Elmer, et al v. S.H. Bell Company
Memorandum of Opinion and Order For the reasons set forth herein, the Court grants in part, and denies in part, Defendant's Motion to Dismiss (ECF No. 53 ). Accordingly, Plaintiffs' claims for trespass, private nuisance, and negligence remain. Plaintiffs' claim for statutory nuisance is dismissed without prejudice. Plaintiffs' remaining claims are dismissed. Judge Benita Y. Pearson on 8/31/2015. Related document(s) 50 , 53 , 56 , 57 . (JLG)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
JODY ELMER, et al.,
S.H. BELL COMPANY, et al.,
CASE NO. 4:13-CV-02735
JUDGE BENITA Y. PEARSON
MEMORANDUM OF OPINION
[Resolving ECF No. 53]
Pending is S.H. Bell Company’s (“Defendant”)1 Motion to Dismiss pursuant to Fed. R.
Civ. P. 12(b)(6). ECF No. 53. Defendant moves the Court to dismiss the second amended
complaint (ECF No. 50) filed by Jody Elmer, Benjamin Milliron, Emily Milliron, and Steve
Adkins (“Plaintiffs”).2 The Court has been advised, having reviewed Plaintiffs’ second amended
complaint and exhibits (ECF No. 50); Defendant’s Motion to Dismiss (ECF. No. 53); Plaintiffs’
opposition brief (ECF. No. 56); Defendant’s reply (ECF No. 57); and the applicable law. For the
reasons set forth below, the Court grants in part, and denies in part, Defendant’s Motion to
Dismiss (ECF No. 53).
On May 29, 2015, Plaintiffs voluntarily dismissed defendants John Bell, Samuel Bell, and Rusty Davis from the
above-captioned matter. ECF No. 55. Only S.H. Bell Company remains as a defendant.
This order does not address the Plaintiffs’ request for class certification pursuant to Fed. R. Civ. P. 23(c).
Until recently, Defendant operated two facilities in the East Liverpool, Ohio area: the
Little England facility (“Little England”), and the Stateline facility (“Stateline”). ECF No. 50 at
PageID#: 1891, ¶ 19. Little England is located entirely in Ohio, and Stateline spans the border
between Ohio and Pennsylvania. ECF No. 50-1. Defendant closed Little England in 2010. ECF
No. 50 at PageID#: 1891, ¶ 19. Defendant continues to operate Stateline. ECF No. 50 at
PageID#: 1891, ¶ 19. Defendant’s business consists of storing and processing materials for
industrial customers, including various metals, frac sands, minerals, fertilizers, and semi-finished
raw materials. ECF No. 50 at PageID#: 1891, ¶ 17. As part of its operations, Defendant crushes
these materials into pieces, and then transports the material to customers by truck, barge, or rail.3
ECF No. 50 at PageID#: 1891, ¶ 19.
Plaintiffs are residents of East Liverpool who live within two miles of Defendant’s
operations. ECF No. 50 at PageID#: 1888, ¶ 4-8. They allege that Defendant’s operations emit
particulate matter, including manganese and chromium, into the air. ECF No. 50 at PageID#:
1892, ¶ 22. According to the Environmental Protection Agency (“EPA”) and the Ohio
Environmental Protection Agency (“OEPA”), inhaled manganese and inhaled chromium
adversely affect a person’s health. ECF No. 50-5 at PageID#: 1946. Long-term inhalation of
manganese can harm a person’s central nervous system, reduce visual reaction time, reduce hand
steadiness, and reduce eye-hand coordination. ECF No. 50-5 at PageID#: 1947. Chronic
exposure to manganese can result in feelings of weakness, lethargy, tremors, a mask-like face,
and psychological disturbances. ECF No. 50-5 at PageID#: 1947. Chronic inhalation of
S. H. Bell Co., S. H. Bell Services, http://www.shbellco.com/services/ (last visited July 1, 2015) (describing
Stateline’s services to customers, including crushing, the types of materials handled, and how processed materials
chromium can result in asthma, irritation of the respiratory tract, respiratory distress, and
decreased respiratory function. ECF No. 50-5 at PageID#: 1947. Inhaled chromium is also
linked to lung cancer. ECF No. 50-5 at PageID#: 1947. Plaintiffs contend that, as a result of
their exposure to Defendant’s emissions on their person and property, they were harmed, suffer
ongoing harm, and are entitled to relief. ECF No. 50 at PageID#: 1892, ¶ 30.
In 2008, the OEPA issued a report on the air quality of East Liverpool. ECF No. 50-5.
The OEPA documented elevated concentrations of airborne toxins in East Liverpool’s ambient
air, including results from a monitoring station about half a mile from Stateline where
manganese concentrations were “… 3,500% [above] the [EPA’s] ‘no health effects’ level[,]” and
represented the highest average concentration detected by any state. ECF No. 50-5 at PageID:
1951. The OEPA concluded that there are “… unacceptably high concentrations of airborne
manganese and chromium [in] the East Liverpool area.” ECF No. 50-5 at PageID: 1952.
In 2010, the OEPA ordered Defendant to implement control measures to reduce
manganese emissions from Defendant’s operations at Little England and Stateline. ECF No. 5011. Although the OEPA only regulates the Ohio portion of Stateline, Defendant agreed to
implement the order’s control measures on emission units located not only in Ohio, but
Pennsylvania as well. ECF No. 50-11 at PageID#: 2043, ¶ 1. The OEPA’s order also provides
that its provisions do not waive or compromise any other statutes or regulations applicable to
Defendant. ECF No. 50-11 at PageID#: 2055, ¶ VIII.
In 2011, the OEPA granted Defendant an air pollution Permit-to-Install and Operate
(“PTIO”) for Stateline. ECF No. 50-13. Under the terms of the PTIO, Defendant may install
and operate specific emission-producing units. ECF No. 50-13 at PageID#: 2106. The PTIO
specifies the Defendant’s annual emission limit, record-keeping and monitoring requirements,
and testing methods for each individual emission unit. ECF No. 50-13. The PTIO obligates
Defendant to monitor Stateline’s manganese and chromium emissions, by unit, and report them
to the OEPA semiannually. ECF No. 50-13 at PageID#: 2123; 2130 ¶ 2. Defendant must also
submit quarterly reports to the OEPA documenting any month during which Defendant exceeded
its manganese or chromium emission limits. ECF No. 50-13 at PageID#: 2129. Defendant must
also keep all PTIO-required records for five years from the date when the record was created,
including monitoring data, test-chart recordings, and maintenance records. ECF No. 50-13 at
In 2014, an environmental consulting firm collected and analyzed soil samples from
Plaintiffs’ individual properties. ECF No. 50-16. The firm’s analysis revealed manganese
deposits on Plaintiffs’ properties ranging from 1,200 to 15,000 milligrams per kilogram. ECF
No. 50-16. All of the samples exceeded Ohio’s average expected amount of manganese that
occurs naturally. ECF No. 50-16. Half of the samples exceeded the EPA’s Health Based Single
Chemical Residential Generic Contact Standard. ECF No. 50-16.
Plaintiffs assert that they were harmed by manganese and chromium emissions generated
by Defendant’s operations, and bring seven claims against Defendant, including: (1) trespass; (2)
private nuisance; (3) negligence; (4) public nuisance; (5) statutory nuisance; (6) nuisance per se;
and (7) medical monitoring. ECF No. 50, amend. by ECF No. 55. 4 Defendant moves the Court
under Fed. R. Civ. P. 12(b)(6) to dismiss Plaintiffs’ claims for failure to state a claim, or in the
alternative, abstain from this action based on the doctrine of primary jurisdiction. ECF No. 53.
By joint stipulation among the parties, Plaintiffs dismissed their claims for: intentional fraudulent concealment;
constructive fraud; citizen suit enforcement of the Resource Conservation and Recovery Act (“RCRA”) §
6972(a)(1)(A); citizen suit enforcement of RCRA § 6972(a)(1)(B); and personal liability of responsible corporate
Defendant also argues that the Clean Air Act (“CAA”) preempts Plaintiffs’ state law claims; and
that Plaintiffs’ claims related to chromium and Little England are time-barred. ECF No. 53.
For the reasons discussed below, the Court grants in part, and denies in part, Defendant’s
Motion to Dismiss. Specifically: (1) the Court will not abstain from this action because of the
doctrine of primary jurisdiction; (2) the CAA does not preempt Plaintiffs’ claims; (3) Plaintiffs’
claims related to chromium are not time-barred; (4) Plaintiffs’ claims related to Little England
are time-barred; (5) Plaintiffs’ claim for statutory nuisance is dismissed without prejudice; (6)
Plaintiffs’ claims for medical monitoring, public nuisance, and nuisance per se are dismissed;
and (7) Plaintiffs’ claims for trespass, private nuisance, and negligence remain.
To survive a Motion to Dismiss under Fed. R. Civ. P. 12(b)(6), the complaint must allege
enough facts to “raise a right to relief above the speculative level.” Bell Atlantic v. Twombly,
550 U.S. 544, 555 (2007). It also must “state a claim to relief that is plausible on its face.” Id. at
570. Upon reviewing a Motion to Dismiss, the Court shall take the pleadings as true and
construe them “liberally in favor of the party opposing the [M]otion to [D]ismiss.” Scott v.
Ambani, 577 F.3d 642, 646 (6th Cir. 2009).
Claims set forth in a complaint must be plausible, rather than conceivable. Twombly, 550
U.S. at 570. “[W]here the well-pleaded facts do not permit the court to infer more than the mere
possibility of misconduct, the complaint has alleged — but it has not ‘show[n]’— ‘that the
pleader is entitled to relief.’” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (citing Fed. R. Civ. P.
8(a)(2)). The factual allegations in the complaint “must contain something more … than … a
statement of facts that merely creates a suspicion [of] a legally cognizable right of action.”
Twombly, 550 U.S. at 555 (quoting 5 C. Wright & A. Miller, Federal Practice and Procedure §
1216, pp. 235-36 (3d ed. 2004)). In addition to reviewing the claims set forth in the complaint, a
court may also consider exhibits, public records, and items appearing in the record of the case as
long as the items are referenced in the complaint and are central to the claims contained therein.
Bassett v. Nat’l Collegiate Athletic Ass’n, 528 F.3d 426, 430 (6th Cir. 2008).
A. The Court will not abstain from this case based on the doctrine of primary
Before considering the adequacy of Plaintiffs’ complaint, the Court will first address
Defendant’s plea for the Court to abstain. Defendant argues the Court should abstain because
this case involves technical and policy considerations within the scope of the OEPA and EPA.
ECF No. 53-2 at PageID#: 2208. Defendant also argues that the OEPA’s and EPA’s ongoing
investigation into emissions from Stateline support its position that this Court should abstain
from this matter. ECF No. 57 at PageID#: 3118.
The doctrine of primary jurisdiction allows courts to refer a matter to the relevant agency
“whenever enforcement of the claim requires the resolution of issues which, under a regulatory
scheme, have been placed within the special competence of an administrative body[.]” United
States v. W. Pac. R.R. Co., 352 U.S. 59, 63–64 (1956). No fixed formula exists for applying the
doctrine of primary jurisdiction. Id. Generally, courts defer to administrative agencies for three
reasons: “(1) to advance regulatory uniformity; (2) to answer a question ... within the agency's
discretion; and (3) to benefit from technical or policy considerations within the agency's ...
expertise.” Charvat v. EchoStar Satellite, LLC, 630 F.3d 459, 466 (6th Cir. 2010) (internal
citations and quotation marks omitted). “Overall, in light of the federal courts’ unflagging
obligation to exercise the jurisdiction accorded them, primary jurisdiction is limited to cases
where protection of the integrity of a regulatory scheme dictates preliminary resort to the agency
which administers the scheme.” U.S. ex rel. Wall v. Circle C Const., LLC, 697 F.3d 345, 352
(6th Cir. 2012) (internal citations and quotation marks omitted).
The Court is not persuaded by Defendant’s argument. Plaintiffs’ claims for trespass,
private nuisance, and negligence seek redress for alleged harm to Plaintiffs committed by the
Defendant;5 such actions do not impact the OEPA’s and EPA’s regulatory scheme governing
emissions. Furthermore, legal determinations of trespass, private nuisance, and negligence are
not issues that fall within the OEPA’s and EPA’s discretion. Finally, the standards for trespass,
private nuisance, and negligence to be applied in this case fall within the established competence
of the courts. To the extent that this case requires expertise, it can be provided by the parties to
support their legal causes of action and defenses.
B. Plaintiffs’ claims are not preempted by the Clean Air Act
This case presents a novel issue. Stateline is physically located in both Ohio and
Pennsylvania. ECF No. 50-1. Neither Party’s pleadings nor this Court’s diligence uncovered
any analogous case involving a single source of emissions collocated in two states.
Courts assume that federal statutes do not preempt traditional police powers of the state
“unless that was the clear and manifest purpose of Congress.” Rice v. Santa Fe Elevator Corp.,
331 U.S. 218, 230 (1947). Although the CAA regulates air pollution at the federal level, states
retain broad control “[s]o far as factories, incinerators, and other stationary [sources of pollution]
are implicated[.]” Washington v. General Motors Corp., 406 U.S. 109, 114 (1972). Major
federal environmental regulatory statutes, like the Clean Air Act (“CAA”), preempt state law
claims when the facility emitting pollution is located outside the state. See Int'l Paper Co. v.
As discussed below, the Plaintiffs’ other causes of action are dismissed. Accordingly, this Court declines to
analyze their impact related to the doctrine of primary jurisdiction.
Ouellette, 479 U.S. 481, 497–500 (1987) (holding that Vermont state law nuisance claims
against a New York point source are preempted by the Clean Water Act). However, when the
facility emitting pollution is located within the state, that state’s common law claims are not
preempted by the CAA. Her Majesty The Queen In Right of the Province of Ontario v. City of
Detroit, 874 F.2d 332, 342 (6th Cir. 1989) (holding that Michigan state law claims against a
Michigan trash incinerator are not preempted by the CAA).
Defendant argues that, for the purpose of analyzing whether the CAA preempts
Plaintiffs’ claims, Stateline must be considered a source located outside of Ohio. ECF No. 53-2
at Page ID#: 2176. Because Plaintiffs allege they were harmed by emissions from Stateline, at
least some of those emissions were generated on the Pennsylvania side of the facility. ECF No.
57 at PageID#: 3102. Therefore, Defendant argues, Stateline should be treated as an out-of-state
source. ECF No. 57 at PageID#: 3102–03.
Plaintiffs argue that Stateline should be considered an Ohio source of emissions because
the substantial majority of Defendant’s emissions originate from units located in Ohio. ECF No.
56 at PageID#: 2473. Stateline includes 24 emission units, 18 of which are located in Ohio and 6
in Pennsylvania. ECF No. 56 at PageID#: 2473. Plaintiffs also argue that Defendant voluntarily
waived its preemption defense when Defendant agreed to implement the 2010 OEPA order’s
provisions to the six emission units located in Pennsylvania.6 ECF No. 56 at PageID#: 2473.
The purpose of regulatory preemption of state law claims is to avoid upsetting the
balance of public and private interests addressed by a federal act. See generally Ouellette, 479
U.S. at 495. In Ouellette, Vermont landowners brought a Vermont common law nuisance suit
Plaintiff’s argument that Defendant consented to OEPA jurisdiction based on the 2010 order is flawed. The order
itself provides that its provisions do not waive or compromise any other statutes or regulations applicable to
Defendant. ECF No. 50-11 at PageID#: 2055, ¶ VIII.
against an operator of pulp and paper mill located in New York. Id. at 483. Writing for the
majority, Justice Powell, held that: (1) the Clean Water Act preempted Vermont nuisance law to
the extent that the law sought to impose liability on a New York point source, but (2) the Act did
not bar aggrieved individuals from bringing nuisance claims pursuant to the law of a source state.
Id. at 497. Justice Powell explained why the state law claims against in-state sources of pollution
did not upset the Clean Water Act’s balance:
Because the [Clean Water] Act specifically allows source States to impose stricter
standards, the imposition of source-state law does not disrupt the regulatory partnership
established by the permit system. … [T]he restriction of suits to those brought under
source-state nuisance law prevents a source from being subject to an indeterminate
number of potential regulations. Although [source state] nuisance law may impose
separate standards and thus create some tension with the permit system, a source only is
required to look to a single additional authority, whose rules should be relatively
predictable. Moreover, States can be expected to take into account their own nuisance
laws in setting permit requirements.
Id. at 498–99.
Justice Powell’s reasoning in Ouellette supports Plaintiffs’ argument that the CAA does
not preempt Ohio state law claims against Stateline. Stateline’s emission-producing units are
primarily located in, and regulated by, Ohio. Ohio law already informs the regulatory regime to
which Defendant must comply, so there is no risk that applying Ohio law will disrupt the
regulatory partnership established by the CAA. Unlike the appellant in Ouellette, Defendant is
not confronted with an “indeterminate number of potential regulations.” Id. Instead, Defendant
is addressing predictable common law claims originating from that state in which Stateline is colocated and where the majority of Stateline’s emission units are regulated.
Defendant’s argument that the CAA preempts Ohio state law claims because Stateline
spans Ohio and Pennsylvania also misreads the congressional intent of the CAA. The savings
clause of the CAA7 negates the inference that Congress intended to preclude state causes of
action. See also Her Majesty The Queen, 874 F.2d at 342–343 (“[the plain language of the
CAA's savings clause] … clearly indicates that Congress did not wish to abolish state control.”)
Preempting Plaintiffs’ Ohio state law claims against Stateline would result in de facto federal
preemption of all state law claims. This would create a peculiar result. Stateline would be
subject to Ohio state law claims if Defendant shut down the six emissions units located in
Pennsylvania, but not if it shut down five of the six emission units.
The Court concludes that the CAA does not preempt Plaintiffs’ state law claims. The
plain language of 42 U.S.C. § 7604(e) confirms that Congress intended to allow state law claims.
Higher courts also provide two strong avenues of support. First, Justice Powell’s reasoning for
why state law claims against in-state sources of pollution do not upset a federal environmental
act’s balance is controlling. Ouellette, at 498–99. Second, the Sixth Circuit agrees that a state
claim against an in-state source of pollution is simply “…an instance where a state is …
enforcing more stringent pollution controls as authorized by the CAA.” Her Majesty The Queen,
874 F.2d at 344. Alone, these reasons are compelling; taken together, they form a persuasive
argument against the CAA preempting Plaintiffs’ state law claims.8
C. Plaintiffs’ claims relating to chromium remain
Defendant asserts that Plaintiffs’ claims relating to chromium are barred by the statute of
limitations because they were first introduced in Plaintiffs’ second amended complaint. ECF No.
The CAA provides that “[n]othing in [the CAA’s saving clause] shall restrict any right which any person (or class
of persons) may have under any statute or common law to seek enforcement of any emission standard or limitation
or to seek any other relief.” 42 U.S.C. § 7604(e) (1990).
The OEPA monitors and regulates Stateline’s emissions by individual units located in Ohio. See ECF No. 50-11,
PageID#: 2041 (“A portion of the Stateline Facility is located in Pennsylvania and is not regulated by the Ohio
EPA.”). Plaintiffs concede that they are pursuing claims based on emissions emanating only from Ohio. ECF No.
56, PageID#: 2479. The Court does not purport to have jurisdiction over the emission units located in Pennsylvania.
Plaintiffs must restrict their claims to only those units physically located in Ohio.
53-2 at PageID#: 2184. Defendant argues that any chromium-related claims constitute new and
separate conduct, and therefore, under Fed. R. Civ. P. 15(c)(2), such claims cannot relate back to
the date of the original pleading. ECF No. 57 at PageID#: 3109.
Rule 15(c)(2) is “based on the notion that once litigation involving particular conduct or a
given transaction or occurrence has been instituted, the parties are not entitled to the protection
of the statute of limitations against the later assertion by amendment of defenses or claims that
arise out of the same conduct, transaction, or occurrence . . . .” Brown v. Shaner, 172 F.3d 927,
932 (6th Cir. 1997). “When applying this standard to the facts of a given case, the Court [must
consider] … whether the party asserting the statute of limitations defense had been placed on
notice that he could be called to answer for the allegations in the amended pleading.” U.S. ex rel.
Bledsoe v. Cmty. Health Sys., Inc., 501 F.3d 493, 516 (6th Cir. 2007) (internal citation omitted).
“[Rule 15(c)(2)] also must be interpreted in light of the fundamental tenor of the [Federal Rules
of Civil Procedure] which is one of liberality rather than technicality.” Id. (internal quotations
and citation omitted).
Here, Defendant mistakenly asserts that Plaintiffs first introduced chromium in their
second amended complaint. ECF No. 53-2 at PageID#: 2184. Plaintiffs’ first complaint alleged
that Defendant was responsible for chromium emissions in East Liverpool. ECF No. 1 at
PageID#: 6, ¶ 20. Plaintiffs’ pleadings have also consistently referenced findings from the 2008
OEPA study9 which “documented unacceptably high concentrations of airborne manganese and
chromium.” ECF No. 50-5 at PageID#: 1952. Finally, the Defendant’s emissions are the core
conduct from which Plaintiffs’ claims arise. Plaintiffs’ pleadings, therefore, sufficiently placed
Plaintiff’s first reference to the 2008 study was in Plaintiff’s original complaint. ECF No. 1 at PageID#: 6, ¶ 19.
Defendant on notice of potential claims arising from Defendant’s emissions, including chromium
emissions. Plaintiffs’ claims related to chromium remain.
D. Plaintiffs’ claims relating to Little England are time-barred
Under Ohio law, trespass, private nuisance, and negligence claims are subject to a fouryear statute of limitations. R.C. § 2305.09. Defendant argues that Plaintiffs’ claims related to
Little England, which Defendant closed in 2010, are time-barred because Plaintiffs knew about
Little England’s alleged tortious emissions at least since 2008, when OEPA released its report on
air quality in East Liverpool. ECF No. 53-2 at PageID#: 2183. As such, all claims against Little
England expired in 2012. ECF No. 53-2 at PageID#: 2184.
Plaintiffs respond that their claims related to Little England arise from the Defendant’s
same conduct alleged in Plaintiffs’ original pleading. ECF No. 56 at PageID#: 2489.
Ohio law recognizes that a trespass or private nuisance may be either continuing or
permanent.10 A continuing trespass or private nuisance “arises when the [defendant’s] tortious
conduct is ongoing, perpetually generating new violations.” Kramer v. Angel’s Path, LLC, 882
N.E.2d 46 (Ohio Ct. App. 2007) (internal citations and quotation marks omitted). When a
defendant’s tortious act “… constitutes a continuing course of conduct …” the statute of
limitations period is tolled. Sexton, 883 N.E.2d at 1019. “Conversely, a permanent [trespass or
private] nuisance occurs when the [defendant’s] tortious act has been completed, but the plaintiff
continues to experience injury in the absence of any further activity by the defendant.” Kramer,
882 N.E.2d at 52 (internal citation omitted). The statute of limitations for a claim against a
permanent trespass or nuisance “… begins to run at the time that the [tortious conduct] begins or
Under Ohio law, when determining whether the statute of limitations should be tolled, the distinction between “…
conduct that constituted a nuisance rather than a trespass” is immaterial. Sexton v. Mason, 883 N.E.2d 1013, 1021
is first noticed, provided that the permanent nature of the [tortious conduct] can be ascertained at
that time.” Brown v. Scioto Cty. Bd. of Commrs., 622 N.E.2d 1153, 1162 (Ohio Ct. App. 1993)
(internal citation omitted). See also Blankenship v. S.H. Bell Co., No. 98-CO-14, 1999 WL
1279173 (Ohio Ct. App. Dec. 22, 1999) (rejecting the defendant’s argument that the company’s
emissions from ongoing operations constituted a permanent, rather than continuous, source of
Here, Defendant closed Little England in 2010. ECF No. 53-2 at PageID#: 2184. Once
Defendant closed Little England, any alleged tortious conduct arising from Defendant’s
operations was completed. Any act of trespass or private nuisance attributable to Defendant’s
Little England operations must be classified as permanent, not continuous, for determining
whether to toll the four-year statute of limitations. All claims against Little England, including
Plaintiffs’, expired in 2014. Plaintiffs filed the second amended complaint on March 30, 2015.
This Court is not persuaded by Plaintiffs’ argument that adding claims related to Little
England should relate back to Plaintiffs’ original complaint under Fed. R. Civ. P. 15(c)(1)(B).
ECF No. 56 at PageID#: 2489. First, unlike the chromium claims, Plaintiffs did not mention
Little England in pleadings until the second amended complaint. ECF No. 50 at PageID#: 1891.
Second, Defendant’s operations in Little England and Stateline involved separate personnel
working on independent jobs at distinct physical locations. Finally, Defendant closed Little
England three years prior to Plaintiffs’ filing of the original complaint. Taken together, the
Court finds that Plaintiffs’ original complaint did not adequately put Defendant on notice that it
could be called to answer for the allegations against Little England in an amended pleading. See
generally Hageman v. Signal L. P. Gas, Inc., 486 F.2d 479, 484 (6th Cir. 1973) (“Notice and
substantial prejudice to the opposing party are critical factors in determining whether an
amendment [relating back to the date of the original complaint] should be granted.”).
For the reasons stated above, Plaintiffs’ claims against Defendant’s Little England
operations are time-barred.
E. Plaintiffs’ claims for trespass and private nuisance arising from Stateline’s
emissions are not time-barred
Defendant asserts that Plaintiffs’ claims for trespass and private nuisance are time-barred
under R.C. § 2305.09. ECF No. 53-2 at PageID#: 2180. Defendant argues that, under Ohio law,
Plaintiffs’ claims against Defendant are for permanent, not continuous, trespass and private
nuisance. ECF No. 53-2 at PageID#: 2180–82. Defendant argues, therefore, that the statute of
limitations began to run in 2008 when the OEPA released its report on air quality in East
Liverpool. ECF No. 53-2 at PageID#: 2180–82.
As discussed above, Ohio law distinguishes continuing and permanent trespass or private
nuisance claims. A continuing trespass or private nuisance “arises when the [defendant’s]
tortious conduct is ongoing, perpetually generating new violations.” Kramer, 882 N.E.2d at 52.
As mentioned above, when a defendant’s tortious act has been completed but plaintiff
experiences ongoing injury without further activity on defendant’s part, the act constitutes a
permanent trespass or nuisance. Id. In Sexton, the Ohio Supreme Court clarified the concepts of
continuing versus permanent trespass or nuisance. Sexton, 88 N.E.2d at 1018. The Court held
that a continuing trespass or nuisance occurs when some ongoing tortious activity may be
attributed to a defendant. Id.
Here, Defendant’s Stateline facility continues to operate and generate emissions. ECF
No. 53-2 at PageID#: 2171. Plaintiffs allege that Defendant’s Stateline operations have
generated, and continue to generate, emissions that harmed, and continue to harm, Plaintiffs.
ECF No. 50 at PageID#: 1891. Since Stateline continues to operate, under Ohio law, Plaintiffs’
allegations of harm by emissions attributable to Defendant fall within the meaning of continuing
trespass and private nuisance.
Defendant also asserts that Plaintiffs’ claims are self-serving and unsupported attempts to
characterize Defendant’s operations as continuing. ECF No. 53-2 at PageID#: 2181.
Defendant’s argument is incorrect. Plaintiffs’ pleading includes ample support for their claims
that Defendant’s conduct is tortious and continuing, including: the 2008 OEPA air quality study
which documented “… unacceptably high concentrations of airborne manganese and chromium
for the East Liverpool area.”11 ; the 2010 and 2013 OEPA orders obligating Defendant to
implement emission control systems to Stateline because Defendant’s operations “… cause or
significantly contribute to unacceptable ambient air concentrations of manganese;”12 and analysis
results from surface soil samples collected from Plaintiffs’ property in 2014 that show elevated
levels of manganese.13 Plaintiffs’ pleadings provide a sufficiently plausible foundation for its
claims against Defendant. It is a question of fact whether Defendant’s emissions harmed
Plaintiffs, and if so, of what extent. The Court, therefore, shall take the pleadings as true and
construe them “liberally in favor of the party opposing the motion to dismiss.” Scott v. Ambani,
577 F.3d 642, 646 (6th Cir. 2009).
For the reasons stated above, the Court finds that Plaintiffs’ claims against Defendant for
trespass and private nuisance from Stateline’s emissions are not time-barred.
ECF No. 50-5 at PageID#: 1952.
ECF No. 50-9 at PageID#: 1977; ECF No. 50-11 at PageID#: 2042.
ECF No. 50-16.
F. Medical monitoring is not an independent cause of action under Ohio law
Defendant argues, and Plaintiffs concede, that Ohio law does not recognize medical
monitoring as an independent cause of action. ECF No. 57 at PageID#: 3117. Plaintiffs’ claim
for medical monitoring is therefore dismissed.
Although medical monitoring is not a cause of action, under Ohio law, it is a form of
damages for an underlying tort claim. Wilson v. Brush Wellman, Inc., 817 N.E.2d 59, 63 (Ohio
2004). If a defendant’s conduct increased a plaintiff’s risk of suffering from a disease or illness,
medical monitoring may be “a compensable item of damage when liability is established under
traditional tort theories of recovery.” Day v. NLO, 851 F.Supp. 869, 880 (S.D. Ohio 1994). A
plaintiff is not required to demonstrate physical injuries in order to obtain medical monitoring
relief, but must “show by expert medical testimony that [plaintiffs] have increased risk of disease
which would warrant a reasonable physician to order monitoring.” Id. at 881. “Therefore, if the
Plaintiffs can establish liability and an increased risk of disease”, they may “be entitled to
medical monitoring …” as a remedy. Id.
G. Plaintiffs’ pleadings sufficiently support its claims for damages
Defendant argues that Plaintiffs fail to allege substantial damage to support claims for
trespass and private nuisance. ECF No. 53-2 at PageID#: 2191-92. Defendant notes that a claim
for trespass caused by airborne pollutants requires a plaintiff to show substantial physical
damage to the land, or substantial interference with the plaintiff’s reasonable and foreseeable use
of the land.14 ECF No. 53-2 at PageID#: 2191-92. Defendant also asserts that the private
“Although ‘substantial damage’ is not a traditional element of trespass”, Ohio law requires a plaintiff to show
such damages when bringing a trespass claim for airborne particles and pollutants deposited on a plaintiff's land.
Williams v. Oeder, 659 N.E.2d 379, 383 (Ohio Ct. App. 1995).
nuisance claim fails because Plaintiffs did not allege damages connected to the use or loss of
enjoyment of their property. ECF No. 53-2 at PageID#: 2192.
Under Ohio law, a plausible claim for private nuisance requires a plaintiff to allege an
injury that is real, material, and substantial. Eller v. Koehler, 67 N.E. 89 (Ohio 1903). A real,
material, and substantial injury may include: the diminution in the value of a plaintiff’s property;
the cost of repairs; loss of use of the property; or compensation for annoyance, discomfort, and
inconvenience caused by a defendant’s tortious conduct. Widmer v. Fretti, 116 N.E.2d 728 (Ohio
Ct. App. 1952). To state a plausible airborne particle trespass claim, a plaintiff must allege that
the defendant’s emitting practices contaminated or substantially damaged her property. Brown v.
Whirlpool Corp., 996 F. Supp. 2d 623, 641 (N.D. Ohio 2014).
Here, Plaintiffs’ complaint alleges that they were harmed and their property damaged by
exposure to manganese and chromium emissions generated by Defendant’s operations. As a
result of this exposure, Plaintiffs allege they suffer and continue to suffer an increased risk of
injury and disease, and that their properties have become contaminated. Defendant argues that
Plaintiffs’ complaint is deficient because it fails to allege how Defendant’s emissions damaged
or interfered with the Plaintiffs’ use of their property. As noted above, however, Ohio law
recognizes that an increased risk of suffering from a disease or illness may be a compensable
item of damage. Day, 851 F.Supp. at 879. If Defendant’s emissions harmed Plaintiffs while
they resided at their properties, such emissions could plausibly result in a substantial interference
with Plaintiffs’ reasonable and foreseeable use of their land. Plaintiffs’ complaint also includes
soil sample analysis results from their properties, all of which reveal manganese contamination
exceeding the amount that occurs naturally, and half of which exceed the EPA’s Health Based
Single Chemical Residential Generic Contact Standard. ECF No. 50-16.
To summarize, Plaintiffs have sufficiently alleged that toxic emissions were produced by
Defendant’s operations, and that Plaintiffs and their property were exposed to these emissions.
Plaintiffs allege that, because of Defendant’s conduct, they face increased risk of disease and that
their property has been contaminated. Since Plaintiffs have presented a plausible claim, factual
allegations must be accepted as true. The Court finds that Plaintiffs have sufficiently pled
damages to survive Defendant’s challenge.
H. Plaintiffs’ public nuisance claim fails as a matter of law
Plaintiffs claim Defendant is liable for creating a public nuisance. ECF No. 50 at
PageID#: 1917-18. Plaintiffs alleges that Defendant’s emissions endangered the health, safety, or
welfare of the public, or caused unreasonable injury or impacts on East Liverpool’s residents
living nearby, including the Plaintiffs. ECF No. 50 at PageID#: 1918.
Under Ohio law, a public nuisance is an unreasonable interference with a right common
to the public. Brown, 622 N.E.2d at 1153. Where a facility operates under sanction of law, it
cannot be a common law public nuisance, but only a statutory nuisance. Id. at 1160. Conduct by
a defendant which “… would be a [public] nuisance at common law, [but] which is fully
authorized by statute or administrative regulation is not an actionable tort.” Id. at 1159. The
policy justification for not allowing tort action against conduct that would be a common law
public nuisance “… is especially [compelling] where a comprehensive set of legislative acts or
administrative regulations governing the details of a particular kind of conduct exist.” Id. See
also Hager v. Waste Technologies Indus., No. 2000–CO–45, 2002 WL 1483913 (Ohio Ct. App.
June 27, 2002) (holding that defendant’s waste incineration facility cannot be a common law
public nuisance because the facility operates under sanction of law).
Here, Defendant’s Stateline operates under an air pollution PTIO issued by the OEPA.
ECF No. 50-13 at PageID#: 2097. Since Stateline operates under the sanction of law, it cannot
be a common law public nuisance. See Brown, 622 N.E.2d at 1160. Consequently, Plaintiffs’
public nuisance claim is not an actionable tort.
I. Plaintiffs’ claim for statutory nuisance is dismissed without prejudice
Plaintiffs also claim Defendant is liable for creating a statutory nuisance. ECF No. 50 at
PageID#: 1918-20. In particular, Plaintiffs allege that Defendant’s emissions are violating R.C.
§ 3767.13(A),15 and Ohio Admin. Code § 3745-15-07(A).16 ECF No. 50 at PageID#: 1919 ¶140;
The general rule is that private individuals lack standing to pursue public statutory
nuisance claims. Brown, 622 N.E.2d at 1160. “When the particular harm involved consists of
interference with the use and enjoyment of land, the landowner may recover either on the basis
of the particular harm to her resulting from the public nuisance or on the basis private nuisance.”
Id. A plaintiff may only recover for a public statutory nuisance if her injuries are distinct from
those suffered by the public at large. Kramer, 882 N.E.2d at 52.
Here, Plaintiffs’ claim against Defendant for private nuisance and statutory nuisance are
based on the same nucleus of facts resulting in the same type of harm. In relevant part, Plaintiffs
allege Defendant’s operations produced emissions that harmed Plaintiffs’ health and property.
ECF No. 50 at PageID#: 1909 ¶ 99; PageID#: 1919 ¶ 142. Plaintiffs also seek class certification
to represent all Ohio residents with property or who reside within a two-mile radius of
§ 3767.13(A) provides that “[n]o person shall … maintain a … business … which, by occasioning noxious
exhalations … becomes injurious to the health, comfort, or property of individuals or of the public.” R.C. §
§ 3745-15-07(A) provides that “emission[s] … into the open air from any source or sources … in such manner or
in such amounts as to endanger the health, safety or welfare of the public, or cause unreasonable injury or damage to
property, is … a public nuisance … [and it is] unlawful … to cause, permit or maintain any such public nuisance.”
A.C. § 3745-15-07.
Defendant’s Stateline facility. ECF No. 50 at PageID#: 1888 ¶ 4. None of the individual
Plaintiffs pled that they suffered a distinct injury or harm from those of the general public who
live near Defendant’s operations.
Because individual Plaintiffs do not plead distinct injury or harm from those suffered by
the general public, Plaintiffs lack standing to bring a statutory nuisance claim against Defendant.
Plaintiffs’ statutory nuisance claim is dismissed without prejudice.17
J. Plaintiffs’ nuisance per se claim fails as a matter of law
Plaintiffs allege Defendant engages in an abnormally dangerous activity for which
Defendant should be held strictly liable for any resulting harm. ECF No. 50 at PageID#: 192021. Plaintiffs asserts that Defendant’s Stateline operations: (1) create a high risk of harm to
Plaintiffs’ properties; (2) are likely to harm Plaintiffs; (3) cannot eliminate the risk of harming
Plaintiffs by exercising reasonable care; (4) are not a matter of common usage; and (5) are
inappropriate in the place that Defendant operates. ECF No. 50 at PageID#: 1921.
Defendant disputes Plaintiffs’ allegation that the Stateline operations constitute an
abnormally dangerous activity. ECF No. 53-2 at PageID#: 2196-98. Defendant points out that
Plaintiffs do not identify any specific activity of the Stateline operations that is abnormally
dangerous. ECF No. 53-2 at PageID#: 2197. Instead, Plaintiffs assert a conclusion that
Defendant’s Stateline operations are abnormally dangerous. ECF No. 53-2 at PageID#: 2198.
Under Ohio law, a plaintiff’s nuisance per se claim seeks to impose strict liability on a
defendant engaging in ultrahazardous activity which results in harm to the plaintiff, regardless of
whether the defendant acted with reasonable care. Cincinnati v. Beretta U.S.A. Corp., 768
The Court leaves open the possibility that a future plaintiff may have distinct injuries that entitle her to a statutory
nuisance claim. The Court notes that, under Ohio law, a distinct injury “…is different in kind rather than degree
from that suffered by other members of the public[.]” Miller v. W. Carrollton, 632 N.E.2d 582, 586 (Ohio Ct. App.
N.E.2d 1136 (Ohio 2002). Ultrahazardous activities are lawful acts that are “so dangerous as to
be allowable only on the terms of insuring the public against them.” Taylor v. City of Cincinnati,
55 N.E.2d 724, 728 (Ohio 1944). To determine whether a defendant's conduct qualifies as
ultrahazardous, a court considers: (1) if the defendant’s conduct creates a high degree of risk of
harm to others; (2) the likelihood that the defendant’s conduct will result in great harm to others;
(3) whether a defendant could reduce or eliminate the risk of harm through the exercise of
ordinary care; (4) how common or uncommon the activity is; (5) whether the defendant’s
conduct is appropriate for the location where it is found; and (6) the extent to which the activity's
social value outweighs the danger of engaging in it. Abraham v. BP Exploration & Oil, Inc., 778
N.E.2d 48, 54 (Ohio Ct. App. 2002). Generally, Ohio courts only find that an activity is
ultrahazardous in four scenarios: blasting, transportation, or storage of explosives; cases
involving dangerous animals; nuclear accidents; and when examining ultrahazardous activity as
an affirmative defense. Christopher M. Ernst, Baldwin's Oh. Prac. Tort L. § 26:1 (2d ed. 2014).
Ohio courts examine a party’s specific conduct to decide which activity may be
ultrahazardous. In Bradford Glycerine Co. v. St. Marys Woolen Mfg. Co., 54 N.E. 528 (Ohio
1899), the appellant stored nitroglycerine on his property and an explosion occurred. Although
the trial court found that the appellant was not negligent, the court held that storing
nitroglycerine was an ultrahazardous activity, and appellant was strictly liable for any resulting
harm. Id. at 529−531 (emphasis added). In Am. States Ins. Co. v. Guillermin, 671 N.E.2d 317
(Ohio Ct. App. 1996), the defendant’s pet lion escaped and mauled a person. The court held that
keeping a wild and vicious animal is an ultrahazardous activity, and defendant was strictly liable
for any resulting harm. Id. at 323; (emphasis added).
Here, Plaintiffs pled that Defendant’s operations should be considered ultrahazardous.
Unlike the appellee in Bradford and the plaintiff in Am. States, Plaintiffs in the instant matter did
not indicate which of Defendant’s specific activities Plaintiffs believe are ultrahazardous. ECF
No. 50 at PageID#: 1920-21, ¶151. Without such specificity, Plaintiffs’ nuisance per se claim is
“…supported by mere conclusory statements.” Iqbal, 556 U.S. at 663.
Further, the factual materials that Plaintiffs include as part of the complaint undermine
their nuisance per se claim. The OEPA’s orders directing Defendant to implement emission
reduction technology imply that Defendant can abate its manganese and chromium emissions by
exercising reasonable care. If abatement is possible, then Defendant cannot be liable for a
nuisance per se claim. Brown, 622 N.E.2d at 1159 (“The essence of [nuisance per se] is that no
matter how careful one is, such activities are inherently injurious and cannot be conducted
without damaging someone else’s property or rights.”).
The Court dismisses Plaintiffs’ nuisance per se claim for the reasons stated above.
For the reasons stated above, the Court grants in part, and denies in part, Defendant’s
Motion to Dismiss (ECF No. 53). Accordingly, Plaintiffs’ claims for trespass, private nuisance,
and negligence remain. Plaintiffs’ claim for statutory nuisance is dismissed without prejudice.
Plaintiffs’ remaining claims are dismissed.
IT IS SO ORDERED.
August 31, 2015
/s/ Benita Y. Pearson
Benita Y. Pearson
United States District Judge
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