Petition for Writ of Certiorari — Schachner v. Ohio

Supreme Court, 0.8.

FIL D

99 67 Oaue 2 41999

No. QEFICE OF IHE CLERK

Inthe

Supreme Court of the United States

SHELDON SCHACHNER,

Petitioner,

nex

STATE OF OHIO,

Respondent.

On Petition for a Writ of Certiorari to the United

States Court of Appeals for the Sixth Circuit

PETITION FOR WRIT OF CERTIORARI

RICHARD M. KERGER, Esq.

Counsel of Record

Kerger & Kerger

33 S. Michigan St.

Suite 201

Toledo, Ohio 43602

(419) 255-5990

Yer

No.

In the

Supreme Court of the United States

SHELDON SCHACHNER,

Petitioner,

cat

STATE OF OHIO,

Respondent.

On Petition for a Writ of Certiorari to the United

States Court of Appeals for the Sixth Circuit

PETITION FOR WRIT OF CERTIORARI

RICHARD M. KERGER, Esq.

Counsel of Record

Kerger & Kerger

33 S. Michigan St.

Suite 201

Toledo, Ohio 43602

(419) 255-5990

Nk et

QUESTION PRESENTED FOR REVIEW

Whether there is a violation of

substantive due process of law when a State

criminally prosecutes and convicts a person

for failing to test and remove hazardous

waste which has belonged to and been

disposed of by a third party without proof

that the defendant can financially carry out

the task.

TABLE OF CONTENTS

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CONSTITUTIONAL AND STATUTORY PROVISIONS

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APPENDIX

Transcript of Proceedings 9/22/97 ............csccssseesseeseeeess la

Judgment Entry of 10/8/97, Lucas

County Court of Common Pleas.................:cccscceseeeseeees 4a

Opinien and Judgment Entry of 1/29/99,

Lucas County Court of Appeals ..............:cccccsscessesseesees 6a

Entry of 5/26/99, The Supreme Court of Ohio............ 2la

TABLE OF AUTHORITIES

Cases

Reno v. Flores, 507 U.S. 292 ( REET AS Svat oe eee 7

U.S. v. Salerno, 481 U.S. 739 PND elittadh Ginter 7

Statutes

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Other Authorities

Constitution of the United States ........cccccccccccceceececeeecees... 2,8

OPINIONS BELOW

The citations of the opinions entered in this case are

as follows:

Judgment entered October 8, 1997

in Case No. CR97-1366

Opinion Judgment Entry of January

29, 1999 in the Court of Appeals of

Lucas County, No. L-97-1388

Entry denying leave to appeal in

Case No. 99-477 in the Ohio

Supreme Court entered May 26,

1999.

JURISDICTION

The Order for which a writ of certiorari is sought

was entered by the Ohio Supreme Court on May 26, 1999.

The provisions of 28 U.S.C. §2104 confirm jurisdiction.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

ii |

3

STATEMENT OF THE CASE

In 1994, petitioner Dr. Sheldon Schachner owned a

warehouse in Toledo, Ohio. In October of that year,

representatives of the Ohio Environmental Protection

Agency met with Dr. Schachner to discuss drums of

hazardous waste which had been found on his property

adjacent to the warehouse building.

Petitioner had first noticed the drums after a former

tenant had abandoned a lease at the property several years

earlier. The tenant had operated a business painting doors.

The drums had been dumped in a grassy area outside the

warehouse but still on property owned by petitioner.

Nineteen steel drums had been found, one

containing a liquid and the rest a power-like solid, as well as

15 buckets containing liquid. The Ohio EPA sampled the

containers and found all but one to contain non-hazardous

solid waste. The remaining drum had hazardous waste, that

being a liquid which had a flash point sufficiently low to |

place it in the hazardous category. There was no injury to

third parties.

The Director of the Ohio EPA ordered petitioner to

accomplish certain testing of the barrels and to remove the

waste. Petitioner told the Ohio EPA that the drums were not

his and that he would not be doing any testing or removal.

He explained that the drums had been placed there by his

former tenant who should be responsible for removing them.

Despite knowing where the tenant was, the Ohio EPA

determined to bring criminal charges against petitioner.

On February 29", petitioner was indicated on five

felony counts. In particular he was charged with the

following unlawful acts:

1. The illegal disposal of hazardous

waste.

2. The failure to comply with an order

issued by the Director of the Ohio

Environmental Protection Agency.

S The illegal disposal of solid waste.

4. The illegal transportation of

hazardous waste.

» The illegal storage of hazardous

waste.

On September 22, 1997, a trial commenced in the

Lucas County Court of Common Pleas. The following day,

the jury returned its verdict of not guilty on Counts 1, 3 and

4 and guilty on Counts 2 and 5. On October 8, 1997,

judgment was entered. Petitioner was sentenced to two

years in the Ohio correctional system on each count, which

sentences were suspended and the defendant placed on

probation on each count for a period of three years and fined

$25,000. The sentences were to be served concurrently.

A timely notice of appeal was filed on October 24,

1997. The Court of Appeals denied relief in its order of

January 29, 1999. A timely appeal was taken to the Ohio

Supreme Court but on May 26, 1999, leave to appeal was

denied.

The question presented for review here was raised

at the close of the State’s case through a Motion to Dismiss.

After it was denied, petitioner presented no evidence. The

issue was raised again before the Court of Appeals and in

the Ohio Supreme Court.

ARGUMENT

It is beyond dispute that the State of Ohio has a

compelling interest in assuring that the environment is free

from hazardous waste. It is equally clear that the petitioner

has compelling interest in not having his freedom restrained

in a manner that violates his right to substantive due process

of law. Petitioner asserts that that has occurred in this case.

On the record before this Court, there is no question

that petitioner was not involved in the depositing of the

materials on the ground outside his warehouse. It is equally

clear that such materials were not his but they were the

property of a third party.

It is also important to remember that this is not an

action brought to appeal a contempt citation or one seeking a

civil judgment. This is an action brought under

circumstances in which the petitioner may yet find himself

in prison. And he could be-imprisoned even though there is

no proof at all that he was able to accomplish the tasks

required of him.

There can be no speculation about the petitioner’ s

financial circumstances. The trier of fact cannot guess or

surmise in criminal cases. The burden is upon the State to

prove all relevant matters and to prove them beyond a

reasonable doubt.

Consider the following scenario. A farmer in a

rural Ohio county hires a crop duster to spray his crops.

Without approval of the farmer, the crop duster dumps his

pesticide into a creek on the farmer’s property. The Ohio

Environmental Protection Agency learns of the spill and

directs the farmer to accomplish remediation. The cost is

several million dollars. The farmer is unable to bear the cost

and the Director of the Ohio EPA determines to proceed

criminally to set an example for all farmers in Ohio.

Petitioner submits that it is a violation of the

farmer’s substantive rights to due process of law that he

should be subjected to criminal liability for failure to clean

up someone else’s mess without proof that he can financially

do so. Such actions take one back to the debtor’s prisons

which were eliminated long ago and should not be renewed

even in an effort to protect the environment.

The potential incarceration of an individual triggers

heightened substantive due process scrutiny and there must

be the most compelling of governmental interests to justify

such proceedings. See Reno v. Flores, 507 U.S. 292 (1993).

Generally there must be a punitive interest in imprisoning

the convicted criminal. See U.S. v. Salerno, 481 U.S. 739

(1987).

Putting the petitioner behind bars, which is the risk

he faced and continues to face will accomplish little.

Whatever punitive interest the State might have could be as

well served through civil proceedings which could carry

consequences of a very serious nature but which would not

be criminal.

The offending drums are the property of another. If

criminal sanctions are needed, his is the case in which they

should be sought. It was the tenant who dumped them, not

petitioner.

CONCLUSION

Petitioner prays this Court to grant a Writ of

Certiorari to review the proceedings below and to find that

his right to substantive due process of law as guaranteed by

the Fifth and Fourteenth Amendments to the United States

Constitution have been violated.

Respectfully submitted,

RICHARD M. KERGER

KERGER & KERGER

33 S. Michigan Street

Suite 201

Toledo, Ohio 43602

Telephone: (419) 255-5990

FAX: (419) 255-5997

la

No. CR97-1366

IN THE COURT OF COMMON PLEAS OF LUCAS

COUNTY, OHIO

STATE OF OHIO, Plaintiff v. SHELDON SCHACHNER,

Defendant.

Judge Bruce E. Huffman

VOLUME II OF II - JURY INSTRUCTIONS

TRANSCRIPT OF PROCEEDINGS, pgs. 182-184

BE IT REMEMBERED, that on the trial of the

above-entitled case, in the Court of Common of Lucas

County, Ohio, in the September, 1997 Term of said Court,

commencing on September 22, 1997, before the Honorable

Bruce E. Huffman, a Visiting Judge sitting by assignment,

the following proceedings were had, to--wit:

APPEARANCES:

BETTY D. MONTGOMERY, Attorney General

By: ROBERT J. COCHRAN, Assistant

& BRAD L. TAMMARO, Assistant,

On Behalf of the Plaintiff;

RICHARD M. KERGER, Esquire,

On Behalf of the Defendant.

2a

(THEREUPON, the following proceedings were

held in chambers at nine o’clock a.m.)

THE COURT: Let the record show we are in

chambers and the defense has a motion. Go ahead and make

your silly motion.

MR.KERGER: Pursuant to Rule 29, I would request

to dismiss Counts Two and Four.

As to Count Two, I would say it is more for the

record.

MR.COCHRAN: I am sorry. I don’t have it.

What is it?

MR. KERGER: Count Two is the failure to

test. Count Four is the improper storage.

THE COURT: I see. Count Two is your Instruction

No. 22, I think. Failing to comply with an order of a

Director of the Environmental Protection Agency, yeah.

MR.KERGER: I believe that constitutes an

unconstitutionally broad and improper delegation of

authority to the director of the E.P.A. to make criminal

whatever he or she chooses.

They issue an order, and on a failure to comply, for

whatever reason, the person becomes subject to being

convicted of an unclassified felony. The offense is you

either comply or not comply. I think that violates the Ohio

and United States Constitutions.

THE COURT: I had a problem with that, and talked

it over with a couple of judges here including Judge

Doneghy, whose case this is. But it is kind of analogous to

3a

— one of them brought up kind of like in Municipal Court —

Housing Court here someone has a porch that should be

taken off or done or repaired, and if they order them to do it,

and if they don’t do it, it is acrime. It is thin, but I am going

to overrule it.

MR. KERGER: Count Four, Your Honor, that I am

more serious about and that deals with the issue of storage.

It is the contention of the State and that these goods were

stored , and the statute they rely on 3734.01, subsection (M)

talks about the temporary storage — about goods on their

way to an ultimate destination.

Now, I don’t think it is propounded under the E.P.A.

laws to dump it outdoors and leave it on the grass, but that’s

not storage. That is improper. It was not stored. It was

abandoned by Mr. Muller, and it was left there. And I think

under the language of the statute, that it does not make his

conduct criminal.

MR. COCHRAN: Well, Your Honor, I would state

that if you check the definitions, you won’t find a definition

of abandoned in the statute when — and you look at the

definition of disposal,

4a

Case No. G-4801-CR-0199701366

IN THE COMMON PLEAS COURT, LUCAS COUNTY,

OHIO

STATE OF OHIO, Plaintiff v. SHELDON SCHACHNER,

Defendant.

JUDGMENT ENTRY

Dated October 8, 1997. Court Reporter Lynette

Shindorf ordered. State of Ohio: ROBERT COCHRAN.

RICHARD M. KERGER present on behalf of the defendant.

Defendant, SHELDON SCHACHNER present in court.

Judge Bruce C. Huffman

The defendant having been convicted at a Jury Trial

of the offenses of Violating an Order of the Director of

Environmental Protection to Obtain a Detailed Chemical and

Physical Analysis of a Representative Sample of Wastes as

charged in Count 2 in violation of Revised Code Section

3734.11 and 3734.99 and Recklessly Store Hazardous Waste

as charged in Count 5 in violation of Revised Code Section

3734.02(F), 3734.11, and 3734.99 both being Unclassified

Felonies.

After having considered the Presentence

Investigation Report and having afforded Defendant and

defense counsel their rights pursuant to Rule 32(A)(1), the

Court orders that defendant be committed to the Ohio

Department of Rehabilitation and Correction for a period of

2 years as to Count 2 and 2 years as to Count 5 until released

according to law. A fine of $25,000.00 is imposed on both

5}

Sa

counts. Said sentences are ordered served concurrent to

each other. Total fine $25,000.00.

Imposition of incarceration portion of sentence

ordered suspended. Defendant probated to the Lucas

County Adult Probation Department for a period of 3 years

conditional upon compliance with the rules and regulations

of the department and with the special added conditions: 1)

pay all court costs and 2) pay fine of $25,000.00.

Defendant advised of his rights to appeal.

Defendant indicates that he intends to appeal. Stay on

Execution of Sentence is granted. See J.E.

Defendant ordered to pay the costs of prosecution

including any fees associated with the appointment of

counsel. It is further ordered that the defendant pay any

supervision fees associated with being granted probation.

Payment of financial obligations shall be prioritized as

restitution, supervision fees, court costs, fines, and assigned

counsel fees.

/s/ Bruce C. Huffman

JUDGE BRUCE C. HUFFMAN

6a

Court of Appeals No. L-97-1388,

Trial Court No. CR-97-1366

IN THE COURT OF APPEALS OF LUCAS COUNTY

STATE OF OHIO, Appellee v. SHELDON

SCHACHNER, Appellant.

OPINION AND JUDGMENT ENTRY

January 29, 1999, Decided

COUNSEL: Betty D. Montgomery, attorney general, and

Brad L. Tammaro and Robert J. Cochran, for Appellee.

Richard M. Kerger, for Appellant.

JUDGES: Before HANDWORK, SHERCK and KNEPPER

OPINION BY: KNEPPER

KNEPPER, J. This is an appeal from the judgment

of the Lucas County Court of Common Pleas which,

following a jury trial, found appellant, Sheldon J. Schachner,

guilty of violating an order of the Director of Environmental

Protection to obtain a detailed chemical and physical

analysis of a representative sample of waste, in violation of

R.C. 3734.11 and 3734.99, and recklessly storing hazardous

waste, in violation of R.C. 3734.02(F), 3734.11, and

3734.99, both being unclassified felonies. Appellant’s

concurrent sentence of two years of incarceration on each

count was suspended and he was fined a total of $25,000.

Ta

The trial court’s judgment entry of sentencing was

journalized October 8, 1997.

Appellant timely appealed his conviction and

sentence and raised the following assignments of error:

“Assignment of Error No. 1. When the

State predicates criminal liability on an

Omission to accomplish an act, it is

incumbent upon the State to prove beyond a

reasonable doubt that the act was cne which

the defendant was capable of performing.

“Assignment Of Error No. 2. Delegation to

the Director of the Ohio Environmental

Protection Agency of the right to issue

orders, the violation of which becomes

criminal, is unlawful and unconstitutional

because of the absence of standards which

those orders must follow.

“Assignment of Error No. 3. The State

cannot criminalize the failure to do a vain

and unnecessary act.

“Assignment of Error No. 4. The State

cannot impose criminal liability upon the

defendant for the failure to correct a

condition created by others.

“Assignment of Error No. 5. The Court

failed to recognize in its instructions to the

jury the difference between environmental

waste which had been abandoned on the

defendant’s property as opposed to ‘stored’

on his property.”

8a

Appellant was indicted on February 24, 1997

regarding certain solid and hazardous waste located on his

property at 2221 Lorle Street, Toledo, Ohio. Appellant was

indicted on five counts: (1) knowingly attempting to dispose

of hazardous waste, in violation of R.C. 2923.02, 3734.02(f),

3734.11, and 3734.99; (2) unlawfully and recklessly

violating an order of the Director of Environmental

Protection to obtain a detailed chemical and physical

analysis of a representative sample of wastes that had been

stored at 2221 Lorle Street, Toledo, Ohio, in violation of

R.C. 3734.11 and 3734.99; (3) knowingly attempting to

dispose of solid waste in a manner and/or location other than

a sanitary landfill, in violation of R.C. 2923.02, 3734.11,

and 3734.99, and O.A.C. 3745-27-05(A); (4) unlawfully and

recklessly transporting or causing the transportation of

hazardous waste to a premises other than those listed in R.C.

3734.02(F)(1) through (5), in violation of R.C. 3734.02(F),

3734.11, and 3734.99; and (5) recklessly storing hazardous

waste at a premises other than those listed in R.C.

3734.02(F)(1) through (5), in violation of R.C. 3734.02(F),

3734.11, and 3734.99. The jury trial commenced on

September 22, 1997.

Generally, the testimony at trial established that

appellant had rented the property to Muller who had a

painting business. Muller left the property in 1991 or 1992

Owing approximately two months worth of rent, about

$1,000 per month. Appellant discovered within a couple of

months of Muller’s departure that a number of fifty-five

gallon drums were left on the property.

In 1994, the Ohio Environmental Protection Agency

(“E.P.A.”) discovered the barrels on appellant’s property

and had a representative sampling done. The E.P.A.

determined that there were nineteen fifty-five gallon drums

and a number of buckets or containers ranging up to five

gallons in size. The E.P.A. found the barrels to be in fair to

9a

poor condition with some of the barrels being tipped on their

side and some being rusted shut. The barrels and buckets

consisted of two types of material: a sandy type of material

and a liquid material that had an odor of paint thinner to it.

An analysis of the material established that the sandy

material was not hazardous, as such, the E.P.A. considered it

to be merely solid waste. The liquid material, however,

have flash points between fifty-six and sixty-one degrees

Fahrenheit. A flash point below one hundred forty degrees

Fahrenheit is considered hazardous. As such, the E.P.A.

concluded that the liquid material was hazardous waste.

In September 1995, Edward D’ Amato of the E.P.A.

informed appellant that, as the owner of the property, it was

his responsibility to have the barrels tested and properly

disposed of in a licensed facility. Although the barrels had

been tested, further analysis was necessary in order to

properly dispose of the materials. Any licensed disposal

facility would have to know what the materials’

characteristics were prior to disposing of them.

Additionally, the E.P.A. was initially unable to open all of

the barrels for testing.

A letter was sent to appellant in September 1994,

Stating that appellant had to properly test and dispose of the

material and send the test results and the “manifest”

associated with the disposal to the E.P.A. An additional

letter was sent by the E.P.A. to appellant in October 1994,

and a meeting was held at the property on October 14, 1994.

But for one incident, appellant consistently asserted that the

barrels were Muller’s responsibility and that the E.P.A.

should go after him.

Appellant also stated that he had no intention of

disposing of the material.

10a

In June 1995, appellant was notified by letter that

the Director of Environmental Protection issued Final

Findings and Orders regarding appellant’s property.

Appellant was informed that he could appeal to the

Environmental Board of Review within thirty days after

receiving notice of the director’s action. The director found

that several drums had been abandoned at the property and

that characteristically ignitable hazardous waste was being

stored there. The director ordered in pertinent part that

appellant do the following: (1) obtain a detailed chemical

and physical analysis of a representative sample of each of

the wastes at the facility, within thirty days of the effective

date of the orders; (2) submit to the E.P.A. the results of the

waste analysis and a schedule for the removal of all

identified hazardous waste at the facility, within forty-five

days of the effective date of the orders; (3) remove all

hazardous wastes (including all drum and containers) from

the facility in accordance with Chapter 3734 of the Ohio

Revised Code and the rules promulgated thereunder, within

sixty-five days of the effective date of the orders, and

comply with the manifesting, packaging, labeling, marking,

and placarding requirements of O.A.C. 3745-52-20 through

3745-52-33; and (4) provide E.P.A. with documentation of

compliance with the third order, within seventy-five days of

the effective date of the orders. The director also made a

number of orders regarding a Sampling and Analysis Plan

(“SAP”) for all the areas at the facility where hazardous

wastes were illegally stored; however, a SAP is not at issue

here.

In August 1995, seventeen of the nineteen fifty-five

gallon drums were found in a broken down U-Haul truck.

John Henley testified that he was hired by Claude Barnhill

to assist in the removal of the barrels. Two of the barrels

were left at the property because they were empty. The

E.P.A. was called to deal with the U-Haul and the barrels

because one of the drums was leaking a fluid that smelled of

lla

paint thinner. D’ Amato determined that the barrels were the

same ones from the Lorle Street property because they bore

the markings placed on them by the E.P.A. Further testing

by the E.P.A. revealed that liquid material in one of the

barrels had a flash point of seventy degrees Fahrenheit, i.e.,

it was hazardous. Ultimately, it cost the state $15,000 to

dispose of the solid and hazardous material from the Lorle

Street property.

Through testimony, it was established that appellant

never tested the barrels, drums, or containers. Additionally,

the Lorle Street facility was not authorized or licensed to

store solid or hazardous waste. Finally, the persons who

transported the barrels in the U-Haul were not licensed to

transport or dispose of hazardous waste.

The jury found appellant guilty of counts two and

five of the indictment and found him not guilty of count one,

attempting to dispose of hazardous waste, count three,

attempting to dispose of solid waste, and count four,

transporting or causing the transportation of hazardous

waste. It was from this conviction that appellant appeals.

In his first assignment of error, appellant argues that

in order to sustain a conviction for failing to do a required

act, the state must prove beyond a reasonable doubt ihat the

act was one which appellant was capable of performing.

The state responds that financial incapability is an

affirmative defense which appellant must prove. In order

for a person to be held criminally liable, both of the

following must apply:

“(1) His liability is based on conduct which

includes either a voluntary act, or an

omission to perform an act or duty which he

is capable of performing;

12a

“(2) He has the requisite degree of

culpability for each element as to which a

culpable mental state is specified by the

section defining the offense.”

R.C. 2901.21(A).

R.C. 3734.11 states that “[n]o person shall violate

any section of this chapter, any rule adopted under it, or any

order_issued under section 3734.13 of the Revised Code.

R.C. 3734.13(A) states:

“The director of environmental protection

may issue, modify, suspend, or revoke

enforcement orders in accordance with

Chapter 3745. of the Revised Code ***

directing the *** person to abate a violation,

or to prevent any threatened violation, of

any section of this chapter ***, [or] rule

adopted thereunder, *** within a specified,

reasonable time.”

Whoever recklessly violates any section of R.C.

Chapter 3734 is guilty of felony and shall be fined at least

$10,000, but not more than $25,000, or imprisoned for at

least two years, but not more than four years, or both. R.C.

3734.99(A).

Hence, with respect to appellant’s failure to obtain a

detailed chemical and physical analysis of a representative

sample of waste, the state must demonstrate that appellant

was capable of doing the act and that he recklessly failed to

accomplish it.

Clearly, the material was capable of being treated,

insofar as the EPA tested it. Appellant, however, contends

13a

that the state had to prove beyond a reasonable doubt that he

was financially capable of having the material tested.

Appellant has failed to cite any authority for his

argument that financial ability must be demonstrated, and

this court can find none.

Rather, we conclude that the state demonstrated that

the act was capable of being performed, and if appellant was

incapable of paying for the tests (which was not his position

at trial), then that is an affirmative defense which he must

prove. We liken this situation to that of a person who,

charged with failing to exercise reasonable and ordinary

control over his vehicle, claims that he was incapable of

having control over the vehicle because he lost

consciousness. In such a situation, a loss of consciousness

operates as an excuse or justification for the conduct and, as

such, constitutes an affirmative defense to criminal liability.

See, e.g., State v. McCaw (Aug. 1, 1997), Montgomery App.

No. 16202, unreported. Similarly, if appellant contends that

he is incapable of performing an act that is generally capable

of being performed, then the burden shifts to him to

establish his affirmative defense. The state cannot require

appellant to testify and appellant's financial state is a matter

within his personal knowledge.

Accordingly, we find that appellant must establish

his incapability of paying for the test as an affirmative

defense. No evidence was offered regarding appellant's

inability to perform the requested acts. As such, we find

appellant's first assignment of error not well-taken.

In his second assignment of error, appellant argues

that the Director of Environmental Protection had an

unlawful and unconstitutional delegation of authority to

issue orders because of the absence of statutory standards

which those orders must follow. Citing State v. Switzer

14a

(1970), 22 Ohio St. 2d 47, appellant argues that the

legislature can delegate authority to an administrative

agency “so long as sufficient standards are set up in the

statute authorizing the delegation.” Appellant asserts that

R.C. Chapter 3734 provides no guidance for how the

director may issue orders dealing with improper handling

and storage of hazardous waste.

In addition to the consideration of the adequacy of

statutory standards and guidelines, Switzer held that the

legislature cannot delegate an agency power to make a law:

“’ As a general rule a law which confers

discretion on an executive officer or board

without establishing any standards for

guidance is a delegation of legislative power

and unconstitutional; but when the

discretion to be exercised relates to a police

regulation for the protection of the public

morals, health, safety or general welfare,

and it is impossible or impracticable to

provide such standards, and to do so would

defeat the legislative object sought to be

accomplished, legislation conferring such

discretion may be valid and constitutional

without such restrictions and limitations.’”

Switzer at 50, citing Matz v. J.L. Curtis

Cartage Co. (1937), 132 Ohio St. 271,

paragraph seven of the syllabus.

Although any agency cannot make law, it is

permissible for the legislature to delegate power to the

agency to determine the facts on which the law is to operate.

The court noted:

“The penalty that is imposed for the

violation of a law is a part of its very

1Sa

essence. Take away the penalty, or the

sanction of the law, and it is no law.””

Switzer at 52, citing Gordon v. State (1889),

46 Ohio St. 607.

We find that R.C. Chapter 3734 provides adequate

guidelines and standards which the director is to follow.

R.C. 3734.13 grants the director the authority to issue orders

“to abate a violation, or to prevent any threatened violation,

of any section of this chapter other than sections 3734.90 to

3734.9013 of the Revised Code, a rule adopted thereunder,

or a term or condition of a permit, license, or variance issued

thereunder within a specified, reasonable time.” O.A.C.

3745-65-13 and 3745-54-13 provide that before an owner or

operator treats, stores, or disposes of any hazardous wastes,

or nonhazardous wastes, he shall obtain a detailed chemical

and physical analysis of a representative sample of the

wastes. The director in this case issue an order requiring

appellant to obtain such an analysis. R.C. 3734.11 states

that no person shall violate an order issued under R.C.

3734.13. And, R.C. 3734.99 establishes the penalty that will

be imposed for violating R.C. 3734.11 and, subsequently, an

order issued under R.C. 3734.13.

The statute sets forth that the director is granted the

authority to make orders to abate a violation, or to prevent

any threatened violation, of any section of R.C. Chapter

3734 or a rule adopted thereunder, within a specified,

reasonable time. R.C. 3734.13. As such, the director is

limited in his authority to issuing orders relating only to

violations of R.C. Chapter 3734, or any rule adopted

thereunder.

Additionally, the director is not given the authority

to make law; rather, the director is merely responsible for

issuing orders regarding laws that are already established.

As such, his authority is limited to executing and

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administering the law. Such a grant of authority is

constitutionally permissible.

Accordingly, we find that the legislative grant of

authority to the director to issue orders is not

unconstitutional or improper. Appellant’s second

assignment of error is therefore found not well-taken.

Appellant asserts in his third assignment of error

that the state cannot hold him criminally liable for failing to

do a vain and unnecessary act. Appellant asserts, “It was

stipulated by the parties that the testing done previously by

the Ohio Environmental Protection Agency, and which

furnished a basis for the findings of fact made by the

Director in his June 14, 1995 decision, ‘produced

representative samples of all waste ***.’” As such,

appellant argues that the testing was done and, therefore, he

should not be held liable for failing to have the waste

analyzed. We disagree.

The stipulation referred to both tests, samples taken

while the barrels were at the property and samples taken

from the U-Haul. It was the combination of these two

laboratory results that produced representative samples of all

wastes. An analysis of all the waste was needed before

proper disposal could be accomplished. The initial testing

was insufficient because not all of the barrels were tested, as

some were rusted shut.

Therefore, a “representative” sampling was not

accomplished until the second test. The second test

occurred after appellant had already failed to do the analysis

himself. As such, appellant was not convicted of failing to

do a vain act. Accordingly, his third assignment of error is

found not well-taken.

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In his fourth assignment of error, appellant argues

that the state cannot impose criminal liability upon him for

failing to correct a condition created by others. Appellant

asserts that the prior tenant abandoned the barrels on the

property. Appellant argues that to convict appellant for

failing to remove the barrels abandoned by another is a

violation of due process of law. We disagree.

Regardless of how the barrels got onto appellant’s

property, appellant was aware of the barrels and, despite

numerous instructions to do so, failed to have them tested

and continued to store them on his property in violation of

Ohio law. Appellant was instructed numerous times,

beginning in 1994, to have the barrels tested and properly

disposed. It is also well established that he knew of the

barrels’ existence for over three years before the director

ordered him to have them tested. Appellant was allowed an

appeal of the director’s order to the Environmental Board of

Review, but failed to avail himself of this process.

Accordingly, we find that appellant was not

convicted for the acts of another, he was convicted for his

own reckless disobedience. We further find that appellant

was not denied due process of law. Appellant’s fourth

assignment of error is therefore found not well-taken.

In his fifth assignment of error, appellant argues that

the trial court failed to recognize in its instructions to the

jury the difference between environmental waste which had

been “abandoned” on the defendant’s property as opposed to

“stored” on his property. Appellant argues that the

difference between abandoning waste and storing waste

relates to the mental state of the actor who must

intentionally store property. Because there was no evidence

showing that appellant had any intent to use those

substances in the barrels, he did not store them. Rather, they

were abandoned by another and, therefore, appellant should

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not be convicted for failing to remove a hazard created by a

third party.

R.C. 3734.01(M) defines “storage”:

“’ Storage,’ when used in connection with

hazardous waste, means the holding of

hazardous waste for a temporary period in

such a manner that it remains retrievable

and substantially unchanged physically and

chemically and, at the end of the period, is

treated; disposed of; stored elsewhere; or

reused, recycled, or reclaimed in a

beneficial manner. ***”

“Waste” is any discarded material that is not excluded by the

O.A.C. O.A.C. 3745-51-02(A)(1). “Discarded material” is

any material which is:

“(a) Abandoned, as put forth in paragraph

(B) of this rule; or

“(b) Recycled, as put forth in paragraph (C)

of this rule; or

“(c) Considered inherently waste-like as put

forth in paragraph (D) of this rule.”

O.A.C. 3745-5 1-02(A)(2). O.A.C. 3745-51-02(B) states

when waste is abandoned:

“(B) Materials are waste if they are

abandoned by being:

“(1) Disposed of; or

“(2) Burned or incinerated; or

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“(3) Accumulated, stored, or treated

(but not recycled) before or in lieu of

being abandoned by being disposed of,

burned, or incinerated.”

“’ Disposal’ means the discharge, deposit, injection,

dumping, spilling, leaking, emitting, or placing of any solid

wastes or hazardous waste into or on any land or ground or

surface water or into the air ***.” R.C. 3734.01(F).

Based on the definitions above, waste can be

considered abandoned when it is stored. See O.A.C. 3745-

51-02(B)(3). Hence, abandoned waste can also be stored

waste. Even if the hazardous waste in this case was

abandoned, it was not incinerated and it was not disposed of;

therefore, it must have been stored. See O.A.C. 3745-51-

02(B).

Although appellant did not cause the barrels to be on

his property, once discovered, he did hold the hazardous

waste on his property. Based on the definition of “storage,”

although hazardous waste that is being held for reuse is

considered “stored” the-waste must be kept for reuse. See

R.C. 3734.01(M).

As stated above, “storage” means that hazardous

waste is temporarily being held “in such a manner that it

remains retrievable and substantially unchanged physically

and chemically” and eventually is treated, disposed of, or

stored elsewhere. See Id. That is precisely what occurred to

this hazardous waste. Accordingly, appellant’s fifth

assignment of error is found not well-taken.

On consideration whereof, this court finds that

appellant was not prejudiced or prevented from having a fair

trial and the judgment of the Lucas County Court of

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Common Pleas is affirmed. Court costs of this appeal are

assessed to appellant.

JUDGMENT AFFIRMED.

A certified copy of this entry shall constitute the

mandate pursuant to App. R. 27. See, also, 6"

Dist.Loc.App.R. 4, amended 1/1/98.

Peter M. Handwork, P.J. /s/ Peter M. Handwork

JUDGE

James R. Sherck, J. /s/ James R. Sherck

JUDGE

Richard W. Knepper, Jr. /s/ Richard W. Knepper

CONCUR. JUDGE

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Case No. 99-477

THE SUPRME COURT OF OHIO

State of Ohio, Appellee v. Sheldon Schachner, Appellant.

1999 TERM

ENTRY

Upon consideration of the jurisdictional memoranda

filed in this case, the Court denies leave to appeal.

COSTS:

Docket Fee, $40.00, paid by Kerger & Kerger.

(Lucas County Court of Appeals; No. L971388)

/s/ Thomas J. Moyer

THOMAS J. MOYER

Chief Justice

22a

U.S. CONST. amend. V

No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment or

indictment of a Grand Jury, except in cases arising in the

land or naval forces, or in the Militia, when in actual 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

property be taken for public use, without just compensation.

U.S. CONST. amend. XIV

SECTION 1. Ail persons born or naturalized in the

United States, and subject to the jurisdiction thereof, are

citizens of the United States and of the State wherein they

reside. No State shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the United

States; nor shall any State deprive any person of life, liberty,

or property, without due process of law; nor deny to any

person within its jurisdiction the equal protection of the

laws.

SECTION 2. Representatives shall be apportioned

among the several States according to their respective

numbers, counting the whole number of persons in each

State, excluding Indians not taxed. But when the right to

vote at any election for the choice of electors for President

and Vice-President of the United States, Representatives in

Congress, the Executive and Judicial officers of a State, or

the members of the Legislature thereof, is denied to any of

the male inhabitants of such States, being twenty-one years

of age, and citizens of the United States, or in any way

abridged, except for participation in rebellion, or other

23a

crime, the basis of representation therein shall be reduced in

the proportion which the number of such male citizens shall

bear to the whole number of male citizens twenty-one years

of age in such State.

SECTION 3. No person shall be a Senator or

Representative in Congress, or elector of President and

Vice-President, or hold any office, civil or military, under

the United States, or under any State, who, having

previously taken an oath, as a member of Congress, or as an

officer of the United States, or as a member of any State

legislature, or as an executive or judicial officer of any State,

to support the Constitution of the United States, shall have

engaged in insurrection or rebellion against the same, or

given aid or comfort to the enemies thereof. But Congress

may by a vote of two-thirds of each House, remove such

disability.

SECTION 4. The validity of the public debt of the

United States, authorized by law, including debts incurred

for payment of pensions and bounties for services in

suppressing insurrection or rebellion, shall not be

questioned. But neither the United States nor any State shall

assume or pay any debt or obligation incurred in aid of

insurrection or rebellion against the United States, or any

claim of the loss or emancipation of any slave; but all such

debts, obligations and claims shall be held illegal and void.

SECTION 5. The Congress shall have power to

enforce, by appropriate legislation, the provisions of this

article.