Clermont Environmental Reclamation Co. v. Wiederhold, 82-280

• Decision Date: 15 December 1982
• Docket Number: No. 82-280,82-280
• Citation: 2 OBR 587,442 N.E.2d 1278,2 Ohio St.3d 44
• Parties: , 2 O.B.R. 587, 13 Envtl. L. Rep. 20,466 CLERMONT ENVIRONMENTAL RECLAMATION CO. et al., Appellees, v. WIEDERHOLD et al., Appellants.
• Court: Ohio Supreme Court

Page 44

2 Ohio St.3d 44

442 N.E.2d 1278, 2 O.B.R. 587, 13 Envtl. L. Rep. 20,466

CLERMONT ENVIRONMENTAL RECLAMATION CO. et al., Appellees, v. WIEDERHOLD et al., Appellants.

No. 82-280.

Supreme Court of Ohio.

Dec. 15, 1982.

Syllabus by the Court

1. R.C. 3734.05(D)(3), which prohibits any political subdivision of the state from requiring any additional zoning or other approval for the construction and operation of a hazardous waste facility authorized by a hazardous waste facility permit issued pursuant to R.C. Chapter 3734, is a "law, of a general nature" of the state having uniform operation throughout the state and, as such, is not violative of Section 26, Article II of the Ohio Constitution, and is therefore constitutional.

2. R.C. 3734.05(D)(3) was enacted by the General Assembly for the protection of the environment of the state and for the health and safety of its citizens as a reasonable exercise of the state's general police power. Such law being a "general law" to carry out these statewide legislative goals, municipalities are subject to its provisions notwithstanding the provisions of Section 3, Article XVIII of the Ohio Constitution.

Appellees own and operate a hazardous waste disposal facility in Jackson Township, Clermont County. Appellee Clermont Environmental Reclamation Company acquired the site and operated it as a landfill prior to May 8, 1975.

On May 8, 1975, appellants, members of the Jackson Township Board of Trustees, adopted a zoning resolution for the township. Section A, Article IV of that resolution prohibits privately owned and operated landfills in Jackson Township.

In February 1979, appellants advised appellees that their facility violated Section A, Article IV of the zoning ordinance. Appellants ordered appellees to cease the violation. Subsequently, appellees initiated this action to enjoin the application of the zoning resolution to its site.

During the resulting litigation, the General Assembly passed Am.S.B. No. 269, effective October 9, 1980. That legislation amended R.C. Chapter 3734 relative to the transportation and disposal of hazardous wastes. Of particular importance to this case is the enactment of R.C. 3734.05(D)(3) which prohibits the regulation of properly licensed hazardous waste disposal facilities by political subdivisions of the state.

Appellees filed a motion for summary judgment arguing that as a result of R.C. 3734.05(D)(3) appellants' zoning resolution could not regulate hazardous waste facilities. The appellants argued that R.C. 3734.05(D)(3) is unconstitutional; hence, it cannot serve as a basis for judgment.

The trial court held that R.C. 3734.05(D)(3) was a "general law," that it had uniform operation throughout the state, and that such statute is constitutional and precludes application of the zoning ordinance. The court entered judgment for the appellees. Upon appeal, the court of appeals affirmed.

This cause is now before the court pursuant to the allowance of a motion to certify the record.

Bauer, Morelli & Heyd Co., L.P.A., and Arnold Morelli, Cincinnati, for appellees.

George E. Pattison, Pros. Atty. and Robert A. Jones, Batavia, for appellants.

James A. Rudgers, law director, Akron, Szolosi & Fitch, Michael R. Szolosi and Stephen C. Fitch, Columbus, urging reversal for amicus curiae City of Norton.

William J. Brown, Atty. Gen., and Terrence M. Fay, Asst. Atty. Gen., urging affirmance for amicus curiae State of Ohio.

Porter, Wright, Morris & Arthur, J. Jeffrey McNealey and Dale V. Bring, Columbus, urging affirmance for amicus curiae Ohio Chamber of Commerce.

HOLMES, Justice.

In response to a rapidly growing public health problem in Ohio, the General Assembly, in 1980, enacted a comprehensive measure, by way of Am.S.B. No. 269, to more effectively control the disposal of hazardous wastes, such wastes generally being the chemical by-products of the industrial and manufacturing process. With the aim and purpose of reasonably assuring that the facilities in the state where hazardous wastes would be disposed of would be designed, sited, and operated in such a manner so as to protect the public interest, the General Assembly amended R.C. Chapter 3734. By virtue of the enactment of R.C. 3734.05(D)(3), there was created a Hazardous Waste Facility Approval Board composed of the Director of Environmental Protection who serves as chairman, the Director of Natural Resources, the chairman of the Ohio Water Development Authority, one chemical engineer and one geologist. The board's main function is to review, and either approve or disapprove, applications for hazardous waste facility installations and operation permits.

To reasonably assure that the newly formed board would site the hazardous waste facilities in the most feasible fashion based upon an input of wide consideration and criteria, the General Assembly, by way of R.C. 3734.05(C)(4)(c) and (d), provided that adjudicatory hearings must be conducted upon such applications for permits with the county commissioners and the chief executive officer of the municipal corporation in which the facility is proposed to be located, and any petitioning aggrieved or adversely affected persons being made parties to such proceeding.

The new law, within R.C. 3734.05(C)(6), provides that the board shall not approve an application for a hazardous waste facility installation and operation permit unless it finds and determines:

"(a) The nature and volume of the waste to be treated, stored, or disposed of at the facility;

"(b) That the facility complies with the director's hazardous waste standards adopted pursuant to section 3734.12 of the Revised Code;

"(c) That the facility represents the minimum adverse environmental impact, considering the state of available technology and the nature and economics of various alternatives, and other pertinent considerations;

"(d) That the facility represents the minimum risk of:

"(i) Contamination of ground and surface waters by leachate and runoff from the facility;

"(ii) Fires or explosions from improper treatment, storage, or disposal methods; or

"(iii) Accident during transportation of hazardous waste to the facility * * *."

In furtherance of carrying out the comprehensive purposes of this new legislation concerned with the growing statewide problem of the proper disposal of hazardous waste materials, the General Assembly enacted R.C. 3734.05(D)(3) which provides:

"No political subdivision of this state shall require any additional zoning or other approval, consent, permit, certificate, or other condition for the construction or operation of a hazardous waste facility authorized by a hazardous waste facility installation and operation permit issued pursuant to this chapter, nor shall any political subdivision adopt or enforce any law, ordinance, or regulation that in any way alters, impairs, or limits the authority granted in the permit issued by the board."

The sole question presented by this appeal is whether this quoted section is constitutional. Appellant township, in the main, argues that R.C 3734.05(D)(3) is unconstitutional in that it was enacted as a general law, but that it will not have uniform operation throughout the state and, accordingly, it contravenes Section 26, Article II of the Ohio Constitution which provides in pertinent part that "[a]ll laws, of a general nature, shall have a uniform operation throughout the state * * *." Construing such constitutional provision, this court, in Miller v. Korns (1923), 107 Ohio St. 287, 301, 140 N.E. 773, stated that a general law which does not have uniform operation throughout the state "is clearly unconstitutional, unless it makes classifications which are reasonable."

The appellant township seeks the declaration by this court that R.C. 3734.05(D)(3) is unconstitutional, not upon the basis that it questions the power of the General Assembly to limit the zoning powers that body has conferred upon townships pursuant to R.C. Chapter 519, such as has been done in regard to agricultural use and public utility use, but, rather, upon the basis that this section of law would attempt to limit the home rule powers of municipalities in violation of Section 3, Article XVIII of the Ohio Constitution.

The appellant township argues that because the General Assembly is powerless to limit the home rule powers conferred upon municipalities by Section 3, Article XVIII of the Ohio Constitution in the manner provided by R.C. 3734.05(D)(3), such statute could not affect the zoning powers of municipalities in the same manner that it would affect townships, so, therefore, this statutory provision would not have uniform operation throughout the state as required by Section 26, Article II of the Ohio Constitution.

The broader issue of whether R.C. 3734.05(D)(3) conflicts with the zoning powers of municipalities as granted by Section 3, Article XVIII of the Ohio Constitution was addressed by the court of appeals below, and has been submitted to this court for its consideration by way of the arguments contained in the brief of amicus curiae city of Norton.

The court of appeals held that the enactment of R.C. 3734.05(D)(3) embodied a proper subject for statewide regulation within the scope of the state's police power, and that as such it was a "general law"; and that "[t]he police powers conferred upon municipalities by Section 3, Article XVIII, Ohio Constitution, is limited by the last phrase of that Section to such 'regulations as are not in conflict with general laws,' " the court relying upon West Jefferson v. Robinson (1965), 1 Ohio St.2d 113, 205 N.E.2d 382 , and Canton v. Whitman (1975), 44 Ohio St.2d 62, 337 N.E.2d 766 .

Varying the basis upon which the claim of unconstitutionality of the statute is presented, the amicus curiae city of Norton states that R.C. 3734.05(D)(3) is not a "general law" of the state within the meaning of Section 3, Article XVIII of the Ohio Constitution, and therefore cannot...