The opinion
[Cite as State ex rel. Cordray v. Basinger, 2010-Ohio-4870.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO, ex rel., )
RICHARD CORDRAY, ) CASE NO. 09 MA 119
OHIO ATTORNEY GENERAL, )
)
PLAINTIFF-APPELLEE, )
)
- VS - ) OPINION
)
J. PAUL BASINGER, )
)
DEFENDANT-APPELLANT. )
CHARACTER OF PROCEEDINGS: Civil Appeal from Common Pleas
Court, Case No. 07 CV 2481.
JUDGMENT: Affirmed.
APPEARANCES:
For Plaintiff-Appellee: Richard Cordray
Ohio Attorney General
Attorney Michelle Sutter
Attorney Sari L. Mandel
Assistant Attorney Generals
Enviornmental Enforcement
30 E. Broad Street, 25th Floor
Columbus, OH 43215-3400
For Defendant-Appellant: Attorney Richard J. Thomas
Attorney Wade Doerr
6 Federal Plaza Central
Suite 1300
Youngstown, OH 44503-1473
JUDGES:
Hon. Mary DeGenaro
Hon. Gene Donofrio
Hon. Cheryl L. Waite
Dated: September 30, 2010
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DeGenaro, J.
{¶1} This timely appeal comes for consideration upon the record in the trial court,
the parties' briefs and their oral arguments before this court. J. Paul Basinger appeals the
June 12, 2009 judgment of the Mahoning County Court of Common Pleas, adopting the
May 5, 2009 magistrate's decision finding that Basinger should pay a civil penalty of
$84,405.00 to the Ohio Department of Commerce, Division of the Fire Marshal, Bureau of
Underground Storage Tank Regulations (BUSTR), for the improper management of an
Underground Storage Tank (UST) on his property, and failure to timely remove the UST
upon an order of the fire marshal.
{¶2} Basinger raises multiple arguments, the first being that the trial court's
decision was against the manifest weight of the evidence. Second, that the fire marshal
was not authorized to order removal of the UST absent proof that petroleum remained in
the UST. Third, that he was subject to contradictory regulations and that he received
contradictory information from different government agencies, rendering compliance
impossible. Fourth, that the civil penalty assessment factors of the Environmental
Protection Agency Civil Penalty Policy did not support the $84,405.00 penalty, and that
Basinger's costs expended toward eventual compliance should have been subtracted
from the total penalty amount. Fifth, that the Attorney General failed to name the proper
defendant by filing suit against Basinger personally, rather than against Basinger in his
capacity as trustee for the UST property. Finally, Basinger argues that his eventual
compliance with the fire marshal's order and BUSTR regulations on November 6, 2007
mooted the action and rendered it non-justiciable.
{¶3} The trial court did not abuse its discretion in upholding the decision to
impose the $84,405.00 fine against Basinger. The Attorney General presented proof that
Basinger was in violation of BUSTR regulations, that he was notified of his violations in
2001 and asked to remove the UST, that Basinger did not take action to comply, that the
State Fire marshal officially ordered Basinger to remove the UST in 2003, and that
Basinger did not remove the UST until 2007. The Attorney General provided proof that
1.5 inches of petroleum remained in Basinger's UST, and Basinger's failure to appeal the
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2003 order of the fire marshal rendered the issue res judicata. The contradictory laws
alleged by Basinger were merely multiple laws requiring multiple kinds of insurance and
registration fees for a UST, all of which Basinger was required to follow. Regardless of
any miscommunications with different government agencies, Basinger made no effort to
comply with any government entity, let alone two allegedly conflicting ones, rendering his
impossible-compliance argument a nonissue. The fine of $35.00 per day for Basinger's
2423 days in violation was well within the trial court's discretionary range of up to
$10,000.00 per day of violation. The trial court did not abuse its discretion by refusing to
subtract the cost of compliance, which Basinger avoided for almost seven years, from the
total amount of the fine. Basinger's status as a beneficiary to the alleged trust, with an
equitable interest in the UST property, rendered him liable for BUSTR violations, and
Basinger was therefore a proper defendant to the Attorney General's action regardless of
the existence of a trust. Finally, Basinger's eventual compliance with BUSTR regulations
in 2007 did not moot the action to impose a civil penalty for Basinger's noncompliance
from 2001 to 2007. Accordingly, the judgment of the trial court is affirmed.
Facts and Procedural History
{¶4} On July 10, 2007, the Attorney General filed a Complaint for Injunctive
Relief and Civil Penalties against J. Paul Basinger. The Attorney General alleged that
Basinger was the owner and responsible person in relation to an underground storage
tank (UST) containing regulated substances, pursuant to definitions within R.C. 3737.87
and OAC Chapter 1301:7-9. The Attorney General alleged that Basinger had left the
UST out of service for over one year without properly managing the UST and without
having performed a closure assessment and other procedures required by Ohio law, and
as specifically required by an Order of the State Fire Marshal. The Attorney General
asked that Basinger be ordered to take the necessary steps to bring his UST in
compliance with Ohio law, that he be permanently enjoined from violating R.C. Chapter
3737, and that he pay a civil penalty of $10,000.00 for each day of violation including
days of continued violation following the Attorney General's complaint.
{¶5} Subsequent to the completion of discovery, substitution of defense counsel,
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and continuances, the matter proceeded to trial on February 11, 2009. The following
facts were presented through the testimony of Basinger and of Verne Ord, Assistant Fire
Chief, as well as documentary evidence submitted by both parties.
{¶6} According to Basinger's testimony, he purchased the real estate at a
sheriff's auction in 1994, and was made aware that there was a UST in the land.
Basinger testified that the UST was empty at the time of purchase, and that the previous
owner provided him with reports of inspections performed in 1993, showing no soil
contamination. Pursuant to that sale, on November 23, 1994, Poole Truck Line, Inc.
recorded a warranty deed, stating that on November 18, 1994 it conveyed the property at
11017 Market Street, North Lima, Ohio to "J. Paul Basinger, Trustee." Over the years,
Basinger leased the real estate to various companies, such as ABF Freight and Service
Transport Group, who did not use the UST. Pursuant to OAC 1301:7-9-04, Basinger
completed yearly UST registration renewals, and paid the yearly fee of $50.00. In his
2001 renewal application, Basinger listed the UST as "currently in use" and as containing
"diesel."
{¶7} On March 19, 2001, an inspector from the Ohio Bureau of Underground
Storage Tank Regulations (BUSTR) conducted an inspection of Basinger's UST. The
Compliance Inspection Report indicates that the UST had been "out of service since at
least 1997," did not have a proper "overfill protection" system, and did not have a "release
detection method" in place. The report further found that Basinger provided
documentation of current registration of the UST, but no documentation of financial
responsibility or insurance coverage certificates from the Petroleum Underground Storage
Tank Release Compensation Board (PUSTRCB). Basinger was cited for seven violations
of various sections of OAC Chapter 1301:7-9 and fined $375.00.
{¶8} On March 28, 2001, Basinger sent a letter to BUSTR explaining that he had
been notified of his violations. Basinger described his personal difficulty in learning how
to rectify the violations, and requested instructions in writing regarding the steps that he
would need to take. BUSTR's reply on September 19, 2001 stated that due to the
particular circumstances of Basinger's UST, the most appropriate and feasible correction
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would be to permanently remove the UST. BUSTR requested that Basinger sign and
comply with BUSTR's proposed Expedited Enforcement Compliance Order and
Settlement Agreement, in which Basinger was to agree to remove the UST, and BUSTR
would agree to take no further action against Basinger for his violations. BUSTR
assigned a deadline of October 19, 2001 for permit applications and the payment of fees,
and a deadline of December 19, 2001 for the removal of the UST.
{¶9} On October 18, 2001, Basinger sent further correspondence requesting a
time extension and explanations of options other than permanent removal of the UST,
such as putting the UST back in service, permanent closure "in-place," or performing a
change in service so that the UST could contain non-regulated substances. Basinger
further noted that the property was leased to another party, who had contractually taken
responsibility for environmental concerns. On December 19, 2001, BUSTR replied to
Basinger's request, extending Basinger's compliance deadline by three months,
explaining the basic steps for each option, and strongly suggesting that Basinger consult
with an environmental attorney or other such expert. In a January 18, 2002 letter,
Basinger complained that BUSTR did not explain what effect Basinger's lessor status had
on his liability for the UST. Basinger explained that he would not sign the Settlement
Agreement for fear of assuming a liability that potentially fell on the lessee. Basinger
stated that he was taking steps to effect a change in service of the UST, and requested
further extensions on his compliance deadlines.
{¶10} Meanwhile, the Petroleum Underground Storage Tank Release
Compensation Board (PUSTRCB) sent correspondence to Basinger on January 16, 2002,
explaining that they had been made aware that Basinger was the present owner of the
UST. The letter explained that all UST owners are required by Ohio law to pay a yearly
fee to the Ohio Financial Assurance Fund in order to maintain a Certificate of Coverage,
and that PUSTRCB had not received such fees from 1992 through 2001 for Basinger's
UST. On January 21, 2002, Basinger responded, stating that he had never before been
asked to participate in the Fund, that he is only the lessor of the property, that the UST is
empty and has remained unused since he purchased the property in 1994, that he has
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maintained current registration status with BUSTR, and that he plans to effect a change in
service of the UST. PUSTRCB replied on February 15, 2002, explaining that Basinger is
nonetheless required to pay the yearly fee to the Fund so long as the UST remains in the
property. PUSTRCB stated that Basinger would not be obligated to back-pay the fees
from 1994 through 1998, but would be obligated to pay all yearly fees due from 1999
through the present. Basinger testified that he never took the steps to obtain a Certificate
of Coverage from PUSTRCB as required.
{¶11} On May 23, 2002, BUSTR performed a second inspection of Basinger's
UST property. The Compliance Inspection Report noted that there had been no changes
to the UST, and that the same violations continued to exist. On June 14, 2002, BUSTR
wrote to Basinger, noting that they had not received any information from Basinger in the
last six months, and requesting a response in lieu of taking further enforcement actions.
Basinger did not respond to the Report or letter.
{¶12} On September 25, 2003, BUSTR notified Basinger that due to his continued
violations and failure to respond to BUSTR's requests for compliance, the State Fire
Marshal had issued an official order requiring Basinger's compliance. The State Fire
Marshal's Final Findings and Orders found that Basinger was the owner of the UST, that
the UST contained diesel fuel, and that Basinger continued to be noncompliant with Ohio
laws and regulations regarding the UST. The Fire Marshal ordered Basinger to
permanently remove the UST from the property within ninety days, perform a closure
report and take further action in the case of contamination, and pay a fine of $39,000.00.
The Order stated that Basinger had a right to appeal the Order to the Environmental
Review Appeals Commission. Basinger did not appeal the Order, nor did he pay the fine
or take steps at that time to comply with the Order.
{¶13} On April 13, 2005, Basinger sent an application to the Bureau of Testing
and Registration (BTR) for a Change in Service from a regulated substance to a non-
regulated substance. Basinger testified that a Fire Chief orally informed him at some
point that he would not agree to a change in service for Basinger's UST. The copy of the
Permit for Underground Storage Tanks presented by Basinger states that the permit is
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conditioned upon a state inspector's presence on the site, and also states that the permit
expires six months from the date of issue. Over a year later, on June 30, 2006, BUSTR
performed a third inspection of Basinger's UST property. The 2006 Compliance
Inspection Report stated that there remained approximately 1.5 inches of petroleum in the
UST. The Report noted that a permit had been issued on April 15, 2005 to Basinger to
perform a change in service. However, there had been no changes to the UST, and it
remained in the same state as reported in the original 2001 Compliance Inspection
Report. Basinger testified that he only found out that his change in service request had
been denied when orally informed of such on November 22, 2006 by a "Ms. Carter," who
may have been an employee of either BUSTR or BTR.
{¶14} As noted above, the Attorney General initiated this action at the request of
the State Fire Marshal on July 10, 2007. On or about November 10, 2007, Basinger
removed the UST and performed all required assessments, producing findings of no
environmental damage to the surrounding area. On January 15, 2008, BUSTR sent a
letter informing Basinger of "No Further Action Status Regarding Closure Requirements."
{¶15} On January 29, 2009, Basinger filed a motion for leave to file a motion for
summary judgment, arguing among other things that the "No Further Action" letter
rendered the action moot. The trial court denied Basinger's motion for leave, noting that
the motion was filed one week before trial in a case that had been ongoing since 2007.
Subsequent to the February 11, 2009 trial, the Magistrate issued a decision on May 5,
2009, concluding that Basinger had been in violation of BUSTR regulations for 2423
days, that he should pay a civil penalty of $35.00 per day of violation, for a total fine of
$84,805.00. The Magistrate also issued an injunction barring Basinger from further
violating R.C. Chapter 3737 and related portions of the Ohio Administrative Code.
{¶16} On May 19, 2009, Basinger filed a transcript of the proceedings and
objections to the magistrate's decision, raising all of the arguments now asserted on
appeal. On June 12, 2009, the trial court adopted the decision of the magistrate, and
held that judgment be granted in favor of the Attorney General in the amount of
$84,805.00. The trial court's judgment entry did not issue an injunction against Basinger.
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{¶17} Basinger has presented six assignments of error for this Court's review. We
will address Basinger's arguments out of order to facilitate our analysis of the issues
presented.
Presence of Petroleum
{¶18} In his second assignment of error, Basinger asserts:
{¶19} "The Court of Common Pleas Erred in its Determination of Whether the
State may Require Removal of an Empty Storage Tank Without Evidence that any
Petroleum or any Hazardous Substance is Contained Therein."
{¶20} Basinger argues that the fire marshal was not permitted to order Basinger to
remove his UST without proof that the UST still contained any petroleum or other
hazardous substance. Basinger asserts that the UST had been closed prior to 1994, and
that no petroleum remained inside.
{¶21} The Underground Storage Tank Program and Corrective Action Program,
which governs and regulates UST's, is codified in R.C. Chapter 3737. Pursuant to R.C.
3737.88, the State Fire Marshal has the authority to adopt and implement rules towards
this purpose. The Ohio Fire Marshal's implementation of this program is contained in
OAC Chapter 1301:7-9. Pursuant to the 1999 Rules in effect at the time of the citation
against Basinger, among the many requirements of an owner or operator of a UST was
the requirement that he obtain an out-of-service permit and empty the contents of the
UST if the UST system is out of service for more than ninety days. OAC 1301:7-9-
12(D)(2) and (G)(1) (1999). Additionally, if the UST system has been out of service for
more than twelve months, the following must be done:
{¶22} "If an operating UST system is out of service for more than twelve months,
the owners and operators shall permanently remove or permanently abandon the UST
system in accordance with the requirements set forth in this rule, unless a demonstration
has been made to the satisfaction of the certified fire safety inspector with delegated
authority pursuant to rule 1301:7-9-15 of the Administrative Code or the fire marshal, as
appropriate, that unusual circumstances require continued maintenance of UST system in
its current condition and all procedures specified in paragraph (G)(1) of this rule
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[regarding emptying of the tank, opening of vents and securing of lines and pumps] have
been followed. Prior to requesting an extension, owners and operators must perform a
closure assessment that meets the requirements of paragraph (K) of this rule." OAC
1301:7-9-12(G)(2) (1999).
{¶23} The State Fire Marshal has the authority to issue citations and penalties for
violations of BUSTR regulations, and also has the authority to issue orders that UST
owners or operators must follow in order to resolve any violations. R.C. 3737.88; R.C.
3737.882. Here, the Fire Marshal first attempted to gain compliance on September 19,
2001 by proposing the removal of the UST in a Compliance Order and Settlement
Agreement, which Basinger did not sign or follow. After Basinger took no action on
Basinger's own proposed solutions to the violation, the Fire Marshal issued Final Findings
and Orders on September 25, 2003, ordering the permanent removal of Basinger's UST.
{¶24} To support his argument that the Fire Marshal was not permitted to make
such an order, Basinger points to the decision of the Eleventh District in Village of
Chardon v. Lawson Ford & Mercury Inc., (June 30, 1994), 11th Dist. Nos. 93-G-1788, 93-
G-1792. In Lawson, the Village of Chardon commenced an action to compel Lawson to
remove abandoned UST's from Village property and perform cleanup, due to a violation
of the Building Officials and Code Administrators (BOCA) Fire Prevention Code, effective
July 1, 1979 in then OAC Chapter 1301:7-7. The applicable code section at the time of
Lawson's alleged violation, OAC 1301:7-7-28(E)(9), described requirements involving
removal and other types of procedures for "any underground storage tank containing
flammable or combustible liquids * * *." Because the code limited its reference only to
UST's that contained flammable or combustible liquids, the Eleventh District concluded
that Chardon would have to provide some evidence that Lawson's tanks contained such
liquids in order to require removal. Because Chardon provided no evidence of the
contents of Lawson's tanks at trial, the Eleventh District concluded that Chardon was not
authorized to require removal of the tanks under OAC 1301:7-7-28(E)(9). Basinger
argues that Lawson indicates that the Fire Marshal had no right to demand removal of the
UST, due to Basinger's claim at trial that there had been no petroleum in his UST since
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1993.
{¶25} This case is distinguishable from Lawson for a number of reasons. First,
unlike Lawson, the Attorney General provided evidence at trial that approximately 1.5
inches of petroleum remained in Basinger's UST. Additionally, the State Fire Marshal's
Final Findings and Orders of September 25, 2003 specifically referred to Basinger's UST
in its findings of fact as a "UST containing diesel fuel." This alone completely undermines
Basinger's argument.
{¶26} Additionally, the September 25, 2003 administrative order, which included
the finding that the UST contained petroleum and the order that the UST be removed,
was a final order, appealable to the Environmental Review Appeals Commission. R.C.
3745.04. The failure to appeal an administrative order waives any subsequent attacks
against that same order. See, e.g., Dayton v. Becker, 2d Dist. No. 22107, 2008-Ohio-
2074, at ¶15. Basinger was given notice that he had the opportunity to challenge the
propriety of the fire marshal's decision through an appeal, and he did not do so.
Basinger's argument against the findings or conclusions of the fire marshal's 2003 order,
including the finding that Basinger's UST contained fuel, is therefore barred by the
doctrine of res judicata.
{¶27} Thus, regardless of whether Lawson is applicable in theory to this case, the
proof of petroleum presence renders Lawson factually distinguishable, and Basinger's
failure to appeal the 2003 Order forfeits this argument. Basinger's second assignment of
error is meritless.
Impossibility of Compliance
{¶28} In his third assignment of error, Basinger asserts:
{¶29} "The Court of Common Pleas Erred in its Determination that Defendant is
Liable for Penalties Assessed Solely by Reason of the State's Contradictory Laws Making
Compliance Impossible."
{¶30} Basinger presents two arguments in this assignment of error. First he
asserts that the Petroleum Underground Storage Tank Compensation Release Board
(PUSTRCB) was obligated by Ohio law to issue a certificate of insurance coverage to
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Basinger starting in 1994. Basinger also asserts that he received conflicting information
from two government bureaus regarding a change in service permit, and argues that the
fire marshal was obligated by Ohio law to approve Basinger's 2005 application for a
change in service of the UST.
{¶31} For his first argument, Basinger asserts that he complied with all laws
regarding insurance, triggering PUSTRCB's obligation to issue a certificate of coverage.
As support, Basinger cites Franklin Iron & Metal Corp. v. Ohio Petroleum Underground
Storage Tank Release Compensation Board (1996), 117 Ohio App.3d 509, 690 N.E.2d
1310. In Franklin Iron & Metal Corp., the Second District found that the board was
obligated to issue a certificate of coverage, and not allowed to impose additional
requirements, where the appellant had complied with statutory requirements by paying
the Financial Assurance Fund fee and demonstrating "financial responsibility in
compliance with rules adopted by the fire marshal under division (B) of section 3737.882
for the deductible amount." Id. at 516, quoting R.C. 3737.91(D)(1). This case is
distinguishable from Franklin Iron & Metal Corp. for multiple reasons.
{¶32} First, there is no indication in the record that Basinger complied with R.C.
3737.91(D)(1) by paying the required Financial Assurance Fund fee to PUSTRCB. The
correspondence between Basinger and PUSTRCB in 2002 indicates that Basinger failed
to pay the required fees from 1999 through 2001. In the correspondence, Basinger
seems to argue to PUSTRCB that he is not required to pay the Financial Assurance Fund
fee due to his ignorance of the requirement, his status as lessor, and because he has
continually paid BUSTR to register the UST. However, the registration of a UST with
BUSTR pursuant to OAC 1301:7-9-04 is not related to the requirements for a certificate of
insurance coverage with PUSTRCB under 3737.91(D)(1). Basinger's reasons for non-
payment offered to PUSTRCB were not valid, he was obligated to pay the Financial
Assurance Fund fee, and PUSTRCB did not issue a certificate of coverage as a result of
his refusal to do so. Thus, there is no conflicting law that prevented Basinger from
receiving a certificate of coverage. Instead, coverage was rightfully denied for Basinger's
failure to comply with statutory requirements.
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{¶33} Additionally, the case at hand is distinguishable from Franklin Iron & Metal
Corp. because this case is largely based on a civil penalty for Basinger's failure to obtain
a permit prior to the closure of the UST and failure to remove the UST as ordered, not on
Basinger's lack of insurance coverage certificate, money owed in regards to insurance, or
his right to coverage. Moreover, whether Basinger did or did not have a certificate of
coverage from PUSTRCB at the time of BUSTR's first notification of violation in 2001 had
no effect on the outcome of Basinger's case, as the magistrate specifically noted that the
PUSTRCB's refusal to issue a certificate of coverage was immaterial to the court's
decision. Thus, even if Basinger had obtained a certificate of coverage for all of the years
at issue, the trial court's decision would have been no different. This first portion of
Basinger's assignment of error is therefore meritless.
{¶34} For his second argument, Basinger asserts that he complied with all laws
regarding a change in service permit, triggering the fire marshal's obligation to approve
the permit. Basinger argues that he received contradictory information when he first
received approval of his 2005 application, and then a denial without notice from the fire
marshal.
{¶35} The Bureau of Testing and Registration (BTR) is a separate bureau from
BUSTR under the Division of the Fire Marshal. BTR is responsible for processing an
applicant's change in service permit application. Both parties seem to agree that
Basinger's application for change in service permit, submitted April 13, 2005, was granted
by BTR, and that the fire marshal's office later denied the permit.
{¶36} In support of his argument that the fire marshal was obligated to approve
the change-in-service permit, Basinger again relies on Franklin Iron & Metal Corp.
However, the focus of Franklin Iron & Metal Corp. was on whether the PUSTRCB was
obligated to issue a certificate of coverage when an applicant complied with R.C.
3737.91(D)(1), not on whether BUSTR is obligated to grant a change in service for a UST
pursuant to OAC 1301:7-9-10 when a complete application is filed. Unlike the mandatory
language used in the code sections discussed in Franklin Iron & Metal Corp., the fire
marshal has the discretion to deny a permit if the fire marshal finds that the applicant is in
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violation of any BUSTR regulations. OAC 1301:7-9-10(C)(4)(c). Because Basinger was
both in violation of BUSTR regulations and the fire marshal's 2003 Order, the fire
marshal's decision to deny Basinger's change in service application was a lawful use of
the fire marshal's discretion.
{¶37} As an additional issue, Basinger alleges that the revocation of his 2005
application occurred without notice, leaving him ignorant of the fact that he was out of
compliance. He testified that he did not discover the revocation until he spoke with a
woman named Ms. Carter on November 22, 2006, who the Attorney General indicated
was probably an employee of BTR. However, Basinger also seems to have conceded at
trial that the local fire chief told Basinger at some point that he would not agree to a
change in service. The evidence presented at trial, indicating that Basinger had
knowledge that the 2005 application would be denied, belies his claim of ignorance.
{¶38} Moreover, Basinger would still have been in direct violation of the 2003
Order even if he had been permitted to complete a change in service of the UST. OAC
1301:7-9-10(C)(4)(b) explicitly states that a change in service permit "shall not be
construed as authority to violate any provision of this chapter." The fire marshal's 2003
Order did not allow Basinger the option to perform a change in service of the UST, and
instead provided him with the sole option of removing the UST. The 2003 Order put
Basinger on notice that a change in service of the UST was no longer an option.
Although Basinger got past the first step in the change in service application process in
order to circumvent the 2003 Order, and was eventually prevented from circumventing the
2003 Order due to the fire marshal's denial, this sequence of events does not constitute
contradictory laws that rendered Basinger's compliance impossible.
{¶39} Most importantly, although the change in service permit was issued by BTR
on April 15, 2005, Basinger had done nothing to proceed with a change in service when
BUSTR performed a third inspection of the UST on June 30, 2006. The April 15, 2005
Permit for Underground Storage Tanks offered into evidence by Basinger states that the
permit is conditioned upon an inspector's presence on the site, and also states that the
permit expires six months from the date of issue, which would have been October of
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2005. Basinger provided no evidence that he had taken any of the initial steps to affect a
change in service, which would have included contacting a certified UST inspector or fire
marshal employee, performing a closure assessment of the UST, and submitting a written
closure report to the fire marshal. OAC 1301:7-9-10(C); OAC 1301:7-9-12(I)(J).
{¶40} Because Basinger had taken no action to affect a change in service during
the six month permit period, or any period prior to 2007, any confusion created by the
BTR's issuance of the expired permit becomes irrelevant. Thus, Basinger's second
argument is also meritless.
{¶41} In conclusion, Basinger's insurance coverage status and change-in-service
application status did not have an effect on whether he had been in violation of BUSTR
regulations or the fire marshal's Order to remove the UST. PUSTRCB was authorized by
law to deny coverage, and the fire marshal had the discretion to deny Basinger's request
for a change in service. The facts indicate that Basinger's inaction, rather than any
conflict between laws, is what kept Basinger from complying with the applicable Ohio laws
and regulations. Accordingly, Basinger's third assignment of error is meritless.
Calculation of Penalty Amount
{¶42} In his fourth assignment of error, Basinger asserts:
{¶43} "The Court of Common Pleas Erred in its Application of the Test for
Damages and by Failing to Consider Constitutional Precedent."
{¶44} Basinger asserts that the trial court abused its discretion in arriving at the
amount $84,805.00 for the civil penalty imposed. Basinger also presents a partial
argument that his obligations and expenses he incurred for the removal of the UST
amounted to an unconstitutional taking.
{¶45} Owners and operators of UST's are prohibited from violating statutory laws
governing UST's, rules promulgated by the fire marshal in OAC Chapter 1301:7-9, as well
as orders issued by the fire marshal. R.C. 3737.882(C)(1). Anyone who violates these
laws, regulations, or orders "shall pay a civil penalty of not more than ten thousand dollars
for each day that the violation continues. The fire marshal may, by order, assess a civil
penalty under this division, or the fire marshal may request the attorney general to bring a
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civil action for imposition of the civil penalty in the court of common pleas of the county in
which the violation occurred." R.C. 3737.882(C)(2).
{¶46} The statute does not provide guidance as to how the fire marshal or a trial
court should set the civil penalty, apart from the maximum of ten thousand dollars per
day. In the case at hand, the trial court decided to determine the appropriate penalty
amount by referencing the Environmental Protection Agency Civil Penalty Policy ("Penalty
Policy"), which was also used by the trial court in the case of State of Ohio ex rel. Brown
v. Dayton Malleable (1982), 1 Ohio St.3d 151, 1 OBR 185, 438 N.E.2d 120. Here, as in
Dayton Malleable, the EPA's Penalty Policy is acceptable to use as a reference for
choosing a penalty amount, but is not binding upon the court. See State of Ohio ex rel.
Brown v. Dayton Malleable (Apr. 12, 1981), 2d Dist. No. 6722. Cf. State ex rel. Dann v.
Coen, 5th Dist. No. 2008 CA 00050, 2009-Ohio-4000, at ¶9, 34-35 (appropriateness of
BUSTR violation penalty amount was determined by looking not at the Penalty Policy, but
only at whether the penalty amount would deter future conduct, and whether payment of
the penalty would result in bankruptcy). Basinger seems to concede that it was
appropriate for the trial court to have used the Penalty Policy as guidance for calculating
the penalty. However, Basinger asserts that the trial court misapplied the Penalty Policy
and thus abused its discretion in determining the civil penalty amount.
{¶47} The Second District described the factors of the Penalty Policy as follows:
{¶48} "Step 1 - Factors comprising Penalty
{¶49} "Determine and add together the appropriate sums for each of the four
factors or elements of this policy namely:
{¶50} "the sum appropriate to redress the harm or risk of harm to public health or
the environment,
{¶51} "the sum appropriate to remove the economic benefit gained or to be gained
from delayed compliance,
{¶52} "the sum appropriate as a penalty for violator's degree of recalcitrance,
defiance, or indifference to requirements of the law, and
{¶53} "the sum appropriate to recover unusual or extraordinary enforcement costs
- 16 -
thrust upon the public.
{¶54} "Step 2 - Reduction for Mitigating Factors
{¶55} "Determine and add together sums appropriate for mitigating factors, of
which the most typical are the following:
{¶56} "the sum, if any, to reflect any part of the non-compliance attributable to the
government itself,
{¶57} "the sum appropriate to reflect any part of the non-compliance caused by
factors completely beyond violator's control (floods, fires, etc.)
{¶58} "Step 3 - Summing of Penalty Factors and Mitigating Reductions
{¶59} "Subtract the total reductions of Step 2 from the total penalty of Step 1. The
result is the minimum civil penalty * * *." Dayton Malleable, 2d Dist. No. 6722.
{¶60} Although the Ohio Supreme Court reversed the decision of the Second
District, it agreed that the Penalty Policy was allowable as a standard to determine the
penalty amount. Dayton Malleable, 1 Ohio St.3d at 157. The crux of the Ohio Supreme
Court's reversal was that the final penalty amount determined is within the broad
discretion of the trial court, and does not require clear and convincing factual evidence for
each Penalty Policy factor for each day of violation in order to support a particular penalty
amount. Id. at 157-158 (overruling the Second District's decision to reduce the penalty
amount for lack of evidence of excessive industrial waste discharge on each claimed day
of violation). Thus, although a trial court may look to the Penalty Policy as a way to
ensure that it fashions a reasonable civil penalty, the trial court's reference to the Policy
does not detract from its broad discretion to impose anywhere up to ten thousand dollars
per day for a defendant's violation of BUSTR regulations.
{¶61} Here, as to the first factor of the Penalty Policy, the trial court determined
that there had been no actual harm, but that Basinger's violation indicated a risk of harm
to public health given that the noncompliant UST was in proximity to drinking water wells.
For the second factor, the trial court noted that Basinger's eventual cost of removal of the
UST and alleged loss of value to the real estate were costs that Basinger avoided for over
six years. The trial court reasoned that Basinger gained an economic benefit by delaying
- 17 -
such expenditure. For the third factor, the trial court found that Basinger was made aware
of his violations as early as March 19, 2001, and intentionally and significantly delayed
taking action. For the fourth factor, the trial court found that compliance was only
obtained after using the work efforts of at least ten government employees, over the span
of six and a half years. Included in these findings is the implication that the delay in
Basinger's compliance was wholly attributable to Basinger, and not to any State actors or
other circumstances beyond Basinger's control. The trial court's consideration of these
factors, regardless of the strength or weakness of each independent factor, indicates that
the trial court's assessment of the penalty amount was not unreasonable, unconscionable
or arbitrary.
{¶62} Basinger argues that the trial court misapplied the first factor, risk of harm,
because no actual damage resulted from his noncompliance. Basinger also implies that
there was no risk of harm because the Attorney General did not prove that the UST still
contained petroleum. As discussed in the second assignment of error, the Attorney
General did in fact present evidence that some petroleum still remained in Basinger's
UST. Moreover, the plain meaning of the Penalty Policy language indicates that risk of
harm, rather than actual harm, is all that is required to satisfy the terms of the first factor.
Having sources of drinking water near an out-of-compliance, inadequately monitored UST
would constitute at least some form of risk. It is true that Basinger did not place the
drinking water sources more at risk by having an actual leak of petroleum. However,
evidence of such a fact is not required in order for some form of risk to be present. Thus,
although the risk Basinger's UST posed was lower than it could have been, it imposed at
least some risk to public health and the environment.
{¶63} Basinger argues that the trial court misapplied the second factor, economic
benefit, because the UST was not in use during the entirety of Basinger's noncompliance.
Basinger seems to argue that this factor would only apply if he received an active
monetary benefit, and it is true that Basinger did not receive profits from the delay.
However, Basinger did receive a passive monetary benefit by delaying the cost of
compliance by six and a half years. As the Attorney General points out, Basinger gained
- 18 -
the time value of money by the delay, just as the defendant had in Dayton Malleable.
Again, although Basinger's economic benefit was not as large as it could have been in
other hypothetical situations, Basinger gained at least some economic benefit by
significantly delaying the cost of compliance.
{¶64} Basinger argues that the trial court misapplied the third factor, recalcitrance,
because the fact that he was unaware of his noncompliance until 2006 negated the
possibility of his recalcitrance. Basinger further argues that the penalty should, at most,
be calculated for 363 days of noncompliance due to the fact that he was unaware of the
change-in-service application revocation until November 22, 2006. However, as
discussed, Basinger was repeatedly made aware of his noncompliance throughout the
2001 to 2007 time period, and chose to take no action. Moreover, even though the BTR
issued the six-month change in service permit to Basinger in April of 2005, the issuance
of the permit did not bring Basinger into even a temporary period of compliance, because
he continued to take no action toward compliance. Although Basinger seems to have
considered complying with BUSTR regulations at some points between 2001 and 2007,
Basinger's failure to actually comply in any fashion at any point clearly demonstrates
recalcitrance.
{¶65} Basinger argues that the trial court misapplied the fourth factor,
enforcement costs, because the trial court did not have evidence before it regarding
actual administrative costs incurred in attempting to attain Basinger's compliance. As
noted above, the Attorney General did not have to offer such specific facts in order to
prove that BUSTR generally incurred more than the usual cost in attempting to resolve
Basinger's violations. See Dayton Malleable, 1 Ohio St.3d at 157-158. Further, neither
the applicable statute nor the Penalty Policy requires a direct correlation between the
expenses incurred by the State and the penalty amount of the violator. As the Attorney
General points out, the calculation of a civil penalty is a different process than the
calculation of damages in contracts or torts cases, and does not require the same kind of
proof. The Attorney General was not required to prove, for example, the salaries of each
state employee involved with the UST and the number of hours expended by each
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employee on Basinger's case. Instead, it is reasonable to infer that the State of Ohio
incurred notable costs in enforcing BUSTR regulations against Basinger, which
adequately supports the fourth factor of the Penalty Policy.
{¶66} In addition to the four factors of the Penalty Policy, Basinger asserts that the
cost of compliance with BUSTR regulations constituted an infringement on Basinger's
property rights, and further argues that he should have been compensated for the cost of
compliance by subtracting the cost of compliance from the total penalty amount. These
assertions seem to be an allusion to an argument that BUSTR regulations resulted in a
taking of Basinger's property, in violation of the Takings Clause of the Fifth Amendment.
{¶67} In support of this first assertion, Basinger cites Ruckleshaus v. Monsanto
Co. (1981), 463 U.S. 1315, 104 S.Ct. 3, 77 L.Ed.2d 1417. The Ruckelshaus decision
cited by Basinger focuses on a motion for stay by the EPA pending its appeal of an
injunction, and whether Monsanto would potentially suffer irreparable injury through the
public disclosure of its pesticide trade secrets if the EPA's motion were granted. The
Supreme Court determined that irreparable harm was possible, and denied the EPA's
motion. However, the Supreme Court's decision on the merits of that same case relied
on longstanding precedent and held that the EPA's regulations of Monsanto's trade
secrets did not constitute a taking as long as they were rationally related to a legitimate
government interest, and did not interfere with reasonable investment-backed
expectations. Ruckelshaus v. Monsanto Co. (1984), 467 U.S. 986, 1004-1008, 104 S.Ct.
2862, 81 L.Ed.2d 815.
{¶68} Basinger has not presented any argument that BUSTR regulations are not
rationally related to a legitimate government interest, or that they somehow interfered with
his investment-backed expectations by not providing him with notice of the ramifications
of regulation. Regardless of Basinger's incomplete argument, it is quite clear that the
government has a legitimate interest in the regulation of the underground storage of
petroleum and other hazardous substances, and that the regulations and accompanying
penalties regarding the monitoring and maintenance of UST's are rationally related to that
interest. The applicable statutory language in R.C. 3737.882 and OAC Chapter 1301:7-9
- 20 -
put Basinger on notice that he could be ordered to remove the UST and would be liable
for potentially high penalties if found to be in violation of those regulations. Thus,
Basinger has not demonstrated that the enforcement of BUSTR regulations constituted a
taking of his property, or that Basinger is owed any compensation for the cost of resolving
his violations of the BUSTR regulations.
{¶69} The trial court had the broad discretion to impose a civil penalty of up to ten
thousand dollars for each of the 2423 days that Basinger was in violation of BUSTR
regulations. The trial court engaged in a thorough and reasoned analysis, and did not
abuse its discretion in reaching the amount of $84,405.00. Accordingly, Basinger's fourth
assignment of error is meritless.
Identification of Proper Party-Defendant
{¶70} In his fifth assignment of error, Basinger asserts:
{¶71} "The Court of Common Pleas Erred in its Determination That No Valid Trust
was Formed."
{¶72} Basinger asserts that the trial court erred when it found that Basinger had
not proven that the UST property was held in trust. Although Basinger's argument
focuses almost entirely on the law of trusts, the issue of trust formation does not affect
the outcome of the trial court's decision, given the broad applicability of BUSTR
regulations.
{¶73} Basinger argues that he and his wife formed a valid trust, with he and his
wife as beneficiaries and Basinger as the trustee, that the UST property was trust
property, and that the Attorney General therefore could only have filed the action against
Basinger in his capacity as trustee, rather than filing it against Basinger as an individual.
Basinger contends that it is only possible for him to be a true party in interest to the
Attorney General's action in his capacity as a trustee.
{¶74} Who may be a proper defendant in an action can largely depend on the
substantive law applicable to the suit. See, e.g., Murray v. Knight-Ridder, Inc., 7th Dist.
No. 02 BE 45, 2004-Ohio-821, at ¶99-106 (whether individuals could properly be named
as defendants turned on the common law scope of liability for defamation). Here, the
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regulation of UST's is governed by R.C. 3737.87 et seq., and OAC Chapter 1301:7-9.
For purposes of these sections, the term "owner" means "any person who holds * * * a
legal, equitable, or possessory interest of any kind in an underground storage tank
system or in the property on which the underground storage tank system is located,
including, without limitation, a trust, vendor, vendee, lessor, or lessee." R.C. 3737.87(H).
See, also, OAC 1301:7-9-2(B)(41); OAC 1301:7-9-12(B)(1). Under these terms, Basinger
meets the definition of "owner" either by having legal title or by having equitable title to the
UST property.
{¶75} Basinger states that he is a beneficiary to the trust, which means that he
has an equitable interest in the trust property. See Pack v. Osborn, 117 Ohio St.3d 14,
2008-Ohio-90, 881 N.E.2d 237, at ¶7, citing Restatement of the Law 2d, Trusts (1959),
Section 2, comment f. Assuming arguendo that a valid trust exists, Basinger has
equitable title to the UST property as a trust beneficiary, and thus qualifies as an owner of
the UST for the purposes of R.C. 3737.87 et seq., and OAC Chapter 1301:7-9. Even as
a beneficiary, Basinger may be subject to civil penalties for failure to comply with BUSTR
regulations set forth by the fire marshal. A determination of whether a valid trust does or
does not exist therefore does not affect the outcome of this assignment of error.
{¶76} Basinger, in his personal capacity, was a proper party defendant to this
action, and the trial court did not err by failing to dismiss the action. Accordingly,
Basinger's fifth assignment of error is meritless.
Mootness
{¶77} In his sixth assignment of error, Basinger asserts:
{¶78} "The Court of Common Pleas Erred in its Determination That the Action has
not Been Rendered Moot by Removal of the UST."
{¶79} Basinger asserts that he complied with all BUSTR regulations and received
a "No Further Action" letter from BUSTR on January 15, 2008, rendering the Attorney
General's action moot and non-justiciable.
{¶80} A case may be moot when there is no longer a "live" issue to be
determined, or when "the parties lack a legally cognizable interest in the outcome." Allen
- 22 -
v. totes/Isotoner Corp., 123 Ohio St.3d 216, 2009-Ohio-4231, 915 N.E.2d 622, at ¶17,
quoting Los Angeles Cty. v. Davis (1979), 440 U.S. 625, 631, 99 S.Ct. 1379, 59 L.Ed.2d
642. An action is only moot when it would be impossible to provide meaningful relief even
in a ruling in favor of the party seeking relief. Id. at ¶18. However, an action will not be
moot if an actual controversy still exists between adverse litigants. State ex rel. The Plain
Dealer v. Ohio Dept. of Ins., 80 Ohio St.3d 513, 517-518, 1997-Ohio-75, 687 N.E.2d 661.
{¶81} Basinger claims that the cessation of his non-compliant activity resolved any
controversy between the parties, and argues that the Attorney General's action should
have been dismissed before trial, citing as support the Ninth District's decision Sabol v.
Black (Jan. 14, 1976), C.A. No. 2337. In a small portion of the Sabol decision, the Ninth
District noted that the trial court could not enjoin an activity that the defendant had already
ceased. Here, the trial court's judgment entry only imposed a civil penalty against
Basinger, and did not impose an injunction.
{¶82} Seeking a civil penalty for Basinger's 2423 days of non-compliance was still
a "live" issue from which the Attorney General could seek meaningful relief. See, e.g.,
Kuntz v. Director of Ohio, EPA (Aug. 21, 1998), 2d Dist. No. 16429 (remedy of
environmental hazard did not moot the Ohio EPA's action for civil penalties based on non-
compliance). The similar procedural history of Dayton Malleable demonstrates that the
cause is still actionable. In Dayton Malleable, the Attorney General filed an action on
March 24, 1978 for the defendant's failure to comply with regulations, seeking an
injunction and civil penalties. Dayton Malleable, 1 Ohio St.3d at 152. The defendant
came into compliance with regulations in November of 1978, thus before the case
proceeded to trial on January 3, 1979. Id. The trial court in that case dismissed the
injunction portion of the Attorney General's action due to mootness, and proceeded to
assess $493,500 in civil penalties against the defendant. Id. at 152-153. The Ohio
Supreme Court upheld the imposition of civil penalties. Id. at paragraph two of the
syllabus.
{¶83} One of the purposes of civil penalties for violations of BUSTR regulations
and similar environmental regulations is to deter future violations, both from the individual
- 23 -
defendant, and as an example to others. See, e.g., Coen, supra, at ¶9, 34. The
language of R.C. 3737.882(C)(2) uses both the past and present tense to describe
penalties for violations, which indicates that the statute provides authorization to impose
penalties for currently occurring violations, as well as past violations. The plain language
of the statute does not require that a violation continue to be actively occurring at the time
of the imposition of the penalty. Although Basinger's compliance did have an effect on
the lower court's decision by providing it with an end date for the penalty, it does not moot
the issue of his prior 2423 days of non-compliance.
{¶84} Thus, Basinger's eventual compliance did not prohibit the exaction of fines
for the period of violation. Basinger's sixth assignment of error is meritless.
Manifest Weight of the Evidence
{¶85} In his first assignment of error, Basinger asserts:
{¶86} "The facts cited by the Court of Common Pleas are not supported by the
record."
{¶87} Appellate review of a trial court's adoption of a magistrate's factual findings
is "guided by the principle that judgments supported by competent, credible evidence
must not be reversed, as being against the manifest weight of the evidence." Miller-Yount
Paving, Inc. v. Freeman Cargo Carrier, Inc. (Mar. 30, 2000), 7th Dist. No. 98 CA 226,
citing Gerijo, Inc. v. Fairfield, 70 Ohio St.3d 223, 226, 1994-Ohio-432, 638 N.E.2d 533;
C.E. Morris Co. v. Foley Constr. Co. (1978), 54 Ohio St.2d 279, 8 O.O.3d 261, 376
N.E.2d 578, syllabus. A reviewing court must operate under the presumption that the trial
court's findings of facts are correct. Seasons Coal Co., Inc. v. Cleveland (1984), 10 Ohio
St.3d 77, 80-81, 10 OBR 408, 461 N.E.2d 1273.
{¶88} To support his overall claim that the decision was against the manifest
weight of the evidence, Basinger attacks a number of factual findings related to his other
five assignments of error. Many of Basinger's assertions take issue with the legal
significance of facts that the parties otherwise generally agree upon.
{¶89} Basinger first asserts that no evidence had been presented demonstrating
the presence of any petroleum product in the UST. Basinger points to the testimony that
- 24 -
he provided at trial, during which Basinger stated that the UST had been empty when he
purchased the property in 1994. However, the magistrate's finding that "there was
approximately 1.5 inches of diesel fuel remaining in the UST" referenced a 2006 BUSTR
Compliance Inspection Report, which stated that there was "approx. 1.5 inches of diesel
remaining in the tank." Additionally, Basinger's own 2001 registration application, as well
as the 2003 Order of the Fire Marshal, both referred to the UST as containing petroleum.
The trial court apparently found the Attorney General's evidence to be more credible.
The evidence provided at trial therefore supported the trial court's decision.
{¶90} Basinger next asserts that the trial court's conclusion that Basinger, rather
than various state agencies, was at fault for his failure to comply with BUSTR regulations
was against the manifest weight of the evidence. However, the record contains
competent, credible evidence that Basinger failed to comply with BUSTR regulations from
2001 to 2007. The Attorney General presented evidence that Basinger was notified that
he was in violation of BUSTR regulations on March 19, 2001, that Basinger was given
extra time to explore the options that would bring him into compliance and that Basinger
failed to take action on any of those options from 2001 to 2003. The Attorney General
presented evidence that the fire marshal issued Final Findings and Orders on September
25, 2003, citing Basinger for his continued noncompliance with BUSTR regulations, and
providing Basinger with the sole option of removing the UST and paying a fine in order to
remedy the violation. The Attorney General demonstrated that the Order of the fire
marshal was appealable to the Environmental Review Appeals Commission, and that
Basinger did not appeal the decision. The Attorney General demonstrated that Basinger
did not remove the UST until 2007. Thus, the trial court's conclusion on the issue of
compliance and fault for non-compliance was not against the manifest weight of the
evidence.
{¶91} Basinger points out that he testified that a woman named Ms. Carter told
Basinger in 2006 that "they messed up [his 2005 change in service] application," and
argues that this statement by Ms. Carter constituted an admission by the appellee that
the appellee was at fault for Basinger's noncompliance. Both sides agree that Basinger
- 25 -
may have received mixed messages about the feasibility of his 2005 change in service
application from different bureaus within the Division of the Fire Marshal. However, as
explained, Basinger took no action to proceed with a change in service. Thus any factual
findings about who may have made mistakes, if any, during Basinger's 2005 change in
service application process did not have any effect on the trial court's decision.
{¶92} Basinger next asserts that the trial court's calculation of damages did not
conform to the evidence presented at trial. As discussed above, the trial court had the
broad discretion to fix a penalty in any amount less than $10,000.00 per day of violation.
{¶93} Basinger argues that the lack of actual environmental harm from the UST
functioned as a complete defense to the imposition of civil penalties. However, as
discussed, proof of actual damages is not a requirement for the imposition of civil
penalties for a violation of BUSTR regulations. Basinger also argues that the Attorney
General did not prove its enforcement costs to support the $35 per day awarded.
However, the $35 per day amount was not a damages award, but was a penalty which
took into consideration not only the expenditures and efforts of BUSTR, but any other
relevant factor, such as the additional three factors of the EPA's Penalty Policy
considered by the trial court. Basinger further argues that the cost he incurred in order to
remove the tank should be subtracted from the penalty amount. This does not make
argument with any factual issue, and is instead a repetition of one of Basinger's legal
arguments in his fourth assignment of error, and the government is not obligated to
compensate Basinger for expenditures that he is required to make in order to comply with
Ohio law.
{¶94} The trial court determined that Basinger was out of compliance with
BUSTR regulations and orders from the notification of violation on March 19, 2001, until
Basinger's removal of the UST on November 6, 2007, for 2423 days of noncompliance.
As described above, this was supported by evidence presented by both parties at trial.
Basinger argues that he should at most be penalized for 363 days of noncompliance
because he was not notified of the rejection of his change in service permit application
until November 22, 2006. However, as discussed, the permit had long expired by
- 26 -
November of 2006, and Basinger's complete failure to proceed under BTR's permission in
April of 2005 indicates that he continued to be noncompliant even in the event that he
was genuinely misinformed. The trial court's decision that Basinger was not in
compliance with BUSTR regulations for the entire 2423 day period was therefore
supported by some competent credible evidence.
{¶95} The Attorney General presented testimony that Basinger's UST was in
proximity to drinking water sources, which was not refuted. Moreover, the 2001
Compliance Inspection Report stated that the UST, containing some petroleum, had been
out of use since at least 1997, and had no release detection method in use, no
maintenance of a required corrosion protection system, and was basically unmonitored,
which would seem to present a general risk of leakage and, at the very least, potential
contamination of surrounding soils. Basinger testified that he incurred $8,000.00 in out-
of-pocket expenses when he removed the UST in November of 2007. The Attorney
General presented evidence that various government employees were engaged to
inspect Basinger's property on three different occasions, formulate a compliance plan,
receive Basinger's correspondence, perform research, send correspondence, process
Basinger's tardy attempt to obtain a change-in-service permit, review and verify
Basinger's closure assessment, all during the 2001 through 2007 time period.
{¶96} Pursuant to the guidance of the Penalty Policy referenced in Dayton
Malleable, the trial court found that the risk of harm to nearby drinking water wells,
Basinger's delays spanning over six years, the efforts of over ten BUSTR employees over
that span of time to obtain compliance from Basinger, and the economic benefit to
Basinger in delaying the expenditure of $8,000.00 by over six years, all supported the
decision to impose the Attorney General's requested penalty of $35 per day, for a total of
$84,805. There was some competent credible evidence supporting the trial court's
findings regarding each of the Penalty Policy factors, and therefore supporting the trial
court's assessment of the penalty amount.
{¶97} Basinger finally asserts that the trial court's finding that a valid trust did not
exist was unsupported by the evidence, and as a result, the trial court erroneously
- 27 -
concluded that Basinger was a proper defendant in this action. As discussed, trust
formation in this particular case does not have any effect on the legal issue of Basinger's
liability for BUSTR violations. Thus, the trial court's finding that Basinger was a proper
defendant was not against the manifest weight of the evidence.
{¶98} In summary, the trial court's findings that Basinger was a proper party
defendant, that he was in violation of BUSTR regulations for 2423 days, and that he
should pay a civil penalty of $35.00 per day were supported by some competent credible
evidence. The trial court's decision was not against the manifest weight of the evidence.
Accordingly, Basinger's first assignment of error is meritless.
{¶99} In conclusion, the trial court did not abuse its discretion in adopting the
magistrate's calculation of $84,405.00 in civil penalties against Basinger. The trial court's
decision was not against the manifest weight of the evidence, and Basinger's
assignments of error regarding the presence of petroleum in the UST, impossibility of
compliance, penalty amount, trust formation, and mootness are meritless. Accordingly,
the judgment of the trial court is affirmed.
Donofrio, J., concurs.
Waite, J., concurs.