State ex rel. Food & Water Watch & FreshWater Accountability Project v. State

[Cite as State ex rel. Food & Water Watch & FreshWater Accountability Project v. State, 2016-Ohio-3135.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio ex rel. :
Food and Water Watch
and FreshWater Accountability Project, :
Relators, : No. 14AP-958
v. : (REGULAR CALENDAR)
State of Ohio et al., :
Respondents. :
D E C I S I O N
Rendered on May 24, 2016
On brief: Terry J. Lodge, for relators.
On brief: Michael DeWine, Attorney General, Ryan L.
Richardson and Sarah E. Pierce, for respondents Governor
John R Kasich and the State of Ohio; Brett A. Kravitz and
Daniel J. Martin, for respondents James Zehringer, director
of the Ohio Department of Natural Resources (ODNR) and
Rick Simmers, chief of ODNR's Division of Oil and Gas
Resources Management.
On brief: Steptoe & Johnson PLLC, J. Kevin West, Lyle B.
Brown and Katerina E. Milenkovski, for intervenors
Chesapeake Exploration, L.L.C., and Antero Resources
Corporation.
IN MANDAMUS
ON OBJECTION TO THE MAGISTRATE'S DECISION
LUPER SCHUSTER, J.
{¶ 1} Relators, Food and Water Watch ("FWW") and FreshWater Accountability
Project ("FWAP"), filed this original action against four respondents: (1) State of Ohio,
(2) Governor John R. Kasich, (3) James Zehringer, the director of the Ohio Department of
No. 14AP-958 2
Natural Resources ("ODNR"), and (4) Rick Simmers, chief of ODNR's Division of Oil and
Gas Resources Management ("chief"). Relators request a writ of mandamus ordering
respondents to promulgate rules as provided by R.C. 1509.22(C) and to nullify and vacate
all orders the chief has issued.
{¶ 2} The court referred this matter to a magistrate pursuant to Civ.R. 53 and
Loc.R. 13(M) of the Tenth District Court of Appeals. In December 2014, respondents filed
a motion to dismiss. On February 4, 2015, Chesapeake Exploration, L.L.C., and Antero
Resources Corporation ("intervenors") moved for leave to intervene pursuant to Civ.R. 24,
and the magistrate granted that request. On February 27, 2015, relators filed a motion for
summary judgment; in March 2015, intervenors moved for summary judgment; and in
April 2015, respondents moved for summary judgment.
{¶ 3} In January 2016, the magistrate issued the appended decision, including
findings of fact and conclusions of law. The magistrate concluded relators lack standing
to bring this action and, therefore, recommended this court deny relators' motion for
summary judgment, grant intervenors' motion for summary judgment, grant respondents'
motion for summary judgment, and find as moot respondents' motion to dismiss.
Relators have filed an objection to the magistrate's decision and argue the magistrate
erroneously determined they lack standing to bring this action.
{¶ 4} Following our independent review of the record pursuant to Civ.R. 53, we
find the magistrate properly applied the salient law to the pertinent facts. Relators'
memorandum in support of their objection simply reasserts the claims regarding standing
that the magistrate rejected in his well-reasoned decision. We adopt the magistrate's
decision as our own, including the findings of fact and conclusions of law contained
therein.1
1The magistrate's decision cites State ex rel. Walgate v. Kasich, 10th Dist. No. 12AP-548, 2013-Ohio-946,
as authority regarding the principles of organizational standing and public-right standing. After the
magistrate issued his decision, the Supreme Court of Ohio affirmed in part and reversed in part this
court's judgment. State ex rel. Walgate v. Kasich, __ Ohio St.3d __, 2016-Ohio-1176. Walgate involved
the standing of various plaintiffs challenging gambling-related legislation and rules in Ohio. The Supreme
Court reversed this court's judgment only to the extent this court affirmed the dismissal of the equal
protection claim of one of the individual plaintiffs due to the plaintiff's lack of standing. Id. at ¶ 52. That
plaintiff alleged he would engage in casino gaming but for an allegedly unconstitutional limitation. Id. at
¶ 45. The Supreme Court found he had sufficiently alleged traditional standing. Id. at ¶ 50. The Supreme
Court otherwise affirmed this court's judgment. Id. at ¶ 52. Therefore, the magistrate's citation to this
court's decision in Walgate remains appropriate.
No. 14AP-958 3
{¶ 5} Accordingly, we overrule relators' objection to the magistrate's decision,
deny relators' motion for summary judgment, grant intervenors' motion for summary
judgment, grant respondents' motions for summary judgment, and find as moot
respondents' motion to dismiss. The requested writ of mandamus is therefore denied.
Objection overruled;
writ of mandamus denied.
SADLER, J., concurs.
DORRIAN, P.J., concurs in part and concurs in judgment.
DORRIAN, P.J., concurring in part and concurring in judgment.
{¶ 6} I concur with the majority and would adopt the magistrate's decision with
respect to the magistrate's conclusion that Wilkins and the Castles lack standing.
{¶ 7} I concur separately with the majority and would adopt the magistrate's
decision with respect to the magistrate's conclusion that Mshar lacks standing. However,
I would not adopt the magistrate's conclusion at ¶ 90 of the appended magistrate's
decision which states:
Returning to the affidavit of Cheryl Mshar, there is no expert
opinion or evidence to support the inference that the so-called
"hydrocarbon stenches" that she allegedly has smelled since
2014 are in fact causing her harm or injury.
{¶ 8} Ohio courts, including the Supreme Court of Ohio, have ruled that an
offensive odor or stench can constitute an injury for purposes of a nuisance claim. See,
e.g., Banford v. Aldrich Chem. Co., 126 Ohio St.3d 210, 2010-Ohio-2470, ¶ 26 (referring
to cases awarding damages for annoyance and discomfort affecting a person's senses,
including discharge of soot, smoke, or gases onto neighboring property); Kepler v. Indus.
Disposal Co., 84 Ohio App. 80 (9th Dist.1948) (holding that plaintiffs established an
actionable nuisance claim where the defendant was engaged in burning industrial waste,
resulting in noxious smoke and odors that at times enveloped the plaintiffs' properties);
Reifsnyder v. Canton Fertilizer & Chem. Co., 9 Ohio App. 161, 166 (5th Dist.1918) ("[A]
use [of property] which produces injurious and destructive vapors, smokes and noxious
odors, causing an annoyance to property owners in the neighborhood, is such an
annoyance as will authorize a court of equity to act and grant the proper relief."); Letts v.
No. 14AP-958 4
Kessler, 54 Ohio St. 73, 82 (1896), citing Broom's Legal Maxims, 372 ("If smoke, gas,
offensive odors, or noise pass from one's own premises to or upon the premises of another
to his injury, an action will lie therefor, even though the smoke, gas, odor or noise should
be caused by the lawful business operations of defendant and with the best of motives.").
While I acknowledge that the claim in the case before us sounds in mandamus rather than
nuisance, case law cited above persuades me that the principal that an offensive
odor/stench may constitute an injury is applicable here as well.
{¶ 9} Furthermore, the magistrate points to no authority that expert opinion or
even evidence other than Mshar's own sworn statement would be required to establish
that a stench constitutes an injury for purposes of standing. As noted by the magistrate,
this court has stated that standing requires a showing of a "direct and concrete injury in a
manner or degree different from that suffered by the public in general." Bowers v. State
Dental Bd., 142 Ohio App.3d 376, 380 (10th Dist.2001). Furthermore, the injury must be
palpable and not merely speculative. State ex rel. Walgate v. Kasich, 10th Dist. No. 12AP-
548, 2013-Ohio-946, ¶ 11. At ¶ 5 of her affidavit, Mshar stated: "I can smell hydrocarbon
stenches from the plant." Stench is defined as "a very bad smell" or "a characteristic
repugnant quality." http://www.merriam-webster.com/dictionary/stench (assessed
May 19, 2016). An expert nose is not required to discern a very bad smell. In addition,
Mshar's proximity to the plant makes the stench different from that suffered by the public
in general.
{¶ 10} Nevertheless, although I disagree with the magistrate and the majority
regarding whether Mshar established that she suffered an injury sufficient for purposes of
standing, I concur that she did not establish redressability for purposes of standing.
Mshar did not allege how administrative rules, rather than the existing Chief's orders,
would redress the injury.
{¶ 11} Accordingly, I respectfully concur in part and concur in judgment.
No. 14AP-958 5
APPENDIX
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio ex rel. :
Food and Water Watch
and FreshWater Accountability Project, :
Relators, :
v. : No. 14AP-958
State of Ohio, et al. : (REGULAR CALENDAR)
Respondents. :
MAGISTRATE'S DECISION
Rendered on January 14, 2016
Terry J. Lodge, for relators.
Michael DeWine, Attorney General, Ryan L. Richardson and
Sarah E. Pierce, for respondents Governor John R Kasich
and the State of Ohio; Brett A. Kravitz and Daniel J. Martin,
for respondents James Zehringer, director of the Ohio
Department of Natural Resources (ODNR) and Rick
Simmers, chief of ODNR's Division of Oil and Gas Resources
Management.
Steptoe & Johnson PLLC, J. Kevin West, Lyle B. Brown and
Katerina E. Milenkovski, for intervenors Chesapeake
Exploration, L.L.C. and Antero Resources Corporation.
IN MANDAMUS
ON RESPONDENTS' DECEMBER 23, 2014 MOTION TO
DISMISS
ON RELATORS' FEBRUARY 27, 2015 MOTION FOR
SUMMARY JUDGMENT
No. 14AP-958 6
ON INTERVENORS' MARCH 12, 2015 MOTION FOR
SUMMARY JUDGMENT
ON RESPONDENTS' APRIL 28, 2015 MOTIONS FOR
SUMMARY JUDGMENT
{¶ 12} In this original action, the relators, Food and Water Watch ("FWW") and
FreshWater Accountability Project ("FWAP") request that a writ of mandamus issue
against four named respondents: (1) State of Ohio, (2) Governor John R. Kasich, (3)
James Zehringer, the Director of the Ohio Department of Natural Resources ("ODNR"),
and (4) Rick Simmers, Chief of ODNR's Division of Oil and Gas Resources Management.
This action involves the alleged failure of Chief Simmers to promulgate administrative
rules pursuant to R.C. 1509.22(C).
Findings of Fact:
{¶ 13} 1. On November 19, 2014, the relators filed a complaint for a writ of
mandamus.
The Complaint
{¶ 14} According to the complaint, FWW is a non-profit organization that
allegedly "advocates for common sense policies that will result in healthy, safe food and
access to safe and affordable drinking water." (Complaint, ¶ 9.)
{¶ 15} According to the complaint, FWAP is a non-profit organization that
allegedly "seeks to force corporations and governmental officials to be directly
responsible and responsive to the public on energy issues which impair the commons of
water and land resources." (Complaint, ¶ 10.)
Relevant Statutes Identified in the Complaint
{¶ 16} R.C. 1509.03(A) provides:
The chief of the division of oil and gas resources
management shall adopt, rescind, and amend, in accordance
with Chapter 119. of the Revised Code, rules for the
administration, implementation, and enforcement of this
chapter.
{¶ 17} R.C. 1509.22(B)(2)(a) provides:
On and after January 1, 2014, no person shall store, recycle,
treat, process, or dispose of in this state brine or other waste
No. 14AP-958 7
substances associated with the exploration, development,
well stimulation, production operations, or plugging of oil
and gas resources without an order or a permit issued under
this section * * *.
{¶ 18} R.C. 1509.22(C) provides:
The chief shall adopt rules regarding storage, recycling,
treatment, processing, and disposal of brine and other waste
substances. The rules shall establish procedures and
requirements in accordance with which a person shall apply
for a permit or order for the storage, recycling, treatment,
processing, or disposal of brine and other waste substances
that are not subject to a permit issued under section 1509.06
or 1509.21 of the Revised Code and in accordance with which
the chief may issue such a permit or order.
Attachments to the Complaint
{¶ 19} Attached to the complaint as exhibit A is a list of 23 entities that have each
received from Chief Simmers a written order for temporary authorization to operate a
facility pursuant to R.C. 1509.22. These 23 "chief's orders" were allegedly issued within
the first 180 days of 2014.
{¶ 20} Attached to the complaint as exhibit E is order number 2014-52 issued by
Chief Simmers to Industrial Waste Control/Ground Tech, Inc. ("Ground Tech") for
temporary authorization to operate a facility located at Youngstown, Ohio pursuant to
R.C. 1509.22. The chief's order is dated March 6, 2014.
{¶ 21} Attached to the complaint as exhibit F is order number 2014-08 issued by
Chief Simmers to EnerGreen 360 Holding Company LLC ("EnerGreen") for temporary
authorization to operate a facility in Warren Township, Belmont County, Ohio. The
chief's order is dated January 3, 2014.
{¶ 22} No chief's order is submitted with the complaint with respect to the
remaining 21 other entities listed at exhibit A.
Return to Body of the Complaint
{¶ 23} According to the complaint, Cheryl Mshar resides in Youngstown, Ohio
within .8 miles of the Ground Tech facility. She is a member of FWW and FWAP.
No. 14AP-958 8
{¶ 24} According to the complaint, Hattie Wilkins resides in Youngstown, Ohio
within .74 miles of the Ground Tech facility. She is also a member of FWW and FWAP.
{¶ 25} According to the complaint, Cheryl Mshar:
[B]elieves that she presently is breathing air which contains
chemical and/or radioactive contamination from the Ground
Tech plant and that she and her friends and families are
threatened with physical harm by unmeasured and
unmonitored routine pollutants and radiation being released
from the Ground Tech facility into air and water.
(Complaint, ¶ 11.)
{¶ 26} Allegedly, Cheryl Mshar is an Ohio taxpayer:
[W]ho objects to violations of Ohio law which potentially
subject the State of Ohio to fiscal liability for misfeasance
and malfeasance in the form of inadequate and unlawful
regulatory actions.
(Complaint, ¶ 11.)
{¶ 27} According to the complaint, Hattie Wilkins also believes that she and her
friends and family are breathing air containing "chemical and/or radioactive
contamination from the Ground Tech plant" and that they are "threatened with physical
harm." (Complaint, ¶ 12.) Allegedly, Hattie Wilkins is an Ohio taxpayer "who objects to
violations of Ohio law which potentially subject the State of Ohio to fiscal liability for
misfeasance and malfeasance in the form of inadequate and unlawful regulatory
actions." (Complaint, ¶ 12.)
{¶ 28} According to the complaint, FWAP members David Barton Castle and
Bobbie Sue Castle reside, conduct business, and recreate some 1.7 miles south of the
"proposed" EnerGreen facility. (Complaint, ¶ 14.) The Castle's allegedly:
[B]elieve that if the EnerGreen dumpsite is allowed to be
[sic] operate under the ODNR Chief's Order as issued that
they will be exposed to air and water contaminated with
chemical and radiological emissions from the facility, and
that their physical health and that of their friends and family
will be threatened by such unmeasured and unmonitored
pollutants and radiation.
(Complaint, ¶ 14.)
No. 14AP-958 9
{¶ 29} The Castles are allegedly Ohio taxpayers who also object to alleged
violations of Ohio law as do Cheryl Mshar and Hattie Wilkins.
{¶ 30} According to the complaint, the chief's orders issued to the 23 entities on
the list were unlawfully issued because of the chief's alleged failure to promulgate the
administrative rules provided by R.C. 1509.22(C).
{¶ 31} Therefore, the complaint requests that this court issue a writ of mandamus
ordering respondents to promulgate rules as provided by R.C. 1509.22(C). In the
meantime, the relators "further pray the court immediate[ly] enjoin, nullify and revoke
and cancel all Chief's Orders issued to date as being fatally unlawful." (Complaint, last
paragraph.)
Respondents' Motion to Dismiss
{¶ 32} 2. On December 23, 2014, respondents filed their motion to dismiss the
complaint. In their memorandum in support, respondents argued that relators lack
standing to bring this action. Respondents also argue that this court lacks jurisdiction
because allegedly the real object of the action is declaratory judgment and prohibitory
injunction.
{¶ 33} 3. On January 12, 2015, relators filed a memorandum contra respondents'
motion to dismiss. In support, relators submitted the affidavit of Cheryl Mshar executed
December 30, 2014, the affidavit of Hattie Wilkins executed January 5, 2015, and the
affidavit of David Barton Castle and Bobbie Sue Castle executed jointly on January 10,
2015.
{¶ 34} 4. In her affidavit, Mshar averred:
[One] I live at 1928 Donald Avenue in Youngstown, Ohio. I
am an Ohio taxpayer, paying property, income and sales
taxes.
[Two] I am a member of two nonprofit organizations, Food
and Water Watch and the FreshWater Accountability
Project. Both organizations advocate for a ban on industrial
waste handling by IWC/Ground Tech in Youngstown which
is derived from horizontal hydraulic fracturing for oil and gas
("fracking"), on the ground that it is unsafe and poses a
threat to public health.
No. 14AP-958 10
[Three] I own my home on Donald Avenue. A map of the
area in which I live in Youngstown accompanies this
Affidavit, and shows that my house is .82 of a mile - about
eight tenths of a mile - from the IWC/Ground Tech plant.
[Four] I have read the IWC/Ground Tech application for its
March 6, 2014 Chief's Order * * *. The facility services
include the handling of radioactive fracking wastes,
performing radiological waste characterization, tank
cleaning and decontamination, waste solidification, brine
storage, and preparation of drilling wastes for disposal. The
Chief of the Ohio Department of Natural Resources did not
require IWC/Ground Tech to provide any information about
the air or water emission volumes, toxicity or hazards of the
chemical and radioactive wastes and processes to which my
family, friends and I will be exposed during routine
operations at the facility. I conclude that the drilling wastes
handled, blended and disposed of at IWC/Ground Tech will
be at least as contaminated, if not more, with chemicals and
radiation as they are when generated during horizontal
hydraulic fracking operations.
[Five] On a near-daily basis, I see trucks with large rolloff
tanks, and tank trucks, coming to and from the IWC/Ground
Tech plant. They drive on streets within several blocks of my
home. I can smell hydrocarbon stenches from the plant, a
smell which I first noticed in 2014 after the company
received its Chief's Order. I am routinely forced to breathe
polluted air. I have learned that there is no state or federal
Clean Air Act permit which governs airborne emissions from
IWC/Ground Tech's fracking waste facility.
[Six] I oppose hydraulic fracturing to obtain oil and gas in
part because fracking threatens our water supplies and our
air with pollution by toxic chemicals and radiation, and
produces large volumes of toxic industrial waste. After
reading the Chief's Order issued by Ohio Department of
Natural Resources for IWC/Ground Tech, I see no provisions
which require the company to contain vapors and airborne
emissions from the wastes, no requirements to clean up
accidental spills of fracking waste material on nearby streets,
nor restrictions which state what types of waste may be
disposed of within Ohio, and/or under what conditions. I
oppose the granting of Chief's Order No. 2014-52 for the
operation of the IWC/Ground Tech drilling waste disposal
facility in Youngstown because it doesn't regulate operations
in any way, not even to hold the company to perform the
No. 14AP-958 11
processes and dispose of wastes as described in the
application.
[Seven] Living close by IWC/Ground Tech, I believe that my
family, friends, and I are being involuntarily exposed to, and
are breathing, chemically-polluted and radon-polluted air
emitted from fracking waste delivered to or held at the
facility as a part of routine operations. I believe that my
family, friends and I will be [sic] continue to be involuntarily
exposed to chemical and radioactive air pollution, and will
have to breathe such in the event there are waste spills from
trucks traveling to and from IWC/Ground Tech on streets
closer to my home than the IWC/Ground Tech facility. I also
believe that my family, friends and I will be involuntarily
exposed to chemical and radioactive contamination, both
airborne and waterborne, in the event of a spill into the
Mahoning River, which runs near the facility and near my
home.
[Eight] I believe that even if air and water pollution are the
result from routine operations, they subject my family,
visiting friends and me to unnecessary risks to personal
health.
{¶ 35} 5. In her affidavit, Wilkins avers at paragraphs one through seven:
[One] I live at 733 Fairmont Avenue in Youngstown, Ohio. I
am an Ohio taxpayer, paying property, income and sales tax.
[Two] I am a member of two nonprofit organizations, Food
and Water Watch and the FreshWater Accountability
Project. Both organizations advocate for a ban on industrial
waste handling by IWC/Ground Tech in Youngstown which
comes from horizontal hydraulic fracturing for oil and gas
("fracking"), on the ground that it is unsafe and poses a
threat to public health.
[Three] I own my home on Fairmont Avenue. A map of the
area in which I live in Youngstown accompanies this
Affidavit, and shows that my house is .74 of a mile - about
three quarters of a mile - from the IWC/Ground Tech plant.
[Four] I have read the IWC/Ground Tech application for its
March 6, 2014 Chief's Order * * *. The facility services
include the handling of radioactive fracking wastes,
performing radiological waste characterization, tank
cleaning and decontamination, waste solidification, brine
No. 14AP-958 12
storage, and preparation of drilling wastes for disposal. The
Chief of the Ohio Department of Natural Resources did not
require IWC/Ground Tech to provide any information about
the air or water emission volumes, toxicity or hazards of the
chemical and radioactive wastes and processes to which my
family, friends and I will be exposed during routine
operations at the facility. I conclude that the drilling wastes
handled, blended and disposed of at IWC/Ground Tech will
be at least as contaminated, if not more, with chemicals and
radiation as they are when generated during horizontal
hydraulic fracking operations.
[Five] I oppose hydraulic fracturing to obtain oil and gas in
part because fracking threatens our water supplies and our
air with pollution by toxic chemicals and radiation, and
produces large volumes of toxic industrial waste. After
reading the Chief's Order issued by Ohio Department of
Natural Resources for IWC/Ground Tech, I see no provisions
which require the company to contain vapors and airborne
emissions from the wastes, no requirements to clean up
accidental spills of fracking waste material on nearby streets,
nor restrictions which state what types of waste may be
disposed of within Ohio, and/or under what conditions. I
oppose the granting of Chief's Order No. 2014-52 for the
operation of the IWC/Ground Tech drilling waste disposal
facility in Youngstown because it doesn't regulate operations
in any way, not even to hold the company to perform the
processes and dispose of wastes as described in the
application.
[Six] Living close by IWC/Ground Tech, I believe that my
family, friends, and I are being involuntarily exposed to, and
are breathing, chemically-polluted and radon-polluted air
emitted from fracking waste delivered to or held at the
facility as a part of routine operations. I believe that my
family, friends and I will be [sic] continue to be involuntarily
exposed to chemical and radioactive air pollution, and will
have to breathe such in the event there are waste spills from
trucks traveling to and from IWC/Ground Tech on streets
closer to my home than the IWC/Ground Tech facility. I also
believe that my family, friends and I will be involuntarily
exposed to chemical and radioactive contamination, both
airborne and waterborne, in the event of a spill into the
Mahoning River, which runs near the facility and near my
home.
No. 14AP-958 13
[Seven] I believe that even if air and water pollution are the
result from routine operations, they subject my family,
visiting friends and me to unnecessary risks to personal
health.
{¶ 36} 6. In their affidavit, the Castles aver at paragraphs 1 through 15:
[One] We are adult residents of Ohio, are married to one
another, and live at 416 North Chestnut Street in Barnesville,
Ohio 43713.
[Two] We each are members of the FreshWater
Accountability Project, which opposes the development of
the EnerGreen 360 fracking waste dump proposed to be built
a short distance north of Barnesville, on the ground that the
dump would be unsafe and pose a threat to public health.
[Three] We own our home on North Chestnut Street, which
is about 1.7 miles south of the proposed site of the
EnerGreen 360 dump north of Barnesville. We routinely run
errands, visit friends, attend civic functions, and maintain
and live in our home in Barnesville.
[Four] We have read the EnerGreen 360 application for the
Chief's Order which is the subject of this lawsuit * * *. We are
very concerned for our health and that of our family
members in the Barnesville area in connection with the
planned EnerGreen oil and gas drilling waste treatment
facility, slated to set up operations on Belmont County Port
Authority land north of Barnesville. The proposal involves
the dumping of a blend of fracking waste and coal ash or
other industrial wastes on bare ground, without monitoring
wells, to create a flat, 200 acre industrial park site by filling
in a valley with exposed surface waters running through it.
There will be no protective landfill liners and no means of
assessing what toxins are carried offsite by rainwater or snow
melt.
[Five] Neither the EnerGreen application nor the Chief's
Order from the Ohio Department of Natural Resources
provide for monitoring of air or water quality, nor does the
chief's Order require any state or federal permits required by
the federal Clean Air or Clean water Acts. We know that oil
and gas drilling wastes will contain heavy metals, radioactive
elements including radium, thorium, uranium and will emit
radon gas. We are concerned that chemicals used to extract
oil and gas from shale during hydraulic fracturing (called
No. 14AP-958 14
"fracking") will contaminate the drilling wastes at
EnerGreen, and that various chemical poisons will become
airborne and be breathed by us and members of our family
who live, work and conduct business in and around
Barnesville.
[Six] EnerGreen proposes the dumping of up to 60,000 tons
per year of oil and gas drilling wastes blended with coal ash
and/or other poisonous or hazardous materials and toxic
wastes.
[Seven] In the past several years we have observed the
spread of horizontal hydraulic fracturing for oil and gas in
the vicinity of Barnesville. We are familiar with the industrial
chemical odors and taste in the mouth from driving in areas
where fracking wells are being developed. We've seen flaring
wells and breathed the toxic air downwind from them in the
vicinity of Barnesville.
[Eight] Prior to our becoming parties to this case, we read
and saw evidence of waste problems from fracking, including
chemically-contaminated drilling wastes being poured into
pits, or being injected under high pressure underground. We
also know about the practice of "downblending," where
fracking waste is mixed with other material so it can
supposedly be reduced enough in its radioactivity or
chemical toxicity to be disposed of in landfills.
[Nine] Although we question the wisdom of disposing of
fracking waste in licensed landfills, at least licensed landfills
have liners and other engineered features to provide some
protection to groundwater and surface water supplies, and to
people. According to the application for the Chief's Order in
this case, fracking waste will be mixed with coal ash and the
resulting blend will be dumped in a place with no liners, no
monitoring wells, no leachate collection systems - in short,
without any of the features one might find in a licensed
landfill. Coal ash is required by Ohio law to be disposed of in
a licensed landfill, but EnerGreen will not be operating a
licensed landfill. We see nothing in their application that
suggests the heavy metals or mercury or concentrated
radiation in coal ash will be neutralized, removed or
rendered nondangerous. Fracking waste also contains heavy
metals and radium. Even if EnerGreen can be believed that
they will only be disposing of "vertical cuttings" from oil and
gas drilling, those cuttings will inevitably contain heavy
metals and radiation. Radium, one of the radiation sources,
No. 14AP-958 15
easily moves around in water. From the lack of concern for
toxicity apparent from the application, we conclude that the
EnerGreen dump won't use the practice of "daily cover" to
top off the waste being dumped on the ground to slow down
penetration by rainfall or snow melt. Water will freely
penetrate the growing pile of waste, it appears, and will also
move radiation into the ground or across the land surface
into water supplies. The lack of daily cover also will allow
radon gas to freely escape from the pile.
[Ten] With no measures to stop particles of waste, chemicals,
heavy metals and radioactive solid matter and gas from
being blown offsite from EnerGreen, and nothing to stop
runoff of heavy metals and radiation into water sources, we
are both concerned that the wind and water will deposit toxic
and radioactive materials throughout Barnesville and into
the Barnesville Reservoir which is south of town.
[Eleven] From our investigation before becoming parties to
this case, we know that thousands of tons per year of
radioactive drill cuttings are landfilled in Pennsylvania, and
that regulators there do not have a very good handle on the
problem of getting rid of radioactive fracking wastes. And we
believe the situation is even worse in Ohio, where naturally-
occurring radioactive material, called "NORM," is completely
unregulated and may be disposed of anywhere without
notice, air or water monitoring, or the maintenance of
records, even though NORM might contain high levels of
radium and other radioactive isotopes, and emit radon gas.
[Twelve] The EnerGreen application says of radiological
hazards of the thousands of tons of fracking wastes that will
be brought onto the site, only that incoming loads will be
"scanned" for radiation. * * * There is no disclosure of what
scanning device will be used, nor a justification of its
accuracy, nor is there any mention of what the anticipated
range of the radioactive elements and radiotoxicity might be.
Radium, the major radioactive element, is an alpha wave
emitter, and we see no indication of how radium will be
identified.
[Thirteen] The Chief's Order issued by ODNR provides for
no identification of radioactivity in the EnerGreen waste
receipts. It doesn't even legally require EnerGreen to do
whatever vaguely-referenced testing the company plans to
do.
No. 14AP-958 16
[Fourteen] The EnerGreen application does not mention
radon gas nor any other emissions, yet the material will
contain radiation and oil-based substances and there are no
arrangements to limit or control emissions of airborne
contaminants and radon gas.
[Fifteen] EnerGreen's application states that the company
will only accept "air cuttings," and that the material will also
contain "refined oil-based substances." There is no
explanation of how "air cuttings" will be distinguished from
drilling material resulting from horizontal drillings in the
fracking wells, which may be identical in visual appearance
to vertical cuttings. The application states * * * that "material
that does not meet the regulatory requirements will be
disposed at the landfill." So EnerGreen fully expects to
receive drilling wastes above and beyond vertical air
cuttings," but gives no explanation of how unacceptable
material will be identified and separated from acceptable
material.
{¶ 37} 7. On January 22, 2015, respondents filed their reply in support of their
motion to dismiss. In their reply, respondents suggest that it would be inappropriate for
this court to consider the affidavits on a motion to dismiss. Also, respondents assert
that the affiants "merely restate the conclusory and highly speculative allegations of
harm set forth in the complaint." (Reply, 13.)
The Motion to Intervene
{¶ 38} 8. On February 4, 2015, pursuant to Civ.R. 24, a motion to intervene was
filed by Chesapeake Exploration, LLC ("Chesapeake") and Antero Resources
Corporation ("Antero"). With their motion to intervene, Chesapeake and Antero filed a
memorandum supplementing the respondents' December 23, 2014 motion to dismiss.
{¶ 39} 9. On February 20, 2015, the relators filed their memorandum contra the
motion to intervene. On March 2, 2015, Chesapeake and Antero filed a reply.
{¶ 40} 10. On April 1, 2015, the magistrate issued an order finding that
Chesapeake and Antero have met the requirements of Civ.R. 24(B)(2) for permissive
intervention. Thus, the magistrate's order grants the motion to intervene.
No. 14AP-958 17
The Motions for Summary Judgment
{¶ 41} 11. Earlier, on February 27, 2015, relators moved for summary judgment.
{¶ 42} 12. On March 9, 2015, respondents moved to stay briefing on relators'
summary judgment motion pending the magistrate's ruling on respondents' motion to
dismiss.
{¶ 43} 13. On March 12, 2015, prior to the magistrate's order granting
intervention, the applicants for intervention (Chesapeake and Antero) filed their own
motion for summary judgment. Chesapeake and Antero also filed their written response
to relators' motion for summary judgment. Chesapeake and Antero also moved for leave
to file their motion for summary judgment.
{¶ 44} 14. On April 2, 2015, relying on Civ.R. 56(A), the magistrate issued an
order denying respondents' March 9, 2015 motion to stay briefing on relators'
February 27, 2015 motion for summary judgment.
{¶ 45} 15. On April 2, 2015, the magistrate issued notice of summary judgment
hearing. Notice was given that the motions for summary judgment filed by relators and
intervenors are set for submission to the magistrate on April 21, 2015.
{¶ 46} 16. On April 8, 2015, the magistrate issued an order granting the
March 12, 2015 motion of Chesapeake and Antero for leave to file their motion for
summary judgment and their response to the relators' motion for summary judgment.
The magistrate amended the April 2, 2015 notice of summary judgment hearing such
that the motions for summary judgment were set for submission to the magistrate on
April 28, 2015.
{¶ 47} 17. On April 9, 2015, the relators' moved for leave to respond in opposition
to intervenors' motion for summary judgment. The magistrate granted relators' motion,
but the submission date for the motions for summary judgment remained at April 28,
2015.
{¶ 48} 18. On April 28, 2015, respondents Governor Kasich and the State of Ohio
moved for summary judgment. They also filed a memorandum contra the relators'
motion for summary judgment.
No. 14AP-958 18
{¶ 49} 19. Also on April 28, 2015, respondents Zehringer and Chief Simmers
moved for summary judgment. Respondents also filed a memorandum in opposition to
the relators' motion for summary judgment.
{¶ 50} 20. On May 5, 2015, the magistrate issued an order giving notice that the
two motions for summary judgment filed on April 28, 2015 are set for submission to the
magistrate on May 22, 2015.
{¶ 51} 21. On May 22, 2015, the relators filed a memorandum contra the
April 28, 2015 motion for summary judgment filed by Zehringer and Chief Simmers.
{¶ 52} 22. Also on May 22, 2015, Chesapeake and Antero filed a memorandum in
support of respondents' motions for summary judgment.
Conclusions of Law:
{¶ 53} The issue is whether relators have standing to litigate the consequences of
the alleged failure to promulgate administrative rules under R.C. 1509.22(C) by Chief
Simmers. The object of this original action is twofold: (1) to compel Chief Simmers to
promulgate rules under R.C. 1509.22(C), and (2) to compel Chief Simmers to rescind
the chief's orders he issued to the 23 named entities, including the intervenors.
{¶ 54} Finding that relators lack standing to bring this action, it is the
magistrate's decision that this court grant the motions for summary judgment filed by
the respondents and the intervenors, and that this court deny relators' motion for
summary judgment. The respondents' motion to dismiss is thereby rendered moot.
The Law of Standing: Traditional Standing
{¶ 55} Before an Ohio court can consider the merits of a legal claim, the person or
entity seeking relief must establish standing to sue. Ohio Pyro, Inc. v. Ohio Dept. of
Commerce, Div. of State Fire Marshal, 115 Ohio St.3d 375, 2007-Ohio-5024,¶ 27.
{¶ 56} Traditional standing principles require the plaintiffs to show that they
have suffered (1) an injury that is, (2) fairly traceable to the defendant's allegedly
unlawful conduct, and (3) likely to be redressed by the requested relief. Moore v. City of
Middletown, 133 Ohio St.3d 55, 2012-Ohio-3897, ¶ 22, citing Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560-61 (1992). "These three factors—injury, causation, and
No. 14AP-958 19
redressability—constitute 'the irreducible constitutional minimum of standing.' " Id. at
¶ 22, quoting Lujan at 560. See ProgressOhio.org, Inc. v. JobsOhio, 139 Ohio St.3d
520, 2014-Ohio-2382, ¶ 7.
{¶ 57} Standing depends upon whether the party has alleged such a personal
stake in the outcome of the controversy as to ensure that the dispute sought to be
adjudicated will be presented in an adversary context and in a form historically viewed
as capable of judicial resolution. Clifton v. Village of Blanchester, 131 Ohio St.3d 287,
2012-Ohio-780, ¶ 15; ProgressOhio.org, Inc. at ¶ 7.
{¶ 58} An association has standing to bring a lawsuit on behalf of its members
when (1) its members would otherwise have standing to sue in their own right; (2) the
interests it seeks to protect are germane to the organization's purpose; and (3) neither
the claim asserted nor the relief requested requires the participation of individual
members in the lawsuit. State ex rel. Walgate v. Kasich, 10th Dist. No. 12AP-548, 2013-
Ohio-946, ¶ 15, citing League of United Latin Am. Citizens v. Ohio Governor, 10th Dist.
No. 10AP-639, 2012-Ohio-947, ¶ 20.
{¶ 59} The injury is not required to be economic, but it must be palpable.
Walgate at ¶ 11. The injury cannot be merely speculative. Id. An injury that is borne by
the population in general, and which does not affect the plaintiff in particular, is not
sufficient to confer standing. Id.{¶ 60} To show standing, a private litigant:
"[M]ust generally show that he or she has suffered or is
threatened with direct and concrete injury in a manner or
degree different from that suffered by the public in general,
that the law in question has caused the injury, and that the
relief requested will redress the injury."
Bowers v. Ohio State Dental Bd., 142 Ohio App.3d 376, 380 (10th Dist.2001), quoting
State ex rel. Ohio Academy of Trial Lawyers v. Sheward, 86 Ohio St.3d 451, 469-70
(1999).
{¶ 61} The magistrate finds helpful City of Olmsted Falls v. Jones, 152 Ohio
App.3d 282, 2003-Ohio-1512, a case cited by the respondents.
{¶ 62} In Olmsted Falls, the city of Olmsted Falls ("city") challenged a decision of
the Ohio Environmental Protection Agency ("OEPA") on grounds that it exceeded the
agency's authority under Ohio and Federal law. Id. at ¶ 2. The Environmental Review
No. 14AP-958 20
Appeals Commission ("ERAC") agreed with the city. On appeal, this court concluded
the city lacked standing to challenge the decision and, thus, reversed ERAC's decision.
{¶ 63} In finding that the city lacks standing, this court rejected the notion that
the city's proximity to the site of the environmental impact sufficed to show injury:
The stipulated facts indicate that Olmsted Falls is a city
located approximately 2.2 miles southwest of Cleveland
Hopkins International Airport. However, being a city within
close proximity of the airport is not a concrete or specific
injury as required to demonstrate standing. Proximity is only
a factor when coupled with a threatened or actual injury.
Temple v. Schregardus (May 27, 1999), Franklin App. No.
98AP-650, 1999 Ohio App. LEXIS 2373. The evidence only
provides that the land and water will be affected but does not
demonstrate the effect on Olmsted Falls.
Id. at ¶ 29.
{¶ 64} Furthermore, this court noted that "if a threatened injury is alleged, the
party must demonstrate a realistic danger arising from the challenged action." Id. at
¶ 21.
{¶ 65} The magistrate also finds helpful Ogden Projects v. New Morgan Landfill
Co., 911 F.Supp. 863 (E.D.Pa.1996), a case also cited and discussed by the respondents.
{¶ 66} In the Ogden Projects case, the plaintiffs, Ogden Projects, Inc., Ogden
Martin Systems of Lancaster, Inc., John Snyder, and Jeffrey R. Horowitz brought an
action against New Morgan Landfill Company, Inc. ("New Morgan Landfill"). The two
corporate plaintiffs and the two individual plaintiffs (Snyder and Horowitz) alleged that
New Morgan Landfill constructed and continues to operate a solid waste landfill in
Berks County, Pennsylvania without the requisite Clean Air Act ("CAA") permit.
{¶ 67} Finding that the individual plaintiffs lacked standing, the court explains:
To satisfy the first constitutional element of standing, injury
in fact, a plaintiff must prove his injury to be "concrete and
particularized" and "actual or imminent, not 'conjectural' or
'hypothetical.' " Lujan, 504 U.S. at 560, 112 S.CT. at 2136
(citations omitted). We believe the Individual Plaintiffs here
have not made such a showing.
The Individual Plaintiffs base their alleged injuries on the
following facts. Plaintiff John Snyder resides approximately
25 miles from the Morgantown Landfill and utilizes the
No. 14AP-958 21
recreational resources of Lancaster and Berks counties with
his young children. * * * In addition, Plaintiff's expert stated
that the air quality in Berks County would have been better if
Defendant complied with CAA Part D permitting
requirements. * * * As a consequence, Plaintiff Snyder
asserts that emissions from the Morgantown Landfill will
diminish surrounding air quality and thereby adversely
affect his health, environmental and recreational interests.
***
Plaintiff Jeffrey Horowitz resides approximately 85 miles
from the landfill. * * * Nonetheless, his residence still falls
within the Northeast Ozone Transport Region, the same
nonattainment region that the Morgantown Landfill falls
within. * * * He bicycles, skis and regularly uses the outdoor
recreational resources of northern New Jersey with the rest
of his family. * * * Plaintiff Horowitz claims that given this he
suffers anxiety over the impact of Morgantown Landfill
emissions on his health. * * * Plaintiff's expert stated that
such concerns are reasonable. * * * He is also concerned with
the ecological health of the Great Swamp National Wildlife
Refuge, a place where he regularly bicycles. * * * Plaintiff's
expert testified that elevated levels of ozone negatively
impact such ecosystems and degrade the aesthetic appeal of
the sky. * * * The expert did not state the amount of ozone
necessary to create such effects.
The Supreme Court has long recognized that injury to a
plaintiff's health, environmental, recreational or aesthetic
interests constitutes the type of injury sufficient to confer
standing. [Sierra Club v. Morton, 405 U.S. 727, 734.]
Nonetheless, we believe the Individual Plaintiffs fall short of
establishing that their alleged injuries are sufficiently
concrete to satisfy the first prong of the standing test. The
Individual Plaintiffs offer no evidence regarding the
magnitude of the diminished air quality nor the specific
direct effect, if any, that this diminished air quality will have
on their health, environmental and recreational interests.
From the fact that the air quality in the geographical area
surrounding the landfill would have been better had
Defendant obtained a Part D permit, Individual Plaintiffs
summarily conclude that their health, environmental and
recreational interests suffer injury, without filling in the
blanks.
Id. at 869-70.
No. 14AP-958 22
Analysis: Traditional Standing
{¶ 68} Examining the allegations of the complaint, as well as the affidavits of
Cheryl Mshar, Hattie Wilkins, David Barton Castle and Bobbie Sue Castle, it is clear that
the relators have not alleged in their complaint, nor shown by affidavits, an injury that is
concrete and not speculative. Moreover, relators have failed to show that their alleged
injuries are different from that suffered by the public in general.
{¶ 69} In her affidavit executed December 30, 2014, Cheryl Mshar avers that her
home is located .82 of a mile from the Ground Tech facility located at Youngstown,
Ohio. She avers that she has read the Ground Tech application for its March 6, 2014
chief's order. Based on what she has read, Mshar concludes that the drilling wastes
handled by Ground Tech at the facility "will be at least as contaminated, if not more,
with chemicals and radiation as they are when generated during horizontal hydraulic
fracking operations." (Affidavit, ¶ 4.)
{¶ 70} Mshar further avers that on a "near-daily basis" she sees "trucks with large
rolloff tanks, and tank trucks, coming to and from" the Ground Tech facility. (Affidavit,
¶ 15.) She avers that she "can smell hydrocarbon stenches from the plant, a smell [she]
first noticed in 2014 after the company received its Chief's Order." (Affidavit, ¶ 15.)
{¶ 71} Mshar states in her affidavit that she is opposed to hydraulic fracturing
because it "threatens our water supplies and our air with pollution by toxic chemicals
and radiation * * *."
{¶ 72} At paragraph seven of her affidavit, Mshar avers:
Living close by IWC/Ground Tech, I believe that my family,
friends, and I are being involuntarily exposed to, and are
breathing, chemically-polluted and radon-polluted air
emitted from fracking waste delivered to or held at the
facility as a part of routine operations. I believe that my
family, friends and I will be [sic] continue to be involuntarily
exposed to chemical and radioactive air pollution, and will
have to breathe such in the event there are waste spills from
trucks traveling to and from IWC/Ground Tech on streets
closer to my home than the IWC/Ground Tech facility. I also
believe that my family, friends and I will be involuntarily
exposed to chemical and radioactive contamination, both
airborne and waterborne, in the event of a spill into the
Mahoning River, which runs near the facility and near my
home.
No. 14AP-958 23
{¶ 73} In her affidavit executed January 5, 2015, Hattie Wilkins avers that she
lives on Fairmont Avenue in Youngstown, Ohio and that her home is located .74 of a
mile from the Ground Tech facility.
{¶ 74} Like Mshar, Wilkins also avers that she has read the Ground Tech
application for the chief's order. Likewise, she concludes that the drilling wastes
handled by Ground Tech will be contaminated with chemicals and radiation.
{¶ 75} Wilkins also opposes hydraulic fracturing for essentially the same reasons
as does Mshar.
{¶ 76} At paragraph six of her affidavit, Wilkins makes the statement identical to
the one made by Mshar at paragraph seven of her affidavit and as quoted above. That is,
Wilkins believes that her family and friends and herself are being exposed to polluted air
and water from the Ground Tech facility.
{¶ 77} In their affidavit executed January 10, 2015, David Barton Castle and
Bobbie Sue Castle ("the Castles") aver that their home on North Chestnut Street in
Barnesville, Ohio is about 1.7 miles south of the proposed EnerGreen facility.
{¶ 78} The Castles aver that, having read the EnerGreen application they "are
very concerned for [their] health and that of [their] family members in the Barnesville
area." (Affidavit, ¶ 4.)
{¶ 79} At paragraph five of their affidavit, the Castles conclude:
We are concerned that chemicals used to extract oil and gas
from shale during hydraulic fracturing (called "fracking")
will contaminate the drilling wastes at EnerGreen, and that
various chemical poisons will become airborne and be
breathed by us and members of our family who live, work
and conduct business in and around Barnesville.
{¶ 80} At paragraph seven of the affidavit, the Castles aver:
In the past several years we have observed the spread of
horizontal hydraulic fracturing for oil and gas in the vicinity
of Barnesville. We are familiar with the industrial chemical
odors and taste in the mouth from driving in areas where
fracking wells are being developed. We've seen flaring wells
and breathed the toxic air downwind from them in the
vicinity of Barnesville.
No. 14AP-958 24
{¶ 81} At paragraph nine of the affidavit, the Castles endeavor to further examine
the EnerGreen "application for the Chief's Order in this case." They conclude that:
[F]racking waste will be mixed with coal ash and the
resulting blend will be dumped in a place with no liners, no
monitoring wells, no leachate collection systems - in short,
without any of the features one might find in a licensed
landfill.
{¶ 82} Significantly, the Castles do not explain the inference that they hold
expertise in this matter. The inference of expertise is further made when the Castles
state: "We see nothing in their application that suggests the heavy metals or mercury or
concentrated radiation in coal ash will be neutralized, removed or rendered
nondangerous."
{¶ 83} Again, seemingly relying upon unspecified expertise, the Castles conclude
that EnerGreen will fail to follow a practice called "daily cover" and thus, radiation will
move "into water supplies." The Castles also conclude that the lack of daily cover "will
allow radon gas to freely escape from the pile."
{¶ 84} At paragraph ten of the affidavit, the Castles state that they are "concerned
that the wind and water will deposit toxic and radioactive materials throughout
Barnesville and into the Barnesville Reservoir which is south of town."
{¶ 85} At paragraph 11 of their affidavit, the Castles refer to their "investigation,"
which they aver led them to conclude that the situation in Ohio is worse than in
Pennsylvania regarding the control of "radioactive fracking wastes." That the Castles
conducted their own "investigation" which they failed to detail or explain cannot bestow
court recognized expertise that might legitimize their conclusions.
{¶ 86} At paragraph 12 of the affidavit, the Castles assert that the EnerGreen
application provides "no disclosure" of items that the Castles deem significant. Again,
there is no expertise to support the Castles' conclusion. The same problem occurs at
paragraphs 13, 14, and 15 of their affidavit.
{¶ 87} In their April 28, 2015 memorandum in opposition to relator's motion for
summary judgment, respondents Zehringer and Chief Simmers address the lack of
expert opinion to support standing:
No. 14AP-958 25
Relators lack a site-specific evidence based on an analysis of
data by an expert. In fact, Relators have no site-specific
evidence of the alleged harms or how those harms are caused
because the facilities are operating pursuant to Chief's orders
rather than through a permit issued pursuant to the rules
they seek to compel. While the Verified Complaint attempts
to support the Relators' allegation by attaching a general
slide show concerning the alleged risks concerning
radioactivity of oil and gas drilling wastes from hydraulic
fracturing, the slide presentation is not a site specific
analysis of the facilities at issue in this case and certainly
fails to establish a nexus to the harms about which the
individual members speculate. * * *
Additionally, the slide presentation document was not
authenticated and the author of the slide presentation
provided no sworn testimony or otherwise that might
support the court giving any weight to the generalized
contentions in the slide presentation. Given that this hearsay
evidence is not appropriate for consideration in support [of]
summary judgment motion, it should be disregarded. See
Civ.R. 56(C) (limiting evidence properly considered on a
summary judgment motion to "pleadings, depositions,
answers to interrogatories, written admissions, affidavits,
transcripts of evidence, and written stipulations of fact"). But
even if the slideshow were admissible, Relators have
presented no evidence that the risks alleged in the slide show
are the same risks presented by the wells near which the
identified members live. The Relators simply speculate in
their attempt to confer standing.
***
[I]n the present case, there is no site-specific evidentiary
support or expert testimony to prove that the harms alleged
are actually occurring, or that there is even a risk that they
will.
(ODNR's Memorandum in Opposition, 21-23.)
{¶ 88} Significantly, the relators fail to respond to the above-quoted challenge to
their evidence or lack thereof in support of standing. See Relators' May 22, 2015
Memorandum Contra the Motion of Respondents Simmers and Zehringer for Summary
Judgment. The magistrate agrees with respondents' analysis.
No. 14AP-958 26
{¶ 89} The Castles' affidavit endeavors to create an inference of expertise that
does not exist. The Castles' affidavit presents no evidence that the Castles have the
scientific expertise to support their claims that they are being injured or that an injury is
being threatened by the EnerGreen facility located an alleged 1.7 miles from their home
in Barnesville, Ohio.
{¶ 90} Returning to the affidavit of Cheryl Mshar, there is no expert opinion or
evidence to support the inference that the so-called "hydrocarbon stenches" that she
allegedly has smelled since 2014 are in fact causing her harm or injury.
{¶ 91} Likewise, that Mshar has read the Ground Tech application does not
confer on her the competency to render an expert opinion on whether the drilling wastes
handled by Ground Tech at the facility will be contaminated with chemicals and
radiation that have injured her or that threaten injury to her.
{¶ 92} Furthermore, Mshar's belief that her, her family and friends will be
exposed to toxic substances from the Ground Tech facility is not evidence of a concrete
injury. At best, it is speculation that is not evidence of an injury or harm.
{¶ 93} Returning to the affidavit of Hattie Wilkins, there is no expert opinion or
evidence to support an inference that the drilling wastes handled at the Ground Tech
facility has caused her injury or threatens injury. Also, Wilkin's belief that herself, her
family and friends are being injured or will be injured fails to show a concrete injury. At
best, it is speculative and not evidence of an injury or harm.
{¶ 94} Accordingly, based upon the foregoing analysis, the magistrate concludes
that relators have failed to show that they have traditional standing to bring this action.
Analysis: Public-Right Standing
{¶ 95} The public-right doctrine presents "an exception to the personal-injury
requirement of standing." Sheward at 503. The doctrine provides that "when the issues
sought to be litigated are of great importance and interest to the public, they may be
resolved in a form of action that involves no rights or obligations peculiar to named
parties." Id. at 471. To succeed in bringing a public-right case, a litigant must allege
"rare and extraordinary" issues that threaten serious public injury. (Emphasis sic.) Id.
No. 14AP-958 27
at 504. Not all allegedly illegal or unconstitutional government actions rise to this level
of importance. Id. at 503.
{¶ 96} As stated by the plurality opinion in ProgressOhio.org, Inc.: "Sheward
was a deeply divided, four-to-three decision, and it remains controversial today." Id. at
¶ 13.
{¶ 97} Recently, the Supreme Court of Ohio refused to find public-right standing
in State ex rel. Leslie v. Ohio Hous. Fin. Agency, 105 Ohio St.3d 261, 2005-Ohio-1508.
(Constitutional challenge to state spending measures was "not a 'rare and extraordinary
case' warranting invocation of the public-right exception to the personal-stake
requirement of standing.") ProgressOhio.org, Inc. at ¶ 12.
{¶ 98} In Walgate, this court denied public-right standing because the legislation
under challenge "is not of the same magnitude as that presented in Sheward, which
concerned separation of powers and the ability of the Ohio legislature to re-enact
legislation expressly prohibited by the judiciary." Walgate at ¶ 32.
{¶ 99} Here, in their motion for summary judgment (and memorandum in
support filed February 27, 2015), relators summarize their argument as to why they
believe that they have presented a case for public-right standing:
In the instant matter, the deliberate failure by Respondents
to promulgate regulations which would impose constraints
and regulatory insight on the issuance of Chief's Orders has
allowed the imposition of no fewer than 23 potentially or
actually polluting industrial facilities upon the physical
environment in many Ohio counties, with unknown but very
possible effects on the public health of Ohio's citizens.
(Relators' Summary Judgment Motion, 35.)
{¶ 100} Based upon the foregoing, it is clear that, applying the holding in
Walgate, relators do not have public-right standing.
Taxpayer Standing
{¶ 101} As respondents Zehringer and Chief Simmers point out in their
April 28, 2015 memorandum in opposition to relators' motion for summary judgment,
relators allege in their complaint that Mshar, Wilkins, and the Castles are each Ohio
taxpayers who object to the failure of Chief Simmers to promulgate rules. Respondents
No. 14AP-958 28
Zehringer and Chief Simmers argue that Mshar, Wilkins, and the Castles do not have
taxpayer standing to bring this action. (Memorandum, 28-30.)
{¶ 102} Likewise, the intervenors argue in their March 12, 2015 motion for
summary judgment and response to relators' motion for summary judgment that
relators lack standing as taxpayers. (Intervenors' Memorandum, 27-29.)
{¶ 103} In their April 28, 2015 memorandum in opposition to the
intervenors' motion for summary judgment, relators do not address taxpayer standing.
{¶ 104} In their motion for summary judgment filed on February 27, 2015,
relators do not claim or argue for taxpayer standing.
{¶ 105} Moreover, in their motion to dismiss filed December 23, 2014, the
four respondents argue that relators lack taxpayer standing. (Motion to Dismiss, 16-
20.) However, in their January 12, 2015 memorandum contra the respondents' motion
to dismiss, relators do not claim taxpayer standing nor do they respond to the
respondents' argument for lack of taxpayer standing.
{¶ 106} It can be observed that, in their affidavits, Cheryl Mshar and Hattie
Wilkins each aver that they are "an Ohio taxpayer, paying property, income and sales
taxes." It can be further observed that the Castles fail to make a similar averment
regarding their taxpayer status in their affidavit.
{¶ 107} Consequently, given the above-described scenario regarding taxpayer
standing arguments or the lack thereof, the magistrate concludes that relators have
failed to pursue any claim to taxpayer standing that may have been initially raised in the
complaint.
{¶ 108} Accordingly, based upon relators' apparent waiver to any claim to
taxpayer standing, the magistrate concludes that relators have not shown standing as
taxpayers.
Conclusion
{¶ 109} Summary judgment is appropriate when the movant demonstrates that:
(1) there is no genuine issue of material fact; (2) the moving party is entitled to
judgment as a matter of law; and (3) reasonable minds can come to but one conclusion,
and that conclusion is adverse to the party against whom the motion for summary
No. 14AP-958 29
judgment is made, said party being entitled to have the evidence construed most
strongly in his favor. Turner v. Turner, 67 Ohio St.3d 337, 339-40 (1993); Bostic v.
Connor, 37 Ohio St.3d 144, 146 (1988); Harless v. Willis Day Warehousing Co., 54 Ohio
St.2d 64, 66 (1978). The moving party bears the burden of proving no genuine issue of
material fact exists. Mitseff v. Wheeler, 38 Ohio St.3d 112, 115 (1988).
{¶ 110} It is well settled that, in order for a writ of mandamus to issue, relator
must demonstrate: (1) he has a clear legal right to the relief prayed for; (2) the
respondent is under a clear legal duty to perform the act; and (3) relator has no plain
and adequate remedy in the ordinary course of the law. State ex rel. Berger v.
McMonagle, 6 Ohio St.3d 28 (1983).
{¶ 111} Accordingly, based upon the foregoing, it is the magistrate's decision that
this court deny relators' February 27, 2015 motion for summary judgment, grant the
intervenors' March 12, 2015 motion for summary judgment, and grant the respondents'
April 28, 2015 motions for summary judgment. The respondents' December 23, 2014
motion to dismiss is thereby rendered moot.
/S/ MAGISTRATE
KENNETH W. MACKE
NOTICE TO THE PARTIES
Civ.R. 53(D)(3)(a)(iii) provides that a party shall not assign as
error on appeal the court's adoption of any factual finding or
legal conclusion, whether or not specifically designated as a
finding of fact or conclusion of law under Civ.R.
53(D)(3)(a)(ii), unless the party timely and specifically objects
to that factual finding or legal conclusion as required by Civ.R.
53(D)(3)(b).