Fondessy Enterprises, Inc. v. City of Oregon

Hoffman, J. The issues presented in this case are of vital concern and great public interest to every citizen of Ohio, and more particularly, to those citizens who must reside near or otherwise be in close proximity to hazardous waste landfill facilities. We need not dwell at length upon the severity of the problem of hazardous waste in our state. By its very statutory definition, hazardous wastes (generally the chemical by-products of industry and manufacturing) “[p]ose a substantial present or potential hazard to human health or safety or to the environment when improperly stored, treated, transported, disposed of, or otherwise managed.” R.C. 3734.01(J)(2). Three years ago, in Clermont Environmental Reclamation Co. v. Wiederhold (1982), 2 Ohio St. 3d 44, 45, we described the disposal of hazardous waste as a “rapidly growing public health problem.” This phrase — 215 — carries even more weight today, and it is evident that the combined efforts of every level of government (federal, state and municipal) are essential to control and conquer a potentially deadly threat to the public resulting from the disposal of hazardous waste. Recognizing that clear and present danger to its citizens, the appellant responded by producing the legislation in question herein. For the protection and welfare of its citizens, we believe that every municipality has a compelling need to know, accurately and timely, what hazardous wastes are being disposed of and stored long-term within its city limits. Thus, the sole issue raised by this appeal is whether the legislature in enacting R.C. Chapter 3734 has completely foreclosed and precluded a “home rule” municipality from any and all monitoring of hazardous waste facilities located within its borders. To begin with, we reaffirm that the appellant is vested with primary authority to enact police power ordinances not in conflict with the state’s general laws. Section 3, Article XVIII of the Ohio Constitution grants municipalities the power “* * * to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws.” Nor can this power of home rule, expressly conferred upon municipalities, be withdrawn by the General Assembly. Akron v. Scalera (1939), 135 Ohio St. 65, at 66 [13 O.O. 376]. The authority conferred by Section 3, Article XVIII of the Ohio Constitution upon municipalities to adopt and enforce police regulations is limited only by general laws in conflict therewith upon the same subject matter. Scalera, supra, at paragraph one of the syllabus. At the center of the cause subjudice is R.C. 3734.05(D)(3) and the construction given to it by this court in Clermont, supra. Clermont struck down a township zoning resolution that would have had the effect of banning the continued operations of a preexisting hazardous waste facility already constructed and legally in operation under R.C. Chapter 3734. We said in Clermont that R.C. 3734.05(D)(3) was a general law of the state and its language prohibited any political subdivision of the state from “requiring any additional zoning or other approval for the construction and operation of a hazardous waste facility” duly licensed under R.C. Chapter 3734. Id. at paragraph one of the syllabus. Both courts below in the instant case based their decisions on R.C. 3734.05(D)(3) as expressly preempting the appellant from enacting Ordinance No. 12-1984. R.C. 3734.05(D)(3) provides: “No political subdivision of this state shall require any additional zoning or other approval, consent, permit, certificate, or other condition for the construction or operation of a hazardous waste facility authorized by a hazardous waste facility installation and operation permit issued pursuant to this chapter, nor shall any political subdivision adopt or enforce any law, ordinance, or regulation that in any way alters, impairs, or limits the authority granted in the permit.” — 216 — In straightforward fashion, we admit that paragraph two of the syllabus of Clermont and the holding therein do not entirely comport with each other. Because of the importance of resolving this inconsistency, we cite the language in question: “2. R.C. 3734.05(D)(3) was enacted by the General Assembly for the protection of the environment of the state and for the health and safety of its citizens as a reasonable exercise of the state’s general police power. Such law being a ‘general law’ to carry out these statewide legislative goals, municipalities are subject to its provisions notwithstanding the provisions of Section 3, Article XVIII of the Ohio Constitution.” (Emphasis added.) Id. at paragraph two of the syllabus. “Further, we hold that such section of law being a general law enacted within a reasonable exercise of the police power of the state takes precedence over laws in conflict therewith enacted by municipalities pursuant to home rule power granted by Section 3, Article XVIII of the Ohio Constitution. Accordingly, the judgment of the court of appeals is hereby affirmed.” (Emphasis added.) Id. at 50. Taken together, paragraph two of the syllabus of Clermont and its holding should mean that no municipal ordinance may be enacted which conflicts with the state statute. The holding of Clermont calls for the application of the conflict test, that still being the same as enunciated by this court in Struthers v. Sokol (1923), 108 Ohio St. 263, and applied to the instant appeal, infra. If the provisions of R.C. 3734.05(D)(3) do preclude a home rule municipality, with police powers guaranteed it by the Ohio Constitution, from enacting any and all legislation related to the state statute, then that provision of state law must be ruled unconstitutional. However, this court already has held R.C. 3734.05(D)(3) to be constitutional. Clermont, supra, at paragraph one of the syllabus. Obviously, then, the instant provision cannot preclude the enactment of legislation such as the instant ordinance at the threshold. The conflict test must be applied. Furthermore, as “[t]he power of any Ohio municipality to enact local police regulations is derived directly from Section 3 of Article XVIII of the Ohio Constitution and is no longer dependent upon any legislative grant thereof,” the same police power cannot be extinguished by a legislative provision. West Jefferson v. Robinson (1965), 1 Ohio St. 2d 113 [30 O.O.2d 474], paragraph one of the syllabus; Scalera, supra, at 66. If R.C. 3734.05(D)(3) were elevated to a level of “express preemption” (its level as a result of the judgments of the courts below), no police power ordinance in the instant field would survive long enough to face a conflict test against a state statute. Our review of the judgments of the courts below reveals to this court that both courts reasoned and ruled as they did on preemption grounds exclusively rather than applying the conflict test of Struthers, as most recently was accomplished by this court in Weir v. Rimmelin (1984), 15 Ohio St. 3d 55. — 217 — We hold that the language of R.C. 3734.05(D)(3) cannot be employed to nullify the police power granted the city of Oregon by the Home Rule Amendment. R.C. 3734.05(D)(3) may be utilized only to limit the legislative power of municipalities by the precise terms it sets forth. R.C. 3734.05(D)(3) provides a conflict standard by which to judge ensuing legislation in the instant arena of environmental regulation. For example, if the instant city ordinance would have required that Fondessy apply for a city permit for construction or operation of its landfill, the instant city ordinance would be directly in conflict with the first part of R.C. 3734.05(D)(3) and would be declared invalid. As to the second part of R.C. 3734.05(D)(3), the instant city ordinance does not “alter, impair, or limit the authority” granted to Fondessy by the Hazardous Waste Facility Board, either in the construction or physical operation of its facility. Merely by requiring administrative records to be kept daily and provided to appellant monthly, the city is not impeding Fondessy’s seminal operations in any substantive or significant way. As stated by appellant in opening statement at the hearing conducted by the trial court herein, “there’s nothing that this ordinance proposes to do which requires them [Fondessy] to have taller fences, or more guards or more monitoring wells or anything other than that which is required in the state law.” A municipal police power ordinance which does not alter, impair, or limit the operation of a state-licensed hazardous waste facility is not in conflict with R.C. Chapter 3734, and may be held valid. The authority of the Environmental Protection Agency to license, supervise, inspect, and regulate hazardous waste facilities does not preclude municipalities from enacting police power ordinances which do not conflict with that authority. Not only does the instant city ordinance pass muster when set against limiting language of R.C. 3734.05(D)(3), the ordinance survives the conflict test of Struthers, supra. That general test is: “In determining whether an ordinance is in ‘conflict’ with general laws, the test is whether the ordinance permits or licenses that which the statute forbids and prohibits, and vice versa.” Id. at paragraph two of the syllabus. Specifically, does Ordinance No. 12-1984 allow anything that R.C. Chapter 3734 prohibits, or conversely, does Ordinance No. 12-1984 prohibit anything permitted by R.C. Chapter 3734? There is no proscriptive language in Ordinance No. 12-1984. Thus, it passes the latter half of the test on its face. Does Ordinance No. 12-1984 permit anything forbidden by R.C. Chapter 3734? We think not. The maintenance of daily records and their submission to the city along with a fee is not contained in or required by the state statute, and certainly is not proscribed therein. The instant ordinance does not conflict with R.C. Chapter 3734 on either score of Struthers and must be held valid. We find the imposition of a fee to cover the city’s cost of monitoring and digesting the instant information to be a valid and reasonable exercise of its police powers. — 218 — There is no derogation of any state-mandated requirement herein. As stated, supra, there is no statutory requirement in R.C. Chapter 3734 for providing the data the city of Oregon seeks through Ordinance No. 12-1984, and we now proceed to the final reason to declare the instant city ordinance valid. We reject the argument of appellee that R.C. 3734.10 and related sections within R.C. Chapter 3734 provide Oregon with a mechanism to monitor a facility such as appellee’s. R.C. 3734.10 permits appellant to seek relief against a hazardous waste facility for a violation of R.C. Chapter 3734. However, this route is of little succor to a municipality after a toxic waste spill or other similar event has threatened the lives of its inhabitants. Triggering this provision is tantamount to calling the fire department after the house has burned down. Additionally, R.C. 3734.10 calls for preliminary and permanent injunctive relief against any operator “threatening to violate” any provision of R.C. Chapter 3734. Since it is specious to believe any hazardous waste operator would literally threaten to violate the instant chapter (said violation calling for minimum penalties of two years’ imprisonment and/or a $10,000 fine), we construe this language to mean a violation that appears to the complainant to be in the offing. How else, other than through information acquired on a continuous basis, could a municipality such as Oregon perceive a “threatening violation?” What the appellant seeks through its legislation is the necessary “ammunition,” in data form, to “prosecute to termination” (the precise words of R.C. 3734.10), if such prosecution is required. Therefore we hold that where state laws and municipal ordinances concerning the monitoring of hazardous waste landfill facilities located within the corporate limits of the city do not conflict, the state and municipality have concurrent authority under their respective police powers to enforce their respective directives within the corporate limits of the city. Accordingly, the judgment of the court of appeals is reversed. The city of Oregon, as well as the state of Ohio, has the authority to enforce monitoring of hazardous waste facilities located inside the corporate limits of the city. Ordinance No. 12-1984 does not constitute an additional condition for the construction or operation of the hazardous waste facility, nor does the ordinance alter, impair, or limit the authority of the landfill operators to operate said facility under R.C. Chapter 3734. This cause is remanded to the trial court for a determination of the issues left unresolved by that court. Judgment reversed and cause remanded. Celebrezze, C.J., Locher and Holmes, JJ., concur. — 219 — Sweeney, C. Brown and Wright, JJ., dissent. Hoffman, J., of the Fifth Appellate District, sitting for Douglas, J.