Case Information
*1
[Cite as
Wallace v. Nally
,
STATE OF OHIO, COLUMBIANA COUNTY IN THE COURT OF APPEALS SEVENTH DISTRICT
DENNIS SCOTT WALLACE )
)
AND )
)
DONALD L. VOS, )
)
APPELLANTS,
)
CASE NO.
V. ) OPINION
) SCOTT NALLY, DIRECTOR OF ) AND ENVIRONMENTAL PROTECTION )
) JUDGMENT ENTRY AND )
)
TERVITA, LLC., )
)
APPELLEES. ) CHARACTER OF PROCEEDINGS: Administrative Appeal from
Environmental Review Appeals Commission
Case Nos. ERAC 14-156806, ERAC 14- 416807
JUDGMENT: Dismissed
JUDGES:
Hon. Gene Donofrio
Hon. Cheryl L. Waite
Hon. Mary DeGenaro
Dated: January 28, 2015 APPEARANCES:
For Appellee Attorney Leslie G. Wolfe Tervita, LLC Walter/Haverfield LLP
1301 E. 9 th Street, Suite 3500 Cleveland, Ohio 44144 For Appellee Attorney George Horvath Scott Nally Assistant Attorney General
Environmental Enforcement Section 30 East Broad Street, 25 th Floor Columbus, Ohio 43215 For Appellants Donald L. Vos, Pro-se
39916 Hazel Run Road
Hammondsville, Ohio 43930
*3
[Cite as
Wallace v. Nally
,
PER CURIAM
{¶1} Appellants Donald L. Vos and Dennis Scott Wallace appeal to this court after the Environmental Review Appeals Commission (ERAC) dismissed their appeal from the decision of the Director of the Ohio Environmental Protection Agency (EPA) renewing an annual permit for the Columbiana County landfill facility owned by appellee Tervita, L.L.C. Pursuant to R.C. 3745.06 and Ohio Supreme Court precedent, this court only has jurisdiction to hear an ERAC appeal arising from a verified complaint alleging a violation under R.C. 3745.08. This court thus lacks jurisdiction to hear an ERAC appeal involving the mere grant of a permit. Rather, such appeal could only be filed in the Tenth District Court of Appeals. In accordance, this appeal is dismissed.
STATEMENT OF THE CASE Appellee Tervita’s Penn-Ohio Landfill Facility is located in Negley, Ohio.
The landfill has not accepted debris since early 2010 but maintains its operating license (or permit) with the Ohio Environmental Protection Agency. In September of 2013, Tervita applied for renewal of its annual license, submitting an annual groundwater quality report, laboratory results, and trend plots. An inspection of the facility was thereafter conducted by the Ohio EPA. On December 24, 2013, the Ohio EPA Director issued to Tervita its
2014 Construction and Demolition Debris Facility License. The permit contained special conditions that appear to have first been added in a prior permit, dealing with leachate, drainage, subsurface investigations, and groundwater monitoring. On January 21, 2014, appellants filed in the Environmental Review Appeals Commission an appeal of the Director’s decision to grant the 2014 license to Tervita, resulting in ERAC Numbers 14-156806 and 14-416807. (The Commission assigned a case number to each appellant, but the case was thereafter considered to be docketed as a single action.) Appellants’ notice of appeal (as amended) before the Commission stated in pertinent part that the Director should not have granted the 2014 permit because: there was still an appeal pending from the 2013 permit; [1] the facility accepted “Blood and Body Parts from New York 911;” and, three streams around the facility are class three streams. They also asserted that the Director acted in collusion with Tervita by granting the 2014 permit and asked that the facility be converted to a cemetery (for the World Trade Center victims).
{¶5} Tervita served each appellant with requests for admissions on April 11, 2014. No responses were provided by appellants within twenty-eight days (as required by rule) or at any time thereafter. On June 23, 2014, Tervita filed a motion for summary judgment stating that appellants had no evidence to support their case. For instance, Tervita pointed out that appellants’ World Trade Center debris theory was not pertinent to the subject matter of the appeal. It was also urged that, pursuant to O.A.C. 3746-6-05, appellants were deemed to have admitted that Tervita complied with the law and the license due their failure to respond to Tervita’s request for admissions on the facility’s compliance. Appellants’ June 27 response merely stated that they were entitled to
discovery in order to prove the theory that blood and body parts entered the facility. And, they claimed that an assistant attorney general instigated their theory by asking questions about it at a prior hearing. On July 23, 2014, the Commission granted summary judgment against
appellants due to their failure to respond to requests for admissions, the lack of explanation as to why they failed to respond, and the continued failure to respond. Thus, appellants’ challenge to the Director’s issuance of Tervita’s 2014 license failed.
August 18, 2014, resulting in the present appeal, 7th Dist. No.
appeal Wallace v. Nally , 7th Dist. No.
decision dismissing Wallace’s three verified complaints, which alleged various violations by the facility due to claimed discharges into waterways. That action thus arose by way of R.C. 3745.08, which allows an officer of an agency of the state or any person who is or will be adversely affected by a violation to file a verified complaint alleging that another has or will violate a law, rule, standard, or license condition. R.C. 3745.06(A). See also R.C. 3745.08(B) (Upon receipt of a verified complaint, the Director shall cause a prompt investigation to be conducted such as is reasonably necessary to determine whether a violation, as alleged, has occurred, is occurring, or will occur). An interlocutory appeal of a discovery order had been filed from ERAC
Number 13-156747 as well. In dismissing that appeal for lack of a final order, this
court indicated that the appeal was filed in the correct court, just at an improper time
in the case as a final order had not yet been entered. See Wallace v. Nally , 7th Dist.
No.
156806 and 14-416807 poses a different scenario. This case did not arise from the
filing of a verified complaint as did ERAC Number 13-156747 (which is on appeal in
7th Dist. No.
JURISDICTION LIES ONLY IN THE TENTH DISTRICT “Any party adversely affected by an order of the environmental review
appeals commission may appeal to the court of appeals of Franklin county, or, if the
appeal arises from an alleged violation of a law or regulation, to the court of appeals
of the district in which the violation was alleged to have occurred.” R.C. 3745.06. It
has been explained that this statutory jurisdictional provision has two segments: the
first segment sets forth the general rule that ERAC appeals must be filed in the
Franklin County Court of Appeals; and the second segment provides the exception if
the “order is based upon an ‘alleged violation’ of a law or regulation.” Kimble Clay &
Limestone v. Williams ,
Director denied the appellant’s application for a permit to operate a facility in
Tuscarawas County. The Director refused a request for a hearing on the denial, and
the appellant appealed to the Environmental Board of Review (nka Environmental
Review Appeals Commission), which body then affirmed the Director’s decision.
“[The] appellant appealed from the EBR's action affirming the Director's denial of the
requested license or permit to the Court of Appeals for Tuscarawas County.” Kimble
Clay & Limestone v. Williams ,
appeal should have been filed in the Tenth rather than the Fifth District because the appeal arose from a permit denial proceeding and not from an enforcement proceeding. Id. at 96. The Fifth District agreed that the appeal was filed in the wrong appellate court and filed a judgment entry transferring the case to the Tenth District. Id. However, the Tenth District dismissed the transferred case on the
grounds that the notice of appeal had not been filed in the Tenth District in a timely manner as required by R.C. 3745.06. That is, the Tenth District found that its jurisdiction had not been invoked as the notice of appeal was not filed with the correct court within the timelines of the statute and rejected any argument that the transfer from the Fifth District could accomplish the statutory requirement that the notice of appeal be timely filed with the court of appeals for Franklin County. Kimble Clay & Limestone v. Williams , 10th Dist. No. 78AP-320 (Aug. 29, 1978). On review, the Ohio Supreme Court explained:
The primary issue involved in this cause concerns interpretation of R.C. 3745.06 and 3745.08 as to whether appellant's appeal from the EBR's action should have been filed in a timely and proper statutory manner with the Court of Appeals for Franklin County instead of with the Tuscarawas County appellate court. Such determination depends on whether the appellee's action in denying appellant's initial request to operate a rock crusher constituted a denial of a permit or license, or whether such denial encompassed an appeal arising from an alleged violation of a law or regulation.
R.C. 3745.06 requires appeals from orders of the Environmental Board of Review to be brought before the Court of Appeals for Franklin County, while allowing appeals from verified complaint proceedings to be brought in the Court of Appeals for the district in which the violation is alleged to have occurred .
(Emphasis added.) Kimble Clay & Limestone,
of an “alleged violation” as required for invocation of the exception to the Franklin County appellate court's jurisdiction. The Court concluded that in order to invoke a local appellate court’s jurisdiction under the second segment of R.C. 3745.06, the proceeding must have originated from an enforcement proceeding initiated by a verified complaint filed under R.C. 3745.08 . Id. at 97-98 “R.C. 3745.08 supplements the above-cited second segment of the first
provision in R.C. 3745.06 in explaining what is meant by the term ‘violation’ or ‘alleged violation’ as used in R.C. 3745.06 to invoke a local appellate court's jurisdiction.” Id. at 98. The Director’s determination dealing with “compliance standards prerequisite to the granting of a permit or license” is distinct from enforcement proceedings emanating from a verified complaint’s allegation of a violation. Id. (a lack of compliance with standards for issuing a permit is different than a “violation” which anticipates the filing of a verified complaint). The Supreme Court rejected the appellant's contention that the timely
filing of the notice of appeal with the administrative board was sufficient and stated that the statute provided a mandatory thirty-day time limit within which to file notice of appeal, not only with the board but also with the Court of Appeals for Franklin County . Id. at 99. “Where a statute confers the right of appeal, adherence to the conditions thereby imposed is essential to the enjoyment of the rights conferred. The party who seeks to exercise this right must comply with whatever terms the statutes of the state impose upon him as conditions to its enjoyment.” Id. (“All statutory requirements must be met which create the right of appeal”). The Court thus affirmed the Tenth District’s dismissal of the appeal (that had been transferred from the Fifth District where the appeal would have been timely filed if permitted to be filed in that court). Id. The appeal before us originated from ERAC Numbers 14-156806 and
14-416807, which represented appellants’ appeal from the renewal of Tervita’s
annual license. This appeal did not originate from enforcement proceedings initiated
by a verified complaint under R.C. 3745.08. Compare Wallace v. Nally , 7th Dist. No.
an order of the Environmental Review Appeals Commission because R.C. 3745.06 requires such appeal to be brought before the Court of Appeals for Franklin County unless it is an appeal “from verified complaint proceedings” initiated under R.C. 3745.08, which latter appeal would be permitted to “be brought in the Court of Appeals for the district in which the violation is alleged to have occurred.” See id. at 96. As this case is not an appeal from a verified complaint proceeding but is an appeal from the renewal of an annual permit, this court lacks jurisdiction over the appeal. Rather, any appeal would have been required to have been filed in Franklin County in a timely fashion. Accordingly, this appeal is dismissed due to appellants’ inability to invoke this court’s jurisdiction under R.C. 3745.06. Costs taxed against appellants.
Donofrio, P.J. concurs.
Waite, J. concurs.
DeGenaro, J. concurs.
Notes
[1] Appellants claimed that the 2013 permit was on appeal in ERAC Number 13-156747. However, that case number represents the appeal of the Director’s decision on the verified complaints filed by appellant Wallace, and it is not an appeal from the granting of a permit.
[2] The pertinent statutory language at the time Kimble was decided, which is the same as the pertinent language of the current statute, provided: “Any party adversely affected by an order of the environmental board of review may appeal to the court of appeals of Franklin county, or, if the appeal arises from an alleged violation of a law or regulation, to the court of appeals of the district in which the violation was alleged to have occurred.” Former R.C. 3745.06.