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Frank J. Reed, Jr. Partner Environmental Practice Group Frost Brown Todd, LLC What the Environmental Professional Needs to Know.

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Presentation on theme: "Frank J. Reed, Jr. Partner Environmental Practice Group Frost Brown Todd, LLC What the Environmental Professional Needs to Know."— Presentation transcript:

1 Frank J. Reed, Jr. Partner Environmental Practice Group Frost Brown Todd, LLC 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 Central Ohio Certified Hazardous Materials Managers

2 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.

3 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.

4 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. 2007- CV-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.

5 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.

6 I.Enforcement Process A.Site Access B.Inspections C.Post-Inspection D.Administration Orders E.Formal Enforcement

7 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.

8 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.

9 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

10 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

11 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.

12 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).

13 Statute of Limitations S.B. 105  Effective July 24, 2002  R.C. 3745.31

14 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 profit- making venture iii.Aim is to recover A.Benefit from delayed cost (time value of money) B.Benefit from avoided costs C.Profits

15 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.

16 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.

17 Frank J. Reed, Jr. Attorney at Law Frost Brown Todd, LLC 10 W. Broad Street, Suite 2300 Columbus, Ohio 43215 (614) 464-1211 Offices: Tennessee, West Virginia, Kentucky, Indiana, and Ohio West Chester, Cincinnati, and Columbus, Ohio Questions

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