By TOM JACKSON
An old brick building from Sandusky's past has become the center of a court battle over responsibility for cleaning up industrial chemicals still sitting in 55-gallon drums.
The U.S. EPA and Ohio EPA want chemicals removed from the brick building at 1702 Campbell St. in Sandusky, just north of the railroad tracks.
The court case pits Citizens Bank of Norwalk and Citizens Banking Co. against the estate of James Roberts, Thomas J. Roberts and Ultimate Industries, which used the brick building on Campbell to manufacture artificial rocks and rock waterfalls. Ultimate went out of business on June 30, 2004. James Roberts died in 2007.
The Ohio EPA ordered Ultimate to remove remaining hazardous waste from the property July 13, 2007. It's still there, because Thomas Roberts cannot afford to remove it, attorney Kevin Zeiher said.
Dina Pierce, a spokeswoman for the Ohio EPA, said her agency has called in the U.S. EPA to carry out a removal action. If the property owner takes no action within about the next 45 days, the U.S. EPA will remove the remaining paint waste and solvents on the property and then seek to recover the costs from the property owner, she said.
"There really isn't a significant risk to the public at this point," she said. "The concern would be if there was a fire. The fumes from a fire could be toxic or hazardous."
A survey in 2002 found two LP gas cylinders, four 5-gallon buckets and 49 55-gallon drums on the premises, she said.
The court case centers on who has responsibility for the environmental violations -- Citizens Bank, which had begun foreclosure proceedings against the company, or the Roberts family.
Citizens says it's Ultimate's fault, arguing that the bank never took formal possession of the property. The Roberts side counters that the bank failed to sell the property when $100,000 was offered for it and let the property deteriorate.
Erie County Common Pleas Judge Roger Binette awarded a summary judgment for Citizens Bank against the Roberts estate. Binette relied upon an opinion from Magistrate Steve Bechtel, who handles civil cases for Binette. The ruling essentially stated that the law and the facts were so clear, Citizens should win the suit without having to go to trial.
The Ohio Sixth District Court of Appeals reversed Binette on May 7, however, noting that Citizens had sold some items on the property after Ultimate defaulted on its loan and arguably would have been responsible for getting rid of the chemicals.
In the court's unanimous 3-0 ruling, Judge Peter M. Handwork wrote that there is a genuine dispute over whether Citizens "breached its duty of good faith and fair dealing," and ordered Binette to revive the case for further proceedings.
From the time of the May 7 ruling, Citizens Bank had 45 days to decide whether to appeal to the Ohio Supreme Court. No decision has been made yet, but the bank is leaning toward filing an appeal, attorney Jim McGookey said.
The bank still thinks Binette and Bechtel got it right, he said.
"We disagree that the facts indicate we had any control over the property," he said.
Zeiher said the appeals court ruling matches the evidence set before Handwork and concurring judges Mark Pietrykowski and Thomas Osowik.
"I believe the evidence will demonstrate a guy named Doug Gates was in and out of that property for years," he said, referring to a Citizens Bank agent who dealt with the property.
As for the hazardous waste, Zeiher said he agrees it must be removed, but said any liquids have hardened with time.
"It's probably solid at this point. It's not leaking," he said.
Tom Roberts works at Home Depot and cannot afford to remove the waste, Zeiher said.