[Cite as State ex rel. Voleck v. Powhatan Point, 127 Ohio St.3d 299, 2010-Ohio-5679.] 

THE STATE EX REL. VOLECK ET AL., APPELLANTS, v. 

VILLAGE OF POWHATAN POINT, APPELLEE. 

[Cite as State ex rel. Voleck v. Powhatan Point, 

127 Ohio St.3d 299, 2010-Ohio-5679.] 

Mandamus — Remedy for a claim that public water supply is impure is a 

complaint before the Ohio Environmental Protection Agency or a breachof-contract action in common pleas court — Judgment affirmed. 

(No. 2010-0449 — Submitted November 16, 2010 — Decided 

November 24, 2010.) 

APPEAL from the Court of Appeals for Belmont County, 

No. 08-BE-33, 2010-Ohio-615. 

__________________ 

Per Curiam.

{¶ 1} This is an appeal from a judgment denying a writ of mandamus to 

compel appellee, village of Powhatan Point, to provide visually clean and 

chemically pure water to appellants, village residents John and Virginia Voleck. 

Because the Volecks failed to establish their entitlement to the requested 

extraordinary relief, we affirm the judgment denying the writ. 

Facts

{¶ 2} The Volecks live in the village of Powhatan Point, Belmont 

County, Ohio, and they pay the village to supply water to their home. According 

to the Volecks, the water is visually dirty, contains an unacceptable level of 

contaminants, and smells. The Volecks complained about the water, and the 

village reimbursed them for some water filters, which did not remedy the 

problem. 
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{¶ 3} In 2006, the Volecks complained to the Ohio Environmental 

Protection Agency (“EPA”) about sediment, i.e., sand or gravel, in their water 

line. After investigation, the state EPA determined the village water supply to be 

in compliance with both state and federal standards and so took no enforcement 

action against the village. No one else using the same water main as the Volecks 

had complained to the village. A Belmont County Water Department test done in 

December 2007 indicated that water tested at the tap-in location for the water 

main contained iron and manganese at levels within the suggested federal EPA 

standards, whereas water inside the Volecks’ home had much higher levels. The 

village concluded that the problem was in the Volecks’ lateral line between the 

main water source and their water filter, which is the residents’ own 

responsibility. 

{¶ 4} The Volecks hired Valiant Roxby, an engineer, to test their water 

in 2007 through 2009. Roxby concluded that the water in the Volecks’ residence 

was “visually dirty and contaminated, undrinkable and unsuitable for use.” He 

also found that the water had levels of iron and manganese that exceeded the 

federal EPA’s secondary standards. According to Roxby, the source of the 

contamination was outside the Volecks’ household water pipes and was likely 

caused by acid mine drainage leaching into the village’s well field. 

{¶ 5} In November 2008, the Volecks filed a petition in the Court of 

Appeals for Belmont County for a writ of mandamus to compel Powhatan Point 

to provide “visually-clean and chemically-pure water” to them. The village filed 

an answer, and the parties submitted motions for summary judgment. The 

Volecks argued that their mandamus claim is premised upon the village’s 

“contractual duty when failing to provide clean and pure drinking water to a 

customer’s home” and that “their claim is one in contract.” In February 2010, the 

court of appeals granted the village’s motion and denied the writ. State ex rel. 

Voleck v. Powhatan Point, Belmont App. No. 08-BE-33, 2010-Ohio-615, ¶ 11-12. 
January Term, 2010 

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{¶ 6} This cause is now before the court upon the Volecks’ appeal as of 

right. 

Legal Analysis

{¶ 7} The Volecks request a writ of mandamus to compel the village to 

provide visually clean and chemically pure water to them. Mandamus will not 

issue when the relators have an adequate remedy in the ordinary course of law. 

State ex rel. Natl. Emps. Network Alliance, Inc. v. Ryan, 125 Ohio St.3d 11, 2010-

Ohio-578, 925 N.E.2d 947, ¶ 1; R.C. 2731.05. “An administrative appeal 

generally provides an adequate remedy in the ordinary course of law that 

precludes extraordinary relief in mandamus.” State ex rel. Hilltop Basic 

Resources, Inc. v. Cincinnati, 118 Ohio St.3d 131, 2008-Ohio-1966, 886 N.E.2d 

839, ¶ 23; State ex rel. Glasstetter v. Rehab. Servs. Comm., 122 Ohio St.3d 432, 

2009-Ohio-3507, 912 N.E.2d 89, ¶ 27. 

{¶ 8} The federal Safe Drinking Water Act establishes a national safe 

drinking-water program developed by the federal EPA through primary and 

secondary drinking-water standards for specific contaminants and enforced 

concurrently by federal and state regulatory authorities. See generally Ohio 

Environmental Law Handbook (5th Ed.2004) 117. See Section 300f, Title 42, 

U.S.Code, for the definitions of primary and secondary drinking-water 

regulations. The state EPA administers laws pertaining to the public water supply 

in Ohio. R.C. 3745.01. One of the legislative purposes of the Ohio EPA is to 

“[p]rovide for enforcement of the right of the people to environmental quality 

consistent with human health and welfare.” R.C. 3745.011(F). The General 

Assembly enacted R.C. Chapter 6109 “to protect the public health and welfare 

and to enable the state to assume and retain primary enforcement responsibility 

under the Safe Drinking Water Act.” R.C. 6109.03. The director of 

environmental protection administers and enforces R.C. Chapter 6109. R.C. 

6109.04(A). 
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{¶ 9} Under R.C. 6109.11, the remedy for a claim that a public water 

system is impure and dangerous to health is a complaint filed with the Ohio EPA. 

R.C. 6109.11 (“Whenever any person files with the environmental protection 

agency a complaint, in writing, setting forth that it is believed that water provided 

by a public water system is impure and dangerous to health or does not contain 

quantities of fluoride as required by section 6109.20 of the Revised Code, the 

director of environmental protection shall forthwith inquire into and investigate 

the conditions contained in the complaint”). 

{¶ 10} Following the investigation of the complaint, the director of 

environmental protection may enter an order as may be necessary, request the 

attorney general to commence appropriate legal proceedings, dismiss the 

complaint, or commence a hearing before taking action. R.C. 3745.08(B). A 

party to the proceeding before the director may appeal to the environmental 

review appeals commission for an order vacating or modifying the director’s 

action or for an order that the director perform an act. R.C. 3745.04(B). The 

appeals commission has exclusive, original jurisdiction over these matters. Id. 

Any party adversely affected by the commission’s order may appeal to the Court 

of Appeals for Franklin County or to the court of appeals of the district in which 

the alleged violation of law or regulation occurred. R.C. 3745.06. 

{¶ 11} In July 2006, the Volecks complained to the Ohio EPA about sand 

or gravel in their water line. Following an investigation, the state EPA 

determined that their water was safe, and no enforcement action was taken against 

the village. Insofar as the Volecks challenge the failure of the director of 

environmental protection to take action on their complaint or attempt to raise a 

separate claim concerning the purity of their water, their exclusive remedy is 

through the comprehensive procedure set forth in R.C. 6109.11 and Chapter 3745. 

This special statutory procedure cannot be bypassed. See State ex rel. Lorain v. 

Stewart, 119 Ohio St.3d 222, 2008-Ohio-4062, 893 N.E.2d 184, ¶ 51 (actions for 
January Term, 2010 

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declaratory judgment and injunction are inappropriate where special statutory 

proceedings would be bypassed). 

{¶ 12} In Cincinnati ex rel. Crotty v. Cincinnati (1977), 50 Ohio St.2d 27, 

4 O.O.3d 83, 361 N.E.2d 1340, we reached a similar conclusion. In that case, city 

taxpayers and water users had filed an action in a common pleas court challenging 

the action of the director of environmental protection to add fluoride to the city’s 

drinking water. We held that the common pleas court lacked jurisdiction over the 

case because the pertinent provisions in R.C. Chapters 6111 and 3745 provided 

the exclusive means to complain that the public water supply is impure and 

dangerous to health and to challenge the director’s actions on these complaints. 

Id. at 30. 

{¶ 13} Nevertheless, the Volecks claim that they are not relegated to the 

exclusive administrative procedure specified in R.C. Chapters 6109 and 3745 

because they are asserting rights that are beyond the standards prohibiting impure 

and dangerous drinking water. They claim that although the quality of their water 

does not violate the primary drinking-water regulations establishing maximum 

contaminant levels (see Ohio Adm.Code 3745-81-11 to 3745-81-12 and 3745-81-

14 to 3745-81-15), it exceeds the secondary standards for certain contaminants, 

Ohio Adm.Code 3745-82-02, which include iron and manganese. These 

secondary drinking-water rules apply to contaminants that “affect aesthetic 

qualities relating to public acceptance of drinking water,” are not federally 

enforceable, and are intended as guidelines by the state. Ohio Environmental Law 

Handbook at 121. See Ohio Adm.Code Chapter 3745-82. 

{¶ 14} Assuming, arguendo, that the Volecks’ mandamus claim could be 

construed as outside of and not barred by the administrative procedure set forth in 

R.C. 6109.11 and Chapter 3745, their claim would still lack merit because they 

fail to specify the legal duty that is legislatively imposed on the village to provide 

water that is superior in quality to the Safe Drinking Water Act requirements of 
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federal and state law. See Section 300f, Title 42, U.S.Code and R.C. Chapter 

6109. “ ‘It is axiomatic that in mandamus proceedings, the creation of the legal 

duty that a relator seeks to enforce is the distinct function of the legislative branch 

of government, and courts are not authorized to create the legal duty.’ ” State ex 

rel. Gessner v. Vore, 123 Ohio St.3d 96, 2009-Ohio-4150, 914 N.E.2d 376, ¶ 4, 

quoting State ex rel. Pipoly v. State Teachers Retirement Sys., 95 Ohio St.3d 327, 

2002-Ohio-2219, 767 N.E.2d 719, ¶ 18. 

{¶ 15} The Volecks assert that their mandamus claim is premised on 

breach of contract and R.C. 2744.01(G)(2)(c), which defines a municipality’s 

proprietary function in operating a utility. They also argue an unconstitutional 

taking of their property. The Volecks acknowledge that their claim would not be 

cognizable in mandamus if it were based solely on contract, as some of their 

filings in the court of appeals suggested. See State ex rel. Wright v. Weyandt

(1977), 50 Ohio St.2d 194, 199, 4 O.O.3d 383, 363 N.E.2d 1387 (action for 

specific performance was an adequate remedy at law precluding writ of 

mandamus); State ex rel. Russell v. Duncan (1992), 64 Ohio St.3d 538, 538-539, 

597 N.E.2d 142 (affirming dismissal of mandamus action based on, inter alia, the 

presence of an adequate remedy at law via an action for breach of contract). 

{¶ 16} But the Volecks assert that their mandamus action is appropriate 

because the village’s duty arises not only in contract but also as a result of law. 

“Underlying public duties having their basis in law may be compelled by a writ of 

mandamus,” and a “breach of contract action is not a plain and adequate remedy 

in the ordinary course of law that precludes issuance of a writ of mandamus if 

relator is being damaged not solely by a breach of contract, but also by a failure of 

public officers to perform official acts that they are under a clear legal duty to 

perform.” State ex rel. V Cos. v. Marshall (1998), 81 Ohio St.3d 467, 472, 692 

N.E.2d 198; State ex rel. Bossa v. Giles (1980), 64 Ohio St.2d 273, 276, 18 
January Term, 2010 

7 

O.O.3d 461, 415 N.E.2d 256; State ex rel. Montrie Nursing Home, Inc. v. Aggrey

(1978), 54 Ohio St.2d 394, 397, 8 O.O.3d 401, 377 N.E.2d 497. 

{¶ 17} Nevertheless, in each of the cases cited, legislation supplied the 

requisite legal duty that supported the mandamus claim. See V Cos., 81 Ohio 

St.3d at 474, 692 N.E.2d 198 (R.C. 319.16, issuing a county-treasury warrant); 

Bossa, 64 Ohio St.2d at 276, 18 O.O.3d 461, 415 N.E.2d 256 (former R.C. 

121.161 [now 124.13], computation of vacation leave for state employees); 

Montrie Nursing Home, 54 Ohio St.2d at 397, 8 O.O.3d 401, 377 N.E.2d 497 

(1975 Am.Sub.H.B. No. 155, 136 Ohio Laws, Part I, 1603, 1683-1684, uncodified 

law specifying payment for vendor nursing-home care). 

{¶ 18} The Volecks claim that R.C. 2744.01(G)(2)(c) supplies the 

requisite legal duty for the village to provide them with visually clean and 

chemically pure water. But that provision merely defines the term “proprietary 

function” for purposes of the Revised Code chapter on political subdivision tort 

liability. It imposes no separate duty on the village that is cognizable in 

mandamus. 

{¶ 19} Finally, for the Volecks’ claim that the village’s purported breach 

of contract to provide water to them constitutes an unconstitutional taking, it is 

true that mandamus is the appropriate action to compel public authorities to 

institute appropriation proceedings when an involuntary taking of private property 

is alleged. State ex rel. Gilbert v. Cincinnati, 125 Ohio St.3d 385, 2010-Ohio1473, 928 N.E.2d 706, ¶ 14. The Volecks, however, disclaim any entitlement to 

an appropriation proceeding to compensate them for an alleged taking. Thus, they 

are not entitled to a writ of mandamus for the claimed taking. 

Conclusion

{¶ 20} Therefore, based on the foregoing, the Volecks have not 

established their entitlement to the requested extraordinary relief in mandamus. 

They have not established a clear legal duty on the part of the village to provide 
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them with water of better quality than that required by the Safe Drinking Water 

Act, and they have an adequate remedy in the ordinary course of law by either the 

administrative procedure set forth in R.C. 6111.09 and Chapter 3745 or a breachof-contract action in the common pleas court. We affirm the judgment of the 

court of appeals denying the writ. 

Judgment affirmed. 

 BROWN, C.J., and PFEIFER, LUNDBERG STRATTON, O’CONNOR,

O’DONNELL, LANZINGER, and CUPP, JJ., concur. 

__________________ 

Luper, Neidenthal & Logan, Luther L. Liggett Jr., and Heather Logan 

Melick, for appellants. 

Baker, Dublikar, Beck, Wiley & Mathews, James F. Mathews, and 

Melissa Day, for appellee. 

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