Ohio Lawyer Nov. Dec. 2011[1]

1. In My Opinion
Environmental enforcement:
Defendants liable until
proven otherwise?
by Ryan Elliott
Contrary to some of the most fundamental tenets of our judicial finding that the violations of Shelly’s permits continued after the
system (and Ohio’s air pollution control law), defendants may one-day stack test events.”7 The trial court rejected the state’s in-
bear the burden of proof in environmental enforcement actions vitation to infer a continuing violation, explaining that “[e]xcept
in which the state seeks to impose civil penalties for continuing for the date of the specific ‘stack test,’ there is not a specific test
violations. In State v. The Shelly Holding Co., the Supreme Court result proving that the violation continued. … Simply put the
of Ohio will address, for the first time, the state’s initial burden Court does not find the requested inference to be reasonable
of proof and decide whether a single violation of a unit’s air per- given the fact that the State has the burden.”8 The penalties as-
mit, evidenced by a failed stack test, is—without any additional sessed were limited to the nine dates in which the noncompliant
evidence—presumed to “continue” each and every day thereafter stack tests were conducted.
until the defendant-violator demonstrates compliance.1 Consid- The state appealed to the 10th District Court of Appeals con-
ering the defendant is subject to a civil penalty of up to $25,000 tending that “the trial court erred by limiting emissions viola-
for each day of violation, it is paramount that a court properly tions and resulting penalties to the date of the nonconforming
determine whether a “continuing violation” has in fact occurred emissions test results.”9 The appeals court agreed, and held that
and, ultimately, the correct number of days during which the vi- “in determining the number of days each violation existed, the
olation continued.2 trial court should have concluded the violation continued until
On July 23, 2007, the state of Ohio, on behalf of Ohio Environ- the subsequent stack test determined the plant no longer was vi-
mental Protection Agency (Ohio EPA), filed a civil enforcement olating the permit limitations.”10 The 10th District’s holding,
action against several related companies. The state alleged viola- somewhat cryptic in its analysis of the state’s initial burden of
tions of Ohio’s air pollution control law, R.C. 3704, and sought proof, has resulted in unclear and potentially problematic asser-
injunctive relief as well as civil penalties.3 The defendants are tions at the Supreme Court.
Ohio-based businesses that operate hot-mix asphalt (HMA) For instance, does the 10th District’s holding stand for the
plants used for paving roads. The plants are regulated under proposition that evidence of a single violation—without any ad-
Ohio’s air pollution control law and all have air permits issued by ditional evidence presented by the state—satisfies the state’s ini-
Ohio EPA. With respect to the issue pending before the tial burden of proof, thereby establishing a presumption that the
Supreme Court, the state asserted that five HMA plants violated violation continued until a subsequent stack test demonstrates
an emission limit during a three-hour “stack test” and that the compliance? The state, positing that “A failed emissions compli-
violations at each plant continued for 2,912 days until Shelly ance test is prima facie proof of an emissions violation that is
could demonstrate compliance via stack testing.4 presumed to continue until compliance is demonstrated,” seems
Stack testing measures emissions of gases that are exhausted from to be advocating for that exact interpretation.11 An analysis of
a facility into the ambient air during representative operating the relevant statutes and case law reveals that such a rule of law
conditions.5 The parties do not dispute that the results of stack cannot be maintained as it would impermissibly excuse the state
tests conducted at five of Shelly’s plants established an emission from satisfying its initial burden of proof.
violation on the particular dates of the tests. Rather, the parties To begin, the plaintiff in any civil action bears the burden of
contest the continuing nature of each violation and the evidence proof for each element of each claim for relief.12 Under Ohio’s air
each party must put forth to (dis?)prove the same. The state’s ini- pollution control laws, the state bears the burden of proving a vi-
tial burden of proof—critical to the continuing violation analy- olation for each day the state seeks to impose liability.13 Similarly,
sis—is a fundamental threshold that must be satisfied before in a federal enforcement action under the Clean Air Act (CAA),
shifting the burden to the defendant. the burden of establishing a violation is on the government.14
At trial, the state argued that, once an initial violation is estab- Clean Air Act §113(e)(2) states that a continuing violation may
lished by evidence of a failed stack test, the court should infer only be presumed “where the Administrator or an air pollution
that the violation continued each day thereafter until a stack test control agency has notified the source of the violation, and the
demonstrates compliance.6 The defendants responded by high- plaintiff makes a prima facie showing that the conduct or events
lighting that “the State presented no testimony, no documents, giving rise to the violation are likely to have continued or re-
no operational data, no additional engineering tests, no calcula- curred past the date of notice.”15
tions, nor any other evidence of any sort to support a factual
28 Ohio Lawyer November/December 2011 www.ohiobar.org

2. The statute unambiguously requires the state to come forward Author bio
with evidence on two distinct elements to establish a continuing
violation: evidence of an initial violation (i.e. failed stack test); Ryan Elliott is an associate in the environmental practice
and make a prima facie showing that the violation is likely to group in the Columbus office of Shumaker, Loop & Kendrick,
have continued. While CAA §113(e)(2) requires a lower stan- LLP. Elliott has experience in several aspects of environmental
dard of proof to make the “prima facie showing” than R.C. law including federal and state air, water and solid waste com-
3704.06(B), both statutes require at least some scintilla of evi- pliance matters.
dence, in addition to proof of the initial violation.
To be sure, the cases cited in support of the Tenth District’s deci-
sion followed the analysis outlined above.16 For example, in
Thermal-Tron, the court determined that the violation continued
for 11 months based on witness testimony “as well as the waste Endnotes
manifests, temperature charts, and operating records.”17 In Hoge, 1
Appellants’ memorandum in support of jurisdiction, Feb. 11, 2011,
the state satisfied the second prong of its initial burden by pre- State ex rel. Ohio Attorney General v. The Shelly Holding Co., et al.,
senting deposition testimony indicating that the unit continued Supreme Court of Ohio Case No. 2011-0252, at p. 2.
to operate despite the defendant’s doubt that the unit could op- 2
R.C. 3704.06(C).
erate below its emissions limits.18 The court held that “[g]iven 3
Appellants’ merit brief, July 8, 2011, State ex rel. Ohio Attorney General
the evidence presented by the Plaintiffs, the Court finds that Plain- v. The Shelly Holding Co., et al., supra, at p. 4.
tiffs have established a prima facie case of continuing viola- 4
Appellee’s merit brief, Aug. 24, 2011, State ex rel. Ohio Attorney General
tions.”19 Most notably, the court highlighted that the court’s v. The Shelly Holding Co., et al., supra, at p. 9.
finding “only goes to those days which the Plaintiffs can establish 5
40 CFR §60.8.
Boiler B004 was in operation.”20 Both the Thermal-Tron and 6
State ex rel. Ohio Attorney General v. The Shelly Holding Co., et al. (Sept.
Hoge courts had considered and relied on evidence beyond the 2, 2009), Franklin Cty. C.P. No. 07CVH07-9702 (Shelly I), at p. 45.
7
initial stack test to conclude that the violations at issue were Appellants’ merit brief, at pp. 9-10.
8
“continuing violations.” Shelly I, at pp. 45-46.
9
State ex rel. Ohio Attorney General v. The Shelly Holding Co., et al., 10th
The state correctly asserts that the defendant must disprove a Dist. No. 09AP-938, 2010-Ohio-6526, 946 N.E.2d 295 (Shelly II), at
continuing violation “after the attorney general establishes a ¶55.
prima facie case.”21 However, by equating a failed stack test to a 10
State ex rel. Celebrezze v. Thermal-Tron, Inc. (8th Dist. 1992), 71 Ohio
prima facie showing that the violation continued, the state has App.3d 11, 1992 Ohio LEXIS 723; Shelly II, at ¶66.
misconstrued the evidence required to satisfy its own initial, 11
Appellee’s merit brief, at p. 16.
two-part burden of proof. A failed stack test satisfies the first el- 12
Schaffer v. Donegan (1990), 66 Ohio App.3d 528, 534, 585 N.E.2d 854
ement—that a violation did in fact occur. The “prima facie (citing Martin v. Columbus (1920), 101 Ohio St. 1, 127 N.E. 411).
13
showing” is a separate element—that the violation continued— R.C. 3704.06(B).
14
and is satisfied only by evidence beyond that of the failed stack See Getty Oil Co. v. Ruckelshaus, 467 F.2d 349, 357 (3d Cir. 1972).
15
test.22 Acceptance of the state’s proposition of law would effec- (Emphasis added.) Clean Air Act §113(e)(2), 42 U.S.C. §7413(e)(2).
16
tively allow the state to satisfy all of its burden by satisfying only State ex rel. Celebrezze v. Thermal-Tron., Inc. (8th Dist. 1992), 71 Ohio
half of its burden.23 App.3d 11, 1992 Ohio LEXIS 723; United States v. Hoge Lumber Com-
pany (N.D. Ohio 1997), 1997 U.S. Dist. LEXIS 22359.
The importance of the Supreme Court’s intervention in this case, 17
Thermal-Tron, 71 Ohio App.3d at 16.
to clarify and uphold the state’s initial burden of proof, is two- 18
Hoge, at *16-17.
fold. From a legal perspective, the state should not be permitted 19
Hoge, at *17 (emphasis added).
to continue prosecuting an enforcement action without proving 20
Id.
each element of each claim. Supreme Court review of environ- 21
Appellee’s merit brief, at p. 14.
mental cases in Ohio is rare and, as Shelly presents an issue of 22
See Thermal-Tron, 71 Ohio App.3d at 16; see also Hoge, at *16-17 (in-
first impression, a proper interpretation of the law is essential. terpreting the CCA civil penalty statute, 42 U.S.C §7413(e)(2).
23
The practical implications are just as significant. While the de- The fallacy of the state’s logic is illustrated by extending it to another
fendant may rebut the presumption of a continuing violation, area of the law. For example, under the state’s proposition of law it could
any premature burden shift subjects defendants to (potentially) make a prima facie showing of negligence by demonstrating a “duty”
excessive and unsubstantiated penalties, especially if the only way and a “breach” without making any showing of “causation” and “dam-
ages.” Such a contention turns prima facie on its head. That is, a prima
the defendant can stop the tolling is “by passing the emissions facie showing is one that presents enough evidence in the first instance
test or by altering its permit.”24 Both options can take months to to allow the fact-trier to rule in a party’s favor. Black’s Law Dictionary
complete, all the while the defendant remains on the clock—at 1310 (9th ed. 2009).
up to $25,000 per day. Readers who represent clients regulated 24
Appellee’s merit brief, at p. 16.
by or enforcing air permits may wish to monitor Shelly to see
how the Court addresses the state’s initial burden of proof. n
www.ohiobar.org November/December 2011 Ohio Lawyer 29