Ohio EPA Enforcement Response/Priorities and Updates

Transcription

1 Ohio EPA Enforcement Response/Priorities and Updates Todd Anderson, Chief Legal Counsel Drew Bergman, Assistant Chief, Legal Marc Glasgow, Supervising Attorney, Enforcement

2 Topics Today Ohio EPA s Office of Legal Services Enforcement Overview and Current Priorities Identifying and Elevating High Priority Situations Ohio s Voluntary Audit Disclosure Process Initiatives to improve consistency in inspection and enforcement processes Inspector Rotation Policy Enforcement Process SOPs NOV Templates

3 Ohio EPA s Legal Office What do we do? Provides general counsel to Ohio EPA s divisions and districts and evaluates, prepares and negotiates administrative enforcement actions. Agency attorneys prepare trade secret claim determinations; prepare and review contracts; assist in the development or review of legislation and rules; and address public records request issues.

4 Enforcement/Compliance Process 1) Inspection (Air, Solid Waste, Hazardous Waste, Surface Water, Drinking and Ground Water) 2) Notice of Violation, Inspection Letter, Resolution of Violation, Letter of Compliance 3) Significant Violations Found? 4) Enforcement Referral From District to Central Office

5 Types of Enforcement/Compliance Recommendations Nothing Chief s Warning Letter Director s Warning Letter Director s Final Findings and Orders (Consensual/Unilateral/Emergency) Referral to Ohio Attorney General

6 What Happens if Significant Violations Found? An Enforcement Referral to Central Office Review of Enforcement Referral by District and Division Enforcement/Compliance Staff, and Legal Enforcement Committee Meetings Recommendation to Director

7 Director s Final Findings and Orders Referred to as DFF&Os Usually Consensual Invitation to Negotiate Proposed Civil Penalty Injunctive Relief

8 Director s Final Findings and Orders continued Civil Penalty Proposed? Each Program Has Civil Penalty Policy Proposed Penalties Consistent with Dayton Malleable Court Decision Negotiable Supplemental Environmental Projects ( SEPs ) Ability to Pay Analysis

9 DFF&Os Injunctive Relief Submit Closure Plan Examples Submit Permit Application Submit Report Operate in Accordance with Permit

10 Final DFF&Os Parties (Ohio EPA and Respondent) Agree on Resolution of Violations Both Parties Sign DFF&Os Waiver of Right to Appeal Agreed Upon Schedule to Satisfy Civil Penalty and Injunctive Relief Enforceable if Violated

11 Director s Unilateral Findings and Orders Referred to as Unilateral DFF&Os Not Consensual Direct the regulated entity to perform specific actions to bring property/facility into environmental compliance Do not generally contain a demand for a civil penalty Are considered a Final Action of the Director of Ohio EPA and can therefore be appealed to Environmental Review Appeals Commission

12 What if Parties Can t Agree? Director has options if parties can t agree on a resolution through consensual DFF&Os: Referral to Attorney General Unilateral DFF&Os

13 Referral to Attorney General Ohio EPA may refer Enforcement Matter to the Ohio Attorney General, Environmental Enforcement Section The AGO will typically send Invitation to Negotiate Letter Before Initiating Lawsuit Agreement Reached? Complaint and Consent Order Filed with Court of Common Pleas

14 Referral to Attorney General, continued Agreement Not Reached? Complaint Filed Discovery Trial Court Order to Address Noncompliance

15 Identifying and Elevating High Priority Situations Increasing emphasis within Ohio EPA for inspection and field staff to elevate issues identified that require immediate action to prevent, abate or mitigate serious impacts to public health and the environment.

16 High Priority Situations Responsiveness 1. ID Issues Problems Concerns 3. Re evaluate Communication Relationships 2. Elevate

17 Potential High Priority Situations Wastewater Uncontrolled or unpermitted discharges with high likelihood of harmful exposure to the public and/or substantial environmental impact; Unauthorized discharges of pollutants to the ground that threaten public or private water supplies. Gross exceedances of permitted discharge limits where there is a high likelihood of public exposure or immediate environmental impacts. Abandonment of wastewater treatment plant or cessation of activity due to loss of power to the property.

18 Potential High Priority Situations Drinking Water Abandonment of drinking water treatment plant or cessation of activity due to loss of power to the property. No certified drinking water plant operator for facility (for example, quits job). Any other scenario that poses a risk to public health because of unsafe drinking water conditions.

19 Potential High Priority Situations Air and Odors Emission exceedances or releases of an air toxics or other harmful pollutants in areas where there is high potential for public exposure. Gross operational/control equipment concerns (for example, baghouse disconnected, by passing control equipment, no control equipment functioning). A situation where odors from the site have the potential to cause immediate physical discomfort or harm (sensitive populations, headache, nausea, burning nose/throat, etc.), are resulting in a large number of odor complaints and are migrating off site.

20 Potential High Priority Situations Vapor Intrusion or Explosive Gas A situation where there may be vapor intrusion into buildings, schools, daycare centers, etc. where the public could potentially be exposed to harmful airborne pollutants. Any situation where there could be an explosive gas concern.

21 Potential High Priority Situations Hazardous, Solid Waste and Industrial Sites Any illegal hazardous waste dumping, storage or release where there could be immediate impact to public health or significant environmental impact Any operating conditions at a landfill that could lead to catastrophic failure or immediate impacts to public health. Discovering new activities involving at risk populations in former industrial areas where contamination is suspected to exist.

22 Potential High Priority Situations Activities/Events that Could Compromise Infrastructure

23 Identifying and Elevating High Priority Multi pronged approach: Situations Standard Operating Procedures (SOPs) that describe the types of events or situations that the divisions may encounter that require a rapid/coordinated response; Communication protocols to ensure Agency management is made aware of these events and kept informed during the course of the Division s response; and The general expectations for immediate and follow up actions to be taken, both internally and what is expected of regulated entity. May require immediately level of cooperation in securing site access to conduct investigation or take other response action.

24 Voluntary Audit Disclosure The VAD and its role in environmental compliance

25 Purpose of the VAD The purpose of this law is to enhance protection of human health and the environment by encouraging regulated entities to voluntarily discover, promptly disclose and expeditiously correct violations of environmental laws. Under the law, the owner or operator of a facility may perform a voluntary self evaluation ( audit ) designed to improve compliance or identify, correct, or prevent noncompliance with environmental laws. In return for performing a proper audit, the owner or operator can qualify for immunity from the gravity portion of any civil penalty for the violations disclosed. Also, the audit and documents used to conduct the audit are privileged.

26 Key points for a valid VAD R.C (C) requires that all disclosures must be in writing, dated, and hand delivered or sent by certified mail to the Director. The disclosure must contain all of the following information: (i) the name, address, and telephone number of the owner or operator making the disclosure; (ii) the name, title, address, and telephone number of one or more persons associated with the owner or operator who may be contacted regarding the disclosure;

27 Key points for a valid VAD R.C (C) requires that all disclosures must be in writing, dated, and hand delivered or sent by certified mail to the Director. The disclosure must contain all of the following information: (iii) a brief summary of the alleged violation of environmental laws, including, without limitation, the nature, date, and location of the alleged violation to the extent that the information is known by the owner or operator; and (iv) a statement that the information is part of an environmental audit report and is being disclosed

28 VAD limitations The privilege described above does not apply to the following: Information that is required by law to be collected, developed, maintained, reported, disclosed publicly, or otherwise made available to a government agency. The information is obtained from a source other than an environmental audit report, including, without limitation, observation, sampling, monitoring, a communication, a record, or a report that is not part of the audit on which the audit report is based.

29 Initiatives to Improve Consistency in Inspection and Enforcement Processes

30 Inspector Rotation Policy Implemented in 2014 with goal of enhance the uniformity of Ohio EPA inspections while also providing new perspectives and ideas greatly improving the effectiveness of our efforts. Each division has a rotation policy. Policies are at: epa.ohio.gov/dir/# staff rotation initiative

31 Inspector Rotation Policy Division of Air Pollution Control 5 year rotation (one permit cycle or 5 year rotation for Title V facilities) Drinking Water Program 6 years for community public water system (completing 2 sanitary survey inspections which are required every three years. 5 years for non community public water systems Division of Environmental Response and Revitalization 5 6 year rotation Solid Waste Program 5 year rotation Division of Surface Water NPDES Permit and PTI Program 5 year rotation

32 Inspection Correspondence Templates and Standard Operating Procedures Why Changes? To provide a uniform look and consistency throughout the Agency To ensure that violations are being resolved in a timely manner To ensure violations are abated and recognition is proactively communicated to the regulated entity To ensure that accurate compliance status is available (edocs) to the general public at any given time.

33 Inspector Training Launched Inspector Training Academy (ITA) in 2016 to train all agency inspectors, supervisors and managers about basics of conducting compliance evaluation inspections. Covers the basics of conducting an inspection. It's not intended to provide field staff with the additional information or resources they may need to fully determine compliance with the regulations that are specific to their program.

34 Inspector Training Academy Internal Benefits Helps ensure Ohio EPA s field staff are equipped with the knowledge, tools and resources to do their jobs successfully and best represent the Agency. Provides a forum where our experienced staff and management can help train and mentor others in completing inspections and handling unusual situations that may arise in the field.

35 Inspector Training Academy External Benefits The Academy will yield better customer service to our regulated entities because: Training will lead to more statewide consistency in how inspections are conducted, both between districts and across divisions Entities receive clear message/direction on compliance through standardizing our approach to inspections, correspondence, etc.

36 Inspector Training to Date Close to 500 people participated in the initial wave of the ITA, completing ~32 hours of basic training over a six month period during Since then, the ITA has been revised and we have completed training for new hires in Will be conducted annually for new inspectors.

37 Inspection Correspondence Templates Goal: Increase consistency in the inspection documentation/correspondence processes. Provide regulated entities with more certainty and clear roadmap, including documenting resolution of violations. Standardized templates across all programs for NOVs and other inspection correspondence; Clear internal guidance on what can and cannot be included in NOVs; Clear internal procedures for reviewing and responding to information submitted by companies, and timelines for issuing Resolution of Violation (ROV/PROV) correspondence; Internal audits to determine how divisions are performing.

38 Questions?