State ex rel. Yost v. Breen

1

STATE OF OHIO ex rel. DAVE YOST, Ohio Attorney General, Relator-Appellee, v. JOHN G. BREEN, et al., Defendants, JOHN E. BREEN, Defendant-Appellant.

No. 22-3684

United States Court of Appeals, Sixth Circuit

June 9, 2023

NOT RECOMMENDED FOR PUBLICATION

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO

Before: SUTTON, Chief Judge; BATCHELDER and STRANCH, Circuit Judges.

OPINION

JANE B. STRANCH, CIRCUIT JUDGE

For over 30 years, the State of Ohio has attempted to find a remedy for pesticide contamination that the Breen family's pest extermination business caused to nearby residential property. Ohio ultimately sued the Breens under federal and state law seeking cost recovery and injunctive relief. The district court found that a permanent injunctive remedy was appropriate and ordered John E. Breen and his father John G. Breen to remove contaminated soil from the affected properties. John E. Breen appealed. For the reasons that follow, we AFFIRM.

I. BACKGROUND

A. Factual Background

In 1980, John G. Breen (Breen Sr.) and Janice Breen, his wife, bought a commercial property in Ohio (the Site) in their own names. At the time, Breen Sr. was the owner and president of Buckeye Terminix Company, Inc. (Buckeye), which provided pest extermination services. He served as Buckeye's President/General Manager and as the President of its Board of Directors until 2002, and he managed its finances. Janice Breen was Safety Director and Secretary of the Board of Directors. Beginning around 1980, the two were the majority owners of Buckeye. In 1987, their son, John E. Breen (Breen Jr. or Appellant) also gained ownership in the company, then became its General Counsel and Vice President in 1992.

Buckeye provided extermination services in Ohio from 1957 until 2002 and was formally dissolved in 2007. The company was located at the Site from approximately 1980 until 2002. The Site housed Buckeye's building, which included an office space and a connected garage. Immediately to the Site's west was a steep embankment and a tract of five land plots (the Neighboring Properties), which were owned by Specialty Restaurants Corporation (Specialty) from 1985 until 2010, then by Trabue Dublin, LLC (Trabue), Specialty's subsidiary.

From 1980 until at least 1987, Buckeye kept pesticides at the Site for its extermination business. Employees used the garage and outdoor areas to mix, transfer, and store pesticides including chlordane, aldrin, heptachlor, and dieldrin. They also loaded, unloaded, and washed trucks containing pesticides at the Site, and they dumped water containing pesticides at the Site and onto its western embankment, which led to the Neighboring Properties. In 1981, Buckeye employees complained to the Ohio Environmental Protection Agency (OEPA) about the pesticide dumping. After collecting soil samples, the OEPA notified Buckeye that its disposal violated Ohio law and requested that Buckeye take measures to prevent further release of pesticides into the environment. Buckeye responded by installing a drainage collection system, paving its parking lot with asphalt, maintaining the vegetated area at the embankment, and allowing OEPA monitoring. The OEPA continued to sample soil, gravel, and water runoff at the Site in 1981, 1982, and 1989; each time, the agency found aldrin, chlordane, and dieldrin, as well as other pesticides.

In 1992, the OEPA Director issued a Director's Final Findings and Orders (the 1992 Orders), which applied to and bound Buckeye, its corporate officers and directors, and successors in interest. The 1992 Orders determined that Buckeye had used pesticides at the Site until at least 1987, including chlordane, aldrin, heptachlor, and dieldrin, and that the company had violated Ohio law by dumping industrial and hazardous waste in a manner that caused or threatened to cause water pollution at the Site and Neighboring Properties. The 1992 Orders required Buckeye, among other things, to implement an interim action plan to "characterize the extent of pesticide and volatile organic compounds" in the Neighboring Properties' soil and ground water, then to take "appropriate remedial measures . . . as approved by the OEPA." Buckeye was also required to repay the OEPA's oversight and response costs. The 1992 Orders would terminate only when Buckeye demonstrated in writing to the OEPA that all remediation tasks had been completed, paid OEPA's oversight costs, and demonstrated that any remaining contamination met OEPA's acceptable risk levels. The OEPA had to approve Buckeye's certification in writing as well.

By this time, Breen Jr. was managing Buckeye's environmental issues. He negotiated the 1992 Orders, hired environmental consultants, ordered soil samples and sent their results to the OEPA, and generally oversaw the remedial work outlined in the 1992 Orders. Then, in 1993, the OEPA approved an interim remedy for the Neighboring Properties, recommending revegetation of the contaminated area, or in the event of development, installation of a soil cover. In a 1996 letter to Breen Jr., the OEPA acknowledged that Buckeye had begun to implement appropriate remedies, and it affirmed that the 1992 Orders would terminate once acceptable risk levels had been achieved and certified in writing.

In 2002, the Breens sold Buckeye to its franchisor and changed the company's name to BTX Enterprises, and Breen Sr. and Breen Jr. divided the proceeds-about $3 to $4 million. Breen Jr. briefly continued to work with the OEPA to comply with the 1992 Orders, but he stopped responding to the agency after 2004. Over the following years, soil samplings continued to show concentrations of pesticide contamination well above the agency's acceptable risk levels. In 2008, the OEPA notified Breen Jr. of such; he did not respond. Then, in 2010, the agency sent him another letter providing notice of noncompliance with the 1992 Orders and directing him to submit a work plan for removal of contaminated soil at the Neighboring Properties by September 1, 2010. He did not respond to this letter either.

In 2011, the OEPA investigated the contamination at the Site and concluded that pesticide concentrations in the soil and ground water exceeded acceptable residential risk levels but not acceptable commercial risk levels. But in 2016 and 2017, soil samples from the Neighboring Properties indicated that pesticide concentrations there still exceeded acceptable residential risks.

B. Procedural Background

In 2016, Ohio sued the Breens, BTX Enterprises (Buckeye's new corporate name), Trabue (the Neighboring Properties' owner as of 2010), and Donald Dick (the Site's owner as of 2008), seeking cost recovery, damages from the Breens, civil penalties, and injunctive relief. As relevant to this appeal, Count Two of the Complaint accused the Breens and BTX Enterprises of violating the 1992 Orders and Ohio law. See Ohio Rev. Code §§ 3734.11(A), 3734.13(D), 6111.07(A). Ohio asked the court to order the Breens to complete the work required by the 1992 Orders.

On January 18, 2019, the district court granted partial summary judgment as to liability only on Count Two against Breen Sr. and Breen Jr., finding them individually liable for violating Ohio law. Ohio ex rel. DeWine v. Breen, 362 F.Supp.3d 420, 446 (S.D. Ohio 2019). Then, in March of 2019, the court held a one-day bench trial to resolve the question of what relief was owed to Ohio. Ohio's position was that Breen Sr. and Breen Jr. should be ordered to remove the contaminated soil at the Neighboring Properties, and the Breens' position was that Ohio was not entitled to such a remedy. Soon after trial and before issuing an opinion, the court stayed all proceedings to facilitate settlement discussions between Ohio and various defendants.

Ohio entered into consent decrees with Dick and Trabue that resolved all claims between Ohio and those defendants. The property at issue in the Dick consent decree was the Site, not the Neighboring Properties. After Dick purchased the Site in 2008, he took measures such as conducting indoor air and soil sampling, installing ventilation fans and a vapor barrier, and coating the garage floor with a protective sealant. When the consent decree was entered, the soil contamination at the Site was within commercial standards and its contaminated areas were covered with a well-maintained asphalt pad. In addition to maintaining the existing remedies, by entering the consent decree, Dick agreed to record an environmental covenant restricting the Site to commercial and industrial use. In 2019, finding that the consent decree was reasonable and "provide[d] for protection of human health and the environment," the district court granted Ohio and Dick's joint motion to enter the consent decree and dismissed him from the case.

The Trabue consent decree, entered in 2021, concerned the Neighboring Properties. Like Dick, Trabue was not involved in the Neighboring Properties' contamination-and there were no counts remaining against it. The Trabue consent decree required Trabue to erect and maintain a six-foot iron fence around the Neighboring Properties' contaminated regions, and to conduct further soil sampling. The consent decree provided that either the OEPA or Trabue "may determine that . . . additional work [] may be necessary" to achieve the consent decree's objectives. Nothing in the consent decree was to "constitute or be construed as a release from any claim, cause of action, or demand in law" against any non-party to the consent decree, "including but not limited to Defendant[] . . . John E. Breen" for any liability arising from conditions at the Neighboring Properties.

After entering the Trabue consent decree, the district court asked the parties...