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State v. Dayton Malleable, Inc.

Citation: 11 ELR 21027
No. No. 6722, (Ohio Ct. App., 04/21/1981) Aff'd

The appellate court rules that the trial court erred in its calculation of the number of days that appellant was in violation of its national pollutant discharge elimination system (NPDES) permit but did not abuse its discretion in its determination of the daily amount of the civil penalty imposed upon appellant pursuant to the Ohio Clean Water Act. The trial court, using a method adopted by the Environmental Protection Agency as a guide in computing the penalties, assessed a total civil penalty of $493,500 against appellant. The appellate court rules that the trial court did not abuse its discretion in considering appellant's defiant attitude towards compliance and its sound financial condition when computing the amount of the penalty. The penalty, though substantial, is neither excessive nor unconstitutional, but instead serves the legitimate goals of compensation and deterrance.In addition, it does not violate the policies of the Federal Water Pollution Control Act or appellant's due process rights. However, the appellate court rules that the trial court incorrectly calculated the number of days of violation by imposing a penalty for days for which there was no evidence that appellant's discharges were in excess of the amount authorized in its NPDES permit. The court therefore remands the case for a redetermination of the days of violation and the amount of the penalty.

Counsel for Appellant
Gerald L. Draper, Marshall L. Lerner, Richard T. Taps
Bricker & Eckler
100 E. Broad St., Columbus OH 43215
(614) 227-2300

Counsel for Appellee
William J. Brown, Attorney General; Martha E. Horvitz, E. Dennis Muchnicki
30 E. Broad St., Columbus OH 43215
(614) 466-3376

Joined by Sherer and McBride, JJ.