Being unable to concur in the majority opinion, I must respectfully dissent.
The standard of review for this court in reviewing an order of the Environmental Board of Review is as set forth in R.C.3745.06, whether the order "is supported by reliable, probative and substantial evidence and is in accordance with law." Here only a question of law is presented since the board found only that R.C. 6111.03(H) and 3745.01 do not vest authority in the director to issue the orders in question, stating in part that:
"* * * [T]he original (March 19, 1987) release would have been a discharge, and clearly within the Director's authority to control or abate, but the current `infiltration into the surrounding soil' four years after the fact would not." (Finding No. 10.)
The crucial statutory provision is R.C. 6111.03(H)(1), which provides that:
"The director of environmental protection may:
"* * *
"(H) Issue, modify, or revoke orders to prevent, control, or abate water pollution:
"(1) Prohibiting or abating discharges of sewage, industrial waste, or other wastes into the waters of the state[.]" (Emphasis added.)
Some of the controversy centers around whether the word "discharges" is a plural noun or a verb. In my understanding of grammar, the word "discharges" must be used as a plural noun for the remainder of the clause to have meaning. Clearly, the word is not used as either a transitive or intransitive verb in the singular indicative form. Nevertheless, the form of the word is not necessarily determinative. Although the word "discharge" has many varied meanings as a noun, as a transitive verb, as an intransitive verb, and as an adjective, in the context used in the statute, "discharges" can refer either to "acts of discharging" wastes or to that which has been discharged, namely "wastes." The words are "discharges of * * * wastes" and as a unit means the same as "waste discharges."
Nevertheless, this does not necessarily mandate an affirmance of the board's order. The majority uses the word "discharge" only in its intransitive verb form but, even if a verb, it would be used in a transitive verb form since it has an object, namely "waste." Assuming that the soil and the water absorbed therein constitutes "waters of the state," it would make no difference how long the "waste" was in the "waters of the state," it still would be subject to abatement. The fact that four years has elapsed would not matter so long as the "waste discharge" remains in the "waters of the state." *Page 56
This second issue has not been determined by the EBR. However, R.C. 6111.01(H) defines "waters of the state" as being:
"* * * all streams, lakes, ponds, marshes, watercourses, waterways, wells, springs, irrigation systems, drainage systems, and all other bodies or accumulations of water, surface and underground * * *." (Emphasis added.)
Thus, the ground water must be either a "body" or an "accumulation" of water to be part of the "waters of the state."
In addition, R.C. 6111.04 provides that:
"No person [without a valid permit] shall cause pollution or place or cause to be placed any sewage, industrial waste, or other wastes in a location where they cause pollution of any waters of the state, and any such action is hereby declared to be a public nuisance * * *."
Accordingly, I would reverse the order of the EBR and remand the cause to it for further proceedings in accordance with law consistent herewith.