Atwater Township Board of Trustees v. Welling

920 N.E.2d 183, 184 Ohio App. 3d 201
CourtOhio Court of Appeals
DecidedAugust 28, 2009
DocketNo. 2008-P-0100
StatusPublished
Cited by1 cases

This text of 920 N.E.2d 183 (Atwater Township Board of Trustees v. Welling) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Atwater Township Board of Trustees v. Welling, 920 N.E.2d 183, 184 Ohio App. 3d 201 (Ohio Ct. App. 2009).

Opinion

Timothy P. Cannon, Judge.

{¶ 1} Appellant, Robert J. Welling, appeals the judgment of the Portage County Municipal Court, Ravenna Division, awarding Atwater Township Board of Trustees (“the township”) the amount of $600 plus eight percent interest per annum. For the following reasons, we reverse the judgment of the trial court.

{¶ 2} The instant action arises from an incident occurring on October 19, 1999. Welling is the owner of an 83-acre parcel of land located at 1608 State Route 83. Located on this property is a trailer park, which houses approximately 38 trailers and 30 200-gallon tanks used for storing fuel heating oil. Welling testified that on date, he was regrading a mobile home lot when he attempted to move a fuel oil storage tank by placing a chain around it. Welling testified that the fuel oil in the tank had been used during the winter months and, as a result, condensation formed in the tank. As he was attempting to move the tank, he “hit a little bump,” the tank tipped out, and “out spilled what was in the tank, which is nothing.” However, Welling then testified that a liquid did spill from the tank; the area of the spill was approximately six to eight inches wide by five feet long.

{¶ 3} Thereafter, the township presented the testimony of Melvin Russell, a firefighter1 with the Atwater Township Fire Department, who is certified in hazmat operations and awareness. In addition to his employment with the fire department, Russell worked for Atlas America, an oil and gas company.

{¶ 4} Russell testified that he, along with two assistant fire chiefs and several personnel, responded to a report of an oil spill at 1608 State Route 83. The vehicles responding to the scene consisted of a fire engine, a heavy rescue vehicle, and an ambulance. Russell testified that the three vehicles were necessary to respond to the oil spill, as the heavy rescue vehicle contained all of the hazmat clean-up equipment and, for safety purposes, an ambulance always accompanies a fire engine.

{¶ 5} Upon arriving at the scene of the incident, Russell observed a “fuel oil tank hanging from a chain off the front end loader of a backhoe.” Russell stated that flowing from the fuel oil tank was a liquid that was “light brownish” in color. Russell further testified there was a strong odor of “a petroleum type product” at the scene of the incident and that approximately 100 gallons of a fuel oil product were flowing from the tank into a grassy area of a nearby field.

[204]*204{¶ 6} Following protocol, the fire department dug a 75-foot ditch to prevent the flow of the oil and laid booms, i.e., absorbent rolls used to soak oil. According to Russell’s testimony, this process took approximately five hours to complete.

{¶ 7} Welling was presented with an invoice from the township in the amount of $1,700 for the hazardous-material response.

{¶ 8} In January 2007, the township filed a complaint against Welling seeking recovery in the amount of $1,700 for costs incurred in responding to the incident. A bench trial commenced on September 19, 2008. The trial court found in favor of the township in the amount of $600.

{¶ 9} Welling filed an appeal, and this matter is now before this court for consideration of the following assignments of error:

{¶ 10} “[1.] The trial court erred in determining that the standard established by Ohio Revised Code Section 3745.13 allows for the recovery of money based upon necessary and reasonable costs incurred in dealing with the spill.

{¶ 11} “[2.] The trial court erred in determining that the requirements of Ohio Revised Code Section 3745.13 were met in relation to the Township of Atwater establishing through testimony and/or exhibits the ‘necessary and reasonable, additional or extraordinary costs it incurred in abating the spill.’

{¶ 12} “[3.] The trial court erred in failing to require the plaintiff, the Township of Atwater, to establish their compliance with Section 5502.26 of the Ohio Revised Code.

{¶ 13} “[4.] The trial court erred in failing to recognize the requirements of Section 3745.13(A) in the very last portion of that first paragraph of the statute requiring that prior to any liability for costs owed to the political subdivision may arise there needs to be a compliance with the criteria and methods for response as prescribed under 40 C.F.R. 300, as amended.

{¶ 14} “[5.] The trial court erred in failing to determine that the balance of the requirements as set forth in Section 3745.13(A) in the second paragraph of said section had been complied with regarding the township keeping a detailed record of the costs for mitigating or abating the unauthoiized spill and further certifying those costs to the prosecutor who represented the county.

{¶ 15} “[6.] The trial court erred to the prejudice of the defendant in rendering the decision for the plaintiff and that it failed to meet its burden of proof.

{¶ 16} “[7.] The trial court erred in attempting to assume that the plaintiff had established the appropriate criteria and methods required under 40 C.F.R. 300, as amended as having been established by the township.

[205]*205{¶ 17} “[8.] The trial court erred to the prejudice of the defendant in its order in disregarding the weight of the evidence provided at trial by the plaintiff and improperly applied the provisions of Section 3745.13.”

{¶ 18} As Welling’s first, second, sixth, and eighth assignments of error are interrelated, we address them together. Welling asserts that the township failed to present any evidence “establishing the fact that the statutory standard had been met for the recovery of any funds from [him].” Further, Welling maintains that the judgment of the trial court was erroneous, since it misinterpreted R.C. 3745.13, the controlling statute at issue.

{¶ 19} At the outset, we note that the civil manifest-weight-of-the-evidence standard is that “[j]udgments supported by some competent, credible evidence going to all the essential elements of the case will not be reversed by a reviewing court as being against the manifest weight of the evidence.” C.E. Morris Co. v. Foley Constr. Co. (1978), 54 Ohio St.2d 279, 8 O.O.3d 261, 376 N.E.2d 578, syllabus.

{¶ 20} R.C. 3745.13(A)2 states:

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Cite This Page — Counsel Stack

Bluebook (online)
920 N.E.2d 183, 184 Ohio App. 3d 201, Counsel Stack Legal Research, https://law.counselstack.com/opinion/atwater-township-board-of-trustees-v-welling-ohioctapp-2009.