The News Herald (Willoughby, OH)
Mentor Marsh pollution lawsuit can proceed
A Lake County Common Pleas Court judge has refused to dismiss a lawsuit related to pollution at Mentor Marsh State Nature Preserve.
Jerome T. Osborne, the now-deceased founder of Mentor-based Osborne Companies, was sued by the Ohio Attorney General’s Office in 2013. The complaint was filed against Osborne individually, as well as Osborne Concrete and Stone, Lakeshore Boulevard Properties and a family trust.
According to the complaint, Osborne caused or allowed pollutant-laden water containing salt tailings and lime fly ash to be discharged into waters of the state without permits.
The attorney general is seeking more than $25,000 in civil penalties.
The defendants are being sued on five counts — discharging without a permit, creating and maintaining a public nuisance, water quality violations, trespass and common law nuisance.
Osborne’s attorneys, Richard Selby II and Grant Keating, argued the claims are barred or limited because his actions were authorized by the city of Mentor.
They also claimed the case should be dismissed because the fouryear statute of limitations has expired, the laws have changed since the materials were stored and that Osborne was acting in his corporate rather than individual capacity at all times.
State officials contend that the statute of limitations has not expired because the trespass continued from 2002 to 2015.
Judge John O’Donnell recently ruled that genuine issues of fact remain that must be determined at trial.
A status hearing on the case is scheduled for Feb. 15.
The dispute involves more than 60 acres of land adjacent to the Mentor Marsh and currently owned by Lakeshore Boulevard Properties.
According to O’Donnell’s judgment entry:
State officials claim salt tailings from salt mining operations deposited on the “Salt Fill”on more than 9 acres of the property in 1966 continue to leach into the Marsh, violating water quality standards.
Osborne acquired the property in 1965 and transferred the Salt Fill to the family trust in 1997.
Ohio Environmental Agency officials said containment attempts in the 1980s failed to prevent landfill liquids from leaving the property and affecting water quality in the creek and the Marsh. The parties dispute whether the attempts were properly carried out.
In 2002, the EPA received a complaint that there was visible salt on the surface of the Salt Fill. In 2006, Ohio EPA issued a notice of violation to the trust for “ongoing violations of the state water quality criteria resulting from the release of salt-contaminated water.” The trust then transferred ownership of the Salt Fill to Lakeshore, a newly created entity with no other assets, no income and no employees.
In 2007, the EPA issued a notice of violation to Lakeshore as the new owner. Lakeshore then implemented a number of remedial measures between 2007 and 2013 “with no input or approval from Ohio EPA.”
Lakeshore claims the remedial measures were completely successful, while the state argues the violations continued.
“Defendants have asserted the defense of selective prosecution, arguing that all of the state’s claims should be dismissed because the state is ignoring all other known and unknown sources of salt contamination to Blackbrook Creek and the Marsh and seeking to impose a disproportionate penalty on them,” Collins stated in his judgment entry. “Defendants must show that the alleged discrimination is ‘intentional or purposeful.’ ... The state has presented evidence that Ohio EPA is investigating other sources of salt contamination . ... Defendants argue that the state’s proposed remedy — complete removal of the Salt Fill — is so disproportionate to the Salt Fill’s contribution of salt to the Marsh that the state must be acting in bad faith. In response, the state argues that complete removal is necessary to protect the Marsh, and is not intended as punishment.”