The fifth installment in the OELC’s report on the State of Clean Water Act Violations in Ohio
(Posted by Trent A. Dougherty, Director of Legal Affairs, Ohio Environmental Council, Director of Ohio Environmental Law Center)
As the any year comes to a close, reflections and musings on the good and not-so-good is expected. As it is the end of the first year of a gubernatorial administration, it is fitting, to me at least, to reflect on the regulatory enforcement of the past year. When it comes to water quality enforcement, the Director of Ohio EPA is granted broad enforcement authority under ORC 6111.03) to issue orders to prevent, control, or abate water pollution– short of calling on the Attorney General. With 43 finalized “Director’s Orders,” this year has been a statistical success compared to the 24 last year. And for the first year of a new gubenatorial administration that began the year with a “regulatory reform” initaiative aimed to aid businesses, it is a solid showing. However, with the an estimated 25% of the 3,000 state discharge permits being violated and untold numbers of pollution incidents happening without a permit, it’s difficult to say if the enforcement process is really working.
While the agency does not have a “prioritization process” for enforcement, 2011 Director’s Orders do show a trend toward focusing enforcement on public water treatment and sewage issues. Nearly 40% of the Directors Orders from public permit holders. As I sit in Columbus today, hearing the rain hit my window, and imagine the havoc that rain is having on the storm sewers, I am glad they have tried to make this a priority. Although, it’s a Citizen Suit that is addressing Franklin County’s sewage issues (see previous post).
Here is a snapshot:
Just last month, the Director issued Findings and Orders against the Village of Cecil for pollution discharge exceedences, ordering the Village to develop a treatment improvement plan in 120 days, and achieve compliance with their permit in 18 months (along with a $2k fine).
In the City of Toledo, Ohio EPA finalized a multi- year effort to abate a public health nuisance, which included unhealthy inundations of E. coli and fecal coliform, in some of the City’s non-sewered areas. Dearden Place and Birdsall road area is an unsewered location within the corporation limits of Toledo. The properties in this area dispose of their sewage through a sewer network that empties into a private septic tank, with an outlet to the City’s storm sewers and leading to Silver Creek (a water of the state). This network of sewers was discovered in 2003, but existed previously.
The City was notified of the sewer network and Ohio EPA requested that the City stop the unsanitary conditions by providing public sewers. The City applied twice to build the sewers, was approved, but never began construction.
The Orders against the City included an 18 month schedule to initiate construction of sewer plans to abate the unsanitary conditions at the site, and a 28 month schedule to construct a completed sewer.
A Spring Order against the City of Vermilion for the City to provide OEPA with sewer rate report; create a schedule for elimination of SSOs; and Pay OEPA civil penalty of $15,000.00. The City was cited for:
- Separate Sanitary Overflows from three pump stations; did not remedy according to schedule in NPDES permit; several effluent violations from wastewater treatment plant (Total Suspended Solids; pH; low level Mercury)
- Failed to apply for a proper sludge permit; Notice of Violation sent
- Wastewater Treatment Plant was not properly maintained
City of Crestline violated sampling requirements of its NPDES permit; had Sanitary Sewer Overflows present (SSO); did not correct SSOs within timeframe of the permit; and failed to submit plan for improvement. Samples collected showed toxicity to C. Dubia. As a result, the Director hit the City with multiple orders, including a strict timeline for fixing the SSO problem and a $14,000 penalty.
The Enforcement Process
According to the Agency, the docket for the enforcement section consists of around 70 administrative cases active and 62 active referred cases sent to the AG. Enforcementprocess begins at the District Office (DO). The district office, whether at the behest of a complaining citizen or through review of compliance reports, identifies violators of clean water laws. The DO Enforcement Coordinator drafts referral to Central Office. CO enforcement section’s four staff along with the four water attorneys review the referral. From this referral options for enforcement are developed, which include: Unilateral orders by OEPA with no penalty can be assessed; Proposed action with a penalty under $125,000 (anything over $125K in penalty must be referred to AGs office); or Referral to AG’s office for possible prosecution.
There have been some good results, but, is this process working? The number of of these Director’s orders are increasing, seemingly, with the increase in violators. As we have seen in preparation for the 60-day notice filed on Franklin County’s unsewered townships, that the big enforcement needs are not always addressed by one District Office, but a similar but smaller issue (like Toledo, above), gets Director’s level enforcement. While not even the TV cops can catch every crook in the act, there needs to be a step that gets some of the minor sources in line before the long process of formal enforcement (and thus continued violations).
Governor John Kasich, in his first biennial budget, suggested a priority for Ohio EPA streamline permitting and enforcement. According to discussions with Director Scott Nally of Ohio EPA, streamlined enforcement means simply to give the Agency more tools to gain compliance without using formal Findings and Orders and/or referral to the Office of the Ohio Attorney General. Such tools could be a stiff ticketing system to allow enforcement personnel to charge a monetary fine after a failed, informal enforcement measure. The goal, according to Director Nally, is to use quick monetary enforcement to motivate management of the violating entity or corporation to prioritize their environmental permitting responsibilities – a proverbial hit to the pocket to get attention. We believe that such chief level enforcement is essential and is a long way past due.
Since it is the Holiday Season, I will give (slight) praise to the Agency. One huge advancement for the Ohio EPA DSW enforcement section over the past few years, and through it an advancement for the people of Ohio, is the section’s transparency. The section has put their enforcement cases on the web. Further, the Division’s interactive maps allow citizens to pinpoint discharge violators in their counties and review the permits and compliance information for thousands of permits.
Going into 2012, John Kasich’s OEPA needs to continue with, and increase, transparency of its enforcement; expand the prioritization to the sectors referenced in previous posts (schools, trailer parks, etc.); and use tough penalties early to push compliance.
Next installment: “When they call in the Big Guns: The Ohio’s Attorney General’s Clean Water Enforcement
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