The News Herald (Willoughby, OH)

Trial date set in Mentor Marsh pollution case

- By Tracey Read tread@news-herald.com @traceyrepo­rting on Twitter

A trial date has been scheduled in 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.

A nonjury trial before Lake County Common Pleas Judge John P. O’Donnell is scheduled to begin July 30.

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, argue Osborne’s actions were authorized by the city of Mentor.

They also claimed the case should be dismissed because the four-year 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.

O’Donnell previously ruled that genuine issues of fact remain that must be determined at trial.

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 Protection Agency officials said containmen­t attempts in the 1980s failed to prevent landfill liquids from leaving the property and affecting water quality in Blackbrook 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,” O’Donnell 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.”

 ?? JONATHAN TRESSLER — THE NEWS-HERALD ?? Mentor Marsh, designated a National Natural Landmark in 1966, occupies an ancient abandoned channel of the Grand River.
JONATHAN TRESSLER — THE NEWS-HERALD Mentor Marsh, designated a National Natural Landmark in 1966, occupies an ancient abandoned channel of the Grand River.

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