Stark-Tuscarawas-Wayne Joint Solid Waste Management District v. Republic Waste Services of Ohio II, 2009 Ohio 2143 (Ohio App. 5/7/2009)
| Decision Date | 07 May 2009 |
| Docket Number | No. 07AP-599.,07AP-599. |
| Parties | Stark-Tuscarawas-Wayne Joint Solid Waste Management District, Appellant-Appellant/ Cross-Appellee, v. Republic Waste Services of Ohio II, LLC, Appellee-Appellee/ Cross-Appellant, Christopher Jones, Director of Environmental Protection, Appellee-Appellee. |
| Court | Ohio Court of Appeals |
Appeal from the Environmental Review Appeals Commission, ERAC No. 795334.
Black, McCuskey, Souers & Arbaugh, Thomas W. Connors, and Kristin R. Zemis, for appellant Stark-Tuscarawas-Wayne Joint Solid Waste Management District.
Baker & Hostetler, LLP, Maureen A. Brennan, Jason P. Perdion, and David F. Proano, for appellee Republic Waste Services of Ohio, II, LLC.
Richard Cordray, Attorney General, R. Benjamin Franz, and Nicholas J. Bryan, for appellee Christopher Jones, Director of Environmental Protection.
{¶1} Appellant, Stark-Tuscarawas-Wayne Joint Solid Waste Management District ("the District") appeals from an order of the Environmental Review Appeals Commission ("ERAC") that affirmed the decision of appellee, Christopher Jones, Director of the Ohio Environmental Protection Agency ("the Director" or "OEPA"),1 to grant appellee/cross-appellant, Republic Waste Services of Ohio, II, LLC ("Republic"), a permit to install an expansion to Countywide Recycling Disposal Facility, a solid waste landfill that it has owned and operated in East Sparta, Stark County, Ohio since 1995.2 Because reliable, probative, and substantial evidence supports the order and the order is in accordance with law, we affirm.
{¶2} Much of the factual foundation, procedural background, and applicable law set forth below is derived from our opinion in Club 3000 I. We will supplement that information with additional facts, procedural background, and applicable law pertinent to the issues before us in the instant appeal.
{¶3} On February 14, 2001, Republic submitted an application for a permit to install ("PTI") a 170-acre lateral and vertical expansion to its existing 88-acre municipal solid waste landfill. Republic's application and supporting documentation included engineering plans, a groundwater monitoring plan ("groundwater plan"), a report authored by Eagon & Associates, a consulting firm commissioned by Republic, entitled "Hydrogeologic Investigation for Countywide Recycling and Disposal Facility Lateral and Vertical Expansion" (the "HGI report"), as well as numerous maps, charts, graphs, tables and various other reports. The HGI report included information previously collected by Burgess & Niple, Ltd., and Golder Associates, consulting firms involved with the site before it was operated by Republic.
{¶4} Over the more than two-year period Republic's application was pending, representatives from Republic and the OEPA engaged in numerous detailed discussions related to the PTI. Ultimately, the OEPA, on May 21, 2002, issued a final recommendation for approval to the Director. On July 1, 2003, the District appealed the Director's final action to ERAC, setting forth six separate assignments of error. Through these assignments, the District argued that the Director acted unlawfully or unreasonably in issuing the permit: (1) despite evidence that the expansion would compromise the ambient water quality in violation of Ohio Adm.Code 3745-31-05(A)(1); (2) in violation of, or without lawful waiver from, the siting requirements of Ohio Adm.Code 3745-27-07(H)(2), prohibiting a landfill above an unconsolidated aquifer capable of sustaining a yield of 100 gallons per minute; (3) in violation of, and without a lawful waiver from, the siting requirement of Ohio Adm.Code 3745-27-07(H)(3) prohibiting the landfill at a location within a five-year time of travel to a public water supply well; (4) without adequately considering the substantial risk of contamination to area aquifers resulting from highly fractured bedrock present beneath the proposed landfill expansion; (5) without adequately investigating and addressing the risk of contamination arising from highly fractured bedrock, pre-existing mines, and oil and gas wells in the area of and beneath the proposed landfill expansion; and (6) where the proposed liner system, materials for fill and sub-base, and groundwater monitoring systems are inadequate and are not the best available technology.
{¶5} On March 24, 2004, Republic filed a motion to dismiss the District's appeal for lack of standing. ERAC denied Republic's motion to dismiss on April 21, 2004.
{¶6} ERAC conducted a 19-day de novo hearing over five months between October 2004 and February 2005, during which the parties presented extensive documentary and testimonial evidence. At the conclusion of the hearing, Republic orally renewed its motion to dismiss the District's appeal for lack of standing. On April 6, 2005, ERAC denied Republic's oral motion to dismiss and noted that it would address the standing issue in its final order.
{¶7} On December 26, 2006, the District filed a "Motion To Suspend Proceedings And To Remand Proceedings" ("motion to remand") on grounds that ongoing problems at the existing landfill site, including extensive leachate buildup, increased temperatures, and movement in the waste mass had compromised the integrity of the landfill liner under the vertical expansion area, thus rendering invalid the factual foundation supporting the Director's issuance of the expansion PTI. The District requested that ERAC remand the case to the Director for further consideration of these issues and their impact on the issuance of the PTI. The Director and Republic each opposed the motion in writing. ERAC heard oral arguments on the motion February 23, 2007.
{¶8} Thereafter, on June 27, 2007, ERAC issued its "Findings of Fact, Conclusions of Law and Final Order and Ruling On Motion to Suspend Proceedings and to Remand Proceedings." In its order, ERAC affirmed the Director's issuance of the PTI. In addition, ERAC denied the District's post-hearing motion to remand, finding that the District had not established a sufficient nexus between the existing compliance issues at the landfill and the Director's decision to issue the expansion PTI. In addition, ERAC, in a footnote, summarily denied Republic's motion to dismiss the District's appeal on the basis of standing.
{¶9} On July 26, 2007, the District filed a notice of appeal pursuant to R.C. 3745.06. The District raises a single assignment of error, in the instant appeal, as follows:
Whether the Environmental Appeal Review Commission's [sic] ("ERAC") June 27, 2007 order is supported by reliable, probative and substantial evidence and is in accordance with law.
{¶10} On August 3, 2007, Republic filed a notice of cross-appeal pursuant to R.C. 3745.06. In its brief, Republic advances a single cross-assignment of error, in the instant appeal, as follows:
The Environmental Review Appeals Commission erred as a matter of law in denying cross-appellant's motion to dismiss the Stark-Tuscarawas-Wayne Joint Solid Waste Management District for lack of standing.
{¶11} Initially, we must address the District's motion to dismiss Republic's cross-appeal. "Where a statute confers the right of appeal, an appeal may be perfected only in the manner prescribed by statute." Camper Care, Inc. v. Forest River, Inc., 10th Dist. No. 08AP-146, 2008-Ohio-3300, ¶8. R.C. 3745.06 confers the right to appeal ERAC orders and provides the procedures for perfecting such appeals. In pertinent part, R.C. 3745.06 provides:
Any party adversely affected by an order of the environmental review appeals commission may appeal to the court of appeals of Franklin County, or, if the appeal arises from an alleged violation of a law or regulation, to the court of appeals of the district in which the violation was alleged to have occurred. Any party desiring to so appeal shall file with the commission a notice of appeal designating the order appealed. A copy of the notice also shall be filed by the appellant with the court, and a copy shall be sent by certified mail to the director of environmental protection unless the director is the party appealing the order. Such notices shall be filed and mailed within thirty days after the date upon which the appellant received notice from the commission by certified mail of the making of the order appealed. No appeal bond shall be required to make an appeal effective.
{¶12} As noted above, ERAC issued its final order on June 27, 2007. The District filed its notice of appeal on July 26, 2007 — one day shy of the 30-day time limit provided in R.C. 3745.06. Republic filed its notice of cross-appeal on August 3, 2007 — outside the 30-day time limit, but only seven days after the District filed its notice of appeal.
{¶13} The District contends that Republic's cross-appeal must be dismissed because it was not filed within the mandatory 30-day time limit set forth in R.C. 3745.06. Republic and the Director counter that the 30-day time limit applies only to the filing of the initial notice of appeal and, since R.C. 3745.06 does not provide a procedure for the filing of cross-appeals, such procedure is governed by App.R. 4(B)(1), which provides that cross-appeals may be filed within ten days of the filing of the initial notice of appeal. The District responds that App.R. 4(B)(1) does not apply because appeals from ERAC orders are governed by R.C. 3745.06 and not by the Ohio Rules of Appellate Procedure. In support of its argument, the District cites App.R. 1(A), which provides that the appellate rules "govern procedure in appeals to court of appeals from the trial courts of record in Ohio." The District maintains that, since ERAC is an administrative agency and not a trial court of record, the appellate rules do not apply to ERAC appeals.
{¶14} The parties concede that no Ohio court has addressed the interplay between the 30-day appeal window set forth in R.C. 3745.06 and the ten-day cross-appeal time frame...
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