While the majority correctly cites the standard of review under Civ. R. 12(C), courts are reluctant to deal summarily with a case based on the pleadings alone. Southern Ohio Bank v. Merrill,Lynch, Pierce, Fenner Smith, Inc. (C.A. 6, 1973),479 F.2d 478, 480. In reviewing and discussing the plaintiffs' claims, the court should determine before granting a Civ. R. 12(C) motion that plaintiffs could prove no set of facts in support of a claim which would entitle them to relief. Bruce v. Riddle (C.A. 4, 1980), 631 F.2d 272. Is the law concerning the issues of sovereign immunity in this area so abundantly clear and the related issue of facts so lacking as to preclude any issue? I think not. It is with this thought in mind and a reluctance to deny a hearing on the factual merits that I dissent and discuss the issues below. *Page 197
The time for mourning the judicial demise of aspects of sovereign immunity has passed. The Ohio Supreme Court has pronounced it archaic. O'Brien v. Egelhoff (1984), 9 Ohio St. 3d 209,210, 9 OBR 520, 521, 459 N.E.2d 886, 887. Further, the Ohio Supreme Court applied its abrogation of sovereign immunity retroactively in Zagorski v. South Euclid-Lyndhurst Bd. of Edn. (1984), 15 Ohio St. 3d 10, 15 OBR 8, 471 N.E.2d 1378. The Ohio Legislature's revival of many aspects of the sovereign immunity doctrine in R.C. 2744.02, effective November 20, 1985, appears to be prospective in nature and not controlling in this situation. Thus I will not dwell on discussing the perceived merit or harm caused by the recent Supreme Court decisions.
The majority opinion recognizes that once a decision is made by a municipality to engage in a certain function or activity that municipality will be held liable for the omissions or negligent acts of its agents and employees, citing Enghauser Mfg. Co. v.Eriksson Engineering Ltd. (1983), 6 Ohio St. 3d 31, 6 OBR 53,451 N.E.2d 228, at paragraph two of the syllabus. Further, the majority concedes that, if a duty would exist which is mandatory upon the city, then its breach of that duty would be actionable, citing Strohofer v. Cincinnati (1983), 6 Ohio St. 3d 118, 6 OBR 178, 451 N.E.2d 787. However, the majority has held that the Hamilton ordinances pursuant to the city charter did not create a duty to prevent danger from the activities at Chem-Dyne during its operation between 1974 and 1979.
Examination of the city ordinances reveals that the city has developed oversight schemes addressed to the problems of waste disposal, even though specific terminology as to the waste's hazardous or toxic character is not stated. Chapter 1759 of the Hamilton Code, titled "Offensive Objects and Substances," is of particular significance since it contains an ordinance dealing with the disposition of liquid waste. Admittedly, waste which is both hazardous and in liquid form was not included in the state's regulatory scheme as discussed below until defined as such in the 1979 revision of R.C. Chapter 3734. See R.C. 3734.01(J). Nevertheless, the city of Hamilton in Section 1759.05, "Disposition of Liquid Waste," has addressed this type of harmful substance: "no person shall throw or cast any household orindustrial liquid waste, slop, swill, oil, brine, or water other than clean water, upon or into any thoroughfare, gutter, park, or parkway, sidewalks, yard, lot or premises, basin, pond, river, or watercourse." (Emphasis added.) Penalties for violation of this provision are also contained in Chapter 1759 under Section 1759.99. Plaintiffs in their cause of action have cited reports of the United States Environmental Protection Agency to show that Chem-Dyne's activities caused massive surface and subterranean contamination on its premises and neighboring ones. Avoidance of soil contamination can be construed as one of the purposes of the ordinance. Consequently, the facts alleged in the complaint indicate a breach of duty by the municipality in its failure to enforce its ordinances under Chapter 1759. Certainly Section 1759.05 of the Codified Ordinances of the city of Hamilton with its discussion of industrial liquid waste implements the legislative intent to create a duty upon the city. Further it must be realized that the term of art "hazardous waste" did not enter the lexicon of Ohio legislation until recently when the General Assembly in 1979 made revisions and additions to R.C. Chapter 3734, "Solid and Hazardous Wastes."
As for the majority's reliance upon the fact that Hamilton's nuisance ordinances (Chapter 1767) do not specifically address hazardous or toxic waste, *Page 198 a reviewing standard which imposed the need for the precise identification in the municipal ordinance is an unreasonable construction. In Cincinnati v. Miller (1893), 11 Ohio Dec. Rep. 788, 790, the court cited Harmon v. City of Chicago (1884),110 Ill. 400, 406, 51 Am. Rep. 698, 699:
"`A dense smoke emitted from chimneys and smoke stacks, in the midst of a large and densely populated city, is a public nuisance, whether it is so declared by ordinance or not. Unless it is so in fact, the act of declaring it to be a public nuisance would not make it so. Omitting so to declare it, it is none the less a public nuisance. Certainly anything that is detrimental to certain classes of property and business in a populous city and is a personal annoyance to the public at large within the city, needs not be defined by ordinance to be known to the common mind as a public nuisance — it is so per se.'"
Miller, supra, identifies the type of specificity that is required for the enforcement of a nuisance ordinance: detriment to persons and property. The fact that the ordinances do not precisely mention hazardous or toxic waste is not required.
Further, the majority examined the state's statutory law on the doctrine of nuisance to determine whether the city of Hamilton had a duty to abate the conditions which the court assumed the city, per the pleadings, knew existed at Chem-Dyne. The majority only discussed R.C. 715.44 and dismissed it as non-applicable. While not specifically pled, nevertheless this court can take notice of R.C. 3734.04. See Civ. R. 44.1(A)(1) ("[j]udicial notice shall be taken of the * * * public statutory law of this state").
Prior to its amendment in 1979, R.C. 3734.04 stated:
"The board of health of each district shall provide for the inspection, licensing, and enforcement of sanitary standards for solid waste disposal facilities and sites in conformity with sections 3734.01 to 3734.11, inclusive, of the Revised Code." (Emphasis added.) See 132 Ohio Laws, Part I, 1258.
Even though the term, "hazardous waste," was not added to R.C.3734.01 until 1979, the Ohio Legislature had exhibited its concern about undesirable materials of this type and their effect upon the environment with its enactment of R.C. 3734.01 et seq. in 1967 and its establishment of the Ohio Environmental Protection Agency in 1972. In other words, a statutory scheme regulating many of society's by-products capable of injuring the environment was in place by the time Chem-Dyne began conducting its business in the city of Hamilton. Before the 1979 revision to R.C. Chapter 3734, state law had defined "solid wastes" to mean "unwanted residual solid or semisolid material as results from industrial, commercial, agricultural, and community operations, excluding earth or material from construction, mining, or demolition operations and slag and other substances which are not harmful or inimical to public health, and includes garbage, combustible and noncombustible material, street dirt, and debris." R.C. 3734.01(E). See 132 Ohio Laws, Part I, 1257. Plaintiffs' complaint alleges that Chem-Dyne held itself out to the public as a national marketing company selling environmental disposal and reclamation services. This allegation therefore raises the inference that the company services involved materials which satisfied the code's definition of solid waste and activities subject to regulation under R.C. 3734.01 et seq.; at least a factual issue is raised.
Under the 1967 enactment, the board of health of each district was required to provide for the inspection, *Page 199 licensing, and enforcement of sanitary standards for solid waste disposal facilities and sites in conformity with the code's sections. R.C. 3734.04. See 132 Ohio Laws, Part I, 1258. Under present law, a board of health continues to have the same duties except that hazardous waste matters are now under the direction of the Director of Environmental Protection. R.C. 3734.04.
Thus, for the twelve-year period between 1967 and 1979, Ohio law made no distinction between the nature of solid wastes as hazardous or non-hazardous, merely characterizing these substances as unwanted, residual materials. Nonetheless the state had entered the field of regulating these wastes and had imposed mandatory duties on municipal boards of health in the process. Under the state of the law during Chem-Dyne's operations, the city of Hamilton, through its board of health, had three mandatory duties — to inspect, to license, and to enforce sanitary standards for solid waste disposal facilities and sites. R.C. 3734.04. Plaintiffs allege a breach of these duties by asserting first that the city had knowledge that the facility was unlicensed, a condition which existed due to the city's inaction. Further plaintiffs allege that the city knew or should have known that Chem-Dyne was accumulating, storing and disposing of noisome substances in an unsafe manner. Such allegations reasonably indicate that the city was not enforcing the sanitary standards established by the Ohio Environmental Protection Agency.
Accordingly, I would find that plaintiffs' complaint alleges sufficient facts to show that the city of Hamilton breached mandatory duties owed to them under R.C. 3734.04.
Lastly, this court must recognize in today's modern society that cases involving environmental problems and remedies should be closely scrutinized to protect all persons involved. Environmental law and its rights and remedies are constantly changing and expanding to meet the needs of those involved. The courts should therefore be all the more circumspect in summarily denying a forum on the merits in this ever-changing and increasingly important area of the law. Therefore, at this stage of the proceedings, I would overrule the trial court's granting of defendant's Civ. R. 12(C) motion.