Opinion
No. 90-03870.
Decided December 12, 1991.
Richard F. Swope, for plaintiff.
Lee Fisher, Attorney General, and Christopher C. Keller, Assistant Attorney General, for defendant.
This cause presents the question whether the state may be liable for the noxious emanations from a waste water treatment facility operated upon its lands.
The evidence presented at trial indicates that in September 1968, the Board of Commissioners of Scioto County and the state of Ohio agreed that the county would construct a waste water treatment facility upon land located near Lucasville and owned by the state of Ohio. At that time, the state was completing construction of the nearby Southern Ohio Correctional Facility ("SOCF"), defendant herein. The agreement provided that the county's waste treatment facility would, for an agreed fee, receive and process all of the waste water generated by SOCF.
On October 14, 1969, the state and the board of commissioners formally entered into a lease of the land for the purpose of "construction, operation and maintenance of a sewage treatment plant." The lease was originally for a term of fifteen years, while the contract to process waste from SOCF was apparently extended from time to time.
On January 25, 1978, plaintiff, Barbara G. Brown, and her husband purchased a home and land located approximately one thousand feet from the treatment facility. The Brown family took possession and occupied the residence in March of that year. Prior to the sale, and for a short time thereafter, no odor was apparent to plaintiff's family.
Later that year, plaintiff and her family began to notice a particular odor whenever the wind blew from a certain direction, and especially after rain. At that time, they speculated that the odor emanated from their own in-ground septic tank. They examined the tank and found no defect that would explain the odor. Later, as the odor continued, it was conjectured that perhaps the leach bed surrounding the septic tank was creating the smell. Further examinations eliminated this source as well.
During the summer of 1979, the odor intensified and became continuous. It was described as the smell of an open sewer. During 1981 and 1982, the odor intensified even more. Plaintiff and her family found it uncomfortable to remain outside near their home.
The smell became worst of all during the period of time from 1983 through 1984. During this time, the odor intensified further and was noticeable even during the cold weather months. The smell apparently became all-pervasive, penetrating into their air-conditioned home during the warmer months.
On August 30, 1985, plaintiff, along with her husband and several neighbors, initiated an action in the Common Pleas Court of Scioto County. That court has yet to act upon the plaintiffs' complaint. On January 16, 1986, plaintiff filed a complaint in this court, seeking damages on several theories, and asserted that defendant SOCF created odors "which are so strong that it has made it impossible for the plaintiffs to live in their residences without discomfort, danger to their health and reduction of their property values."
The complaint alleged that the board of commissioners acted as an agent for SOCF and that SOCF ratified all of the board's acts. Plaintiffs alleged several theories for recovery, including negligence in the construction, maintenance and operation of the facility. Plaintiffs also contended that the facility constituted a nuisance and that defendant inflicted extreme emotional distress upon plaintiffs. Finally, plaintiffs asserted that defendant's actions constituted a taking of their property without compensation. As relief, plaintiffs sought $1,000,000 in damages plus various preliminary and permanent injunctions.
Plaintiffs later voluntarily dismissed their action, but refiled it within one year on March 30, 1990. Eventually, plaintiff's neighbors voluntarily dismissed themselves from the case. Jack and Barbara Brown ended their marriage and, pursuant to their property settlement, Jack Brown no longer has an interest in the residence at issue. He was therefore dismissed as a party to the action. Barbara G. Brown remains as the sole plaintiff in this action.
I
A principal legal issue, raised at various points in the proceedings by defendant, is whether the applicable statute of limitations bars all or parts of plaintiff's theories of recovery. R.C. 2743.16(A) requires that causes of action shall be "commenced no later than two years after the date of accrual of the cause of action * * *." Generally, a cause of action accrues and the statute of limitations begins to run whenever plaintiff has been harmed and has discovered sufficient information to conclude that the harm derived from defendant's actions.
Plaintiff's complaint was originally filed on January 16, 1986. The facts at trial indicated that plaintiff was aware of the source of the offending smell as early as 1979, and certainly no later than 1981. Thus, plaintiff's causes of action premised upon an alleged taking, as well as acts or omissions allegedly done negligently, would appear to have accrued more than two years prior to the filing of her first complaint. Those theories of recovery are therefore barred as untimely commenced.
The parties have tended to focus upon the nuisance aspects of the complaint in arguing the statute of limitations issue. There is authority for the proposition that, ordinarily, a statute of limitations does not run against a nuisance that is continuous, or when a nuisance has gradually become worse with the passing of time. This is based upon the theory that every continuation of a nuisance constitutes a new nuisance. See, e.g., 72 Ohio Jurisprudence 3d (1987), Nuisances, Section 26, at 412-414, and those inapposite cases cited in footnotes 10 through 18.
However, the law on this particular issue is plain and is set forth in R.C. 2743.16(A), as follows: "Subject to division (B) of this section, civil actions against the state permitted by sections 2743.01 to 2743.20 of the Revised Code shall be commenced no later than two years after the date of accrual of the cause of action * * *." (Emphasis added.) Without doubt, the present action is maintainable, if at all, only within the strictures of R.C. 2743.01 through 2743.20. Consequently, the two-year statute of limitations set forth must apply to plaintiff's nuisance claims as well. Those claims predicated upon fumes occurring more than two years prior to the January 16, 1986 filing date are, therefore, not actionable. Likewise, whatever damages plaintiff claims must derive from defendant's acts or omissions occurring within two years from the date this action was commenced.
II
A major issue presented, both before and during the trial of the case, is whether acts or omissions by the county board of commissioners may be imputed to defendant. The evidence at trial, as previously mentioned, indicated that defendant did not begin to operate the facility until June 1, 1985. Prior to that time, the facility had been constructed, maintained and operated by the board of commissioners.
It was plaintiff's contention that the board of commissioners acted as agent for defendant, or, at the very least, that defendant ratified the board's actions. A review of the lease indicates that it is a rather standard, if simplified, form of this kind of agreement. It allows of no greater interpretation than that the state leased the subject parcel to the board of county commissioners for the agreed-upon rentals. The leasehold was complete with no material reservation of any rights that would impact upon the board's ability to fully possess and enjoy its leasehold.
The contract between the state and the board provided that defendant was permitted to connect to the facility for the processing of all of its waste in exchange for the agreed-upon fee. The agreement between them allowed the state to inspect the facility, but did not grant any power to affect the facility's operation should an inspection discover inadequacies. Nor did the agreement provide that the state would inspect the premises, but only that the state reserved the right to do so.
As payment for the waste treatment services, the state agreed to "pay for the maintenance, operation, labor and technical supervision costs of the aforesaid waste water treatment plant * * *." However, the expenses incurred by the county were merely the measure of the fee to be charged for the services rendered. Nothing in the agreement gave SOCF power to supervise or control any aspect of the maintenance, operation, labor or technical supervision at the waste treatment facility. Moreover, there was no competent, credible evidence tending to indicate that the board of county commissioners acted in any relevant way as agent for SOCF. Similarly, ratification is virtually irrelevant to the circumstances proven at trial.
When it appears from the evidence that the lessor merely leased the plot of land, but reserved no control or other right to direct the manner of operations, and surrendered the complete possession and control thereof to the lessee during the term of the lease, then the owner/lessor cannot be made liable to nearby landowners who are damaged "solely through the negligence and omission of duty on the part of lessees." Langabaugh v. Anderson (1903), 68 Ohio St. 131, 67 N.E. 286, paragraph two of the syllabus.
Further, the operation of a waste treatment facility does not ordinarily cause damage to nearby landowners, or create a nuisance. Thus, defendant did not contemplate the creation or maintenance of a nuisance in granting the lease and could not have foreseen the later development of certain problems, discussed infra. "`[W]here the use of the premises may or may not become a nuisance, according as the tenant exercises reasonable care, or uses the premises negligently, the tenant alone is chargeable for the damages arising therefrom.'" Id. at 149, 67 N.E. at 291.
Based upon the applicable law, in light of the preponderance of the evidence adduced at trial, it is concluded that defendant cannot be held liable for any occurrences upon its land prior to June 1, 1985, when the state reentered the premises and began to operate the waste treatment facility.
III
The sewage treatment facility at issue is technically a secondary treatment plant possessing a designed discharge capacity of 1.2 million gallons per day. By the time defendant took control, the board of commissioners had allowed a nearby subdivision as well as a vocational school to discharge waste water into the facility.
The evidence at trial indicated that by 1984, the facility was operating at only twenty-five percent of its capacity, because a number of machines had broken down and were not repaired in several areas of the plant. Apparently, there had been no spare parts on hand and some machines had been "cannibalized" in order to keep other machines in operation. This resulted in periodic shutdowns of the entire facility, with accumulations of untreated waste. By early 1985, seventy-five percent of the machinery was disabled. The results were catastrophic. Raw sewage was observed to be lying exposed to the air and the odor was indeed terrible.
A key component of the waste treatment process is the oxydation ditch. This facility has two oxydation ditches. Sludge is pumped into these rather massive concrete-lined openings and kept aerated by motor-driven rotors that are similar to outboard boat motors. As long as the sewage is properly aerated, very little odor occurs. If the sludge is not continuously aerated, decomposition will occur, producing gas and odors. The plant is then considered septic.
While operated by the board of commissioners, the waste water treatment facility had become septic. Only one of the oxydation ditches appeared to be functional, and only at a low level of capacity. The other ditch had been completely shut down and was utilized to store the sewage sludge from the operating ditch. The sewage pile had grown to enormous proportions and all of it had been septic for a considerable amount of time.
Because of the horrendous odors emanating from the plant, defendant met with county officials in October 1984. The facility had been cited by the Ohio Environmental Protection Agency ("EPA") for excessive bacterial levels. At the meeting, the county commissioners stated that they needed over $1,000,000 to repair the facility and render it operational. They suggested that the funds be supplied by defendant. It was concluded that defendant could more efficiently operate the plant and, consequently, the decision was made to allow the lease and contract to expire.
The law applicable to the defendant's acquisition of the waste water treatment facility is set forth in paragraph two of the syllabus in Garland v. Ohio Dept. of Transp. (1990), 48 Ohio St.3d 10, 548 N.E.2d 233: "Once a governmental entity has made a discretionary decision, it has a reasonable amount of time to implement that decision without incurring tort liability." The question then becomes whether the state, in acquiring what had surely become a massive nuisance, was able to remedy the situation and, if so, whether it was done in a reasonable amount of time.
Upon acquisition of the facility, defendant engaged in a herculean renovation effort. Initially, defendant assigned a trained crew to work fourteen to sixteen hours per day, seven days per week for nearly eight weeks. The nonfunctional equipment was repaired and additional equipment was installed. Refinements were added to the treatment process and both oxydation ditches were cleaned. Additional aeration rotors were added to enhance the oxydation process. Manufacturers' representatives helped in the supervision of all of the new installations and repairs.
New buildings were built to house a large supply of spare parts and a new machine shop was constructed to provide the capacity to make parts that could not be easily purchased. Also, an ongoing maintenance program was adopted and routine inspections began to be conducted by defendant.
The nonfunctioning oxydation ditch posed a considerable problem. Defendant hired a septic tank cleaning contractor to empty the ditch. The ditch contained hundreds of thousands of gallons of sludge. It took the contractor over one month to empty the ditch.
After defendant took over the facility, the odor emanating from it was yet problematical. By August 1985, new aeration units had been installed and many of the other improvements had been concluded. Nevertheless, the formerly inactive oxydation ditch continued to exude an offensive smell. The smell abated only after defendant re-emptied the oxydation ditch and applied thousands of gallons of hydrogen peroxide. This was completed in August 1985; the odor came under control at that time. The upgrades were completed within approximately two years.
The court concludes that, under all of the circumstances, defendant utilized only that amount of time reasonable and necessary to remedy the problems at the waste water treatment facility. Thus, no liability may attach for that odor lingering while the repairs and upgrades were effectuated.
IV
There remains only the issue of whether defendant may be liable for odors alleged to presently emanate from the waste water treatment facility. All of the witnesses agreed that the odors decreased suddenly in both intensity and frequency almost immediately after defendant assumed control of the facility. There is, however, a conflict in testimony as to the present offensiveness and pervasity of the odors. Plaintiff maintains that the odor is yet strong at times and that it continues to affect her property value. Likewise, plaintiff's real estate appraiser asserted that there was sufficient residual odor to impact upon the selling price of plaintiff's home. It is significant that former plaintiffs testified that they were no longer adversely affected by the odors. The court finds, based upon the preponderance of the competent and credible evidence, that plaintiff's property is no longer unreasonably affected by any odors from the facility. Whatever odors remain are minimally intrusive and cannot be said to arise to the level of a nuisance.
Judgment is hereby rendered in favor of defendant and against plaintiff. The requests for injunctive relief are hereby denied.
Judgment for defendant.
FRED J. SHOEMAKER, J., retired, of the Franklin Court Court of Common Pleas, sitting by assignment.