United States District Court, S.D. Ohio, Western Division
State of Ohio, ex rel. Michael DeWine, Ohio Attorney General, Plaintiff,
John D. Muncy, et al., Defendants.
ENTRY AND ORDER DENYING DEFENDANT'S MOTION TO
DISMISS FOR FAILURE TO STATE A CLAIM. (DOC. 16)
M. ROSE UNITED STATES DISTRICT JUDGE.
matter is before the Court for decision on Defendant's
Motion to Dismiss for Failure to State a Claim. (Doc. 16).
The case arises from alleged actions of an owner and a
predecessor-in-interest to the owner that are alleged to have
resulted in damage to the environment. Count I, which asserts
a claim for cost recovery under CERCLA pursuant to 42 U.S.C.
§ 9607(a), does not name Movant as a defendant. But the
even-numbered claims of Counts II through VII charge the
predecessor in interest, Defendant John D. Muncy, alone,
while the odd-numbered ones charge Muncy and the owner,
Defendant James O. Miller, jointly. Muncy seeks to have
counts two through seven dismissed against him.
the State of Ohio, seeks an injunction and damages against
Defendants James O. Miller and John D. Muncy arising out of
soil and ground water contamination at a former manufacturing
plant in Enon. The site is approximately 400 feet north of
the Village of Enon's public drinking water well field.
Complaint ¶ 23. Enon's well field is down gradient
from the site. Complaint ¶ 24. In 1985, Enon detected
vinyl chloride, a microbial degradation product of
trichloroethylene, above the maximum contaminant level in a
Village water production well. Complaint ¶ 25.
corporation named REM Investments, Inc. owned and operated
the plant from 1969 to 1996. Compl., PageID 4, ¶¶
April 1987, Ohio EPA inspected the site and found five
gallons of waste trichloroethylene stored at the site.
Complaint ¶ 27. During 1991-92, the Ohio EPA conducted
ground water sampling at the site. Complaint ¶ 28. The
results revealed volatile organic compounds Cis-1,
2-dichloroethylene at 490 micrograms per liter
(“μg/l”) and trichloroethylene at 180 ppb and
vinyl chloride at 300 μg/l. Complaint ¶ 28. During
1991-92, Ohio EPA also conducted ground water sampling from
Enon's northern area of the well field. Complaint ¶
29. The sampling results showed Cis-1, 2-dichloroethylene,
trichloroethylene, and vinyl chloride in the ground water
that supplies the well field. Complaint ¶ 29. In 1992,
based upon the sampling results Ohio EPA determined that the
source of ground water contamination at Enon well field were
volatile organic compounds migrating from the site's
manufacturing area. Complaint ¶ 30.
1994, REM Investments and Ohio EPA entered into a consensual
administrative order requiring REM Investments to remediate
the site. Id., PageID 5-6, ¶¶ 31, 32.
Pursuant to the 1994 Order, REM Investments removed 150 tons
of soil and injected reagent into the aquifer to cleanse the
ground water. Id., PageID 6-7, ¶¶ 33, 34,
in 2000, REM Investments used an ozone sparging
system to cleanse the aquifer. Id.,
PageID 7, ¶ 41. The Ohio EPA agreed that REM Investments
could shut off the system in 2006. Id., ¶ 42.
December 29, 2006, the Director of Ohio EPA issued with REM
Investments' consent “Director's Final Findings
and Order to REM Investments” that amended the 1994
Order and required maintenance of the ozone sparging system
and continued ground water monitoring. Complaint ¶ 43.
Defendant John D. Muncy signed the Order as President of REM
Investments. Defendant's Motion, at 9. The 2006 Order
states that if there are exceedances of any maximum
contaminant level for a volatile organic compound during two
consecutive monitoring events, REM Investments shall restart
the ozone sparging system within fourteen days of providing
Ohio EPA notification of the second consecutive exceedance.
Complaint ¶ 45.
Investments' ground water samples, taken in 2007-12,
revealed maximum contaminant level exceedances for volatile
organic compounds during at least two consecutive monitoring
events. Complaint ¶ 46. On June 14, 2011, Ohio EPA
informed REM Investments that, as required by the 2006 Order,
it was required to restart the ozone sparging treatment
system and resume ground water monitoring activities.
Complaint ¶ 47. Again, on September 30, 2011, Ohio EPA
informed REM Investments of its obligations under the 2006
Order to restart the ozone sparging system and resume ground
water monitoring activities. Complaint ¶ 48. On November
4, 2011, Ohio EPA issued a Notice of Violation letter to REM
Investments that its failure to restart the ozone sparging
system and to resume ground water monitoring was a violation
of the 2006 Order. Complaint ¶ 49. Based upon ground
water sampling conducted by Ohio EPA from 2001 through 2007
in Enon's well field and Enon's sampling of ground
water from its production wells since at least the late
1980s, volatile organic compounds have migrated from the site
to Enon's well field. Complaint ¶ 59.
about May 15, 2012, REM Investments sold the site property to
Defendant James Miller for approximately $290, 000.00.
Complaint ¶ 21. Following its dissolution, REM
Investments failed to notify Ohio EPA, a creditor of REM
Investments, as required by Ohio Rev. Code § 1701.86(I).
Complaint ¶ 22. Muncy as the President-executive officer
and a shareholder of REM Investments allegedly knew about the
violations of the 2006 Order and failed to exercise his
authority to prevent and stop the violations. Complaint
¶ 22, 64-67, and 77-81.
2006, Ohio EPA and REM Investments agreed to another set of
Director's Final Findings and Order providing that the
sparging system would be restarted if the pollutants in the
ground water exceeded cleanup standards for two consecutive
months. Id., ¶¶ 43 - 45. The Complaint
alleges that such an event occurred between 2007 and 2012.
Id., PageID 8, ¶ 46. The Complaint contends
that Ohio EPA instructed REM Investments to restart the
sparging system, but that REM Investments did not do so.
Id., ¶¶ 47, 48, 49, 80. The Complaint does
not disclose how often the pollutant levels have exceeded the
cleanup standard since 2007, nor does it reveal the
divergence between these levels and the cleanup standard.
to the Complaint, contaminants have migrated to the Enon well
field, prompting the State to request the reactivation of the
sparging system. Id., PageID 9, 18, ¶ 59,
Prayer for Relief, ¶ F. The State portrays the site as a
“substantial threat to public health or safety.”
Id., PageID 9, 17, ¶¶ 60, 104.
October 13, 2015, Plaintiff the State of Ohio filed this suit
in federal court. As REM Investments has dissolved itself,
id., PageID 4, ¶ 22, the State has sued John
Muncy, an REM Investments President and shareholder, and
James O. Miller, who purchased the land from REM Investments,
for seven counts. Id., ¶ 12.
Count I asserts a CERCLA violation against Defendant James O.
Miller, Count II asserts violation of the 2006 Director's
Final Findings and Order in violation of Ohio Revised Code
§ 6111.07(A) alleging REM Investments failed to maintain
the ozone sparging system as required by the 2006 Order, for
which Plaintiff alleges Muncy is subject to injunctive
III alleges REM Investments discharged industrial wastes into
Ohio waters on three occasions without a permit in violation
of Ohio Revised Code § 6111.04. In count three,
Plaintiff seeks joint and several injunctive relief against
Muncy and Miller.
IV alleges Muncy alone is subject to an injunctive order from
the Director of the Ohio EPA due to conditions constituting a
substantial threat to public health or threatening to cause
or contribute to air or water pollution or soil
contamination. Plaintiff alleges it therefore is entitled to
an order requiring Muncy to comply with the 2006 Order and
reimburse Ohio EPA for costs that are necessary to abate
water pollution and soil contamination at the site.
alleges statutory nuisance against both Muncy and Miller in
violation of Ohio Revised Code § 3767.13(B), as
contamination in the ground water has allegedly migrated to