“From the court’s perspective, it appears that the defendants’ consideration of cost factors and economic principles crashed into the plaintiff’s idealistic goal that zero pollutants would again leach into the aquifer. These philosophical principles are juxtaposed in this case,” Hein wrote.
Ohio Attorney General Dave Yost sued Evans in 2021 after more than 20 years of environmental violations. Evans agreed to pay a $550,000 fine and clean up three sites on two tracts of land near Newtown as part of a settlement.
A year later, prosecutors say very little waste has been removed from the Broadwell Road site.
Yost filed a contempt motion against Evans in August, which he withdrew a few weeks later after he produced proof that he was actively cleaning up the pollution.
Evans dug 16 test pits to determine the scope of how much illegal construction and demolition debris is buried on site. Some waste is buried 25 feet deep, which puts it in contact with the top of a sole-source aquifer that provides drinking water to more than 1 million people.
“This was a former gravel pit, and the sand and gravels were removed and … waste was placed in,” Chuck DeJonckheer, Hamilton County Public Health’s director of waste management, testified at the hearing on Nov 15. “There’s a high potential for impact from leachate flowing through there naturally and picking up contaminants and carrying them offsite, potentially to the Little Miami River as well.”
Evans hired environmental consultants and submitted five proposed plans for remediation, which were all rejected by the Ohio EPA and Hamilton County. Health officials wanted to force Evans to abide by their cleanup plan, which Evans said was unreasonable, unworkable in the field and too expensive.
The dispute ended up before Hein.
Health officials are concerned about leachate runoff into the groundwater, so they want the waste immediately taken to a landfill and the cleanup finished in six months.
But the judge sided with Evans on virtually every point, allowing him to stockpile unearthed waste for three days and use screening to separate native soils from debris. He gave Evans until November 2024 to complete the cleanup instead of six months.
“The court further finds that there was no obstinance on the part of (Evans) which would indicate a lack of good faith in attempting to submit a plan which would (hopefully) garner the concurrence of (health officials,)” Hein wrote.
A spokesperson from Yost’s office did not respond to a request for comment.
“We are pleased that the court agreed that Evans Landscaping had acted in good faith and that the state had over-reached its authority under the consent order by imposing its removal plan that is unworkable and would delay the completion of the Broadwell removal project,” said Evans’ attorney Andrew Kolesar, noting that the judge accepted the cleanup plan that Evans had proposed, with a few modifications.
But health officials are not showing any signs of letting up with Evans.
The Ohio EPA issued a new violation against Evans on Nov. 22 after discovering a milky white substance with an objectionable odor being discharged into the Little Miami River at his Round Bottom Road headquarters.
“The isolated discharge observed by Ohio EPA may have included natural seep from holding ponds that occurs during excessive rain events after a period of drought, and recent inspections indicate a cessation of concerning discharges. However, Evans Landscaping will continue to investigate and provide Ohio EPA with the appropriate plans to ensure compliance,” Kolesar said, noting that Evans has until late December to submit compliance plans.
Separately, the Ohio EPA issued a notice of deficiency against Evans on Nov. 17, rejecting a plan he had submitted to monitor and assess contaminants in groundwater at the Round Bottom site.
County health officials offered to test the wells of residents who live near or down gradient from the Evans facility on Round Bottom Road in May and September. Many residents declined or said they drank bottled water and didn’t need it. But eight people took advantage of the testing.
“We identified and offered sampling to owners of all wells in proximity to the site. We have sampled several of the wells, where allowed by the owners. Two of the wells were sampled twice to account for seasonal fluctuations. According to the occupants, the majority of the wells in the area are not used for drinking water. The wells that are used for consumption indicated no severe health risk,” said health department spokesperson Mike Samet.
Health officials found two samples with higher levels of arsenic in deeper wells but believe it could be coming from natural conditions.
As part of the consent order, Evans agreed to install monitoring wells at the Round Bottom Road site and test groundwater twice this year. His latest report, filed with the Ohio EPA on September 1, showed elevated arsenic levels in water from all four wells that exceed drinking water standards.
“Arsenic was shown in some samples as high as five to 10 times over the drinking water standards, so unsafe for any human consumption,” said Thom Cmar, a senior attorney with the environmental nonprofit Earth Justice said in a September interview.
Cmar is not part of this case but reviewed court filings and groundwater testing reports.
“Drinking water with high levels of arsenic would be a serious health concern. Arsenic is a known carcinogen. It contributes to organ failure,” said Cmar, who believes it is leaching from buried construction waste, particularly treated wood.
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