State ex rel. Yost v. Baumann's Recycling Ctr., L.L.C.State ex rel. Yost v. Baumann's Recycling Ctr., L.L.C.
JUDGMENT: AFFIRMED
Appearances:
Dave Yost, Ohio Attorney General, Sarah Bloom Anderson, Lauren N. Chisner, and Amber Wootton Hertlein, Assistant Attorneys General, for appellees.
Dinsmore & Shohl, LLP, Leslie G. Wolfe, David A. Zulandt, and Timothy D. Hoffman, for appellants.
Weyls Peters & Chuparkoff, LLC, Timothy J. Weyls, Jr., for appellants.
PATRICIA ANN BLACKMON, J.:
The trial court erred in issuing the entry and order granting [the Attorney General‘s] motion for preliminary injunction.
{¶ 2} Having reviewed the record and the controlling statutes and caselaw, we affirm.
6. The Facility is neither licensed nor permitted as a construction and demolition debris C&DD disposal facility or solid waste disposal facility. * * *
15. On January 9, 2019, Ohio EPA conducted site visit at the Facility. At the time of the visit, Ohio EPA observed the illegal disposal of C&DD and the open dumping of solid waste, including scrap tires, at the Facility in violation of [
R.C. ]Section 3734.03 and [Ohio Adm. Code ]3745-27-05(C) and3745-400-04(B) .
{¶ 4} The Director‘s orders required defendants to, inter alia, monitor temperature, air, and organic compounds for fire hazards, establish water source and fire responder access, and abate solid waste and C&DD disposal. The Director also advised defendants that it reserved all enforcement rights available at law or in equity.
{¶ 5} Defendants filed an appeal before the Ohio Environmental Review Appeals Commission (“ERAC“), but on January 29, 2019, the Attorney General filed a complaint for injunctive relief and civil penalty against defendants, alleging that it was acting at the written request of the Director, the Cuyahoga County Board of Health, and the Garfield Heights Fire Safety Inspector, instructing it to initiate immediate civil proceedings pursuant to pursuant to
{¶ 6} The matter proceeded to trial on May 21, 2019. Lt. Joseph Warner (“Warner“), fire safety officer of the Fire Prevention Bureau of the Garfield Heights Fire Department testified that he conducted a site inspection in October 2018, after observing a large wood pile. He provided the facility‘s employees with the portions of the fire code that applied to the wood pile, but was unable to set up a time for a follow-up inspection. Several months later, on January 2, 2019, a “track hoe fire” occurred in the middle of the C&DD pile. The fire department experienced difficulties in reaching the fire, and accessing water. The fire was extinguished, and Warner admitted that the materials beneath the track hoe were not burning. However, after the fire Warner observed steam coming from different points within the C&DD pile, indicating that decomposition was occurring. Warner issued a stop-work order for the facility, the first such orders issued by the department in “years.” Warner also emailed the EPA and requested a site visit.
{¶ 7} Warner returned to the site the following week. At that time, the temperature of the C&DD pile was 136 degrees Fahrenheit. He also measured
{¶ 8} Aaron Shear (“Shear“) from the C&DD Unit of the EPA‘s Material and Waste Division testified that he is the technical advisor of the C&DD processing facility rules team and state-registered sanitarian. He is also the lead author of guidance documents for compliance with C&DD regulations. Although C&DD processing facilities are required to complete a one-time registration, C&DD disposal facilities must be licensed each year.
{¶ 9} Shear stated that processors should remove disposal items “on a regular basis” to prevent accumulation, minimize fire risks, and ensure access for
{¶ 10} Shear further testified that there were significant issues at the facility due to the size of the piles, which increased even after the EPA raised concerns. Shear stated that the facility has complied with many of the requirements of the Director‘s orders, including environmental monitoring, removal of the wood pile, and removal of the tires. However, the parties remain in disagreement about removing the C&DD pile. More material had been added to the pile than was being processed.
{¶ 11} Vladimir Cica (“Cica“), chief of the EPA Division of Materials and Waste Management, testified that he met with the owner and toured the facility after the fire. Cica did not want to shut down the facility, and he instructed his staff to “stand down” for time. However, he stated that the materials were not coming off so “a reasonable person can conclude it‘s not being recycled, its being disposed.”
{¶ 12} Cica also testified that there is a third pile, consisting of RSM that is mentioned in the Director‘s orders. The RSM is not included within the Attorney General‘s motion for preliminary injunction, but has created another issue between
{¶ 13} Joshua Adams (“Adams“), a specialist with the EPA Materials and Waste Management and state-registered sanitarian, testified that after the fire, his group conducted temperature readings, volatile organic compounds readings, and carbon monoxide level determinations at the C&DD pile. The temperatures were taken in vents several inches to one foot deep. One vent had a temperature of 152 degrees Fahrenheit, while the high temperature for that day was 4 degrees Fahrenheit. By May, a temperature of 101 degrees Fahrenheit was detected. Overall, the temperature readings indicated that the waste was decomposing, but over the past few months, the temperatures at the C&DD pile have decreased. Volatile organic compounds and carbon monoxide were measurable after the fire but were not detected months later. Adams stated that levels had stabilized because no work was being performed at the C&DD pile, so it had time to “cool down,” whereas processing on the pile would introduce oxygen that would in turn increase the rate of decomposition. Adams testified that the C&DD pile still presents a risk of harm
{¶ 14} Bryon Marusek (“Marusek“) manager of EPA‘s ambient air monitoring operations, testified that the facility installed air monitors at the C&DD pile as ordered by the Director following the fire. Measurements were required for seven days in order to obtain a “background” of upwind and downwind conditions. According to Marusek, this requirement was not completed. The facility was also required to conduct sampling as cleanup progressed in order to check community exposure levels. Only one such sampling was completed. Defendants submitted their own report showing “normal” level of pollutants, but according to Marusek, this report used “cherry picked data” and did not consider the fire risk issue.
{¶ 15} Barry Grisez (“Grisez“), supervisor of the Cuyahoga County Board of Health environmental public service area, testified that the facility is landlocked near neighborhoods. After the fire, the C&DD pile was 85 feet tall and had steam vents. He assisted the Director in determining sample locations for the C&DD pile. His general concerns are “vectors,” such as rodents and mosquitoes, water quality, air monitoring, and fire risks to the residential area to the south of the facility. He was not aware of neighbor complaints, however. If no work is being done, there is a chance that the area can stabilize, but much monitoring must be undertaken while the facility works to reduce the C&DD pile to avoid fire risk.
{¶ 16} Civil and environmental engineer Ralph Hirshberg (“Hirshberg“) of Civil & Environmental Consultants, a C&DD facilities fire prevention, training, and
{¶ 17} BRC‘s Office Manager Deanna Carriero (“Carriero“), testified that the facility is a properly state-registered C&DD processing facility that has certifications from the Recycling Certification Institute. Presently, the C&DD pile contains 50,000 cubic yards of material. She maintained that it has not grown “much” in the four years that she has worked at BRC. All material coming into and out of the facility is tracked in monthly reports. BRC does not accept loads containing less than 90 percent recyclable materials. According to Carriero, the amounts of materials coming out are reduced due to the EPA prohibition on reusing the RSM, which Carriero believed could be reused.
{¶ 19} William Baumann, owner of the facility, testified that he disputed the EPA‘s application of the term “solid waste,” and the materials then stockpiled after that time. He also disputed the EPA‘s regulation of the RSM materials that he believed could be reused. He opined that he has spent $500,000 in complying with EPA orders, and another $500,000 would be needed to remove the C&DD pile.
{¶ 20} On June 13, 2019, the trial court granted the Attorney General‘s motion for a preliminary injunction. The court determined that BRC and BEI operated or maintained an unlicensed C&DD facility, that defendants illegally disposed of or allowed the illegal disposal of C&DD on the property, and that defendants dumped or permitted the dumping of solid waste at the site. The court further concluded that defendants’ illegal disposal of C&DD created “a significant fire hazard to the community” and “a condition that constitutes a public nuisance.”
Injunctive Relief
{¶ 21} In the assigned error, defendants assert that the trial court erroneously awarded injunctive relief without jurisdiction to do so. Defendants further argue that BRC operates a “processing” facility that is exempt from C&DD
{¶ 22} We review a trial court‘s granting of an injunction for an abuse of discretion. Pointe at Gateway Condo. Owner‘s Assn. v. Schmelzer, 8th Dist. Cuyahoga Nos. 98761 and 99130, 2013-Ohio-3615, ¶ 72, citing Perkins v. Quaker City, 165 Ohio St. 120, 125, 133 N.E.2d 595 (1956). See also Corbett v. Ohio Bldg. Auth., 86 Ohio App.3d 44, 49, 619 N.E.2d 1145 (10th Dist.1993).
{¶ 23} In an action for a temporary or permanent injunction, the plaintiff must prove his or her case by clear and convincing evidence. Pointe at Gateway Condo. Owner‘s Assn. at ¶ 73, citing Franklin Cty. Dist. Bd. of Health v. Paxon, 152 Ohio App.3d 193, 2003-Ohio-1331, 787 N.E.2d 59, ¶ 25 (10th Dist.). Clear and convincing is that measure or degree of proof that will produce in the mind of the trier of facts a firm belief or conviction as to the allegations sought to be established. Id., citing Cross v. Ledford, 161 Ohio St. 469, 477, 120 N.E.2d 118 (1954). However, in New Holland v. Murphy, 4th Dist. Pickaway No. 18CA6, 2019-Ohio-2423, the court held that a plaintiff may obtain an injunction under
Trial Court‘s Jurisdiction
{¶ 25} In Rocky Ridge Development, LLC v. Winters, 151 Ohio St.3d 39, 2017-Ohio-7678, 85 N.E.2d 717, the Ohio Supreme Court recognized that under
(A) * * * As used in this section, “action” or “act” includes the adoption, modification, or repeal of a rule or standard, the issuance, modification, or revocation of any lawful order other than an emergency order, and the issuance, denial, modification, or revocation of a license, permit, lease, variance, or certificate, or the approval or disapproval of plans and specifications pursuant to law or rules adopted thereunder.
(B) Any person who was a party to a proceeding before the director of environmental protection may participate in an appeal to the environmental review appeals commission for an order vacating or modifying the action of the director or a local board of health, or ordering the director or board of health to perform an act. The environmental review appeals commission has exclusive original jurisdiction over any matter that may, under this section, be brought before it.
{¶ 26}
{¶ 27} However, the Ohio Supreme Court recognized that the Revised Code expressly preserves the traditional authority of the common pleas courts to hear nuisance suits; political subdivisions may seek injunctive relief against licensed waste facilities “in the narrow areas of nuisance and pollution prevention and
{¶ 28} Further,
(A) The attorney general, the prosecuting attorney of the county, or the city director of law where a violation has occurred, is occurring, or may occur, upon the request of the respective board of health of the health district, the legislative authority of the political subdivision in which a violation has occurred, is occurring, or may occur, or the director of environmental protection, shall prosecute to termination or bring an action for injunction against any person who has violated, is violating, or is threatening to violate any section of this chapter, applicable rules adopted under it, or terms or conditions of a permit, license, or order issued under it. The court of common pleas in which an action for injunction is filed has the jurisdiction to and shall grant preliminary and permanent injunctive relief upon a showing that the person against whom the action is brought has violated, is violating, or is threatening to violate any section of this chapter, applicable rules adopted under it, or terms or conditions of a permit, license, or order issued under it. The court shall give precedence to such an action over all other cases.
* * *
(D) This chapter does not abridge rights of action or remedies in equity, under common law, or as provided by statute or prevent the state or any municipal corporation or person in the exercise of their rights in equity, under common law, or as provided by statute to suppress nuisances or to abate or prevent pollution.
(Emphasis added.) See also
{¶ 29} In this matter, the Attorney General‘s complaint for a preliminary injunction did not involve the “adoption, modification, or repeal of a rule or standard, the issuance, modification, or revocation of any lawful order of the
{¶ 30} In accordance with the foregoing, this portion of the assigned error lacks merit.
C&DD Processing Facility and EPA Authority
{¶ 31} In the next two portions of the argument, defendants maintain that although the EPA has authority to regulate C&DD “disposal,” the EPA has no authority over its facility because BRC operates a “recycling” and “processing”
{¶ 32} The Attorney General also disputes the contention that enforcement regarding illegal “disposing” of C&DD is precluded simply because some “processing” is also occurring at the facility. The Attorney General acknowledges, as defendants claim, that Ohio does not have a licensing program for C&DD “processing,” which is not directly regulated by the EPA. However, the issue is whether the facility is solely engaged in processing.
{¶ 33}
a site, location, tract of land, installation, or building that is used or intended to be used for the purpose of processing, transferring, or recycling construction and demolition debris that was generated off the premises of the facility. As used in this paragraph, “transferring” means the receipt or storage of construction and demolition debris, or the movement of construction and demolition debris from vehicles or containers to a working surface and into other vehicles or containers, for purposes of transporting the debris to a solid waste landfill facility, a construction and demolition debris facility, or a processing facility. As used in this paragraph, “processing” means the receipt or storage of construction and demolition debris, or the movement of construction and demolition debris from vehicles or containers to a working surface, for purposes of separating the debris into individual types of materials
as a commodity for use in a beneficial manner that does not constitute disposal. “Processing facility” does not include a facility that is licensed under section 3734.05 of the Revised Code as a solid waste transfer facility or solid waste facility.
{¶ 34} Permitted “storage” of C&DD is the “holding of debris for a temporary period in such a manner that it remains retrievable and substantially unchanged and, at the end of the period, is disposed, reused, or recycled in a beneficial manner.”
{¶ 35} Conversely,
the discharge, deposit, injection, dumping, spilling, leaking, emitting, or placing of any construction and demolition debris into or on any land or ground or surface water or into the air, except if the disposition or placement constitutes storage, reuse, or recycling in a beneficial manner.
{¶ 36} C&DD must be disposed of in a licensed C&DD facility, solid waste facility, certain types of open burning, or other approved methods that do not constitute a nuisance, health hazard, or pollution. See
{¶ 37} Consistent with this distinction between “processing” and “disposal,”
{¶ 39} Turning next to the question of whether the trial court correctly found that BRC was illegally engaging in “disposal” and not simply “processing” C&DD, we recognize that in evaluating the trial court‘s findings of fact, we consider whether they are supported by some competent, credible evidence in the transcript. See State ex rel. Celebrezze v. R & D Chem. Co., 5th Dist. Morrow No. CA-792, 1995 Ohio App. LEXIS 3634 (Aug.9, 1995), citing Myers v. Garson, 66 Ohio St.3d 610, 614, 614 N.E.2d 742 (1993); Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984).
{¶ 40} Here, the evidence of record indicated that the disputed pile of C&DD materials had not decreased in size since 2011. The judge properly found that this was not temporary. Further, the evidence demonstrated that the material was producing steam vents from active decomposition, so the court could properly conclude that the material was not “substantially unchanged” or “retrievable.”
Public Nuisance
{¶ 41} Defendants maintain that the trial court abused its discretion in granting the injunction and relied upon clearly erroneous facts in order to conclude that there was an immediate and substantial threat of fire from the facility. Defendants maintain that the temperatures in pile 2 had “stabilized in the range of 80 to 100 degrees” Fahrenheit, carbon monoxide was no longer detected, and it stands to suffer great harm from remediation costs (estimated to be around $500,000) and it lost income from being unable to process C&DD.
{¶ 42} In general, courts will consider the following factors in deciding whether to grant injunctive relief: (1) the likelihood or probability of a plaintiff‘s success on the merits; (2) whether the issuance of the injunction will prevent irreparable harm to the plaintiff; (3) what injury to others will be caused by the granting of the injunction; and (4) whether the public interest will be served by the granting of the injunction. Corbett, 86 Ohio App.3d at 49. The plaintiff must prove his or her case by clear and convincing evidence. Pointe at Gateway Condo. Owner‘s Assn., 2013-Ohio-3615, at ¶ 73.
{¶ 43} In this matter, defendants’ expert, Ralph Hirshberg, testified that there was insufficient data to conclude that there is an imminent fire risk at the facility. However, the evidence presented by the Attorney General demonstrated
{¶ 44} Although BRC cited its costs and lost income, it is not a “third party,” and there was no evidence that third parties will be harmed. To the contrary, neighboring landowners will benefit from increased safety and elimination of a nuisance. Moreover, the Attorney General was cognizant of the expenses, so it did not seek abatement of a third pile of material, the RSM, and offered to work with defendants on the lawful disposition of the C&DD.
{¶ 45} Finally, insofar as defendants argue that “[a]t no time since [BRC] was formed have either BEI or [BPL] had any role in the operation of the Facility” and that “BEI‘s role is merely that of a customer that brings C&DD to the Facility for recycling,” we note that this is not specifically set forth as an assignment of error herein. In any event, the Director found, and the trial court agreed that the defendants were all “wrapped” together. All defendants were named in the action and their specific roles were set forth in describing how they contributed to the creation of the public nuisance. There is competent, credible evidence in the record to support the judgment.
{¶ 47} The assigned error is without merit.
{¶ 48} Judgment is affirmed.
It is ordered that appellees recover from appellants costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
PATRICIA ANN BLACKMON, JUDGE
ANITA LASTER MAYS, J., CONCURS;
SEAN C. GALLAGHER, P.J., CONCURS WITH SEPARATE OPINION
SEAN C. GALLAGHER, P.J., CONCURRING:
{¶ 49} I concur but write separately to discuss some overriding concerns regarding the nature of this case. The Attorney General claims that the preliminary injunction was based on BRC‘s violations of Ohio‘s C&DD (construction and demolition debris) rules for the illegal disposal of “Pile 2,” located on property where BRC operates a processing facility and not a disposal facility. In order to regulate BRC‘s conduct, Pile 2 must be deemed to constitute the disposal of materials and
{¶ 50} Instead of promulgating rules and regulations under
{¶ 51}
{¶ 52} It seems that an answer could have been easily provided to BRC before this litigation ensued had
{¶ 54} In general, a “‘case is moot when the issues presented are no longer “live” or the parties lack a legally cognizable interest in the outcome.‘” State ex rel. Gaylor, Inc. v. Goodenow, 125 Ohio St.3d 407, 2010-Ohio-1844, 928 N.E.2d 728, ¶ 10, quoting Powell v. McCormack, 395 U.S. 486, 496, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969). If an event that makes it impossible to grant the requested relief occurs, the case becomes moot and should be dismissed. State ex rel. Ohio Democratic Party v. LaRose, Slip Opinion No. 2020-Ohio-1253, ¶ 5. Further, appellate courts are not constrained to resolve the mootness issue from the appellate record alone. It is well settled that an “‘event that causes a case to be moot may be proved by extrinsic evidence outside the record.‘” State ex rel. Nelson v. Russo, 89 Ohio St.3d 227, 228, 2000-Ohio-141, 729 N.E.2d 1181, quoting Pewitt v. Lorain Corr. Inst., 64 Ohio St.3d 470, 472, 1992-Ohio-91, 597 N.E.2d 92; Miner v. Witt, 82 Ohio St. 237, 238, 92 N.E. 21 (1910); State v. Hagwood, 8th Dist. Cuyahoga No. 83701, 2004-Ohio-5967, ¶ 5; see also Wizards of Plastic Recycling, L.L.C. v. R & M Plastic Recycling, L.L.C., 9th Dist. Summit No. 25951, 2012-Ohio-3672, ¶ 4, citing Miner & Mills v. Green, 159 U.S. 651, 653, 16 S.Ct. 132, 40 L.Ed. 293 (1895).
{¶ 55} Because the preliminary injunction ordered the removal of Pile 2 with attached conditions to secure that removal, there is arguably nothing more to be resolved in this interlocutory appeal seeking to vacate that order. Unfortunately, this issue was not brought to our attention, and because BRC was not offered the opportunity to address the issue of mootness, I believe it prudent to address the issues raised in the merit briefing. On those issues, I concur with the majority opinion.