[Cite as State ex rel. Dewine v. Washington C.H., 2014-Ohio-3557.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
FAYETTE COUNTY
STATE OF OHIO EX REL. MICHAEL : DEWINE, ATTORNEY GENERAL OF OHIO, : CASE NO. CA2013-12-030
Plaintiff-Appellant, : OPINION 8/18/2014 - vs - :
CITY OF WASHINGTON COURT HOUSE, : OHIO, : Defendant-Appellee. :
CIVIL APPEAL FROM FAYETTE COUNTY COURT OF COMMON PLEAS Case No. 06 CVH 00352
Michael DeWine, Ohio Attorney General, L. Scott Helkowski, Summer J. Koladin Plantz, Environment Enforcement Section, 30 East Broad Street, 25th Floor, Columbus, Ohio 43215, for plaintiff-appellant
Mark J. Pitstick, City Attorney, City of Washington Court House, 105 North Main Street, Washington Court House, Ohio 43160; Frost Brown Todd LLC, Stephen N. Haughey, 3300 Great American Tower, 301 East Fourth Street, Cincinnati, Ohio 45202; and Frost Brown Todd LLC, Frank J. Reed, Jr., 10 West Broad Street, Suite 2300, Columbus, Ohio 43215, for defendant-appellee
PIPER, J.
{¶ 1} Plaintiff-appellant, the state of Ohio, appeals a decision of the Fayette County
Court of Common Pleas denying its motion to find defendant-appellee, City of Washington
Court House (the City), in contempt for failing to abide by the terms of a consent agreement Fayette CA2013-12-030
entered between the two parties.
{¶ 2} Washington Court House has a population of approximately 14,000. The
percentage of the City's citizens at or below the poverty level is higher than the state
average, and many of the jobs in the City are based on manufacturing that is becoming
obsolete and in industries that are moving out of the country to foreign markets. Over the
course of several years, state funding has decreased, and the City no longer receives as
much aid to improve its public works, including the City's sewers and treatment plant for
which the citizens pay the sixth-highest sewer rates in Ohio.
{¶ 3} The City owns and operates a wastewater treatment plant and wastewater
collection system that carries wastewater to the City's plant for treatment. Once the
wastewater has been treated, the ultimate discharge (also known as effluent) is routed
toward and emptied into Paint Creek. The Ohio Environmental Protection Agency (EPA)
issued through the United States EPA a National Pollutant Discharge Elimination System
(NPDES) Permit to the City, which permits the City to discharge the treated
wastewater/effluent into Paint Creek. The NPDES Permit sets forth effluent limitations that
the discharges from the treatment plant must meet, as well as testing requirements. The City
is required to submit results of the periodic testing of effluent levels to the Ohio EPA for
review.
{¶ 4} The City's sewer system is a separate sanitary sewer system in that it is not
designed to carry both storm water and sewage to the treatment plant. As a result, the City's
current system lacks the necessary capacity to carry flow to the treatment plant when "clean
water" (such as rain water or water from Paint Creek) enters the sewage system. When
clean water enters the City's sewer system, the sanitary sewer cannot handle the capacity
and the water and sewage overflows and floods the streets, streams, and basements of the
City's residents.
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{¶ 5} In 2006, the state filed a complaint for injunctive relief and civil penalties against
the City for violations of R.C. Chapter 6111, Ohio's water pollution control law, and rules
adopted as part of the statute. The state specifically alleged that the City violated the
pertinent statute by failing to properly operate and maintain its wastewater treatment plant.
The state's allegations were based upon the city's allowing discharges of raw and partially
treated sewage from its sewer system to enter state waterways. The state, through the Ohio
EPA, and the City resolved the violations alleged in the complaint by agreeing to a Consent
Order, which was accepted and entered by the trial court in January 2007.
{¶ 6} The Consent Order addressed the City's need to: (1) immediately comply with
R.C. Chapter 6111, the rules adopted pursuant to the statute and terms and conditions of the
NPDES Permit, (2) properly manage, operate, and maintain the sewer system by providing
adequate capacity, taking all feasible steps to stop sanity sewer overflows and sewage
backups into buildings, and provide notification to parties with a reasonable potential
exposure to pollutants associated with any overflow event,1 (3) develop and implement a
capacity, management, operation and maintenance program (CMOM) by October 1, 2007,
(4) provide a summary of the CMOM program to the Ohio EPA by October 1, 2007, (5)
complete an audit of the CMOM program and provide a report to the Ohio EPA by March 8, 2 2008, (6) submit an Overflow Emergency Response Plan by October 1, 2006, (7) implement
the Overflow Emergency Response Plan by December 1, 2006, (8) submit a System
Evaluation and Capacity Assurance Plan (SECAP) and SECAP Implementation Schedule by
1. According to the Consent Order, a "Sanitary Sewer Overflow" (SSO) is an overflow, spill, or release of wastewater from the City's sanitary sewer system, including inceptor sewers. Some of the overflows discussed during the hearing included untreated and partially treated sewage flowing into local waterways, coming out of manholes onto the roads and streets, and spilling into the basements of homes and buildings in Washington Court House. The overflow material is raw sewage that has not been treated at all because the sewage overflows before it reaches the treatment plant.
2. Several of the completion dates preceded the actual filing of the Consent Order with the court, and such projects were completed by the City before the trial court accepted the Consent Order.
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July 1, 2008 to the Ohio EPA for review and approval with the goal of the SECAP being to
provide adequate capacity to convey base and peak flows for all parts of the City's sewer
system to the watershed treatment plant for full treatment, and (9) achieve the goals of the
SECAP by no later than July 1, 2011.
{¶ 7} While the Consent Order was meant to constitute full satisfaction of the City's
civil liability for the violations alleged in the state's complaint, the order also provided that the
state had the authority to pursue relief should the City continue to violate applicable
environmental rule or statutes, and that the trial court would retain jurisdiction over the issue.
{¶ 8} The City submitted the CMOM, CMOM Audit, and Overflow Emergency
Response Plan according to the Consent Order. However, the state alleged that the City's
submission of the SECAP and SECAP Implementation Schedule did not meet the
requirements of the specifics set forth in the Consent Order. One such problem with the
SECAP and accompanying schedule was that within the Consent Order, the City agreed to
implement the necessary improvements to the City's watershed treatment plant and sewer
system by July 1, 2011, but then suggested an end date of 2028 for having the
improvements made within the Implementation Schedule. The state also considered several
of the projects that the City had included within the SECAP as unnecessary. Given the
inconsistencies between the Consent Order and the submitted SECAP and Implementation
Schedule, the Ohio EPA did not approve the submissions.
{¶ 9} Within the Consent Order, the parties agreed that should the City fail to meet its
obligations, the City would be required to pay stipulated penalties according to a schedule set
forth in the Consent Order. These stipulated penalties included penalties for each sanitary
sewer overflow, bypass, and violation of the effluent limitations contained in the City's
NPDES Permit, as well as penalties for missing deadlines such as missing the
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implementation of the SECAP.3 While the City paid approximately $58,000 in penalties for
most of the sanitary sewer overflows, bypasses, and effluent limitations that occurred
following the entry of the Consent Order, the City did not pay all of the stipulated penalties,
nor penalties for failure to meet the requisite deadlines.
{¶ 10} The state then filed a motion for contempt, asking the trial court to find the City
in contempt for failure to perform according to the Consent Order. The City responded to the
contempt motion, and asserted the defense that it was impossible to perform within the three-
year deadline for the SECAP Implementation Schedule as agreed upon in the Consent
Order.
{¶ 11} The trial court held a two-day hearing, during which it heard testimony from five
witnesses and reviewed evidence on the matter. The five witnesses were Sheree Gossett-
Johnson (an inspector for the Ohio EPA), Joseph Denen, (the City's manager), Joseph
Burbage (the City's Service Director), Allen Dawson (the City's Wastewater Superintendent),
and Professor Paul Gottlieb from Rutgers University. The trial court issued a decision finding
that contempt was improper because the state failed to carry its burden of proof.
Nonetheless, the trial court ordered the City to pay stipulated penalties for violations that
occurred in 2012, and to complete five specific sewer improvement projects by January 1,
2030. The state now appeals the trial court's decision, raising the following assignment of
error:
{¶ 12} THE TRIAL COURT ERRED IN FINDING THAT THE STATE FAILED TO
MEET ITS BURDEN OF PROOF THAT A FINDING OF CONTEMPT IS WARRANTED FOR
ANY OF THE CHARGES FILED.
{¶ 13} In its assignment of error, the state argues that the trial court erred in finding
3. As will be discussed in more detail later in this opinion, "bypass" refers to the process of sending excess sewage flow (comprised of raw or partially-treated sewage) directly into Paint Creek, rather than being fully treated before discharge.
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that the City was not in contempt for failing to abide by the Consent Order.
{¶ 14} Contempt of court is defined as "disobedience of an order of a court * * * which
brings the administration of justice into disrespect, or which tends to embarrass, impede or
obstruct a court in the performance of its functions." Sparks v. Sparks, 12th Dist. Warren No.
CA2010-10-096, 2011-Ohio-5746, ¶ 11, quoting Windham Bank v. Tomaszczyk, 27 Ohio
St.2d 55 (1971) paragraph one of the syllabus. To support a contempt finding, the moving
party must establish by clear and convincing evidence that a valid court order exists, that the
offending party had knowledge of the order, and that the offending party violated such order.
Dudley v. Dudley, 12th Dist. Butler No. CA2012-04-074, 2013-Ohio-859, ¶ 13.
{¶ 15} A consent order is a contract between the parties based upon the agreements
reached by those parties. Save the Lake v. Hillsboro, 158 Ohio App.3d 318, 2004-Ohio-4522
(4th Dist.). The Consent Order in the case sub judice became an order of the trial court
when the parties submitted the Consent Order to the trial court for its approval, and the trial
court approved the Consent Order. The Consent Order provides, "the Court will retain
jurisdiction of this action for the purpose of administering or enforcing [the City's] compliance
with this Consent Order," so that the trial court retained jurisdiction to enforce the parties'
compliance. As such, the failure to comply with the Consent Order is an action for which the
trial court could have made a finding of contempt.
{¶ 16} The state alleged three reasons that the trial court erred in failing to find the City
in contempt, (1) the City failed to submit a SECAP and Implementation Schedule in
accordance with the consent order, (2) the City violated the effluent limits contained in the
City's NPDES Permit, and (3) the City failed to pay stipulated penalties for effluent violations.
{¶ 17} Regarding the City's failure to submit a SECAP and Implementation Schedule,
the Consent Order provided,
By no later than July 1, 2008, [the City] shall submit to Ohio EPA for review and approval a System Evaluation and Capacity -6- Fayette CA2013-12-030
Assurance Plan ("SECAP") including an implementation schedule. The goal of the SECAP and the SECAP implementation schedule is to provide adequate capacity to convey base flows and peak flows for all parts of [the City's] sewer system to the WWTP for full treatment. An additional goal is to take all feasible steps to stop, and to mitigate the impact of SSO(s) and WIB(s).4
***
The SECAP implementation schedule shall be submitted to Ohio EPA for approval. The implementation schedule shall include an end date of no later than July 1, 2011 by which [the City] will have achieved the goals set forth in paragraph 13. The implementation schedule, as approved by Ohio EPA, shall be incorporated into this Consent Order and become an enforceable part of the decree. [The City] shall comply with the schedule and perform all of the projects identified in the schedule. [The City] shall provide Ohio EPA with annual reports on the progress of the projects set forth in the implementation schedule.
{¶ 18} The record indicates that the City submitted the SECAP to the Ohio EPA in
June 2008. The City's SECAP set forth its plan to meet the goals expressed in the Consent
Order. The City also submitted an accompanying SECAP Implementation Schedule that set
forth the date for meeting the SECAP goals, and indicated that all goals would be met and
projects completed by 2028, rather than the July 1, 2011 date set forth in the Consent Order.
While we agree with the state that the City did not abide by the completion date set forth in
the Consent Order, we do not find that the City is in contempt for not abiding by that term.
{¶ 19} Stated once more, the goal of the SECAP and the SECAP Implementation
Schedule was to provide adequate capacity to convey base flows and peak flows for all parts
of the City's sewer system to the water treatment plant for full treatment. An additional goal
was to take all feasible steps to stop, and to mitigate the impact of overflows and incidents
where water and sewage flowed into the basements of homes and buildings in the
4. WIB is an acronym for incidents when water flows into basements of homes and buildings. The Consent Order defines WIB as "wastewater backups into buildings that are caused by blockages or flow conditions in a sanity sewer other than a building lateral."
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community. The City's SECAP proposed several projects meant to facilitate the elimination
of overflows, bypasses, and effluent that exceeded permit levels. These projects were
designed to meet the goals set forth in the Consent Order, and the Consent Order mandated
that the City create a SECAP that addressed the goals. The Consent Order, did not,
however, mandate that approval of the SECAP was a necessary predicate to the City's
compliance with the Consent Order.
{¶ 20} The Consent Order did not define "goal." The City's manager, Joseph Denen,
testified that his understanding of the word "goal" during the negotiation process was "that to
which somebody strives, that which you aspire to, that which you seek." Using the word
"goal" and requiring the City to create a SECAP to set forth goals indicates that there was not
a concrete legal basis for requiring the City to take any specific action or set of actions to
meet aspirational ends. Even so, the City included several projects that were designed to
create a SECAP with specific goals in mind, and the Ohio EPA did not represent that the
SECAP was inadequate to reach the stated goals except for the ultimate deadline being past
2011.
{¶ 21} The state presented testimony from Sheree Gossett-Johnson, who is an
environmental specialist with the Ohio EPA, Division of Surface Water for the Central District
Office, which services Fayette County. Gossett-Jonson's primary duties include inspecting
wastewater treatment plants and helping cities reach compliance with permits. Gossett-
Johnson also assists cities in determining what, if anything, is wrong with the city's
wastewater treatment plant and how to fix any issues.
{¶ 22} Gossett-Johnson testified that she began working with Washington Court
House in 1994 and has been the City's inspector since that time. Gossett-Johnson testified
that the City has consistently had problems with its sewer system since 1994, and that the
system is "basically falling apart." Gossett-Johnson described that the City's system is a
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"gravity sewer" and that pipes come together without being sufficiently connected to each
other. The City's wastewater treatment plant is unable to accommodate all of the flow
coming through the plant. Consequently, the plant workers pump flow onto the top of the
ground, and as increase flow occurs, the plant workers are forced to bypass flow into chlorine
content tanks and then directly into Paint Creek. Depending on the amount of flow, the plant
may discharge raw and partially treated sewage directly into the creek, thus bypassing full
treatment of the sewage.
{¶ 23} Gossett-Johnson testified regarding the City's relevant permits and
testing/monitoring requirements. Part of the permits and requirements included a limit on the
circumstances permitting bypass. The City is also charged with testing the bypass to
determine what type of untreated or partially-treated pollutants are discharged into Paint
Creek, and reporting each bypass incident to the Ohio EPA.
{¶ 24} Gossett-Johnson testified that she acted on behalf of the Ohio EPA in
negotiating the Consent Order, and that the purpose of the order was to ensure that the City
was reviewing its wastewater treatment and determine a way to stop sanitary sewage
overflows and bypassing full treatments. In order to reach the two specific goals of limiting
overflows and bypass incidents, as well as addressing effluent limits listed in the NPDES
Permit, the Ohio EPA required the City to submit a SECAP and a CMOM (Capacity
Management Operations and Maintenance plan) to address ways that the City planned on
reaching the goals.
{¶ 25} Gossett-Johnson testified that the City submitted the required CMOM and later
performed an audit of its CMOM. The City also submitted an overflow response plan, but did
not submit a SECAP or Implementation Schedule that was approved by the Ohio EPA.
Gossett-Johnson testified that the SECAP and Implementation Schedule were due by July 1,
2008, and that the City submitted its SECAP and Implementation Schedule in June 2008,
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before the deadline set forth in the Consent Order. Gossett-Johnson testified that she did
not approve the SECAP or Implementation Schedule because neither conformed to the
timeline set forth in the Consent Order with completion by July 2011. Gossett-Johnson also
testified that the City presented plans to build or improve upon city structures that were not
necessary to the overall improvement of the sewage system, and that such improvements
were costing the City time and resources that should have been dedicated to the
improvements that were necessary to reach the SECAP goals.5
{¶ 26} Gossett-Johnson testified that, in her belief, the time table suggested by the
City made approval of the SECAP and Implementation Schedule impossible, and thus
rendered the City in contempt of the Consent Order. However, there was no testimony
presented by the state that the SECAP itself was inadequate to effectuate the overflow,
bypass, and effluent goals. Nor was there any evidence presented that the Ohio EPA was
opposed to the SECAP for reasons other than the fact that the completion date was past
2011. Gossett-Johnson specifically testified that "there's nothing in the study that we
disagree with, we disagree with the timeline."
{¶ 27} The plain language of the Consent Order did not require approval of the
SECAP by any certain date, or for that matter, any approval at all. The Consent Order only
required the City to present for review and approval a SECAP that addressed the goals
stated above. The record is undisputed that the City abided by this term, by submitting for
review and approval its SECAP that addressed the goals listed in the Consent Order.
Therefore, the City was not in contempt for failing to submit the SECAP according to the
Consent Order.
5. We would note that while the state asserted that some of the projects listed in the City's SECAP were not necessary to achieve the goals set forth in the Consent Order, the Consent Order specifically noted that the SECAP should include "but not be limited to" certain evaluations and projects. Therefore the City was not limited to a specific set or number of projects by the Consent Order.
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{¶ 28} The state's argument regarding the 2011 timeline is more specific to the
required completion date set forth in the Implementation Schedule. The record is undisputed
that the City and Ohio EPA negotiated the terms of the Consent Order and agreed that the
Implementation Schedule would include an end date of no later than July 1, 2011, by which
time the City would have achieved the goals set forth in the Consent Order. However, the
record is patently clear that achieving all of the goals, and thus adherence to the deadline set
forth within the trial court's adoption of the Consent Order, was impossible.
{¶ 29} Impossibility of performance is a valid affirmative defense to a contempt
charge. Gauthier v. Gauthier, 12th Dist. Warren No. CA2011-05-048, 2012-Ohio-3046, ¶ 33.
Impossibility of performance occurs when an unforeseen event arises that renders a party's
performance of an obligation impossible. Id. The performance of the obligation must have
been rendered impossible without any fault of the party asserting the defense. Id. A party
who raises the defense of impossibility of performance has the burden of proving it.
{¶ 30} After reviewing the record, we find that the City has met its burden of proving
that it was impossible to implement the goals listed in the SECAP and complete the projects
listed therein by July 1, 2011. The record is undisputed that both parties acknowledge that
the City was not going to be able to complete the projects by July 1, 2011. Despite each
party moving forward with the Consent Order, both knew full-well that the July 1, 2011
deadline was unattainable.
{¶ 31} The evidence presented at the hearing demonstrated that 2011 was an
impossible completion date, and thus created an inherently unreasonable goal. Specifically,
Gossett-Johnson testified that the City could not have completed the required projects before
2011, and that the more reasonable time frame would be 15 years. During her cross-
examination, the City asked, "if what you've typically seen for a city this size is 15 years,
you'd agree with me that three years is not possible, right?" Gossett-Johnson answered,
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"yes." Therefore, the state never asserted that completion by the 2011 deadline was ever a
possibility.
{¶ 32} The City presented the testimony of Professor Paul Gottlieb, who is an
Associate Professor at Rutgers University and Department Chair of Agricultural Food and
Resource Economics. Professor Gottlieb's expert qualifications were stipulated by the state.
Professor Gottlieb testified to the financial conditions of the City, including that it has a
higher-than-the-state-average concentration of families/individuals who live at or below the
poverty level, as well as a higher concentration of elderly residents who are on a fixed
income. Professor Gottlieb also testified to the financial struggles the City faces as it
continues to lose jobs to foreign markets or other industrial closures. Professor Gottlieb
reviewed the City's financial resources, ability to borrow funds, and challenges facing the City
and concluded that it was impossible for the City to have funded the projects necessary to
complete the SECAP within three years of entering the Consent Order.
{¶ 33} Professor Gottlieb suggested a 30-year time frame for the City to raise the
necessary funds and complete the necessary projects. The Professor's suggestion was
based upon the data that the projects would cost approximately $28 to $30 million dollars to
complete, and that such expenditure would lead to a 63 percent increase in the overall sewer
costs to community residents.
{¶ 34} Whether the reasonable timeframe was 15 years or 30, the obvious conclusion
for the trial court and this court to make is that a three-year deadline was impossible to
perform.6 The state alleges that the City cannot assert the impossibility defense because the
City is at fault for causing its own impossibility. The state specifically contends that the City
caused its own impossibility when it agreed to the 2011 deadline after consulting an
6. As previously noted, the trial court ordered the City to perform five specific projects by January 1, 2030 so that the trial court gave the City 17 years from the time of the trial court's entry to complete the sewer improvement projects.
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environmental impact firm, receiving advice from attorneys, and after participating fully in the
negotiation process with the Ohio EPA.
{¶ 35} It is undisputed from the record that the City did negotiate the Consent Order
after conferring with several experts in the field, and that the City openly and expressly
agreed to the July 1, 2011 completion date for its Implementation Schedule. Even so, the
trial court heard testimony that the Ohio EPA did not ascribe to the belief that a three-year
deadline was feasible, and that the Ohio EPA advocated for a 15-year timeframe for
completion of the projects required to reach the goals of the SECAP. Moreover, the record is
clear that the City entered into the Consent Order without full knowledge of the financial
repercussions the sewage projects would have on the City.
{¶ 36} The state anticipated that the costs and affordability of the projects could
possibly result in a change to the implementation process. According to the Consent Order,
"if a project is not recommended, or if an implementation schedule is impacted due solely to
the affordability of the project, [the City] shall provide an affordability analysis including
impacts on user rates." This provision in the Consent Order demonstrates that the state was
aware that affordability issues could impact the implementation of the sewer improvement
projects. Once the City performed its study of the financial feasibility of making the
improvements, it concluded that the 2011 completion date was impossible, hence its
submission of the Implementation Schedule with a 2028 deadline.
{¶ 37} Joseph Denen, the City's manager, testified that he was involved in the
negotiation of the Consent Order and that all parties recognized that the 2011 date was
"ambitious." Denen further testified that when the City signed the Consent Order, it did not
"know what the projects are or exactly how much they are going to cost. So we always
discuss that the affordability study and what are the projects you identify would drive the
compliance schedule." Denen further testified that the City did not know how many projects
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would be recommended by the consultants or where the City would get the necessary
funding to complete the recommended projects.
{¶ 38} After the City was given recommendations for projects, as well as the costs
associated with such, the City then submitted its SECAP and Implementation Schedule with
a deadline of 2028. While the state is not satisfied that the City submitted its SECAP
Implementation Schedule with an end date beyond 2011, the record is undisputed that the
Ohio EPA did not consider the 2011 deadline feasible, and continues to maintain a belief that
the projects necessary to achieve the goals in the SECAP will take 15 years. As such, the
City has proven that complying with the 2011 date was an impossibility, and the trial court
was correct in not finding the City in contempt on the state's charge that the City failed to
abide by the Consent Order regarding its duty to submit a SECAP and Implementation
Schedule.
{¶ 39} Regarding the violation of the effluent limits contained in the City's NPDES
Permit, the Consent Order permanently enjoined and required the City to immediately comply
with its NPDES Permit and any renewals thereafter. The City was required to monitor and
report its effluent levels to the Ohio EPA so that the EPA could determine if the City was
meeting its limits for the various requirements set forth in the NPDES Permit.
{¶ 40} The state presented a summary of the violations that had occurred since the
Consent Order was agreed upon, which was based upon monthly discharge reports.
Through the testimony of Gossett-Johnson, the state presented evidence that the City was
required to abide by affluent limits, and that the City's limits had been violated multiple times
from 2007-2012.
{¶ 41} Gossett-Johnson testified that cities are self-monitoring in that cities monitor
their effluent levels and report such levels to the Ohio EPA. Gossett-Johnson took the self-
reported data and reviewed each city for how many violations that city may have had over a
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course of one to five years. These reports are referred to as discharge monitoring reports, or
DMRs, and are reported to the Ohio EPA on a monthly basis. Gossett-Johnson testified that
when there is violation, she has the responsibility to contact the city and determine why the
violation occurred and what that city plans to do to come into compliance.
{¶ 42} Should a city have a history of violations and fail to come into compliance,
Gossett-Johnson creates a referral, by which she gathers supporting paperwork and
documentation showing the city's violations and inability to show compliance. The referral is
reviewed by the Ohio EPA's Enforcement Division, and then is discussed with the Attorney
General's Office to see if further action must be taken. If the city is able to work out a plan of
action to bring the standards into compliance, Gossett-Johnson works with the city to ensure
that it has the tools necessary to implement the compliance plan, and to determine if the
city's plans are adequate to achieve compliance.
{¶ 43} In the case at bar, the summary of violations had been created using data
provided by the City, so that the City was well-aware of the fact that violations had occurred.
Gossett-Johnson testified to the City's effluent level violations, as well as its incidents of
overflow and bypass. Again, the notice of violations of effluent levels, overflow, and bypass
are self-reported by the City so that it would have full knowledge of such violations.
{¶ 44} While the trial court found that the state failed to present clear and convincing
evidence of the violations, we find that the state has provided supporting evidence and that
such evidence is clear and convincing that the City has incurred violations and has not paid
the stipulated penalties for such. The Consent Order set forth stipulated penalties for failure
to meet deadlines, failure to stop bypass and overflow events from occurring, and for failing
to meet daily effluent limits set forth in the NPDES Permit.
{¶ 45} The record contains evidence that the City paid $58,000 in stipulated fines, but
did not pay others. Joe Burbage, the City's Service Director, testified that the City did not
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receive notice from the state or Ohio EPA stating that the $58,000 was insufficient to satisfy
the stipulated penalties. While there is no dispute in the record that the City paid part of the
stipulated fees, the record also indicates that the City has not paid all of the stipulated
penalties for its violation of the effluent levels, and incidents of overflow and bypass, and that
a lack of notice from the state did not excuse the non-payment of stipulated penalties.
{¶ 46} While the City tried to defend its contempt by stating that the Ohio EPA and
state failed to provide notice of the penalties, the record is clear that the City knew of its
violations based upon the fact that such violations were self-reported and based upon testing
and data the City collected and furnished to the Ohio EPA. Therefore, the City knew of its
violations and that it had incurred more stipulated penalties. In fact, Burbage testified that
the City paid the $58,000 in penalties on its own, and did not receive a phone call or letter
indicating that $58,000 in penalties had accrued which required payment. Burbage did not,
however, explain why the City would then require notice through a call or letter regarding the
unpaid penalties when none had been previously required to prompt the City to pay $58,000
in penalties. During the state's cross-examination of Burbage, the following exchange
occurred.
[Q] And it's my understanding from your testimony that you're stating that these are stipulated penalty payments made under the consent order, is that correct?
[A] Yes ma'am.
[Q] Who told you to make that payment?
[A] Nobody.
[Q] So no one from the Attorney General's office called you and said you owed us money?
[A] No ma'am.
[Q] No one from the Ohio EPA called you and said pay us?
[A] No ma'am never got the first call. - 16 - Fayette CA2013-12-030
[Q] So you recognized there was a violation and sent in the check[?]
[A] Yes.
This exchange demonstrates that the City was capable of understanding and calculating
when it owed stipulated penalties and what such penalties would be.
{¶ 46} The City also tried to defend its contempt based on the fact that it did not pay
any stipulated penalties in 2012 once the state filed its contempt charges. However, there is
nothing in the Consent Order that stays the required payment of stipulated penalties on the
filing of contempt charges. Instead, the Consent Order provides, "nothing in this Consent
Order shall be construed so as to limit the authority of the State of Ohio to seek relief against
[the City] or other appropriate persons for claims or conditions not alleged in the complaint,
including violations which occur after the filing of the complaint * * *."
{¶ 47} The City knew of its burden to pay the stipulated penalties and did not do so.
By signing the Consent Order, the City expressly agreed to pay penalties should it fail to
comply with the Consent Order regarding effluent levels and incidents of bypass or overflow.
The Consent Order expressly provides that payments for stipulated penalties "shall be made
by March 1 of each year for the preceding year's SSO(s) or WWTP bypass(es)," and that
payments of stipulated fines "shall be made within forty-five (45) days from the failure to meet
the applicable NPDES permit limitation." The Consent Order, does not, however, make
payment contingent upon notification to the City of the accrued stipulated penalties or provide
that such penalties are not owed should the state file contempt charges for nonpayment of
the stipulated penalties. Thus, the City is in contempt for failing to obey the Consent Order,
as adopted by the trial court, requiring the City to pay the stipulated penalties.
{¶ 48} The record indicates that despite finding that the City was not in contempt, the
trial court ordered the City to pay the stipulated penalties "for the calendar year 2012 to the
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present for effluent violations and overflow/bypass events." However, prior to the trial court's
order, the trial court recognized that "the terms of the Consent Order require the City to pay
stipulated penalties for each overflow and/or bypass event from the date of the order. The
City has experienced forty seven (47) overflows and thirty eight (38) bypass events from that
date to the time of the hearing. All penalties have been paid by the City for 2007, 2008,
2009, 2010." However, the record indicated that the City did not pay fines for 2011 or 2012.
Therefore the trial court's order that the City needed to pay the stipulated penalties should
have been preceded by a finding of contempt, as the state presented clear and convincing
evidence that the stipulated penalties were due and owing, the City was aware of such
penalties and their requirement to pay them, and that the City failed to pay the penalties
according to the order.
{¶ 49} After reviewing the record, we overrule the state's assignment of error as it
pertains to the trial court's finding that the City was not in contempt for failing to submit a
SECAP and Implementation Schedule, as the evidence is uncontroverted that completion of
the goals set forth in the SECAP by the 2011 deadline was impossible. While cities are not
permitted to unilaterally disregard mandates set forth by the Ohio EPA, especially when such
terms are agreed upon by the parties, the unique circumstances of this case demonstrate
that the 2011 completion date was impossible to achieve so that the City is not in contempt.
However, we sustain the state's assignment of error insomuch as the trial court abused its
discretion in finding that the state failed to prove that the City was in contempt for not paying
the stipulated penalties.
{¶ 50} Upon remand, the trial court shall enter a finding of contempt against the City
regarding the unpaid stipulated penalties, and order the City to pay such penalties. Although
the trial court ordered the City to pay the penalties accrued in 2012, the trial court shall
determine if the City has failed to pay any other stipulated penalties accrued in the years
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previous to the state's filing of contempt, including any violations for failure to meet the
NPDES Permit effluent limitations, as well as any overflows and bypass events that may
have occurred prior to 2012 that have remained unpaid by the City.
{¶ 51} Judgment affirmed in part, reversed in part, and remanded for further
proceedings consistent with this opinion.
S. POWELL, P.J., and M. POWELL, J., concur.
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