The document discusses an environmental enforcement case before the Supreme Court of Ohio regarding whether a single failed emissions test establishes a presumption of continuing violations. It argues that (1) the state bears the initial burden of proving each violation, including proving that a violation continued beyond the initial failed test; (2) a failed test only satisfies the first part of proving an initial violation, and the state must provide additional evidence that the violation likely continued; and (3) if a failed test alone established a presumption of continuing violations, it would improperly relieve the state of fully proving its case and subject defendants to excessive penalties without sufficient evidence.
The decision by the U.S. District Court for the Southern District of Ohio. EQT had leased land from Alex Cooper, et al with an initial five-year term. The lease provided for a five-year extension. It also required EQT to drill at least one well on/under the property during the first five-year lease. EQT failed to drill a well in the first term but instead elected to extend the lease for an additional five years. The federal judge found that EQT has the right to extend the lease even if they didn't drill a well during the first term.
A court case in which a landowner in Ohio sued to cancel a lease because the driller and the company that owns the lease have not paid any royalties since drilling. The Fifth Appellate District Court of Ohio found that because a specific provision in the original lease does not provide for cancellation due to non-payment of royalties, the landowners will have to continue to get screwed.
US Court of Appeals for the Third Circuit - Pollock v Energy Corporation of A...Marcellus Drilling News
On Monday, October 24, 2016, the Third Circuit Court of Appeals found that ECA did not meet its burden of proving its need for a new trial in the case involving a $1.1 million judgment to landowners. The landowners sued ECA in federal court in 2010, alleging they did not receive their proper amount of royalties under their leases because allegedly improper post-production costs were deducted. The District Court jury awarded $1.1 million in damages. ECA appealed the verdict to the Third Circuit.
Motion before the Federal Court;
Bill of Costs as award of the Federal Court of Canada to the Right Honorable Major Keyvan Nourhaghighi who won a case against three Crown lawyer
File T-1020-07
An Ohio landowner whose land Sunoco Logistics Partners wants to traverse with the Mariner East 2 pipeline tried a novel legal argument. The landowner's attorneys argued in the Ohio Seventh District Court of Appeals that pure propane and pure butane--both of which would be transported through the pipeline from eastern Ohio all the way to the Marcus Hook refinery near Philadelphia--are not "petroleum." At least, not petroleum for the purposes of the permit which grants Sunoco the right to build the pipeline to transport petroleum products. The Court of Appeals justices rejected that argument and said, in essence, that propane and butane fit under the definition of petroleum as that word has been used for generations. This is the court's ruling.
The decision by the U.S. District Court for the Southern District of Ohio. EQT had leased land from Alex Cooper, et al with an initial five-year term. The lease provided for a five-year extension. It also required EQT to drill at least one well on/under the property during the first five-year lease. EQT failed to drill a well in the first term but instead elected to extend the lease for an additional five years. The federal judge found that EQT has the right to extend the lease even if they didn't drill a well during the first term.
A court case in which a landowner in Ohio sued to cancel a lease because the driller and the company that owns the lease have not paid any royalties since drilling. The Fifth Appellate District Court of Ohio found that because a specific provision in the original lease does not provide for cancellation due to non-payment of royalties, the landowners will have to continue to get screwed.
US Court of Appeals for the Third Circuit - Pollock v Energy Corporation of A...Marcellus Drilling News
On Monday, October 24, 2016, the Third Circuit Court of Appeals found that ECA did not meet its burden of proving its need for a new trial in the case involving a $1.1 million judgment to landowners. The landowners sued ECA in federal court in 2010, alleging they did not receive their proper amount of royalties under their leases because allegedly improper post-production costs were deducted. The District Court jury awarded $1.1 million in damages. ECA appealed the verdict to the Third Circuit.
Motion before the Federal Court;
Bill of Costs as award of the Federal Court of Canada to the Right Honorable Major Keyvan Nourhaghighi who won a case against three Crown lawyer
File T-1020-07
An Ohio landowner whose land Sunoco Logistics Partners wants to traverse with the Mariner East 2 pipeline tried a novel legal argument. The landowner's attorneys argued in the Ohio Seventh District Court of Appeals that pure propane and pure butane--both of which would be transported through the pipeline from eastern Ohio all the way to the Marcus Hook refinery near Philadelphia--are not "petroleum." At least, not petroleum for the purposes of the permit which grants Sunoco the right to build the pipeline to transport petroleum products. The Court of Appeals justices rejected that argument and said, in essence, that propane and butane fit under the definition of petroleum as that word has been used for generations. This is the court's ruling.
Towards a Standardized Representation of Syllabi to Facilitation Sharing and ...Manas Tungare
Manas Tungare, Xiaoyan Yu, GuoFang Teng, Manuel Pérez-Quiñones, Edward Fox, Weiguo Fan, Lillian Cassel; Towards a Standardized Representation of Syllabi to Facilitate Sharing and Personalization of Digital Library Content.; Proceedings of the 4th International Workshop on Applications of Semantic Web Technologies for E-Learning (SW-EL).
Case Briefing AssignmentA.Introduction Case law” is a ter.docxwendolynhalbert
Case Briefing Assignment
A.
Introduction
“Case law” is a term describing the published decisions of courts of appeal (e.g. the Oregon Court of Appeals, which is the court that reviews appeals of cases in Oregon county Circuit Courts—see http://courts.oregon.gov/COA/). These published decisions set important case precedent, meaning that other courts usually must use these decisions as a template for how to rule on a controversy involving similar facts and circumstances. Typically, the higher the court, the more important the precedent (e.g., the decisions of Oregon’s case, the Oregon Supreme Court supersede decisions of the Oregon Court of Appeals involving the same facts and circumstances).
Case law is important for many reasons. For instance, case law interprets statutes, ordinances, and other law made by Congress, state legislators, city councils, and other lawmakers. Case law also interprets the U.S. Constitution, and the constitutions of the various states. As such, case-law decisions effectively modify the applicable law.
Case law is also important for businesses. This is because case law provides important information regarding how a business should operate under certain facts and circumstances, and how businesses should interpret the law adopted by lawmakers. For instance, in the case of Berry v. Richfiled Oil Corp., 189 Or 568, 587-588 (1950), the Oregon Supreme Court held that a person who has not bothered to read or seek clarification of his or her contract cannot later prevail in court on the basis that the contract has been misrepresented. In the case of Lukas v. J.C. Penney Co., 233 Or 345 (1963), the Oregon Supreme Court ruled that a “cause of action” (meaning a basis for legal liability) for false imprisonment may arise even if the period of confinement is for a few minutes and not a much longer period; hence, businesses cannot necessarily rely on the relatively short duration of improper confinement (e.g. a minute or two) to escape liability for false imprisonment.
Ideally, there would be at least one case describing how the law applies (i.e. how a court would rule) to each possible business controversy. That way, a business could act both proactively (e.g. how to design its store to minimize negligence claims, how to properly prepare employee contracts to minimize claims for breach of contract, etc.) and reactively (e.g. exactly what to do if someone slips and falls, what to do if the business is sued, etc.) for every possible set of facts and circumstances. Of course, in reality, each event in life is a bit different from others. Hence, it is difficult to find a case “on all fours” (i.e. identical) to any particular set of actual facts and circumstances. However, cases can serve as extremely important guides for what to do--and what not to do--in business and in personal lives. Finding a “good case” (i.e. similar facts and circumstances to the issue or problem at hand) is important to lawyers and bu ...
Motion Filed in US District Court of Eastern OH Against Texas Eastern Eminent...Marcellus Drilling News
A memo filed in U.S. District Court of Ohio, Eastern Division, by Roger and Lana Barack and their representative The 1851 Center for Constitutional Law that asks the court to block Texas Eastern Transmission from seizing their land via eminent domain to build a pipeline.
Motion to Reconsider Denial of Motion to Dismiss on Speedy Trial GroundsRich Bergeron
Judge James D. O'Neill III denied my motion to dismiss. He had to overlook a great deal of facts and precedent law to come to the conclusion he did. I lay it all out for him in this motion to reconsider. Can he admit he was wrong, or will he keep being an ignorant and unethical disgrace to the bench? See WWW.NHDRUGTASKFORCE.COM to find out.
The following is a memorandum that I wrote for the Office of the New York State Attorney General regarding a pending Environmental Protection Bureau case.
I have received permission to use this memorandum as a writing sample. The parties’ names have been changed to protect confidentiality.
The following documents were submitted by the Republic of Ecuador to the international arbitration hearing the case between Chevron/Texaco and the Republic. These documents further show the impact of Chevron/Texaco’s decades’ long oil pollution on the people of Ecuador.
Towards a Standardized Representation of Syllabi to Facilitation Sharing and ...Manas Tungare
Manas Tungare, Xiaoyan Yu, GuoFang Teng, Manuel Pérez-Quiñones, Edward Fox, Weiguo Fan, Lillian Cassel; Towards a Standardized Representation of Syllabi to Facilitate Sharing and Personalization of Digital Library Content.; Proceedings of the 4th International Workshop on Applications of Semantic Web Technologies for E-Learning (SW-EL).
Case Briefing AssignmentA.Introduction Case law” is a ter.docxwendolynhalbert
Case Briefing Assignment
A.
Introduction
“Case law” is a term describing the published decisions of courts of appeal (e.g. the Oregon Court of Appeals, which is the court that reviews appeals of cases in Oregon county Circuit Courts—see http://courts.oregon.gov/COA/). These published decisions set important case precedent, meaning that other courts usually must use these decisions as a template for how to rule on a controversy involving similar facts and circumstances. Typically, the higher the court, the more important the precedent (e.g., the decisions of Oregon’s case, the Oregon Supreme Court supersede decisions of the Oregon Court of Appeals involving the same facts and circumstances).
Case law is important for many reasons. For instance, case law interprets statutes, ordinances, and other law made by Congress, state legislators, city councils, and other lawmakers. Case law also interprets the U.S. Constitution, and the constitutions of the various states. As such, case-law decisions effectively modify the applicable law.
Case law is also important for businesses. This is because case law provides important information regarding how a business should operate under certain facts and circumstances, and how businesses should interpret the law adopted by lawmakers. For instance, in the case of Berry v. Richfiled Oil Corp., 189 Or 568, 587-588 (1950), the Oregon Supreme Court held that a person who has not bothered to read or seek clarification of his or her contract cannot later prevail in court on the basis that the contract has been misrepresented. In the case of Lukas v. J.C. Penney Co., 233 Or 345 (1963), the Oregon Supreme Court ruled that a “cause of action” (meaning a basis for legal liability) for false imprisonment may arise even if the period of confinement is for a few minutes and not a much longer period; hence, businesses cannot necessarily rely on the relatively short duration of improper confinement (e.g. a minute or two) to escape liability for false imprisonment.
Ideally, there would be at least one case describing how the law applies (i.e. how a court would rule) to each possible business controversy. That way, a business could act both proactively (e.g. how to design its store to minimize negligence claims, how to properly prepare employee contracts to minimize claims for breach of contract, etc.) and reactively (e.g. exactly what to do if someone slips and falls, what to do if the business is sued, etc.) for every possible set of facts and circumstances. Of course, in reality, each event in life is a bit different from others. Hence, it is difficult to find a case “on all fours” (i.e. identical) to any particular set of actual facts and circumstances. However, cases can serve as extremely important guides for what to do--and what not to do--in business and in personal lives. Finding a “good case” (i.e. similar facts and circumstances to the issue or problem at hand) is important to lawyers and bu ...
Motion Filed in US District Court of Eastern OH Against Texas Eastern Eminent...Marcellus Drilling News
A memo filed in U.S. District Court of Ohio, Eastern Division, by Roger and Lana Barack and their representative The 1851 Center for Constitutional Law that asks the court to block Texas Eastern Transmission from seizing their land via eminent domain to build a pipeline.
Motion to Reconsider Denial of Motion to Dismiss on Speedy Trial GroundsRich Bergeron
Judge James D. O'Neill III denied my motion to dismiss. He had to overlook a great deal of facts and precedent law to come to the conclusion he did. I lay it all out for him in this motion to reconsider. Can he admit he was wrong, or will he keep being an ignorant and unethical disgrace to the bench? See WWW.NHDRUGTASKFORCE.COM to find out.
The following is a memorandum that I wrote for the Office of the New York State Attorney General regarding a pending Environmental Protection Bureau case.
I have received permission to use this memorandum as a writing sample. The parties’ names have been changed to protect confidentiality.
The following documents were submitted by the Republic of Ecuador to the international arbitration hearing the case between Chevron/Texaco and the Republic. These documents further show the impact of Chevron/Texaco’s decades’ long oil pollution on the people of Ecuador.
Topics covered in this month’s patent group presentation include proposed federal trade secret legislation, recent case law regarding the presumption of irreparable harm, and recent case law regarding factual findings and new grounds for rejections.
Case Citation (Case names should be in Italics; ex. John v. Doe 12.docxjasoninnes20
Case Citation (Case names should be in Italics; ex. John v. Doe 123 F.3d 456 ( 1st Cir. 2016))
Facts:
These are the most important facts of the case; they should include the parties involved, what happened and how the case got to this point (the procedural history: who’s suing who? What happened in the lower court? Who is appealing?)
Issue:
This is the question presented for the court to answer. This will usually be a question about how the law is/was applied to the case and whether it was done correctly This should be in the form of a question. In many cases the issue will also correspond with why a person is appealing
Rule:
This explains how the court should apply the relevant rule of law. This does NOT mean the ruling in the case. This section should explain how the court is supposed to apply the law to answer the question in the issue
Analysis:
In this section of the brief you will explain how the applied the law and reached its decision in the case. This should connect the rule of law explained in the previous section to the facts of the case.
Conclusion:
How the court answered the question in the issue and how the court ruled in the case
*Each section should be written in single-spaced, 12 pt. Times New Roman font. There should only be one space between the case citation and each of the sections. DO NOT include the date, class, my name or your name. Failure to follow these instructions will result in point deductions on your grade.
O'Brien v. Ohio State Univ.
Court of Appeals of Ohio, Tenth Appellate District, Franklin County
September 20, 2007, Rendered
No. 06AP-946
Reporter
2007-Ohio-4833 *; 2007 Ohio App. LEXIS 4316 **
James J. O'Brien, Plaintiff-Appellee/Cross-Appellant, v. The Ohio State University, Defendant-Appellant/Cross-
Appellee.
Subsequent History: Discretionary appeal not allowed by, Motion granted by O'Brien v. Ohio State Univ., 2008
Ohio 565, 2008 Ohio LEXIS 465 (Ohio, Feb. 20, 2008)
Prior History: [**1] APPEAL from the Ohio Court of Claims. (C.C. No. 2004-10230).
O'Brien v. Ohio State Univ., 2006 Ohio 4737, 2006 Ohio Misc. LEXIS 130 (Ohio Ct. Cl., Aug. 18, 2006)
Disposition:
Counsel: Murray Murphy Moul + Basil LLP, Joseph F. Murray and Brian K. Murphy, for plaintiff-appellee.
Marc Dann, Attorney General, and Peggy W. Corn, for defendant-appellant.
Vorys, Sater, Seymour and Pease LLP, David S. Cupps and William G. Porter II, special counsel to the Attorney
General, and counsel for defendant-appellant.
Judges: TYACK, J. BOWMAN, J., concurs. FRENCH, J., dissents. BOWMAN, J., retired of the Tenth Appellate
District, assigned to active duty under the authority of Section 6(C), Article IV, Ohio Constitution.
https://advance.lexis.com/api/document?collection=cases&id=urn:contentItem:4PPV-6J10-TX4N-G06N-00000-00&context=
https://advance.lexis.com/api/document?collection=cases&id=urn:contentItem:4KWK-P1P0-TVW7-H200-00000-00&context=
O'Brien v. Ohio State ...
Case Citation (Case names should be in Italics; ex. John v. Doe 12.docxcowinhelen
Case Citation (Case names should be in Italics; ex. John v. Doe 123 F.3d 456 ( 1st Cir. 2016))
Facts:
These are the most important facts of the case; they should include the parties involved, what happened and how the case got to this point (the procedural history: who’s suing who? What happened in the lower court? Who is appealing?)
Issue:
This is the question presented for the court to answer. This will usually be a question about how the law is/was applied to the case and whether it was done correctly This should be in the form of a question. In many cases the issue will also correspond with why a person is appealing
Rule:
This explains how the court should apply the relevant rule of law. This does NOT mean the ruling in the case. This section should explain how the court is supposed to apply the law to answer the question in the issue
Analysis:
In this section of the brief you will explain how the applied the law and reached its decision in the case. This should connect the rule of law explained in the previous section to the facts of the case.
Conclusion:
How the court answered the question in the issue and how the court ruled in the case
*Each section should be written in single-spaced, 12 pt. Times New Roman font. There should only be one space between the case citation and each of the sections. DO NOT include the date, class, my name or your name. Failure to follow these instructions will result in point deductions on your grade.
O'Brien v. Ohio State Univ.
Court of Appeals of Ohio, Tenth Appellate District, Franklin County
September 20, 2007, Rendered
No. 06AP-946
Reporter
2007-Ohio-4833 *; 2007 Ohio App. LEXIS 4316 **
James J. O'Brien, Plaintiff-Appellee/Cross-Appellant, v. The Ohio State University, Defendant-Appellant/Cross-
Appellee.
Subsequent History: Discretionary appeal not allowed by, Motion granted by O'Brien v. Ohio State Univ., 2008
Ohio 565, 2008 Ohio LEXIS 465 (Ohio, Feb. 20, 2008)
Prior History: [**1] APPEAL from the Ohio Court of Claims. (C.C. No. 2004-10230).
O'Brien v. Ohio State Univ., 2006 Ohio 4737, 2006 Ohio Misc. LEXIS 130 (Ohio Ct. Cl., Aug. 18, 2006)
Disposition:
Counsel: Murray Murphy Moul + Basil LLP, Joseph F. Murray and Brian K. Murphy, for plaintiff-appellee.
Marc Dann, Attorney General, and Peggy W. Corn, for defendant-appellant.
Vorys, Sater, Seymour and Pease LLP, David S. Cupps and William G. Porter II, special counsel to the Attorney
General, and counsel for defendant-appellant.
Judges: TYACK, J. BOWMAN, J., concurs. FRENCH, J., dissents. BOWMAN, J., retired of the Tenth Appellate
District, assigned to active duty under the authority of Section 6(C), Article IV, Ohio Constitution.
https://advance.lexis.com/api/document?collection=cases&id=urn:contentItem:4PPV-6J10-TX4N-G06N-00000-00&context=
https://advance.lexis.com/api/document?collection=cases&id=urn:contentItem:4KWK-P1P0-TVW7-H200-00000-00&context=
O'Brien v. Ohio State.
1. In My Opinion
Environmental enforcement:
Defendants liable until
proven otherwise?
by Ryan Elliott
Contrary to some of the most fundamental tenets of our judicial finding that the violations of Shelly’s permits continued after the
system (and Ohio’s air pollution control law), defendants may one-day stack test events.”7 The trial court rejected the state’s in-
bear the burden of proof in environmental enforcement actions vitation to infer a continuing violation, explaining that “[e]xcept
in which the state seeks to impose civil penalties for continuing for the date of the specific ‘stack test,’ there is not a specific test
violations. In State v. The Shelly Holding Co., the Supreme Court result proving that the violation continued. … Simply put the
of Ohio will address, for the first time, the state’s initial burden Court does not find the requested inference to be reasonable
of proof and decide whether a single violation of a unit’s air per- given the fact that the State has the burden.”8 The penalties as-
mit, evidenced by a failed stack test, is—without any additional sessed were limited to the nine dates in which the noncompliant
evidence—presumed to “continue” each and every day thereafter stack tests were conducted.
until the defendant-violator demonstrates compliance.1 Consid- The state appealed to the 10th District Court of Appeals con-
ering the defendant is subject to a civil penalty of up to $25,000 tending that “the trial court erred by limiting emissions viola-
for each day of violation, it is paramount that a court properly tions and resulting penalties to the date of the nonconforming
determine whether a “continuing violation” has in fact occurred emissions test results.”9 The appeals court agreed, and held that
and, ultimately, the correct number of days during which the vi- “in determining the number of days each violation existed, the
olation continued.2 trial court should have concluded the violation continued until
On July 23, 2007, the state of Ohio, on behalf of Ohio Environ- the subsequent stack test determined the plant no longer was vi-
mental Protection Agency (Ohio EPA), filed a civil enforcement olating the permit limitations.”10 The 10th District’s holding,
action against several related companies. The state alleged viola- somewhat cryptic in its analysis of the state’s initial burden of
tions of Ohio’s air pollution control law, R.C. 3704, and sought proof, has resulted in unclear and potentially problematic asser-
injunctive relief as well as civil penalties.3 The defendants are tions at the Supreme Court.
Ohio-based businesses that operate hot-mix asphalt (HMA) For instance, does the 10th District’s holding stand for the
plants used for paving roads. The plants are regulated under proposition that evidence of a single violation—without any ad-
Ohio’s air pollution control law and all have air permits issued by ditional evidence presented by the state—satisfies the state’s ini-
Ohio EPA. With respect to the issue pending before the tial burden of proof, thereby establishing a presumption that the
Supreme Court, the state asserted that five HMA plants violated violation continued until a subsequent stack test demonstrates
an emission limit during a three-hour “stack test” and that the compliance? The state, positing that “A failed emissions compli-
violations at each plant continued for 2,912 days until Shelly ance test is prima facie proof of an emissions violation that is
could demonstrate compliance via stack testing.4 presumed to continue until compliance is demonstrated,” seems
Stack testing measures emissions of gases that are exhausted from to be advocating for that exact interpretation.11 An analysis of
a facility into the ambient air during representative operating the relevant statutes and case law reveals that such a rule of law
conditions.5 The parties do not dispute that the results of stack cannot be maintained as it would impermissibly excuse the state
tests conducted at five of Shelly’s plants established an emission from satisfying its initial burden of proof.
violation on the particular dates of the tests. Rather, the parties To begin, the plaintiff in any civil action bears the burden of
contest the continuing nature of each violation and the evidence proof for each element of each claim for relief.12 Under Ohio’s air
each party must put forth to (dis?)prove the same. The state’s ini- pollution control laws, the state bears the burden of proving a vi-
tial burden of proof—critical to the continuing violation analy- olation for each day the state seeks to impose liability.13 Similarly,
sis—is a fundamental threshold that must be satisfied before in a federal enforcement action under the Clean Air Act (CAA),
shifting the burden to the defendant. the burden of establishing a violation is on the government.14
At trial, the state argued that, once an initial violation is estab- Clean Air Act §113(e)(2) states that a continuing violation may
lished by evidence of a failed stack test, the court should infer only be presumed “where the Administrator or an air pollution
that the violation continued each day thereafter until a stack test control agency has notified the source of the violation, and the
demonstrates compliance.6 The defendants responded by high- plaintiff makes a prima facie showing that the conduct or events
lighting that “the State presented no testimony, no documents, giving rise to the violation are likely to have continued or re-
no operational data, no additional engineering tests, no calcula- curred past the date of notice.”15
tions, nor any other evidence of any sort to support a factual
28 Ohio Lawyer November/December 2011 www.ohiobar.org
2. The statute unambiguously requires the state to come forward Author bio
with evidence on two distinct elements to establish a continuing
violation: evidence of an initial violation (i.e. failed stack test); Ryan Elliott is an associate in the environmental practice
and make a prima facie showing that the violation is likely to group in the Columbus office of Shumaker, Loop & Kendrick,
have continued. While CAA §113(e)(2) requires a lower stan- LLP. Elliott has experience in several aspects of environmental
dard of proof to make the “prima facie showing” than R.C. law including federal and state air, water and solid waste com-
3704.06(B), both statutes require at least some scintilla of evi- pliance matters.
dence, in addition to proof of the initial violation.
To be sure, the cases cited in support of the Tenth District’s deci-
sion followed the analysis outlined above.16 For example, in
Thermal-Tron, the court determined that the violation continued
for 11 months based on witness testimony “as well as the waste Endnotes
manifests, temperature charts, and operating records.”17 In Hoge, 1
Appellants’ memorandum in support of jurisdiction, Feb. 11, 2011,
the state satisfied the second prong of its initial burden by pre- State ex rel. Ohio Attorney General v. The Shelly Holding Co., et al.,
senting deposition testimony indicating that the unit continued Supreme Court of Ohio Case No. 2011-0252, at p. 2.
to operate despite the defendant’s doubt that the unit could op- 2
R.C. 3704.06(C).
erate below its emissions limits.18 The court held that “[g]iven 3
Appellants’ merit brief, July 8, 2011, State ex rel. Ohio Attorney General
the evidence presented by the Plaintiffs, the Court finds that Plain- v. The Shelly Holding Co., et al., supra, at p. 4.
tiffs have established a prima facie case of continuing viola- 4
Appellee’s merit brief, Aug. 24, 2011, State ex rel. Ohio Attorney General
tions.”19 Most notably, the court highlighted that the court’s v. The Shelly Holding Co., et al., supra, at p. 9.
finding “only goes to those days which the Plaintiffs can establish 5
40 CFR §60.8.
Boiler B004 was in operation.”20 Both the Thermal-Tron and 6
State ex rel. Ohio Attorney General v. The Shelly Holding Co., et al. (Sept.
Hoge courts had considered and relied on evidence beyond the 2, 2009), Franklin Cty. C.P. No. 07CVH07-9702 (Shelly I), at p. 45.
7
initial stack test to conclude that the violations at issue were Appellants’ merit brief, at pp. 9-10.
8
“continuing violations.” Shelly I, at pp. 45-46.
9
State ex rel. Ohio Attorney General v. The Shelly Holding Co., et al., 10th
The state correctly asserts that the defendant must disprove a Dist. No. 09AP-938, 2010-Ohio-6526, 946 N.E.2d 295 (Shelly II), at
continuing violation “after the attorney general establishes a ¶55.
prima facie case.”21 However, by equating a failed stack test to a 10
State ex rel. Celebrezze v. Thermal-Tron, Inc. (8th Dist. 1992), 71 Ohio
prima facie showing that the violation continued, the state has App.3d 11, 1992 Ohio LEXIS 723; Shelly II, at ¶66.
misconstrued the evidence required to satisfy its own initial, 11
Appellee’s merit brief, at p. 16.
two-part burden of proof. A failed stack test satisfies the first el- 12
Schaffer v. Donegan (1990), 66 Ohio App.3d 528, 534, 585 N.E.2d 854
ement—that a violation did in fact occur. The “prima facie (citing Martin v. Columbus (1920), 101 Ohio St. 1, 127 N.E. 411).
13
showing” is a separate element—that the violation continued— R.C. 3704.06(B).
14
and is satisfied only by evidence beyond that of the failed stack See Getty Oil Co. v. Ruckelshaus, 467 F.2d 349, 357 (3d Cir. 1972).
15
test.22 Acceptance of the state’s proposition of law would effec- (Emphasis added.) Clean Air Act §113(e)(2), 42 U.S.C. §7413(e)(2).
16
tively allow the state to satisfy all of its burden by satisfying only State ex rel. Celebrezze v. Thermal-Tron., Inc. (8th Dist. 1992), 71 Ohio
half of its burden.23 App.3d 11, 1992 Ohio LEXIS 723; United States v. Hoge Lumber Com-
pany (N.D. Ohio 1997), 1997 U.S. Dist. LEXIS 22359.
The importance of the Supreme Court’s intervention in this case, 17
Thermal-Tron, 71 Ohio App.3d at 16.
to clarify and uphold the state’s initial burden of proof, is two- 18
Hoge, at *16-17.
fold. From a legal perspective, the state should not be permitted 19
Hoge, at *17 (emphasis added).
to continue prosecuting an enforcement action without proving 20
Id.
each element of each claim. Supreme Court review of environ- 21
Appellee’s merit brief, at p. 14.
mental cases in Ohio is rare and, as Shelly presents an issue of 22
See Thermal-Tron, 71 Ohio App.3d at 16; see also Hoge, at *16-17 (in-
first impression, a proper interpretation of the law is essential. terpreting the CCA civil penalty statute, 42 U.S.C §7413(e)(2).
23
The practical implications are just as significant. While the de- The fallacy of the state’s logic is illustrated by extending it to another
fendant may rebut the presumption of a continuing violation, area of the law. For example, under the state’s proposition of law it could
any premature burden shift subjects defendants to (potentially) make a prima facie showing of negligence by demonstrating a “duty”
excessive and unsubstantiated penalties, especially if the only way and a “breach” without making any showing of “causation” and “dam-
ages.” Such a contention turns prima facie on its head. That is, a prima
the defendant can stop the tolling is “by passing the emissions facie showing is one that presents enough evidence in the first instance
test or by altering its permit.”24 Both options can take months to to allow the fact-trier to rule in a party’s favor. Black’s Law Dictionary
complete, all the while the defendant remains on the clock—at 1310 (9th ed. 2009).
up to $25,000 per day. Readers who represent clients regulated 24
Appellee’s merit brief, at p. 16.
by or enforcing air permits may wish to monitor Shelly to see
how the Court addresses the state’s initial burden of proof. n
www.ohiobar.org November/December 2011 Ohio Lawyer 29