for only three of the instances complained of - the September 19, September 26, and December 27, 2006 instances. The April 26, 2007 letter that documents the violations the state observed on April 21, 2007 is missing the second page of the letter. Potentially that letter may document the fourth instance; however, without the remainder of the letter in the record it cannot conclusively be determined that the evidence supports the fourth instance. Thus, for surface water pollution a civil penalty of $30,000 could be issued against A&L Salvage.
{¶50} Count six of the amended complaint deals with weekly cover.
{¶51} In the complaint, the state asserted that violations of weekly cover occurred not only on dates unknown, but also on September 29, 2005 and February 18, 2007. Our review of the record provides evidence of the February 18, 2007 violation, but not the September 29, 2005 violation. Thus, up to a $10,000 civil penalty for weekly cover is supported by the evidence submitted at the hearing.
{¶52} Count seven of the complaint is for failing to follow the Director’s orders regarding the installation of an explosive gas monitor. The complaint alleged that this violation occurred continuously from June 26, 2007 through November 27, 2007.
{¶53}
{¶54} The dates in the complaint June 26, 2007 through November 27, 2007 amount to 155 days. The letters of violation show that the gas monitor was not
{¶55} Count eight of the amended complaint asserts that, in violation of
{¶56}
{¶57} Count nine is for violations of managing and disposing of leachate.
{¶58} The testimony at the civil penalty hearing established that there was a leachate problem from the mid 2000’s through the site being closed by the state in 2010. Tr. 25. The amended complaint only seeks damages for the leachate problem from June 7, 2010 through the present. The exhibits clearly indicate that A&L Salvage was notified of the violations from June 7, 2010 until September 16, 2010. The exhibits even suggest that as late as May 20, 2011 the leachate problem was not being taken care of. Using the conservative dates of June 7, 2010 through the date of the amended complaint, September 21, 2010, that is 107 days of violations. Thus, the civil penalty could be up to $1,070,000.
{¶59} Counts 10, 11 and 12 of the amended complaint contend that A&L Salvage created a nuisance in its operation of the Construction & Demolition Debris landfill. In general, the state contends that these violations began on January 3, 2007 and continued at various times. All three counts discuss the odors emanating from the landfill, specifically the rotten egg smell from the hydrogen sulfide gas that the failure to properly dispose of the waste caused. Count 10 deals with violations which would authorize a civil penalty of up to $10,000 for each day of a violation.
{¶60} Counts 10 and 11 both address odors and appear to overlap each other. Specifically, count 10 states that there is a violation of
{¶61} Considering how the two counts overlap and that count one of the amended complaint specifically dealt with the prohibited acceptance of pulverized debris, counts 10 and 11 could be combined into one count. Since they are dealing more with air pollution, the $25,000 civil penalty for each day of each violation applies.
{¶62} In the exhibits there is a minimum of 10 violations concerning odor nuisances - January 3, 2007, February 1, 2007; February 2, 2007; February 16, 2007, February 18, 2007; February 22, 2007, April 21, 2007; August 20, 2007; October 16, 2007; January 19, 2009. In addition to the letters of violation, the record contains “H2S Jerome Meter field logs” that tracked the hydrogen sulfide gas off the landfill premises, i.e. at nearby residences. It was detected on January 30, 2007; June 11, 2007; November 12, 2009; December 18, 2009; December 22, 2009; January 12, 2010; February 9, 2010; and March 8, 2010. In addition to those readings, the exhibits also indicated the total number of odor complaints the state has received regarding this facility. From 2003 to 2009 there had been 303 complaints. In 2007 alone there were 171 complaints. Furthermore, the state submitted roughly 20 verified complaints it has received regarding the odor and air pollution. Those complaints came from various different people and only a couple of the names filed more than one complaint.
{¶63} Considering that there are 10 violations documented in letters from the Ohio EPA to A&L Salvage, that would be up to $250,000 for a civil penalty for air pollution. That is a conservative number of violations when considering the Jerome Meter readings were not added in. If we add in the 8 Jerome Meter Readings that adds up to $200,000 more in civil penalties.
{¶64} Count 12, in addition to addressing odor issues, also deals with dust emissions. As to the nuisance dust emissions that are referenced in count 12, the
{¶65} Counts 13 through 18 of the amended complaint all deal with asbestos related violations. Count 13 concerns the proper disposal of asbestos. It is alleged that A&L Salvage allowed asbestos material to be broken up.
{¶66} The complaint states that violations of disposal of asbestos began on February 16, 2007 and continued periodically until the facility ceased accepting waste on February 21, 2009. The record (the violation letters) confirms three violations - February 16, 2007, February 22, 2007, and April 11, 2008. Pursuant to
{¶67} In count 14, the state claims that A&L Salvage did not properly cover asbestos.
{¶68} The record confirms the February 18, 2007 violation, but is devoid of any other violation of improper asbestos covering. Pursuant to
{¶69} Count 15 deals with an asbestos disposal cell with fencing.
{¶70} In the amended complaint, it is asserted that A&L Salvage violated the rule and permit on dates unknown and on August 1, 2007. The record confirms the August 1, 2007 violations, but contains no other references to this violation occurring again. Pursuant to
{¶71} Count 16 alleges that A&L Salvage failed to display asbestos warning signs in violation of
{¶72} In the amended complaint, it is asserted that A&L Salvage violated the rule and the permit on dates unknown and on August 1, 2007. The record confirms the August 1, 2007 violations, but is devoid of any reference to other violations of this rule. Pursuant to
{¶73} Count 17 concerns visible dust from asbestos material.
{¶74} In the amended complaint, it is asserted that A&L Salvage violated the rule and permit beginning on September 13, 2007 and continuing various times until the facility stopped accepting waste for disposal on February 21, 2009. The violation letters contain two references to asbestos dust emissions, one on September 13, 2007 and the other on April 18, 2008. Pursuant to
{¶76} In the amended complaint, it is asserted that A&L Salvage violated the permit on dates unknown and on August 28, 2007. The record confirms the August 28, 2007 violation, but is devoid of any reference to other violations of the permit. Pursuant to
{¶77} Count 19 alleges A&L Salvage failed to minimize or eliminate visible dust emissions from general operations. A permit that was issued to A&L Salvage requested it to eliminate any visible dust emissions from roadways and parking areas except for emissions for one minute over a sixty minute period.
{¶78} As previously stated,
{¶79} In count 20, the state asserts that A&L Salvage violated a permit that the state issued to it because it did not promptly remove earth or other material from trucking in a manner to prevent re-suspension of the earth or other material on paved roads. Preventing re-suspension of earth is also listed in
{¶81} Furthermore, in ordering this civil penalty, the court did consider evidence relating to A&L Salvage’s defiance or indifference to the law, the environmental harm that resulted, and the extraordinary costs incurred in enforcement of the law. Morrow Sanitary Co., 5th Dist. No. 10CA10, 2011-Ohio-2690, ¶ 27. At the hearing, Mr. Bryan, one of the witnesses for the state, made the following statement:
After that A&L Salvage was required to close the facility. I believe they had one year in order to close the facility and they subsequently failed to comply and they did not close the facility. At that point the director of Ohio EPA called in the financial insurance instrument for closure of the site. I believe it was first time we had ever had to do that. And the director then - or agency’s technical staff developed statements of work. We sent them to our contractors who then came up with some solutions and some designs on how to close the site.
* * *
Some of the money [to close the site] came from the financial assurance bond that was pulled. It was put into a trust. And some of the money came - there wasn’t enough money to conduct the closure at the site with the amount of money that we had in the financial assurance instrument. * * * Ohio EPA had to pay approximately $600,000 beyond that which was in the financial assurance instruction to close the site.
* * *
Well, when I was preparing for this case I started looking through the file. And I knew that we had had a fairly long noncompliance history here, we’d had a pattern of noncompliance. And when I looked at the file it was actually - I looked at the facts and it was actually worse than I had recalled through that time. And as I look at this, and I have looked at civil penalties for many years, and I look at the fact that we had over 300 complaints from local citizens regarding the odors here, and I look at the fact that we had to to [sic] an administrative action in this case, which then got violated and we had to refer it to the Attorney General’s Office. I look at the fact that there have been underground combustion or fires at the site. We had to conduct surveillance of the site. We had to do extraordinary measures to monitor the site. For instance, we did 24 hour monitoring where we had our employees driving around the perimeter of the site trying to get a handle on the odors, you know, to verify the citizens’ complaints. We had to use very expensive monitoring equipment that our staff had to use to monitor hydrogen sulfide odors. And we had between one and two of those devices in operation for many years at this site. And people would have to come by and download data maybe weekly.
We have had the acceptance and disposal of solid waste at this site. We’ve had acceptance and disposal of pulverized debris at this site. This site represented one of our directors [sic] highest enforcement priorities. In fact, he came to this area at least on two occasions that I know of just to talk to the citizens about the issues here at this site. So it was fairly significant for a director to do that.
When I look at the facts here and I look at what we are trying to accomplish, you know part of the penalty is to punish, and we’re trying to establish a deterrent value as a message for others who may be looking at this case and trying to determine whether to comply or not.
* * *
When I look at this site and I compare it to the other sites, many times we’re able to gain compliance fairly quickly, hopefully we enter into negotiations we could have handle at the administrative level. [sic] Again at this site, it had to go to the Attorney General’s Office. There’s been a lot more put into this particular site and this case than many other cases that I witnesses over the last 20 years. So this has been a significant noncompliant entity and I think it deserves an appropriate penalty.
Tr. 34-35, 36-37, 42-43.
{¶82} It has been explained that, “Civil penalties can be used as a tool to implement a regulatory program.” State ex rel. Brown v. Howard, 3 Ohio App.3d 189, 191, 444 N.E.2d 469 (1981), citing United States ex rel. Marcus v. Hess, 317 U.S. 537, 63 S.Ct. 379, 87 L.Ed. 443 (1943). Substantial penalties are used as a mechanism to deter conduct contrary to the regulatory program. United States v. ITT Continental Baking Co., 420 U.S. 223, 231-232, 95 S.Ct. 926, 43 L.Ed.2d 148 (1975); State ex rel. Brown v. Dayton Malleable, Inc., 1 Ohio St.3d 151, 438 N.E.2d 120 (1982). In order to be an effective deterrent to violations, civil penalties should be large enough to hurt the offender but not cause bankruptcy. Morrow Sanitary Co. at ¶ 26, citing Dayton Malleable.
{¶83} We do not have information about the financial gain accrued by A&L Salvage in its operation of the landfill nor do we have any information on how this civil penalty will affect A&L Salvage. This was information that A&L Salvage could have submitted at the hearing, however, it chose not to attend. It is not up to the court or the state to make A&L Salvage’s arguments for it.
{¶84} Therefore, considering the history of this case, all evidence submitted at the penalty hearing, and the fact that A&L Salvage did not attend the hearing, the trial court did not abuse its discretion in ordering the $8.9 million civil penalty. This assignment of error lacks merit.
{¶85} For the foregoing reasons, the trial court’s decision is affirmed in part and reversed in part. The trial court’s monetary damages award, including the $8.9 million civil penalty award, is upheld. However, the trial court’s order requiring A&L Salvage to execute a lease to the state for all coal, oil, gas and mineral rights on, at, or under any real property owned by A&L Salvage is reversed.
Waite, J., concurs.
DeGenaro, P.J., concurs.