COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60512 THE CITY OF CLEVELAND, : : Plaintiff-Appellee : : JOURNAL ENTRY vs. : and : OPINION GSX CHEMICAL SERVICES OF : OHIO, INC., : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION : MAY 7, 1992 CHARACTER OF PROCEEDING : Civil appeal from : Cleveland Municipal Court : Case No. 90-CRB-9940 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: William M. Ondrey Gruber Chief Assistant Director By: Robert O. Bucklew, Jr. Assistant Director of Law The City of Cleveland City Hall - Room 106 601 Lakeside Avenue Cleveland, Ohio 44114 For defendant-appellant: George L. Forbes Dennis N. LoConti Gary Cook 1300 Rockefeller Building 614 Superior Avenue, N.W. Cleveland, Ohio 44113 -2- NAHRA, J.: On March 12, 1990, the operations department of GSX Chemical Services of Ohio, Inc. (hereinafter "GSX"), defendant-appellant, was engaged in the process of transferring nonhazardous cutting oils into a tank that contained hazardous waste solvents. The malfunction of the tank's air pollution control equipment and resultant release of materials are the subject of this case. GSX stores, treats, and disposes of hazardous and nonhazardous wastes. The company has a 7,000 gallon storage tank known as Tank H-6 which it uses for the storage of both hazardous and nonhazardous wastes. GSX had obtained permits to install and to operate Tank H-6 as an air pollution source from the City of Cleveland's Division of Air Pollution Control and from the Ohio EPA. Under such permits, GSX was required to maintain ambient or prevailing air temperature of the materials in Tank H-6 when in operation. GSX was permitted to operate the tank as a storage tank and not as a reaction tank in which chemical reactions occur and temperature fluctuates. Tank H-6 is required to have air pollution control equipment. Such equipment, including the pressure relief valve and the lid portion of the tank, prevent the escape of the tank's contents except for normal breathing losses during the filling stage. On March 12, 1990 at approximately 4:00 p.m., GSX employees began transferring waste cutting oil into Tank H-6 which already -3- contained 2,500 gallons of hazardous solvents. Prior to this, Rick Betken, GSX's yard lead operator, had performed a test of samples between the two substances and was satisfied with their compatibility. After fifteen drums of the cutting oil had been pumped into Tank H-6, Betker heard a hissing noise from the pressure relief valve. As such hissing increased, Betker ordered other employees to shut off the pump. Betker ordered all employees to evacuate the area. The pressure in the tank had increased so much that the lid and pressure relief valve blew off the tank and flew over the tank's containment wall. At the same time, approximately 200 to 250 gallons of material in the tank blew into the air and splattered onto the buildings of a nearby business and several automobiles there. The Cleveland Fire Department and the Hazardous Materials Unit arrived at the scene minutes later. In addition, the Ohio EPA's Emergency Response Team arrived to investigate soon thereafter. At 7:20 p.m. that evening, Timothy Kent, GSX's Environmental Manager, called the National Spill Response Center. On March 13, 1990, GSX called the Cuyahoga County Emergency Response Coordinator's office as well as the North East Ohio Regional Sewer District about the incident. However, no one from GSX called the Department of Air Pollution Control ("DAPC"). On March 12, 1990, no messages were recorded on the DAPC's 24-hour malfunction hot line. At 7:30 p.m. of the same day, Ed Fasko, the DAPC's Engineering Bureau Chief, was notified of the incident -4- by Lt. Mark Scott of the Hazardous Material Unit of the City of Cleveland's Fire Department. On March 13, 1990, A. Lian Ang, a DAPC engineer, went to investigate the accident at GSX after being informed of the accident by Fasko. On March 19, 1990 Ang called Kent to request a malfunction report from GSX. On March 20, 1990, GSX faxed such a report to the DAPC. On March 28, 1990, the DAPC also received a 70 page malfunction report from GSX. In such report GSX indicated that the malfunction was caused by the mixture of cutting oils and hazardous solvents into the H-6 Tank. The report indicated that the temperature rose to 130 degrees. The report further indicated that the actual malfunction was under control within 16 hours but that any latent results of the malfunction would be removed within 10 days. The report concluded with a "Malfunction Abatement Plan" to take measures to "research a better pressure relief valve situation". On April 23, 1990, the City of Cleveland charged GSX with a violation of Sec. 279.01(d) of the City of Cleveland Air Pollution Control Ordinance (hereinafter "APC Ordinance"). On August 21, 1990, trial commenced and a jury found GSX guilty of Sec. 279.01(d) by failing to properly notify the Department of Air Pollution control of the air pollution malfunction. GSX was fined $1,000.00. This timely appeal follows. I. Appellant's first assignment of error states: -5- (A) THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY NOT GRANTING APPELLANT'S RULE 29 MOTION FOR ACQUITTAL, AND (B) THE JURY VERDICT WAS CLEARLY AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND INSUFFICIENT AS A MATTER OF LAW. Crim R. 29(A) provides in part: The court on motion of a defendant or on its own motion, after the evidence on either side is closed, shall order the entry of a judgment of acquittal of one or more offenses charged in the indictment, information, or complaint, if the evidence is insufficient to sustain a conviction of such offense or offenses. The Supreme Court of Ohio has stated: In reviewing a claim that a jury verdict was against the weight of the evidence, or that the evidence was insufficient, a reviewing court's duty is to review the record to determine whether there was sufficient evidence for the jury to find defendant guilty beyond a reasonable doubt. State v. Brown (1988), 38 Ohio St. 3d 305, 528 N.E.2d 523, paragraph four of the syllabus, certiorari denied (1989), 109 S. Ct. 1177; see State v. Barnes (1986), 25 Ohio St. 3d 203, 209, 495 N.E.2d 922; see also State v. Eley (1978), 56 Ohio St. 2d 169, 383 N.E.2d 132, syllabus. Section 279.01(d) of the Air Pollution Control Ordinance of which GSX was convicted provides: (d) No person shall fail to report a breakdown of any emission source or control equipment, as provided for in subsection (a) hereof, that results in the discharge into the atmosphere of air contaminants in excess of any of the limits established under this Code. Section 279.01(a), which sets forth the reporting requirements with which GSX failed to comply, states: Emissions exceeding any of the limits established under this Code, as a direct result of the breakdown of any -6- emission source or control equipment, shall not be deemed to be in violation of such limits, provided the owner or operator immediately advises the Commissioner of the breakdown and no later than four (4) hours after such breakdown advises the Commissioner of the immediate action taken or to be taken; and outlines a corrective program acceptable to the Commissioner in writing by certified mail within five (5) days after the occurrence of such breakdown. Section 251.22 of the APC defines "control equipment" as: Any device or continuance which prevents, removes, reduces or renders less noxious air contaminants discharged into the atmosphere. GSX asserts that the trial court erred by not granting the Crim. R. 29 motion for acquittal. GSX argues that the pressure relief valve and the lead on the H-6 storage tank, which constitute control equipment, did not suffer a breakdown or malfunction when they blew off during the explosion. Instead, GSX contends that with the rise in temperature and the explosion that followed, the control equipment functioned properly when it blew off the tank because were such equipment to stay fastened to the tank, the H- 6 tank might explode itself. As a result, no breakdown occurred pursuant to Sec. 279.01(d) of the APC and thus GSX had no duty to fulfill the reporting requirements of Sec. 279.01(a) of the APC. We believe there was sufficient evidence to convict GSX of Sec. 279.01 of the APC. Evidence indicates that there was a breakdown of the H-6 Tank, an emission source, and its control equipment, which resulted in the emission of excessive air contaminants. GSX subsequently failed to make the three reporting requirements in Sec. 279.01(a). As air pollution control equipment, the lid and low pressure relief value were -7- designed to prevent the escape of Tank H-6's contents except for normal breathing or vapor losses at ambient temperatures. When the GSX employees began loading incompatible oils with hazardous solvents into Tank H-6, a chemical reaction occurred causing the temperature to rise to 130 degrees fahrenheit. The air pollution control equipment was not designed to operate under such high temperature. In this way, it suffered a breakdown when 200 to 250 gallons of the material from the Tank H-6 were released. In violation of the APC ordinances, GSX continued to operate without control equipment. We believe that there was sufficient evidence to convict GSX beyond a reasonable doubt and that the verdict was not against the manifest weight of the evidence. Appellant's assignment of error is overruled. II. Appellant's second assignment of error states: THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY NOT FINDING SECTION 279.01 OF THE AIR POLLUTION CONTROL ORDINANCE UNCONSTITIONALLY VAGUE AND OVERBROAD. GSX argues that Sec. 279.01 of the APC is unconstitutionally vague and overbroad. GSX asserts that it is vague because it does not fairly inform a person of what is prohibited. Section 279.01(d) of the APC provides: No person shall fail to report a breakdown of any emission source or control equipment, as provided for in subsection (a) hereof, that results in the discharge into the atmosphere of air contaminants in excess of any of the limits established under this Code. -8- GSX asserts that the term "breakdown" is vague and that the average person would have to guess at its meaning and would not know when to comply with reporting requirements under Sec. 279.01(a) of the APC. GSX further maintains that Sec. 279.01 is overbroad since otherwise innocent and constitutionally protected conduct is rendered criminal by the ordinance. It is well-settled that all legislative enactments enjoy a presumption of constitutionality and that courts must apply all presumptions and pertinent rules of construction so as to uphold, if at all possible, a statute or ordinance assailed as unconstitutional. State v. Dorso (1983), 4 Ohio St. 3d 60, 61, 446 N.E.2d 449. In considering whether a statute is impermissibly vague, the constitutional requirement of definiteness is violated by a criminal statute that fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute. United States v. Harriss (1954), 347 U.S. 612, 618; Conally v. General Constr. Co. (1926), 269 U.S. 385, 391; Columbus v. Thompson (1971), 25 Ohio St. 2d 26, 266 N.E.2d 571, syllabus. The APC does not define the word "breakdown". Any term which is not defined by a statute is accorded its common, ordinary meaning. State v. Dorso (1983), 4 Ohio St. 3d 60, 62, 446 N.E.2d 449. The constitutional adequacy of a statute and its terms are measured by common understanding and commercial practice. Diebold, Inc. v. Marshall (C.A. 6, 1978), 585 F.2d 1327, 1336. -9- Webster's Third New International Dictionary (1961), Rev. (1986), 272, provides, among others, the following definitions for "breakdown": "failure of operation" or "an ending of effective operation". We believe that Sec. 279.01 of the Air Pollution Code is sufficiently clear to give persons of ordinary intelligence, especially those in the field of waste management, a reasonable opportunity to know what is prohibited and what reporting requirements must be followed in the case of a breakdown. Grayned v. City of Ruchford (1972), 408 U.S. 104. In this case, we do not believe the word "breakdown", construed according to the rules of everyday usage and that of the dictionary, fails to give GSX fair notice of the proscribed conduct. In the specialized field of waste management, GSX employees would clearly know when an emission source or its control equipment has broken down and discharged excessive air contaminants into the atmosphere. Nor do we believe that Sec. 279.01 is unconstitutionally overbroad since it does not make otherwise innocent conduct criminal. Broadrick v. Oklahoma (1973), 413 U.S. 601, 610-613; Record Revolution No. 6, Inc. v. Parma (C.A. 6, 1980), 638 F.2d 916, 927, vacated (1981), 451 U.S. 1013. GSX fails to spell out exactly how the ordinance is overbroad and we find no such rationale supporting such an assertion. Appellant's assignment of error is overruled. III. -10- Appellant's third assignment of error states: THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY GRANTING THE APPELLEE'S MOTION IN LIMINE NO. 1. Ohio Crim. R. 12(B) provides in part: (B) Pretrial Motions. Any defense, objection, or request which is capable of determination without the trial of the general issue may be raised before trial by motion. The following must be raised before trial: (1) Defenses and objections based on defects in the institution of the prosecution; (2) Defenses and objections based on defects in the indictment, information or complaint. * * * Failure to raise a defense pursuant to Crim. R. 12(B) constitutes a waiver of such defenses unless a trial court, in its discretion, grants relief from the waiver for good cause shown. Crim R. 12(G). The defense of selective prosecution must be raised in a pretrial motion. United States v. Jarrett (C.A. 7, 1983), 705 F.2d 198, 204-05. GSX attempted to raise the defense of selective prosecution at trial. However, the City of Cleveland filed a motion in limine to exclude GSX from presenting testimony and evidence at trial regarding malfunction reports at other facilities in support of their selective prosecution defense. The trial court granted the City of Cleveland's motion. In view of GSX's failure to raise such defense prior to trial and its failure to request an evidentiary hearing to determine whether the defendant has been singled out for prosecution, GSX waived its defense of -11- 1 selective prosecution. As a result, we need not address it on appeal. Crim. R. 12; United States v. Jarrett (C.A. 7, 1983), 705 F.2d 198. Notwithstanding such waiver, we do not believe that GSX made a prima facie showing of selective prosecution upon examination of the documents it proffered into the record. A defendant is entitled to an evidentiary hearing when a prima facie showing has been made that: (1) * * * while others have not been proceeded against because of conduct of the type forming the basis of the charge against him, he has been singled out for prosecution, and (2) that the government's discriminatory selection of him has been invidious or in bad faith, i.e. based upon such impermissible considerations as race, religion, or the desire to prevent the exercise of his constitutional rights. (Citations omitted.) United States v. Hazel (C.A. 6, 1983), 696 F.2d 473, 474. GSX alleges that other waste operators were not prosecuted for their failure to make timely reports of malfunctions and that because of the media attention given to GSX, as well as pressure from community activists, the City of Cleveland pinpointed GSX as the sole violator to be prosecuted. We do not believe that GSX's documents reveal a prima facie case of selective prosecution. There is nothing in the record to indicate government vindictiveness or intentional, purposeful discrimination. Even assuming prosecution against GSX proceeded 1 An evidentiary hearing is usually held prior to trial once the defendant has made a prima facie case on the defense of selective prosecution. -12- as the result of a heightened media focus or community pressure, such pressure alone does not establish a basis of selective prosecution. In Hazel, the defendants alleged selective prosecution in a criminal indictment for income tax evasion when such defendants were quite outspoken and vocal in their opposition to the tax. Id. But no "colorable right" was established by the defendants since the government is entitled to select cases for prosecution that it deems appropriate to promote compliance with the laws in question. Id. at 475. Likewise, we believe the trial court's grant of the City's motion in limine was proper. GSX clearly failed to establish a prima facie case of selective prosecution. Appellant's assignment of error is overruled. IV. Appellant's fourth assignment of error states: THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY NOT RULING THAT THE CITY ORDINANCE WAS PRE-EMPTED (SIC) BY STATE LAW. GSX asserts Sec. 279.01 of the Air Pollution Control Ordinance is void and unenforceable since it is preempted by R.C. 3734.05(E)(3). Section 3, Article XVIII, of the Ohio Constitution confers upon municipalities the power "* * * to adopt and enforce within their limits such local police, sanitary, and other similar regulations, as are not in conflict with general laws" and which are rationally based on the goals of maintaining the health, -13- safety, and general welfare of the community. Fondessy Enterprises, Inc. v. Oregon (1986), 23 Ohio St. 3d 213, 492 N.E.2d 797; Pepper Pike v. Landskroner (1977), 53 Ohio App. 2d 63, 371 N.E.2d 579, paragraph one of the syllabus. In determining whether an ordinance is in conflict with general laws, the test is whether the ordinance permits or licenses that which the statute forbids and prohibits, and vice versa. Struthers v. Sokol (1923), 108 Ohio St. 263, 140 N.E.2d 519, paragraph two of the syllabus; Fondessy Enterprises, Inc. (1986), 23 Ohio St. 3d 213, at paragraph two of the syllabus. The issue before us is whether Sec. 279.01 of the Air Pollution Control Ordinance, which sets forth the reporting requirements of a waste facility permit operator to the Department of Air Pollution Control when a breakdown occurs and results in excessive emissions, forbids or prohibits that which the state permits or requires under R.C. 3734.05(E)(3) and Ohio Adm. Code 3745-15-06. R.C. Chapter 3734 regulates virtually all aspects of operating hazardous waste facilities in Ohio. R.C. 3734.05(E)(3) provides: No political subdivision of this state shall require any additional zoning or other approval, consent, permit, certificate, or other condition for the construction or operation of a hazardous waste facility authorized by a hazardous waste facility installation and operation permit issued pursuant to this chapter, nor shall any political subdivision adopt or enforce any law, ordinance, or regulation that in any way alters, or limits the authority granted in this permit. (Emphasis added.) Section 279.01 states: -14- (a) Emissions exceeding any of the limits established under this Code, as a direct breakdown of any emission source or control equipment, shall not be deemed to be in violation of such limits, provided the owner or operator immediately advises the Commissioner of the breakdown and no later than four (4) hours after such breakdown advises the Commissioner of the immediate action taken or to be taken; and outlines a corrective program acceptable to the Commissioner in writing by certified mail within five (5) days after the occurrence of such breakdown. In Fondessy, the Ohio Supreme Court held that a municipal ordinance which did not "alter, impair, or limit the operation of a state-licensed hazardous waste facility is not in conflict with R.C. Chapter 3734, and may be held valid". Fondessy (1986), 23 Ohio St. 3d at 217. In Fondessy, the court held that the local ordinance merely required landfill operators to complete additional forms by the city, over and above any forms required under state statute, and to remit a monthly fee and file the forms with the city. The Supreme Court held that these requirements did not conflict with the state statute but were merely requirements in addition to the state statutes. Such additional requirements did not impede the company's operations in any substantive or significant way. Id. at 217. Likewise, we do not believe that the local police power of Sec. 279.01 conflicts with the state's exercise of its police powers in R.C. Chapter 3734. Section 279.01 merely provides the reporting requirements upon a source breakdown and the subsequent release of excessive air contaminants. We do not believe that Sec. 279.01 impairs or limits the operation of GSX's operation in any -15- way. These local requirements are not contained in or required by state law and were also not proscribed by state law. GSX also contends that Ohio Adm. Code 3745-15-06, which sets forth the reporting requirements of a waste operator to the Ohio EPA following a source breakdown, conflicts with Sec. 279.01 of the Air Pollution Control Ordinance. However, we find no such conflict. Section 279.01 requires a waste operator to report to the Department of Air Pollution Control; conversely, Ohio Adm. Code 3745-15-06 requires a waste operator to report a breakdown to an entirely different entity, the Ohio EPA. We do not believe the two reporting requirements conflict with each other. See Fondessy (1986), 23 Ohio St. 3d 213 at paragraph five of the syllabus. As a result of the foregoing, appellant's assignment of error is overruled. V. Appellant's fifth assignment of error states: THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY REFUSING TO SUBMIT TO THE JURY, APPELLANT'S JURY INSTRUCTION NUMBERS 1-3. GSX asserts that the trial court erred when it failed to properly instruct the jury that the culpable mental state for Sec. 279.01(d) of the Air Pollution Control Ordinance was "recklessness". GSX maintains that Sec. 279.01(d) does not plainly indicate a purpose to impose strict criminal liability or a particular culpability required to commit the offense. As a -16- result, the trial court should have submitted GSX's proposed instruction to the jury of criminal recklessness. R.C. 2901.21(B) provides: When the section defining an offense does not specify any degree of culpability, and plainly indicates a purpose to impose strict criminal liability for the conduct described in such section, then culpability is not required for a person to be guilty of the offense. When the section neither specifies culpability nor plainly indicates a purpose to impose strict liability, recklessness is sufficient culpability to commit the offense. Section 279.01(d) of Air Pollution Control Ordinance, for which GSX was convicted, states: No person shall fail to report a breakdown of any emission source or control equipment, as provided in subsection (a) hereof, that results in the discharge into the atmosphere of air contaminants in excess of any of the limits established under this Code. A statute indicates clearly the legislature's intent to impose strict liability when the statute reads "No person shall * * *," 2 absent any reference to the requisite culpable mental state. State v. Cheraso (1988), 43 Ohio App. 3d 221, 540 N.E.2d 326, paragraph two of the syllabus; see State v. Grimsley (1982), 3 Ohio App. 3d 265, 444 N.E.2d 1071. The language of Sec. 279.01 does not specify any degree of culpability. We believe that the statute plainly indicates a purpose to impose strict criminal liability because of critical language "no person shall fail to 2 The one exception to the rule is found in State v. Young (1988), 37 Ohio St. 3d 249, 525 N.E.2d 1363, reh. denied 110 S. Ct. 2605, which concerned the possession of child pornography under R.C. 2907.323(A)(3) and involved First Amendment rights. No such First Amendment rights are at issue in the case at bar. -17- report". The reporting requirement of the statute is designed to protect the public from the hazard created by the sudden release of excessive air contaminants into the atmosphere. As a result of the foregoing, we believe that the trial court's instruction to the jury was proper. Wagenheim v. Alexander Grant & Co. (1983), 9 Ohio App. 3d 7, 16, 482 N.E.2d 959. Appellant's assignment of error is overruled. VI. Appellant's sixth assignment of error states: THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY NOT RULING THAT THE HOUSING DIVISION OF THE CLEVELAND MUNICIPAL COURT HAD NO SUBJECT MATTER JURISDICTION OVER THE MATTERS ASSERTED IN THE CITY'S COMPLAINT. GSX maintains that the Housing Division of the Cleveland Municipal Court has no subject matter jurisdiction over the breakdown of the outdoor storage tank and that the trial court erred by not so ruling. We disagree. The Housing Division of the Cleveland Municipal Court was created by statute. See R.C. 1901.011. R.C. 1901.181(A) vests municipal housing courts with exclusive jurisdiction in criminal actions involving violations of air pollution ordinances and regulations applicable to any property subject to such codes. R.C. 1901.181(A) provides in pertinent part: (A) * * * Subject to section R.C. 1901.20 of the Revised Code, the housing division of a municipal court has exclusive jurisdiction in any criminal action for violation of any local building, housing, air pollution, sanitation, health, fire, or safety code, -18- ordinance, or regulation applicable to premises used or intended for use as a place of human habitation, buildings, structures, or any other real property subject to any such code, ordinance, or regulation. (Emphasis added.) GSX's waste facility is located in Cleveland, Ohio and its Tank H-6, located there, constitutes an air pollution "source" under Sec. 251.58 of the APC Ordinance. Such section provides: "Source" means any building, structure, facility, operation, installation, other physical facility or real or personal property which emits or may emit any air pollutant. As a "source", its Tank H-6 is subject to the regulatory requirements of the Air Pollution Code. The Housing Division had exclusive subject matter jurisdiction to hear the criminal action since Tank H-6 is a "structure" under R.C. 1901.181(A). We do not agree with GSX's assertion that the Housing Division of Cleveland Municipal Court is strictly limited to the resolution of residential housing disputes. We believe that the statutory mandate above provides the Housing Division with the subject matter jurisdiction over criminal violations of air pollution ordinances within the City of Cleveland and which concern commercial "structures" such as the one involving GSX. As a result of the foregoing, appellant's assignment of error is overruled. 3 R.C. 1901.20 sets forth the nonexclusive jurisdiction of municipal courts and provides in part: (A) The municipal court has jurisdiction of the violation of any ordinance of any municipal corporation within its territory * * * * -19- Accordingly, the judgment of the trial court is affirmed. Accordingly, the judgment of the trial court is affirmed. It is ordered that appellee recover of appellant its costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Cleveland Municipal Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. DAVID T. MATIA, C.J., and HARPER, J., CONCUR. JOSEPH J. NAHRA JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .