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State ex rel. Celebrezze v. Dearing

Citation: 17 ELR 20771
No. Nos. 51209 et al., (Ohio Ct. App., 11/13/1986)

The court holds that a hazardous waste treatment facility is not entitled to be exempted from Ohio's permitting requirements, and upholds the assessment of civil penalties against the operators of the facility. The court first holds that the facility is not entitled to an exemption from Ohio's permitting requirements under a grandfather clause applying to operations commenced before a certain date. The court holds that the trial court's finding with regard to the commencement of operations at defendants' facility was not against the manifest weight of the evidence. The testing of tanks and other preparatory activities are not the equivalent of treatment, storage, or disposal for purposes of determining when the facility began "operating." The court next holds that the lower court had subject matter jurisdiction over the controversy. Although a conflict exists between the applicable state law and relevant administrative regulations, this conflict does not deprive the trial court of subject matter jurisdiction. The court then holds that the assessment of civil penalties against defendants was proper. The lower court did not misapply the criteria set forth in the federal Environmental Protection Agency's civil penalty policy. Defendants' contention that penalties should not have been assessed for the period between the state's discovery of the operation and the date of the trial court decision is without merit. First, defendants continued to operate the facility in violation of the law during this time. Second, "actively litigating" a claimed entitlement to government authorization of conduct that requires approval does not preclude the imposition of fines for proceeding without such authorization. Next, the court rejects defendants' arguments that the determination of the economic benefit derived from noncompliance and the finding of and assessment of penalties for recalcitrance were incorrect. The court also concurs with the trial court's conclusion that the disregard of applicable state law posed a serious risk of harm, and that the Ohio Environmental Protection Agency incurred extraordinary costs in enforcing the law. Finally, after holding that it was not error to fine defendants individually, the court upholds the penalty imposed on the defendant's attorney, who served as legal advisor to the company that operated the facility. By failing to deny his alleged involvement in the company through a responsive pleading to the state's complaint, the attorney admitted his involvement.

Counsel for Plaintiff-Appellee
Dale T. Vitale, Martyn T. Brodnik, Stephen P. Samuels, Ass't Attorneys General
30 E. Broad St., Columbus OH 43215
(614) 466-3376

Counsel for Defendant-Appellant
Pat Caticchio, Henry Roth, William Bobulsky
1612 E. Prospect Rd., Ashtabula OH 44004
(216) 998-4214