[Cite as State ex rel. Yost v. Wylie, 2024-Ohio-2498.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT WOOD COUNTY
State of Ohio, ex rel. Dave Yost, Ohio Attorney General Court of Appeals No. WD-23-040
Appellee Trial Court No. 2021 CV 0204
v.
Thomas J. Wylie, Sr., et al. DECISION AND JUDGMENT
Appellants Decided: June 28, 2024
*****
Dave Yost, Ohio Attorney General, and Nicole DiVittorio-Kalmbach, Catherin English, and Morgan Trivunic, Assistants Ohio Attorneys General, for appellee.
Robert J. Bahret and Andrew J. Ayers, for appellants.
ZMUDA, J.
I. Introduction
{¶ 1} This matter is before the court on appeal from the judgment of the Wood
County Court of Common Pleas on July 24, 2023, following a bench trial. The trial court
entered judgment in favor of plaintiff-appellee, the state of Ohio on behalf of the Ohio Environmental Protection Agency (Ohio EPA), and against defendants-appellants,
Thomas J. Wylie, Sr., Nicholas Wylie, Wylie and Sons Sand and Stone, Wylie & Sons
Landscaping, LLC, Thomas J. Wylie, Sr., d.b.a. Ranch and Arena, and Lisa M. Wylie
(collectively, “the Wylies”). The trial court found the Wylies jointly and severally liable
for violations of Ohio’s water pollution control laws and awarded damages that included
civil penalties and injunctive relief. For the reasons that follow, we affirm.
II. Facts and Procedural History
{¶ 2} This matter concerns four sites: the Wood County property on Glenwood
Road and the Fulton County properties at three locations: the County Road 5 property,
1616 County Road B, and 1640 County Road B.
{¶ 3} The Glenwood Road site consists of five contiguous parcels in Perrysburg,
Ohio, owned by Thomas Wylie, Sr. (“Wylie”), his son, Nicholas Wylie (“Nicholas”), and
his wife, Lisa Wylie (“Lisa”).1 The 19-acre Glenwood Road site was purchased in stages,
between 2013 and 2016, and Wylie converted the property from farmland to a sand and
gravel quarry, operated as Wylie and Sons Sand and Stone. The Ohio Department of
Natural Resources (ODNR) issued a permit for surface mining on the property. As part of
operations, Wylie and Sons dewatered the quarry and pumped the water removed into a
tributary of Dry Creek. In addition, the Wylies placed mining waste near the tributary,
1 Based on testimony, Wylie and Lisa divorced sometime after 2012, but Wylie remained on the deeds of properties he claimed were awarded to Lisa in the divorce. The record owners of the fifth parcel on Glenwood Road are Nicholas Wylie and Allen Joel Brenner. Brenner was not named as a defendant and is not a party on appeal.
2. causing the waste to enter the waterway through runoff. Ohio EPA investigated and noted
the discharge, both from the mine and through runoff from the piled waste. In 2018, after
receiving numerous notices of violations, Wylie obtained a permit to discharge into the
creek from Ohio EPA.
{¶ 4} The site at County Road 5 abuts a tributary of Fewless Creek. Wylie and
Lisa Wylie purchased the property in 2000. Wylie and Sons Landscaping mined sand
from the site, with mining activity continuing until the Wylies sold the property in 2019.
In the process of mining, the Wylies dewatered and discharged the water removed from
the quarry into a tributary of Fewless Creek. Ohio EPA investigated and noted the
discharge without a permit. The Wylies did not obtain a permit from the Ohio EPA prior
to selling the property.
{¶ 5} The County Road B property consists of two contiguous parcels, about 47
acres. Wylie and Lisa Wylie purchased the 1616 County Road B parcel in 2001. They
divided and sold lots on part of that parcel, with offices and a parking lot for Wylie &
Sons Landscaping, LLC constructed on the remaining property. Prior to development, the
Army Corps of Engineers identified high quality isolated wetlands on the property, and
they sent notice of the presence of these wetlands to Wylie, indicating Ohio EPA
regulated in this area. Wylie placed fill or dredge in the wetlands without a permit from
Ohio EPA. Investigation by Ohio EPA noted the loss of wetlands and the improper fill
materials placed by the Wylies as a result of development.
3. {¶ 6} Wylie and Lisa Wylie also purchased the property at 1640 County Road B.
They developed this land for commercial use as a horse ranch, operated as WB Ranch
and Arena. The ranch includes a riding arena and accessory buildings. The Wylies
installed an unpermitted waste treatment system for the WB Ranch business, and after
Ohio EPA investigated and requested “as-built” engineering plans for the system, to
process the permit after installation, the Wylies failed to submit plans to Ohio EPA as part
of the permit application process.
{¶ 7} On June 4, 2021, the state, on behalf of Ohio EPA, filed a complaint for
injunctive relief, alleging violations and seeking civil penalties. The state named the
record owners for the three properties, Wylie, Nicholas Wylie, and Lisa Wylie. The state
also named the businesses that operated on the properties, Wylie and Sons Sand and
Stone, Wylie & Sons Landscaping, LLC, and Thomas J. Wylie, Sr. d.b.a. WB Ranch and
Arena (collectively, the “Wylies”).
{¶ 8} The complaint alleged various violations of R.C. Chapter 6111, asserting six
counts as follows:
Count One: Between September 2, 2016 and February 21, 2018, allowing
storm water discharges associated with industrial activity at the Glenwood Road
site without obtaining a permit to mine sand and gravel, and seeking joint and
several liability to pay a civil penalty up to $10,000 for each day of each violation.
Count Two: Between September 2, 2016 and February 21, 2018,
dewatering and discharging collected stormwater and groundwater from the
4. bottom of the quarry at the Glenwood Road site through a pipe into an unnamed
tributary to Dry Creek without a permit, and seeking joint and several liability to
pay a civil penalty up to $10,000 for each day of each violation.
Count Three: Beginning June 7, 2016, placing large piles of material
containing “other wastes” as defined by R.C. 6111.01(D) along the perimeter of
the Glenwood Road site, causing large piles to wash into an unnamed tributary to
Dry Creek, and seeking joint and several liability to pay a civil penalty up to
$10,000 for each day of each violation.
Count Four: Between December 2007 until sale of the land comprising the
County Road 5 site on December 23, 2019, dewatering and discharging water
containing “industrial waste” and/or “other waste” into an unnamed tributary of
Fewless Creek, without a valid permit, and seeking joint and several liability to
pay a civil penalty up to $10,000 for each day of each violation.
Count Five: Between September 2001 and July 2007, filling a Category 3
wetland at 1616 County Road B without obtaining a permit, and seeking
injunctive relief pursuant to R.C. 6111.07(B), as well as joint and several liability
to pay a civil penalty up to $10,000 for each day of each violation.
Count Six: On or before February 16, 2012, constructing and installing a
wastewater disposal system to serve the WB Ranch at 1640 County Road B
without submitting a complete and approvable permit to install, and seeking
5. injunctive relief pursuant to R.C. 6111.07(B), as well as joint and several liability
to pay a civil penalty up to $10,000 for each day of each violation.
{¶ 9} The Wylies filed their answer, denying the allegations. The matter proceeded
to a bench trial on September 20, 2022.
{¶ 10} At trial, the state proffered testimony of Thomas Poffenbarger, a water
quality engineer with Ohio EPA. Poffenbarger testified regarding the mining sites,
establishing the dewatering and discharging without a National Pollutant Discharge
Elimination System (NPDES) permit at the Glenwood site and County Road 5 site.
Poffenbarger testified that the NPDES permit requires regular testing of the discharge,
with no testing during the time the Wylies discharged without a permit. He further
testified that materials from the mining operations could negatively impact aquatic life
and were considered industrial wastes under the statute.
{¶ 11} Poffenbarger also testified regarding the unpermitted waste disposal system
installed at 1640 County Road B, and the efforts of Ohio EPA to bring the site into
compliance through a permit submitted with “as-built” plans for the system. He testified
that the Wylies never submitted a completed application to Ohio EPA despite repeated
communications, requesting the application.
{¶ 12} As to 1616 County Road B, Rahel Babb, an environmental specialist with
Ohio EPA, testified regarding the category 3 wetlands identified in 2002 by the Army
Corps of Engineers at that site as well as Ohio EPA testing of the land in the following
years, in response to complaints of illegal filling. Babb testified regarding her
6. involvement in investigating those complaints of illegal filling of the wetlands and
ongoing enforcement attempts by the agency. Babb identified documents,
correspondence, and photographs, demonstrating the disappearance of the wetlands
during the period in which the Wylies developed the land to construct an office building
and parking lot.
{¶ 13} Both Poffenbarger and Babb testified regarding the length of time of
enforcement activities, with Poffenbarger testifying that the Wylies’ case was the only
one, out of approximately 100 cases, that had gone on for over ten years. Babb testified
that the Ohio EPA had been investigating complaints of illegal fill of the wetlands for
about 20 years without resolution. The state admitted 34 exhibits, without objection,
documenting the repeated violations at each of the sites described in Poffenbarger’s and
Babb’s testimony.
{¶ 14} The defense proffered the testimony of Wiley and Allen Joel (“A.J.”)
Brenner. The trial court admitted the defense exhibits AA through GG, and JJ, LL, NN,
and OO, overruling the state’s objections to exhibits BB, CC, EE, FF, JJ, LL, OO.2
{¶ 15} Wylie testified that his mining activities were permitted through the
ODNR, and he relied on his consultants to ensure his activities were proper. He testified
he believed the ODNR permit covered his activities at the mining sites, while also
2 The defense withdrew exhibit HH, KK, and MM, and the trial court sustained the state’s objection to admission of exhibit II. The record also demonstrates admission of Exhibit PP, but there is no such exhibit in the record on appeal. Exhibit II, however, is part of the record, included with the admitted exhibits.
7. acknowledging notices he received that informed him of the need for a NPDES permit.
Wylie denied discharging water from his mines into the creeks, asserting he had no need
to dewater at the Glenwood Road site until the time he first requested a NPDES permit to
discharge from that site. He also acknowledged he never obtained a NPDES permit for
the County Road 5 site, but stated he no longer owned the County Road 5 site. Wylie also
testified that another entity conducted the mining operations at County Road 5 and
compensated Wylie for the land use, with Wylie having no control over those operations,
but introduced no supporting evidence for this claim. The ODNR permits referenced by
Wylie in his testimony were issued to Wylie & Sons Landscaping LLC.
{¶ 16} As to the two sites at County Road B, Wylie denied any violations. Wylie
testified that there were no wetlands on his property at 1616 County Road B, and he did
not place fill materials in any wetlands. As to the unpermitted waste disposal system at
1640 County Road B, Wylie testified his engineer was no longer in business and could
not be located to request a copy of schematics for the system, and he offered to tear the
system out and replace it, but Ohio EPA told him that would not be necessary. Wylie did
not address the documentary evidence regarding wetlands, introduced by the state, and
provided no support for his claim that Ohio EPA rejected his offer to replace the
wastewater treatment system for the horse ranch.
{¶ 17} Throughout his testimony, Wylie did not dispute his lack of permits as
alleged or the repeated notices sent by Ohio EPA, instead claiming he was confused by
the multiple government agencies or that “everybody lost all my permits.” Wylie testified
8. that he believed the mining permits allowed him to “dewater from the hole you’re
digging into a subhole that will overflow into a creek bed,” and he had been “doing that
for 33 years.” Wylie also did not dispute that he failed to prepare a delineation report to
identify the exact locations of wetlands on the 1616 County Road B property, claiming
misunderstanding regarding the Ohio EPA’s letter to him, requesting he obtain such a
report prior to development. Instead, Wylie argued that the areas of 1616 County Road B
that were developed were not wetlands, without the support of the delineation reports that
were intended to establish the facts. As to the wastewater treatment system installed at
1640 County Road B, Wylie argued that the engineer who designed the system was out of
business or deceased, and he had no way of obtaining the plans for the system installed to
complete the required permit years later.
{¶ 18} Finally, A.J. Brenner testified for the sole purpose of authenticating
documents. Brenner is a Wiley & Sons employee and is the office manager at the
Glenwood Road mining operation. He testified that he submitted diagrams or maps on
behalf of the Wylies to the Ohio EPA identifying a pump location at the County Road 5
site in October 2018, in response to the Ohio EPA’s request for documentation. Brenner
identified the documents he submitted.
{¶ 19} In closing argument, the state summarized the testimony and argued the
case is about permit violations, or the failure of the Wylies to acquire permits. The first
type of permit was for discharge into waters of the state relative to the Glenwood Road
site and the County Road 5 site. The second type of permit concerned the wastewater
9. treatment system installed at 1640 County Road B. The third type of permit concerned
the wetlands once present at 1616 County Road B. The state further noted the Wylies’
attempt to confuse the issues by ignoring the strict liability imposed by the environmental
laws by arguing a lack of evidence of actual harm resulting from the Wylies’ activities.
{¶ 20} In response, the defense acknowledged a lack of permits and attempted to
excuse the Wylies from the permit requirements, arguing confusion, mistake, or
ignorance of the law. Wylies’ counsel maintained the mining permits from the ODNR led
Wylie to believe he was following the law. Additionally, the Wylies disputed the
existence of wetlands at 1616 County Road B and argued that obtaining plans for the
wastewater treatment system was an impossibility, based on the passage of time, without
disputing the failure to submit the plans at the time of installation. Finally, the Wylies
argued there was a lack of proof that any unpermitted activities caused actual harm.
{¶ 21} At the close of trial, the parties submitted proposed findings of fact and
conclusions of law to the trial court, along with supplemental briefs as additional closing
argument.
{¶ 22} On July 24, 2023, the trial court issued its decision and order, dismissing
Count 1 and entering judgment in favor of the Ohio EPA on Counts 2 through 6, granting
permanent injunctive relief as to Counts 5 and 6. The trial court found the Wylies liable
regarding the violations alleged in Counts 2 through 6. The trial court imposed a civil
penalty of $10,740 against the property owners (Wylie, Nicholas, and Lisa), and against
Wylie & Sons Landscaping, LLC and Wylie and Sons Sand and Stone, jointly and
10. severally, for violations at the Glenwood Road site in Wood County. The trial court
imposed a civil penalty of $15,000 against the property owners (Wylie and Lisa) and
Wylie & Sons Landscaping, LLC, jointly and severally, for violations at the County Road
5 site. The trial court imposed a civil penalty of $7,500 against the property owners
(Wylie and Lisa) for violations at 1616 County Road B, with abatement upon purchase of
two wetland credits. Finally, the trial court imposed a civil penalty of $17,500 against the
property owners (Wylie and Lisa) and Thomas J. Wylie, Sr, dba WB Ranch and Arena,
jointly and severally, for violations at 1640 County Road B, with abatement upon
submission of engineering plans.
{¶ 23} Appellant filed a timely appeal from this judgment.
III. Assignment of Error
{¶ 24} On appeal, appellants assert the following assignments of error:
1. The trial court erred in finding that industrial waste was discharged into the
waters of the state from the Glenwood Road property.
2. The trial court erred in finding that Wylie failed to obtain a modified
dewatering permit for the County Road 5 property.
3. The trial court erred in finding that Wylie filled wetlands on County Road
B.
4. The trial court erred in finding that Wylie failed to provide as built
drawings of the wastewater treatment facility on County Road B.
11. 5. The trial court erred in finding that Defendants were recalcitrant causing an
excessive civil penalty to be awarded.
6. The trial court erred in Awarding Civil Penalties Against Nominal Defendants.
IV. Analysis
{¶ 25} The Wylies do not dispute the lack of Ohio EPA permits, but instead,
reiterate the argument raised in the trial court. As to liability, the Wylies argue the trial
court erred in its legal determination of the effect of their failure to obtain permits,
disputing evidence of pollution or actual harm. As to the civil penalties, they also argue
the trial court erred in finding recalcitrance and erred in imposing penalties against
“nominal defendants.”
{¶ 26} The violations in this case are (1) discharge into the waters of the state
without a permit, (2) placing fill materials in wetlands without a permit, and (3) installing
an unpermitted wastewater treatment system. In challenging the trial court’s judgment,
the Wylies challenge the findings regarding liability, arguing a lack of evidence of
pollution or harm or proof on each violation claimed by the state and challenging the
factual finding of recalcitrance as to enforcement actions at each site. Such a challenge is
reviewed based on the manifest weight of the evidence standard. See, e.g., State ex rel.
Cordray v. Helms, 2011-Ohio-569, ¶ 18 (in challenging the trial court’s factual
determination, appellant essentially challenges the judgment as against the manifest
weight of the evidence).
12. {¶ 27} Because this matter is a civil proceeding, the state was required to establish
its claims by a preponderance of the evidence. (Citation omitted) State ex rel. DeWine v.
Valley View Ents., Inc., 2015-Ohio-1222, ¶ 24 (11th Dist.). In applying the civil manifest
weight of the evidence standard on appeal, we will only reverse if we find the record
demonstrates a lack of “some competent, credible evidence going to all the essential
elements of the case[.]” State v. Wilson, 2007-Ohio-2202, ¶ 24, quoting C.E. Morris Co.,
54 Ohio St.2d 279, syllabus (1978).
{¶ 28} The challenge to the trial court’s imposition of civil penalties is reviewed
for an abuse of discretion. See State, ex rel. Brown v. Dayton Malleable, Inc., 1 Ohio
St.3d 151, 158 (1982). A trial court abuses its discretion when its decision is
unreasonable, arbitrary or unconscionable. Marlowe v. Marlowe, 2023-Ohio-1417, ¶ 133
(6th Dist.), citing State ex rel. Askew v. Goldhart, 75 Ohio St.3d 608, 610 (1996). Thus,
to find an abuse of discretion, we must determine the trial court’s decision lacked sound
reasoning, or lacked a legal basis, or “affronts the sense of justice, decency, or
reasonableness.” (Citations omitted) Marlowe at ¶ 133. An abuse of discretion requires
more than a difference of opinion regarding the trial court’s decision and requires a
finding that the judgment is “so profoundly and wholly violative of fact and reason that it
evidences not the exercise of will but perversity of will, not the exercise of judgment but
defiance thereof, not the exercise of reason but rather of passion or bias.” (internal
quotations omitted) State v. Weaver, 2022-Ohio-4371, ¶ 24.
13. {¶ 29} While the Wylies do not articulate the applicable standard within their
assignments of error, we construe the challenges to the trial court’s liability
determinations as a weight of the evidence challenge. We likewise construe the challenge
regarding the trial court’s assessment of civil penalties as an abuse of discretion
challenge. However, in addition to applying these standards in our review, we must first
address arguments raised within the assignments of error. The Wylies argue a lack of
intent to commit any violation, as well as a lack of sufficient evidence of actual harm.
For ease of discussion, we address these arguments first, followed by consideration of the
assignments of error, applying the appropriate standard of review as to each assigned
error.
A. The state did not need to prove intent to commit a violation to establish a violation and receive civil penalties under R.C. Chapter 6111.
{¶ 30} In their first, second, third, and fourth assignments of error, the Wylies
argue a lack of knowledge or a misunderstanding, pertaining to their intent to commit a
violation. In support, they cite no law that requires the state to establish an intent to
violate the provisions of R.C. Chapter 6111 to demonstrate the claimed violations.
Instead, R.C. 6111.07(A) expressly states that “no person shall violate or fail to perform
any duty imposed by sections 6111.01 to 6111.08” and R.C. 6111.09 requires imposition
of a civil penalty on “any person who violates section 6111.07[.]”
{¶ 31} There is no provision within R.C. 6111.09, or anywhere else within R.C.
Chapter 6111, indicating the state must prove intent to obtain judgment in a civil
proceeding on violations. Although we have not specifically addressed the issue, other
14. jurisdictions have construed the statute as creating strict civil liability. See, e.g. State ex
rel. DeWine v. Deer Lake Mobile Park, 2015-Ohio-1060, ¶ 50 (11th Dist.) (“owners and
operators of public water and sewage disposal systems are liable for water supply and
pollution violations regardless of intent.) (emphasis sic.); State v. Tri-State Group, Inc.,
2004-Ohio-4441, ¶ 95 (7th Dist.) (any violation subjects the violator to a civil penalty
under R.C. 6111.07 and 6111.09). Additionally, federal courts, construing the federal
Clean Water Act and Ohio’s related provisions, have determined that “Ohio law imposes
strict liability (“no person shall…”) for violations of public welfare statutes like R.C.
6111.04.” United States v. Osborne, 2022 WL 18135184 (N.D. Ohio), citing Kelly v.
EPA, 203 F.3d 512, 522 (7th Cir.2000), citing United States v. Winchester Municipal
Utilities, 944 F.2d 301, 304 (6th Cir.1991).
{¶ 32} While we address strict civil liability for the first time with this case, we
have addressed the issue regarding similar environmental statutes which provide for
criminal prosecution, with similar language, and determined those statutes also create
strict criminal liability for violations. See, e.g., State v. Budd Co., 67 Ohio App.2d 23, 26
(6th Dist.1980) (construing R.C. 1531.29, which provides “No person shall place or
dispose of in any manner, any garbage, waste…oil, or anything else” in the waters of the
state as imposing strict liability); see also State/Div. of Wildlife v. Coll, 2017-Ohio-7270,
¶ 19 (6th Dist.)(finding strict liability for violations of R.C. 1533.11, failure to
carry/display a hunting permit).
15. {¶ 33} Accordingly, lacking any language concerning a mental state or intent, we
find R.C. 6111.04 and 6111.07 impose strict liability for violations, requiring
consideration of the appropriate civil penalty. Therefore, the Wylies’ argument regarding
an “intent” element to sustain liability and civil penalty determinations lacks merit.
B. Actual harm is not a consideration in determining liability relative to the violations at issue.
{¶ 34} In addition to arguing an “intent” element relative to the state’s claims, the
Wylies also argue the state was required to present evidence of actual harm. In their first,
second, third, and fourth assignments of error, the Wylies challenge the lack of evidence
of actual harm arising from the violations asserted by the state. In support, they cite no
authority that requires evidence of harm. Upon thorough review, we find no support for
an “actual harm” element, consistent with Ohio law.
{¶ 35} Ohio’s water pollution laws prevent and protect against harm in addition to
mitigating or remedying harm. The general assembly created the Ohio EPA to administer
laws and regulations “pertaining to the prevention, control and abatement of air and water
pollution, public water supply, and the disposal and treatment of solid and other wastes.”
State ex rel. Brown v. Rockside Reclamation, Inc., 48 Ohio App.2d 157, 167-168 (8th
Dist. 1975). Pursuant to R.C. Chapter 6111, the actionable offense could be the threat to
the environment, with no requirement to prove “actual harm” caused by violations. State
ex rel. DeWine v. Deer Lake Mobile Park, 2015-Ohio-1060, ¶ 44 (8th Dist.); see also
State ex rel. Yost v. Osborne Co., Ltd., 2020-Ohio-3090, ¶ 68 (11th Dist.).
16. {¶ 36} In this case, however, the Wylies failed to obtain permits, required to
prevent pollution and protect the environment, and committed acts that did produce harm,
based on testimony adduced by the state at trial. Thus, the law did not require proof of
actual harm arising from violations, and the state nevertheless presented evidence
demonstrating harm. Therefore, the Wylies’ argument regarding evidence of harm is
without merit.
C. The record supports the trial court’s finding that industrial waste was discharged into the waters of the state from the Glenwood Road property.
{¶ 37} In their first assignment of error, the Wylies argue that the state failed to
present evidence of a “pollutant” entering the waters of Dry Creek. Specifically, the
Wylies argue the state presented no evidence of water discharged into the waterway prior
to obtaining a NPDES permit and no evidence of any harm caused by a pollutant that was
discharged from the mine and into the waterway. In support, they argue the mining
permits allowed dewatering, and they subsequently obtained a NPDES permit from Ohio
EPA, with that permit allowing the same type of activity that they were accused of
engaging in, prior to receiving the permit.
{¶ 38} The state alleged the Wylies discharged industrial waste materials into a
tributary of Dry Creek, in violation of R.C. 6111.04(A)(1), which prohibits placing
industrial waste materials “in a location where they cause pollution of any waters of the
state.” The Wylies claim a permit for dewatering the mine and do not dispute placement
of material along the edge of the property. As noted by the state, the Wylies could have
dewatered the mine without discharging the waste into the waterways, with the discharge
17. the prohibited conduct, not the mining activity. The Wylies’ argument does not address
the law governing discharge or the facts demonstrated at trial.
{¶ 39} First, the Wylies treat dewatering a mine and discharging into the waters of
the state as synonymous. Ohio law concerning discharge, however, concerns water
quality and not mining. Ohio water quality policy conforms to federal water quality
standards. Columbus & Franklin Cty. Metro. Park Dist. v. Shank, 65 Ohio St.3d 86, 100
(1992). Pursuant to this policy, all discharge of pollutants in the waters of the state are
prohibited, but upon obtaining an NPDES permit, regulated discharge is allowed. See Id.,
see also Ohio Adm.Code Chapter 3745-33. Id. The pertinent issue at trial was discharge
into the Creek, not dewatering.
{¶ 40} The Wylies’ argument also fails to address the evidence proffered at trial.
The state presented evidence of discharges from the Glenwood site and notice to Wylie of
the need to obtain a NPDES permit as early as September 2016, with a September
communication with Wylie memorialized in a notice of violation letter dated October 13,
2016. The violation notice required action regarding discharge of industrial waste
materials without a permit. On December 16, 2016, Ohio EPA sent follow-up
correspondence that noted discussion with Wylie regarding a NPDES permit. After no
action was taken by Wylie, Ohio EPA sent second and third notices of violation, on
February 17 and December 28, 2017. Wylie submitted the application for a NPDES
permit on February 21, 2018. Without addressing the state’s evidence, the Wylies argue
18. the trial court “missed the significance” of Wylie’s testimony regarding his activities,
denying any unpermitted discharge into the Creek.
{¶ 41} As to pollution, the Wylies argue that any discharge contained no pollution
and resulted in no harm, as the discharge would have consisted of water and naturally
occurring materials from the mine. They argue that the state’s position, that any material
is a pollutant “when it results from industrial activity” is incorrect. However, the Wylies’
position contradicts the definition provided by R.C. 6111.01, which defines “pollution”
as the “placing of any sewage, sludge, sludge materials, industrial waste, or other wastes
in any waters of the state.” R.C. 6111.01(A). “Industrial waste” is further defined as “any
liquid, gaseous, or solid waste substance resulting from any process of industry.” R.C.
6111.01(C). The state’s adherence to the statutory definition, therefore, is correct, and
consideration of “pollutants” based on extrinsic definitions has no basis in law.
{¶ 42} Applying this law to the evidence adduced at trial, the state presented clear
and convincing evidence to support the trial court’s determination of violation relative to
the Glenwood site. The trial court noted Poffenbarger’s testimony that the Wylies’ sand
and stone quarry operation required removing water from the bottom of the quarry, which
was pumped into a small settling pond before traveling through a drainage pipe to a
tributary of Dry Creek, which is a water of the state. The Wylies also piled materials from
the mine near the tributary, where run-off deposited materials into the tributary of Dry
Creek, a water of the state. Poffenbarger further testified that this discharge into the
waters of the state occurred without a NPDES permit. In challenging this finding on
19. appeal, the Wylies either ignore the law or disregard the state’s evidence. Applying the
law to the evidence of record, however, we find the first assignment of error not well-
taken.
D. The record supports the trial court’s finding that Wylie discharged into a waterway of the state without obtaining a permit for the County Road 5 property.
{¶ 43} In their second assignment of error, the Wylies argue that the state failed to
demonstrate a failure to seek a permit, or that any “pollutant” was discharged into
Fewless Creek. Specifically, the Wylies assert error relative to a “dewatering permit.” In
support, the Wylies argue that they obtained ODNR approval to dewater the mine on
County Road 5, and after learning that Ohio EPA oversaw discharging into the Creek, the
Wylies applied for a NPDES permit but Ohio EPA did not act on the application by
issuing a permit. Thus, while acknowledging they never obtained a permit from Ohio
EPA, the Wylies argue the trial court erred in finding they failed to obtain a permit,
referring to a dewatering permit as the proper authorization for discharging into the
tributary of Fewless Creek.
{¶ 44} We note the dispute over Ohio EPA’s response to the permit application
but find a delay by Ohio EPA to be of no relevance to the issue at trial, the violations.
Wylies’ argument of the delay in responding to the application sounds in estoppel, and
“[e]stoppel, in general, does not apply against the state or its agencies in the exercise of a
governmental function.” State ex rel. Petro v. Maurer Mobile Home Court, Inc., 2007-
Ohio-2262, ¶ 74 (6th Dist.), citing Hartman v. City of Miamisburg, 2006-Ohio-4251, ¶
20. 25. A failure “to act as expeditiously as possible” will not prevent the state from
protecting the public welfare. Id., citing Sekerak v. Fairhill Mental Health Ctr., 25 Ohio
St.3d 38, 39 (1986).
{¶ 45} The discharge into the waters of the state without a NPDES permit was the
pertinent issue at trial, with “dewatering” and “discharging” separately regulated
activities. While the ODNR may have issued a permit for dewatering, “[i]n Ohio, the
[Ohio EPA] has been delegated the authority to issue NPDES permits for the discharge of
pollutants into Ohio waters.” Fairfield Cty. Bd. of Commrs. v. Koncelik, 2013-Ohio-2106,
¶ 6 (10th Dist.). Furthermore, all discharge of pollutants, as defined at R.C. 6111.01, is
prohibited unless the discharge is permitted and regulated through a NPDES permit, as
provided under Ohio Adm.Code Chapter 3745-33. See Columbus & Franklin Cty. Metro.
Park Dist., 65 Ohio St.3d at 100. Finally, as shown above, the definition of “pollution”
and “industrial waste” is found within R.C. 6111.01, and the Wylies provide no authority
for applying a definition not found within the statute.
{¶ 46} To support its claim regarding the County Road 5 property, the state
presented evidence at trial demonstrating Wylie applied for a NPDES permit in 2008, but
his application was defective because it lacked a required signature and topographic
maps. Ohio EPA notified Wylie of the deficiencies, but Wylie continued to discharge
from the County Road 5 mine into the tributary of Fewless Creek without submitting a
completed application. Furthermore, while Wylie claimed that Ohio EPA cashed his
second check, attached to a second application, there was no evidence of a permit issued
21. based on a second application. Instead, in 2016, Ohio EPA sent Wylie a letter directing
him to apply for a NPDES permit. Throughout this time, the Wylies continued the
activities from the County Road 5 mine.
{¶ 47} Considering the record, the state presented competent, credible evidence to
support the trial court’s determination that the Wylies discharged industrial waste into
waters of the state without a NPDES permit. Therefore, we find the second assignment
of error not well-taken.
E. The record supports the trial court’s finding that Wylie filled wetlands on County Road B.
{¶ 48} In their third assignment of error, the Wylies argue the trial court erred in
finding he placed fill materials into wetlands at 1616 County Road B, based on his claim
that there were no wetlands present at the time he developed the property. The Wylies
acknowledged receipt of notice from the Army Corps of Engineers regarding the
presence of wetlands, but claimed – without supporting documentation or evidence – that
they did not need to take any action regarding wetlands because they avoided the
wetlands areas in developing the property.
{¶ 49} At trial, Wylie seemed to argue that wetlands were not present because he
never saw any wetlands. A “wetland” is an area “inundated or saturated by surface or
ground water at a frequency and duration that are sufficient to support, and that under
normal circumstances do support, a prevalence of vegetation typically adapted for life in
saturated soil conditions.” Ohio Admin.Code 3745-1-02(107). A “wetland” could include
22. swamps, marshes, bogs, and other, similar areas identified by the U.S. Army Corps of
Engineers pursuant to its delineation manual or other procedures. Id. Pursuant to R.C.
6111.02(A), the quality of a “wetland” is determined based on application of the rule set
forth in Ohio Admin.Code 3745-1-54.
{¶ 50} At trial, the state presented testimony demonstrating the wetlands had been
designated as isolated, category 3 wetlands, or the highest quality wetlands as defined in
the Ohio Administrative Code. See Ohio Admin.Code 3745-1-54(C)(3)(a)-(c). The state
further presented evidence, including correspondence, documents, and historical
photographs, demonstrating clear notice to the Wylies of high-quality, isolated wetlands
present in the northern portion of the property and the gradual disappearance of those
wetlands, after development that included an office building and paved parking lot. The
state also presented evidence of fill materials, including gravel, wood chippings, and
other construction debris, present in the area where wetlands had been present, prompting
a notice of violation to the Wylies in 2007.
{¶ 51} In challenging the trial court’s findings regarding the filling of wetlands at
the 1616 County Road B property, the Wylies dispute the facts regarding the presence of
wetlands based solely on Wylie’s testimony that there were no wetlands and ignoring
Wylies’ admission that the Army Corps of Engineers advised him to consult a
professional before building on the northern part of the property where Wylie admittedly
constructed his office and parking lot, without consulting a professional. On appeal, the
Wylies argue the trial court erred in not crediting the conflicting testimony as dispositive
23. on the presence of wetlands, without addressing the repeated notice the Wylies received
regarding the presence of wetlands and the need for Ohio EPA approval prior to
development. Thus, the Wylies challenge the trial court’s credibility determination
regarding the presence of wetlands.
{¶ 52} In reviewing the record, we find competent, credible evidence of both the
existence of wetlands and the disappearance of those documented wetlands due to
placement of fill materials, and we defer to the trial court’s credibility determination
regarding Wylie’s testimony. See Seasons Coal Co., Inc. v. City of Cleveland, 10 Ohio
St.3d 77, 81 (1984). Therefore, we find the third assignment of error not well-taken.
F. The record supports the trial court’s finding that Wylie failed to provide plans for the wastewater treatment facility on County Road B.
{¶ 53} In their fourth assignment of error, the Wylies argue the trial court erred in
determining liability based on a failure to submit as-built drawings for their wastewater
treatment system because any violation was merely technical, considering the proper
functioning of the system installed. Again, the Wylies acknowledge the failure to submit
a completed permit application with “as-built” plans but argue that a liability finding was
error based on a lack of intent or evidence of actual harm caused by their conduct.
{¶ 54} We previously determined that the state need not present evidence of intent
or harm to support a violation. Furthermore, the conduct alleged, a failure to submit “as-
built” plans to remedy installation of a wastewater treatment system without a permit, is
admitted by the Wylies. The Wylies, moreover, provide no support for a “technical”
24. violation under the statute. Instead, they acknowledge a violation, and the statute imposes
strict liability.
{¶ 55} We therefore find the fourth assignment of error not well-taken.
G. The record supports the trial court’s determination that the appellants were recalcitrant, meriting a civil penalty.
{¶ 56} In their fifth assignment of error, the Wylies challenge the trial court’s
finding that they were recalcitrant, meriting the award of civil penalties. In support, they
argue that they presented “reasonable explanations” why they failed to obtain permits and
the trial court impermissibly relied on its finding of recalcitrance to justify civil penalties.
{¶ 57} As previously addressed, R.C. 6111.09(A) provides that “any person who
violates section 6111.07 of the Revised Code shall pay a civil penalty of not more than
ten thousand dollars per day of violation.” (Emphasis added). Therefore, the trial court’s
imposition of civil penalties was not based on its finding of recalcitrance, but upon a
finding of violation. To the extent the Wylies dispute the amount of the civil penalties
imposed, moreover, it is well-settled law that “the amount of a civil penalty imposed for a
violation of pollution-control policies lies within the discretion of the trial court[.]” State
ex rel. Ohio Atty. Gen. v. Shelly Holding Co., 2012-Ohio-5700, ¶ 23, citing State ex rel.
Brown v. Dayton Malleable, 1 Ohio St.3d 151, 157-158 (1982).
{¶ 58} The statute expressly sets a limit of ten thousand dollars for each day of
violation, and below this cap, the amount “rests in the informed discretion of the court.”
(Citation omitted) State ex rel. Petro v. Maurer Mobile Home Court, Inc., 2007-Ohio-
25. 2262, ¶ 54 (6th Dist.). An abuse of discretion connotes that the trial court’s attitude was
arbitrary, unreasonable, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217,
219 (1983).
{¶ 59} Here, the trial court considered factors, adopted from federal EPA policy
and deemed appropriate by the Ohio Supreme Court in State ex rel. Brown v. Dayton
Malleable, Inc., 1 Ohio St.3d at 156; see also State ex rel. Yost v. Osborne Co., Ltd.,
2020-Ohio-3090, ¶ 64 (11th Dist.) (noting a court’s discretion to apply these factors in
assessing a civil penalty, although the statute does not require it). The trial court
considered the following factors: “(1) the harm or risk of harm posed to the environment
by the violations; (2) the violator’s level of recalcitrance, defiance, or indifference to the
law; (3) the economic benefit gained by the violation; and (4) the extraordinary
enforcement costs incurred by the state.” State ex rel. DeWine v. Deer Lake Mobile Park,
2015-Ohio-1060, ¶ 44 (11th Dist.), citing Dayton Malleable at 157-158.
{¶ 60} On appeal, the Wylies argue the trial court only considered the
recalcitrance factor. As to this factor, the trial court found that the Wylies failed to obtain
required permits in a timely fashion despite extensive enforcement efforts, with Nicholas
and Lisa displaying indifference by failing to appear at trial regarding violations on their
property and Wylie expressing his defiance in testimony, claiming he had been in the
sand mining business for over 30 years without a NPDES permit. The trial court found a
consistent refusal to comply with permit requirements.
26. {¶ 61} As to the individual properties, the trial court found the Glenwood Road
quarry operated without an NPDES permit for at least 537 days and the County Road 5
quarry operated without an NPDES permit for 702 days. The trial court also found the
violations arising from destruction of wetlands at 1616 County Road B occurred as early
as August 12, 2002, the date of the site assessment performed by Ohio EPA, and continue
to the present with the Wylies failing to submit an after-the-fact isolated wetland fill
permit request, despite numerous violation notices received for about 20 years. Likewise,
the violations at 1640 County Road B occurred as early as January 25, 2012, the date of
the site inspection, and continue to the present as the Wylies failed to submit “as-built”
plans for the wastewater treatment system so that a permit might be issued.
{¶ 62} Additionally, the trial court considered the other factors. The trial court
noted the Wylies gained an economic benefit by avoiding the significant costs associated
with complying with the applicable environmental laws and regulations by obtaining
permits. Additionally, the trial court determined the Wylies’ violations caused harm to
the environment, specifically referencing testimony regarding the harmful effect of
excess sediment discharged into waters of the state, the destruction of high-quality
wetlands, and the public health concerns regarding an unpermitted wastewater system.
Finally, the trial court found that Ohio EPA incurred extraordinary costs because of
extraordinary enforcement efforts, spanning many years.
27. {¶ 63} Considering this record, we find no abuse of discretion by the trial court in
imposing civil penalties well within the potential range of penalties. We therefore find the
fifth assignment of error not well-taken.
H. The “nominal defendants” were titled owners, and therefore proper parties against whom the trial court assessed civil penalties.
{¶ 64} Finally, in their sixth assignment of error, the Wylies argue error in
assessing penalties against “nominal defendants,” who were merely record owners of the
properties at issue. The Wylies argue that because Nicholas and Lisa Wylie were merely
record owners of the property, and not involved in any of the conduct that resulted in
violations, they could not be found liable and assessed civil penalties.
{¶ 65} We note that the state specifically asserted Nicholas and Lisa Wylie were
proper parties having individual liability within the complaint. In answer, the Wylies
raised the affirmative defense of misjoinder of parties, but limited denials to challenging
party-status of Wylie & Sons Sand and Stone and Wylie as owner or operator of the WB
Ranch and Arena, located on the 1650 County Road B property. The Wylies did not
otherwise deny the allegations as to the individual liability of Nicholas and Lisa. Neither
Nicholas nor Lisa appeared for trial.
{¶ 66} At trial, the state presented evidence regarding ownership for each
property, as recorded in the county auditor’s offices in Wood and Fulton counties. The
Wylies did not dispute this ownership evidence. Significantly, the Wylies never
addressed the “nominal” status of Nicholas and Lisa by introducing evidence during trial.
Despite failing to place the issue of individual liability of Nicholas and Lisa in dispute, as
28. alleged in the pleadings, the Wylies raised the issue for the first time in their post-trial
brief, arguing Nicholas and Lisa were improper defendants because the state failed to
present evidence on their individual liability, ignoring evidence of ownership and notice
regarding violations on their respective properties.
{¶ 67} Additionally, we find the argument of “nominal” party unclear, relative to
Nicholas and Lisa’s ownership of the property and resulting liability under R.C. Chapter
6111 for violations arising from their property. A “nominal” owner is a legal owner. Ohio
Div. of Real Estate v. Vantell, 128 Ohio App.3d 410, 416 (7th Dist.1998), citing
Restatement of Law, Property (1929). The record, moreover, is silent on this “nominal”
theory of liability, because the Wylies never denied individual liability at the pleadings
stage and put forth no argument or evidence in the trial court to demonstrate “nominal”
status.
{¶ 68} In considering the evidence, the trial court did find insufficient evidence of
Nicholas’ liability as to Count 4 and the County Road 5 property, but otherwise found
individual liability on Counts pertaining to properties Nicholas and Lisa did own.
Considering this record, we find sufficient, credible evidence to support the finding of
individual liability against Nicholas and Lisa, as determined by the trial court in its
judgment. Accordingly, we find the sixth assignment of error not well-taken.
29. V. Conclusion
{¶ 69} Having found substantial justice has been done, we affirm the judgment of
the Wood County Court of Common Pleas. Appellants are ordered to pay the costs of this
appeal pursuant to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
Thomas J. Osowik, J. ____________________________ JUDGE Christine E. Mayle, J. ____________________________ Gene A. Zmuda, J. JUDGE CONCUR. ____________________________ JUDGE
This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.
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