Burrell Industries, Inc. v. Ohio Department of Transportation

No. 2000AP090064 (Ohio Ct. App. June 4, 2001)

ELR Digest

The court affirms a trial court dismissal of a company's claim under R.C. Chapter 3746—the state voluntary action cleanup law—against the state department of transportation for costs allegedly incurred cleaning up contaminated company property. The court first holds that the company failed to undertake any voluntary action necessary to recover cleanup costs under R.C. Chapter 3746. The company did not investigate the property's conditions for purposes of performing a voluntary action. Likewise, the state pointed to record evidence revealing that the company tore down a building on the property not as part of a voluntary cleanup action, but rather to make the property more attractive for resale. The company also incurred no costs relative to environmental assessments conducted at the site. The court then holds that because the company failed to prove it conducted a voluntary action, it cannot claim damages for diminution in property value, future cleanup costs, and litigation costs under R.C. Chapter 3746. Moreover, the company cannot recover for future cleanup and monitoring costs because the company is in no way, at this time, liable for such costs.

The full text of this decision is available from ELR (5 pp., ELR Order No. L-380).

Counsel for Plaintiff
Larry A. Zink
Zink, Zink & Zink Co.
3711 Whipple Ave. NW, Canton OH 44718
(330) 492-2225

Counsel for Defendant
Betty Montgomery, Attorney General
Attorney General's Office
State Office Tower
30 E. Broad St., Cleveland OH 43266
(614) 466-3376

[31 ELR 20851]

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]