Helms v. Koncelik

931 N.E.2d 657, 187 Ohio App. 3d 231
CourtOhio Court of Appeals
DecidedApril 20, 2010
DocketNos. 09AP-628 and 09AP-634
StatusPublished
Cited by1 cases

This text of 931 N.E.2d 657 (Helms v. Koncelik) 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
Helms v. Koncelik, 931 N.E.2d 657, 187 Ohio App. 3d 231 (Ohio Ct. App. 2010).

Opinion

Klatt, Judge.

{¶ 1} Appellant, Joel A. Helms, appeals from a final order of the Environmental Review Appeals Commission (“ERAC”) affirming the final action of appellee, Joseph P. Koncelik, director of the Ohio Environmental Protection Agency (“OEPA”), denying Helms a permit to install components of a wastewatertreatment plant. For the following reasons, we affirm.

{¶ 2} Helms and his family own CountryView South Apartments, a 34-unit apartment building located in North Canton, Ohio. In 1974, the OEPA issued Helms a permit to install a 10,000-gaIlon-per-day, extended-aeration wastewatertreatment plant to serve CountryView. Although the plans for the proposed wastewater-treatment plant included an 825-square-foot surface-sand filter, Helms did not construct that portion of the plant. Without the surface-sand filter, the wastewater that cycled through the plant did not receive any tertiary treatment. As constructed, the plant provided only primary and secondary treatment to the wastewater before discharging it into Dickerhoof Ditch.

{¶ 3} In 1985, a farmer accidentally cut the discharge pipe that extended from the CountryView wastewater-treatment plant to Dickerhoof Ditch. Wastewater then seeped into the field near the plant, eventually causing two wetland cells to develop.

{¶ 4} On July 16, 2002, Helms submitted to the OEPA a permit to install an application that proposed the creation of a constructed wetland to provide tertiary treatment to the wastewater emitted by CountryView. Specifically, the application included plans for a two-cell constructed wetland, and it contemplated that wastewater leaving the wastewater-treatment plant would flow through the [234]*234constructed wetland cells before passing into the existing wetland cells. Ultimately, the wastewater would be discharged into Dickerhoof Ditch.

{¶ 5} Jennifer Bennage, an environmental engineer with the OEPA’s Division of Surface Water, reviewed Helms’s application. In a letter dated August 13, 2002, Bennage communicated her initial comments on the application to Ken Jensen, the professional engineer who drafted the engineering plans for the constructed wetland. To Bennage, the application and plans were incomplete. Most significantly, the application lacked an engineering report explaining the basis of design and setting forth the design calculations for the constructed wetland. Bennage informed Jensen that the OEPA required such a report.

{¶ 6} To assist Jensen in drafting the engineering report, Bennage directed him to three United States Environmental Protection Agency (“USEPA”) publications that provide guidance for the design of constructed wetlands for wastewater treatment. These publications contain the formulas a design engineer must use to determine whether a planned wetland can function appropriately and adequately treat the wastewater flowing into it. To complete these design calculations, the engineer would need data from to his specific site, e.g., the wastewater-inflow flow rate, the volume of water the wetland can store, the hydraulic gradient, and the porosity and hydraulic conductivity of the substrate the engineer plans to use (typically gravel and sand).

{¶ 7} By correspondence dated January 23, 2003, Helms informed the OEPA that “[u]pon review of [US]EPA literature no further comments could be given” and “[b]ased on principle of duplicate documents, report not necessary.” Additionally, Jensen told Bennage that he would not submit an engineering report to supplement the permit-to-install application.

{¶ 8} Bennage then prepared a report recommending that the OEPA deny Helms’s permit-to-install application. The report listed 12 reasons justifying the denial, beginning with Helms’s failure to submit an engineering report that included the basis of design and design calculations for the constructed wetland. Without the basis of design, Bennage could not determine whether the proposed project met the criteria of Ohio Adm.Code 3745-42-04(A), which governs the issuance of permits to install.1

[235]*235{¶ 9} On July 15, 2003, Bennage met with Jensen to discuss the submission of a revised permit-to-install application that would include information missing from the first application. Apparently, Jensen indicated at that meeting that he would neither submit a revised application nor an engineering report.

{¶ 10} At that point, realizing that she could not rely upon Jensen to provide the calculations justifying the design proposed, Bennage attempted to do the calculations herself. However, Bennage concluded that the application did not contain much of the information she needed to complete the calculations. Thus, Bennage could not determine whether Jensen had appropriately designed and sized the proposed constructed wetland to reduce the pollutants contained in CountryView’s wastewater to the required limits.

{¶ 11} On March 9, 2004, the director of the OEPA issued a proposed denial of Helms’s permit-to-install application. The director informed Helms that the denial arose from his failure to submit either an engineering report detailing the basis of design or revised detail plans. In response, Helms requested an adjudicatory hearing. He also submitted additional information regarding the proposed constructed wetland. This additional information consisted largely of photocopied excerpts from the USEPA publications that Bennage had referred to in her August 13, 2002 letter. Although Helms provided some information specific to the proposed project, Bennage did not find any of that information helpful in determining whether the constructed wetland actually would provide tertiary treatment to CountryView’s wastewater. Additionally, none of the documents that Helms prepared were signed or certified by a professional engineer.

{¶ 12} A hearing examiner conducted an adjudicatory hearing from November 7 through 11, 2005. Helms, Jensen, and Bennage testified to the facts set forth above. Based on the evidence adduced at the hearing, the hearing examiner issued a report and recommendation in which he recommended that the director of the OEPA deny Helms’s permit-to-install application. On November 28, 2006, the director adopted the report and recommendation in its entirety.

{¶ 13} Helms appealed the director’s denial of his application to the ERAC. In its May 6, 2009 decision and final order, the ERAC affirmed the director’s denial of Helms’s permit-to-install application. Helms now appeals from the ERAC’s final order to this court, and he assigns the following assignments of error:

[1] The commission’s denial of [CountryView’s] [permit-to-install] application was in violation of Article I § 19(b) of the Constitution of the state of Ohio.
[236]*236[2] The commission’s decision to deny [CountryView’s] [permit-to-install] application was not supported by reliable, probative and substantial evidence because the commission erroneously found that the existing wetland cells are waters of the state.
[3] The commission’s finding that the wetland cells did and/or would not provide effective tertiary treatment for the [wastewater-treatment plant] at [CountryView] and its decision to, therefore, deny [CountryView’s] [permit-to-install] application was not supported by reliable, probative and substantial evidence.

{¶ 14} Before we address the merits of Helms’s appeal, we must first resolve the director’s motion to dismiss.

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Bluebook (online)
931 N.E.2d 657, 187 Ohio App. 3d 231, Counsel Stack Legal Research, https://law.counselstack.com/opinion/helms-v-koncelik-ohioctapp-2010.