Petition for Writ of Certiorari — City of Independence v. Tyler

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Supreme Court, US. |

85-1084 | rie

No. DEC 20 i985

| JOsernr. of ANIOL, JR.

In the Supreme Court of the Unite $+

October Term, 1985

CITY OF INDEPENDENCE and JOHN J. NICASTRO on

behalf of the SAVE OUR INDEPENDENCE LAND COM-

MITTEE and JOHN J. NICASTRO on behalf of the IN-

DEPENDENCE HOMEOWNERS-CITIZENS

ASSOCIATION, INC.,

Petitioners,

VS.

WARREN TYLER, DIRECTOR OF ENVIRONMENTAL

PROTECTION and PETE BOYAS, INDEPENDENCE DE-

VELOPMENT SANITARY LANDFILL,

BOYAS EXCAVATING, INC.,

Respondents.

To the Court of Appeals, Tenth Appellate District

Franklin County, Ohio

WILLIAM H. WALLACE

Counsel of Record

THOMPSON, HINE AND FLORY

1100 National City Bank Bldg.

Cleveland, Ohio 44114

(216) 566-5500

Counsel for Petitioner

MIcHAEL A. CYPHERT

Davin E. NASH

THOMPSON, HINE AND FLORY

1100 National City Bank Bldg.

Cleveland, Ohio 44114

(216) 566-5500

Of Counsel

THE GATES LEGAL PUBLISHING CO., CLEVELAND, OHIO--TEL. (216) 621-5647

QUESTION PRESENTED FOR REVIEW

I. WHETHER THE SUPREMACY CLAUSE TO THE

UNITED STATES CONSTITUTION PROHIBITS

STATE ACTION AUTHORIZING THE DEVELOP-

MENT AND OPERATION OF A COMMERCIAL

REFUSE LANDFILL WITHIN THE BOUNDARIES

OF A NATIONAL PARK?

TABLE OF CONTENTS

Question Presented for Review ....................000.0000..0---- esau I

Se Ge IID mesctsriccccnnstitiinnnacheaan II

Table of Authorities ............. ~sanchitinbicabanibiamananbibaiaeieiaeale III

I UE ainsi vince ininicisnienminnamiaaiaiataalliaias 1

PIR icinnsi ccanceccecssnsinsssscistiabiamnninteibaasdstetaigbeaaaaiaadmbmanies 2

Constitutional Provisions Involved .................... PATA Se 2

Statutory Provisions Involved ..............................-....-0.-+- 3

Statement of the Case ...................... SPIE ee ee NS 5

Reoemann for Giremtinns Ge WHETG oneness nei ence 8

Federal Legislation Creating the CVNRA and Pro-

hibiting Landfills Within National Parks Pre-

empts Issuance of a Landfill Permit by OEPA.. 8

Congressional Power to Protect Federal Lands Un-

der the Property Clause to the United States

Constitution Includes the Power to Prohibit

Commercial Landfills on Private Property

Within the Boundaries of the CVNRA ................ 13

Federal Regulation of Private Land Located Within

the Boundaries of a National bark Does Not Con-

stitute an Unlawful Taking Within the Meaning

of the Fifth Amendment to the United States

CE, cciccsiitstietnisedieeanaeen 15

This Case Raises a Question of Federal Law Which

Should Be Settled by This Court ...........02.20..202..2.... 16

Coe - .........:conscrssscccesenstmronentsiitcaliundidenecpsan ieaeaaeiaaselanaaaaaaee aannnanD 17

Appendix:

Order of the Supreme Court of Ohio (Septem-

Wace BB, TOD) access nsesciceessicssesncencicseisritemnienanniieenlaresanina Al

Opinion of the Court of Appe Is, Tenth Appellate

District, for Franklin County, Ohio (June 6,

EEE ST i A a A2

Decision and Order of the Environmental Board of

I I Bh UND siccesncsccessensscscessessecessrecenee A27

Final Action of the Ohio Director of Environmental

Protection (February 1, 1982)... ...A62

TABLE OF AUTHORITIES

Cases

Camfield v. United States, 167 U.S. 518 (1897) ............ 14

Florida Lime & Avocado Growers, Inc. v. Paul, 373

od casnancesssnecnnnsuanccsnnsunsecssre li

Hines v. Davidowitz, 312 U.S. 52 (1941) 000... ht 11

Kleppe v. New Mexico, 426 U.S. 529 (1976) 00... 13, 14

Northern States Power Co. v. Minnesota, 447 F.2d 1143

(8th Cir. 1971), aff'd 405 U.S. 1035 (1972) 0... 11

Pennsylvania Central Transportation Co. v. City of New

Rk EG ) een 15

Silkwood v. Kerr-McGee Corporation, 464 U.S. 238

|. ON AES SLES OT OTTO 11

United States v. Alford, 274 U.S. 264 (1927) ........... 14

Constitutional Provisions

U.S. Const. art. IV, §3, cl. 2 ........... iiduiisulidestbahidaeaabeeteains 3,8

I nse cannensesachackndsnnnssisecasconeacans 2, 6, 10

U.S. Const. amend. V ........... vererioes ibsaliepdabasabigtlestickcaoied 3, 15, 16

Statutory Provisions

16 U.S.C.A. §460ff (West Supp. 1985) -............... 3, 6, 9,11, 13

16 U.S.C.A. §460ff-1(a) (West Supp. 1985) .~................... 4.8

16 U.S.C.A. §460L-22(c) (West Supp. 1985) -........... passim

Legislative History

S. Rep. No. 1328, 93d Cong., 2d Sess. 120, reprinted in

1974 U.S. Code Cong. & Ad. News, 6649, 6652 ........ 11

H.R. Rep. No. 98-1069, 98th Cong., 2d Sess. 2 (1984) ... 12

H.R. Rep. No. 98-1069, 98th Cong., 2d Sess. 3 (1984) ..12, 16

130 Cong. Rec. H9974 (daily ed. Sept. 24, 1984) (state-

ment of Rep. Seiberling) ...................... eiaulisnhesstnacinlatdecchon 12

No.

In the Supreme Court of the United States

October Term, 1985

CITY OF INDEPENDENCE and JOHN J. NICASTRO on

behalf of the SAVE OUR INDEPENDENCE LAND COM-

MITTEE and JOHN J. NICASTRO on behalf of the IN-

DEPENDENCE HOMEOWNERS-CITIZENS

ASSOCIATION, INC.,

Petitioners,

VS.

WARREN TYLER, DIRECTOR OF ENVIRONMENTAL

PROTECTION and PETE BOYAS, INDEPENDENCE DE-

VELOPMENT SANITARY LANDFILL,

BOYAS EXCAVATING, INC.,

Respondents.

PETITION FOR WRIT OF CERTIORARI

To the Court of Appeals, Tenth Appellate District

Franklin County, Ohio

The City of Independence and John J. Nicastro, Peti-

tioners herein, respectfully petition for certiorari to review

the judgment of the Court of Appeals, Tenth Appellate

District, for Franklin County, Ohio.

OPINIONS BELOW

The Order of the Ohio Supreme Court denying certifi-

cation, entered on September 25, 1985, is unreported and

is reprinted at Al of the Appendix. The opinion of the

Court of Appeals, Tenth Appellate District, for Franklin

County, Ohio, entered on June 6, 1985, is unreported and

is reprinted at A2 of the Appendix. The decision and

order of the Ohio Environmental Board of Review, entered

on April 1, 1983 is unreported and is reprinted at A27 of

the Appendix. The final action of the Ohio Director of

Environmental Protection, issued and effective February

1, 1982, is unreported and is reprinted at A62 of the Ap-

pendix.

JURISDICTION

The judgment of the Court of Appeals, Tenth Appellate

District, for Franklin County, Ohio, was entered on June

6, 1985. A timely motion to certify was denied by the

Ohio Supreme Court on September 25, 1985. Jurisdiction

of this Court is invoked under 28 U.S.C. §1257(3).

CONSTITUTIONAL PROVISIONS INVOLVED

This case involves the following Constitutional Pro-

visions:

The Supremacy Clause to the Constitution of the

United States, art. VI, cl. 2:

This Constitution and the Laws of the United States

which shall be made in Pursuance thereof and all

Treaties made or which shall be made, under the

Authority of the United States, shall be the Supreme

Law of the Land; and the Judges in every State shall

be bound thereby, anything in the Constitution or

Laws of any State to the Contrary notwithstanding.

The Property Clause to the Constitution of the United

States, art. IV, §3, cl. 2:

The Congress shall have the power to dispose of and

make all needful Rules and Regulations respecting the

Territory or other property belonging to the United

States; and nothing in this Constitution shall be so

construed as to prejudice any claims of the United

States, or of any particular State.

Fifth Amendment to the Constitution of the United

States:

No person shall be held to answer for a capital or

otherwise infamous crime, unless a presentment or

indictment of a Grand Jury, except in cases arising in

the land or naval forces, or in the Militia, when in ac-

tual service in time of War or public danger; nor

shall any person be subject for the same offense to

be twice put in jeopardy of life or limb; nor shall be

compelled in any criminal case to be a witness against

himself, nor be deprived of life, liberty, or property,

without due process of law; nor shall private prop-

erty be taken for public use, without just compen-

sation.

STATUTORY PROVISIONS INVOLVED

This case also involves the following provisions of the

United States Code:

16 U.S.C.A. §460ff (West Supp. 1985):

For the purpose of preserving and protecting for pub-

lic use and enjoyment, the historic, scenic, natural, and

recreational values of the Cuyahoga River and the

adjacent lands of the Cuyahoga Valley and for the pur-

pose of providing for the maintenance of needed recrea-

tional open space necessary © .ne urban environment,

the Cuyahoga Valley Nationa, Recreation Area, here-

after referred to as the “recreation area”, shall be

established within six months after December 27, 1974.

In the management of the recreation area, the Sec-

retary of the Interior (hereafter referred to as the

“Secretary”) shall utilize the recreation area resources

in a manner which will preserve its scenic, natural,

and historic setting while providing for the recrea-

tional and educational needs of the visiting public.

16 U.S.C.A. §460ff-1(a) (West Supp. 1985):

The recreational area shall com rse of the lands

and waters generally depicted on the map entitled

“Boundary Map, Cuyahoga Valley National Recrea-

tion Area, Ohio”, numbered 655-90,001-A, and dated

May 1978, which shall be on file and available for in-

spection in the offices of the National Park Service,

Department of the Interior, Washington, District of

Columbia, and in the main public library of Akron,

Ohio, and Cleveland, Ohio. After advising the Com-

mittees on Interior and Insular Affairs of the United

States Congress, in writing, the Secretary may make

minor revisions of the boundaries of the recreation

area when necessary by publication of a revised

drawing or other boundary description in the Federal

known as the Hydraulic Brick Company located in in-

dependence, Ohio, the Secretary shall have the first

right of refusal to purchase such property for a pur-

chase price not exceeding the fair market value of such

property on the date it is offered for sale. When ac-

quired, such property shall be administered as part of

the recreation area, subject to the laws and regula-

tions applicable thereto.

16 U.S.C.A. §460L-22(c) (West Supp. 1985):

In order to protect the air, land, water and natural and

cultural values of the National Park System and the

property of the United States therein, no solid waste

disposal site (including any site for the disposal of do-

mestic or industrial solid wastes) may be operated

within the boundary of any unit of the National Park

System, other than—

(1) a site which was operating as of September

1, 1984, or

(2) a site used only for disposal of waste gen-

erated within that unit of the park system so

long as such site will not degrade any of the

natural or cultural resources of such park

unit.

The Secretary of the Interior shall promulgate regu-

lations to carry out the provisions of this subsection,

including reasonable regulations to mitigate the ad-

verse effects of solid waste disposal sites in operation

as of September 1, 1984, upon the property of the

United States.

STATEMENT OF THE CASE

This case raises the question of whether a state agency,

acting pursuant to state law, may authorize the develop-

ment and operation of a commercial] refuse landfill within

the boundaries of a national park, an area preserved by

Congress for historic, scenic, natural and recreational pur-

poses.

A. Procedural History.

This petition requests review of the decision rendered

by the Court of Appeals, Tenth Appellate District, for

Franklin County, Ohio (the “Court of Appeals”), which

held that Respondent Ohio Environmental Protection

Agency (“OEPA”) could lawfully authorize Respondents

Pete Boyas, Independence Development Saniary Landfill,

and Boyas Excavating, Inc. (collectively “Boyas’’) to de-

velop and operate a commercial refuse landfill within the

designated boundaries of Ohio’s only national park—the

Cuyahoga Valley National Recreation Area (“CVNRA”).

The Court of Appeals’ decision is directly contrary to

the reservation of the permit site for park and recreational

purposes by the United States Congress. Public Law

93-555, codified at 16 U.S.C.A. §460ff (West Supp. 1985).

Moreover, the Court of Appeals’ decision refused to apply

Federal law that prohibits the operation of commercial

refuse landfills within the boundaries of units of the

National Park System. Public Law 98-506, codified at

U.S.C.A. $460L-22(c) (West Supp. 1985).

The City appealed the issuance of the Permit by the

OEPA to the Chio Environmental Board of Review where

the Permit was affirmed in part and vacated in part for

engineering defects. Petitioners and Respondents all ap-

pealed to the Court of Appeals. On June 6, 1985, the

Court of Appeals affirmed an order of the Environmental

Board of Review which authorized the issuance of the

landfill permit with only certain technical modifications.

The City’s motion to certify the case to the Ohio Supreme

Court was denied without opinion on September 25, 1985.

Throughout the proceedings below, the City of Inde-

pendence and John J. Nicastro, petitioners herein (collec-

tively the “City’) have consistently raised the issue of

whether the inclusion of the Permit site within the desig-

nated boundaries of the CVNRA by Congress preempts

the issuance of the landfill Permit by OEPA pursuant

to the Supremacy Clause to the United States Constitution.

U.S. Const. art. VI, cl. 2. The City presented evidence

to OEPA demonstrating that the Permit site was within

the designated boundaries of the CVNRA prior to the

OEPA’s issuance of a permit to Boyas on February 1, 1982

(the “Permit”). The controlling issue of Federal pre-

emption was raised on appeal from OEPA’s issuance of

the Permit to the Ohio Environmental Board of Review

in the City’s Proposed Conclusion of Law No. 14, filed

November 18, 1982, and was raised again on appeal to

the Court of Appeals. Assignment of ©’ ror No. 1. Appen-

dix at A5-6.

In addition, promptly after the enactment of 16

U.S.C.A. §460L-22(c), the City preserved the issue of

Federal preemption with respect to that statute in the

Court of Appeals by way of a supplemental brief filed

February 20, 1985. Both Federal questions were presented

to the Ohio Supreme Court in the City’s Joint Memoran-

dum in Support of Jurisdiction before the Ohio Supreme

Court. At each level, the lower tribunals erroneously

failed to apply superior Federal law and upheld the au-

thority of OEPA to issue the Permit under state law.

B. Relevant Facts.

As expressly found by the trier of fact below (the

Ohio Environmental Board of Review, see Appendix at

A40), the Permit site and adacent areas where cover

material for the garbage would be stripped are within

the recognized boundaries of the CVNRA and the munic-

ipal boundaries of Independence. Boyas first acquired an

option to purchase the Permit site by way of an agree-

ment with the Hydraulic Press Brick Co., the owner of

the Permit site and adjacent areas at that time, dated

March 31, 1977. This agreement was entered into. some

three years after Congress first established the CVNRA to

preserve the Cuyahoga Valley for park, recreational, and

historical purposes. At this time the subject area was on

the edge of lands to be included in the CVNRA.

As the result of further legislation by the Congress, the

property was included within the boundaries of the CVNRA

in late 1978 as depicted on the official Boundary Man,

Cuyahoga Valley National Recreation Area, Ohio, No.

655-90,001A, dated May, 1978. Section 315, National

Parks and Recreation Act of 1978, Public Law 95-625,

codified at 16 U.S.C.A. §460ff-1(a). Boyas did not exer-

cise his option to purchase the subject property until

March 31, 1981—well after the property became part of

the CVNRA. The Permit site, however, has not yet been

acquired in fee by the United States.

Effective October 19, 1984, Congress enacted Public

Law 98-506, codified at 16 U.S.C.A. §460L-22(c). Public

Law 98-506 prohibits the operation of most commercial

landfilis within the boundaries of National Parks.

REASONS FOR GRANTING THE WRIT

This case raises a fundamental question regarding

whether a state may directly contravene the reservation

of land for public park uses by Congress pursuant to the

Property Clause to the Constitution of the United States,

art. IV, §3, cl. 2. This Court has never previously

addressed this question and this is an appropriate case for

review. The decisions of the lower and appellate courts

of Ohio conflict with applicable decisions of this Court

and with the clear intent of Congress in establishing the

CVNRA and in prohibiting new landfills among units of

the National Park System.

FEDERAL LEGISLATION CREATING THE CVNRA

AND PROHIBITING LANDFILLS WITHIN NA-

TIONAL PARKS PREEMPTS ISSUANCE OF A

LANDFILL PERMIT BY OEPA.

The issuance of the Permit by OEPA, authorizing the

construction and operation of the proposed commercial

refuse landfill within the boundaries of the CVNRA, di-

rectly contravenes Federal law in at least two respects.

First, the issuance of the Permit thwarts Congressional

objectives in establishing the CVNRA as articulated in

Public Law 93-555, Section 1, codified at 16 U.S.C.A.

§460ff (West Supp. 1985). This statute created the CVNRA

expressly for the purpose of “preserving and protecting for

public use and enjoyment, the historic, scenic, natural

and recreational values of the Cuyahoga River and the

adjacent lands of the Cuyahoga Valley and for the purpose

of providing for the maintenance of needed recreational

open space necessary to the urban environment...” Id.

Second, the issuance of the Permit is expressly pro-

hibited by Section 2 of Public Law 98-506, codified at 16

US.C.A. §460L-22(c) (West Supp. 1985), which provides

in pertinent part:

natural cultural values of the National Park System

and the property of the United States therein, no solid

waste disposal site (including any site for the disposal

of domestic or industrial solid wastes) may be oper-

ated within the boundary of any unit of the National

Park System, other than—

(1) asite which was operating as of September 1,

1984, or

(2) a site used only for disposal of wastes gen-

erated within that unit of the park system so long as

such site will not degrade any of the natural or cul-

tural resources of such park unit... .

Congress has in the above legislation expressed unequiv-

ocally its objective to protect all property within the

boundaries of the National Park System from the devas-

tating environmental hazards of commercial landfills.

Neither of the exceptions noted in 16 U.S.C.A. §460L-22(c)

apply to the proposed Boyas landfill, as it is not yet in

operation and because it would receive approximately 2,750

tons of industrial, commercial and municipal refuse daily,

most, if not all, of which would be generated outside the

boundaries of the CVNRA.

The issuance of the Permit by OEPA is preempted by

both Federal statutes because it is impossible for the State

of Ohio to authorize a landfill in the CVNRA without

colliding directly with the clear purpose of Congress to

preserve the Cuyahoga Valley for park and recreational

uses and without flagrantly violating the express terms

of 16 U.S.C.A. §460L-22(c).

The superiority of Federal law over conflicting state

law or state action is essential to the functioning of our

political system and the laws of this country. This hon-

orable Court must not allow the State of Ohio, acting

through OEPA, to flaunt Federal law by issuing a permit

for a commercial refuse landfill on a site set aside by

Congress for use as a national park.

The principle of Federal preemption is expressed

clearly by the Supremacy Clause to the Constitution of

the United States, art. VI, cl. 2:

This Constitution, and the laws of the United

States which shall be made in pursuance thereof...

shall be the supreme law of the land; and the judges

in every state shall be bound thereby, anything in the

constitution or laws of any state to the contrary not-

withstanding.

State action, such as OEPA’s issuance of the Permit, which

“stands as an obstacle to the accomplishment and execu-

tion of the full purposes and objectives of Congress” is

unconstitutional under the Supremacy Clause. Silkwood

v. Kerr-McGee Corporation, 464 U.S. 238, 248 (1984);

Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S.

132, 142-43 (1963); Hines v. Davidowitz, 312 U.S. 52, 67

(1941).

The legislative history of each Federal statute compels

a finding of Federal preemption. The Senate Report ac-

cecmpanying 16 U.S.C.A. §460ff emphasized “the impor-

tance of the Cuyahoga Valley not only for the historical

value it contains, but for its potential to serve the out-

door recreation needs of the nearly five million residents

of the surrounding area.” S. Rep. No. 1328, 93d Cong.,

2d Sess. 120, reprinted in 1974 U.S. Code Cong. and Ad.

News, 6649, 6652. The decision by the Court of Ap-

peals flies in the face of these express Congressional ef-

forts to preserve the Cuyahoga Valley by creating

Ohio’s only national park. Statements of members of

Congress respecting the intent and purpose of the laws

Congress passes are entitled to great weight when ques-

tions of Congressional intent and purpose arise in the

context of Federal preemption. See Northern States Power

Co. v. Minnesota, 447 F.2d 1143 (8th Cir. 1971), aff'd, 405

U.S. 1035 (1972).

Additionally, the legislative history of 16 U.S.C.A.

§460L-22(c) emphatically discloses a concerned awareness

of the destructive consequences of commercial landfills

upon the lands within the designated boundaries of units

of the National Park System. As reported by the Com-

mittee on Interior and Insular Affairs, to whom the bill

was referred:

There are currently three commercial waste dis-

posal sites within park units at Gateway National

Recreation Area, Cape Cod National Seashore and

Gettysburg National Military Park.

In addition there have been recent proposals to

use land within other park units for waste disposal

including the Cuyahoga Valley National Recreation

Area.

The conditions of noise, air pollution, waste dis-

posal in surrounding park lands, rat and other pest

problems, and area disruption due to heavy truck use

that are created by these waste disposal sites have

resulted in a deep concern over the degradation of

park values. H.R. Rep. No. 98-1069, 98th Cong., 2d

Sess. 2 (1984); see also, 130 Cong. Rec. H9974 (daily

ed. Sept. 24, 1984) (statement of Rep. Seiberling)... .

In the Section-by-Section analysis of the bill, the

House Committee further emphasized:

The Committee notes that the operation of solid

waste disposal sites within units of the National Park

System causes deterioration of air and water quality,

increases levels of mechanical noise, and has the poten-

tial to degrade land and water areas that are in

relatively natural condition and areas containing sig-

nificant cultural values, and that the operation of such

disposal sites renders adjacent lands, and waters, unfit

for full public use and enjoyment.

H.R. Rep. No. 98-1069, 98th Cong., 2d Sess. 3 (1984).

Without question, the authorization by OEPA of a new

commercial landfill within Federal park boundaries is

in direct conflict with the clearly stated Congressional

purposes in enacting 16 U.S.C.A. §460L-22(c).

The City requests this honorable Court to grant the

writ for purposes of upholding the Acts of Congress re-

ferred to herein when the Court of Appeals and the State

of Ohio, acting through OEPA, have refused to do so.

Under the Supremacy Clause, the courts of Ohio are bound

by the Constitution and the laws of the United States.

The decision of the Court of Appeals upholded the issu-

ance of the Permit despite the clear expression of Congress

embodied in 16 U.S.C.A. §460ff to preserve the Permit

site as parkland within the CVNRA, and despite the clear

prohibition embodied in 16 U.S.C.A. §460L-22(c). The

Court of Appeals’ decision is unlawful and blatantly ig-

nores the duty imposed by the Supremacy Clause. The

Permit cannot be allowed to stand in the way of Con-

gressional efforts to preserve the natural beauty and his-

toric value of the Cuyahoga Valley.

CONGRESSIONAL POWER TO PROTECT FEDERAL

LANDS UNDER THE PROPERTY CLAUSE TO

THE UNITED STATES CONSTITUTION IN-

CLUDES THE POWER TO PROHIBIT COM-

MERCIAL LANDFILLS ON PRIVATE PROP.-

ERTY WITHIN THE BOUNDARIES OF THE

CVNRA.

The Court of Appeals refused to find that the Permit

was preempted by superior Federal law, in part, because

the Permit site is not yet owned by the United States.

Appendix at A8-9. This rationale is unsupportable since

Federal regulation of privately owned lands is autho-

rized by the Property Clause to the United States Con-

stitution. Kleppe v. New Mexico, 426 U.S. 529, 538 (1976).

Consequently, the fact that the United States does

not yet own the Permit site in the instant case does not

render the dottrine of Federal preemption inoperative.

In fact, Congressional authority to establish and protect

the CVNRA compels Federal preemption of the Permit.

Congressional power to create national parks includes, by

necessary implication, the limitation of new commercial

or private activities on non-Federally owned areas to pro-

tect existing national parklands or to protect designated

parklands for future acquisition. In Kleppe, supra, this

Court noted that the right of Congress to regulate activity

on public lands includes “congressional power to regulate

conduct on private land that affects the public lands.”

Id. at 538 (emphasis in the original) (citing Camfield v.

United States, 167 U.S. 518, 525-26 (1897) ); see also United

States v. Alford, 274 U.S. 264, 267 (1927) (Congress may

prohibit the doing of acts upon privately owned lands that

imperil the publicly owned forests).

These principles have direct application to the

CVNRA. Under the power derived from the Prop-

erty Clause, Congress has clearly determined that a

commercial enterprise such as a landfill within the

CVNRA would conflict with the purposes for which the

Area was established. Hence, any act of the State of

Ohio which frustrates or conflicts with this Congressional

purpose is unlawful under the Supremacy Clause of the

United States Constitution.

FEDERAL REGULATION OF PRIVATE LAND LO.

CATED WITHIN THE BOUNDARIES OF A NA-

TIONAL PARK DOES NOT CONSTITUTE AN

UNLAWFUL TAKING WITHIN THE MEANING

OF THE FIFTH AMENDMENT TO THE UNITED

STATES CONSTITUTION.

Finally, the Court of Appeals erroneously concluded

that Federal preemption of the issuance of the Permit by

OEPA would constitute an unconstitutional taking under

the Fifth Amendment to the United States Constitution.

Appendix at Al0. The Court of Appeals’ decision on the

taking issue is erroneous for at least two reasons. First,

this holding conflicts directly with Pennsylvania Central

Transportation Co. v. City of New York, 438 U.S. 104

(1978), wherein this Court held that land use restrictions,

or the designation of land or buildings as places to be

preserved for historic and aesthetic purposes do not con-

stitute unconstitutional takings. Congress has clearly stated

its objective in establishing the boundaries of the CVNRA

to preserve the scenic, natural, historic and recreational

beauty of the Cuyahoga Valley. To achieve this goal,

private property owners within the national park may

be denied the most profitable or beneficial use of their

property—especially where, as in this case, the private

property owner acquires the property knowing that the

property is a designated part of a Federal park. Id. at 125.

Second, and equally important, however, is that the

Court of Appeals erred in holding that the taking issue

bears relevance to the preemption issue. The Suprem-

acy Clause admits of no exceptions and the Court of Ap-

peals was not free to fashion a private exclusion.

Under clear precedent of this honorable Court, the

Court of Appeals erred in stating that Federal preemption

of the Permit amounts to a taking in violation of the Fifth

Amendment to the United States Constitution and erred

by linking any taking issue to the paramount issue of

Federal preemption. This court must not allow Federal

legislation which created and regulates the CVNRA to

be undermined by the Court of Appeals’ misunderstanding

of what constitutes an unconstitutional taking.

THIS CASE RAISES A QUESTION OF FEDERAL

LAW WHICH SHOULD BE SETTLED BY THIS

COURT.

The Court of Appeals’ holding below raises funda-

mental and far-reaching questions regarding Congressional

ability to protect this Nation’s dwindling park areas for

future generations. After having spent over 100 million

dollars of public funds to preserve the Cuyahoga Valley’s

scenic, historical and recreational values, the State of

Ohio has attempted to render these efforts a nullity. If

state sanctioned development is allowed to proceed, over

300 garbage trucks will traverse existing active park lands

daily on their way to the proposed site, rendering, in the

judgment of Congress, these “. . . lands, and waters, unfit

for full public use and enjoyment”. H.R. Rep. No. 98-

1069, 98th Cong., 2d Sess. 3 (1984). Intervention by this

Court is necessary to protect the CVNRA from commercial

exploitation and to preserve paramount Congressional au-

thority over these park lands.

CONCLUSION

For all the foregoing reasons, the Court should grant

the petition and issue a writ of certiorari to the Court of

Appeals, Tenth Appellate, District, Franklin County, Ohio.

Respectfully submitted,

WILLIAM H. WALLACE

Counsel of Record

THOMPSON, HINE AND FLORY

1100 National City Bank Bldg.

Cleveland, Ohio 44114

(216) 566-5500

Counsel for Petitioner

MICHAEL A. CYPHERT

Davin E. NASH

THOMPSON, HINE AND FLORyY

1100 National City Bank Bldg.

Cleveland, Ohio 44114

(216) 566-5500

Of Counsel

APPENDIX

ORDER OF THE SUPREME COURT OF OHIO

DENYING CERTIFICATION

(Dated September 25, 1985)

Case No. 85-1223

THE SUPREME COURT OF OHIO

CoLUMBUS

CITY OF INDEPENDENCE, et al.,

Appellants,

WARREN TYLER, DIR., et al.,

Appellees.

ENTRY

Upon consideration of the motion for an order di-

recting the Court of Appeals for Franklin County to cer-

tify its record it is ordered by the Court that said motion

is overruled.

COSTS:

Motion Fee, $20.00, paid by Thompson, Hine & Flory.

/s/ FrRanK D. CELEBREZZE

Chief Justice

GCPINION OF THE COURT OF APPEALS, TENTH

APPELLATE DISTRICT, FRANKLIN COUNTY,

OHIO

(Rendered on June 6, 1985)

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

City oF INDEPENDENCE,

Appellant-Appellee,

Joun J. Nicastro, on behalf of the

SAVE OuR INDEPENDENCE LAND Com-

MITTEE,

Appellant-Appellant, Nos. 83AP-403 &

v. &3AP-424

RosBert H. Maynarp, DIRECTOR OF (REGULAR CALENDAR)

ENVIRONMENTAL PROTECTION, et al.,

Appellees-Appellees,

PETE BoyaAs, etc.,

Appellee/Cross-Appellant.

City OF INDEPENDENCE,

Appellant-Appellant,

Joun J. Nicastro, on behalf of the

SAVE OuR INDEPENDENCE LAND ComM-

MITTEE,

Appellant-Appellee, Nos. 83AP-404 &

v. 83AP-423

Rospert H. Maynarp, DIRECTOR OF (REGULAR CALENDAR)

ENVIRONMENTAL PROTECTION, et al.,

Appellees-Appellees,

Pete Boyas, etc.,

Appellee/Cross-Appellant.

OPINION

Messrs. THompson, HInE & Fiory, Mr. WILLIAM

H. Wa.LAcE, Mr. Davin E. Nasu, and Mr. MICHAEL

A. CYPHERT, for City of Independence.

Ms. DesoraH J. Nicastro, for John J. Nicastro.

Mr. ANTHONY J. CELEBREZZE, JR., Attorney General,

and Ms. Joan M. Cummiuncs, for Environmental

Protection.

Mansour, GAvin, GERLACK & Manos Co., L.P.A.,

Mr. MicHaet T. Gavin and Mr. Exr Manos, for

Pete Boyas.

APPEALS from the Environmental Board of Review.

Moyer, J.

This matter is before us on the appeal of the city of

Independence, Ohio, and John J. Nicastro (appellants)

from an order of the Environmental Board of Review

(board) and upon the cross-appeal of Pete Boyas, Inde-

pendence Development Sanitary Landfill and Boyas Ex-

cavating, Inc. (Boyas) from the same order of the board.

The Director of the Ohio Environmental Protection

Agency (director) issued a permit to Boyas, which was

effective February 1, 1982, permitting him to install a

sanitary landfill in a site in Independence, Ohio, that con-

sisted of thirty-one acres at the northwest corridor to the

Cuyahoga Valley National Recreation Area (recreation

area). The director also approved plans to install the

sanitary landfill and granted waivers of Ohio Adm. Code

3745-27-06 (I) (4) and (5). The area for which the permit

was granted was a quarry in which shale mining was

conducted by the Hydraulic Press Brick Company (Hy-

draulic). The pit from which the shale was taken was

seventeen acres in area and two-hundred-twenty-feet

deep, and had an estimated life of eight-to-ten years at

a loading grade of 2,750 tons per day, operating on a six-

day week. The waste to be deposited in the landfill was

described as municipal, industrial and commercial waste.

The director’s order was appealed to the board by ap-

pellants herein. The first appeal was dismissed upon

the motion of the director and Boyas when it was learned

by the director that the plans and the permit would have

authorized deposition of solid waste material within two

hundred feet of Hemlock Creek, in violation of Ohio Adm.

Code 3745-27-06 (1) (5), which requires a waiver under Ohio

Adm. Code 3745-27-11.

Boyas submitted a second application, which was ap-

proved by the director and which was appealed by ap-

pellants herein. It is the appeal from the director’s is-

suance of the second permit that is the basis of the appeal

to this court. The permit site is located within the Cuya-

hoga River Valley, is wooded and contains a number of

flora and fauna, two streams, one of which empties into

the Cuyahoga River, and is surrounded by land that is

used for educational, recreational, residential and commer-

cial purposes. The closest home to the site is approxi-

mately eight hundred to one thousand feet, and the air

in the neighborhood is reasonably clean and odor free.

After a hearing de novo, the board found that the

director was not required to consider the social and eco-

nomic impact of granting the permit; that the director has

discretion whether to consider and evaluate separate and

distinct governmental interests with respect to the property

in question; that the landfill will not create a nuisance; that

Ohio Adm. Code 3745-27-06(H) (2) and (3) were not vio-

lated when the director issued a permit to Boyas; and that

the director’s order did violate Ohio Adm. Code 3745-27-

06(H) (4) because the facility will be incapable of opera-

tion in accordance with Ohio Adm. Code 3745-27-07, 3745-

27-08, and 3745-27-09. The board’s order on this issue is

based upon its findings of fact with respect to Boyas’ fail-

ure to incorporate a leachate collection system in the land-

fill property. The board further concluded that the re-

quirements of Ohio Am. Code 3745-27-06(I) (4) and (5)

and 3745-27-11(F), which permit the director to grant a

waiver, were “suspect” because of the inadequacy of the

leachate collection system, and the board therefore did

not rule upon the propriety of the director’s issuance of a

waiver to Boyas; that the evidence did not establish com-

pliance with Ohio Adm. Code 3745-31-05(A) (1), (2), (3),

and (4); that the proposed landfill will prevent or interfere

with the attainment or maintenance of ambient water

quality standards in Hemlock Creek or the easterly and

southerly tributaries of the Cuyahoga River; that the con-

struction and operation of the landfill will be unlawful;

that the discharge of other wastes from the settlement

basin into the nearby waters without a valid permit and

the alteration and obliteration of the existing channel of

the easterly stream violate the permit provisions of Section

404(A) of the Clean Water Act, Section 1344, Title 33,

United States Code; and that there was insufficient evi-

dence to conclude that the director’s action conflicted with

“federal policy.”

Appellants assert the following seven assignments of

error in support of their appeal:

“1. The Environmental Board of Review erred

in concluding that Congressional legislation and the

hearing record reflected insufficient evidence to estab-

lish that the Director of Environmental Protection’s

final action was inconsistent with and therefore pre-

empted by, superior Federal law.

“The Environmental Board of Review erred in con-

cluding that the Director of Environmental Protection

could refuse to consider the social and economic im-

pact of the landfill on the Cuyahoga Valiey National

Recreation Area and surrounding land uses and the ac-

tions of other governmental entities to preserve the

Cuyahoga Valley for public park uses.

“3. The Environmental Board of Review erred in

concluding, as a matter of fact and law, that the pro-

posed landfill will not create an unlawful nuisance

with respect to adjacent landowners and users of this

Cuyahoga Valley National Recreation Area.

“4. The Environmental Board of Review erred in

concluding that the applicant Pete Boyas, was not

barred as a matter of law by Ohio Administrative Code

Section 3745-27-06(H) (2), as a prior violator of Ohio

environmental laws, from being granted a permit to

install with respect to the proposed landfill.

“5. The Environmental Board of Review erred

in concluding, on motion, that its prior vacation of

a permit to install previously granted to the applicant

with respect to the same permit area and proposed

use, did not bar the Director of Environmental Pro-

tection’s subsequent final action as a matter of law

under the doctrine of res judicata.

“6. The Environmental Board of Review erred in

failing to conclude that the waivers granted to the

applicant pursuant to Ohio Administrative Code Sec-

tion 3745-27-11 were unreasonable and unlawful.

“7. The Environmental Board of Review erred in

concluding that the Director of Environmental Protec-

tion’s final action should be vacated in part and af-

firmed in part, rather than vacated in its entirety.”

In support of their first assignment of error, appellants

argue that, because the permit site is within the geograph-

ical boundaries of the Cuyahoga Valley National Recrea-

tion Area, it violates a purported preemption that the

United States government has regarding the use of the

land within the recreation area. There is considerable

testimony and other evidence in the record regarding the

effect the proposed landfill would have upon the adjacent

land that would be used as a recreation area. However,

although it is apparent that Congress, in adopting Sections

460ff to 460ff-5, Title 16, United States Code Annotated, in-

tended to preserve the thirty-two thousand acres of land

designated as the recreation area, the question is whether

Congress, in fact, complied with the strict test for pre-

empting land use.

In determining that issue, we consider first the legis-

lation by which the recreation area was created by Con-

gress. The purpose for establishment of the recreation

area was to preserve and protect for public use and en-

joyment the historic, scenic, natural and recreational areas

of the Cuyahoga River and the adjacent lands of the Cuya-

hoga Valley and to provide needed recreational open space

in an urban environment. (/d. at Section 460ff.) The leg-

islation then refers to a boundary map, a copy of which

is a part of the record before the board, and states that

the Secretary of Interior may make minor revisions of tk:

boundaries of the recreation area when necessary:

“* * * Provided, That with respect to the property

known as the Hydraulic Brick Company located in In-

dependence, Ohio, the Secretary shall have the first

right of refusal to purchase such property for a pur-

chase price not exceeding the fair market value of

such property on the date it is offered for sale. When

acquired such property shall be administered as part

of the recreation area, subject to the laws and regula-

tions applicable thereto.” (Id. at Section 460ff-1[a].)

The Act specifically provides for the purchase or cquisi-

tion by gift of lands, improvements, waters ur l.:erests

therein; a schedule by which the Secretary of Interior

was to submit to Congress a plan which would indicate

the lands and areas the secretary deemed essential to the

protection and public enjoyment of the recreation area,

the lands he had previously acquired, and an annual five-

year acquisition program.

The Act also contains a reference to local zoning in

the following words: “* * * In providing assistance pur-

suant to this subsection, the Secretary shall endeavor to

obtain provisions in such zoning laws or ordinances which

* * *” would have the effect of prohibiting commercial

and industrial use of the real property adjacent to the

recreation area and aid in preserving the character of the

recreation area. (Id. at Section 460ff-3[f].)

Finally, Congress made it clear that it was not direct-

ing the secretary to violate the Fifth Amendment to the

United States Constitution by acquiring property rights

without giving reasonable compensation for such rights

by authorizing the appropriation of over seventy million

dollars “for the acquisition of lands and interests in lands.”

(Id. at Section 460ff-5[a].) At the time of the hearing

before the board, the National Park Service had not ex-

ercised its right to purchase the permit area, even though

the site had been transferred with the park service’s knowl-

edge. Furthermore, a witness representing the National

Park Service testified that there are many areas within

the recreation area boundaries that the park service has

no intention of acquiring and that such unacquired areas

would not be administered by the park service unless they

were acquired. He further testified that the park service

had no intention of acquiring the Hydraulic property, that

the park had no use for the pit and that he would not rec-

ommend acquiring the pit.

The United States Supreme Court observed, in Com-

monwealth Edison Co. v. Montana (1981), 453 U.S. 609, at

634, that the court had frequently indicated that:

“«* * * Pre-emption of state law by federal statute or

regulation is not favored “in the absence of persuasive

reasons—either that the nature of the regulated sub-

ject matter permits no other conclusion, or that the

Congress has unmistakably so ordained.”’ * * * [Ci-

tations omitted.] In cases such as this, it is necessary

to look beyond general expressions of ‘national policy’

to specific federal statutes with which the state law

is claimed to conflict. * * *”

The issue in Montana, inter alia, was whether a Montana

severance tax on the mining of coal on federal land violated

the Supremacy Clause in view of the impact of the sever-

ance tax upon royalty payments to the federal govern-

ment. While the facts in Montana are not similar to the

facts in this case, the general test stated in Montana should

be applied to the federal statute and the facts in this case.

When that is done, we conclude that the granting of a

permit by the Director of the Ohio Environmental Protec-

tion Agency to a private company, to use land within the

boundaries of an area designated by Congress as a na-

tional park where the land is not owned by the federal

Al0

government and the Act creating the park area does not

expressly pre-empt the use of land for any purpose au-

thorized by the state, does not violate Clause 2, Article

VI, of the United States Constitution.

The cases cited by appellants in support of their argu-

ment do not require a finding that the Supremacy Clause

has been violated in this case. Furthermore, a holding

that a violation of the Supremacy Clause has occurred

where no compensation has been paid for the land in ques-

tion would violate the Fifth Amendment to the Constitution,

which prohibits the taking of property without just com-

pensation. That was not the effect of the holding in any

of the cases cited by appellants. In fact, appellants have

cited no express prohibition against the issuance of a per-

mit for a landfill within the recreation area. While it is

clear that the intention of Congress in establishing the

recreation area was to preserve a scenic and somewhat

historic condition, it is equally clear that Congress did not

enact an express prohibition against state action.

Appellants have filed a supplemental brief arguing

that the enactment by Congress of Public Law 98-506,

effective October 19, 1984, and after this case was sub-

mitted to the court on the briefs and oral argument, spe-

cifically prohibits the operation of a solid waste disposal

facility within the boundary of any unit of the National

Park System.

The arguments raised in appellants’ supplemental

briefs are not persuasive for the following reasons:

1. We are confined to the record and the transcript

of the proceedings below in determining whether the

order of the Environmental Board of Review is supported

by reliable, substantial and probative evidence and is in

accordance with law.

All

2. The question before the Environmental Board

of Review was whether the permit to install issued by

the director complied with the environmental protection

laws and regulations of Ohio and, to the extent they are

applicable, of the United States. Neither the director nor

the board has jurisdiction to prohibit the installation of

a landfill for the reason that another government agency

may object to such installation. See City of Garfield

Heights v. Williams (Sept. 29, 1977), No. 77AP-449, un-

reported (1977 Opinions 3447) and Little Miami, Inc. v.

Williams (Dec. 23, 1976), No. 76AP-292, unreported (1976

Opinions 4492).

3. The question of the applicability of a federal

statute to the use of land within a federal park system

and the question of the cession of authority from Ohio

over lands not acquired by the federal government should

be resolved in a proceeding initiated by the appropriate

federal agency. The first assignment of error is not well-

taken and is overruled.

In support of their second assignment of error, appel-

lants argue that the director abused his discretion when

he failed to consider the social and economic impact of

his granting of the permit. Appellants argue that the

director should have considered such nontechnical condi-

tions as the opinions of other agencies, interference with

recreational and educational activities within the park,

and the preservation of historical sites in the recreation

area. Appellants also wish the court to consider, specif-

ically, the director’s failure to follow the recommendation

of the Ohio Department of Natural Resources and the

master plan for the city of Independence, which recom-

mended the phasing out of commercial and industrial

uses in the Cuyahoga Valley. In disposing of the second

Al2

assignment of error, we observe first that R.C. 3745.011,

by which the General Assembly enunciated the specific

functions of the Environmental Protection Agency, says

nothing with respect to the agency’s responsibility to defer

to local zoning ordinances, master plans, or the social and

economic impact of the establishment of a landfill in any

part of this state. The direction of R.C. 3745.011 is tech-

nical in nature, in that it is the Environmental Protection

Agency’s responsibility to conserve, protect and enhance

the air, water and other natural resources of the state,

and to prevent and abate pollution of the environment.

The director has adopted a number of rules to facil-

itate the implementation of the environmental protection

laws of Ohio. One of the rules, Ohio Adm. Code 3745-31-05,

states that the director, in considering whether to issue

a permit to install a solid waste disposal facility, may

take into consideration, inter alia, the social and economic

impact of granting or denying the permit to install.

Appellants acknowledge that the director has no direct

authority over the establishment of national parks, local

zoning or surface mine reclamation. This court, in Little

Miami, Inc., supra, at 4502, interpreted the predecessor

to Ohio Adm. Code 3745-31-05 (EP 30-05) in reversing

an order of the Environmental Board of Review which

had vacated the director’s order to permit the installation

of a sewage treatment facility. In our opinion, we ob-

served that:

«“* * * Moreover, the Director is required to coordinate

environmental protection activities with various other

agencies and to consider their plans and projects as

part of a planning process. Such is a general proce-

dure but is not a required determination each time

a permit to install is issued. It remains the respon-

Al3

sibility of local zoning officials, commissions, boards

of appeals, and courts to regulate the various social

and economic concerns within the jurisdiction of par-

ticular subdivisions. Determination whether or not

to grant or deny a permit to install a facility is pred-

icated upon the impact of the proposed facility on

the environment or public health. Zoning and pollu-

tion control are separate and distinct governmental

interests, independently enforced and administered

by different governmental units. The zoning issue,

in particular, is separate and apart, and not the subject

of this appeal.”

The opinion recognizes, at least impliedly, that the

direction of Ohio Adm. Code 3745-31-05(B)(3) is that

the director is not required to, but may, take into consid-

eration the social and economic impact of granting or

denying a permit to install. Since the director is not

required to consider such factors, he could not have abused

his discretion, as argued by appellants, in failing to con-

sider such issues. Furthermore, we are not convinced

from our review of the record and the transcript before

the board that the director failed to consider nontechnical

factors in issuing the permit. There are a number of

communications from the mayors of cities and villages

in the area of the permit site urging him to grant the

permit to alleviate a severe shortage of places to deposit

waste. The director visited the site; there is testimony

that the record of the public hearing was reviewed by the

Chief of the Northeast District Office of the Environmental

Protection Agency; and, finally, appellants were provided

a de novo hearing by the board, at which twenty-eight

volumes of transcript were produced. There is consid-

erable testimony regarding the social and economic impact

upon the community in the permit area that purportedly

Al4

will result from a granting of the permit. We find no

error in the board’s conclusion of law that the director

is not required to consider the social and economic impact

of the granting of a permit and that the director has dis-

cretion whether to consider and evaluate separate and

distinct governmental interests. See Little Miami, Inc.,

supra, and City of Garfield Heights, supra. The second

assignment of error is not weil-taken and is overruled.

The question of whether a proposed landfill will cre-

ate a nuisance is a question that attends virtually every

request for a permit to install a landfill, because virtually

every person would prefer not to live, or work or attend

school near a landfill. However, every person in our

society creates material waste that must be disposed of

somewhere. It is in that context that the director and

the Environmental Board of Review necessarily consider

the issue raised by appellants’ third assignment of error.

The board recognized this dilemma in its thirty-

seventh finding of fact. After stating in its findings of fact

that the operation of the proposed landfill may be offensive

to the senses, may interfere with the comfortable enjoyment

of life in adjacent property, and may affect a considerable

number of persons by reason of the emission of noise from

vehicles and equipment, and, after concluding that the

control of blowing debris is not the best available current

technology and that the production of methane gas at

the site could create a serious hazard if produced in suf-

ficient volume, the board concluded upon the evidence

in the director’s record and at the de novo hearing that

the landfill will not create a nuisance. The reasons the

board gave were that the site is isolated from residential

structures and from the areas used by visitors to the rec-

reation area, the close proximity of the site to industrial

Al5

and commercial enterprises and the board’s assumption

that Boyas would comply with the conditions in the permit

designed to prevent a nuisance from occurring. The board’s

conclusions were apparently based, at least in part, upon

its own view of the site. (See finding of fact 27 and Tr.

XVI-204.) R.C. 3734.02(A) requires that the director issue

licenses for solid waste facilities to assure that the facili-

ties will not create a nuisance. Ohio Adm. Code 3745-27-

01(N) defines nuisance as follows:

““Nuisance’ means anything which is injurious to hu-

man health or offensive to the senses; interferes with

the comfortable enjoyment of life or property; and

affects a community, neighborhood, or any consider-

able number of persons (although the extent of annoy-

ance or damage inflicted upon individual persons may

be unequal).”

Our review of the transcript causes us to conclude

that there is reliable, probative and substantial evidence

upon which the board could conclude that the director's

order would not create a nuisance, as defined in the Ad-

ministrative Code and as applied by this court in City of

Garfield Heights v. Williams (June 14, 1979), No. 78AP-

683, unreported (1979 Opinions 1491). Garfield Heights,

supra, is important to this case because of the distinction

that can be made between the opinion in that case and

the board’s conclusions of law in this case. In Garfield

Heights, we observed that the board had considered the

economic impracticality of eliminating the nuisance cre-

ated by the landfill to adjacent property owners. In this

case, the board concluded that Boyas’ compliance with

the permit will provide protection against the creation

of a nuisance and that the dust, noise, odors and blowing

debris are controllable and will not be injurious to human

health, or offensive to the senses, nor will they interfere

Al6

with the comfortable enjoyment of life and property, if

the landfill is operated in accordance with the permit and

other applicable laws and regulations. That conclusion is

based upon reliable, substantial and probative evidence in

the record that conflicted with some of the evidence of-

fered by appellants. The third assignment of error is not

well-taken and is overruled.

We observe at the outset of our disposition of appel-

lants’ fourth assignment of error that none of the parties

has discussed the question of whether the board has the

authority to adopt a rule such as Ohio Adm. Code 3745-27-

06(H) (2), which on its face would prevent any operator

of a solid waste facility who has previously violated a rule

in even a minor way from operating any other waste

facility in Ohio. We will therefore consider whether the

board’s order, which has the effect of finding that the

director acted reasonably and lawfully in view of Ohio

Adm. Code 3745-27-06(H)(2) and (3), is supported by

reliable, probative and substantial evidence and is in ac-

cordance with law.

Ohio Adm. Code 3745-27-06(H) (2) provides that the

director shall not approve any detail plans if the plans are

submitted by a person who has previously operated or is

currently operating one or more solid waste disposal facili-

ties not in accordance with the applicable statutes and ad-

ministrative rules. Subparagraph (3) requires that the

person identified as the operator of a proposed solid waste

disposal facility is competent and qualified to operate

said facility. There is substantial evidence in the record

to support the board’s finding that Boyas complied with

subparagraph (3). The chief of the northeast district of-

fice testified that Boyas had demonstrated the ability to

operate a landfill in a competent manner. A district en-

gineer for the northeast district office testified that he

A17

made a number of visits to the Rockside Landfill, which

had previously been operated by Boyas, and that the day-

to-day operation of this landfill was reasonably well-or-

ganized, reasonably well-maintained and well-run. He also

testified that there was a problem with odor, noise created

by the equipment at the landfill, and some problem with

blowing dust.

Appellants argue that because we held in City of Gar-

field Heights v. Williams, supra, that the granting of a per-

mit to Rockside, which was operated by Boyas, would

constitute the licensing of a nuisance, the director did not

have the authority to grant Boyas a permit for the site

herein. In City of Garfield Heights, the board had found

that the original Rockside site was attracting birds and

vermin and was technically creating a nuisance, but that

it did not constitute a nuisance under the terms of R.C.

3734.02, when the efforts of Boyas to eliminate the nui-

sance and the economic realities of the need for an ex-

panded landfill site were considered.

We first observe that a rule such as that in Ohio Adm.

Code 3745-27-06(H) (2), which purports to strip the di-

rector of any discretion, is suspect for the reasoning found

in Dressler Coal Corp. v. Call (1981), 4 Ohio App. 3d 81,

wherein we observed that there is a very definite place

for an administrative agency to use a case-by-case evalua-

tion of statutory standards, in situations where there are

circumstances which arise whereby an agency is justified

in acting by individual order, rather than by general rule.

Citing the United States Supreme Court, we stated, in

Dressler, at 85, that “‘[t]o insist upon one form of action

to the exclusion of the other is to exalt form over neces-

sity.’”

The rule in question would appear to be an example

of the antithesis of such reasoning. Both the board and

Al8

this court, in Garfield Heights, observed that the operator

(Boyas) had done everything he could to prevent and elim-

inate the nuisance that his landfill apparently created.

In such a case it would appear that a mandatory rule say-

ing, in effect, that such an operator can never operate

another landfill is an example of the excesses that can be

produced by administrative rule making. On the record

before us, it cannot be said that the board’s order affirm-

ing the director’s interpretation of Ohio Adm. Code 3745-

27-06(H) (2) is not supported by reliable, probative and

substantial evidence and is not in accordance with law.

The fourth assignment of error is not well-taken and is

overruled.

Appellants’ fifth assignment of error has no merit.

The parties agree that the director initially issued to Boyas

a permit to install and plan approval that would have au-

thorized the deposition of solid waste into Hemlock Creek

in violation of Ohio Adm. Code 3745-27-60(I) (5), as the

creek was within two hundred feet of the proposed landfill

site. That order was defective because it was issued with-

out a waiver under Ohio Adm, Code 3745-27-11. When

the director’s order was appealed to the board and the

director realized the defect in his order, he moved the

board to vacate the order and it was vacated by the board.

New plans were then submitted by Boyas, which modi-

fied the design and eliminated the solid waste deposition

within two hundred feet of Hemlock Creek. That proposal

was approved by the director, who issued a new permit

to install, a plan approval and a waiver of Ohio Adm. Code

3745-27-06(I) (4) and (5). Appellants appealed the new

order and then filed a motion to dismiss with the board

urging that the director’s second order was barred by

the doctrine of res judicata.

Al9

“Res judicata embraces the doctrine of collateral

estoppel which holds that when an issue of fact or

law is determined by a valid judgment, the determi-

nation being essential to that judgment, that determi-

nation is conclusive against a party who attempts to

relitigate the issue in a subsequent action, whether

that subsequent action is with the opposing party in

the first action, or is with another person. * * *”

Barthany v. Denton (July 9, 1981), No. 81AP-73, un-

reported (1981 Opinions 2103, 2104).

It is important to emphasize in this case that no evi-

dence was presented to the board and the board made no

findings of fact or conclusions of law with respect to the

first order which was the basis of appellants’ motion to

dismiss. While res judicata does apply to administrative

hearings, it should be applied with flexibility and only

where the administrative proceeding has been of a ju-

dicial nature and the parties have had an adequate op-

portunity to litigate the issues in the proceeding. See

Superior’s Brand v. Lindley (1980), 62 Ohio St. 2d 133.

In the case before us, the second permit to install was

issued upon different facts than was the first permit to

install. For that reason and because the parties had pre-

sented no evidence to the board when the director moved

to dismiss the first appeal, the board did not err when it

concluded that res judicata did not apply to the director’s

second order. In fact, if we were to adopt the reasoning

argued by appellants, we would produce the anomalous

result of penalizing an applicant for a new permit by

holding that the director is bound by a mistake he made

in issuing a previous permit to install, in a situation in

which he subsequently took the initiative to correct his

own error. The fifth assignment of error is overruled.

A20

In support of their sixth assignment of error, appel-

lants argue that the board erred when it did not rule upon

the question of whether the director had properly granted

waivers pursuant to Ohio Adm. Code 3745-27-06(1) (1),

(4), (5) and 3745-27-11(F). The board deferred ruling

upon that question because it found that it was impossible

to evaluate the propriety of the granting of the waivers

in the absence of a leachate collection system design as de-

termined in other findings of fact by the board. In view

of the reasons stated hereafter for overruling assignment

of error number seven, assignment of error number six

is overruled.

In support of their seventh assignment of error, appel-

lants seem to argue that, if the board finds that the di-

rector’s order is unlawful or unreasonable in any respect,

the board must vacate the order in its entirety and that

the board has no jurisdiction to affirm those parts of the

order that it finds to be reasonable and lawful and order

a modification of that part of the order that it finds to

be unreasonable and unlawful. We have resolved that

issue in Citizens Committee v. Williams (1977), 56 Ohio

App. 2d 61, and in Rings v. Nichols (1983), 13 Ohio App.

3d 257, 262. In Rings, citing Perry Township Trustees v.

Earnhart (Aug. 19, 1980), No. 80AP-16, unreported (1980

Opinions 2554), we held that the board may affirm that

part of the director’s order which it finds to be reasonable

and lawful and may also modify another branch of the

director’s order. In Rings, we also placed importance upon

the fact that the appellants, who were in the same legal

status as the appellants in this case, benefited from the

modifications in the director’s order. In this case, the

Board vacated the part of the director’s order that failed

to provide for an adequate leachate system and ordered

the director to require Boyas to submit plans consistent

A21

with the board’s specific findings with respect to the

leachate system. That act of the board is in appellants’

interest. We hold that the board has the authority to enter

such an order, and the seventh assignment of error is over-

ruled.

Boyas, as cross-appellant, asserts the following four

assignments of error in support of his cross-appeal:

“1. The board erred in ruling that the action of

the director in granting the permit was unlawful be-

cause the plans failed to provide for a leachate collec-

tion system.

“2. The board erred in concluding that state and

federal permits were required for the discharge of

wastes into the waters of the state and the relocation

of a drainage ditch.

“3. The board erred in vacating the action of the

director in granting the permit because it incorrectly

found that the director had not complied with the cri-

teria set forth in OAC §3745-31-05.

“4. The board erred in concluding that the evi-

dence established that the proposed landfill will violate

ail applicable state and federal laws.”

The board received a considerable amount of testi-

mony and evidence regarding the leachate collection sys-

tem proposed by Boyas. The director may not issue a

permit to install a solid waste disposal facility unless

the information available to the director indicates that the

facility will not prevent or interfere with the attainment

or maintenance of applicable ambient water quality or air

quality standards; that it will not result in a violation of |

any applicable laws, including the laws governing effluent

standards, emission standards, and federal standards of

EE ————_ |

A22

performance; that it will employ the best available tech-

nology; and that it will not cause significant degradation

of the air or water.

We have reviewed the extensive evidence upon which

the board concluded that the proposed landfill will, in fact,

prevent or interfere with the attainment or maintenance

of ambient water quality standards, as they apply to Hem-

lock Creek. Boyas refers to evidence that is contrary to

the board’s conclusion of law, but such evidence is much

more general in nature than the evidence upon which

the board’s finding is made. We conclude that the board’s

conclusion of law, which is that the plans fail to include

a leachate collection system using the best available tech-

nology, is supported by substantial, reliable and probative

evidence. For example, the characteristics of the Chagrin

shale constitute a significant fact in support of Boyas until

the more specific observations and technical testimony are

reviewed, as these indicate that the shale is permeable

and that Boyas had performed permeability tests on the

floor and sidewalls of the quarry and had not submitted

detail plans regarding the sequency of the various pits he

proposed to use.

Furthermore, the assertion of Boyas, that the board’s

order with respect to the leachate system in this case

has the effect of issuing a regulation requiring that all

solid waste disposal sites will generate leachate, and there-

fore they must all have a leachate removal system if plans

are to be approved, is not persuasive. The board’s con-

clusions of law are clearly confined to the facts of this

case. The first assignment of error of the cross-appeal is

overruled.

In support of his second assignment of error, Boyas

contends that the board erred by concluding that the di-

A23

rector should not have issued the permit until Boyas had

obtained a National Pollutant Discharge Elimination

(NPDES) permit for the discharge of water and wastes

from the settling basin and that Boyas should have been

required to obtain a permit pursuant to Section 404(a) of

the Clean Water Act, Section 1344, Title 33, U.S. Code.

Ohio Adm. Code 3745-33-02 requires that a person who

proposes to discharge any pollutant into the waters of Ohio

must obtain an Ohio NPDES permit before creating such

discharge. An application must be filed at least one hun-

dred eighty days prior to the commencement of the pro-

posed discharge. There is testimony in the record that

Boyas and the director had agreed that the permit would

not be issued until the nature of the discharge could be

determined. We find nothing in the statutes or in the

administrative regulations requiring the agency to have

issued an NPDES permit at the same time it issued the

permit to install. The director’s order with respect to this

limited issue was reasonable and in accordance with law.

The first branch of Boyas’ second assignment of error is

sustained.

The board concluded that the construction and opera-

tion of the landfill will be unlawful without the issuance

of a permit, with respect to the alteration of the easterly

stream of Hemlock Creek into a drainage ditch. The

stream will be relocated to provide drainage from the land-

fill site. Under Section 1344, Title 33, U.S. Code, Boyas

would be required to obtain a permit for the dredging of

the stream if it is “navigable,” as that term is defined in

Section 1362(7), Title 33, U.S. Code. The stream was re-

located in order to provide for the diversion of surface

waters from the landfill site. Navigable waters are defined

as “the waters of the United States, including the terri-

torial seas.” Under that broad definition, it would appear

A24

that the easterly stream, although it is obviously a very

small stream, is a navigable water for purposes of the

Clean Water Act. We further assume, because neither the

director nor Boyas has argued otherwise, that the easterly

stream is technically water of the United States, rather

than the state of Ohio or some other political subdivision.

The board’s conclusion of law number eighteen is supported

by substantial reliable and probative evidence and is in ac-

cordance with law, and the second branch of Boyas’ second

assignment of error is overruled.

The third assignment of error of the cross-appeal is

overruled. In conclusion of law number thirteen, the

board found that the permit does not require compliance

with the criteria described in Ohio Adm. Code 3745-31-05

(A) (1), (2), (3) and (4).

Boyas argues that the plans he submitted with his

application for a permit indicate that erosion control will

be produced by a dam and that the site is under the juris-

diction of the Division of Reclamation of the Department

of Natural Resources and is therefore controlled to the

extent required by the environmental protection laws.

However, the director’s order does not appear to be based

upon Boyas’ compliance with the mining laws of Ohio,

and we are unable to find in the record before the di-

rector evidence that would contradict the evidence pro-

duced in the hearing before the board, which evidence

indicates that drainage and the condition of the overburden

have not been properly provided for in the permit. The

order of the board is therefore supported by reliable,

probative and substantial evidence, and the third assign-

ment of error is overruled.

Ohio Adm. Code 3745-27-06(H) provides that the di-

rector shall not approve any detail plans or specifications

A25

unless he determines that the establishment or modification

in operation of a solid waste disposal facility will not cre-

ate a nuisance or a health hazard, will not cause water

pollution, and will not violate any regulations adopted by

the director under R.C. Chapter 3704. In support of his

fourth assignment of error, Boyas seems to argue that the

findings of fact upon which the board based its conclusion

of law number seventeen are either matters that should

be postponed until the facility is in operation or else are

not supported by the evidence. Boyas submits that conclu-

sion of law seventeen is based upon findings of fact num-

bers twenty-six, twenty-eight, twenty-nine, thirty, thirty-

one, thirty-two, thirty-four, forty, forty-one, forty-two and

forty-three. We reviewed all the findings of fact and the

evidence in support of the findings, and we conclude that,

while Boyas may disagree with the propriety of specific

findings of fact, the board’s order is supported by probative

and reliable evidence. It is apparent that the board found

that the director’s order simply left some matters, such

as the second pit, drainage and erosion control in and

around the secondary cover material areas, to a later time.

Furthermore, the director apparently did not require suf-

ficient test borings regarding the secondary cover ma-

terial and failed to account for unacceptable materials in

determining the amount of overburden materials that was

available at the permit site. The requirements imposed

by the board’s conclusion of law and findings of fact will

simply make the permit comply with the laws and regula-

tions related to solid waste disposal facilities with much

more specificity and much greater assurance to all con-

cerned that the facility will be installed and operated in

a manner that assures compliance with all applicable state

and federal laws. The fourth cross-assignment of error

is not well-taken and is overruled.

A26

For the foregoing reasons, the order of the Environ-

mental Board of Review is affirmed, except to the extent

that we have sustained Boyas’ second cross-assignment of

error.

Judgments affirmed, except to

the extent that the second

cross-assignment of error is

sustained.

STRAUSBAUGH and McCormac, JJ., concur.

DECISION AND ORDER OF THE

ENVIRONMENTAL BOARD OF REVIEW

(Issued April 1, 1983)

BEFORE THE ENVIRONMENTAL BOARD OF REVIEW

STATE OF OHIO

City oF INDEPENDENCE

and Case No. EBR 18828

JOHN J. Nicastro on behalf of

the Save Our INDEPENDENCE

LAND COMMITTEE

and Case No. EBR 18829

JOHN J. Nicastro on behalf of

the INDEPENDENCE HOMOWNERS-

CrTIzENS ASSOC:ATION, INC.

Appellants,

Vv.

Rosert H. MAYNARD, DIRECTOR

OF ENVIRONMENTAL PROTECTION

and

Pete Boyas, INDEPENDENCE

DEVELOPMENT SANITARY LANDFILL,

Boras ExcavaTine, INc.

Appellees.

A28

FINDINGS OF FACT, CONCLUSIONS OF LAW

AND FINAL ORDER

Issued by:

THE ENVIRONMENTAL Boarp OF REVIEW

Thomas M. Phillips, Chairman

James L. Baumann, Vice-Chairman

250 East Town Street

Room 101

Columbus, Ohio 43215

Telephone: 614/466-8950

COUNSEL FOR APPELLANT

CITY OF INDEPENDENCE

William H. Wallace, Esq.

Michael A. Cyphert, Esq.

Thompson, Hine and Flory

1100 National City Bank Building

Cleveland, Ohio 44114

COUNSEL FOR APPELLANT

JOHN J. NICASTRO, ET AL.

Deborah J. Nicastro, Esq.

840 Western Reserve Building

1468 West Ninth Street

Cleveland, Ohio 44113

COUNSEL FOR APPELLEE

ROBERT H. MAYNARD, DIRECTOR

Edward D. Hayman, Esq.

Joan M. Cummings, Esq.

Assistant Attorney Generals

Environmental Law Section

30 East Broad Street - 17th Floor

Columbus, Ohio 43215

A29

COUNSEL FOR APPELLEE

BOYAS EXCAVATING, INC.

Michael T. Gavin, Esq.

Eli Manos, Esq.

Mansour, Gavin, Gerlack & Manos Co., L.P.A.

2150 Illuminating Building

Cleveland, Ohio 44113

This appeal is from the final action taken by the Di-

rector of the Ohio Environmental Protection Agency (the

“Ohio EPA”) in: (a) issuing a permit to install (“PTI”)

for a sanitary landfill; (b) granting approval of plans

to install a sanitary landfill; and (c) granting a waiver,

of O.A.C. 3745-27-06 (I) (4) and (5), to Appellee Mr. Pete

Boyas, Boyas Excavating, Inc. (the “Applicant”). The ap-

proval of the plans and grant of the permit to install a

sanitary landfill were signed by the Director, Appellee

Wayne S. Nichols, effective February 1, 1982. [Certified

Record (“C.R.”) #1.]

The permit site for the proposed sanitary landfill con-

sists of thirty-one (31) acres of land located southeast of

the intersection of Stone and Hemlock Roads in the City of

Independence, Ohio. The area is a quarry presently being

mined for shale by the Hydraulic Press Brick Company

(“Hydraulic”). Hydraulic processes the shale into a

lightweight aggregate product, known as hadite, at facil-

ities located contiguous to the permit site. The existing

pit is approximately 17 acres in size and 225 feet deep.

The application for a PTI lists the usable voiume of the

proposed landfill at 3,787,114 cubic yards with an estimated

life of 8-10 years at a loading rate of 2,750 tons per day and

operating six days per week. The amount of waste to

be accepted is listed as 1,750 tons per day municipal

A30

(63.9%); 500 tons per day industrial (18.2%) and 500 tons

per day commercial wastes (18.2%).

The Appellants are City of Independence, a political

subdivision of the State of Ohio and John J. Nicastro, a

property owner and an elected councilman in the City of

Independence. [Transcript of Proceedings (“Tr.”) IX-

147a-148.] Mr. Nicastro also appeared as a representative

for the Save Our Independence Land Committee and the

Independence Homeowners-Citizens Association, Inc.,

groups consisting of Independence residents. (Nicastro

Tr. IX-149-154.) Each of the Appellants assert that they

will be aggrieved or adversely affected by the final action

of the Director. All Appellants are properly before the

Board and have standing to appeal the Director’s actions.

On February 1, 1982 the Director of the Ohio EPA

issued as final actions, not preceded by a proposed action

or an opportunity to request an adjudication hearing a

PTI, plan approval and a waiver to the Applicant. (C.R.

#1 and 6.) The permit approval indicates that the re-

vised Application (C.R. #3) was received November 30,

1981. The Director caused notice of his final actions to

be published in a newspaper of general circulation in

Cuyahoga County on February 17, 1982. (C.R. #5.) No-

tice of his final actions appeared in the Ohio EPA Weekly

Review for the week of February 16, 1982. (CR. +4.)

Timely appeals to the Director’s actions were filed by the

City of Independence and John J. Nicastro, et al. and the

appeals were consolidated by order of the Board on March

15, 1982. The Appellants’ appeal assigned numerous Ob-

jections and Assignments of Errors that challenged the

reasonableness and lawfulness of the Director’s final ac-

tions, which are summarized as follows:

A31

a. The landfill will constitute a nuisance;

b. the landfill will constitute a health hazard;

c. the landfill will cause or contribute to water

pollution;

d. the landfill is located within the designated

boundaries of the Cuyahoga Valley National Recrea-

tion Area (“CVNRA’’);

e. the landfill use is inconsistent with the ap-

proved reclamation plan for the area issued by the

Division of Reclamation, Ohio Department of Natural

Resources (“Division of Reclamation”) ;

f. the City’s zoning does not permit a landfill in

the area;

g. Peter Boyas (“Boyas”) did not properly close

the Rockside Reclamation Landfill, a landfill hereto-

fore operated under his supervision;

h. Boyas had operated the Rockside Reclamation

Landfill in violation of EPA regulations;

i. the landfill is inconsistent with the area-wide

waste management plans announced by the Cuyahoga

County Board of Commissioners;

j. the area from which cover is to be obtained

contains historic Indian artifacts;

k. the Applicant failed to obtain a surface min-

ing permit from the Division of Reclamation to ex-

cavate cover material;

1, the landfill will unlawfully contribute to air

pollution;

m. the United States Geological Survey shows

the landfill is a sand and gravel pit;

A32

n. the solid waste disposal area is located less

than 200 feet from several streams, and waiver of

O.A.C. 3745-27-06(1) (5) was unreasonable and un-

lawful;

o. the solid waste disposal area is within 1,000

feet of water wells, and waiver of O.A.C. 3745-27-06

(1) (4) was unreasonable and unlawful;

p. air pollution from the landfili will cause a

nuisance;

q. Boyas is incompetent and unqaulified to op-

erate a landfill;

r. the landfill will have adverse social and eco-

nomic impacts upon the surrounding community;

s. there is inadequate access to the landfill;

t. the Cuyahoga County Court of Appeals in the

case of Cleveland Electric Illuminating Company v.

Scapell, 44 Ohio App.2d 13 (1975) has declared com-

mercial enterprises unlawful in the designated area

of the CVNRA; |

u. the Director’s action authorizes alteration and

modification of navigable waters in violation of the

Rivers and Harbors Act of 1899;

v. ‘the United States Department of the Interior,

National Park Service (“Park Service’) has not ap-

proved the access road to the landfill;

w. the required waste traffic access route is via

the Stone Road bridges, which are inadequate;

x. the landfill will utilize property not owned

or controlled by applicant;

A33

y. the landfill permit imposes too many condi-

tions to be valid; and,

z. during the hearing, Appellants raised the issue

that the solid waste disposal area was in the floodplain

of the Cuyahoga River and Hemlock Creek.

Through motion, the Appellants have separately al-

leged that under the doctrine of res judicata, the Board’s

previous general vacation of the Director’s final action

regarding the same permit site prohibited the Director

from proceeding a second time. The Board denied the

Appellant’s Motion by order dated May 11, 1982. During

the course of the hearing the Appellants also raised the

issue as to whether the permit site is within a floodway

or regulatory floodplain in violation of the Ohio EPA’s

regulations.

In addition, the Board received a Motion from the

Applicant to overrule Appellants’ Assignments of Error

numbers: 4, 5, 6, 8, 9, 10, 11, 20, 21 and 22. On May 11,

1982 the Board granted the Motion to Overrule Objection

and Assignment of Error No. 6, regarding the issue of

zoning, since prior cases have held that the Ohio EPA

may proceed with its own delibe-ations notwithstanding

unresolved or contrary zoning applications to the site

under consideration. With regard to the remaining Mo-

tions to overrule, xe Board determined that testimony

would be required to clarify the apparent jurisdictional

disputes and reserved ruling on these motions until after

they were addressed at the de novo hearing. A de novo

hearing was held in this matter commencing September 21,

1982 and continuing for eighteen hearing days. Both

parties presented extensive evidence and submitted nu-

merous exhibits in support of their respective positions.

A34

FINDINGS OF FACT

In summary, the Board is affirming the order in

part and vacating the order in part. No workable leachate

collection system has been designed or is planned for in-

stallation, hence obviously it is inadequate as to the first

pit. The second and succeeding pits likewise have no

provision for a leachate collection system. Generally,

such would consist of a peripheral collector system around

each phase of a plan plus a central collection and disposi-

tion area as well as ready access for maintenance. The

Board has found that the plugging process for the seeps

in the first phase will not work as the enormous settling

characteristics of this deep pit will shear off any paste-on

plugging effort. The testimony overwhelmingly shows

that at least two later phases are planned within the

permitted area in addition to the existing pit. Yet, access

to these phases, the elevations, both initial and final, the

manner of excavation and development, as well as other

elements such as drainage and erosion control, potential

leachate collection systems and the other aspects of a

descriptive plan simply have not been prepared and do

not exist for these phases. Accordingly, although the

permit area is large the plans address only approxiinately

one-third of the permit area and do not address the re-

maining portions. To this extent, the Board finds that

the Director’s decision must be vacated. Finally, there

is no provision in any of the phases for drainage or erosion

control of the stockpiled cover material nor in fact are

the areas depicted in the plans where the stockpiled mate-

rials are to be stored. The testimony establishes that

the area for stockpiling will most likely be on property

not owned by the applicant, the whereabouts of which

is undetermined.

A35

1. Boyas’ first formal application and plans were

submitted to the Ohio EPA’s central office on approx-

imately May 18, 1978. (C.R. #156.) A number of defi-

ciencies were noted by Mr. Redman (McKinney Tr. XI-

14-16) and the plans were returned; several other ex-

changes followed. [McKinney Tr. XI-17; C.R. #145; C.R.

#146; McKinney Tr. XI-18-21.] | For example, the Appli-

cant was advised that the distance between the landfill

and the residential dwellings on Hillside Road was less

‘than the recommended minimum 1000 foot isolation dis-

tance. (McKinney Tr. XI-18.) A response was submitted

by Mr. Coburn dated February 22, 1979. (C.R. #142.)

2. Further revision to the working drawings and

attendant documents elicited additional concerns, by Clark,

in the form of criticisms and questions regarding inade-

quately addressed issues in the plans. [Clark Tr. I-33-108;

C.R. #44, 78 and 109; McKinney Tr. XI-34-37.] In par-

ticular, Clark was concerned that the suitability and avail-

ability of cover material, proper zoning, proper access

and failure to design the installation of a leachate collec-

tion system at the bottom of the pit as recommended

were not satisfactorily addressed. (Clark Tr. I-107-108,

I-175.) Clark’s review of the application was confined

to the technical merits of the plans. (Clark Tr. I-111-112.)

3. On May 1, 1980 after the Director’s determination

that there was significant public interest in the proposed

landfill, a public meeting was held. Attended by local,

state and federal government representatives and private

citizens, the witnesses presented oral and written state-

ments seeking disapproval of the application. [See C.R.

#11 (Transcript of the Public Meeting).] Numerous

additional written comments and governmental resolu-

tions voicing disapproval of uses inconsistent with plans

for a national park were also submitted by the May 17,

A36

1980 deadline for the submittal of written comments.

(C.R. #12, 14, 15, 16, 17, 18, 19, 20, 22, 24, 25, 26, 27, 28,

29, 30, 31, 32, 33, 35, 36, 37, 38, 39, 40, 106, 107 and 108.)

4. Notwithstanding the recommendation for deferral

by the Northeast District Office of Ohio EPA (“NEDO

EPA”) Section Chief and the testimony at the public meet-

ing, plans for the landfill, as resubmitted on April 8, 1981,

were approved by the Director on August 10, 1981. (C.R.

#7.)

5. The permit site is located within the Cuyahoga

River Valley and can be characterized as wooded. A wide

diversity of flora and fauna have been identified or are

expected to occur on the site. (Exhibit 18 at 45.) Except

for a small section at the southeasterly area of the permit

site (C.R. #6 at Sheet 4/18) all of the vegetation in the

southern area of the permit site will be removed. (Coburn

Tr. II-77-85; XV-31-33, 36.)

6. There are two streams within the permit site area.

(See Exhibit 18 at page 30, Figure 3-4.) Hemlock Creek

courses along the northwest side and the Easterly Stream

flows through the southern portion of the permit site. (See

Photo Exhibits 70, 71 and 72.) The Easterly Stream is a

tributary to a larger stream (the “Southerly Stream”) to

the south which empties to the Cuyahoga River. (See Ex-

hibit 18 at pages 12-18.)

7. The water quality of Hemlock Creek is classified

as “good,” and provides habitat for a number of aquatic

organisms. The Easterly Stream exhibits excellent water

quality with no significant organic pollutants and like the

larger Hemlock Creek, the Easterly Stream provides habitat

for several genera of organisms. (Exhibit 18 at 19-22.)

Due to the biota present, the Easterly Stream on the permit

site is perennial. (Collins Tr. V-177.)

A37

8. The Cuyahoga River is the receiving water for

Hemlock Creek and the Easterly Stream (via the South-

erly Stream) and in the. absence of the landfill these

streams would be expected to provide high quality water

to the Cuyahoga River. (Exhibit 18 at 28.)

9. The Easterly and Southerly Streams may be ad-

versely impacted by the construction of the landfill. The

Applicant will completely remove and relocate the Easterly

Stream into a drainage ditch. (Collins Tr. III-180.) The

relocation of the Easterly Stream and removal of cover

material may cause an increase in water temperature,

soil erosion, and in creased sedimentation which would have

a harmful effect on the biota of the stream, perhaps killing

them outright. (Collins Tr. III-182-185.) There are no pro-

visions in the detail plans to control run-off to, or sedi-

mentation of, the Southerly Stream on the adjacent prop-

erties which are a source of cover material. (Hasbrouck

Tr. [X-16.) Also lacking is a drainage plan for the cover

material stockpile areas (Coburn Tr. XV-13) and provi-

sions for erosion or run-off control. (Coburn Tr. XV-44.)

10. The quarry and the remainder of the permit site

are located within the Cuyahoga River Valley. (Exhibit 18

at page 3.) The principally mined rock-stratigraphic unit

of this site is the Chagrin Shale member of the Ohio shale

formation of the Devonian System. The Chagrin shale

is overlain by the Bedford shale formation of the Missis-

sippion system. The Bedford shale is interbedded with

siltstone and sandstone (e.g., the Euclid Sandstone mem-

ber) and outside the quarry area, the bedrock is covered by

a veneer of glacial sediments. (C.R. +164.) According to

bore hole data supplied in the permit application, the glacial

materials are a mixed composite of clays, sands, and gravels

of varying thicknesses and lateral extent. These may

A38

appear as units of mixed material or lenses of sand or

gravel or clay. (Exhibit 18 at 3-4.)

11. Although generally believed to be relatively im-

permeable, a recent study of the Chagrin Shale by Broad-

head, et al. (Exhibit O) discloses that this formation con-

tains seams or laminae of silt with secondary microfractures

that may act as permeable conduits and reservoirs for the

migration of liquids, gas and leachate. (Collins Tr. III-174-

175; See also Exhibit 18 at 7-8.) The Banks Report, sub-

mitted in the Application (C.R. #3 at Exhibit 6A) confirms

the existence of these fractured, silt zones. None of the

Ohio EPA geologists who commented upon the suitability

of the permit site were familiar with the Broadhead study

published January, 1982, and did not consider the effect

of the microfracture system on leachate or methane gas

migration. These microfracture systems are detectable by

precise “down hole” instruments or microscopic analysis

of thin core sections. (Exhibit 18 at 7.) Such information

was not provided by the Applicant. (Collins Tr. III-174.)

On the basis of the most recent studies of the Chagrin

shale, the Environmental Research Group, Inc., concluded

that the permit site had severe limitations and was not

presently suited for use as a landfill since the migration of

groundwater, leachate and methane gas was highly prob-

able. (Collins Tr. III-175-179; V-220; 234-236. Exhibit 18

at 8-11.) Conversely, Herron Testing Laboratories (“Her-

ron”) prepared a report for Boyas which concluded the

permit site was feasible for a properly designed sanitary

landfill and that adverse environmental impacts can be

minimized by the provision of properly designed and con-

structed protective and drainage mechanism and by care-

ful adherence to good sanitary landfill operational practices.

(Exhibit 6 at 22.)

A39

12. Bore holes completed by Herron in 1978 for Boyas

consisted of eight bore holes from 29 to 49 feet in depth al-

though the existing excavation for fill is 244 feet deeper

than the higher elevations of the permitted area. Zones of

water saturation, e.g., groundwater, were encountered in

six of the eight borings at depths from 6.5 to 39.0 feet

below ground surface. (Exhibit 18 at 5; See C.R. #3 at

“Exhibit 6.”) The Herron Report also confirms that “. . .

with the exception of test positions ‘G’ and ‘K’ groundwater

or seepage was encountered at all test positions within the

proposed areas of development.” (Exhibit 6 at 9; See also

McKinney Tr. XII-26.) The report prepared, in 1969, by

Professor Banks, for Hydraulic Press, also indicates the

probable occurrence of water at the permit site and recom-

mends that “. . . provision should be made for the probable

necessity of removing accumulating water as the pit is

deepened.” (C.R. #3, Exhibit 6A at 17.) The Applicant,

nor the Ohio EPA, did not test the groundwater for chem-

ical quality and did not present flow data, a groundwater

contour map or other hydrogeological data. (Exhibit 18

at 5.)

13. Observations of the site indicate that a pond of

water is present in the lower-most section of the quarry

which must be continuously removed through pumping.

(Exhibit 18 at page 5.) Even in periods without rain,

various areas of the quarry walls were observed as wet,

indicating groundwater seepage. (Id.; See also, Photo Ex-

hibits 98 to 104; Anderson Tr. VIII 136-141.) The fact

that residential water wells exist within 1000 feet of the

quarry confirms there is potable groundwater in the area.

As indicated in the Herron Report (C.R. #3, Exhibit 6

at 4) there are also two other water wells within 1500 feet

of the permit site. These water wells were not analyzed

by the Applicant or the Ohio EPA.

A40

14. The sudden cessation after many years of dewater-

ing operations in the quarry prospectively will change

any cone of depression that exists in the groundwater

table for the area due to this pumping operation. The

Herron Report suggested that the groundwater was perched

but no tests were conducted to determine the extent

of those water zones. (McKinney Tr. XII-29.)

15. Although requested by Mr. Clark (C.R. #44)

the Applicant did not provide permeability tests of the

floor and sides of the quarry. (C.R. #43 and 53.) This

information is a critical aspect, bearing on the design of

the landfill. (Steiner Tr. II-139.) As a result there was in-

sufficient hydrogeologic and subsurface hydraulic data

presented by the Applicant, or the Ohio EPA, to accurately

determine the impact of the landfill on the local ground-

water resources. (See Steiner Tr. II-131, 192, 198.)

16. The property which is the subject of the landfill

and the adjacent areas where secondary cover material

would be obtained is within the recognized boundaries of

the CVNRA although the respective property is not a

high priority for acquisition. (See Exhibit 20; Albert Tr.

IV-4-5, 27.)

17. The land use of the area surrounding the permit

site varies from residential to educational, recreational and

commercial. The closest home is approximately 800-1000

feet from the landfill and the air in the neighborhood is

reasonably clean and odorfree. (Semik Tr. VII-208; 213-

214.)

18. The City’s School Board owns and operates land

laboratory facilities approximately 2300 feet from the per-

mit site. ( Guzi Tr. VI-151-154.)

19. The Berger Preserve is located on the south side

of Hillside Road and is approximately 875 feet from the

A41

permit site. (Guzi Tr. VI-176.) The School Board uses

the Berger Preserve for educational purposes. (Guzi Tr.

VI-159-160.)

20. The School Board also operates. an elementary

school on Hillside Road southwest of the permit site. (Har-

per Tr. VIII-108.) Part of the City’s middle school facility

is located approximately 1500 feet northwest of the permit

site. (Harper Tr. VIII-101.) The School Board expressed

opposition to the proposed landfill because of the adverse

effects of the land laboratory. (Guzi Tr. VI-168.)

21. On September 22, 1978, the Board issued its Find-

ings of Fact And Final Order on Remand in City of Gar-

field Heights, et al. v. Ned E. Williams, Case No. EBR

77-6-8-9-10-16-17, a case involving a contested permit for an

extension of the existing Rockside Reclamation landfill

in the City of Garfield Heights. The Rockside Reclamation

landfill currently is a source of leachate and methane gas.

(Photo Exhibits 8 thru 16; Steiner Tr. III-45-53.) The

NEDO EPA has indicated that the Rockside Reclamation

landfill has not been closed properly. (C.R. +167; Has-

brouck Tr. XVI-190.) Peter Boyas was the operator and

executive officer of Rockside Reclamation landfill until

his dissassociation from the corporation. The operator’s

reputation was challenged under O.A.C. 3745-27-06 (H) (2)

and (3) on the basis of his past association with Rockside

Reclamation landfill, but the Agency appears to have

made a determination the Applicant will be competent to

operate the proposed landfill, notwithstanding the prior

operations.

22. The purpose of the detailed plans are to integrate

the engineering design with the physical features of the

site and to provide a clear description of the construction

and operation of the landfill. In reviewing an application

A42

for a permit to install a sanitary landfill the Director is

obligated to abide by the parameters set forth in O.A.C.

3745-31-05 and 3745-27-06 in issuing the permit. Section

3745-31-05 defines the criteria by which the Director is

to base his decision. The provision, mandatory in its

language, states in part:

(A) The director shall not issue a permit to in-

stall unless on the basis of the information appearing

in the application and information gathered by or

furnished to the Ohio environmental protection agency,

he determines that installation or modification and

operation of the new source of air pollutants, new

source treatment works, or solid waste disposal facility

will:

(1) Not prevent or interfere with the attain-

ment or maintenance of applicable ambient water

quality standards or ambient air quality stan-

dards; and

(2) Not result in a violation of any applicable

laws including, but not limited to, the laws gov-

erning:

(a) Effluent standards adopted by the

director or the administrator of the United

States environmental protection agency

(b) Emission standards

for New Stationary Sources” adopted by the

administrator of the United Siates environ-

mental protection agency; and

(3) Employ the best available technology:

and

A43

(4) Not cause significant degradation of the

air or water, if at the time of installation or modi-

fication either the ambient air or the receiving

water meets or is better than applicable air or

water quality standards.

Pursuant to Section 3745-27-06(A) of the O.A.C::

{[S]uch detailed plans, specifications, and information

shall be drawn up in a manner acceptable to the Di-

rector or his authorized representative in detail suffi-

cient to allow a clear understanding and intelligent

review thereof, and to provide assurance that the site

or facility is designed and will be operated in accor-

dance with these chapters, 3745-27 and 3745-37. The

method of operation of the site or facility shall be

described by the detailed plans, specifications and in-

formation with such detail and clarity as to be readily

understandable by operating personnel at the facility.

23. Based upon the totality of the evidence submit-

ted, the detailed plans do not measure up in an acceptable

manner in several materiai respects.

24. As a normal occurrence the deposition of munic-

ipal, industrial and commercial wastes will result in the

production of leachate at this site. (Exhibit 24; Exhibit

18 at 8; Steiner Tr. ITI-25-34; Exhibit 7 at 11-20; Exhibit

18 at 9.) The plans did not incorporate a state of the

art leachate collection system or a system comparable to

those currently being installed at other landfills, but in

fact lacked any workable leachate collection system.

(Steiner Tr. ITI-146; Clark Tr. I-173-174.)

25. The sump pump system and 54 inch steel pipe

designed in the plans (C.R. #6, Sheet 7/18 and 7A/18)

is inadequate as a leachate collection system. (Clark Tr.

A44

I-173-175; Exhibit 7 at 29 and 32; Steiner Tr. II-134, 167.)

This system was designed primarily as a means to remove

any accumulated surface water that falls into the pit

and is not a means for the removal of leachate. (Has-

brouck Tr. VII-80.) Mr. McKinney’s description and ex-

planation of the operation of the sump pump and 54 inch

corregated pipe (Tr. XIII-60-62; 69-74; Exhibit 116) is

quite different from the detail plans. [C.R. #6 at Sheets

7/18 and 7/184, and Mr. Coburn’s description, Tr. XV-

120-121, 125.] No witness could testify with certainty

why the sump pump had been moved from the bottom

of the pit to a fixed position at elevation 610 M.S.L., 110

feet above the existing excavation’s bottom and the lowest

level of planned fill. [Coburn Tr. XV-127.} See also,

Mr. Coburn’s conflicting recollections at Tr. XV-122-125.

The plans contain insufficient details as *., how leachate

will be addressed in the second and succeeding pits

planned for other portions of the permit site. (Coburn Tr.

XV-138.)

26. The settling basin, located at the northeast corner

of the permit site, is an important part of the plans. (Has-

brouck Tr. VII-38.) The purpose of this settling basin

would be to collect surface water or water that would

be pumped out of the working area of the pit to be dis-

charged to the southerly stream if “unpolluted” or trucked

away to a treatment facility if contaminated. (McKinney

Tr. XIII-39-40.) There is no provision for monitoring

the accumulation of water in this settling basin or for

its subsequent disposal. The plans do not describe in

an acceptable manner the method for disposing of con-

taminated water or by what standards this determination

is to be made. All but a small portion of the seitling

basin is located on Hydraulic Press property outside the

A45

permit site which is not owned by the Applicant. (Coburn

Tr. XIV-24; Hasbrouck Tr. VII-37, 88; See, C.R. #6 at

Sheets 4/18, 7/18 and 7A/18.) Similarly, a portion of

the erosion control dam is located partially off the permit

site and no alternate provision is provided in the detail

plans if Hydraulic Press does not permit the use of its

property for the construction and operation of a settling

basin. (C.R. #6 at Sheet 4/18.)

27. Leachate generation is an undesirable but un-

avoidable adverse byproduct of sanitary landfilling. (Ex-

hibit 18 at 8; Exhibit 2 at 1-2; See Clark Tr. I-103.) This

landfill will result in the production of leachate, probably

containing heavy metals and toxics. (Steiner III-25.)

The volume of leachate produced will depend on the

amount of precipitation, the moisture content of the refuse,

the biological processes of degradation, infiltration and

evaporation rates. (Exhibit 18 at 8; Exhibit 24.) The

Cleveland area has a high average precipitation rate of

approximately 36 inches per year. Although disputed, Dr.

Steiner testified that calculation techniques used by the

U.S. EPA estimate volumes of leachate produced each day

at the proposed landfill between 41,800 to 145,000 gallons.

(Exhibit 24.) Since there is no leachate removal device

for the lower 90-100 feet of the landfill the leachate must

collect at the bottom and saturate the refuse or migrate

out of the quarry into possible water sources, or the nearby

Cuyahoga River. (Steiner Tr. III-25; Exhibit 18 at 9.)

Migration of leachates into the groundwater table would

have a significant and long-term adverse effect on public

health.

Although requested by the Ohio EPA, no permeability

test data was submitted regarding the floor and sidewalls

of the quarry. (Coburn Tr. XIV-78; Steiner Tr. II-139.)

A46

This information is necessary to determine the potential

for vertical or lateral migration of leachate or methane

gas. (Steiner Tr. II-156.) From the testimony, evidence

and site visit, it is evident that water is infiltrating the pit

in several areas. Active infiltration was confirmed by

Oho EPA’s geologist. (Khourey Tr. XVI-i07, 108, 125.)

Where water infiltration was encountered the Applicant

proposes to seal off these areas by point placement on the

sidewalls of a ten-foot impermeable barrier of clay. (Mc-

Kinney Tr. XIII-76-77.) No data was submitted show-

ing the permeability, particle size or compaction ratio of

the cover material or the material to be used as a liner or

plug against water infiltration. (Steiner Tr. II-148-149.)

The amount or frequency of the appearance of sandy par-

ticles in the over-burdened soil would affect the perme-

ability of the plugs used to cut off water intrusion, (Co-

burn Tr. XV-130.) The lack of soil test data leaves unre-

solved the question of the suitability of these soils as cover

materials and use as plugs.

Since there is no footing for the clay seal and due to

the expected settlement of the refuse underneath (Coburn

Tr. XV-100; Steiner Tr. III-149), a ten-foot seal will, in

all probability, sheer vertically at the wall interface.

(Steiner XVII-151-152.) Loss of the clay seal will permit

water to infiltrate the refuse, generating leachate, even-

tually saturating the landfill since there is no leachate

removal system below elevation 610 M.S.L. The accumu-

lation of leachate in this pit without positive drainage will

increase the pressure on the quarry sidewalls and enhance

the potential for leachate migration. (Exhibit 24.) Coupled

with the lack of any leachate removal system, the design

of the clay seal is inadequate and does not represent the

best available landfill technology.

A47

28. Although there is some information in the plans

regarding the development of the present quarry area

(C.R. #6 at Sheet 9/18), there is virtually no information

regarding the development and operation of the second

and succeeding pits to the south of the present pit. The

relationship of the continued shale operations of Hydraulic

Press and landfilling operations in the same area is not

defined. The witnesses from the Ohio EPA were unsure

of the direction of future development. Mr. Hasbrouck

thought that the activities of Hydraulic Press and Boyas

would all be in one enlarged pit. (Hasbrouck Tr. VII-47-49.)

Mr. Coburn, however, indicated it was the intent of Mr.

Boyas to prepare a succession of separate pits separated

by a “highwall” (Coburn Tr. XIV-199) for Hydraulic

Press’ operations. (Coburn Tr. XIV-194-202.) As far as

the Ohio EPA was concerned there was nothing in the

plans or Application which indicated how the work would

be sequenced or whether the two operations would compete

for the same access roads. (Hasbrouck Tr, VII-51-52.)

Mr. Hasbrouck conceded that the Ohio EPA does not

know the plan for the development of the succeeding pits

with respect to their depths, road development, or final

elevation after landfilling.

29. The amount and quality of daily, intermediate and

final cover material is an important aspect of a landfill’s

design. A material, such as ripped shale, sand or gravel,

with a high permeability is unsuitable as a cover material

since it would permit water to freely infiltrate the refuse

as well as allow the escape of odors. Boring Logs “A,”

“B,” “C,” “D,” “F” and “B-L” submitted by Herron Test-

ing (C.R. #3 at Ex. 6) indicate that the overburden soils

in the southern portion of the permit site consist of brown,

gray and reddish-brown silty clays, sand, gravel and rock

or shale fragments. (For location see Sheet 4/18 of the

A48

Plans, C.R. #6.) Although the silty clays are acceptable

for cover material, sand, gravel and rock or shale frag-

ments are not acceptable.

30. The quaitity of acceptable silty clay cover ma-

terial on and near the permit site was disputed. The Ohio

EPA calculated that the Applicant would need 850,000

cubic yards of cover material for this project. (CR. #2

at page 11.) Both the Applicant and Ohio EPA agreed

that the quantity of the overburden materials on the permit

site would be only 700,000 cubic yards (C.R. #3 at Ex.

2) or 670,000 cubic yards (C.R. #2 at 11; C.R. #3 at page

APP-F-4), respectively. Mr. McKinney calculated that the

primary area would yield only 573,437 cubic yards. (Mc-

Kinney Tr. XII-89.) Neither the Applicant nor the Ohio

EPA calculated the quantity of acceptable silty clays

available from the permit site overburden as contrasted

with the unacceptable sand, gravel or rock and shale frag-

ments noted on the boring logs. The mixing of the differ-

ent overburden soils would not be reliable without a de-

termination of permeability, which was not done.

31. While there are overburden soils on the parcel

west of the permit site, the boring logs indicate a composite

of silty clays, sand, gravel, shale or rock fragments and

sandstone. [C.R. #3 at Ex. 6A (e.g., Borings B-6, B-8, B-

9, B-10, B-11 and B-12).] No calculations were made by

the Applicant or the Ohio EPA to demonstrate the quantity

of acceptable silty clays from this area’s overburden. It

was assumed that everything was silty clay, which is con-

trary to the boring logs.

32. Limited test borings were provided by the Ap-

plicant for the “secondary cover material” area on the

Hydraulic Press property to the east of the permit site.

Three boring logs were made in 1969 by Professor Banks.

A49

(C.R. #3 at Ex. 6A.) Borings H-2 and H-3 which are

located within the secondary cover material areas (C.R.

#6 at Sheet 4/18) show brown and gray clays, pieces of

rock, gravel and gray shale. No acceptable silty clay is

indicated on these two boring logs. Boring H-1 is not

located in the designated secondary cover material areas.

(See C.R. #6 at Sheet 3/18.) The Applicant did not dem-

onstrate through sieve analysis, permeability tests, or

otherwise that the composite materials in the secondary

areas were acceptable.

33. There is no information in the Application or de-

tail plans regarding drainage and erosion control in and

around the secondary cover material areas. (Coburn Tr.

XV-13, 44; Hasbrouck Tr. XVI-185.) No consideration was

given to the effect of the cover material storage areas on

nearby streams. (Hasbrouck Tr. XVI-185.)

34. The plans do not define the locations or final

depths of the second and succeeding pits to be dug in the

southerly portion of the permit site. Due to the depth

of the existing pit and unknown depths of the pits in the

southern area, there will be differing rates of settlement.

(Steiner Tr. II-165.) The differing rates of settlement will

breach the integrity of the final cover permitting the

ponding or infiltration of surface waters which will lead

to the generation of additional leachate. (Steiner Tr. II-

159-160, 165.)

35. Upon examination of all the evidence presented,

the Applicant’s plans do not provide reasonable assurance

that the location and operation of this landfill will not

cause or contribute to groundwater or surface water pol-

lution.

36. The Board notes that leachate is highly polluted,

containing substances hazardous to human health and that

A50

the inadequacy of the leachate collection system signifies

a future health hazard resulting from water contamination

both above and below surface.

37. Landfills have inherent problems of odor, noise,

dust, blowing debris and vectors and, thus, have the po-

tential for presenting nuisances to adjacent property.

(Clark Tr. I-94; Exhibit 2 at page 1.) Not all of the prob-

lems associated with landfills have a method of control un-

der current technology and it is difficult to provide as-

surances that any landfill will not be a nuisance when in

operation. (Clark Tr. I-94; Hasbrouck Tr. IX-142.)

38. Due to potential nuisances, governmental bodies

throughout the United States have implemented laws or

regulations requiring a minimum isolation distance of 500

to 1320 feet to occupied dwellings. (Exhibit 2 at 9-10.)

Literature sources recommend isolation distances of 500

to 1000 feet. (Exhibit 2 at 10; Steiner Tr. III-87.) Although

Ohio regulations do not require it, the NEDO EPA has

strongly recommended a minimum isolation distance of

1000 feet (Clark Tr. I-94-95; 142) or has used the 1000

foot minimum isolation distance as a general practice.

(Hasbrouck Tr. LX-122.)

39. There are at least 12 homes on Hillside Road

within 1000 feet of the permit site and, at some time, the

active working face. (See, Exhibit 1 and E.)

40. Notwithstanding operation in accordance with

the detail plans, the proposed landfill may be offensive

to the senses, may interfere with the comfortable enjoy-

ment of life and adjacent property, and may affect a con-

siderable number of persons by reason of the emission of

noise *:om vehicles and equipment coming to, leaving

and working at the permit site. (E.g., Steiner Tr. ITI-14-16,

20, 152; Exhibit 7 at pages 6-8; Collins Tr. ITI-194, 197-199;

A51

Exhibit 18 at pages 71-74; Exhibit 2 at 6-8.) Landfill

noise levels can be objectionable and could adversely affect

adjacent residents and visitors to the park. (Steiner Tr.

III-16-20.) Although the expected noise levels would be

attenuated when the equipment was down in the pit, Mr.

Hasbrouck testified that construction noises at the surface

from landfill equipment could be objectionable. (Has-

brouck Tr. [X-61.) The Applicant has not demonstrated

an intent to utilize sound-suppressing equipment (Coburn

Tr. XIV-107) and did not prepare or provide any noise

studies, monitoring or calculations. (Coburn Tr. XV-93-94.)

41. It is well documented that a landfill attracts sea-

gulls and pigeons in this area of the country. (E.g., Noice

Tr. VI-186; Harper Tr. VIII-80, 83; Guzi Tr. VI-164; Ex-

hibit B at 6.) The Applicant’s witness confirmed the

attraction of the seagulls and that the Applicant has no

plan to control this problem. (Coburn Tr. XIV-102-103.)

42. The method control of blowing debris (4 ft. snow

fences—C.R. +6 at Sheet 9/18) at the proposed site is

not the best available current technology. (Coburn Tr.

XIV-175; Exhibit 7 at 5.) Although landfilling in the

depths of the quarry will mitigate blowing debris until

operations reach the rim, debris from the garbage trucks

using the site can be expected. (Exhibit 7 at pages 5-6;

Steiner Tr. III-140, 152; Mansdorf Tr. IV-109.) Mr. Has-

brouck testified that there will be occasions when litter

would blow from this site. (Hasbrouck Tr. XVI-158, 165.)

43. Methane gas production could create a serious

hazard depending on the volume of gas generated and

degree of lateral and upward movement. Exhibit 24 at

at page 8.) The detailed plans do not include a method

for the collection or venting of the methane gas that will

inevitably be produced.

A52

CONCLUSIONS OF LAW

1. Upon appeal the standard of review applied by

the Board, pursuant to 3745.05 of the O.R.C., is whether

the Director’s actions were reasonable and lawful, as deter-

mined from the totality of the evidence presented before

the Board upon the de novo hearing. Citizens Committee

to Preserve Lake Logan v. Williams, 56 Ohio App.2d 61,

381 N.E.2d 661, Franklin County (1977). In elucidating

this standard the Court stated:

Where the evidence demonstrates that the action taken

(granting the permit) by the director is reasonable

and lawful—that is, the evidence reasonably supports

the director’s action—the board must, in accord with

R. C. 3745.05, affirm the director even though it might

have taken different action (denied the permit). The

board initially does not stand in place of the director

upon appeal and is not entitled to substitute its judg-

ment for that of the director, but is limited to a deter-

mination of whether the action taken by the director

is unreasonable or unlawful. Where the evidence

demonstrates that it is reasonably debatable as to

whether the permit should be granted, the board’s

duty is to affirm the director, rather than merely to

substitute its judgment for his. If the board properly

determines the action of the director to be unreason-

able or unlawful, it then possesses power similar to

that of the director, by way of vacating or modifying

| the action of the director to implement the appropriate

action in accordance with the evidence. (Citizens Com-

mittee v. Williams (1977), 56 Ohio App.2d 61.

2. Some limited weighing of the evidence is required

in order to determine whether an order is reasonable, par-

ticularly when it involves the determination of whether

A53

a nuisance exists or a health hazard is created. City of

Garfield Heights v. Williams, 77AP-449-454 (Franklin Cty.

App., Unreported, Sept. 27, 1977).

As stated by the Court in Lake Logan:

“Unlawful” means that which is not in accordance with

law .... [and] “unreasonable” means that which is

not in accordance with reason, or that which has no

factual foundation. It is only where the board can

properly find from the evidence that there is no valid

factual foundation for the director’s action that such

action can be found unreasonable. Accordingly, the

ultimate factual issue to be determined by the board

upon the de novo hearing is whether there is a valid

factual foundation for the director’s actions and not

whether the director’s action is the best or most ap-

propriate action, nor whether the board would have

taken the same action.

3. The Director in determining whether to issue a

PTI may consider the social and economic impact of

granting or denying the PTI, O.A.C. 3745-31-05(B), but

he is not required to do so. Little Miami v. Williams, 76-

AP-285, 292 (Franklin Cty. App., December 23, 1976); Kuz-

man v. McAvoy, No. EBR 18793 (April 15, 1982).

4. The Director has discretion whether to consider

and evaluate separate and distinct governmental interests

such as those that are within the responsibility of local

zoning officials, commissions, boards of appeal, other po-

litical subdivisions, and agencies of the State of Ohio

or the United States of America in determining whether

to issue a PTI. City of Moraine v. McAvoy, EBR 79-

31-32, October 12, 1979; City of Garfield Heights v. Wil-

liams, No. 77AP-449, et al. (Franklin County App., Sep-

tember, 1977).

A54

5. The Director is not required to consider the separate

governmental interests of the United States of America in

establishing the Cuyahoga Valley National Area (CVNRA),

the Division of Reclamation, Ohio Departmental of Natural

Resources in supervising surface mining permits or the

zoning established by the Council of the City of Inde-

pendence in determining whether to issue a permit to in-

stall a solid waste disposal facility. City of Moraine v. Mc-

Avoy, EBR 79-31-32; Garfield Heights v. Williams, No.

77AP-499.

6. The Ohio EPA does not have jurisdiction to change

or affect local zoning by the issuance of a permit. Instead

the permitted use continues to be subject to local zoning.

That is not to say that the Director cannot take local zon-

ing into consideration in determining whether a permit

should be granted or whether action or hearings on a permit

application should be stayed until local zoning is deter-

mined elsewhere. The Director is not required to hear an

application for a permit where granting of the permit

will in all likelihood be futile because of local zoning con-

flicts. City of Garfield Heights v. Williams, Supra. See

also, Hulligan v. Board of Zoning Appeals, 59 Ohio App.2d

105, 392 N.E.2d 1272 (Lorain Cty. 1978). The fact the

Director chose to review the permit is not in itself un-

reasonable.

7. Based on the totality of the evidence presented in

the Certified Record and in the de novo hearing, the Board

finds that the proposed landfill will not create a nuisance.

This conclusion is premised upon the consideration of the

topography of the area; the isclation of the solid waste

disposal site from residential structures and areas used

by the visitors of the CVNRA; the disruption of the area

by shale mining and hadite processing; and the close proxi-

A55

mity of industrial and commercial enterprises to the site

coupled with the assumption the applicant will comply

with the PTI and all other applicable rules and regulations.

In arriving at this conclusion the Board has tried to

balance the right of a person to use and enjoy his property

for any purpose he sees fit with the right that one is to use

his property so as not to unreasonably injure the property

or rights of his neighbors. The deleterious effects of a sani-

tary landfill are not without notice by the Board. The

Board has attempted to determine the reasonableness of the

action by weighing out the prospective harm. To establish

a nuisance the evidence must demonstrate:

.. any thing which is injurious to human health or

offensive to the senses; interferes with the comfortable

enjoyment of life or property; and affects a community

neighborhood, or any considerable number of persons

(although the extent of annoyance or damage inflicted

upon individual persons may be unequal). O.A.C.

3745-27-01 (N)

The test whether the proposed landfill constitutes a nui-

sance is whether reasonable persons would objectively

regard the establishment of the proposed landfill as being

unreasonable. It is the opinion of this Board that com-

pliance with the PTI will provide protection against the

creation of a nuisance. In addition, sufficient remedy to

the creation of nuisance is available by filing a complaint

pursuant to O.R.C. 3745.08. The Board finds that the

dust, noise, odors, vectors and blowing debris are con-

trollable and will not be injurious to human health or

offensive to the senses, or interfere with the comfortable

enjoyment of life and property or interfere with the use

and enjoyment of surrendering property if operation of

A56

the landfill is in accordance with the PTI and applicable

laws and regulations pertaining to operation.

8. Pursuant to O.A.C. 3745-27-06 (H) (2) and 3745-27-

06(H) (3), respectively, it is unlawful for the Director to

approve any detailed plan unless he determines in the

case of plans submitted by a person who has previously

operated a solid waste facility, such person has operated

the facility in accordance with applicable provisions of

O.R.C. Chapter 3734 and O.A.C, Chapter 3745-27, and fur-

ther that the person identified as the operator of the solid

waste disposal facility is competent and qualified to op-

erate the solid waste disposal facility in accordance with

O.R.C. Chapter 3734, O.A.C. Chapters 3745-27 and 3745-37.

It is the opinion of the Board that although the operator’s

capability to operate the landfill in a lawful manner is

disputed, the Agency has evaluated the operator’s com-

petence and made a judgment in favor of the operator.

The Board will not substitute its judgment for that of the

Agency where the Agency is fully aware of the operator’s

past record.

9. As required by O.A.C. 3745-27-06 (H) (4), it is un-

lawful for the Director to approve any detail plans unless

he determines that the solid waste disposal facility will

be capable of operation in accordanc with Regulation

3745-27-07, 3745-27-08 and 3745-27-09.

10. The Board finds that the failure to incorporate a

leachate collection system utilizing best available tech-

nology in the plans will create a health hazard or cause

water pollution in violation of Section 3745-27-07 (H) (4)

which the Director has a responsibility to prevent. In City

of Garfield Heights v. Williams, 77AP-449-454, the Court

noted that review of plans for the expansion of landfill

operations is dependent upon expert testimony that indi-

Sammi i CEE

A57

cates the engineering plans are sutticiently Clear aria Guirect

for iritelligent review by the Director. A permit to install

a sanitary landfill that is based upon plans, specifications

and information lacking sufficient detail, to provide a clear

understanding for intelligent review to assure that it is

designed and will be operated in accordance with O.A.C,

3745-27-06, is unlawful. The expert testimony presented

in the de novo hearing regarding the adequacy of these

plans verified that the plans failed to comply with this

test. The testimony, plans and evidence demonstrated

gross inadequacies of the plan for the proposed permit

to install a sanitary landfill. The Board finds that the

proposed landfill will generate leachate presenting a sub-

stantial health hazard as well as a significant threat to

groundwater resources and is not capable of operation in

accordance with O.A.C. 3745-27-08 (I).

11. The Director shall not approve the detailed plans

if he determines the sanitary landfill is located in a flood-

way as prohibited by O.A.C. 3745-27-06(H) (5), or is not

within a regulatory floodplain outside of the floodway

as prohibited by O.A.C. 3745-27-06(1) (5). The evidence

demonstrates that the landfill is not within the floodway,

but it is located within the regulatory floodplain. An

examination of the topography indicates there is a sixty-

foot elevational difference between the landfill and the

stream which mitigates the threat posed by a flood to

the landfill. However, leachate migration in the same

area does pose a serious threat to Hemlock Creek in the

absence of a properly controlled leachate collection sys-

tem. The plans call for the placement of “innocuous non-

solid materials,’ a euphemism for construction wastes,

within the 200-foot stream protection zone provided for

by O.A.C. 3745-27-06(I) (5). These materials are highly

A58

permeable and it can be expected that leachate will mi-

grate from the landfill through these materials in the

direction of the stream. The accumulation of leachate in

the landfill will create pressure on the undisturbed eastern

barrier, earlier identified as chagrin shale containing frac-

tured silt zones conducive to the migration of liquids and

gases, that exists between the landfill and the stream.

Sheet ten of the detailed plans is an index to the site

cross section which indicates that the undisturbed eastern

barrier is at most approximately sixty to seventy feet

in width. The accumulation of leachate in the landfill

will exert enormous pressure on the east rn barrier such

that there exists a substantial threat of le ‘ate migration

into Hemlock Creek.

12. Pursuant to the requirements of O.A.C. 3745-27-06

(I) (1) (4) (5) and of O.A.C. 3745-27-11(F) the grant of

a waiver is suspect due to the inadequacy of the leachate

collection system. Therefore, we do not rule upon the

waiver at this time since it is impossible to evaluate its

propriety in the absence of a leachate collection system

design upon which the integrity of the waiver will depend.

13. As required by O.A.C. 3745-31-05,' the Director

shall not issue a PTI unless on the basis of the information

appearing in the application and information gathered by

or furnished to the Ohio EPA, he determines that installa-

tion and operation of the solid waste disposal facility meets

the criteria listed in O.A.C. 3745-31-05(A) (1), (2), (3)

and (4). The evidence does not establish compliance with

the criteria described in that regulation.

1. O.A.C. 3745-31-05 was amended by the Director’s order

of adoption issued on June 30, 1982, effective August 15, 1982.

Since the PTI was issued on February 1, 1982 prior to the amend-

ment, “old” Section 3745-31-05 applies here.

A59

14. The evidence establishes that the proposed land-

fill will prevent or interfere with the attainment or main-

tenance of ambient water quality standards applicable to

Hemlock Creek or the “easterly” and “southerly” trib-

utaries of the Cuyahoga River. Plainly, there was no

showing that the technology used is the best available

technology as required under Ohio law. The plans fail

to include a leachate collection system utilizing the best

available technology that may cause significant degrada-

tion of water quality standards and would be a violation

of other applicable laws.

15. Best available technology means the best avail-

able technology reasonably related to achieving and main-

taining the desired level of environmental quality. Little

Miami, Inc. v. Williams, Franklin Cty. App. Nos. 76AP-292,

76AP-285.

16. In the City of Garfield Heights v. Williams,

78AP-683 et seq. (Franklin Cty. Ct. of Appeals, Unreported,

June 14, 1979; 1979 Decisions at 1493) the Court found

that the establishment of a nuisance is an interference

with the rights of adjacent landowners. The Court noted

that the interference constituted an unlawful taking in

the absence of compensation to the landowners. In the

instant case, the Director’s approval of a permit to install

a sanitary landfill which fails to assure the protection of

the water resources of the State is an unlawful interfer-

ence with public health and safety.

17. The evidence establishes that the proposed land-

fill will result in violations of “applicable laws,” e.g.

Chapters 3704, 3734, 3745, and 6111 of the Ohio Revised

Code, as amended; rules, regulations, and orders of the

Ohio EPA; and the Federal Water Pollution Control Act,

as amended.

A60

18. The evidence establishes that the construction

and operation of the landfill will be unlawful; that the

discharge of “other wastes” from the settling basin into

the waters of the state (e.g., Hemlock Creek or the “south-

erly” stream without a valid permit violates R.C. 6111.04

and O.A.C. 3745-33-02; and that the alteration and oblit-

eration of the existing channei of the “easterly” stream

violates the permit provisions of Section 404(a) of the

Clean Water Act, 33 U.S.C. 1344.

19. Although testimony was provided regarding the

effect of the proposed landfill on the CVNRA no action

was taken on behalf of the federal government to join

the action or to otherwise oppose the landfill. The evi-

dence is insufficient to conclude that the action taken by

the Director of Ohio EPA conflicts with federal policy.

FINAL ORDER

The final action of the Director of the Ohio Environ-

mental Protection Agency granting a PTI to Mr. Pete

Boyas, Boyas Excavating, Inc. is vacated in part, affirmed

in part. The Director is ordered to require the Applicant

to submit pians consistent with this decision, evaluate

them and approve them prior to allowing any further

action on this proposed landfill.

The Board, in accordance with Section 3745.06 of the

Revised Code and Ohio Administrative Code 3746-13-01.

informs the parties that:

Any party adversely affected by an order of the Envi-

ronmental Board of Review 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 viola-

tion was alleged to have occurred. Any party de-

A61

siring to so appeal shall file with the Board a Notice

of Appeal designating the order appealed from. A

copy of such notice shall also be filed by the Appel-

lant with the court, and a copy shall be sent by certi-

fied mail to the Director of Environmental Protection.

Such notices shall be filed and mailed within thirty

days after the date upon which Appellant received

notice from the Board by certified mail of the making

of the order appealed from. No appeal bond shall

be required to make an appeal effective.

THE ENVIRONMENTAL BOARD OF

REVIEW

/s/ THOMAS PHILLIPS

Chairman

/s/ JAMES L. BAUMANN

Vice-Chairman

COPIES SENT’ TO:

CITY OF INDEPENDENCE (CERTIFIED MAIL)

ROBERT H. MAYNARD, DIRECTOR (CERTIFIED MAIL)

JOHN J. NICASTRO (CERTIFIED MAIL)

PETE BOYAS (CERTIFIED MAIL)

William H. Wallace, Esq.

Michael A. Syphert, Esq.

Deborah J. Nicastro, Esq.

Edward D. Hayman, Esq.

Joan M. Cummings, Esq.

Eli Manos, Esq.

Michael T. Gavin, Esq.

A62

FINAL ACTION OF THE DIRECTOR OF

ENVIRONMENTAL PROTECTION

(Entered February 1, 1982)

OKIO ENVIRONMENTAL PROTECTION AGENCY

Permit To Install

Application No. 02-899

Application Received 11-30-81 (Revised)

From Boyas Excavating, Inc.

Permit Fee: $500.00

Applicants Name: Mr. Pete Boyas, Boyas Excavating, Inc.

Address: 4100 Brookpark Road

City: Cleveland State: Ohio 44134

Telephone: (216) 398-3900

Name, Location and Description of Proposed Source:

Independence Development Sanitary

Tandfill

Located on South Side of Hemlock

Road, West of the Cuyahoga River

City of Independence

Cuyahoga County

New Sanitary Landfill

Issuance Date: February 1, 1982

Effective Date: February 1, 1982

The above named entity is hereby ISSUED a permit ap-

proval (permit to install) for the above described source

pursuant to OAC 3745-31. Issuance of this permit ap-

proval (permit to install) does not constitute expressed

or implied approval or agreement that, if constructed

and/or modified in accordance with the plans, specifica-

enw

A63

tions and/or information accompanying the permit appli-

cation, the above described source of environmental pollu-

tants will operate in compliance with applicable State

and Federal laws and rules and regulations, and does

not constitute expressed or implied assurances that if

constructed and/or modified in accordance with those

plans, specifications and/or information accompanying the

permit application, the above described source of environ-

mental pollutants will be granted the necessary operating

permits and/or licenses. This permit approval (permit

to install) is issued subject to the following attached con-

ditions which are hereby incorporated and made a part

hereof.

Ohio Environmental Protection Agency

/s/ Wayne S. NICHOLS

by Wayne S. Nichols

Director

361 East Broad Street

Columbus, Ohio 43215

A64

Boyas Excavating, Inc.

Mr. Pete Boyas

February 1, 1982

PTI CONDITIONS

Substantial construction for installation must take place

within eighteen months of the effective date of this permit.

This deadline may be extended by up to twelve months,

if application is made to the Director no less than sixty

days before the expiration of this permit and the party

shows good cause for any such extension.

The Director of the Ohio Environmental Protection Agency,

or his authorized representatives, may enter upon the prem-

ises of the above named applicant during construction and

operation at any reasonable time for the purpose of making

inspections, conducting tests, examining records or reports

pertaining to the construction, modification or installation

of the above described source of environmental pollutants.

The proposed source shall be constructed in strict ac-

cordance with the plans and application submitted for this

permit to the Director of the Ohio Environmental Pro-

tection Agency. There may be no deviation from the ap-

proved plans without the express, written approval of

the Agency. Any deviations from the approval plans or

the above conditions may lead to such sanctions and pen-

alties as provided under Ohio law. Approval of these

plans does not constitute an assurance that the proposed

facilities will operate in compliance with all Ohio laws

and regulations. Additional facilities shall be installed

upon orders of the Ohio Environmental Protection Agency

if the proposed sources are inadequate or cannot meet ap-

plicable standards.

This approval shall apply only to those facilities shown on

the plans cited above.

A65

That payment of the required five hundred dollar ($500.00)

permit-to-install fee, payable to the Treasurer of the State

of Ohio, is forwarded to the Division of Land Pollution

Control, Ohio EPA, P. O. Box 1049, Columbus, Ohio 43216,

within 15 days of the effective date of this permit. Failure

to submit the fee will invalidate the PTI.

The approval of this landfill anticipates completion within

eight to ten years. This approval shall be considered to

be valid for a period of twelve years following the date

the landfill is licensed and ready to accept wastes. The

landfill shall be completed on or before the expiration of

this period.

A report, which provides a technical appraisal of the results

obtained during normal operating conditions of the new

facilities, shall be submitted to the appropriate District

Office of the Ohio Environmental Protection Agency no

later than three months after the new facilities are placed

into operation.

The solid waste disposal site or facility shall be completed

and ready for operation before the acceptance of solid

wastes. Notification that this condition has been met shall

be submitted in writing to the appropriate District Office

of the Ohio Environmental Protection Agency at least thirty

(30) days prior to the acceptance of any solid wastes.

That before any wastes are brought into this site the

following must be accomplished:

a. The adequacy of the Stone Road bridge over the

Ohio Canal and the Cuyahoga River must be au-

thorized by the Cuyahoga County Engineer.

b. The interim access roadway from Hemlock Road

to the bottom of the pit must be completed.

amma aaa aaa alae aaa ee

A66

c. An office with electricity, drinking water, toilet

facilities, and a telephone must be available.

d. The other portions of the plans applicable for start-

up (including the sump pumps and settling basin),

must be completed.

Wastes taken into the site shall use the Rockside Road,

Canal Road, Stone Road route and shall not come into the

landfill from the west via Hemlock or Stone Road or from

the south via Canal Road unless the trucks contain refuse

picked up from communities through which these roads

traverse.

The owner shall provide for the proper maintenance and

operation of the solid waste disposal site or source in ac-

cordance with the provisions of Chapter 3745-27 of the

Ohio Administrative Code.

Daily records of operation shall be maintained and sub-

mitted to the Ohio Environmental Protection Agency

monthly.

The local health department having jurisdiction shall be

notified prior to start of construction so that construction

of this project can be routinely inspected and approved

by the local health department before being placed in op-

eration.

That prior to acceptance of wastes, all five monitoring wells

shown on the plans plus two additional wells on the east

side will be established, initial samples taken for the

following parameters, and that such samples will be taken,

analyzed at the owners expense by a certified laboratory,

and reported to the Ohio EPA on a semi-annual basis (or

at more frequent intervals if deemed necessary by the

Ohio EPA). Information on each well shall include the

following data and analysis:

A67

The depth of the well

The static water level in the well

-.?

The ground elevation at the top of the well

Analysis of the groundwater should be performed

for the following parameters with units indicated:

Temperature, °C

Conductivity, micro mhos 25°C

pH, S.U.

Total Alkalinity, mg/1

Ammonia Nitrogen, mg/1

Total Kjeldahl Nitrogen, mg/1

Nitrate Nitrogen, mg/1

Sulfate (SO,)

Chloride (Cl)

Total Dissolved Solids (TDS)

Calcium (Ca)

. Magnesium (Mg)

Sodium (Na)

Iron (Fe)

. Chemical Oxygen Demand (COD)

. Total Organic Carbon (TOC)

17. Methylene Blue Active Substances (MBAS)

Water pumped from the sedimentation basin for discharge

on the site shall not violate Ohio Water Quality Stan-

dards and, in addition, shall not exceed the following

specific water quality criteria:

= Fr? 4H fF Ff PP

a a

A68

TDS 1500 mg/1 Phenols 10 ug/1

TSS (see note A) Cd 12 ug/l

BOD 10 mg/1 Cu 50 ug/l

COD 40 mg/l Cr 100 ug/1

NHs 2.5 mg/1 Fe 1000 ug/1

Total Phos-

phorus 1.0 mg/1 Hb 0.2 ug/1

MBAS 5 mg/l Pb 30 ug/l

Zn 175 ug/1

A. The TSS shall not exceed 30 mg/1 or the TSS

of the receiving stream at the time of discharge,

whichever is greater.

The nine locations of the corners and turning points of this

31.227 acre property shall be established and clearly iden-

tified prior to the start of the landfill and such markings

shall be maintained throughout the life of the landfill.

No sludges or liquids shall be accepted for disposal without

the written approval of the Agency. |

If leachate is detected on the site, or is draining from the

site, in such quantities that the Director or his authorized

representatives or the Health Commissioner believes, based

on a review of geologic, hydrologic, engineering, and other

factors, that a substantial threat of water pollution exists,

the leachate shall be contained on the site and properly

treated or shall be collected and transported from the site

for proper treatment and all necessary action shall be

taken to minimize, control or eliminate the conditions

which contribute to the production of leachate.

This solid waste disposal site has need of continued main-

tenance care until the decomposition in the fill has sta-

bilized. The owner of this site shall be responsible for the

continued care of the site as specified in OAC 3745-27-10.

A69

That during the time period covering the initial construc-

tion, continued operation and closure of this landfill the

owner shall provide a registered Ohio professional engineer

to supervise the construction and operation of the landfill

in compliance with the approved plans, specifications, and

operating procedures. Within thirty (30) days of the

completion of each phase of this landfill, or annually on

July 1, a certification shall be made by the design engineer

that that part of the landfill was constructed in accordance

with the approved plans; said certification to be forwarded

to the Northeast District Office of the Ohio EPA.

The lowest level of excavation for landfilling on this 31.227

acre parcel is set at 525’ M.S.L.; the maximum elevation of

fill and intermediate or final cover is to be 703’ M.S.L.

WAIVER: Pursuant to OAC Rule 3745-27-11, there is

hereby granted a WAIVER of OAC Rule 3745-27-06 (I) (4)

and OAC Rule 3745-27-06(I) (5) in accordance with de-

tailed plans approved by the Director and in accordance

with the terms and conditions listed below.

Terms and conditions:

a. That construction and operation be strictly held to

procedures and techniques outlined in detail plans

and specifications.

b. That the four (4) water wells on Boyas’ owned

property north side of Hemlock Road are to be prop-

erly abandoned as a water supply source prior to

the start-up of the landfill.

c. That the small waterway currently flowing from

west to east and crossing the C.E.I. right-of-way ap-

proximately 1100’ south of the intersection of Hem-

lock Road and this C.E.I. right-of-way, be relocated

A70

and diverted into the perimeter drain system, per

plans.

. That this WAIVER shall be REVOKED, if, as de-

termined by the Director, the granting of said

WAIVER causes water pollution, creates a nui-

sance or health hazard or if any term or condition

of this WAIVER is violated.

END OF CONDITIONS

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.