State ex rel. Celebrezze v. Environmental Enterprises, Inc.

559 N.E.2d 1335, 53 Ohio St. 3d 147, 32 ERC (BNA) 1125, 1990 Ohio LEXIS 364

• Court: Ohio Supreme Court
• Decided: August 29, 1990
• Docket: No. 89-1226
• Status: Published

Opinions

Douglas, J.

Appellant appeals to this court challenging the order of the court of appeals remanding appellees’ counterclaim to the trial court, and the judgment of the court of appeals regarding Counts VII and XV of appellant’s complaint as those counts relate to appellee EEI.

I

In Count VII of its complaint, appellant alleged that in April 1986, appellees improperly stored hazardous wastes in violation of Ohio Adm. Code 3745-66-71, which provides that:

“If a container holding hazardous waste is not in good condition, or if it begins to leak, the owner or operator [of a facility] shall transfer the hazardous waste from such container to a container that is in good condition, or manage the waste in another manner that complies with the requirements of the hazardous waste facility interim standards chapters of the Administrative Code.”

The evidence produced at trial shows that on the morning of April 21, 1986, Ohio EPA inspectors conducted an inspection of EEI’s Spring Grove hazardous waste treatment, storage and disposal facility in Cincinnati, Ohio. The inspectors observed boxes that were located outside the facility. Some of the boxes were covered by plastic and others appeared to have had the plastic covering blown off and were, thus, uncovered. The boxes appeared to be wet and at least one of the boxes was split at the bottom, allowing some hazardous material to leak out. Hazardous material also spilled from one of the uncovered boxes. The material which had spilled or leaked was cleaned up upon discovery and transferred to containers in good condition. Rain had apparently fallen sometime prior to the inspection. The hazardous materials in the boxes caused some of the boxes to bulge.

Appellees’ plant manager testified that some of the boxes were placed outside the facility approximately twelve to eighteen hours prior to their being discovered by the Ohio EPA inspectors. One inspector was told that these boxes had been placed outside the facility to be picked up by a truck expected early on the morning of April 21. On the morning of April 21, prior to the inspection, EEI employees observed the boxes, all of which were covered, and no box was leaking.

Based upon this and other evidence, the trial court found that appellees violated Ohio Adm. Code 3745-66-71. The court of appeals found that the record in this case is devoid of evidence concerning the length of time that the boxes had been leaking. Further, the court of appeals found that appellees caused the hazardous material to be transferred to containers in good condition upon discovery of the leak and, thereby, complied with Ohio Adm. Code 3745-66-71. Accordingly, the court of appeals, pursuant to App. R. 12(C), reversed the judgment of the trial court and entered judgment on Count VII of the complaint in favor of EEI. As this case was tried to the court, and not a jury, we conclude that the court of appeals was clearly within its authority to reverse the trial court and enter judgment for EEI under App. R. 12(C) and, therefore, we affirm this portion of the appellate court’s judgment. In doing so, we decline to make a determination regarding the weight of the evidence. See R.C. 2503.43.

II

In Count XV of its complaint, appellant alleged that appellees failed to take adequate precautions against a fire which had occurred in September 1986 and, thereby, violated Ohio Adm. Code 3745-65-17(A), which provides in relevant part that:

“The owner or operator [of a facility] shall take precautions to prevent accidental ignition or reaction of ignitable or reactive waste. This waste shall be separated and protected from sources of ignition or reaction including, but not limited to: open flames, * * * frictional heat, sparks (static, electrical, or mechanical) * * * >>

The evidence produced at trial shows that on September 3, 1986, a fire occurred at EEI’s facility while EEI’s employee, David Jones, was shredding aerosol cans containing flammable materials. The fire occurred when Jones entered the “shredder room” and attempted to start a forklift. A spark caused the ignition of flammable materials. Jones was warned not to start the forklift but, nevertheless, turned the key in the ignition, causing an explosion and a fire. Jones was severely burned. Testimony indicated that prior to the explosion Jones may have removed fuses and sensors from a gas monitoring system contained in the shredder room which rendered inoperable the system designed to detect dangerous levels of explosive vapor and sound a warning alarm in the event of danger. Jones and others had removed the fuses on several occasions. Jones was terminated following the September 3, 1986 fire.

The trial court found that the safety precautions taken by EEI to prevent the ignition of hazardous materials were adequate. Nevertheless, the trial court found that EEI was vicariously liable for the acts of its employee and, thus, EEI had violated Ohio Adm. Code 3745-65-17(A). The court of appeals reversed the trial court, holding that EEI was not vicariously liable for Jones’s acts. As this case was tried to the court, and not a jury, we conclude that the court of appeals was clearly within its authority to reverse the trial court and enter judgment for EEI under App. R. 12(C) and, therefore, we affirm this portion of the appellate court’s judgment. In doing so, we decline to make a determination regarding the weight of the evidence. See R.C. 2503.43.

Ill

The trial court dismissed appellees’ counterclaim. The court of appeals reversed the judgment of the trial court and remanded the counterclaim for further proceedings. The final issue before us is whether the court of appeals erred in this regard.

In the counterclaim, appellees sought a declaration that Ohio’s hazardous waste program was unenforceable under state and federal laws. Appellees alleged that Ohio had lost its federal authorization to operate a hazardous waste program on January 31, 1986. Further, appellees alleged that Ohio EPA had made demands inconsistent with and inequivalent to demands made by the United States Environmental Protection Agency (“U.S. EPA”), thereby rendering Ohio’s hazardous waste laws invalid and unenforceable. In effect, appellees sought to have the trial court declare that Ohio’s hazardous waste program was preempted by federal legislation.

Appellant suggests that a counterclaim seeking declaratory relief is both an inappropriate and unavailable mechanism for challenging the enforcement of Ohio’s hazardous waste laws. We do not agree. In Pack v. Cleveland (1982), 1 Ohio St. 3d 129, 1 OBR 166, 438 N.E. 2d 434, paragraph one of the syllabus, we held that:

“Any person whose rights, status or other legal relations are affected by a law may have determined any question of construction or validity arising under such law, where actual or threatened prosecution under such law creates a justiciable controversy. Courts of record may declare rights, status and other legal relations, and the declaration may be either affirmative or negative in form and effect. (R.C. 2721.01 and 2721.03 applied.)”

In the case sub judice, appellees seek a declaration that Ohio’s entire scheme for regulation of hazardous waste is unenforceable and invalid and that appellees’ prosecution under the law is impermissible. As such, according to Pack, appellees could properly seek a declaration of their rights under the alleged invalid laws. However, the trial court apparently viewed appellees’ counterclaim not as an independent claim for relief but, rather, as a defense to appellant’s complaint. As such, the trial court dismissed appellees’ counterclaim as “moot” or “not relevant” after finding against EEI on Counts VII and XV of the complaint. The court of appeals held, and we agree, that the trial court erred in this determination.

A counterclaim may be asserted offensively as an independent claim against an opposing party. See 1970 Staff Note to Civ. R. 13(C). Appellees’ counterclaim seeking declaratory and injunctive relief was not dependent upon the success or failure of appellant’s complaint and was, thus, independent in nature. Therefore, appellees’ counterclaim was not rendered “moot” based upon the trial court’s findings.

However, we are not prepared to say that the trial court erred in dismissing appellees’ counterclaim. According to the court of appeals, appellees set forth a cognizable claim for relief when the pleadings are viewed in a light most favorable to them. We disagree. For the reasons set forth below, we hold that appellees’ counterclaim fails to state a claim upon which relief can be granted and, thus, we reverse the judgment of the court of appeals and reinstate the judgment of the trial court dismissing appellees’ counterclaim.

The Resource Conservation and Recovery Act of 1976 (“RCRA”), Section 6901 et seq., Title 42, U.S. Code, was enacted to provide, inter alia, improved methods for the proper disposal of solid wastes through federal action, although the collection and disposal of solid wastes was to remain primarily a matter for the several states. Section 6901(a)(4), Title 42, U.S. Code. Under RCRA, certain states could seek the approval of the Administrator of U.S. EPA for the state to temporarily operate a hazardous waste program in lieu of the federal program regulating hazardous waste. Section 6926(c), Title 42, U.S. Code. Likewise, a state could seek final approval from the Administrator of U.S. EPA to operate a state program in lieu of the federal program. Section 6926(b), Title 42, U.S. Code. To obtain final approval, a state’s hazardous waste management program must: (1) be equivalent to the federal program, (2) be consistent with the federal program and other state programs which have received final authorization, and (3) provide adequate enforcement. Id. RCRA specifically provides that no state may fall below the minimal standards established under RCRA. Section 6929, Title 42, U.S. Code. However, RCRA also specifically provides that nothing prohibits the states from imposing standards which are more stringent than required under RCRA. Id.

Ohio’s interim authorization to operate its hazardous waste program expired on January 31, 1986 by operation of the Hazardous and Solid Waste Amendments of 1984, Pub. L. No. 98-616, 98 Stat. 3254 (1984). As a result, and since Ohio had not obtained final authorization to run its program after the January 31, 1986 expiration date, authority to’ implement the RCRA hazardous waste management program reverted to U.S. EPA. Even before the January 31, 1986 expiration date, Ohio and the regulated community were notified, by way of publication, that Ohio’s interim authorization could expire with the resultant reversion of the authority to operate the program to U.S. EPA. 50 Fed. Reg. 48406-48407 (Nov. 25, 1985) (to be codified at 40 C.F.R. Part 271). This notice provides in relevant part that:

“The regulated community should take particular note that beginning January 31, [1986] hazardous waste handlers in States whose interim authorization expires will be required by law to comply with the Federal regulations in Title 40 of the Code of Federal Regulations, Parts 124, 260-265 and 270, as well as the State regulations. * * * The State will continue to implement its State hazardous waste program, as this program remains in effect under State law.” (Emphasis added.) Id.

The notice further provides that if a state has regulations comparable to the federal regulations and if the state is responding to violations of state law in a timely and appropriate manner, U.S. EPA expects to defer to the state’s administrative and judicial proceedings without initiating parallel enforcement action to enforce the federal requirements. Id. at 48407.

Subsequently, the state of Ohio was again notified that its interim authorization was expected to revert to U.S. EPA. Once again, notice was given to the state of Ohio, and the regulated community, that:

“The regulated community should take particular note that beginning January 31, [1986] hazardous waste handlers in States whose interim authorization expires will be required by law to comply with the Federal regulations in Title 40 of the Code of Federal Regulations, Part 124, 260-265 and 270, as well as the State regulations. * * * The State will continue to implement its State hazardous waste program, as this program remains in effect under State law.” (Emphasis added.) 51 Fed. Reg. 4128 (Jan. 31, 1986).

With the foregoing discussion in mind, and assuming, as we must, that the factual allegations contained in appellees’ counterclaim are true, we are unable to conclude that Ohio could not enforce its hazardous waste program after Ohio’s interim authorization lapsed, but before it received final authorization by U.S. EPA.

To dismiss appellees’ counterclaim for failing to state a claim, all allegations contained in the counterclaim must be accepted as true. Mitchell v. Lawson Milk Co. (1988), 40 Ohio St. 3d 190, 192, 532 N.E. 2d 753, 756. Further, in O’Brien v. University Community Tenants Union (1975), 42 Ohio St. 2d 242, 71 O.O. 2d 223, 327 N.E. 2d 753, syllabus, we held:

“In order for a court to dismiss a complaint for failure to state a claim upon which relief can be granted (Civ. R. 12(B)(6)), it must appear beyond doubt from the complaint that the plaintiff can prove no set of facts entitling him to recovery. * * *” (Citation omitted.)

Therefore, we accept as true appellees’ allegations that Ohio’s hazardous waste program “floundered” and on January 31, 1986, U.S. EPA revoked Ohio’s authority to operate a hazardous waste program in lieu of the federal program; and that Ohio has issued rules and made demands upon EEI which are inconsistent with, and not equivalent to, the rules and demands made upon EEI by U.S. EPA. Even so, we do not believe that these facts make Ohio’s rules and regulations unenforceable or that federal law preempts Ohio’s regulation of hazardous waste.

RCRA provides that states may have more stringent standards than those required under RCRA Section 6929, Title 42, U.S. Code. Hence, if appellees are alleging a violation of RCRA because the “inconsistency” or “inequivalency” between state and federal law is due to Ohio’s standards being greater than those required under RCRA, appellees’ contentions are frivolous. If appellees are alleging a violation of RCRA because the “inconsistency” or “inequivalency” between state and federal law is due to Ohio enforcing less stringent standards than are required by U.S. EPA, appellees would suffer no prejudice as a result of the inconsistent or inequivalent standards. In this scenario, appellees would still have to abide by the greater standard established under RCRA if U.S. EPA actively sought to enforce the federal program.

Furthermore, it is clear from our discussion that the withdrawal of Ohio’s interim authorization did not affect its ability to enforce state laws governing hazardous wastes. Ohio does not derive its rights to regulate hazardous wastes from U.S. EPA. Indeed, for states in which interim authorization was expected to lapse, the regulated community was told that the states would continue to implement the state hazardous waste laws.

It is also clear that RCRA is not meant to preempt state hazardous waste management laws. “Preemption,” or federal displacement of state regulation, will not be declared unless such displacement was the clear and manifest purpose of Congress. Rice v. Santa Fe Elevator Corp. (1947), 331 U.S. 218, 230. We find that all the evidence available leads to the conclusion that preemption was not the purpose of Congress in enacting RCRA.

Nevertheless, appellees contend that Ohio’s rules and regulations, as interpreted and applied, make it impossible for appellees to comply with federal standards. In effect, appellees argue that if they comply with the federal standards, they wifi violate Ohio law, and if they comply with Ohio’s standards, they will violate federal law. In such a situation, federal preemption may be found to apply. See Florida Lime & Avocado Growers, Inc. v. Paul (1963), 373 U.S. 132, 142-143 (federal exclusion of state law is inescapable where compliance with both federal and state regulations is a “physical impossibility”). However, appellees did not plead that the inconsistency between Ohio’s regulations and the federal regulations made it a physical impossibility for appellees to comply with the dual requirements. A mere “inconsistency” between the two sets of regulations does not lead to the conclusion that the state regulations must be displaced by the federal regulations. An exclusion of state law will not be assumed despite dissimilarities between the dual regulations absent such “physical impossibility” of dual compliance, or absent a clear Congressional purpose to preempt.

Additionally, appellees alleged in the counterclaim that Ohio lost its authority to operate a hazardous waste program under R.C. Chapter 3734. R.C. 3734.12 provides in relevant part that:

“The [Ohio] director of environmental protection shall adopt and may modify, suspend, or repeal rules in accordance with Chapter 119. of the Revised Code, which shall be consistent with and equivalent to the regulations promulgated under * * * [RCRA].”

Appellees contend that the interpretation and administration of Ohio’s rules are inconsistent with, and inequivalent to, the interpretation and application of U.S. EPA rules and, hence, Ohio’s rules are unenforceable. However, R.C. 3734.12 does not address the interpretation or administration of rules but, rather, applies to rules adoption, modification, suspension and repeal. In any event, appellees sought relief in the form of a declaration that Ohio lost its authority to operate a hazardous waste program. Even if we were to conclude that some of Ohio’s rules differ from federal rules and that such rules promulgated under R.C. 3734.12 would, therefore, be rendered invalid, we would not find that Ohio’s entire hazardous waste program would be invalidated as a result.

Accordingly, we affirm the judgment of the court of appeals regarding Count VII and Count XV of the complaint. Further, we find that the trial court properly dismissed appellees’ counterclaim for the foregoing reasons and, thus, we reverse the judgment of the court of appeals with respect thereto.

Judgment affirmed in part and reversed in part.

Moyer, C.J., Holmes and Wright, JJ., concur. Sweeney, H. Brown and Resnick, JJ., concur in part and dissent in part.