Overview of the Ohio EPA Enforcement Process

The Ohio EPA enforcement process can appear to be a mystery, especially to companies that find themselves the subject of an EPA visit for the first time.  This post provides a general overview of the Ohio EPA civil enforcement process.

Step 1:  The Inspection

The enforcement process starts with the inspection.  The inspections can be announced or unannounced.  (A prior post discusses EPA's inspection authority).

Typically, an inspector assigned to one regulatory area will perform the inspection. (i.e. air, surface water, drinking water, hazardous waste or solid waste).  Most time, the inspector will limit their inspection to compliance with their assigned regulatory area.

If you find multiple inspectors at your door (called a "multi-media inspection") then there is probably cause for concern.  Typically, the Agency will not perform multi-media inspections unless they suspect there is an issue at your facility.

Here are some tips regarding handling an EPA inspection:

  • Listen closely to the inspector- Accompany them during the inspection. If they point out concerns that can easily be addressed, fix them. Also, follow up in writing telling the inspector what you have done. EPA appreciates pro-active companies who listen and respond to Agency concerns. This can go a long way toward establishing a good reputation.
  • Debrief with the inspector- Don't be shy about asking for an oral report of the inspector's findings during or after the inspection. Take notes of any concerns or requests for information made by the inspector. Then follow up if possible. Don't wait for the inspector to provide a letter if you can easily address some of the issues. If you are able to provide information not available during the inspection that demonstrates compliance, you may avoid seeing these issues in a formal notice or letter from EPA.

If the violations are not corrected after the first inspection, the inspector will more than likely return in the near future to document the ongoing nature of the violations.

Step 2:  Notice of Violation (NOV)

If the inspector believes that the company or facility is not in full compliance with applicable environmental regulations, they will issue a formal letter called a "Notice of Violation' or NOV.  The NOV will specifically identify the regulation(s) that the inspector believes have been violated.  The NOV will also contain the facts observed during the inspection that the inspector believes supports their conclusion a violation has occurred.  

If you or the company receives an NOV, respond in writing. (Note:  This may be the appropriate time to consult with an environmental attorney to help craft an appropriate response)  Failing to respond will more than likely ensure the matter proceeds to Step 3 discussed below.  

When responding, make sure you gather all appropriate information.  Inspectors can be wrong in stating a violation has occurred.  However, you must be prepared to refute their finding(s) with supporting documents or information.  

Relatively minor violations can often be addressed without escalated enforcement.  However, make sure you respond as to how and when the issue will be addressed.  

It is mostly up to the discretion of the inspector to decide when to recommend escalated enforcement (Steps 3 through 5).  If violations are serious, the inspector could recommend further enforcement after only one NOV.  For less serious violations, it may take a few NOVs before an inspector recommends further action.

Step 3:  Enforcement Committee

If the inspector believes the Agency should take more formal action beyond a NOV, he/she will put together an enforcement referral from the District Office to Central Office.  The referral package will include a memorandum summarizing the issues and inspector's recommendations.

The referral package will typically be reviewed by the Central Office Enforcement Committee.  The Committee is made up of enforcement coordinators from the Division as well as an attorney from the Legal Office.  The committee will review and discuss the recommendation and decide whether to: a) proceed to Step 4; b) jump to Step 5 or; c) take no action at the present time.

Step 4:  Director's Final Findings & Orders (DFFOs)

If the Enforcement Committee decides further enforcement is necessary, in most instances they will begin with administrative orders- Director's Final Findings & Orders (DFFOs).  DFFOs contain findings of fact which set forth the basis for the Agency's conclusion that violations have occurred.

The DFFOs also contain an orders section.  The orders includes deadlines for correcting the violation  as well as proposed civil penalties.  Ohio EPA does not have unilateral civil penalty authority, therefore, any civil penalty contained in DFFOs must be agreed upon by the company.  

If the company and Agency cannot agree on terms of DFFOs, including but not limited to a civil penalty, Ohio EPA can refer the matter to the Ohio Attorney General's Office (AGO).  Once a case has been referred to the AGO, it almost never will be sent back to Ohio EPA for resolution.

You should discuss with your attorney an legal advantages to resolving a matter at the DFFO stage versus the Attorney General's Office.  

Step 5:  Referral to the Attorney Generals Office

This is the final step in the escalated enforcement process.  Once a matter is referred to the AGO, an Assistant Attorney General will be assigned to the case.  The attorney will send an initial letter asking whether the person/company would like to try and settle the matter without litigation in court.  This stepped is called an "invitation to negotiate" or ITN.  

If a settlement can be reached it will be in the form of a formal judicial consent order that is filed in court.  In order to file a consent order, a complaint (lawsuit) must be filed which contains the specific violations alleged by the State.

If the parties cannot reach agreement on the terms of a consent order, the AGO will file a complaint and proceed with litigation in court.  The AGO will typically indicate that higher penalties will be requested if the AGO is forced to proceed with litigation.

Conclusion

This meant only as a basic overview of the typical Ohio EPA enforcement process.  The specific facts of a case may result in the Agency taking different action.  

The best defense to Agency enforcement is to be well prepared and have a good team in place (technical and legal advisors).  Gather all the facts and respond strategically.  Keep in mind that no matter how the case is finally resolved, EPA will visit your facility again in the future and the process can start all over again.

Five Tips to Help Reduce the Risk of EPA Enforcement Actions

I have been on all sides of the fence relative to environmental enforcement actions.  I have represented the State, managed Ohio EPA enforcement program and now I represent companies who find themselves the subject of enforcement.  These experiences have given me valuable insight into what things to do and not to do when dealing with compliance oversight.

When speaking on the topic of enforcement, I am asked to provide practical advice on how to reduce the chances that your business will be a target of EPA enforcement.  In this post I provide five tips regarding your early interactions with EPA.

Much of my advice may be viewed as simple common sense.  However, I am consistently surprised how many times companies don't follow these simple steps. 

Relationship with Inspector-

Most inspectors are assigned a Division (air, water, hazardous waste, etc.) and a geographic territory.  This means you are likely to see this same person again and again at your facility. 

  • If possible, try and develop a good relationship with the inspector.  Cooperation at this lowest level can often prevent communication issues that sometimes lead to enforcement. 
  • Also, while not true in all cases, developing a good reputation with inspector assigned to your facility may lead to additional flexibility when addressing Agency concerns or issues.
    • Ask yourself-  Which report or permit application will get more scrutiny- one submitted by a company with a good reputation/relationship or a bad one....

The EPA Inspection- 

The Agency has the ability to perform both announced and unannounced inspections of your facility.  It is understandable that companies are frustrated by the disruption that an EPA inspection causes at their facility.  Just don't let that frustration carry over to your interactions with the inspector. 

  • Listen closely to the inspector- Accompany them during the inspection. If they point out concerns that can easily be addressed, fix them. Also, follow up in writing telling the inspector what you have done. EPA appreciates pro-active companies who listen and respond to Agency concerns. This can go a long way toward establishing a good reputation.
  • Debrief with the inspector- Don't be shy about asking for an oral report of the inspector's findings during or after the inspection. Take notes of any concerns or requests for information made by the inspector. Then follow up if possible. Don't wait for the inspector to provide a letter if you can easily address some of the issues.  If you are able to provide information not available during the inspection that demonstrates compliance, you may avoid seeing these issues in a formal notice or letter from EPA.

Respond to Requests for Information or Notice of Violations

If you receive a notice of violation (NOV) or a request for information, respond within the time frame requested or write and ask for additional time.  ALWAYS WRITE A RESPONSE.  It is far better to write a letter formally disputing findings, then to not respond at all. 

  • Silence will quickly lead to more NOVs and escalated enforcement.  Companies have learned time and again, simply ignoring the situation will not make it go away.  Also, the higher you go up the enforcement chain the more likely you will see a demand for civil penalties.

In the Early Stages of Interaction Involve an Attorney to Help Respond-

This may come across as a blatant advertisement, but its not intended as one.  The fact of the matter is the difficult compliance issues often arise due to the complexity of the environmental regulations. 

  • How your respond or what information you choose to provide in this early stage can significantly impact the likelihood or severity of escalated enforcement.  Make sure you are putting your company in the best defensive position possible, particularly on issues that carry significant risk of liability.

Try and Resolve Issues at Lowest Level Possible-

A common reaction of companies who find themselves in a major disagreement with EPA or subject to enforcement, is the to call senior management and complain.  Some may think if they just get management involved they will see it their way and the issued will be resolved. 

  • Due to the number of issues that arise, senior manager constantly push decision making down to the lowest possible level.  Usually the first question you will get when you call is "have you talked through these issues with staff assigned?"   Even if you don't hear that question, the first thing they will do when the hang up the phone is to call the inspector to hear "their side of the story." 
  • Remember, you are trying to build a relationship with your inspector.  It is human nature to not like it when someone tries to "go over your head."  Sometimes the situation demands such action be taken, but be prudent when choosing to utilize that option.

Of course every situation is different.  The five pieces of practical advice are meant to be general guidelines on conduct rather than legal insight.  The more significant the dispute or compliance issue, the more cautious you should be in your interactions with the Agency.  Hire a good supporting team to assist on those issues.