[Cite as State ex rel. Food & Water Watch & FreshWater Accountability Project v. State, 2016-Ohio-3135.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

State of Ohio ex rel. : 

Food and Water Watch 

and FreshWater Accountability Project, : 

 

 Relators, : No. 14AP-958 

 

v. : (REGULAR CALENDAR) 

 

State of Ohio et al., : 

 Respondents. : 

 

D E C I S I O N 

Rendered on May 24, 2016 

 

On brief: Terry J. Lodge, for relators. 

On brief: Michael DeWine, Attorney General, Ryan L. 

Richardson and Sarah E. Pierce, for respondents Governor 

John R Kasich and the State of Ohio; Brett A. Kravitz and 

Daniel J. Martin, for respondents James Zehringer, director 

of the Ohio Department of Natural Resources (ODNR) and 

Rick Simmers, chief of ODNR's Division of Oil and Gas 

Resources Management. 

On brief: Steptoe & Johnson PLLC, J. Kevin West, Lyle B. 

Brown and Katerina E. Milenkovski, for intervenors 

Chesapeake Exploration, L.L.C., and Antero Resources 

Corporation. 

 

IN MANDAMUS 

ON OBJECTION TO THE MAGISTRATE'S DECISION 

LUPER SCHUSTER, J. 

{¶ 1} Relators, Food and Water Watch ("FWW") and FreshWater Accountability 

Project ("FWAP"), filed this original action against four respondents: (1) State of Ohio, 

(2) Governor John R. Kasich, (3) James Zehringer, the director of the Ohio Department of 
No. 14AP-958 2 

Natural Resources ("ODNR"), and (4) Rick Simmers, chief of ODNR's Division of Oil and 

Gas Resources Management ("chief"). Relators request a writ of mandamus ordering 

respondents to promulgate rules as provided by R.C. 1509.22(C) and to nullify and vacate 

all orders the chief has issued.

{¶ 2} The court referred this matter to a magistrate pursuant to Civ.R. 53 and 

Loc.R. 13(M) of the Tenth District Court of Appeals. In December 2014, respondents filed 

a motion to dismiss. On February 4, 2015, Chesapeake Exploration, L.L.C., and Antero 

Resources Corporation ("intervenors") moved for leave to intervene pursuant to Civ.R. 24, 

and the magistrate granted that request. On February 27, 2015, relators filed a motion for 

summary judgment; in March 2015, intervenors moved for summary judgment; and in 

April 2015, respondents moved for summary judgment. 

{¶ 3} In January 2016, the magistrate issued the appended decision, including 

findings of fact and conclusions of law. The magistrate concluded relators lack standing 

to bring this action and, therefore, recommended this court deny relators' motion for 

summary judgment, grant intervenors' motion for summary judgment, grant respondents' 

motion for summary judgment, and find as moot respondents' motion to dismiss. 

Relators have filed an objection to the magistrate's decision and argue the magistrate 

erroneously determined they lack standing to bring this action. 

{¶ 4} Following our independent review of the record pursuant to Civ.R. 53, we 

find the magistrate properly applied the salient law to the pertinent facts. Relators' 

memorandum in support of their objection simply reasserts the claims regarding standing 

that the magistrate rejected in his well-reasoned decision. We adopt the magistrate's 

decision as our own, including the findings of fact and conclusions of law contained 

therein.1

 

1 The magistrate's decision cites State ex rel. Walgate v. Kasich, 10th Dist. No. 12AP-548, 2013-Ohio-946, 

as authority regarding the principles of organizational standing and public-right standing. After the 

magistrate issued his decision, the Supreme Court of Ohio affirmed in part and reversed in part this 

court's judgment. State ex rel. Walgate v. Kasich, __ Ohio St.3d __, 2016-Ohio-1176. Walgate involved 

the standing of various plaintiffs challenging gambling-related legislation and rules in Ohio. The Supreme 

Court reversed this court's judgment only to the extent this court affirmed the dismissal of the equal 

protection claim of one of the individual plaintiffs due to the plaintiff's lack of standing. Id. at ¶ 52. That 

plaintiff alleged he would engage in casino gaming but for an allegedly unconstitutional limitation. Id. at 

¶ 45. The Supreme Court found he had sufficiently alleged traditional standing. Id. at ¶ 50. The Supreme 

Court otherwise affirmed this court's judgment. Id. at ¶ 52. Therefore, the magistrate's citation to this 

court's decision in Walgate remains appropriate. 
No. 14AP-958 3 

{¶ 5} Accordingly, we overrule relators' objection to the magistrate's decision, 

deny relators' motion for summary judgment, grant intervenors' motion for summary 

judgment, grant respondents' motions for summary judgment, and find as moot 

respondents' motion to dismiss. The requested writ of mandamus is therefore denied. 

Objection overruled; 

writ of mandamus denied. 

SADLER, J., concurs. 

DORRIAN, P.J., concurs in part and concurs in judgment. 

DORRIAN, P.J., concurring in part and concurring in judgment. 

{¶ 6} I concur with the majority and would adopt the magistrate's decision with 

respect to the magistrate's conclusion that Wilkins and the Castles lack standing. 

{¶ 7} I concur separately with the majority and would adopt the magistrate's 

decision with respect to the magistrate's conclusion that Mshar lacks standing. However, 

I would not adopt the magistrate's conclusion at ¶ 90 of the appended magistrate's 

decision which states: 

Returning to the affidavit of Cheryl Mshar, there is no expert 

opinion or evidence to support the inference that the so-called 

"hydrocarbon stenches" that she allegedly has smelled since 

2014 are in fact causing her harm or injury. 

{¶ 8} Ohio courts, including the Supreme Court of Ohio, have ruled that an 

offensive odor or stench can constitute an injury for purposes of a nuisance claim. See, 

e.g., Banford v. Aldrich Chem. Co., 126 Ohio St.3d 210, 2010-Ohio-2470, ¶ 26 (referring 

to cases awarding damages for annoyance and discomfort affecting a person's senses, 

including discharge of soot, smoke, or gases onto neighboring property); Kepler v. Indus. 

Disposal Co., 84 Ohio App. 80 (9th Dist.1948) (holding that plaintiffs established an 

actionable nuisance claim where the defendant was engaged in burning industrial waste, 

resulting in noxious smoke and odors that at times enveloped the plaintiffs' properties); 

Reifsnyder v. Canton Fertilizer & Chem. Co., 9 Ohio App. 161, 166 (5th Dist.1918) ("[A] 

use [of property] which produces injurious and destructive vapors, smokes and noxious 

odors, causing an annoyance to property owners in the neighborhood, is such an 

annoyance as will authorize a court of equity to act and grant the proper relief."); Letts v. 
No. 14AP-958 4 

Kessler, 54 Ohio St. 73, 82 (1896), citing Broom's Legal Maxims, 372 ("If smoke, gas, 

offensive odors, or noise pass from one's own premises to or upon the premises of another 

to his injury, an action will lie therefor, even though the smoke, gas, odor or noise should 

be caused by the lawful business operations of defendant and with the best of motives."). 

While I acknowledge that the claim in the case before us sounds in mandamus rather than 

nuisance, case law cited above persuades me that the principal that an offensive 

odor/stench may constitute an injury is applicable here as well. 

{¶ 9} Furthermore, the magistrate points to no authority that expert opinion or 

even evidence other than Mshar's own sworn statement would be required to establish 

that a stench constitutes an injury for purposes of standing. As noted by the magistrate, 

this court has stated that standing requires a showing of a "direct and concrete injury in a 

manner or degree different from that suffered by the public in general." Bowers v. State 

Dental Bd., 142 Ohio App.3d 376, 380 (10th Dist.2001). Furthermore, the injury must be 

palpable and not merely speculative. State ex rel. Walgate v. Kasich, 10th Dist. No. 12AP548, 2013-Ohio-946, ¶ 11. At ¶ 5 of her affidavit, Mshar stated: "I can smell hydrocarbon 

stenches from the plant." Stench is defined as "a very bad smell" or "a characteristic 

repugnant quality." http://www.merriam-webster.com/dictionary/stench (assessed 

May 19, 2016). An expert nose is not required to discern a very bad smell. In addition, 

Mshar's proximity to the plant makes the stench different from that suffered by the public 

in general. 

{¶ 10} Nevertheless, although I disagree with the magistrate and the majority 

regarding whether Mshar established that she suffered an injury sufficient for purposes of 

standing, I concur that she did not establish redressability for purposes of standing. 

Mshar did not allege how administrative rules, rather than the existing Chief's orders, 

would redress the injury. 

{¶ 11} Accordingly, I respectfully concur in part and concur in judgment. 

 

 
No. 14AP-958 5 

APPENDIX 

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

State of Ohio ex rel. : 

Food and Water Watch 

and FreshWater Accountability Project, : 

 

 Relators, : 

 

v. : No. 14AP-958 

 

State of Ohio, et al. : (REGULAR CALENDAR) 

 Respondents. : 

 

M A G I S T R A T E ' S D E C I S I O N 

Rendered on January 14, 2016

 

Terry J. Lodge, for relators. 

Michael DeWine, Attorney General, Ryan L. Richardson and 

Sarah E. Pierce, for respondents Governor John R Kasich 

and the State of Ohio; Brett A. Kravitz and Daniel J. Martin, 

for respondents James Zehringer, director of the Ohio 

Department of Natural Resources (ODNR) and Rick 

Simmers, chief of ODNR's Division of Oil and Gas Resources 

Management. 

Steptoe & Johnson PLLC, J. Kevin West, Lyle B. Brown and 

Katerina E. Milenkovski, for intervenors Chesapeake 

Exploration, L.L.C. and Antero Resources Corporation. 

 

IN MANDAMUS 

ON RESPONDENTS' DECEMBER 23, 2014 MOTION TO 

DISMISS 

ON RELATORS' FEBRUARY 27, 2015 MOTION FOR 

SUMMARY JUDGMENT 
No. 14AP-958 6 

ON INTERVENORS' MARCH 12, 2015 MOTION FOR 

SUMMARY JUDGMENT 

ON RESPONDENTS' APRIL 28, 2015 MOTIONS FOR 

SUMMARY JUDGMENT 

{¶ 12} In this original action, the relators, Food and Water Watch ("FWW") and 

FreshWater Accountability Project ("FWAP") request that a writ of mandamus issue 

against four named respondents: (1) State of Ohio, (2) Governor John R. Kasich, (3) 

James Zehringer, the Director of the Ohio Department of Natural Resources ("ODNR"), 

and (4) Rick Simmers, Chief of ODNR's Division of Oil and Gas Resources Management. 

This action involves the alleged failure of Chief Simmers to promulgate administrative 

rules pursuant to R.C. 1509.22(C). 

Findings of Fact: 

{¶ 13} 1. On November 19, 2014, the relators filed a complaint for a writ of 

mandamus. 

The Complaint

{¶ 14} According to the complaint, FWW is a non-profit organization that 

allegedly "advocates for common sense policies that will result in healthy, safe food and 

access to safe and affordable drinking water." (Complaint, ¶ 9.) 

{¶ 15} According to the complaint, FWAP is a non-profit organization that 

allegedly "seeks to force corporations and governmental officials to be directly 

responsible and responsive to the public on energy issues which impair the commons of 

water and land resources." (Complaint, ¶ 10.) 

Relevant Statutes Identified in the Complaint 

{¶ 16} R.C. 1509.03(A) provides: 

The chief of the division of oil and gas resources 

management shall adopt, rescind, and amend, in accordance 

with Chapter 119. of the Revised Code, rules for the 

administration, implementation, and enforcement of this 

chapter. 

 

{¶ 17} R.C. 1509.22(B)(2)(a) provides: 

On and after January 1, 2014, no person shall store, recycle, 

treat, process, or dispose of in this state brine or other waste 
No. 14AP-958 7 

substances associated with the exploration, development, 

well stimulation, production operations, or plugging of oil 

and gas resources without an order or a permit issued under 

this section * * *. 

 

{¶ 18} R.C. 1509.22(C) provides: 

The chief shall adopt rules regarding storage, recycling, 

treatment, processing, and disposal of brine and other waste 

substances. The rules shall establish procedures and 

requirements in accordance with which a person shall apply 

for a permit or order for the storage, recycling, treatment, 

processing, or disposal of brine and other waste substances 

that are not subject to a permit issued under section 1509.06 

or 1509.21 of the Revised Code and in accordance with which 

the chief may issue such a permit or order. 

Attachments to the Complaint

{¶ 19} Attached to the complaint as exhibit A is a list of 23 entities that have each 

received from Chief Simmers a written order for temporary authorization to operate a 

facility pursuant to R.C. 1509.22. These 23 "chief's orders" were allegedly issued within 

the first 180 days of 2014. 

{¶ 20} Attached to the complaint as exhibit E is order number 2014-52 issued by 

Chief Simmers to Industrial Waste Control/Ground Tech, Inc. ("Ground Tech") for 

temporary authorization to operate a facility located at Youngstown, Ohio pursuant to 

R.C. 1509.22. The chief's order is dated March 6, 2014. 

{¶ 21} Attached to the complaint as exhibit F is order number 2014-08 issued by 

Chief Simmers to EnerGreen 360 Holding Company LLC ("EnerGreen") for temporary 

authorization to operate a facility in Warren Township, Belmont County, Ohio. The 

chief's order is dated January 3, 2014. 

{¶ 22} No chief's order is submitted with the complaint with respect to the 

remaining 21 other entities listed at exhibit A. 

Return to Body of the Complaint

{¶ 23} According to the complaint, Cheryl Mshar resides in Youngstown, Ohio 

within .8 miles of the Ground Tech facility. She is a member of FWW and FWAP. 
No. 14AP-958 8 

{¶ 24} According to the complaint, Hattie Wilkins resides in Youngstown, Ohio 

within .74 miles of the Ground Tech facility. She is also a member of FWW and FWAP. 

{¶ 25} According to the complaint, Cheryl Mshar: 

[B]elieves that she presently is breathing air which contains 

chemical and/or radioactive contamination from the Ground 

Tech plant and that she and her friends and families are 

threatened with physical harm by unmeasured and 

unmonitored routine pollutants and radiation being released 

from the Ground Tech facility into air and water. 

(Complaint, ¶ 11.) 

{¶ 26} Allegedly, Cheryl Mshar is an Ohio taxpayer: 

[W]ho objects to violations of Ohio law which potentially 

subject the State of Ohio to fiscal liability for misfeasance 

and malfeasance in the form of inadequate and unlawful 

regulatory actions. 

(Complaint, ¶ 11.) 

{¶ 27} According to the complaint, Hattie Wilkins also believes that she and her 

friends and family are breathing air containing "chemical and/or radioactive 

contamination from the Ground Tech plant" and that they are "threatened with physical 

harm." (Complaint, ¶ 12.) Allegedly, Hattie Wilkins is an Ohio taxpayer "who objects to 

violations of Ohio law which potentially subject the State of Ohio to fiscal liability for 

misfeasance and malfeasance in the form of inadequate and unlawful regulatory 

actions." (Complaint, ¶ 12.) 

{¶ 28} According to the complaint, FWAP members David Barton Castle and 

Bobbie Sue Castle reside, conduct business, and recreate some 1.7 miles south of the 

"proposed" EnerGreen facility. (Complaint, ¶ 14.) The Castle's allegedly: 

[B]elieve that if the EnerGreen dumpsite is allowed to be 

[sic] operate under the ODNR Chief's Order as issued that 

they will be exposed to air and water contaminated with 

chemical and radiological emissions from the facility, and 

that their physical health and that of their friends and family 

will be threatened by such unmeasured and unmonitored 

pollutants and radiation. 

(Complaint, ¶ 14.) 
No. 14AP-958 9 

{¶ 29} The Castles are allegedly Ohio taxpayers who also object to alleged 

violations of Ohio law as do Cheryl Mshar and Hattie Wilkins. 

{¶ 30} According to the complaint, the chief's orders issued to the 23 entities on 

the list were unlawfully issued because of the chief's alleged failure to promulgate the 

administrative rules provided by R.C. 1509.22(C). 

{¶ 31} Therefore, the complaint requests that this court issue a writ of mandamus 

ordering respondents to promulgate rules as provided by R.C. 1509.22(C). In the 

meantime, the relators "further pray the court immediate[ly] enjoin, nullify and revoke 

and cancel all Chief's Orders issued to date as being fatally unlawful." (Complaint, last 

paragraph.) 

Respondents' Motion to Dismiss 

{¶ 32} 2. On December 23, 2014, respondents filed their motion to dismiss the 

complaint. In their memorandum in support, respondents argued that relators lack 

standing to bring this action. Respondents also argue that this court lacks jurisdiction 

because allegedly the real object of the action is declaratory judgment and prohibitory 

injunction. 

{¶ 33} 3. On January 12, 2015, relators filed a memorandum contra respondents' 

motion to dismiss. In support, relators submitted the affidavit of Cheryl Mshar executed 

December 30, 2014, the affidavit of Hattie Wilkins executed January 5, 2015, and the 

affidavit of David Barton Castle and Bobbie Sue Castle executed jointly on January 10, 

2015. 

{¶ 34} 4. In her affidavit, Mshar averred: 

[One] I live at 1928 Donald Avenue in Youngstown, Ohio. I 

am an Ohio taxpayer, paying property, income and sales 

taxes. 

[Two] I am a member of two nonprofit organizations, Food 

and Water Watch and the FreshWater Accountability 

Project. Both organizations advocate for a ban on industrial 

waste handling by IWC/Ground Tech in Youngstown which 

is derived from horizontal hydraulic fracturing for oil and gas 

("fracking"), on the ground that it is unsafe and poses a 

threat to public health. 
No. 14AP-958 10 

[Three] I own my home on Donald Avenue. A map of the 

area in which I live in Youngstown accompanies this 

Affidavit, and shows that my house is .82 of a mile - about 

eight tenths of a mile - from the IWC/Ground Tech plant. 

[Four] I have read the IWC/Ground Tech application for its 

March 6, 2014 Chief's Order * * *. The facility services 

include the handling of radioactive fracking wastes, 

performing radiological waste characterization, tank 

cleaning and decontamination, waste solidification, brine 

storage, and preparation of drilling wastes for disposal. The 

Chief of the Ohio Department of Natural Resources did not 

require IWC/Ground Tech to provide any information about 

the air or water emission volumes, toxicity or hazards of the 

chemical and radioactive wastes and processes to which my 

family, friends and I will be exposed during routine 

operations at the facility. I conclude that the drilling wastes 

handled, blended and disposed of at IWC/Ground Tech will 

be at least as contaminated, if not more, with chemicals and 

radiation as they are when generated during horizontal 

hydraulic fracking operations. 

[Five] On a near-daily basis, I see trucks with large rolloff 

tanks, and tank trucks, coming to and from the IWC/Ground 

Tech plant. They drive on streets within several blocks of my 

home. I can smell hydrocarbon stenches from the plant, a 

smell which I first noticed in 2014 after the company 

received its Chief's Order. I am routinely forced to breathe 

polluted air. I have learned that there is no state or federal 

Clean Air Act permit which governs airborne emissions from 

IWC/Ground Tech's fracking waste facility. 

[Six] I oppose hydraulic fracturing to obtain oil and gas in 

part because fracking threatens our water supplies and our 

air with pollution by toxic chemicals and radiation, and 

produces large volumes of toxic industrial waste. After 

reading the Chief's Order issued by Ohio Department of 

Natural Resources for IWC/Ground Tech, I see no provisions 

which require the company to contain vapors and airborne 

emissions from the wastes, no requirements to clean up 

accidental spills of fracking waste material on nearby streets, 

nor restrictions which state what types of waste may be 

disposed of within Ohio, and/or under what conditions. I 

oppose the granting of Chief's Order No. 2014-52 for the 

operation of the IWC/Ground Tech drilling waste disposal 

facility in Youngstown because it doesn't regulate operations 

in any way, not even to hold the company to perform the 
No. 14AP-958 11 

processes and dispose of wastes as described in the 

application. 

[Seven] Living close by IWC/Ground Tech, I believe that my 

family, friends, and I are being involuntarily exposed to, and 

are breathing, chemically-polluted and radon-polluted air 

emitted from fracking waste delivered to or held at the 

facility as a part of routine operations. I believe that my 

family, friends and I will be [sic] continue to be involuntarily 

exposed to chemical and radioactive air pollution, and will 

have to breathe such in the event there are waste spills from 

trucks traveling to and from IWC/Ground Tech on streets 

closer to my home than the IWC/Ground Tech facility. I also 

believe that my family, friends and I will be involuntarily 

exposed to chemical and radioactive contamination, both 

airborne and waterborne, in the event of a spill into the 

Mahoning River, which runs near the facility and near my 

home. 

[Eight] I believe that even if air and water pollution are the 

result from routine operations, they subject my family, 

visiting friends and me to unnecessary risks to personal 

health. 

{¶ 35} 5. In her affidavit, Wilkins avers at paragraphs one through seven: 

[One] I live at 733 Fairmont Avenue in Youngstown, Ohio. I 

am an Ohio taxpayer, paying property, income and sales tax. 

[Two] I am a member of two nonprofit organizations, Food 

and Water Watch and the FreshWater Accountability 

Project. Both organizations advocate for a ban on industrial 

waste handling by IWC/Ground Tech in Youngstown which 

comes from horizontal hydraulic fracturing for oil and gas 

("fracking"), on the ground that it is unsafe and poses a 

threat to public health. 

[Three] I own my home on Fairmont Avenue. A map of the 

area in which I live in Youngstown accompanies this 

Affidavit, and shows that my house is .74 of a mile - about 

three quarters of a mile - from the IWC/Ground Tech plant. 

[Four] I have read the IWC/Ground Tech application for its 

March 6, 2014 Chief's Order * * *. The facility services 

include the handling of radioactive fracking wastes, 

performing radiological waste characterization, tank 

cleaning and decontamination, waste solidification, brine 
No. 14AP-958 12 

storage, and preparation of drilling wastes for disposal. The 

Chief of the Ohio Department of Natural Resources did not 

require IWC/Ground Tech to provide any information about 

the air or water emission volumes, toxicity or hazards of the 

chemical and radioactive wastes and processes to which my 

family, friends and I will be exposed during routine 

operations at the facility. I conclude that the drilling wastes 

handled, blended and disposed of at IWC/Ground Tech will 

be at least as contaminated, if not more, with chemicals and 

radiation as they are when generated during horizontal 

hydraulic fracking operations. 

[Five] I oppose hydraulic fracturing to obtain oil and gas in 

part because fracking threatens our water supplies and our 

air with pollution by toxic chemicals and radiation, and 

produces large volumes of toxic industrial waste. After 

reading the Chief's Order issued by Ohio Department of 

Natural Resources for IWC/Ground Tech, I see no provisions 

which require the company to contain vapors and airborne 

emissions from the wastes, no requirements to clean up 

accidental spills of fracking waste material on nearby streets, 

nor restrictions which state what types of waste may be 

disposed of within Ohio, and/or under what conditions. I 

oppose the granting of Chief's Order No. 2014-52 for the 

operation of the IWC/Ground Tech drilling waste disposal 

facility in Youngstown because it doesn't regulate operations 

in any way, not even to hold the company to perform the 

processes and dispose of wastes as described in the 

application. 

[Six] Living close by IWC/Ground Tech, I believe that my 

family, friends, and I are being involuntarily exposed to, and 

are breathing, chemically-polluted and radon-polluted air 

emitted from fracking waste delivered to or held at the 

facility as a part of routine operations. I believe that my 

family, friends and I will be [sic] continue to be involuntarily 

exposed to chemical and radioactive air pollution, and will 

have to breathe such in the event there are waste spills from 

trucks traveling to and from IWC/Ground Tech on streets 

closer to my home than the IWC/Ground Tech facility. I also 

believe that my family, friends and I will be involuntarily 

exposed to chemical and radioactive contamination, both 

airborne and waterborne, in the event of a spill into the 

Mahoning River, which runs near the facility and near my 

home. 
No. 14AP-958 13 

[Seven] I believe that even if air and water pollution are the 

result from routine operations, they subject my family, 

visiting friends and me to unnecessary risks to personal 

health. 

{¶ 36} 6. In their affidavit, the Castles aver at paragraphs 1 through 15: 

[One] We are adult residents of Ohio, are married to one 

another, and live at 416 North Chestnut Street in Barnesville, 

Ohio 43713. 

[Two] We each are members of the FreshWater 

Accountability Project, which opposes the development of 

the EnerGreen 360 fracking waste dump proposed to be built 

a short distance north of Barnesville, on the ground that the 

dump would be unsafe and pose a threat to public health. 

[Three] We own our home on North Chestnut Street, which 

is about 1.7 miles south of the proposed site of the 

EnerGreen 360 dump north of Barnesville. We routinely run 

errands, visit friends, attend civic functions, and maintain 

and live in our home in Barnesville. 

[Four] We have read the EnerGreen 360 application for the 

Chief's Order which is the subject of this lawsuit * * *. We are 

very concerned for our health and that of our family 

members in the Barnesville area in connection with the 

planned EnerGreen oil and gas drilling waste treatment 

facility, slated to set up operations on Belmont County Port 

Authority land north of Barnesville. The proposal involves 

the dumping of a blend of fracking waste and coal ash or 

other industrial wastes on bare ground, without monitoring 

wells, to create a flat, 200 acre industrial park site by filling 

in a valley with exposed surface waters running through it. 

There will be no protective landfill liners and no means of 

assessing what toxins are carried offsite by rainwater or snow 

melt. 

[Five] Neither the EnerGreen application nor the Chief's 

Order from the Ohio Department of Natural Resources 

provide for monitoring of air or water quality, nor does the 

chief's Order require any state or federal permits required by 

the federal Clean Air or Clean water Acts. We know that oil 

and gas drilling wastes will contain heavy metals, radioactive 

elements including radium, thorium, uranium and will emit 

radon gas. We are concerned that chemicals used to extract 

oil and gas from shale during hydraulic fracturing (called 
No. 14AP-958 14 

"fracking") will contaminate the drilling wastes at 

EnerGreen, and that various chemical poisons will become 

airborne and be breathed by us and members of our family 

who live, work and conduct business in and around 

Barnesville. 

[Six] EnerGreen proposes the dumping of up to 60,000 tons 

per year of oil and gas drilling wastes blended with coal ash 

and/or other poisonous or hazardous materials and toxic 

wastes. 

[Seven] In the past several years we have observed the 

spread of horizontal hydraulic fracturing for oil and gas in 

the vicinity of Barnesville. We are familiar with the industrial 

chemical odors and taste in the mouth from driving in areas 

where fracking wells are being developed. We've seen flaring 

wells and breathed the toxic air downwind from them in the 

vicinity of Barnesville. 

[Eight] Prior to our becoming parties to this case, we read 

and saw evidence of waste problems from fracking, including 

chemically-contaminated drilling wastes being poured into 

pits, or being injected under high pressure underground. We 

also know about the practice of "downblending," where 

fracking waste is mixed with other material so it can 

supposedly be reduced enough in its radioactivity or 

chemical toxicity to be disposed of in landfills. 

[Nine] Although we question the wisdom of disposing of 

fracking waste in licensed landfills, at least licensed landfills 

have liners and other engineered features to provide some 

protection to groundwater and surface water supplies, and to 

people. According to the application for the Chief's Order in 

this case, fracking waste will be mixed with coal ash and the 

resulting blend will be dumped in a place with no liners, no 

monitoring wells, no leachate collection systems - in short, 

without any of the features one might find in a licensed 

landfill. Coal ash is required by Ohio law to be disposed of in 

a licensed landfill, but EnerGreen will not be operating a 

licensed landfill. We see nothing in their application that 

suggests the heavy metals or mercury or concentrated 

radiation in coal ash will be neutralized, removed or 

rendered nondangerous. Fracking waste also contains heavy 

metals and radium. Even if EnerGreen can be believed that 

they will only be disposing of "vertical cuttings" from oil and 

gas drilling, those cuttings will inevitably contain heavy 

metals and radiation. Radium, one of the radiation sources, 
No. 14AP-958 15 

easily moves around in water. From the lack of concern for 

toxicity apparent from the application, we conclude that the 

EnerGreen dump won't use the practice of "daily cover" to 

top off the waste being dumped on the ground to slow down 

penetration by rainfall or snow melt. Water will freely 

penetrate the growing pile of waste, it appears, and will also 

move radiation into the ground or across the land surface 

into water supplies. The lack of daily cover also will allow 

radon gas to freely escape from the pile. 

[Ten] With no measures to stop particles of waste, chemicals, 

heavy metals and radioactive solid matter and gas from 

being blown offsite from EnerGreen, and nothing to stop 

runoff of heavy metals and radiation into water sources, we 

are both concerned that the wind and water will deposit toxic 

and radioactive materials throughout Barnesville and into 

the Barnesville Reservoir which is south of town. 

[Eleven] From our investigation before becoming parties to 

this case, we know that thousands of tons per year of 

radioactive drill cuttings are landfilled in Pennsylvania, and 

that regulators there do not have a very good handle on the 

problem of getting rid of radioactive fracking wastes. And we 

believe the situation is even worse in Ohio, where naturallyoccurring radioactive material, called "NORM," is completely 

unregulated and may be disposed of anywhere without 

notice, air or water monitoring, or the maintenance of 

records, even though NORM might contain high levels of 

radium and other radioactive isotopes, and emit radon gas. 

[Twelve] The EnerGreen application says of radiological 

hazards of the thousands of tons of fracking wastes that will 

be brought onto the site, only that incoming loads will be 

"scanned" for radiation. * * * There is no disclosure of what 

scanning device will be used, nor a justification of its 

accuracy, nor is there any mention of what the anticipated 

range of the radioactive elements and radiotoxicity might be. 

Radium, the major radioactive element, is an alpha wave 

emitter, and we see no indication of how radium will be 

identified. 

[Thirteen] The Chief's Order issued by ODNR provides for 

no identification of radioactivity in the EnerGreen waste 

receipts. It doesn't even legally require EnerGreen to do 

whatever vaguely-referenced testing the company plans to 

do. 
No. 14AP-958 16 

[Fourteen] The EnerGreen application does not mention 

radon gas nor any other emissions, yet the material will 

contain radiation and oil-based substances and there are no 

arrangements to limit or control emissions of airborne 

contaminants and radon gas. 

[Fifteen] EnerGreen's application states that the company 

will only accept "air cuttings," and that the material will also 

contain "refined oil-based substances." There is no 

explanation of how "air cuttings" will be distinguished from 

drilling material resulting from horizontal drillings in the 

fracking wells, which may be identical in visual appearance 

to vertical cuttings. The application states * * * that "material 

that does not meet the regulatory requirements will be 

disposed at the landfill." So EnerGreen fully expects to 

receive drilling wastes above and beyond vertical air 

cuttings," but gives no explanation of how unacceptable 

material will be identified and separated from acceptable 

material. 

{¶ 37} 7. On January 22, 2015, respondents filed their reply in support of their 

motion to dismiss. In their reply, respondents suggest that it would be inappropriate for 

this court to consider the affidavits on a motion to dismiss. Also, respondents assert 

that the affiants "merely restate the conclusory and highly speculative allegations of 

harm set forth in the complaint." (Reply, 13.) 

The Motion to Intervene 

{¶ 38} 8. On February 4, 2015, pursuant to Civ.R. 24, a motion to intervene was 

filed by Chesapeake Exploration, LLC ("Chesapeake") and Antero Resources 

Corporation ("Antero"). With their motion to intervene, Chesapeake and Antero filed a 

memorandum supplementing the respondents' December 23, 2014 motion to dismiss. 

{¶ 39} 9. On February 20, 2015, the relators filed their memorandum contra the 

motion to intervene. On March 2, 2015, Chesapeake and Antero filed a reply. 

{¶ 40} 10. On April 1, 2015, the magistrate issued an order finding that 

Chesapeake and Antero have met the requirements of Civ.R. 24(B)(2) for permissive 

intervention. Thus, the magistrate's order grants the motion to intervene. 

 
No. 14AP-958 17 

The Motions for Summary Judgment 

{¶ 41} 11. Earlier, on February 27, 2015, relators moved for summary judgment. 

{¶ 42} 12. On March 9, 2015, respondents moved to stay briefing on relators' 

summary judgment motion pending the magistrate's ruling on respondents' motion to 

dismiss. 

{¶ 43} 13. On March 12, 2015, prior to the magistrate's order granting 

intervention, the applicants for intervention (Chesapeake and Antero) filed their own 

motion for summary judgment. Chesapeake and Antero also filed their written response 

to relators' motion for summary judgment. Chesapeake and Antero also moved for leave 

to file their motion for summary judgment. 

{¶ 44} 14. On April 2, 2015, relying on Civ.R. 56(A), the magistrate issued an 

order denying respondents' March 9, 2015 motion to stay briefing on relators' 

February 27, 2015 motion for summary judgment. 

{¶ 45} 15. On April 2, 2015, the magistrate issued notice of summary judgment 

hearing. Notice was given that the motions for summary judgment filed by relators and 

intervenors are set for submission to the magistrate on April 21, 2015. 

{¶ 46} 16. On April 8, 2015, the magistrate issued an order granting the 

March 12, 2015 motion of Chesapeake and Antero for leave to file their motion for 

summary judgment and their response to the relators' motion for summary judgment. 

The magistrate amended the April 2, 2015 notice of summary judgment hearing such 

that the motions for summary judgment were set for submission to the magistrate on 

April 28, 2015. 

{¶ 47} 17. On April 9, 2015, the relators' moved for leave to respond in opposition 

to intervenors' motion for summary judgment. The magistrate granted relators' motion, 

but the submission date for the motions for summary judgment remained at April 28, 

2015. 

{¶ 48} 18. On April 28, 2015, respondents Governor Kasich and the State of Ohio 

moved for summary judgment. They also filed a memorandum contra the relators' 

motion for summary judgment. 
No. 14AP-958 18 

{¶ 49} 19. Also on April 28, 2015, respondents Zehringer and Chief Simmers 

moved for summary judgment. Respondents also filed a memorandum in opposition to 

the relators' motion for summary judgment. 

{¶ 50} 20. On May 5, 2015, the magistrate issued an order giving notice that the 

two motions for summary judgment filed on April 28, 2015 are set for submission to the 

magistrate on May 22, 2015. 

{¶ 51} 21. On May 22, 2015, the relators filed a memorandum contra the 

April 28, 2015 motion for summary judgment filed by Zehringer and Chief Simmers. 

{¶ 52} 22. Also on May 22, 2015, Chesapeake and Antero filed a memorandum in 

support of respondents' motions for summary judgment. 

Conclusions of Law: 

{¶ 53} The issue is whether relators have standing to litigate the consequences of 

the alleged failure to promulgate administrative rules under R.C. 1509.22(C) by Chief 

Simmers. The object of this original action is twofold: (1) to compel Chief Simmers to 

promulgate rules under R.C. 1509.22(C), and (2) to compel Chief Simmers to rescind 

the chief's orders he issued to the 23 named entities, including the intervenors. 

{¶ 54} Finding that relators lack standing to bring this action, it is the 

magistrate's decision that this court grant the motions for summary judgment filed by 

the respondents and the intervenors, and that this court deny relators' motion for 

summary judgment. The respondents' motion to dismiss is thereby rendered moot. 

The Law of Standing: Traditional Standing 

{¶ 55} Before an Ohio court can consider the merits of a legal claim, the person or 

entity seeking relief must establish standing to sue. Ohio Pyro, Inc. v. Ohio Dept. of 

Commerce, Div. of State Fire Marshal, 115 Ohio St.3d 375, 2007-Ohio-5024,¶ 27. 

{¶ 56} Traditional standing principles require the plaintiffs to show that they 

have suffered (1) an injury that is, (2) fairly traceable to the defendant's allegedly 

unlawful conduct, and (3) likely to be redressed by the requested relief. Moore v. City of 

Middletown, 133 Ohio St.3d 55, 2012-Ohio-3897, ¶ 22, citing Lujan v. Defenders of 

Wildlife, 504 U.S. 555, 560-61 (1992). "These three factors—injury, causation, and 
No. 14AP-958 19 

redressability—constitute 'the irreducible constitutional minimum of standing.' " Id. at 

¶ 22, quoting Lujan at 560. See ProgressOhio.org, Inc. v. JobsOhio, 139 Ohio St.3d 

520, 2014-Ohio-2382, ¶ 7. 

{¶ 57} Standing depends upon whether the party has alleged such a personal 

stake in the outcome of the controversy as to ensure that the dispute sought to be 

adjudicated will be presented in an adversary context and in a form historically viewed 

as capable of judicial resolution. Clifton v. Village of Blanchester, 131 Ohio St.3d 287, 

2012-Ohio-780, ¶ 15; ProgressOhio.org, Inc. at ¶ 7. 

{¶ 58} An association has standing to bring a lawsuit on behalf of its members 

when (1) its members would otherwise have standing to sue in their own right; (2) the 

interests it seeks to protect are germane to the organization's purpose; and (3) neither 

the claim asserted nor the relief requested requires the participation of individual 

members in the lawsuit. State ex rel. Walgate v. Kasich, 10th Dist. No. 12AP-548, 2013-

Ohio-946, ¶ 15, citing League of United Latin Am. Citizens v. Ohio Governor, 10th Dist. 

No. 10AP-639, 2012-Ohio-947, ¶ 20. 

{¶ 59} The injury is not required to be economic, but it must be palpable. 

Walgate at ¶ 11. The injury cannot be merely speculative. Id. An injury that is borne by 

the population in general, and which does not affect the plaintiff in particular, is not 

sufficient to confer standing. Id. 

{¶ 60} To show standing, a private litigant: 

"[M]ust generally show that he or she has suffered or is 

threatened with direct and concrete injury in a manner or 

degree different from that suffered by the public in general, 

that the law in question has caused the injury, and that the 

relief requested will redress the injury." 

Bowers v. Ohio State Dental Bd., 142 Ohio App.3d 376, 380 (10th Dist.2001), quoting 

State ex rel. Ohio Academy of Trial Lawyers v. Sheward, 86 Ohio St.3d 451, 469-70 

(1999). 

{¶ 61} The magistrate finds helpful City of Olmsted Falls v. Jones, 152 Ohio 

App.3d 282, 2003-Ohio-1512, a case cited by the respondents. 

{¶ 62} In Olmsted Falls, the city of Olmsted Falls ("city") challenged a decision of 

the Ohio Environmental Protection Agency ("OEPA") on grounds that it exceeded the 

agency's authority under Ohio and Federal law. Id. at ¶ 2. The Environmental Review 
No. 14AP-958 20 

Appeals Commission ("ERAC") agreed with the city. On appeal, this court concluded 

the city lacked standing to challenge the decision and, thus, reversed ERAC's decision. 

{¶ 63} In finding that the city lacks standing, this court rejected the notion that 

the city's proximity to the site of the environmental impact sufficed to show injury: 

The stipulated facts indicate that Olmsted Falls is a city 

located approximately 2.2 miles southwest of Cleveland 

Hopkins International Airport. However, being a city within 

close proximity of the airport is not a concrete or specific 

injury as required to demonstrate standing. Proximity is only 

a factor when coupled with a threatened or actual injury. 

Temple v. Schregardus (May 27, 1999), Franklin App. No. 

98AP-650, 1999 Ohio App. LEXIS 2373. The evidence only 

provides that the land and water will be affected but does not 

demonstrate the effect on Olmsted Falls. 

Id. at ¶ 29. 

{¶ 64} Furthermore, this court noted that "if a threatened injury is alleged, the 

party must demonstrate a realistic danger arising from the challenged action." Id. at 

¶ 21. 

{¶ 65} The magistrate also finds helpful Ogden Projects v. New Morgan Landfill 

Co., 911 F.Supp. 863 (E.D.Pa.1996), a case also cited and discussed by the respondents. 

{¶ 66} In the Ogden Projects case, the plaintiffs, Ogden Projects, Inc., Ogden 

Martin Systems of Lancaster, Inc., John Snyder, and Jeffrey R. Horowitz brought an 

action against New Morgan Landfill Company, Inc. ("New Morgan Landfill"). The two 

corporate plaintiffs and the two individual plaintiffs (Snyder and Horowitz) alleged that 

New Morgan Landfill constructed and continues to operate a solid waste landfill in 

Berks County, Pennsylvania without the requisite Clean Air Act ("CAA") permit. 

{¶ 67} Finding that the individual plaintiffs lacked standing, the court explains: 

To satisfy the first constitutional element of standing, injury 

in fact, a plaintiff must prove his injury to be "concrete and 

particularized" and "actual or imminent, not 'conjectural' or 

'hypothetical.' " Lujan, 504 U.S. at 560, 112 S.CT. at 2136 

(citations omitted). We believe the Individual Plaintiffs here 

have not made such a showing. 

The Individual Plaintiffs base their alleged injuries on the 

following facts. Plaintiff John Snyder resides approximately 

25 miles from the Morgantown Landfill and utilizes the 
No. 14AP-958 21 

recreational resources of Lancaster and Berks counties with 

his young children. * * * In addition, Plaintiff's expert stated 

that the air quality in Berks County would have been better if 

Defendant complied with CAA Part D permitting 

requirements. * * * As a consequence, Plaintiff Snyder 

asserts that emissions from the Morgantown Landfill will 

diminish surrounding air quality and thereby adversely 

affect his health, environmental and recreational interests. 

* * * 

Plaintiff Jeffrey Horowitz resides approximately 85 miles 

from the landfill. * * * Nonetheless, his residence still falls 

within the Northeast Ozone Transport Region, the same 

nonattainment region that the Morgantown Landfill falls 

within. * * * He bicycles, skis and regularly uses the outdoor 

recreational resources of northern New Jersey with the rest 

of his family. * * * Plaintiff Horowitz claims that given this he 

suffers anxiety over the impact of Morgantown Landfill 

emissions on his health. * * * Plaintiff's expert stated that 

such concerns are reasonable. * * * He is also concerned with 

the ecological health of the Great Swamp National Wildlife 

Refuge, a place where he regularly bicycles. * * * Plaintiff's 

expert testified that elevated levels of ozone negatively 

impact such ecosystems and degrade the aesthetic appeal of 

the sky. * * * The expert did not state the amount of ozone 

necessary to create such effects. 

The Supreme Court has long recognized that injury to a 

plaintiff's health, environmental, recreational or aesthetic 

interests constitutes the type of injury sufficient to confer 

standing. [Sierra Club v. Morton, 405 U.S. 727, 734.] 

Nonetheless, we believe the Individual Plaintiffs fall short of 

establishing that their alleged injuries are sufficiently 

concrete to satisfy the first prong of the standing test. The 

Individual Plaintiffs offer no evidence regarding the 

magnitude of the diminished air quality nor the specific 

direct effect, if any, that this diminished air quality will have 

on their health, environmental and recreational interests. 

From the fact that the air quality in the geographical area 

surrounding the landfill would have been better had 

Defendant obtained a Part D permit, Individual Plaintiffs 

summarily conclude that their health, environmental and 

recreational interests suffer injury, without filling in the 

blanks. 

Id. at 869-70. 

 
No. 14AP-958 22 

Analysis: Traditional Standing 

{¶ 68} Examining the allegations of the complaint, as well as the affidavits of 

Cheryl Mshar, Hattie Wilkins, David Barton Castle and Bobbie Sue Castle, it is clear that 

the relators have not alleged in their complaint, nor shown by affidavits, an injury that is 

concrete and not speculative. Moreover, relators have failed to show that their alleged 

injuries are different from that suffered by the public in general. 

{¶ 69} In her affidavit executed December 30, 2014, Cheryl Mshar avers that her 

home is located .82 of a mile from the Ground Tech facility located at Youngstown, 

Ohio. She avers that she has read the Ground Tech application for its March 6, 2014 

chief's order. Based on what she has read, Mshar concludes that the drilling wastes 

handled by Ground Tech at the facility "will be at least as contaminated, if not more, 

with chemicals and radiation as they are when generated during horizontal hydraulic 

fracking operations." (Affidavit, ¶ 4.) 

{¶ 70} Mshar further avers that on a "near-daily basis" she sees "trucks with large 

rolloff tanks, and tank trucks, coming to and from" the Ground Tech facility. (Affidavit, 

¶ 15.) She avers that she "can smell hydrocarbon stenches from the plant, a smell [she] 

first noticed in 2014 after the company received its Chief's Order." (Affidavit, ¶ 15.) 

{¶ 71} Mshar states in her affidavit that she is opposed to hydraulic fracturing 

because it "threatens our water supplies and our air with pollution by toxic chemicals 

and radiation * * *."

{¶ 72} At paragraph seven of her affidavit, Mshar avers: 

Living close by IWC/Ground Tech, I believe that my family, 

friends, and I are being involuntarily exposed to, and are 

breathing, chemically-polluted and radon-polluted air 

emitted from fracking waste delivered to or held at the 

facility as a part of routine operations. I believe that my 

family, friends and I will be [sic] continue to be involuntarily 

exposed to chemical and radioactive air pollution, and will 

have to breathe such in the event there are waste spills from 

trucks traveling to and from IWC/Ground Tech on streets 

closer to my home than the IWC/Ground Tech facility. I also 

believe that my family, friends and I will be involuntarily 

exposed to chemical and radioactive contamination, both 

airborne and waterborne, in the event of a spill into the 

Mahoning River, which runs near the facility and near my 

home. 
No. 14AP-958 23 

{¶ 73} In her affidavit executed January 5, 2015, Hattie Wilkins avers that she 

lives on Fairmont Avenue in Youngstown, Ohio and that her home is located .74 of a 

mile from the Ground Tech facility. 

{¶ 74} Like Mshar, Wilkins also avers that she has read the Ground Tech 

application for the chief's order. Likewise, she concludes that the drilling wastes 

handled by Ground Tech will be contaminated with chemicals and radiation. 

{¶ 75} Wilkins also opposes hydraulic fracturing for essentially the same reasons 

as does Mshar. 

{¶ 76} At paragraph six of her affidavit, Wilkins makes the statement identical to 

the one made by Mshar at paragraph seven of her affidavit and as quoted above. That is, 

Wilkins believes that her family and friends and herself are being exposed to polluted air 

and water from the Ground Tech facility. 

{¶ 77} In their affidavit executed January 10, 2015, David Barton Castle and 

Bobbie Sue Castle ("the Castles") aver that their home on North Chestnut Street in 

Barnesville, Ohio is about 1.7 miles south of the proposed EnerGreen facility. 

{¶ 78} The Castles aver that, having read the EnerGreen application they "are 

very concerned for [their] health and that of [their] family members in the Barnesville 

area." (Affidavit, ¶ 4.) 

{¶ 79} At paragraph five of their affidavit, the Castles conclude: 

We are concerned that chemicals used to extract oil and gas 

from shale during hydraulic fracturing (called "fracking") 

will contaminate the drilling wastes at EnerGreen, and that 

various chemical poisons will become airborne and be 

breathed by us and members of our family who live, work 

and conduct business in and around Barnesville. 

{¶ 80} At paragraph seven of the affidavit, the Castles aver: 

In the past several years we have observed the spread of 

horizontal hydraulic fracturing for oil and gas in the vicinity 

of Barnesville. We are familiar with the industrial chemical 

odors and taste in the mouth from driving in areas where 

fracking wells are being developed. We've seen flaring wells 

and breathed the toxic air downwind from them in the 

vicinity of Barnesville. 
No. 14AP-958 24 

{¶ 81} At paragraph nine of the affidavit, the Castles endeavor to further examine 

the EnerGreen "application for the Chief's Order in this case." They conclude that: 

[F]racking waste will be mixed with coal ash and the 

resulting blend will be dumped in a place with no liners, no 

monitoring wells, no leachate collection systems - in short, 

without any of the features one might find in a licensed 

landfill. 

{¶ 82} Significantly, the Castles do not explain the inference that they hold 

expertise in this matter. The inference of expertise is further made when the Castles 

state: "We see nothing in their application that suggests the heavy metals or mercury or 

concentrated radiation in coal ash will be neutralized, removed or rendered 

nondangerous." 

{¶ 83} Again, seemingly relying upon unspecified expertise, the Castles conclude 

that EnerGreen will fail to follow a practice called "daily cover" and thus, radiation will 

move "into water supplies." The Castles also conclude that the lack of daily cover "will 

allow radon gas to freely escape from the pile." 

{¶ 84} At paragraph ten of the affidavit, the Castles state that they are "concerned 

that the wind and water will deposit toxic and radioactive materials throughout 

Barnesville and into the Barnesville Reservoir which is south of town." 

{¶ 85} At paragraph 11 of their affidavit, the Castles refer to their "investigation," 

which they aver led them to conclude that the situation in Ohio is worse than in 

Pennsylvania regarding the control of "radioactive fracking wastes." That the Castles 

conducted their own "investigation" which they failed to detail or explain cannot bestow 

court recognized expertise that might legitimize their conclusions. 

{¶ 86} At paragraph 12 of the affidavit, the Castles assert that the EnerGreen 

application provides "no disclosure" of items that the Castles deem significant. Again, 

there is no expertise to support the Castles' conclusion. The same problem occurs at 

paragraphs 13, 14, and 15 of their affidavit. 

{¶ 87} In their April 28, 2015 memorandum in opposition to relator's motion for 

summary judgment, respondents Zehringer and Chief Simmers address the lack of 

expert opinion to support standing: 
No. 14AP-958 25 

Relators lack a site-specific evidence based on an analysis of 

data by an expert. In fact, Relators have no site-specific 

evidence of the alleged harms or how those harms are caused 

because the facilities are operating pursuant to Chief's orders 

rather than through a permit issued pursuant to the rules 

they seek to compel. While the Verified Complaint attempts 

to support the Relators' allegation by attaching a general 

slide show concerning the alleged risks concerning 

radioactivity of oil and gas drilling wastes from hydraulic 

fracturing, the slide presentation is not a site specific 

analysis of the facilities at issue in this case and certainly 

fails to establish a nexus to the harms about which the 

individual members speculate. * * * 

Additionally, the slide presentation document was not 

authenticated and the author of the slide presentation 

provided no sworn testimony or otherwise that might 

support the court giving any weight to the generalized 

contentions in the slide presentation. Given that this hearsay 

evidence is not appropriate for consideration in support [of] 

summary judgment motion, it should be disregarded. See 

Civ.R. 56(C) (limiting evidence properly considered on a 

summary judgment motion to "pleadings, depositions, 

answers to interrogatories, written admissions, affidavits, 

transcripts of evidence, and written stipulations of fact"). But 

even if the slideshow were admissible, Relators have 

presented no evidence that the risks alleged in the slide show 

are the same risks presented by the wells near which the 

identified members live. The Relators simply speculate in 

their attempt to confer standing. 

* * * 

[I]n the present case, there is no site-specific evidentiary 

support or expert testimony to prove that the harms alleged 

are actually occurring, or that there is even a risk that they 

will. 

(ODNR's Memorandum in Opposition, 21-23.) 

{¶ 88} Significantly, the relators fail to respond to the above-quoted challenge to 

their evidence or lack thereof in support of standing. See Relators' May 22, 2015 

Memorandum Contra the Motion of Respondents Simmers and Zehringer for Summary 

Judgment. The magistrate agrees with respondents' analysis. 
No. 14AP-958 26 

{¶ 89} The Castles' affidavit endeavors to create an inference of expertise that 

does not exist. The Castles' affidavit presents no evidence that the Castles have the 

scientific expertise to support their claims that they are being injured or that an injury is 

being threatened by the EnerGreen facility located an alleged 1.7 miles from their home 

in Barnesville, Ohio. 

{¶ 90} Returning to the affidavit of Cheryl Mshar, there is no expert opinion or 

evidence to support the inference that the so-called "hydrocarbon stenches" that she 

allegedly has smelled since 2014 are in fact causing her harm or injury. 

{¶ 91} Likewise, that Mshar has read the Ground Tech application does not 

confer on her the competency to render an expert opinion on whether the drilling wastes 

handled by Ground Tech at the facility will be contaminated with chemicals and 

radiation that have injured her or that threaten injury to her. 

{¶ 92} Furthermore, Mshar's belief that her, her family and friends will be 

exposed to toxic substances from the Ground Tech facility is not evidence of a concrete 

injury. At best, it is speculation that is not evidence of an injury or harm. 

{¶ 93} Returning to the affidavit of Hattie Wilkins, there is no expert opinion or 

evidence to support an inference that the drilling wastes handled at the Ground Tech 

facility has caused her injury or threatens injury. Also, Wilkin's belief that herself, her 

family and friends are being injured or will be injured fails to show a concrete injury. At 

best, it is speculative and not evidence of an injury or harm. 

{¶ 94} Accordingly, based upon the foregoing analysis, the magistrate concludes 

that relators have failed to show that they have traditional standing to bring this action. 

Analysis: Public-Right Standing 

{¶ 95} The public-right doctrine presents "an exception to the personal-injury 

requirement of standing." Sheward at 503. The doctrine provides that "when the issues 

sought to be litigated are of great importance and interest to the public, they may be 

resolved in a form of action that involves no rights or obligations peculiar to named 

parties." Id. at 471. To succeed in bringing a public-right case, a litigant must allege 

"rare and extraordinary" issues that threaten serious public injury. (Emphasis sic.) Id.
No. 14AP-958 27 

at 504. Not all allegedly illegal or unconstitutional government actions rise to this level 

of importance. Id. at 503. 

{¶ 96} As stated by the plurality opinion in ProgressOhio.org, Inc.: "Sheward 

was a deeply divided, four-to-three decision, and it remains controversial today." Id. at 

¶ 13. 

{¶ 97} Recently, the Supreme Court of Ohio refused to find public-right standing 

in State ex rel. Leslie v. Ohio Hous. Fin. Agency, 105 Ohio St.3d 261, 2005-Ohio-1508. 

(Constitutional challenge to state spending measures was "not a 'rare and extraordinary 

case' warranting invocation of the public-right exception to the personal-stake 

requirement of standing.") ProgressOhio.org, Inc. at ¶ 12.

{¶ 98} In Walgate, this court denied public-right standing because the legislation 

under challenge "is not of the same magnitude as that presented in Sheward, which 

concerned separation of powers and the ability of the Ohio legislature to re-enact 

legislation expressly prohibited by the judiciary." Walgate at ¶ 32. 

{¶ 99} Here, in their motion for summary judgment (and memorandum in 

support filed February 27, 2015), relators summarize their argument as to why they 

believe that they have presented a case for public-right standing: 

In the instant matter, the deliberate failure by Respondents 

to promulgate regulations which would impose constraints 

and regulatory insight on the issuance of Chief's Orders has 

allowed the imposition of no fewer than 23 potentially or 

actually polluting industrial facilities upon the physical 

environment in many Ohio counties, with unknown but very 

possible effects on the public health of Ohio's citizens. 

(Relators' Summary Judgment Motion, 35.) 

{¶ 100} Based upon the foregoing, it is clear that, applying the holding in 

Walgate, relators do not have public-right standing. 

Taxpayer Standing 

{¶ 101} As respondents Zehringer and Chief Simmers point out in their 

April 28, 2015 memorandum in opposition to relators' motion for summary judgment, 

relators allege in their complaint that Mshar, Wilkins, and the Castles are each Ohio 

taxpayers who object to the failure of Chief Simmers to promulgate rules. Respondents 
No. 14AP-958 28 

Zehringer and Chief Simmers argue that Mshar, Wilkins, and the Castles do not have 

taxpayer standing to bring this action. (Memorandum, 28-30.) 

{¶ 102} Likewise, the intervenors argue in their March 12, 2015 motion for 

summary judgment and response to relators' motion for summary judgment that 

relators lack standing as taxpayers. (Intervenors' Memorandum, 27-29.) 

{¶ 103} In their April 28, 2015 memorandum in opposition to the 

intervenors' motion for summary judgment, relators do not address taxpayer standing. 

{¶ 104} In their motion for summary judgment filed on February 27, 2015, 

relators do not claim or argue for taxpayer standing. 

{¶ 105} Moreover, in their motion to dismiss filed December 23, 2014, the 

four respondents argue that relators lack taxpayer standing. (Motion to Dismiss, 16-

20.) However, in their January 12, 2015 memorandum contra the respondents' motion 

to dismiss, relators do not claim taxpayer standing nor do they respond to the 

respondents' argument for lack of taxpayer standing. 

{¶ 106} It can be observed that, in their affidavits, Cheryl Mshar and Hattie 

Wilkins each aver that they are "an Ohio taxpayer, paying property, income and sales 

taxes." It can be further observed that the Castles fail to make a similar averment 

regarding their taxpayer status in their affidavit. 

{¶ 107} Consequently, given the above-described scenario regarding taxpayer 

standing arguments or the lack thereof, the magistrate concludes that relators have 

failed to pursue any claim to taxpayer standing that may have been initially raised in the 

complaint. 

{¶ 108} Accordingly, based upon relators' apparent waiver to any claim to 

taxpayer standing, the magistrate concludes that relators have not shown standing as 

taxpayers. 

Conclusion

{¶ 109} Summary judgment is appropriate when the movant demonstrates that: 

(1) there is no genuine issue of material fact; (2) the moving party is entitled to 

judgment as a matter of law; and (3) reasonable minds can come to but one conclusion, 

and that conclusion is adverse to the party against whom the motion for summary 
No. 14AP-958 29 

judgment is made, said party being entitled to have the evidence construed most 

strongly in his favor. Turner v. Turner, 67 Ohio St.3d 337, 339-40 (1993); Bostic v. 

Connor, 37 Ohio St.3d 144, 146 (1988); Harless v. Willis Day Warehousing Co., 54 Ohio 

St.2d 64, 66 (1978). The moving party bears the burden of proving no genuine issue of 

material fact exists. Mitseff v. Wheeler, 38 Ohio St.3d 112, 115 (1988). 

{¶ 110} It is well settled that, in order for a writ of mandamus to issue, relator 

must demonstrate: (1) he has a clear legal right to the relief prayed for; (2) the 

respondent is under a clear legal duty to perform the act; and (3) relator has no plain 

and adequate remedy in the ordinary course of the law. State ex rel. Berger v. 

McMonagle, 6 Ohio St.3d 28 (1983). 

{¶ 111} Accordingly, based upon the foregoing, it is the magistrate's decision that 

this court deny relators' February 27, 2015 motion for summary judgment, grant the 

intervenors' March 12, 2015 motion for summary judgment, and grant the respondents' 

April 28, 2015 motions for summary judgment. The respondents' December 23, 2014 

motion to dismiss is thereby rendered moot. 

 /S/ MAGISTRATE 

 KENNETH W. MACKE 

NOTICE TO THE PARTIES 

Civ.R. 53(D)(3)(a)(iii) provides that a party shall not assign as 

error on appeal the court's adoption of any factual finding or 

legal conclusion, whether or not specifically designated as a 

finding of fact or conclusion of law under Civ.R. 

53(D)(3)(a)(ii), unless the party timely and specifically objects 

to that factual finding or legal conclusion as required by Civ.R. 

53(D)(3)(b).