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State ex rel. DeWine v. Musleh

Court of Appeals of Ohio, Seventh District

September 24, 2013

STATE EX REL. MICHAEL DeWINE, OHIO ATTORNEY GENERAL, PLAINTIFF-APPELLANT,
v.
GHASSAN K. MUSLEH, DEFENDANT-APPELLEE.

Civil Appeal from Court of Common Pleas of Mahoning County, Ohio Case No. 10CV4440

For Plaintiff-Appellant Attorney Cameron Simmons Attorney Clint White Asst. Attys. General Environmental Enforcement Section.

For Defendant-Appellee No brief filed.

JUDGES: Hon. Gene Donofrio Hon. Joseph J. Vukovich Hon. Cheryl L. Waite.

OPINION

DONOFRIO, J.

(¶1} Plaintiff-appellant State of Ohio appeals from a Mahoning County Common Pleas Court decision finding that defendant-appellee Ghassan Musleh did not improperly remove asbestos-containing materials from a building he owns in Youngstown, Ohio.

(¶2} Musleh owns a commercial building located at 1823-1825 Wilson Avenue in Youngstown, Mahoning County, Ohio 44506. In late 2005, the Mahoning-Trumbull Air Pollution Control Agency (MTAPCA), which contracts with the Ohio Environmental Protection Agency as the local air pollution control agency for Mahoning and Trumbull counties, received an anonymous complaint that plaster was being removed from the building. In response to the complaint, inspectors from MTAPCA inspected the building in late December 2005 and early January 2006, and took photographs and samples of suspected regulated asbestos-containing material. They observed several piles of plaster that had been stripped from the walls and crumbled plaster on the ledge of a second-story window. A tractor-trailer parked outside beneath that window contained wooden lathes and other loose plaster debris which appeared to have been removed from the walls of the building. Plaster debris was also scattered in the grass surrounding the trailer.

(¶3} Samples of plaster debris taken from piles inside the building and from the window ledge were later revealed through laboratory analysis to contain more than one percent asbestos, exceeding that allowed by law and making it what is referred to as regulated asbestos-containing material (RACM). Based upon what they observed, the inspectors determined that the RACM was being removed from the building and tossed out the window into the trailer. In sum, they concluded that it constituted an unlawful renovation resulting in the improper removal of RACM.

(¶4} On November 26, 2010, Ohio Attorney General Mike Dewine, on behalf of the state, filed a complaint in the Mahoning County Common Pleas Court seeking injunctive relief and civil penalties. The complaint set forth five counts: (1) failure to obtain a thorough asbestos inspection of a facility where a renovation operation will occur; (2) failure to notify Ohio EPA prior to commencement of renovation; (3) failure to remove regulated asbestos-containing material from the facility prior to activity; (4) failure to have an authorized representative trained in the provision of Ohio Adm.Code Chapter 3745-20 present at the location of a renovation operation; and (5) failure to keep asbestos-containing waste material that was not removed prior to renovation adequately wet.

(¶5} The case went to trial before a magistrate and, at the magistrate's request, both parties submitted proposed findings of fact and conclusions of law. On March 27, 2012, the magistrate issued his decision, adopting Musleh's proposed findings of fact and conclusions of law. The magistrate found that there had been a removal of RACM from Musleh's building, constituting a renovation under the Ohio Adm.Code. However, the magistrate found there was no evidence that Musleh or anyone on his behalf had conducted a renovation. The magistrate found that Musleh had not violated R.C. 3704.05 and dismissed the case against him.

(¶6} The state filed objections to the magistrate's decision. On May 29, 2012, the trial court "affirmed" the magistrate's decision with certain modifications. The court found that there was evidence that there had been homeless people residing in the building. The court noted that Musleh had attempted to prevent that by removing mattresses, clothing, and other items and blocking the doors. The court found that the removal of personal property did not equate to "remodeling" and that the state had failed to present any evidence that "remodeling" was occurring or had occurred or that anyone was found on the property doing any "remodeling" work or any type of modification to the building. The court also noted that the state had failed to test any of the material in the dumpster for asbestos. This appeal followed.

STATUTORY FRAMEWORK

(¶7} Ohio's counterpart to the federal Clean Air Act, R.C. Chapter 3704, governs air pollution control. New Boston Coke Corp. v. Tyler, 32 Ohio St.3d 216, 219, 513 N.E.2d 302 (1987). Under the Clean Air Act, asbestos is considered a hazardous air pollutant and there is no known safe level of exposure. 42 U.S.C. 7412; 20 U.S.C. 3601(a)(3). Asbestos handling regulations are found in Ohio Adm.Code Chapter 3745-20 and mirror those set forth in the National Emission Standards of Hazardous Air Pollutants (NESHAP).

(¶8} Under Ohio Adm.Code Chapter 3745-20, there are certain procedures that apply to the demolition or renovation of a facility containing asbestos and to the concomitant removal of that asbestos from the facility. The owner of the facility and the operator of the demolition, renovation, and removal are required to follow procedures for notification, emission control, and waste disposal. Five of those procedures and regulations that are relevant to this appeal correspond to the five counts set forth in the complaint filed by the state against Musleh.

(¶9} First, "each owner or operator of any demolition or renovation operation shall have the affected facility or part of the facility where a demolition or renovation operation will occur thoroughly inspected by a certified asbestos hazard evaluation specialist * * * prior to the commencement of the demolition or renovation for the presence of asbestos * * *." Ohio Adm.Code 3745-20-02(A).

(¶10} Second, "[e]ach owner or operator * * * shall * * * [p]rovide the director of Ohio EPA with written notice of intention to demolish or renovate * * * [a]t least ten working days before the beginning of any demolition operation, asbestos stripping or removal work, or any other activity including salvage activities and preparations that break up, dislodge or similarly disturb asbestos material * * *." Ohio Adm.Code 3745-20-03(A)(1), (3)(a).

(¶11} Third, "[e]ach owner or operator of a demolition or renovation operation * * * shall * * * [r]emove all regulated asbestos-containing material from a facility being demolished or renovated before any activity begins that would break up, dislodge, or similarly disturb the materials or preclude access to the materials for subsequent removal." Ohio Adm.Code 3745-20-04(A)(1).

(¶12} Fourth, "[n]o regulated asbestos-containing material shall be stripped, removed, or otherwise handled or disturbed at a facility regulated by this chapter unless * * * [a]t least one authorized representative, trained in the provisions of this chapter and the means of complying with them, is present at the location of operations." And "[e]vidence that the required training has been completed shall be posted and made available for inspection by the director or the director's representative at the demolition or renovation site." Ohio Adm.Code 3745-20-04(B)(1), (4).

(¶13} Fifth, "[e]ach owner or operator of any demolition [or] renovation * * * shall discharge no visible emissions to the outside air during the collection, processing (including incineration), packaging, transporting, or deposition of any asbestos-containing waste material, and * * * [a]dequately wet asbestos-containing waste material * * *."

(¶14} Turning to the state's appeal, it raises three assignments of error. The state's second and third assignments of error will be addressed out of order for ease of analysis. Also, it should be noted that Musleh has failed to file a brief in this matter. Therefore, we may accept state's statement of the facts and issues as correct and reverse the judgment if appellant's brief reasonably appears to sustain such action. App.R. 18(C).

RENOVATION & REMOVAL

(¶15} In its first assignment of error, the state argues:

The trial court erred as a matter of law by failing to apply the correct definition of "renovation" as required by the Ohio Administrative Code.

(¶16} The trial court modified the magistrate's decision by expanding on what it thought the evidence showed was occurring at Musleh's building:

The Court finds that removal of personal property is not the equivalent of remodeling. The Court finds the State of Ohio failed to present any evidence that remodeling had occurred or was occurring. The State of Ohio did not present evidence that anyone was found on the ...

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