Wallace v. Nally

[Cite as Wallace v. Nally, 2015-Ohio-497.]
STATE OF OHIO, COLUMBIANA COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
DENNIS SCOTT WALLACE )
)
AND )
)
DONALD L. VOS, )
)
APPELLANTS, ) CASE NO. 14 CO 35
)
V. ) OPINION
)
SCOTT NALLY, DIRECTOR OF ) AND
ENVIRONMENTAL PROTECTION )
) JUDGMENT ENTRY
AND )
)
TERVITA, LLC., )
)
APPELLEES. )
CHARACTER OF PROCEEDINGS: Administrative Appeal from
Environmental Review Appeals
Commission
Case Nos. ERAC 14-156806, ERAC 14-
416807
JUDGMENT: Dismissed
JUDGES:
Hon. Gene Donofrio
Hon. Cheryl L. Waite
Hon. Mary DeGenaro
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Dated: January 28, 2015
APPEARANCES:
For Appellee Attorney Leslie G. Wolfe
Tervita, LLC Walter/Haverfield LLP
1301 E. 9th Street, Suite 3500
Cleveland, Ohio 44144
For Appellee Attorney George Horvath
Scott Nally Assistant Attorney General
Environmental Enforcement Section
30 East Broad Street, 25th Floor
Columbus, Ohio 43215
For Appellants Donald L. Vos, Pro-se
39916 Hazel Run Road
Hammondsville, Ohio 43930
[Cite as Wallace v. Nally, 2015-Ohio-497.]
PER CURIAM
{¶1} Appellants Donald L. Vos and Dennis Scott Wallace appeal to this court
after the Environmental Review Appeals Commission (ERAC) dismissed their appeal
from the decision of the Director of the Ohio Environmental Protection Agency (EPA)
renewing an annual permit for the Columbiana County landfill facility owned by
appellee Tervita, L.L.C. Pursuant to R.C. 3745.06 and Ohio Supreme Court
precedent, this court only has jurisdiction to hear an ERAC appeal arising from a
verified complaint alleging a violation under R.C. 3745.08. This court thus lacks
jurisdiction to hear an ERAC appeal involving the mere grant of a permit. Rather,
such appeal could only be filed in the Tenth District Court of Appeals. In accordance,
this appeal is dismissed.
STATEMENT OF THE CASE
{¶2} Appellee Tervita’s Penn-Ohio Landfill Facility is located in Negley, Ohio.
The landfill has not accepted debris since early 2010 but maintains its operating
license (or permit) with the Ohio Environmental Protection Agency. In September of
2013, Tervita applied for renewal of its annual license, submitting an annual
groundwater quality report, laboratory results, and trend plots. An inspection of the
facility was thereafter conducted by the Ohio EPA.
{¶3} On December 24, 2013, the Ohio EPA Director issued to Tervita its
2014 Construction and Demolition Debris Facility License. The permit contained
special conditions that appear to have first been added in a prior permit, dealing with
leachate, drainage, subsurface investigations, and groundwater monitoring.
{¶4} On January 21, 2014, appellants filed in the Environmental Review
Appeals Commission an appeal of the Director’s decision to grant the 2014 license to
Tervita, resulting in ERAC Numbers 14-156806 and 14-416807. (The Commission
assigned a case number to each appellant, but the case was thereafter considered to
be docketed as a single action.) Appellants’ notice of appeal (as amended) before
the Commission stated in pertinent part that the Director should not have granted the
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2014 permit because: there was still an appeal pending from the 2013 permit;1 the
facility accepted “Blood and Body Parts from New York 911;” and, three streams
around the facility are class three streams. They also asserted that the Director
acted in collusion with Tervita by granting the 2014 permit and asked that the facility
be converted to a cemetery (for the World Trade Center victims).
{¶5} Tervita served each appellant with requests for admissions on April 11,
2014. No responses were provided by appellants within twenty-eight days (as
required by rule) or at any time thereafter. On June 23, 2014, Tervita filed a motion
for summary judgment stating that appellants had no evidence to support their case.
For instance, Tervita pointed out that appellants’ World Trade Center debris theory
was not pertinent to the subject matter of the appeal. It was also urged that,
pursuant to O.A.C. 3746-6-05, appellants were deemed to have admitted that Tervita
complied with the law and the license due their failure to respond to Tervita’s request
for admissions on the facility’s compliance.
{¶6} Appellants’ June 27 response merely stated that they were entitled to
discovery in order to prove the theory that blood and body parts entered the facility.
And, they claimed that an assistant attorney general instigated their theory by asking
questions about it at a prior hearing.
{¶7} On July 23, 2014, the Commission granted summary judgment against
appellants due to their failure to respond to requests for admissions, the lack of
explanation as to why they failed to respond, and the continued failure to respond.
Thus, appellants’ challenge to the Director’s issuance of Tervita’s 2014 license failed.
14CO35 VERSUS 14CO32
{¶8} Appellants filed a notice of appeal from that decision to this court on
August 18, 2014, resulting in the present appeal, 7th Dist. No. 14CO35. Appellants
filed their brief on September 15, 2014. In it, they do not contest the summary
judgment itself or mention the admissions. Rather, in three related assignments of
1
Appellants claimed that the 2013 permit was on appeal in ERAC Number 13-156747.
However, that case number represents the appeal of the Director’s decision on the verified complaints
filed by appellant Wallace, and it is not an appeal from the granting of a permit.
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error, they take issue with the Commission’s denial of their request for discovery of
documents showing all material entering the facility in order to prove their theory that
World Trade Center debris (including “blood and body parts”) was buried at the
facility. See Commission’s May 13, 2014 order denying appellants’ April 21, 2014
motion; Commission’s May 27, 2014 denial of reconsideration of its May 13, 2014
order. See also Appellants’ March 12, 2014 and May 22, 104 motions (all involving
these discovery requests).
{¶9} These same arguments are presented in a brief filed in the pending
appeal Wallace v. Nally, 7th Dist. No. 13CO32. Mr. Wallace is the only appellant in
that case, which is an appeal from the Commission’s decision in ERAC Number 13-
156747, wherein the Commission dismissed the appeal on the grounds of failure to
prosecute.
{¶10} Importantly, that administrative appeal was taken from the Director’s
decision dismissing Wallace’s three verified complaints, which alleged various
violations by the facility due to claimed discharges into waterways. That action thus
arose by way of R.C. 3745.08, which allows an officer of an agency of the state or
any person who is or will be adversely affected by a violation to file a verified
complaint alleging that another has or will violate a law, rule, standard, or license
condition. R.C. 3745.06(A). See also R.C. 3745.08(B) (Upon receipt of a verified
complaint, the Director shall cause a prompt investigation to be conducted such as is
reasonably necessary to determine whether a violation, as alleged, has occurred, is
occurring, or will occur).
{¶11} An interlocutory appeal of a discovery order had been filed from ERAC
Number 13-156747 as well. In dismissing that appeal for lack of a final order, this
court indicated that the appeal was filed in the correct court, just at an improper time
in the case as a final order had not yet been entered. See Wallace v. Nally, 7th Dist.
No. 14CO2 (Mar. 6, 2014 Judgment Entry clarifying that prior February 6, 2014
Judgment Entry of dismissal was for lack of a final order). And as aforementioned,
the final decision in ERAC Number 13-156747 is now on appeal in 7th Dist. No.
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13CO32.
{¶12} However, the present appeal to this court from ERAC Numbers 14-
156806 and 14-416807 poses a different scenario. This case did not arise from the
filing of a verified complaint as did ERAC Number 13-156747 (which is on appeal in
7th Dist. No. 14CO32). Rather, this appeal arose from the renewal of an annual
permit. Thus, the October 16, 2014 brief of Tervita and the November 4, 2014 brief
of the Ohio EPA Director ask this court to dismiss the present appeal on the grounds
that this court lacks jurisdiction from the appeal of a permit.
JURISDICTION LIES ONLY IN THE TENTH DISTRICT
{¶13} “Any party adversely affected by an order of the environmental review
appeals commission may appeal to the court of appeals of Franklin county, or, if the
appeal arises from an alleged violation of a law or regulation, to the court of appeals
of the district in which the violation was alleged to have occurred.” R.C. 3745.06. It
has been explained that this statutory jurisdictional provision has two segments: the
first segment sets forth the general rule that ERAC appeals must be filed in the
Franklin County Court of Appeals; and the second segment provides the exception if
the “order is based upon an ‘alleged violation’ of a law or regulation.” Kimble Clay &
Limestone v. Williams, 59 Ohio St. 2d 94, 97, 391 N.E.2d 1030 (1979).2
{¶14} The court of appeals for Franklin County is the Tenth District, and
Franklin is the only county in that district. Under the first segment of R.C. 3745.06,
the Tenth District regularly hears appeals from ERAC’s upholding of the Ohio EPA
Director’s granting of a permit to a facility located outside of that court’s district. See,
e.g., Citizens Against American Landfill Expansion v. Koncelik, 10th Dist. Nos. 12AP-
741, 12AP-743, 12AP-744, 12AP-742, 2014-Ohio-123, 9 N.E.3d 386 (citizens’ group
representing neighbors of a Stark County landfill alleged leachate problems in
appealing the grant of a permit for vertical and horizontal expansion of the landfill
2
The pertinent statutory language at the time Kimble was decided, which is the same as the
pertinent language of the current statute, provided: “Any party adversely affected by an order of the
environmental board of review may appeal to the court of appeals of Franklin county, or, if the appeal
arises from an alleged violation of a law or regulation, to the court of appeals of the district in which the
violation was alleged to have occurred.” Former R.C. 3745.06.
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over mine spoils); Spencer v. Korleski, 10th Dist. No. 08AP-1060, 2009-Ohio-4308
(resident alleged past non-compliance with laws in appealing renewal of permit of
Columbiana County hazardous waste facility); Stark-Tuscarawas-Wayne Joint Solid
Waste Mgt. Dist. v. Republic Waste Servs. of Ohio, II, L.L.C., 10th Dist. No. 07AP-
599, 2009-Ohio-2143 (raising compliance issues while appealing the grant of a
permit for expansion of a Stark County solid waste landfill). See also Club 3000 v.
Jones, 10th Dist. Nos. 07AP-593, 07AP-598, 07AP-599, 2008-Ohio-5058; Concerned
Citizens of Cent. Ohio v. Schregardus, 148 Ohio App. 3d 31, 2002-Ohio-1074, 771
N.E.2d 898 (10th Dist.); Save the Lake v. Schregardus, 141 Ohio App. 3d 530, 752
N.E.2d 295 (10th Dist.2001).
{¶15} In the Supreme Court’s Kimble Clay & Limestone case, the Ohio EPA
Director denied the appellant’s application for a permit to operate a facility in
Tuscarawas County. The Director refused a request for a hearing on the denial, and
the appellant appealed to the Environmental Board of Review (nka Environmental
Review Appeals Commission), which body then affirmed the Director’s decision.
“[The] appellant appealed from the EBR's action affirming the Director's denial of the
requested license or permit to the Court of Appeals for Tuscarawas County.” Kimble
Clay & Limestone v. Williams, 59 Ohio St. 2d at 95.
{¶16} The Director filed a motion to dismiss the appeal, alleging that the
appeal should have been filed in the Tenth rather than the Fifth District because the
appeal arose from a permit denial proceeding and not from an enforcement
proceeding. Id. at 96. The Fifth District agreed that the appeal was filed in the wrong
appellate court and filed a judgment entry transferring the case to the Tenth District.
Id.
{¶17} However, the Tenth District dismissed the transferred case on the
grounds that the notice of appeal had not been filed in the Tenth District in a timely
manner as required by R.C. 3745.06. That is, the Tenth District found that its
jurisdiction had not been invoked as the notice of appeal was not filed with the
correct court within the timelines of the statute and rejected any argument that the
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transfer from the Fifth District could accomplish the statutory requirement that the
notice of appeal be timely filed with the court of appeals for Franklin County. Kimble
Clay & Limestone v. Williams, 10th Dist. No. 78AP-320 (Aug. 29, 1978). On review,
the Ohio Supreme Court explained:
The primary issue involved in this cause concerns interpretation
of R.C. 3745.06 and 3745.08 as to whether appellant's appeal from the
EBR's action should have been filed in a timely and proper statutory
manner with the Court of Appeals for Franklin County instead of with
the Tuscarawas County appellate court. Such determination depends
on whether the appellee's action in denying appellant's initial request to
operate a rock crusher constituted a denial of a permit or license, or
whether such denial encompassed an appeal arising from an alleged
violation of a law or regulation.
R.C. 3745.06 requires appeals from orders of the Environmental
Board of Review to be brought before the Court of Appeals for Franklin
County, while allowing appeals from verified complaint proceedings to
be brought in the Court of Appeals for the district in which the violation
is alleged to have occurred.
(Emphasis added.) Kimble Clay & Limestone, 59 Ohio St. 2d at 96.
{¶18} In setting forth its reasoning, the Supreme Court analyzed the meaning
of an “alleged violation” as required for invocation of the exception to the Franklin
County appellate court's jurisdiction. The Court concluded that in order to invoke a
local appellate court’s jurisdiction under the second segment of R.C. 3745.06, the
proceeding must have originated from an enforcement proceeding initiated by a
verified complaint filed under R.C. 3745.08. Id. at 97-98
{¶19} “R.C. 3745.08 supplements the above-cited second segment of the first
provision in R.C. 3745.06 in explaining what is meant by the term ‘violation’ or
‘alleged violation’ as used in R.C. 3745.06 to invoke a local appellate court's
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jurisdiction.” Id. at 98. The Director’s determination dealing with “compliance
standards prerequisite to the granting of a permit or license” is distinct from
enforcement proceedings emanating from a verified complaint’s allegation of a
violation. Id. (a lack of compliance with standards for issuing a permit is different
than a “violation” which anticipates the filing of a verified complaint).
{¶20} The Supreme Court rejected the appellant's contention that the timely
filing of the notice of appeal with the administrative board was sufficient and stated
that the statute provided a mandatory thirty-day time limit within which to file notice of
appeal, not only with the board but also with the Court of Appeals for Franklin
County. Id. at 99. “Where a statute confers the right of appeal, adherence to the
conditions thereby imposed is essential to the enjoyment of the rights conferred. The
party who seeks to exercise this right must comply with whatever terms the statutes
of the state impose upon him as conditions to its enjoyment.” Id. (“All statutory
requirements must be met which create the right of appeal”). The Court thus affirmed
the Tenth District’s dismissal of the appeal (that had been transferred from the Fifth
District where the appeal would have been timely filed if permitted to be filed in that
court). Id.
{¶21} The appeal before us originated from ERAC Numbers 14-156806 and
14-416807, which represented appellants’ appeal from the renewal of Tervita’s
annual license. This appeal did not originate from enforcement proceedings initiated
by a verified complaint under R.C. 3745.08. Compare Wallace v. Nally, 7th Dist. No.
14CO32 (pending); Yost v. Jones, 4th Dist. No. 01CA667 (Jan. 14, 2002) (accepting
appeal arising from verified complaint appellant filed with Ohio EPA Director alleging
violations of environmental law by hog facility {but then finding lack of standing}).
{¶22} Thus, the second segment of R.C. 3745.06 for invoking a local
appellate court’s jurisdiction is not implicated in this case. “An appeal from the
order of the Environmental Board of Review in a permit or licensing proceeding
must be filed in a timely and proper manner with the Court of Appeals for
Franklin County and as otherwise prescribed by R.C. 3745.06.” (Emphasis added.)
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Kimble Clay & Limestone, 59 Ohio St.2d at ¶ 2 of syllabus.
{¶23} In conclusion, this court generally lacks jurisdiction over an appeal from
an order of the Environmental Review Appeals Commission because R.C. 3745.06
requires such appeal to be brought before the Court of Appeals for Franklin County
unless it is an appeal “from verified complaint proceedings” initiated under R.C.
3745.08, which latter appeal would be permitted to “be brought in the Court of
Appeals for the district in which the violation is alleged to have occurred.” See id. at
96. As this case is not an appeal from a verified complaint proceeding but is an
appeal from the renewal of an annual permit, this court lacks jurisdiction over the
appeal. Rather, any appeal would have been required to have been filed in Franklin
County in a timely fashion. Accordingly, this appeal is dismissed due to appellants’
inability to invoke this court’s jurisdiction under R.C. 3745.06.
{¶24} Costs taxed against appellants.
Donofrio, P.J. concurs.
Waite, J. concurs.
DeGenaro, J. concurs.