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State ex rel. Brown v. Rockside Reclamation, Inc.

Citation: 7 ELR 20073
No. No. 33337, 356 N.E.2d 733/48 Ohio App. 2d 157, (Ohio Ct. App., 12/23/1976)

The court holds that the Ohio Attorney General does not possess independent authority to prosecute alleged violations of solid waste disposal laws. Defendant operates a solid waste disposal facility in Garfield Heights, Ohio, licensed under Ohio Rev. Code Ann. ch. 3734, that eventually discharges into Lake Erie. The attorney general brought this action to abate the discharges as a public nuisance, Ohio Rev. Code Ann. § 3767.13, but, significantly, the action was not brought on request of the Ohio Environmental Protection Agency (EPA). The Ohio EPA has not invoked administrative proceedings against defendant. Plaintiff alleged that defendant's landfill diverted underground watercourses, allowed toxic wastes to pollute state waters without requisite state permits, and violated zoning laws. After trial, the lower court found that the land surrounding defendant's landfill drains stormwater and sewer effluents in open ditches and that no action had been taken by any other public authority to revoke defendant's license, and dismissed the case for lack of jurisdiction.

Affirming the trial court's decision, the court of appeals holds that the attorney general has no independent authority to seek an injunction against a licensed landfill operator who violates the solid waste disposal laws, Ohio Rev. Code Ann. ch. 3734. His complaint can be authorized only by the Ohio EPA director after the latter has determined that the operator is violating the law. Furthermore, Ohio Rev. Code Ann. ch. 3745, which establishes the procedure for review of Ohio EPA orders by the environmental board of review, provides the exclusive method of finding a licensed landfill in violation of the law. No independent action for such violations exists under the general nuisance statutes, Ohio Rev. Code Ann. § 3767.13. Technical environmental matters should be heard at the administrative level prior to judicial consideration. The attorney general, like any other person, retains only the power provided in Ohio Rev. Code Ann. §§ 3734.10, 3745.08, to file an administrative complaint with Ohio EPA regarding alleged violations of the solid waste disposal laws.

The trial court erred, however, in holding that defendant's conduce came within exceptions to the Ohio Water Pollution Control Act, Ohio Rev. Code Ann. ch. 6111. A licensed solid waste facility is not exempt from Ohio Rev. Code Ann. § 6111.04, which prohibits pollution of water without a permit. Moreover, defendant's discharge does not occur through a "sewerage system," which is defined in Ohio Rev. Code Ann. § 6111.01(E) to be a pipe, main, or other sewage collection facility, and thus does not include open ditches.

The trial court's decision is affirmed.

This opinion and its reasoning were affirmed in a short opinion by the Supreme Court of Ohio, 47 Ohio St.2d 76, 351 N.E.2d 448.

The full text of this opinion is available from ELR (15 pp. $2.00, ELR Order No. C-1098.)

Counsel for Plaintiff
William J. Brown, Attorney General
30 E. Broad St.
Columbus OH 43215
(614) 466-3376

Counsel for Defendant
Jerome Ellerin
Robert R. Disbro
Disbro & Ellerin
Leader Bldg., Suite 720
Cleveland OH 44114
(216) 696-4422

Krenzler, Presiding Judge, joined by Jackson & Manos, JJ.

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]