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ELECTRONICALLY FILED

COURT OF COMMON PLEAS


Tuesday, May 3, 2016 3:15:10 PM
CASE NUMBER: 2016 CV 00363 Docket ID: 29555804
GREGORY A BRUSH
CLERK OF COURTS MONTGOMERY COUNTY OHIO

IN THE COURT OF COMMON PLEAS


MONTGOMERY COUNTY, OHIO

STATE OF OHIO ex rel.


MICHAEL DEWINE
ATTORNEY GENERAL OF OHIO

:
CASE NO. 2016 CV 00363
:
:
JUDGE WISEMAN
:
Plaintiff,
:
:
v.
:
:
TIMOTHY DEARWESTER and
:
PINEVIEW PINES ESTATES, LLC
:
:
Defendants.
:
:
______________________________________________________________________________
PLAINTIFF STATE OF OHIOS SECOND MOTION FOR A TEMPORARY
RESTRAINING ORDER AGAINST DEFENDANTSTIMOTHY DEARWESTER
AND PINEVIEW PINES ESTATES, LLC
______________________________________________________________________________
Now Comes the Plaintiff, State of Ohio (State), by and through its counsel, Attorney
General Michael DeWine, at the request of the Director of the Ohio Environmental
Protection Agency (Director and Ohio EPA, respectively), and hereby moves this Court for
a Temporary Restraining Order pursuant to Ohio Revised Code 6109.32 and Ohio Civil
Rule 65. A Memorandum in Support is attached and incorporated as if fully stated herein.

Respectfully Submitted,
MICHAEL DEWINE
ATTORNEY GENERAL OF OHIO

_/s/Tasha N. Miracle____________
Lawrence S. Helkowski (0068622)
Tasha N. Miracle (0092318)
Amy Factor (0093611)
Assistant Attorneys General
Environmental Enforcement Section
30 E. Broad Street, 25th Floor
Columbus, Ohio 43215-3400
Telephone: (614) 466-2766
Telefax: (614) 644-1926
lawrence.helkowski@ohioattorneygeneral.gov
tasha.miracle@ohioattorneygeneral.gov
amy.factor@ohioattorneygeneral.gov

MEMORANDUM IN SUPPORT
I. STATEMENT OF FACTS
On February 3, 2016, this Court entered an Order, in the form of a Consent Order for
Preliminary Injunction (COPI), requiring Mr. Dearwester to, among other things, hire an
engineer to assess the Pineview Pines Estates Mobile Home Parks (Pineview MHP) public
water system (PWS), prepare a report on any significant deficiencies with the water system,
and then repair all of the identified significant deficiencies. The COPI also required Mr.
Dearwester to write and maintain an adequate contingency plan to include a statement of
amounts budgeted for emergency use, a statement showing who can authorize expenditures
for such purposes, and the terms and conditions of those expenditures. Further, it required
Mr. Dearwester to provide updated and viable contact information and ensure that the
contact information was to an individual with authority to make decisions and expend
funds to respond to any emergency.
Mr. Dearwester failed to comply with the terms of the Courts Order. In so doing, he
put the residents of Pineview at risk of suffering from yet another water service disruption.
On April 28, 2016, this risk became a reality. Inspector Mariano Haensel (Mr. Haensel)
learned on April 28, 2016 that an attempted repair of a significant leak in the water system
had resulted in a disruption to the entire water system. Exhibit 1, 18. This meant the
residents of Pineview were again under a boil advisory. Exhibit 1, 18. Mr. Haensel went
to Pineview to inspect the repair and ensure the residents were provided bottled water,
another requirement of the COPI. Exhibit 1, 18.
Mr. Haensels inspection uncovered that the repair was complex and that an engineer
was required.

Exhibit 1, 18. Unfortunately, there was no contingency plan in place to

pay for an engineer to make the repair and Mr. Dearwester could not be contacted in order
to authorize the hiring of an engineer. Exhibit 1, 18. Over the next 48 hours, Ohio EPA
worked to contact Mr. Dearwester to coordinate the repair, but Ohio EPA also began
working to coordinate its own emergency repair to protect the residents of Pineview.
Exhibit 1, 19. Given Mr. Dearwesters chronic absence and mismanagement, Ohio EPA
was unwilling to wait indefinitely for repair of Pineviews water system. Exhibit 1, 19.
Mr. Dearwester arrived at Pineview on Saturday, April 30, 2016, when Ohio EPA was
working with Montgomery County to coordinate repair of the system and return water
service to the residents of Pineview. Exhibit 1, 21. Mr. Dearwester consented to the
County repairing the system, but when the County ran into an issue and needed Mr.
Dearwester to remove an abandoned trailer that was impeding the repair, Mr. Dearwester
failed to remove the trailer and halted the repair. Exhibit 1, 21. Pineview staff later agreed
to remove the trailer, but ran into technical difficulties and could not remove the trailer and
as a result, the County was unable to complete the repairs. Exhibit 1, 21; see also May 1,
2016 Ohio EPA Correspondence, attached as Exhibit 3.
On Sunday May 1, 2016 the east well was cycling water once every 32 seconds to
replenish water that was being lost through the leak. Exhibit 1, 23. At approximately 3:30
PM the Pineview drinking water system depressurized and the east well became inoperable.
Exhibit 1, 23. Pineview staff turned on the west well and re-pressurized the system
between 6:45 and 7:11PM on May 1, 2016. Exhibit 1, 23. However, the west well has
historically had mechanical problems and will be under strain to produce enough water to
maintain pressure in the system while the leak continues. Exhibit 1, 23. Mr. Haensel
fears that the west well will breakdown if the leak is not fixed by a professional engineer.

Exhibit 1, 24, 25. Should the west well break down, the Pineview MHP residents would be
left without any access to running water. Exhibit 1, 24.
Further, on May 2, 2016, it was again represented to the Ohio EPA that the park
maintenance man was supposed to attempt to repair the leak.

Exhibit 1, 24.

The

maintenance man planned to repair the leaking pipe by gluing sections together, letting the
pipe glue cure, and then would attempt to re-pressurize the system to see if the repair would
hold. Exhibit 1, 24. The maintenance man made plans to speak with Ohio EPA at 9 p.m.
on Monday, May 2 to confirm whether the repair held. Exhibit 1, 24. However, the
maintenance man failed to answer his phone for that call and Ohio EPA received no word
on the status of the repair. Exhibit 1, 24. During this time, residents were completely
without running water and Ohio EPA coordinated efforts to provide water to the residents
for basic daily necessities like flushing toilets. Exhibit 1, 24.
On the morning of Tuesday, May 3, Pineviews certified operator had turned the
west well back on when she discovered that the residents were without water. Ohio EPA
visited the site that morning to inspect the status of the public water system and to provide
additional water.

Exhibit 1, 25.

Shortly thereafter, Ohio EPA learned that the

maintenance man had not actually performed the repairs as represented and now the repair
would be delayed even further due to the running water gushing from the leak. Exhibit 1,
25. Ohio EPA sought approval to access the park and make the repair, but Mr. Dearwester
failed to grant that access. Exhibit 1, 25. Ohio EPA mobilized all of the resources at its
disposal to help acquire and distribute more water for Pineview residents and stands ready
to assist Pineview in making the repair, should access be granted. Exhibit 1, 25. Until the

repair is completed, the Pineview water system will remain unstable and incapable of
consistently providing safe drinking water to the residents of Pineview. Exhibit 1, 26.
ARGUMENT
Due to the serious public health threat posed by a perpetually broken water system
incapable of consistently providing Pineview residents safe drinking water, immediate
temporary relief is necessary to protect the health and safety of Pineview residents. In
addition to failing to properly maintain the Pineview water system, Mr. Dearwester and
Pineview Pines Estates, LLC (Pineview LLC) have violated numerous other requirements
for the safe operation of a PWS as well as Orders they signed with the Ohio EPA Director.
Moreover, Mr. Dearwester has violated and continues to violate the Consent Order entered
by this court on February 3, 2016, as alleged in the States Written Charges In Contempt,
Motion To Show Cause, And Request For Hearing. Given Mr. Dearwester and Pineviews
repeated non-compliance with the law and inability to provide safe drinking water, as
alleged in the Complaint in this case, an enforceable judicial order is requested to compel
Mr. Dearwester and Pineview to make the additional necessary repairs that are needed at
the Pineview water system before another water outage can occur.
The Supreme Court of Ohio has stated that statutory actions granting governmental
agents the right to sue for injunctive relief have a history and purpose different from
equitable actions for injunctive relief. Ackerman v. Tri-City Geriatric & Health Care, Inc., 55
Ohio St.2d 51, 57, 378 N.E.2d 145 (1978). The Supreme Court indicated that when the
State is seeking to enjoin statutory and regulatory violations, it is not bound by the strict
requirements of traditional equity, but need only prove that the conditions set forth by the

statute authorizing such relief have been met.

Id. The Supreme Court explained this

principle as follows:
Unlike equitable-injunction actions which were developed in response to a
rigid and often inadequate common-law system for redressing non-violent
wrongs suffered by one individual at the hands of another, R.C. 3721.08 was
designed by the General Assembly to benefit society by proscribing behavior
(the unlicensed operation of nursing homes) which the General Assembly has
determined not to be in the public interest. It would, therefore, be redundant
to require the Director of Health to show irreparable damage or lack of an
adequate legal remedy once he has already proved that the conditions, which
the General Assembly has deemed worthy of injunctive relief exist. In
addition, it would be inappropriate to balance the equities or require the
Director of Health to do equity in an R.C. 3721.08 injunction action because
R.C. 3721.08 injunctions and similar injunctions which authorize a
government agent to sue to enjoin activities deemed harmful by the General
Assembly are not designed primarily to do justice to the parties but to prevent
harm to the general public.
Id. at 57 (footnotes omitted).
The principle explained in Ackerman has been applied to uphold grants of injunctive
relief for statutory violations. For example, in State v. Alexander Brothers, Inc., the Attorney
General sought to enjoin unpermitted strip mining activities under R.C. 1513.15(A), which
provided injunctive authority very similar to that under which the State is proceeding in this
case. 43 Ohio App.2d 154, 155, 334 N.E.2d 492 (5th Dist. 1974). The Court of Appeals
held that upon a showing of violations of R.C. Chapter 1513, the trial court should grant the
injunctive relief sought by the State, and that it is error for a court to condition such
injunctive relief upon a showing of irreparable harm. Id. at 156.
Ohio courts have consistently applied the principle set forth in Ackerman in actions to
enforce Ohios environmental laws and rules. In a case in which the defendants had
admitted to violating R.C. 1521.062, for which R.C. Chapter 1521 authorizes an injunction,
the Twelfth District Court of Appeals held that the lower court had properly granted the

States motion for an injunction. State of Ohio ex rel. Celebrezze v. Cincinnati Land Development
Corp., 61 Ohio App.3d 747, 750, 753 N.E.2d 1144 (12th Dist. 1989). The court stated that
[w]here the state legislature establishes a statutory injunction, that injunction must be
granted by the court if the statutory requirements for injunctive relief are met. Id. Likewise,
in State of Ohio ex rel. Brown v. Chase Foundry & Manufacturing Co., the Tenth District Court of
Appeals held that the trial court committed prejudicial error in dismissing the States
complaint without granting an injunction for air pollution. 8 Ohio App.3d 96, 456 N.E.2d
528 (10th Dist. 1982). In that case, it was undisputed that the defendant was emitting an air
contaminant from an air contaminant source without a permit in violation of R.C. 3704.05,
for which R.C. 3704.06 provides the remedy of injunctive relief. Id. at 99-100.
The case law for the provision of injunctive remedies as set forth in statutes is
consistent. Temporary or permanent injunctive relief should be issued upon a showing of a
violation of the statute or rule invoked. "It is established law in Ohio that, when a statute
grants a specific injunctive remedy to an individual or to the state, the party requesting the
injunction 'need not aver and show, as under ordinary rules in equity, that great or
irreparable injury is about to be done for which he has no adequate remedy at law.'" MidAmerica Tire, Inc. v. PTZ Trading Ltd. (2002), 95 Ohio St. 3d 367, 2002 Ohio 2427, 768
N.E.2d 619, citing Ackerman v. Tri-City Geriatric & Health Care, Inc., supra, quoting Stephan v.
Daniels (1875), 27 Ohio St. 527, 536, 1875 WL 203. See also State ex rel. Steckman v. Jackson
(1994), 70 Ohio St. 3d 420, 426, 639 N.E.2d 83, citing Johnson v. United Ent., Inc. (1957), 166
Ohio St. 149, 1 Ohio Op. 2d 402, 140 N.E.2d 407.
In this case, Plaintiff alleges the Defendants have failed and will continue to fail to
supply safe drinking water to Pineview tenants in violation of R.C. Chapter 6109. The State

has argued this point through its Complaint; its first Motion for Temporary Restraining
Order and Preliminary Injunction; its Written Charges In Contempt, Motion To Show
Cause, And Request For Hearing; and now though this Motion. Defendants continued
failure is demonstrated by the most recent water outage on May 1, 2016, which resulted
from the same conduct and violations for which this Court granted the previous Temporary
Restraining Order and Preliminary Injunction.
Ohio Administrative Code 3745-81-60 requires that an owner/operator of a water
system correct significant deficiencies in its water system. Significant deficiencies include
any defect in the system that puts the system in violation of a drinking water requirement or
causes an unacceptable risk to the publics health. Ohio Adm.Code 3745-81-01(NNNN).
Mr. Dearwester and Pineview have failed to correct significant deficiencies at Pineview
since at least September 2014, despite the relief granted by this Court in its January 22
Temporary Restraining Order and despite Mr. Dearwester agreeing to correct these
deficiencies through the COPI. Attached as Exhibit 4, 8.
In violation of Ohio Adm.Code 3745-85-01(D)(2) and the COPI, Mr. Dearwester
and Pineview have chronically failed to prepare and maintain a written contingency plan for
providing safe drinking water under emergency situations. During emergencies, such as this,
Pineview is left without funds budgeted and authorized for emergency use, without
adequate stores of bottled water, and without an individual with authority to make
decisions, among other things.
Mr. Dearwester and Pineviews chronic failure to address significant deficiencies in
the water system, including the leak beneath the trailer and the questionably operable west
well, which Mr. Dearwester has not granted access to permit Ohio EPA to repair, in

violation of Ohio Adm.Code 3745-81-60(F), and chronic failure to prepare and maintain a
written contingency plan for providing safe drinking water under emergency situations, in
violation of Ohio Adm.Code 3745-85-01(D)(2), continue to deprive Pineview MHP
residents of safe drinking water. A second Temporary Restraining Order is necessary to
provide the Ohio EPA with access to the property to complete repairs necessary to protect
the residents of Pineview MHP from this serious public health risk.
CONCLUSION
Revised Code 6109.31 prohibits any person from violating any duty imposed by R.C.
6109.01 to 6109.30, any rule adopted pursuant to such sections, or any order. Revised Code
6109.32 codifies the ability of the Ohio Attorney General, when requested by the Director of
Ohio EPA, to bring an action for injunction to enforce Chapter 6109 or rules adopted
pursuant to the statutes.
Mr. Dearwester and Pineview continue to fail to address significant deficiencies at
the public water system, fail to maintain a minimum pressure of twenty pounds per square
inch gauge at ground levels at all points in the distribution system, fail to maintain the
minimum chlorine residual required, and fail to maintain a written contingency plan all in
violation of Ohio Adm.Code 3745-81 and 3745-83. These are serious violations of Ohios
Safe Drinking Water laws.

Compliance with the statutory requirements for chlorine

residual protects public health by making sure that clean and safe drinking water is provided
to the persons served by the public water system. Although it is not necessary for the State
to demonstrate irreparable harm, the risk of harm to the residents of Pineview due to the
lack of safe drinking water would be a sufficient demonstration. Continually disrupted

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access to safe drinking water and exposure to unsafe drinking water carry myriad immediate
health risks.
Therefore, the State requests the following immediate injunctive relief:
1.

Defendants shall immediately grant access to the Ohio EPA and any entity or
contractor necessary to complete the repair of the leak underneath the
unoccupied trailer within the Pineview MHP public water system and to repair
the well pump in the east well, and take any other actions necessary to make the
east well operable.

2.

Defendants and their agents shall not interfere, delay, or obstruct Ohio EPA or
any other entity or contractor as they work to repair the leak and respond to this
drinking water emergency.
Respectfully Submitted,
MICHAEL DEWINE
ATTORNEY GENERAL OF OHIO
_/s/Tasha N. Miracle_____________
Lawrence S. Helkowski (0068622)
Tasha N. Miracle (0092318)
Amy Factor (0093611)
Assistant Attorneys General
Environmental Enforcement Section
30 E. Broad Street, 25th Floor
Columbus, Ohio 43215-3400
Telephone: (614) 466-2766
Telefax: (614) 644-1926
lawrence.helkowski@ohioattorneygeneral.gov
tasha.miracle@ohioattorneygeneral.gov
amy.factor@ohioattorneygeneral.gov

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CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing Plaintiff State of Ohios Motion for
Temporary Restraining Order was served on May 3, 2016, regular U.S. Mail to:
Tim Dearwester
P.O. Box 204
West Carrollton, Ohio 45449
Tim Dearwester
5536 East Galbraith Rd., Apt. 24
Cincinnati, Ohio 45236
Tim Dearwester
5730 Farmersville-West Carrollton Rd.
West Carrollton, Ohio 45449
Pineview Pines Estates, LLC
C/O Rex A. Wolfgang
246 High Street
Hamilton, Ohio 45011
Defendants

/s/Tasha N. Miracle
Tasha N. Miracle

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AFFIDAVIT OF JOSE MARIANO HAENSEL Jr.


STATE OF OHIO

)
) ss.

COUNTY OF MONTGOMERY

I, Mariano Haensel, being of sound mind, age of majority, and being duly cautioned
and sworn in accordance with law, make the following statement based upon personal
knowledge:
1. I am employed as an Environmental Specialist in the Division of Drinking and
Ground Waters of the Ohio Environmental

Protection

Agency (Ohio EPA)

Southwest District Office in Dayton, Ohio. I began my employment with Ohio EPA
in 1994 as an Environmental Specialist.
2. As an Environmental Specialist, my job duties include, but are not limited to, the
following: Overseeing the compliance of public water systems (PWSs) with federal
and state drinking water laws and regulations, providing technical and compliance
assistance to PWSs, reviewing PWSs technical and legal compliance. I also
recommend and assist on enforcement actions against non-compliant PWSs
3. I earned a Bachelor of Science in Geology from the University of Missouri-Columbia
in 1982 and a Master of Science in Geology and Earth Science at University of
Missouri-Columbia in 1986.
4. I have also been a United States Department of State Contractor since 1986.
5. Since July 1st 2014, I have been Ohio EPA's Division of Drinking and Ground
Water's primary compliance inspector for the Pineview Pines Estates, LLC mobile
home park (Pineview), located at 5730 Farmersville West Carrollton Road,

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Exhibit 1

Miamisburg, Ohio, 45342. Pineview is connected to an on-site public water system


(PWS).

My involvement with Pineview's PWS encompasses the job duties and

responsibilities listed in paragraph 2. Pineview is owned and operated by Timothy


Dearwester (Mr. Dearwester). I am the custodian of the Pineview file in the Ohio
EPA's Southwest District Office.
6. I maintain and/or have access to records and files kept by the Ohio EPA containing
information concerning the operation and permitting of the PWS located at
Pineview, including files containing correspondence between Ohio EPA and the
owners and operators of Pineview. These records are voluminous in nature and are
kept in the ordinary course of Ohio EPA's business.
7. Through my experience with Ohio EPA, I am familiar with the Ohio Revised Code
(R.C.) Chapter 6109 et. seq.
8. During my time as inspector of Pineview, I have received many complaints about
problems with its water system. My inspections have revealed serious issues that
have required repairs.

Further, the Pineview water system has broken down

numerous times since December of 2014 and left the residents without access to safe
drinking water.
9. Pineview's repeated breakdowns and violations of R.C. 6109 and the Ohio
Administrative Code led the Director to pursue escalated enforcement in 2015,
which resulted in Mr. Dearwester signing the April 22, 2015 Director's Final
Findings and Orders (DFF&Os). A copy of the DFF&Os is attached as Exhibit 5
and is a true and accurate copy of the letter that appears in the Ohio EPA's file. The
DFF&Os required Mr. Dearwester to address the overall condition of the water

2
Exhibit 1

system, among other requirements. Mr. Dearwester failed to comply with all of the
requirements of the DFF &Os.
10. As a result of Mr. Dearwester's failure to address the overall condition of Pineview's
water system, the Pineview water system broke down multiple times between
December of 20 14 and 2016.
11. A breakdown in October-November 2015 resulted in the Director of the Ohio
Environmental

Protection Agency referring this matter to the Ohio Attorney

General's Office.

Subsequent to the referral, the system broke down again in

December 2015 and January 2016. Consequently, on January 21,2016, the State of
Ohio, on behalf of the Director of the Ohio Environmental Protection Agency, filed
a Complaint for Injunctive Relief and a Motion for a Temporary Restraining Order
and Preliminary Injunction against Defendants Timothy Dearwester and Pineview
Pines Estates, LLC.
12. The Temporary

Restraining Order was granted against Mr. Dearwester and

Pineview Pines Estates, LLC on January 22,2016.


13. On February 3, 2016, the Court issued a Consent Order for Preliminary Injunction
signed by the State of Ohio and Mr. Dearwester. The Court ordered Mr. Dearwester
to, among other things, hire an engineer to assess the Pineview water system and
provide a written report within 30 days of February 5,2016. The Court then ordered
Mr. Dearwester to correct all of the structural deficiencies identified by the engineer's
assessment within 60 days of the written report.
14. The Court also ordered Mr. Dearwester to provide updated, viable contact
information to Ohio EPA and the Attorney General's Office. Mr. Dearwester has

3
Exhibit 1

historically been is difficult to contact. He rarely answers his cell phone, and the
voicemail box for the cell phone is typically full.

We had no other contact

information for Mr. Dearwester. Instead, he relies on the park manager to relay
messages to us. Mr. Dearwester never provided the contact information to the Ohio
EPA required by the Court's Order.
15. The Court also ordered Mr. Dearwester to write and maintain an adequate
contingency plan, including a statement of amounts budgeted for emergency use, a
statement showing who can authorize expenditures for such purposes, and the terms
and conditions of the expenditures. Despite prompting by myself and Ohio EPA,
Mr. Dearwester never provided the contingency plan.
16. On March 29,2016 I drafted and mailed a Notice of Violation to Mr. Dearwester for
failing to maintain minimum pressure, failing to maintain minimum chlorine, failing
to have adequate

disinfection equipment,

and failing to adequately address

significant deficiencies. It also noted violations of the Court's Order, the DFF&Os,
and Pineview's 2016 License to Operate. A copy of the Notice of Violation is
attached as Exhibit 2 and is a true and accurate copy of the letter that appears in the
Ohio EPA's file. It is the regular practice of the Ohio EPA to write Notices of
Violation. It is also the regular practice of the Ohio EPA to regularly keep Notices of
Violation in the Ohio EPA's file for enforcement purposes and activities.
17. On April 25, 2016, I learned from the Pineview park manager that a leak in the water
system required repair. The park maintenance man, Kyle Eby, intended to repair the
leak that day, keeping the system under pressure and ensuring the rest of the park
continued to have water.

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Exhibit 1

18. On April 28, 2016, I visited Pineview and learned that the repair of the leak was not
a simple issue. Instead it was a significant leak that impacted the entire distribution
system at Pineview.
under pressure.

Initially, the water system intended to repair the service line

This was not successful, therefore the water system attempted to

isolate the leak by valving water off to the street. Again, this was not successful.
Instead on April 28,2016, the water system made a decision to shut the entire water
system down.

This resulted in a total disruption of the system and failure to deliver

water to all of the residents, and eventually left them on a boil advisory on April 28,
2016. It was clear from the magnitude of the issue that day that a professional
engineer was necessary to repair the system. However, since Mr. Dearwester had not
prepared a contingency plan, there was no one on site who had authority to hire and
pay an engineer to perform the repair. Despite attempts by Ohio EPA and the Ohio
Attorney General's Office, Mr. Dearwester could not be contacted.

Instead, Mr.

Dearwester relied on the park manager to relay messages to Ohio EPA. In addition
the East well was cycling once every one minute nine seconds to produce enough
water to maintain pressure, which could potentially strain its motor. I made sure that
the residents were provided bottled water, as is required by the COP!. I had to
convince the park manager that the bottled water was required, despite it being an
order from the COP!.
19. On April 29, 2016, the pressure was returned to the water system and the residents
had water that was not potable unless it was boiled. However, the repair was not
being made and despite attempts by Ohio EPA and the Ohio Attorney General's
Office, Mr. Dearwester could not be contacted. At that point, Ohio EPA decided to

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Exhibit 1

use its emergency "level of effort" contractor and hire someone to conduct the repair
and return safe drinking water to the residents. Ohio EPA was not confident that
Mr. Dearwester would ever conduct the repairs due to his chronic inability to
manage Pineview's water system.
20. On April 29, 2016, I worked to fmd a party to repair the leak. I determined that
Montgomery County Water could conduct the repair. I went with Montgomery
County Water to Pineview on April 30, 2016 to assess the issue. Ohio EPA
instructed that if possible, Montgomery County should conduct the repair and
protect the residents living without safe drinking water.
21. Mr. Dearwester arrived at Pineview on April 30, 2016 and allowed Montgomery
Count to proceed with the repair. However, the County ran into some electrical
wires and could not finish the repair until Mr. Dearwester removed the unoccupied
trailer above the leak. He initially refused to move the trailer.

Pineview staff later

agreed to try to move it, but ran into technical difficulties. Because of this, the
County was unable to complete the repair.
22. The Agency wrote a letter summarizing these events, which I hand-delivered to the
Park on May 1, 2016. A copy of the Correspondence is attached as Exhibit 3 and is a
true and accurate copy of the letter that appears in the Ohio EPA's file. It is the
regular practice of the Ohio EP A to write such Correspondence. It is also the regular
practice of the Ohio EPA to regularly keep such Correspondence in the Ohio EPA's
file for enforcement purposes and activities.
23. On May 1, 2016, the repair of the leak still was not completed.

The east well

operating the water system was cycling water every 32 seconds to replenish water

6
Exhibit 1

lost through the leak. At approximately 3:30 the park manager notified me that the
east well broke down and left the residents completely without water again. Between
6:45PM and 7:11PM on May 1, the backup west well was turned on and used to
return water service to the residents, but this well has historically had mechanical
problems and has broken down before. In addition, it will be under constant strain
to produce enough water to maintain pressure within the system while the leak
continues.
24. Mr. Dearwester claimed he would have the maintenance man fix the leak and repair
the wells on May 2, 2016. The maintenance man planned to repair the leaking pipe
by climbing under the trailer, gluing the pipe sections together, letting the pipe glue
cure, then re-pressurizing the system to see if the repair would hold. He was then to
speak with Ohio EPA at 9PM that evening. The maintenance man failed answer his
phone and to contact Ohio EPA. Residents were left completely without running
water and Ohio EPA coordinated to provide additional water to residents for basic
needs on May 3,2016.
25. On May 3, 2016 Ohio EPA returned to the site to provide additional water and
inspect the system. Pineview's certified operator had pressurized the system. After
water pressure was returned to the system, Ohio EPA learned that the maintenance
man had not completed the repairs. The leak will take even longer to fix now that
water pressure has been returned. There are not adequate stores of bottled on water
site to provide to residents, in violation of the COP!. Ohio EPA is working to help
Pineview acquire more bottled water.

Given the emergency situation, Ohio EPA

asked the park manager to contact Mr. Dearwester to ask for access to go on site in

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Exhibit 1

order to complete the repair and provide the Pineview residents with potable
drinking water. Ohio EPA has asked multiple times for access and has not received a
response from Mr. Dearwester either way. Ohio EPA has mobilized all resources to
help acquire and distribute water for Pineview residents, and stands ready to assist in
making the repair should access be granted.
26. I fear that unless the repair is completed the Pineview water system will remain
unstable and may leave the residents of Pineview completely without access to
running water.
27. Mr. Dearwester has proven himself incapable of properly running a public water
system and I believe that as long he remains in charge of Pineview's water system,
these breakdowns and failures to provide water to the residents of Pineview will
continue.

Further Affiant Sayeth Naught.

Sworn to before me and signed in my prese ce t

lANA FLICKINGER, Notary Pubtlc


. In and for the State of Ohio
. My Commission Expires Dec. 1.2018
Exhibit 1

EXHIBIT 2

EXHIBIT 2

EXHIBIT 2

EXHIBIT 2

EXHIBIT 2

EXHIBIT 2

Exhibit 3

Exhibit 3

ELECTRONICALLY FILED
COURT OF COMMON PLEAS
Wednesday, February 03, 2016 3:12:26 PM
CASE NUMBER: 2016 CV 00363 Docket ID: 29241454
GREGORY A BRUSH
CLERK OF COURTS MONTGOMERY COUNTY OHIO

IN THE COURT OF COMMON PLEAS


MONTGOMERY COUNTY, OHIO
STATE OF OHIO ex rel.
MICHAEL DEWINE,
OHIO ATTORNEY GENERAL
Environmental Enforcement Section
30 East Broad St., 25th Floor
Columbus, Ohio 43215,
PLAINTIFF,
v.
PINEVIEW PINES
ESTATES, LLC
C/O Rex A. Wolfgang, Statutory Agent
246 High Street
Hamilton, Ohio 45011,
and
TIMOTHY DEARWESTER
5730 Farmersville-West Carrollton Road
West Carrolton, Ohio 45449,

DEFENDANTS.

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CASE NO. 2016 CV 00363


JUDGE WISEMAN

CONSENT ORDER FOR PRELIMINARY INJUNCTION

WHEREAS, Plaintiff, the State of Ohio, by its Attorney General (hereinafter State or
Plaintiff) filed a Complaint in this action against Defendants Timothy Dearwester and
Pineview Pines Estates, LLC. (collectively Defendants) to enforce Revised Code
Chapter 6109 and the rules promulgated thereunder, concerning the Defendants
operation of the public water system (PWS) at Pineview Pines Estates Mobile Home
Park;

EXHIBIT 4

WHEREAS, Plaintiff and Defendants Timothy Dearwester (Mr. Dearwester)


and Pineview Pines Estates, LLC agreed to a Consent Order for Preliminary Injunction
(COPI) to address the drinking water violations alleged in the Complaint;
WHEREAS, Mr. Dearwester and Pineview Pines, LLC own and operate the
Pineview Pines Estates Mobile Home Park (Pineview) located at 5730 FarmersvilleWest Carrollton Road, West Carrollton, Montgomery County, Ohio 45449;
WHEREAS, Mr. Dearwester and Pineview Pines, LLC own and operate the
public water system located at Pineview that serves as the drinking water source for
Pineviews residents;
WHERAS, Plaintiffs Complaint and Motion for Temporary Restraining Order
and Preliminary Injunction seek preliminary and permanent injunctive relief for Mr.
Dearwester and Pineview Pines Estates, LLCs alleged violations of R.C. Chapter 6109;
WHEREAS, Plaintiff and Defendants Timothy Dearwester and Pineview Pines
Estates, LLC agreed to a Consent Order for Preliminary Injunction (COPI) to address
the drinking water violations alleged in the Complaint;
NOW THEREFORE, without trial, admission, or determination of any issue of
fact or law and with consent of the Parties, it is ORDERED, ADJUDGED, and
DECREED:
I.

JURISDICTION AND VENUE

1. The Court has jurisdiction over the parties and the subject matter of
this action pursuant to R.C. Chapter 6109. The Complaint states a claim upon which

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EXHIBIT 4

relief can be granted against Defendants under R.C. Chapter 6109. Venue is proper in
this Court for the purposes and duration of this COPI.
II.
2.

PERSONS BOUND

The provisions of this COPI shall apply to and be binding upon

Defendants Mr. Dearwester and Pineview Pines Estates, LLC, as well as Defendants
agents, officers, employees, assigns, successors in interest and others bound by Rule
65(D) of the Ohio Rules of Civil Procedure who are acting in concert and/or privity with
Mr. Dearwester and Pineview Pines Estates, LLC.
III.

PRELIMINARY INJUNCTION

3. Beginning on the date of the entry of this COPI by the Court and
continuing until further order of the Court, Defendants Mr. Dearwester and Pineview
Pines Estates, LLC are enjoined and ordered to do the following with regard to the
Pineview Pines Estates public water system:
a. Comply immediately with all applicable provisions of R.C. Chapter
6109 and the rules promulgated under that Chapter;
b. Comply with the Directors Final Findings and Orders signed by the
Director and journalized on April 22, 2015;
c. By February 5, 2016, hire a professional engineer, with prior public
water system experience, to evaluate the structural deficiencies in the
Pineview public water system, including wells, treatment, pumps, and
distribution lines and make written recommendations to the
Defendants and Ohio EPA within thirty (30) days of being hired.
Within sixty (60) days of the engineers report, Defendants shall,

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EXHIBIT 4

correct all of the structural deficiencies identified in that report in


accordance with Ohio Adm. Code Chapter 3745-91;
d. Notwithstanding

the

professional

engineers

recommendations

identified in accordance with paragraph 3.c, Defendants shall


immediately correct all significant deficiencies identified by Ohio EPA
at the Pineview mobile home park public water system, including, but
not limited to:
i. Utilize proper disinfection and maintain the required minimum
chlorine residual of at least two-tenths milligrams per liter free
chlorine or one milligram per liter combined chlorine measured
at representative points throughout the distribution system;
ii. Maintain the required minimum pressure of twenty pounds per
square inch gauge at ground levels at all points in the
distribution system under all conditions of flow;
iii. Write and maintain an adequate contingency plan, including a
statement of amounts budgeted for emergency use, a statement
showing who can authorize expenditures for such purposes,
and the terms and conditions of expenditures;
iv. Report any water system service disruptions to the Ohio EPA
Southwest District Office, at 401 East Fifth Street, Dayton,
Ohio 45402,

via telephone at 937-285-6357 or via email at

mariano.haensel@epa.ohio.gov, within twenty-four hours; and


e. Maintain a minimum of four gallons of bottled water per resident at all

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EXHIBIT 4

times, at a specifically identified location on Pineview Mobile Home


Parks grounds, purchased by Defendants and at Defendants expense,
to serve as an alternate drinking water source for Pineview MHP
residents in the event of future water service disruptions. A portion of
this volume may be provided through a contract with a supplier for
the delivery of bottled water 24 hours per day, 7 days a week during
water service disruptions, rather than being maintained on site, with
prior approval from Ohio EPA. Receipts for bottled water purchased
for residents shall be maintained on site for at least one year and made
available for inspection by Ohio EPA;
f. Make arrangements for regular home delivery of water to residents
who are unable to pick up the bottled water during any water service
disruption;
g. In the event of a water service disruptions, provide direct notice to
Pineview Mobile Home Park residents, advising that the water from
their taps should not be used, without first boiling, until the residents
are notified that Pineview Mobile Home Parks water has tested safe
for potable use;
h. Provide and update Ohio EPA at all times of viable contact
information for reaching Defendants, and provide a response to Ohio
EPA within 24 hours after being contacted. The contact shall be an
individual with authority to make decisions and expend funds to
respond to any emergency; and

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EXHIBIT 4

i. Conduct all sampling and monitoring for contaminants required of a


public water system by R.C. Chapter 6109.
IV.

REPORTING REQUIREMENT

4. Documents or reports with regard to the public water system that are
required to be submitted to Ohio EPAs Southwest District Office pursuant to this
Consent Order shall be sent to: Ohio Environmental Protection Agency, Southwest
District Office, Division of Drinking and Ground Waters, ATTN: Mariano Haensel, at
401 East Fifth Street, Dayton, Ohio 45402.
V.

STIPULATED PENALTIES

5. Except as outlined above, in the event that Defendants fail to meet the
requirements of this COPI set forth in paragraphs 3(a) through 3(i), Defendants shall
immediately and automatically be liable for and shall pay a stipulated penalty of two
hundred dollars ($200.00) per day for each requirement not met, for the first sixty (60)
days of noncompliance. Defendants shall be liable for an additional stipulated penalty of
four hundred dollars ($400.00) per day for each requirement not met if the failure to
comply continues for more than sixty (60) days but less than one hundred twenty (120)
days. In the event Defendants fail to comply for one hundred twenty-one (121) days or
more, Defendants shall be liable for an additional six hundred dollars ($600.00) per day
for each requirement not met.
6.

Notwithstanding the foregoing, Plaintiff reserves the right to pursue any

other action to enforce all terms of this COPI, including, but not limited to, filing charges
in contempt with this Court.
7.

Any payment required to be made under the provisions of paragraph 5 of

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EXHIBIT 4

this COPI shall be made by delivering a certified check or checks, made payable to
Treasurer, State of Ohio, for the appropriate amount(s), within forty-five (45) days
from the date of the failure to meet the requirement of the Consent Order, by mail, or
otherwise, to Scott Hainer, Paralegal or his successor, at the Ohio Attorney Generals
Office, Environmental Enforcement Section, 30 East Broad Street, 25th Floor, Columbus,
Ohio, 43215.
VI.
8.

EFFECT OF THE COPI

This COPI does not constitute authorization or approval for the

construction or modification of any physical structure, facility, public water system,


distribution system, or treatment works.

Authorization or approval for any such

construction or modification shall be by a letter or permit issued by the Director or other


such permits as may be required by applicable federal, state, or local laws, rules, or
regulations.
VII. RESERVATION OF RIGHTS
9.

Plaintiff reserves the right to seek further relief from this or any other

Court including, but not limited to, further preliminary and/or permanent injunctive relief
and civil penalties.
10.

Plaintiff reserves, and this COPI shall be without prejudice to, any claims,

demands, rights or causes of action, judicial or administrative, that Plaintiff may have or
which may in the future accrue against Defendants or others, regardless of whether such
claim, demand, right or cause of action was asserted in the Complaint.
11.

Nothing herein shall limit the authority of Plaintiff to undertake any action

against any entity, including Defendants, to eliminate or to control conditions which may

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EXHIBIT 4

present a threat to the public health, safety, welfare, or environment and to seek cost
reimbursement for any such action. This COPI in no way waives any defenses which
Defendants or any other entity may have as to such claims, demands, rights or causes of
action.
12. Nothing herein shall be construed to relieve Defendants of their obligations to
comply with applicable federal, state, or local statutes, regulations or ordinances,
including, but not limited to, permit requirements.

Nothing in this COPI shall be

construed as an admission of any fact or violation of any federal, state, or local statute or
regulation.
VIII. TERMINATION
13. This COPI shall terminate upon Order of this Court, upon Joint Motion of the
parties that all activities required or contemplated under this COPI have been completed,
or upon entry of final judgment in this action. Nothing herein shall preclude Plaintiff
from seeking further investigatory work in connection with implementation of this COPI
or to address an imminent threat of harm to the public health or the environment. This
Section, as well as the Section of this COPI on Reservation of Rights, shall survive this
termination provision; however, nothing in this COPI will survive the entry of final
judgment in this action, except as reflected in a final decree.
IX. MODIFICATION
14. No modification shall be made to this COPI without either the written
agreement of the parties and/or approval of the Court.

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EXHIBIT 4

X. RETENTION OF JURISDICTION
15.

The Court will retain jurisdiction of this action for the purpose of

administering and enforcing compliance with this COPI.


VII.
16.

VIII.

17.

EFFECTIVE DATE

This Order shall be effective upon the date of its entry by the Court.

AUTHORITY TO ENTER INTO THIS CONSENT ORDER FOR


PRELIMINARY INJUNCTION
Each signatory represents and warrants that he or she has been duly

authorized to sign this document and is fully authorized to agree to its terms and
conditions, and, in the case of a person signing on behalf of a corporate entity,
may so legally bind the corporate entity to all terms and conditions in this
document.

IT IS SO ORDERED.

JUDGE WISEMAN

DATE

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EXHIBIT 4

APPROVED:
MICHAEL DEWINE
OHIO ATTORNEY GENERAL

TIMOTHY DEARWESTER

_________________________________

_________________________________

LAWRENCE S. HELKOWSKI (0068622)


TASHA N. MIRACLE (0092318)
AMY FACTOR (0093611)
Assistant Attorneys General
Environmental Enforcement Section
30 East Broad Street, 25th Floor
Columbus, Ohio 43215
Telephone:
(614) 466-2766
Facsimile:
(614) 644-1926
lawrence.helkowski@ohioattorneygeneral.gov
tasha.miracle@ohioattorneygeneral.gov
amy.factor@ohioattorneygeneral.gov

TIMOTHY DEARWESTER
5536 East Galbraith Rd., Apt. 24
Cincinnati, Ohio 452326

Counsel for Plaintiff, State of Ohio

__________________________________

Defendant

PINEVIEW PINES ESTATES, LLC

By: ATTORNEY
ADDRESS

Counsel for Defendant, Pineview Pines


Estates, LLC

__________________________________
By: TIMOTHY DEARWESTER
President
Pineview Pines Estates, LLC

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EXHIBIT 4

General Divison
Montgomery County Common Pleas Court
41 N. Perry Street, Dayton, Ohio 45422

Type:

Consent Judgment Entry

Case Number:

2016 CV 00363

Case Title:

STATE OF OHIO EX REL MICHAEL DEWINE OHIO ATTY GEN


vs PINEVIEW PINES ESTATES LLC

So Ordered

Electronically signed by mwiseman on 2016-02-03 15:12:37

page 11 of 11

EXHIBIT 4

IN THE COURT OF COMMON PLEAS


MONTGOMERY COUNTY, OHIO
STATE OF OHIO ex rel.
MICHAEL DEWINE,
OHIO ATTORNEY GENERAL

PLAINTIFF,
v.
PINEVIEW PINES
ESTATES, LLC
And
TIMOTHY DEARWESTER

DEFENDANTS.

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CASE NO. 2016 CV 00363


JUDGE WISEMAN

PLAINTIFF STATE OF OHIOS CERTIFICATION OF NOTICE

I hereby certify that on May 3, 2016, notice was attempted to be given to Timothy
Dearwester that Plaintiff would apply to this Court for a Temporary Restraining Order
described in the Motion. Timothy Dearwester did not answer his telephone and his
voicemail box was full. I attempted to contact Mr. Dearwester via his cell phone, at 954579-5848, and via his fathers home telephone, at 513-891-1835. I also attempted to
reach him by calling Pineviews park manager at 937-866-6834, but he was not at the
park and the park manager could not contact him either.

__/s/ Tasha N. Miracle________


Tasha N. Miracle
Assistant Attorney General