[Cite as State ex rel. Dewine v. Washington C.H., 2014-Ohio-3557.]



                                     IN THE COURT OF APPEALS

                           TWELFTH APPELLATE DISTRICT OF OHIO

                                           FAYETTE COUNTY




STATE OF OHIO EX REL. MICHAEL                           :
DEWINE, ATTORNEY GENERAL OF
OHIO,                                                   :            CASE NO. CA2013-12-030

        Plaintiff-Appellant,                            :                 OPINION
                                                                           8/18/2014
   - vs -                                               :

CITY OF WASHINGTON COURT HOUSE, :
OHIO,
                                :
      Defendant-Appellee.
                                :



         CIVIL APPEAL FROM FAYETTE COUNTY COURT OF COMMON PLEAS
                            Case No. 06 CVH 00352



Michael DeWine, Ohio Attorney General, L. Scott Helkowski, Summer J. Koladin Plantz,
Environment Enforcement Section, 30 East Broad Street, 25th Floor, Columbus, Ohio 43215,
for plaintiff-appellant

Mark J. Pitstick, City Attorney, City of Washington Court House, 105 North Main Street,
Washington Court House, Ohio 43160; Frost Brown Todd LLC, Stephen N. Haughey, 3300
Great American Tower, 301 East Fourth Street, Cincinnati, Ohio 45202; and Frost Brown
Todd LLC, Frank J. Reed, Jr., 10 West Broad Street, Suite 2300, Columbus, Ohio 43215, for
defendant-appellee



        PIPER, J.

        {¶ 1} Plaintiff-appellant, the state of Ohio, appeals a decision of the Fayette County

Court of Common Pleas denying its motion to find defendant-appellee, City of Washington

Court House (the City), in contempt for failing to abide by the terms of a consent agreement
                                                                   Fayette CA2013-12-030

entered between the two parties.

       {¶ 2} Washington Court House has a population of approximately 14,000. The

percentage of the City's citizens at or below the poverty level is higher than the state

average, and many of the jobs in the City are based on manufacturing that is becoming

obsolete and in industries that are moving out of the country to foreign markets. Over the

course of several years, state funding has decreased, and the City no longer receives as

much aid to improve its public works, including the City's sewers and treatment plant for

which the citizens pay the sixth-highest sewer rates in Ohio.

       {¶ 3} The City owns and operates a wastewater treatment plant and wastewater

collection system that carries wastewater to the City's plant for treatment.      Once the

wastewater has been treated, the ultimate discharge (also known as effluent) is routed

toward and emptied into Paint Creek. The Ohio Environmental Protection Agency (EPA)

issued through the United States EPA a National Pollutant Discharge Elimination System

(NPDES) Permit to the City, which permits the City to discharge the treated

wastewater/effluent into Paint Creek. The NPDES Permit sets forth effluent limitations that

the discharges from the treatment plant must meet, as well as testing requirements. The City

is required to submit results of the periodic testing of effluent levels to the Ohio EPA for

review.

       {¶ 4} The City's sewer system is a separate sanitary sewer system in that it is not

designed to carry both storm water and sewage to the treatment plant. As a result, the City's

current system lacks the necessary capacity to carry flow to the treatment plant when "clean

water" (such as rain water or water from Paint Creek) enters the sewage system. When

clean water enters the City's sewer system, the sanitary sewer cannot handle the capacity

and the water and sewage overflows and floods the streets, streams, and basements of the

City's residents.

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        {¶ 5} In 2006, the state filed a complaint for injunctive relief and civil penalties against

the City for violations of R.C. Chapter 6111, Ohio's water pollution control law, and rules

adopted as part of the statute. The state specifically alleged that the City violated the

pertinent statute by failing to properly operate and maintain its wastewater treatment plant.

The state's allegations were based upon the city's allowing discharges of raw and partially

treated sewage from its sewer system to enter state waterways. The state, through the Ohio

EPA, and the City resolved the violations alleged in the complaint by agreeing to a Consent

Order, which was accepted and entered by the trial court in January 2007.

        {¶ 6} The Consent Order addressed the City's need to: (1) immediately comply with

R.C. Chapter 6111, the rules adopted pursuant to the statute and terms and conditions of the

NPDES Permit, (2) properly manage, operate, and maintain the sewer system by providing

adequate capacity, taking all feasible steps to stop sanity sewer overflows and sewage

backups into buildings, and provide notification to parties with a reasonable potential

exposure to pollutants associated with any overflow event,1 (3) develop and implement a

capacity, management, operation and maintenance program (CMOM) by October 1, 2007,

(4) provide a summary of the CMOM program to the Ohio EPA by October 1, 2007, (5)

complete an audit of the CMOM program and provide a report to the Ohio EPA by March 8,
                                                                        2
2008, (6) submit an Overflow Emergency Response Plan by October 1, 2006, (7) implement

the Overflow Emergency Response Plan by December 1, 2006, (8) submit a System

Evaluation and Capacity Assurance Plan (SECAP) and SECAP Implementation Schedule by


1. According to the Consent Order, a "Sanitary Sewer Overflow" (SSO) is an overflow, spill, or release of
wastewater from the City's sanitary sewer system, including inceptor sewers. Some of the overflows discussed
during the hearing included untreated and partially treated sewage flowing into local waterways, coming out of
manholes onto the roads and streets, and spilling into the basements of homes and buildings in Washington
Court House. The overflow material is raw sewage that has not been treated at all because the sewage
overflows before it reaches the treatment plant.

2. Several of the completion dates preceded the actual filing of the Consent Order with the court, and such
projects were completed by the City before the trial court accepted the Consent Order.

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                                                                         Fayette CA2013-12-030

July 1, 2008 to the Ohio EPA for review and approval with the goal of the SECAP being to

provide adequate capacity to convey base and peak flows for all parts of the City's sewer

system to the watershed treatment plant for full treatment, and (9) achieve the goals of the

SECAP by no later than July 1, 2011.

       {¶ 7} While the Consent Order was meant to constitute full satisfaction of the City's

civil liability for the violations alleged in the state's complaint, the order also provided that the

state had the authority to pursue relief should the City continue to violate applicable

environmental rule or statutes, and that the trial court would retain jurisdiction over the issue.

       {¶ 8} The City submitted the CMOM, CMOM Audit, and Overflow Emergency

Response Plan according to the Consent Order. However, the state alleged that the City's

submission of the SECAP and SECAP Implementation Schedule did not meet the

requirements of the specifics set forth in the Consent Order. One such problem with the

SECAP and accompanying schedule was that within the Consent Order, the City agreed to

implement the necessary improvements to the City's watershed treatment plant and sewer

system by July 1, 2011, but then suggested an end date of 2028 for having the

improvements made within the Implementation Schedule. The state also considered several

of the projects that the City had included within the SECAP as unnecessary. Given the

inconsistencies between the Consent Order and the submitted SECAP and Implementation

Schedule, the Ohio EPA did not approve the submissions.

       {¶ 9} Within the Consent Order, the parties agreed that should the City fail to meet its

obligations, the City would be required to pay stipulated penalties according to a schedule set

forth in the Consent Order. These stipulated penalties included penalties for each sanitary

sewer overflow, bypass, and violation of the effluent limitations contained in the City's

NPDES Permit, as well as penalties for missing deadlines such as missing the




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                                                                                Fayette CA2013-12-030

implementation of the SECAP.3 While the City paid approximately $58,000 in penalties for

most of the sanitary sewer overflows, bypasses, and effluent limitations that occurred

following the entry of the Consent Order, the City did not pay all of the stipulated penalties,

nor penalties for failure to meet the requisite deadlines.

         {¶ 10} The state then filed a motion for contempt, asking the trial court to find the City

in contempt for failure to perform according to the Consent Order. The City responded to the

contempt motion, and asserted the defense that it was impossible to perform within the three-

year deadline for the SECAP Implementation Schedule as agreed upon in the Consent

Order.

         {¶ 11} The trial court held a two-day hearing, during which it heard testimony from five

witnesses and reviewed evidence on the matter. The five witnesses were Sheree Gossett-

Johnson (an inspector for the Ohio EPA), Joseph Denen, (the City's manager), Joseph

Burbage (the City's Service Director), Allen Dawson (the City's Wastewater Superintendent),

and Professor Paul Gottlieb from Rutgers University. The trial court issued a decision finding

that contempt was improper because the state failed to carry its burden of proof.

Nonetheless, the trial court ordered the City to pay stipulated penalties for violations that

occurred in 2012, and to complete five specific sewer improvement projects by January 1,

2030. The state now appeals the trial court's decision, raising the following assignment of

error:

         {¶ 12} THE TRIAL COURT ERRED IN FINDING THAT THE STATE FAILED TO

MEET ITS BURDEN OF PROOF THAT A FINDING OF CONTEMPT IS WARRANTED FOR

ANY OF THE CHARGES FILED.

         {¶ 13} In its assignment of error, the state argues that the trial court erred in finding


3. As will be discussed in more detail later in this opinion, "bypass" refers to the process of sending excess
sewage flow (comprised of raw or partially-treated sewage) directly into Paint Creek, rather than being fully
treated before discharge.

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                                                                        Fayette CA2013-12-030

that the City was not in contempt for failing to abide by the Consent Order.

       {¶ 14} Contempt of court is defined as "disobedience of an order of a court * * * which

brings the administration of justice into disrespect, or which tends to embarrass, impede or

obstruct a court in the performance of its functions." Sparks v. Sparks, 12th Dist. Warren No.

CA2010-10-096, 2011-Ohio-5746, ¶ 11, quoting Windham Bank v. Tomaszczyk, 27 Ohio

St.2d 55 (1971) paragraph one of the syllabus. To support a contempt finding, the moving

party must establish by clear and convincing evidence that a valid court order exists, that the

offending party had knowledge of the order, and that the offending party violated such order.

Dudley v. Dudley, 12th Dist. Butler No. CA2012-04-074, 2013-Ohio-859, ¶ 13.

       {¶ 15} A consent order is a contract between the parties based upon the agreements

reached by those parties. Save the Lake v. Hillsboro, 158 Ohio App.3d 318, 2004-Ohio-4522

(4th Dist.). The Consent Order in the case sub judice became an order of the trial court

when the parties submitted the Consent Order to the trial court for its approval, and the trial

court approved the Consent Order. The Consent Order provides, "the Court will retain

jurisdiction of this action for the purpose of administering or enforcing [the City's] compliance

with this Consent Order," so that the trial court retained jurisdiction to enforce the parties'

compliance. As such, the failure to comply with the Consent Order is an action for which the

trial court could have made a finding of contempt.

       {¶ 16} The state alleged three reasons that the trial court erred in failing to find the City

in contempt, (1) the City failed to submit a SECAP and Implementation Schedule in

accordance with the consent order, (2) the City violated the effluent limits contained in the

City's NPDES Permit, and (3) the City failed to pay stipulated penalties for effluent violations.

       {¶ 17} Regarding the City's failure to submit a SECAP and Implementation Schedule,

the Consent Order provided,

              By no later than July 1, 2008, [the City] shall submit to Ohio EPA
              for review and approval a System Evaluation and Capacity
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                                                                              Fayette CA2013-12-030

                Assurance Plan ("SECAP") including an implementation
                schedule.       The goal of the SECAP and the SECAP
                implementation schedule is to provide adequate capacity to
                convey base flows and peak flows for all parts of [the City's]
                sewer system to the WWTP for full treatment. An additional goal
                is to take all feasible steps to stop, and to mitigate the impact of
                SSO(s) and WIB(s).4

                ***

                The SECAP implementation schedule shall be submitted to Ohio
                EPA for approval. The implementation schedule shall include an
                end date of no later than July 1, 2011 by which [the City] will
                have achieved the goals set forth in paragraph 13. The
                implementation schedule, as approved by Ohio EPA, shall be
                incorporated into this Consent Order and become an enforceable
                part of the decree. [The City] shall comply with the schedule and
                perform all of the projects identified in the schedule. [The City]
                shall provide Ohio EPA with annual reports on the progress of
                the projects set forth in the implementation schedule.

        {¶ 18} The record indicates that the City submitted the SECAP to the Ohio EPA in

June 2008. The City's SECAP set forth its plan to meet the goals expressed in the Consent

Order. The City also submitted an accompanying SECAP Implementation Schedule that set

forth the date for meeting the SECAP goals, and indicated that all goals would be met and

projects completed by 2028, rather than the July 1, 2011 date set forth in the Consent Order.

While we agree with the state that the City did not abide by the completion date set forth in

the Consent Order, we do not find that the City is in contempt for not abiding by that term.

        {¶ 19} Stated once more, the goal of the SECAP and the SECAP Implementation

Schedule was to provide adequate capacity to convey base flows and peak flows for all parts

of the City's sewer system to the water treatment plant for full treatment. An additional goal

was to take all feasible steps to stop, and to mitigate the impact of overflows and incidents

where water and sewage flowed into the basements of homes and buildings in the


4. WIB is an acronym for incidents when water flows into basements of homes and buildings. The Consent
Order defines WIB as "wastewater backups into buildings that are caused by blockages or flow conditions in a
sanity sewer other than a building lateral."

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                                                                     Fayette CA2013-12-030

community. The City's SECAP proposed several projects meant to facilitate the elimination

of overflows, bypasses, and effluent that exceeded permit levels. These projects were

designed to meet the goals set forth in the Consent Order, and the Consent Order mandated

that the City create a SECAP that addressed the goals. The Consent Order, did not,

however, mandate that approval of the SECAP was a necessary predicate to the City's

compliance with the Consent Order.

        {¶ 20} The Consent Order did not define "goal." The City's manager, Joseph Denen,

testified that his understanding of the word "goal" during the negotiation process was "that to

which somebody strives, that which you aspire to, that which you seek." Using the word

"goal" and requiring the City to create a SECAP to set forth goals indicates that there was not

a concrete legal basis for requiring the City to take any specific action or set of actions to

meet aspirational ends. Even so, the City included several projects that were designed to

create a SECAP with specific goals in mind, and the Ohio EPA did not represent that the

SECAP was inadequate to reach the stated goals except for the ultimate deadline being past

2011.

        {¶ 21} The state presented testimony from Sheree Gossett-Johnson, who is an

environmental specialist with the Ohio EPA, Division of Surface Water for the Central District

Office, which services Fayette County. Gossett-Jonson's primary duties include inspecting

wastewater treatment plants and helping cities reach compliance with permits. Gossett-

Johnson also assists cities in determining what, if anything, is wrong with the city's

wastewater treatment plant and how to fix any issues.

        {¶ 22} Gossett-Johnson testified that she began working with Washington Court

House in 1994 and has been the City's inspector since that time. Gossett-Johnson testified

that the City has consistently had problems with its sewer system since 1994, and that the

system is "basically falling apart." Gossett-Johnson described that the City's system is a

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                                                                    Fayette CA2013-12-030

"gravity sewer" and that pipes come together without being sufficiently connected to each

other. The City's wastewater treatment plant is unable to accommodate all of the flow

coming through the plant. Consequently, the plant workers pump flow onto the top of the

ground, and as increase flow occurs, the plant workers are forced to bypass flow into chlorine

content tanks and then directly into Paint Creek. Depending on the amount of flow, the plant

may discharge raw and partially treated sewage directly into the creek, thus bypassing full

treatment of the sewage.

       {¶ 23} Gossett-Johnson testified regarding the City's relevant permits and

testing/monitoring requirements. Part of the permits and requirements included a limit on the

circumstances permitting bypass. The City is also charged with testing the bypass to

determine what type of untreated or partially-treated pollutants are discharged into Paint

Creek, and reporting each bypass incident to the Ohio EPA.

       {¶ 24} Gossett-Johnson testified that she acted on behalf of the Ohio EPA in

negotiating the Consent Order, and that the purpose of the order was to ensure that the City

was reviewing its wastewater treatment and determine a way to stop sanitary sewage

overflows and bypassing full treatments. In order to reach the two specific goals of limiting

overflows and bypass incidents, as well as addressing effluent limits listed in the NPDES

Permit, the Ohio EPA required the City to submit a SECAP and a CMOM (Capacity

Management Operations and Maintenance plan) to address ways that the City planned on

reaching the goals.

       {¶ 25} Gossett-Johnson testified that the City submitted the required CMOM and later

performed an audit of its CMOM. The City also submitted an overflow response plan, but did

not submit a SECAP or Implementation Schedule that was approved by the Ohio EPA.

Gossett-Johnson testified that the SECAP and Implementation Schedule were due by July 1,

2008, and that the City submitted its SECAP and Implementation Schedule in June 2008,

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before the deadline set forth in the Consent Order. Gossett-Johnson testified that she did

not approve the SECAP or Implementation Schedule because neither conformed to the

timeline set forth in the Consent Order with completion by July 2011. Gossett-Johnson also

testified that the City presented plans to build or improve upon city structures that were not

necessary to the overall improvement of the sewage system, and that such improvements

were costing the City time and resources that should have been dedicated to the

improvements that were necessary to reach the SECAP goals.5

        {¶ 26} Gossett-Johnson testified that, in her belief, the time table suggested by the

City made approval of the SECAP and Implementation Schedule impossible, and thus

rendered the City in contempt of the Consent Order. However, there was no testimony

presented by the state that the SECAP itself was inadequate to effectuate the overflow,

bypass, and effluent goals. Nor was there any evidence presented that the Ohio EPA was

opposed to the SECAP for reasons other than the fact that the completion date was past

2011. Gossett-Johnson specifically testified that "there's nothing in the study that we

disagree with, we disagree with the timeline."

        {¶ 27} The plain language of the Consent Order did not require approval of the

SECAP by any certain date, or for that matter, any approval at all. The Consent Order only

required the City to present for review and approval a SECAP that addressed the goals

stated above. The record is undisputed that the City abided by this term, by submitting for

review and approval its SECAP that addressed the goals listed in the Consent Order.

Therefore, the City was not in contempt for failing to submit the SECAP according to the

Consent Order.


5. We would note that while the state asserted that some of the projects listed in the City's SECAP were not
necessary to achieve the goals set forth in the Consent Order, the Consent Order specifically noted that the
SECAP should include "but not be limited to" certain evaluations and projects. Therefore the City was not limited
to a specific set or number of projects by the Consent Order.

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                                                                     Fayette CA2013-12-030

       {¶ 28} The state's argument regarding the 2011 timeline is more specific to the

required completion date set forth in the Implementation Schedule. The record is undisputed

that the City and Ohio EPA negotiated the terms of the Consent Order and agreed that the

Implementation Schedule would include an end date of no later than July 1, 2011, by which

time the City would have achieved the goals set forth in the Consent Order. However, the

record is patently clear that achieving all of the goals, and thus adherence to the deadline set

forth within the trial court's adoption of the Consent Order, was impossible.

       {¶ 29} Impossibility of performance is a valid affirmative defense to a contempt

charge. Gauthier v. Gauthier, 12th Dist. Warren No. CA2011-05-048, 2012-Ohio-3046, ¶ 33.

Impossibility of performance occurs when an unforeseen event arises that renders a party's

performance of an obligation impossible. Id. The performance of the obligation must have

been rendered impossible without any fault of the party asserting the defense. Id. A party

who raises the defense of impossibility of performance has the burden of proving it.

       {¶ 30} After reviewing the record, we find that the City has met its burden of proving

that it was impossible to implement the goals listed in the SECAP and complete the projects

listed therein by July 1, 2011. The record is undisputed that both parties acknowledge that

the City was not going to be able to complete the projects by July 1, 2011. Despite each

party moving forward with the Consent Order, both knew full-well that the July 1, 2011

deadline was unattainable.

       {¶ 31} The evidence presented at the hearing demonstrated that 2011 was an

impossible completion date, and thus created an inherently unreasonable goal. Specifically,

Gossett-Johnson testified that the City could not have completed the required projects before

2011, and that the more reasonable time frame would be 15 years. During her cross-

examination, the City asked, "if what you've typically seen for a city this size is 15 years,

you'd agree with me that three years is not possible, right?" Gossett-Johnson answered,

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"yes." Therefore, the state never asserted that completion by the 2011 deadline was ever a

possibility.

        {¶ 32} The City presented the testimony of Professor Paul Gottlieb, who is an

Associate Professor at Rutgers University and Department Chair of Agricultural Food and

Resource Economics. Professor Gottlieb's expert qualifications were stipulated by the state.

Professor Gottlieb testified to the financial conditions of the City, including that it has a

higher-than-the-state-average concentration of families/individuals who live at or below the

poverty level, as well as a higher concentration of elderly residents who are on a fixed

income. Professor Gottlieb also testified to the financial struggles the City faces as it

continues to lose jobs to foreign markets or other industrial closures. Professor Gottlieb

reviewed the City's financial resources, ability to borrow funds, and challenges facing the City

and concluded that it was impossible for the City to have funded the projects necessary to

complete the SECAP within three years of entering the Consent Order.

        {¶ 33} Professor Gottlieb suggested a 30-year time frame for the City to raise the

necessary funds and complete the necessary projects. The Professor's suggestion was

based upon the data that the projects would cost approximately $28 to $30 million dollars to

complete, and that such expenditure would lead to a 63 percent increase in the overall sewer

costs to community residents.

        {¶ 34} Whether the reasonable timeframe was 15 years or 30, the obvious conclusion

for the trial court and this court to make is that a three-year deadline was impossible to

perform.6 The state alleges that the City cannot assert the impossibility defense because the

City is at fault for causing its own impossibility. The state specifically contends that the City

caused its own impossibility when it agreed to the 2011 deadline after consulting an


6. As previously noted, the trial court ordered the City to perform five specific projects by January 1, 2030 so that
the trial court gave the City 17 years from the time of the trial court's entry to complete the sewer improvement
projects.

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environmental impact firm, receiving advice from attorneys, and after participating fully in the

negotiation process with the Ohio EPA.

       {¶ 35} It is undisputed from the record that the City did negotiate the Consent Order

after conferring with several experts in the field, and that the City openly and expressly

agreed to the July 1, 2011 completion date for its Implementation Schedule. Even so, the

trial court heard testimony that the Ohio EPA did not ascribe to the belief that a three-year

deadline was feasible, and that the Ohio EPA advocated for a 15-year timeframe for

completion of the projects required to reach the goals of the SECAP. Moreover, the record is

clear that the City entered into the Consent Order without full knowledge of the financial

repercussions the sewage projects would have on the City.

       {¶ 36} The state anticipated that the costs and affordability of the projects could

possibly result in a change to the implementation process. According to the Consent Order,

"if a project is not recommended, or if an implementation schedule is impacted due solely to

the affordability of the project, [the City] shall provide an affordability analysis including

impacts on user rates." This provision in the Consent Order demonstrates that the state was

aware that affordability issues could impact the implementation of the sewer improvement

projects.   Once the City performed its study of the financial feasibility of making the

improvements, it concluded that the 2011 completion date was impossible, hence its

submission of the Implementation Schedule with a 2028 deadline.

       {¶ 37} Joseph Denen, the City's manager, testified that he was involved in the

negotiation of the Consent Order and that all parties recognized that the 2011 date was

"ambitious." Denen further testified that when the City signed the Consent Order, it did not

"know what the projects are or exactly how much they are going to cost. So we always

discuss that the affordability study and what are the projects you identify would drive the

compliance schedule." Denen further testified that the City did not know how many projects

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would be recommended by the consultants or where the City would get the necessary

funding to complete the recommended projects.

       {¶ 38} After the City was given recommendations for projects, as well as the costs

associated with such, the City then submitted its SECAP and Implementation Schedule with

a deadline of 2028. While the state is not satisfied that the City submitted its SECAP

Implementation Schedule with an end date beyond 2011, the record is undisputed that the

Ohio EPA did not consider the 2011 deadline feasible, and continues to maintain a belief that

the projects necessary to achieve the goals in the SECAP will take 15 years. As such, the

City has proven that complying with the 2011 date was an impossibility, and the trial court

was correct in not finding the City in contempt on the state's charge that the City failed to

abide by the Consent Order regarding its duty to submit a SECAP and Implementation

Schedule.

       {¶ 39} Regarding the violation of the effluent limits contained in the City's NPDES

Permit, the Consent Order permanently enjoined and required the City to immediately comply

with its NPDES Permit and any renewals thereafter. The City was required to monitor and

report its effluent levels to the Ohio EPA so that the EPA could determine if the City was

meeting its limits for the various requirements set forth in the NPDES Permit.

       {¶ 40} The state presented a summary of the violations that had occurred since the

Consent Order was agreed upon, which was based upon monthly discharge reports.

Through the testimony of Gossett-Johnson, the state presented evidence that the City was

required to abide by affluent limits, and that the City's limits had been violated multiple times

from 2007-2012.

       {¶ 41} Gossett-Johnson testified that cities are self-monitoring in that cities monitor

their effluent levels and report such levels to the Ohio EPA. Gossett-Johnson took the self-

reported data and reviewed each city for how many violations that city may have had over a

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course of one to five years. These reports are referred to as discharge monitoring reports, or

DMRs, and are reported to the Ohio EPA on a monthly basis. Gossett-Johnson testified that

when there is violation, she has the responsibility to contact the city and determine why the

violation occurred and what that city plans to do to come into compliance.

       {¶ 42} Should a city have a history of violations and fail to come into compliance,

Gossett-Johnson creates a referral, by which she gathers supporting paperwork and

documentation showing the city's violations and inability to show compliance. The referral is

reviewed by the Ohio EPA's Enforcement Division, and then is discussed with the Attorney

General's Office to see if further action must be taken. If the city is able to work out a plan of

action to bring the standards into compliance, Gossett-Johnson works with the city to ensure

that it has the tools necessary to implement the compliance plan, and to determine if the

city's plans are adequate to achieve compliance.

       {¶ 43} In the case at bar, the summary of violations had been created using data

provided by the City, so that the City was well-aware of the fact that violations had occurred.

Gossett-Johnson testified to the City's effluent level violations, as well as its incidents of

overflow and bypass. Again, the notice of violations of effluent levels, overflow, and bypass

are self-reported by the City so that it would have full knowledge of such violations.

       {¶ 44} While the trial court found that the state failed to present clear and convincing

evidence of the violations, we find that the state has provided supporting evidence and that

such evidence is clear and convincing that the City has incurred violations and has not paid

the stipulated penalties for such. The Consent Order set forth stipulated penalties for failure

to meet deadlines, failure to stop bypass and overflow events from occurring, and for failing

to meet daily effluent limits set forth in the NPDES Permit.

       {¶ 45} The record contains evidence that the City paid $58,000 in stipulated fines, but

did not pay others. Joe Burbage, the City's Service Director, testified that the City did not

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                                                                       Fayette CA2013-12-030

receive notice from the state or Ohio EPA stating that the $58,000 was insufficient to satisfy

the stipulated penalties. While there is no dispute in the record that the City paid part of the

stipulated fees, the record also indicates that the City has not paid all of the stipulated

penalties for its violation of the effluent levels, and incidents of overflow and bypass, and that

a lack of notice from the state did not excuse the non-payment of stipulated penalties.

       {¶ 46} While the City tried to defend its contempt by stating that the Ohio EPA and

state failed to provide notice of the penalties, the record is clear that the City knew of its

violations based upon the fact that such violations were self-reported and based upon testing

and data the City collected and furnished to the Ohio EPA. Therefore, the City knew of its

violations and that it had incurred more stipulated penalties. In fact, Burbage testified that

the City paid the $58,000 in penalties on its own, and did not receive a phone call or letter

indicating that $58,000 in penalties had accrued which required payment. Burbage did not,

however, explain why the City would then require notice through a call or letter regarding the

unpaid penalties when none had been previously required to prompt the City to pay $58,000

in penalties. During the state's cross-examination of Burbage, the following exchange

occurred.

              [Q] And it's my understanding from your testimony that you're
              stating that these are stipulated penalty payments made under
              the consent order, is that correct?

              [A] Yes ma'am.

              [Q] Who told you to make that payment?

              [A] Nobody.

              [Q] So no one from the Attorney General's office called you and
              said you owed us money?

              [A] No ma'am.

              [Q] No one from the Ohio EPA called you and said pay us?

              [A] No ma'am never got the first call.
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              [Q] So you recognized there was a violation and sent in the
              check[?]

              [A] Yes.

This exchange demonstrates that the City was capable of understanding and calculating

when it owed stipulated penalties and what such penalties would be.

       {¶ 46} The City also tried to defend its contempt based on the fact that it did not pay

any stipulated penalties in 2012 once the state filed its contempt charges. However, there is

nothing in the Consent Order that stays the required payment of stipulated penalties on the

filing of contempt charges. Instead, the Consent Order provides, "nothing in this Consent

Order shall be construed so as to limit the authority of the State of Ohio to seek relief against

[the City] or other appropriate persons for claims or conditions not alleged in the complaint,

including violations which occur after the filing of the complaint * * *."

       {¶ 47} The City knew of its burden to pay the stipulated penalties and did not do so.

By signing the Consent Order, the City expressly agreed to pay penalties should it fail to

comply with the Consent Order regarding effluent levels and incidents of bypass or overflow.

The Consent Order expressly provides that payments for stipulated penalties "shall be made

by March 1 of each year for the preceding year's SSO(s) or WWTP bypass(es)," and that

payments of stipulated fines "shall be made within forty-five (45) days from the failure to meet

the applicable NPDES permit limitation." The Consent Order, does not, however, make

payment contingent upon notification to the City of the accrued stipulated penalties or provide

that such penalties are not owed should the state file contempt charges for nonpayment of

the stipulated penalties. Thus, the City is in contempt for failing to obey the Consent Order,

as adopted by the trial court, requiring the City to pay the stipulated penalties.

       {¶ 48} The record indicates that despite finding that the City was not in contempt, the

trial court ordered the City to pay the stipulated penalties "for the calendar year 2012 to the

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present for effluent violations and overflow/bypass events." However, prior to the trial court's

order, the trial court recognized that "the terms of the Consent Order require the City to pay

stipulated penalties for each overflow and/or bypass event from the date of the order. The

City has experienced forty seven (47) overflows and thirty eight (38) bypass events from that

date to the time of the hearing. All penalties have been paid by the City for 2007, 2008,

2009, 2010." However, the record indicated that the City did not pay fines for 2011 or 2012.

Therefore the trial court's order that the City needed to pay the stipulated penalties should

have been preceded by a finding of contempt, as the state presented clear and convincing

evidence that the stipulated penalties were due and owing, the City was aware of such

penalties and their requirement to pay them, and that the City failed to pay the penalties

according to the order.

       {¶ 49} After reviewing the record, we overrule the state's assignment of error as it

pertains to the trial court's finding that the City was not in contempt for failing to submit a

SECAP and Implementation Schedule, as the evidence is uncontroverted that completion of

the goals set forth in the SECAP by the 2011 deadline was impossible. While cities are not

permitted to unilaterally disregard mandates set forth by the Ohio EPA, especially when such

terms are agreed upon by the parties, the unique circumstances of this case demonstrate

that the 2011 completion date was impossible to achieve so that the City is not in contempt.

However, we sustain the state's assignment of error insomuch as the trial court abused its

discretion in finding that the state failed to prove that the City was in contempt for not paying

the stipulated penalties.

       {¶ 50} Upon remand, the trial court shall enter a finding of contempt against the City

regarding the unpaid stipulated penalties, and order the City to pay such penalties. Although

the trial court ordered the City to pay the penalties accrued in 2012, the trial court shall

determine if the City has failed to pay any other stipulated penalties accrued in the years

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previous to the state's filing of contempt, including any violations for failure to meet the

NPDES Permit effluent limitations, as well as any overflows and bypass events that may

have occurred prior to 2012 that have remained unpaid by the City.

      {¶ 51} Judgment affirmed in part, reversed in part, and remanded for further

proceedings consistent with this opinion.


      S. POWELL, P.J., and M. POWELL, J., concur.




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