Ohio is a notice pleading state, meaning that the claims being advanced must be pled with sufficient operative facts to allow the defending party to understand the nature of the allegations. The case of Concerned Residents of Salem Twp. v. Stevenson,[1] shows the pleading requirements as they apply to the Ohio EPA administrative appeals.
On December 28th, 2021, the Director of the Ohio Environmental Protection Agency, Laurie Stevenson (“Appellee”), issued a final order granting Airstream Compression, LLC (“Airstream”) a permit to install and operate two natural gas compressors at its Booster Station in East Springfield, Ohio. The Permit-to-Install and Operate was deemed a final action and went into effect the same day.[2] Thereafter, on January 27, 2022, Concerned Residents of Salem Township, a community organization, along with 40 individual members (collectively “Appellants”), appealed the Appellee’s order to the Environmental Review Appeals Commission of Ohio (“ERAC”). [3]
Airstream moved to dismiss the appeal on Ohio Civ. R. 12(b)(6) grounds (lack of standing) because the Appellant failed to allege injury from the issuance of the permit and that both assignments of error failed to state a claim upon which relief could be granted.[4] In particular, “Airstream asserted the first assignment of error fail[ed] as a matter of law because the Appellee is not required to consider other sources of air pollution when determining emission limits. Airstream [also] argued Appellants’ second claim also fail[ed] as a matter of law because they cannot allege conduct constituting nuisance at this stage because the facility has not yet begun to operate.”[5]
On June 8, 2022, ERAC issues its ruling that granted Airstream’s motion to dismiss both assignments of error. “ERAC determined appellants did not adequately allege in their first assignment of error how the issuance of the permit was unlawful because they did not describe a specific rule or regulation the [Appellee] failed to comply with.[6] As to whether the issuance of the permit was reasonable, ERAC found that the Appellants “failed to allege which permit condition would create an unreasonable risk of harm, what type of harm it would cause, or how it would do so.” Consequently, ERAC determined this issue of standing was moot and entered and order dismissing the appeal.
The Appellant’s appealed the order to the Tenth District Court of Appeals on a two assignments of error. [7] The first assignment of error alleged that the permit failed to assure compliance with the state air requirements and is thus unlawful.[8] Under notice pleading, the Appellants were required to plead sufficient operative facts to put Appellee on notice of their claim that the issuance of the permit was unlawful.[9] In this matter, the Appellants failed to state any specific law or regulation that was violated by the issuance of the permit.[10] The Appellants, also did not include facts to support their conclusion that Airstream would be unable to comply with the conditions in the permit.[11]
The Appellants then pled a conclusory blanket statement that the Appellee’s actions were, “otherwise inconsistent with the law,” however, the Appellee is required to consider compliance with all applicable laws before issuing a permit.[12] Without allegations supporting the claim that the Appellee’s actions were “otherwise inconsistent with the law,” the notice pleading requirement is not satisfied.[13]
The Appellant’s second assignment of error alleged that the permit unreasonably authorized a public nuisance under, Ohio Admin. Code 3745-15-07 (2015).[14] However, the court found that the portions of the record that the Appellants relied on did not satisfy the notice pleading requirement, rather they amounted to a general description of harmful effects of air pollution.[15] The Appellants failed to specifically identify the types of harm caused by the pollutants, instead their claims used terms that merely tracked the language of the nuisance statute.[16] The Court of Appeals held that without vast speculation, they could not determine how the station would cause the anticipated unreasonable risk of harm.[17]
The Court of Appeals determined that the notice pleading requires more and neither assignment of error in the ERAC appeal provided the Appellee adequate notice. “While [A]ppellants are not required to prove their claims at this stage of the proceedings, they must connect their claims to a minimal amount of operative facts.” As such, the Court of Appeals affirmed dismissal as ERAC’s decision granting Airstream’s motion to dismiss was supported by reliable, probative, and substantial evidence and was in accordance with law because the Appellants failed to state a claim upon which relief could be granted.
The rule of notice pleading does not require a party to prove their claims at the pleadings stage, but it does require more than conclusory allegations tracking specific statutory language without operative facts for support. Without the proper specificity in pleading, claims can either give the opposition too much information or be subject to dismissal before they even get the chance to be litigated.
Article authored by Andrew Good and Matthew Gibson.
[1] 2023 Ohio App. LEXIS 2127.
[2] Id. at 2.
[3] Id.
[4] Id. at 3.
[5] Id.
[6] Id. at 4.
[7] Id. at 5.
[8] Id. at 3.
[9] Id. at 9.
[10] Id. at 10.
[11] Id. at 11.
[12] Id.
[13] Id.
[14] Id. at 3.
[15] Id. at 17.
[16] Id. at 18-19
[17] Id. at 19
Andrew represents companies active in the oil and gas industry in both litigation and arbitration matters, from risk management to trial. He also advises clients on compliance and regulatory issues and handles proceedings in front of administrative agencies / governmental bodies, including the Ohio Department of Natural Resources and the Ohio Department of Commerce.
In addition to his energy practice, Andrew has broad experience in commercial and business litigation, including breach of contract / lease claims, construction disputes, non-compete / non-solicitation disputes, trade secrets, business torts, and real property-related claims. He is OSHA certified in Construction Safety and Health and has drafted and reviewed numerous construction contracts.