Transcript Document

Central Ohio Certified Hazardous Materials Managers
What the Environmental Professional
Needs to Know About Defending an
Enforcement Action Initiated by EPA
Tuesday, September 28, 2010
5:30 p.m.
5979 East Main Street
Columbus, Ohio 43068
Frank J. Reed, Jr.
Partner
Environmental Practice Group
Frost Brown Todd, LLC
www.frostbrowntodd.com
Significant Cases in 2009
Hazardous Waste
State ex. rel. Nancy Rogers v. Republic Environmental Systems (Ohio), Inc.,
Case No. 1998 CV 03449, Montgomery County Common Pleas Court,
Judge Mary Wiseman. October 9, 2009.
In this case, a privately held company known as Republic Environmental
Systems, Inc. signed a Consent Order, that was filed in 1998, agreeing to
submit a closure plan of certain hazardous waste units on site, according to
the Resource Conservation and Recovery Act of 1976.
After the Consent Order was filed, the Defendant failed to timely submit such a
plan. Eventually, the Defendants did submit a plan to Ohio EPA, however, it
was submitted late, and Ohio EPA determined that the plan was insufficient,
and requested the Defendants submit an amended plan within 60 days.
The Defendants requested a total of four extensions, the first two
were 180 days, and the third and fourth were each 90 days. After
the Defendant failed to submit anything after the fourth extension of
time was granted, the Ohio EPA referred the matter to the
Attorney General’s office for Contempt of Court.
Significant Cases in 2009
Hazardous Waste (Cont.)
After holding an evidentiary hearing, the Court found the
Defendants jointly and severally liable for Contempt of Court
and imposed total stipulated penalties in the amount of
$14,706,800. The violations included failure to submit
adequate closure plans, failure to comply with the groundwater
monitoring plan. However, the Court ruled that the state failed
to prove that the Defendants did not provide adequate financial
assurance necessary to complete “closure.” The state also
alleged that the Defendant failed to follow the regulations with
regard to the purported transfer to the environment permits,
compliance with the annual update. Finally, the Court imposed
a penalty for the Defendant’s failure to adequately secure the
site from unauthorized entry. Although there is some doubt as
to whether the state will be able to successfully collect on this
judgment, obviously, this is a result your facility will want to
avoid.
Significant Cases in 2009
Solid Waste
State ex. rel. Richard Cordray v. Republic
Services of Ohio II, LLC, Stark County
Common Pleas Court, Case No. 2007CV-4762, Judge Forchione. September
30, 2009.
Countrywide Recycling and Disposal Facility, located in Stark County, Ohio,
began experiencing an exothermic reaction within the landfill. It was
discovered that the source of the reaction was Aluminum waste which had
been lawfully deposited into the solid waste landfill, which when mixed with
water, heated up and emitted odors. The landfill agreed to install an “isolation
break” between cells, prohibit re-circulation of leachate, and monitor the
temperature of the landfill. In addition, the company agreed to pay $3 Million
into a “Community Benefit Fund,” and $7 Million to Ohio EPA as a civil penalty.
Largest Solid Waste Civil Penalty in Ohio EPA’s history.
Significant Cases in 2009
Air
United States of America and State ex. rel. Attorney General v. Ineos ABS
(USA) Corporation, formerly known as Lanxess Corporation. United States
District Court, Southern District of Ohio, Case No. 1:09-CV-545. Judge S.
Arthur Spiegel.
Chemical manufacturing facility located in Addyston, Ohio (near Cincinnati,
along the Ohio River) allegedly committed air and odor violations related to
the manufacture of acrylonitril, butadiene, styrene, and other plastics and
resins. Company signed a consent Order agreeing to install covers on the
wastewater treatment tanks, treat fugitive emissions, upgrade thermal
oxidizer, install a washwater collection tank, install a cover on the sump drain
and to pay a civil penalty of $1,550,000 to U.S. EPA, $1,676,500 to Ohio
EPA, and $382,500 to Hamilton County, for a total of $3.1 Million.
I. Enforcement Process
A. Site Access
B. Inspections
C. Post-Inspection
D. Administration Orders
E. Formal Enforcement
Inspections – What to Expect When Ohio
EPA Comes to Your Client’s Facility
1.
The Director of Ohio EPA and his or her authorized
representative (in this case the inspector) have the
authority to conduct an inspection.
2.
Identification badge of Ohio EPA employee/inspector.
3.
Request to walk the property or facility, accompanied
or unaccompanied by a representative of the entity.
4.
Request for records, sample collection and
photographs.
5.
Conversations between Ohio EPA and facility
employees regarding the day-to-day operation and
maintenance of the facility or compliance event.
Post-Inspection Communication
1. A written notice of violation letter (NOV) may be
generated after an inspection is conducted. The
entity is offered an opportunity to respond in
writing and may request a meeting with Ohio EAP
if there are any questions or issues pertaining to
the NOV letter.
2. A notation of the applicable law.
3. A description of the facts and violations
discovered during the inspection.
4. A request by the Ohio EPA for the entity to take
action to remedy the violation.
5. A request for a written response to the NOV.
Administrative Orders
1. Under Ohio law, the Ohio EPA has the authority
to enter into Director Final Findings and Orders
(“DFFO”) with a non-compliant entity R.C.
3704.03, 3734.13, 6111.03(H), 6109, 6117.34.
2. Unilateral versus Negotiated Orders
Administrative Orders
3. Types of Director’s
Orders:
a.
Enforcement orders – Ohio
Rev. Code 3704.13,
6111.03 (H)
b.
Emergency orders – Ohio
Rev. Code 3704.032,
3745.13(B), 6109.05,
6111.06(C)
c.
Verified complaints – Ohio
Rev. Code 3745.08
Chris Korleski, Director
If order is unilateral, your client has right to file an
appeal to the Environmental Review Appeals
Commission (ERAC).
(Ohio Rev. Code Chapter 3745 and Ohio
Administrative Code Rules 3746-1 through 3746-13.)
Director’s Orders are appealable to ERAC within 30
days of issuance. The Orders are not automatically
stayed upon appeal.
Formal Enforcement – Civil Referral
2. Civil Litigation
a)
Strict liability
Soloman v. Liquor Control Comm’n (1965), 4
Ohio St. 2d 31;
State , ex rel. Brown v. Dayton Malleable, Inc.
(1989) 1 Ohio St. 3d 151.
b)
Injunctions
Akerman v. Tri-City Geratric & Health Care
(1978), 55 Ohio
St. 2d 151.
3. Press Release
4. Contempt
a)
Civil versus criminal contempt (Brown v.
Executive 2000 Inc. 1980), 64 Ohio St. 2d 250).
Statute of Limitations
S.B. 105

Effective July 24, 2002

R.C. 3745.31
Civil Penalty Calculation
I.
Economic Benefit Component
i.
Goal is to recover any benefit that regulated entity
may have realized through non-compliance
ii.
Do not want to make non-compliance a profitmaking venture
iii. Aim is to recover
A.
Benefit from delayed cost (time value of money)
B.
Benefit from avoided costs
C.
Profits
Facts that will likely cause your facility to be
subject to referral to the Attorney General’s
Office for air violations:
1. Noxious smell or odors to the neighbors.
2. Particulate matter or air contaminants which
are harmful to human health or environment.
3. Citizens complaints.
4. Verified complaint – Director of
Ohio EPA.
Practice Tips for Regulated Community
1. Establish good relationship with Ohio EPA
personnel – both at the District and the Central
Offices.
2. Answer all letters and telephone calls promptly.
3. Keep good records.
4. Hire and consult with experienced environmental
legal counsel and consultants.
5. Maintain professional and polite demeanor.
Questions
Frank J. Reed, Jr.
Attorney at Law
Frost Brown Todd, LLC
10 W. Broad Street, Suite 2300
Columbus, Ohio 43215
[email protected]
(614) 464-1211
Offices: Tennessee, West Virginia, Kentucky, Indiana, and Ohio
West Chester, Cincinnati, and Columbus, Ohio