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State ex rel. Brown v. Dayton Malleable, Inc.

Citation: 12 ELR 21146
No. No. 80-1134, 438 N.E.2d 120/1 Ohio St. 3d 151, (Ohio, 08/04/1982) Aff'd

The Ohio Supreme Court holds that a schedule of compliance is an enforceable condition of a national pollutant discharge elimination system (NPDES) permit and upholds a civil penalty for violation of the permit based on consideration of environmental harm, economic benefit, defendant's recalcitrance, and its ability to pay, as well as mitigating factors such as unavoidable compliance delays. The court first rules that the lower court erroneously held that defendant could not be penalized for missing the interim dealines in the compliance schedule in its state-issued NPDES permit. The plain meaning of OHIO REV. CODE ANN. § 611.03(J) is that schedules of compliance are to be considered permit terms, a conclusion that is buttressed by the Ohio Environmental Protection Agency's interpretation of the statute, to which the court must show deference, and by the language of the Federal Water Pollution Control Act. The court then rules that the trial court did not err in admitting evidence of defendant's financial condition. The evidence was admissible either to show that the penalty would not result in bankruptcy or that it was large enough to deter future violations and the record demonstrates that the trial court used it only for these purposes.

Three justices issue a separate opinion, concurring in part and dissenting in part. They would have held that a penalty of $493,500, over $450,000 of which was attributable to defendant's questionable recalcitrance, was punitive, not remedial, and therefore not authorized by the civil penalty provisions of the Ohio or federal water pollution control statutes.

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

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

Bricker & Eckler, Gerald L. Draper, Marshall L. Lerner and Richard T. Taps, Columbus, for appellee and appellant.

William J. Brown, Atty. Gen., Martha E. Horvitz and E. Dennis Muchnicki, Asst. Attys. Gen., for appellant and appellee.

FRANK D. CELEBREZZE, C.J., WILLIAM B. BROWN and SWEENEY, JJ., concur.

HOLMES, CLIFFORD F. BROWN and KRUPANSKY, JJ., concur in part and dissent in part.