28 www.ohiobar.orgOhio Lawyer November/December 2011

In My Opinion

Environmental enforcement: Defendants liable until proven otherwise?

by Ryan ElliottContrary to some of the most fundamental tenets of our judicialsystem (and Ohio’s air pollution control law), defendants maybear the burden of proof in environmental enforcement actionsin which the state seeks to impose civil penalties for continuingviolations. In State v. The Shelly Holding Co., the Supreme Courtof Ohio will address, for the first time, the state’s initial burdenof proof and decide whether a single violation of a unit’s air per-mit, evidenced by a failed stack test, is—without any additionalevidence—presumed to “continue” each and every day thereafteruntil the defendant-violator demonstrates compliance.1 Consid-ering the defendant is subject to a civil penalty of up to $25,000for each day of violation, it is paramount that a court properlydetermine whether a “continuing violation” has in fact occurredand, ultimately, the correct number of days during which the vi-olation continued.2

On July 23, 2007, the state of Ohio, on behalf of Ohio Environ-mental Protection Agency (Ohio EPA), filed a civil enforcementaction against several related companies. The state alleged viola-tions of Ohio’s air pollution control law, R.C. 3704, and soughtinjunctive relief as well as civil penalties.3 The defendants areOhio-based businesses that operate hot-mix asphalt (HMA)plants used for paving roads. The plants are regulated underOhio’s air pollution control law and all have air permits issued byOhio EPA. With respect to the issue pending before theSupreme Court, the state asserted that five HMA plants violatedan emission limit during a three-hour “stack test” and that theviolations at each plant continued for 2,912 days until Shellycould demonstrate compliance via stack testing.4

Stack testing measures emissions of gases that are exhausted froma facility into the ambient air during representative operatingconditions.5 The parties do not dispute that the results of stacktests conducted at five of Shelly’s plants established an emissionviolation on the particular dates of the tests. Rather, the partiescontest the continuing nature of each violation and the evidenceeach party must put forth to (dis?)prove the same. The state’s ini-tial burden of proof—critical to the continuing violation analy-sis—is a fundamental threshold that must be satisfied beforeshifting the burden to the defendant. At trial, the state argued that, once an initial violation is estab-lished by evidence of a failed stack test, the court should inferthat the violation continued each day thereafter until a stack testdemonstrates compliance.6 The defendants responded by high-lighting that “the State presented no testimony, no documents,no operational data, no additional engineering tests, no calcula-tions, nor any other evidence of any sort to support a factual

finding that the violations of Shelly’s permits continued after theone-day stack test events.”7 The trial court rejected the state’s in-vitation to infer a continuing violation, explaining that “[e]xceptfor the date of the specific ‘stack test,’ there is not a specific testresult proving that the violation continued. … Simply put theCourt does not find the requested inference to be reasonablegiven the fact that the State has the burden.”8 The penalties as-sessed were limited to the nine dates in which the noncompliantstack tests were conducted. The state appealed to the 10th District Court of Appeals con-tending that “the trial court erred by limiting emissions viola-tions and resulting penalties to the date of the nonconformingemissions test results.”9 The appeals court agreed, and held that“in determining the number of days each violation existed, thetrial court should have concluded the violation continued untilthe subsequent stack test determined the plant no longer was vi-olating the permit limitations.”10 The 10th District’s holding,somewhat cryptic in its analysis of the state’s initial burden ofproof, has resulted in unclear and potentially problematic asser-tions at the Supreme Court.For instance, does the 10th District’s holding stand for theproposition that evidence of a single violation—without any ad-ditional evidence presented by the state—satisfies the state’s ini-tial burden of proof, thereby establishing a presumption that theviolation continued until a subsequent stack test demonstratescompliance? The state, positing that “A failed emissions compli-ance test is prima facie proof of an emissions violation that ispresumed to continue until compliance is demonstrated,” seemsto be advocating for that exact interpretation.11 An analysis ofthe relevant statutes and case law reveals that such a rule of lawcannot be maintained as it would impermissibly excuse the statefrom satisfying its initial burden of proof. To begin, the plaintiff in any civil action bears the burden ofproof for each element of each claim for relief.12 Under Ohio’s airpollution control laws, the state bears the burden of proving a vi-olation for each day the state seeks to impose liability.13 Similarly,in a federal enforcement action under the Clean Air Act (CAA),the burden of establishing a violation is on the government.14Clean Air Act §113(e)(2) states that a continuing violation mayonly be presumed “where the Administrator or an air pollutioncontrol agency has notified the source of the violation, and theplaintiff makes a prima facie showing that the conduct or eventsgiving rise to the violation are likely to have continued or re-curred past the date of notice.”15

29www.ohiobar.org November/December 2011 Ohio Lawyer

The statute unambiguously requires the state to come forwardwith evidence on two distinct elements to establish a continuingviolation: evidence of an initial violation (i.e. failed stack test);and make a prima facie showing that the violation is likely tohave continued. While CAA §113(e)(2) requires a lower stan-dard of proof to make the “prima facie showing” than R.C.3704.06(B), both statutes require at least some scintilla of evi-dence, in addition to proof of the initial violation. To be sure, the cases cited in support of the Tenth District’s deci-sion followed the analysis outlined above.16 For example, inThermal-Tron, the court determined that the violation continuedfor 11 months based on witness testimony “as well as the wastemanifests, temperature charts, and operating records.”17 In Hoge,the state satisfied the second prong of its initial burden by pre-senting deposition testimony indicating that the unit continuedto operate despite the defendant’s doubt that the unit could op-erate below its emissions limits.18 The court held that “[g]iventhe evidence presented by the Plaintiffs, the Court finds that Plain-tiffs have established a prima facie case of continuing viola-tions.”19 Most notably, the court highlighted that the court’sfinding “only goes to those days which the Plaintiffs can establishBoiler B004 was in operation.”20 Both the Thermal-Tron andHoge courts had considered and relied on evidence beyond theinitial stack test to conclude that the violations at issue were“continuing violations.”The state correctly asserts that the defendant must disprove acontinuing violation “after the attorney general establishes aprima facie case.”21 However, by equating a failed stack test to aprima facie showing that the violation continued, the state hasmisconstrued the evidence required to satisfy its own initial,two-part burden of proof. A failed stack test satisfies the first el-ement—that a violation did in fact occur. The “prima facieshowing” is a separate element—that the violation continued—and is satisfied only by evidence beyond that of the failed stacktest.22 Acceptance of the state’s proposition of law would effec-tively allow the state to satisfy all of its burden by satisfying onlyhalf of its burden.23

The importance of the Supreme Court’s intervention in this case,to clarify and uphold the state’s initial burden of proof, is two-fold. From a legal perspective, the state should not be permittedto continue prosecuting an enforcement action without provingeach element of each claim. Supreme Court review of environ-mental cases in Ohio is rare and, as Shelly presents an issue offirst impression, a proper interpretation of the law is essential.The practical implications are just as significant. While the de-fendant may rebut the presumption of a continuing violation,any premature burden shift subjects defendants to (potentially)excessive and unsubstantiated penalties, especially if the only waythe defendant can stop the tolling is “by passing the emissionstest or by altering its permit.”24 Both options can take months tocomplete, all the while the defendant remains on the clock—atup to $25,000 per day. Readers who represent clients regulatedby or enforcing air permits may wish to monitor Shelly to seehow the Court addresses the state’s initial burden of proof. n

Author bioRyan Elliott is an associate in the environmental practicegroup in the Columbus office of Shumaker, Loop & Kendrick,LLP. Elliott has experience in several aspects of environmentallaw including federal and state air, water and solid waste com-pliance matters.

Endnotes1 Appellants’ memorandum in support of jurisdiction, Feb. 11, 2011,

State ex rel. Ohio Attorney General v. The Shelly Holding Co., et al.,Supreme Court of Ohio Case No. 2011-0252, at p. 2.

2 R.C. 3704.06(C).3 Appellants’ merit brief, July 8, 2011, State ex rel. Ohio Attorney General

v. The Shelly Holding Co., et al., supra, at p. 4.4 Appellee’s merit brief, Aug. 24, 2011, State ex rel. Ohio Attorney General

v. The Shelly Holding Co., et al., supra, at p. 9.5 40 CFR §60.8.6 State ex rel. Ohio Attorney General v. The Shelly Holding Co., et al. (Sept.2, 2009), Franklin Cty. C.P. No. 07CVH07-9702 (Shelly I), at p. 45.

7 Appellants’ merit brief, at pp. 9-10.8 Shelly I, at pp. 45-46.9 State ex rel. Ohio Attorney General v. The Shelly Holding Co., et al., 10thDist. No. 09AP-938, 2010-Ohio-6526, 946 N.E.2d 295 (Shelly II), at¶55.

10 State ex rel. Celebrezze v. Thermal-Tron, Inc. (8th Dist. 1992), 71 OhioApp.3d 11, 1992 Ohio LEXIS 723; Shelly II, at ¶66.

11 Appellee’s merit brief, at p. 16.12 Schaffer v. Donegan (1990), 66 Ohio App.3d 528, 534, 585 N.E.2d 854(citing Martin v. Columbus (1920), 101 Ohio St. 1, 127 N.E. 411).

13 R.C. 3704.06(B).14 See Getty Oil Co. v. Ruckelshaus, 467 F.2d 349, 357 (3d Cir. 1972).15 (Emphasis added.) Clean Air Act §113(e)(2), 42 U.S.C. §7413(e)(2).16 State ex rel. Celebrezze v. Thermal-Tron., Inc. (8th Dist. 1992), 71 OhioApp.3d 11, 1992 Ohio LEXIS 723; United States v. Hoge Lumber Com-pany (N.D. Ohio 1997), 1997 U.S. Dist. LEXIS 22359.

17 Thermal-Tron, 71 Ohio App.3d at 16.18 Hoge, at *16-17.19 Hoge, at *17 (emphasis added).20 Id.21 Appellee’s merit brief, at p. 14.22 See Thermal-Tron, 71 Ohio App.3d at 16; see also Hoge, at *16-17 (in-terpreting the CCA civil penalty statute, 42 U.S.C §7413(e)(2).

23 The fallacy of the state’s logic is illustrated by extending it to anotherarea of the law. For example, under the state’s proposition of law it couldmake a prima facie showing of negligence by demonstrating a “duty”and a “breach” without making any showing of “causation” and “dam-ages.” Such a contention turns prima facie on its head. That is, a primafacie showing is one that presents enough evidence in the first instanceto allow the fact-trier to rule in a party’s favor. Black’s Law Dictionary1310 (9th ed. 2009).

24 Appellee’s merit brief, at p. 16.