State ex rel. Brown v. Rockside Reclamation, Inc.

351 N.E.2d 448, 47 Ohio St. 2d 76, 1 Ohio Op. 3d 46, 1976 Ohio LEXIS 675
CourtOhio Supreme Court
DecidedJuly 14, 1976
DocketNo. 75-1065
StatusPublished
Cited by19 cases

This text of 351 N.E.2d 448 (State ex rel. Brown v. Rockside Reclamation, Inc.) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State ex rel. Brown v. Rockside Reclamation, Inc., 351 N.E.2d 448, 47 Ohio St. 2d 76, 1 Ohio Op. 3d 46, 1976 Ohio LEXIS 675 (Ohio 1976).

Opinion

Corrigan, J.

The trial court gave us the benefit of a long and carefully reasoned memorandum opinion, and, likewise, we. were favored with an extensively researched opinion for a unanimous decision by the Court of Appeals. We agree with the conclusions reached by these tribunals and, in . the light of the entire record, we affirm the judgment of the Court of Appeals, for the following reasons.

7.

The Attorney General first asserts that:

“The Director.of the Ohio Environmental Protection Agency is. not. required to issue , a' formal administrative order before requesting the Attorney General to initiate judicial enforcement of the Ohio Solid Waste Act, Chapter 3734 of the Revised Code; Revised Code Section 3734.10 gives the director discretion to elect in favor of immediate injunctive relief to secure compliance with the Solid Waste Act.”

Throughout the trial the Attorney General affirmed on a number of occasions that he was bringing this-action in his capacity as representative of the people of the state of Ohio and was not bringing the action pursuant to a com[79]*79plaint of the Director of. Environmental Protection or as the enforcement arm of the .Environmental. Protection Agency.

■ At the trial, Mr. Newman, the Assistant Attorney General, stated as follows:

“Your Honor, I object to that. We are not representing E. P. A., Department of Health, the Board of Health of the Cuyahoga County. And I know that — ”

Nowhere in its case in chief did the Attorney General oven attempt to introduce any evidence that he was prosecuting this action upon complaint of the Director of Environmental Protection.

The Attorney General, after he 'had rested his case, again reaffirmed in open court that he was bringing this action under the general nuisance statutes and was not bringing it under or by complaint of the Director of Environmental Protection. The record reflects the following:

“Mr. Disbro [counsel for defendant]: If I might just— because I will say it sooner or later — two things that I might have expressed earlier to this court, if not, I want to do so now.

“One, there is no allegation in any of the pleadings tiled by the Attorney General. The caption is the State of Ohio, ex rel. As I understand in general terms, that means on behalf of the people representing the people of the state of Ohio.

“There is nowhere in the body of the original complaint, nór the amended complaint, nor the amendments to the amended complaint, any allegation that the action brought by the Attorney General-has been authorized by the Director of the Environmental Protection Agency: ■ •

“And, I’m. sure the court is mindful of the fact-that on more than one occasion Mri Newman has stated to this court that he does not represent'any administrative agency in this action, simply a direct action by the. Ohio Attorney General’s office.

“Those'would be the things' that.I would point out in rebuttal. I thought Twohld say th¿m.

“Mr. Newman [counsel for plaintiff]: Those are cor[80]*80rect, your. Honor, both of those statements. I have no disagreement with either one of them.”

The Attorney General did introduce in evidence, at the close of the entire case, a letter from the Director of Environmental Protection, dated December 8, 1972, to the Attorney General which approved what the latter had done in filing the complaint and suggesting that he proceed.

This letter, of course, was written several weeks after the suit was filed by the Attorney General and obviously there is no way it could b¿ considered as constituting a complaint by the Director of Environmental Protection to provide the basis of this lawsuit. The Attorney General contended that this letter constitutes the complaint referred tó in R. C. 3734.10. The Court of Appeals reviewed the record and the transcript of-testimony and exhibits, and found no evidence that the board of health or the Director of Environmental Protection issued any order to Rockside stating a violation of any regulation or statute under R. C. Chapter 3734; nor did it find any evidence that a complaint was made by the board of health or the director to the Attorney General, alleging a violation of R. C. Chapter 3734 and ’ requesting that the Attorney General initiate appropriate legal proceedings by way of prosecution or injunction. Upon a review of the record, wé agree with the Court of Appeals.

R. C. 3734.10 states, in part:

“The Attorney General, or the prosecuting attorney of the county or the city solicitor or attorney of the city where a violation occurs, upon complaint of the respective hoard of health of the health district or the Director of Environmental Protection, shall prosecute to termination or bring an action for injunction against any person violating Sections 3734.01 to 3734.11 of the Revised Code. The Common Pleas Court in which an action for injunction is filed has the jurisdiction to grant injunctive relief upon a showing that the respondent named in the petition is operating a solid waste disposal site or facility in violation of Sections 3734.-01 to 3734.11 of the. Revised Code.” (Emphasis added.)

[81]*81Thus, it is specifically provided that the Attorney General may “prosecute to termination or firing an action for injunction” only “upon complaint of the respective board of health of the health district or the Director of Environmental Protection.” In other words, the complaint of the board of health of the health district or that of the Director of Environmental Protection is a condition precedent for the Attorney General’s institution of an action for injunction. If, for instance, as provided in E. 0. 3734.09, the board of health of a health district decides that there is an immediate serious public health hazard, it may ask the Attorney General to bring an action for injunction without •any notice in writing of violations of E. C. 3734.01 to 3734.-11 involving a solid waste disposal site licensee.

II A.

The Attorney General initiated this action allegedly under favor of E. C. 3767.13, 3767.32 and 6111.04. R; C. "Chapter 3767 relates to general nuisances.

In pertinent part, R. C. 3767.13 provides:

“No person shall * * * use, or maintain a * * * place for the exercise of a * * * business * * * which, by occasional noxious exhalations of noisome or offensive smells, becomes injurious to the health, comfort, or property of individuals or of the public * *

This statute, which became effective October 1, 1953, is clearly a general nuisance provision of the law. It is not applicable to a duly licensed solid waste disposal operation such as Eockside’s.

II B.
E. C. 3767.32 reads as follows:

“No person shall place or dispose of in any manner any garbage, waste, or peelings' of vegetables or fruits, rubbish, ashes, cans, bottles, wire, paper, cartons, boxes, parts of automobiles, wagons, furniture, glass, oil, or .-anything else of an unsightly or unsanitary nature in any ditch, stream, river, lake, pond, or other watercourse, except those waters which do not combine or effect a junefion with natural surface or underground waters, or upon [82]

Free access — add to your briefcase to read the full text and ask questions with AI

Related

In Re Title Insurance Antitrust Cases
702 F. Supp. 2d 840 (N.D. Ohio, 2010)
Spivey v. State of Ohio
999 F. Supp. 987 (N.D. Ohio, 1998)
Atwater Township Trustees v. B.F.I. Wlllowcreek Landfill
67 Ohio St. 3d 293 (Ohio Supreme Court, 1993)
Atwater Twp. Trustees v. B.F.I. Willowcreek Landfill
1993 Ohio 216 (Ohio Supreme Court, 1993)
Allen Freight Lines, Inc. v. Consolidated Rail Corp.
595 N.E.2d 855 (Ohio Supreme Court, 1992)
Allen Freight Lines, Inc. v. Consol. Rail Corp.
1992 Ohio 113 (Ohio Supreme Court, 1992)
State ex rel. City of Toledo v. Board of Commissioners
513 N.E.2d 769 (Ohio Supreme Court, 1987)
Harvard Refuse, Inc. v. City of Cleveland
481 N.E.2d 656 (Ohio Court of Appeals, 1984)
Haverlack v. Portage Homes, Inc.
442 N.E.2d 749 (Ohio Supreme Court, 1982)
Fisher v. Austriaco
440 N.E.2d 1241 (Ohio Court of Appeals, 1981)
McMahon v. Amoco Oil Co.
2 Mass. Supp. 480 (Massachusetts Superior Court, 1981)
State of Ohio v. United Transp., Inc.
506 F. Supp. 1278 (S.D. Ohio, 1981)
State ex rel. Williams v. Bozarth
377 N.E.2d 1006 (Ohio Supreme Court, 1978)

Cite This Page — Counsel Stack

Bluebook (online)
351 N.E.2d 448, 47 Ohio St. 2d 76, 1 Ohio Op. 3d 46, 1976 Ohio LEXIS 675, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-brown-v-rockside-reclamation-inc-ohio-1976.