Ohio EPA Issues Civil Penalty Guidance for Solid Waste Violations
On April 22, 2004, Ohio EPA’s Division of Solid and Infectious Waste Management (“DSIWM”) issued a new Civil Penalty Guidance document. The Guidance is intended to be used by Ohio EPA staff “to make the calculation of civil penalties for violations of ORC Chapters 3734 and 3714 consistent, fair, equitable, and predictable.”
Prior to issuing the Guidance, Ohio EPA relied upon the RCRA Civil Penalty Policy that was adopted by U.S. EPA in October 1990 to determine the appropriate amount of civil penalties for solid waste violations in the state of Ohio. Although the Guidance draws extensively from the federal version, it also takes into account a few unique programs in Ohio that are administered by DSIWM that are not regulated by the federal government (such as construction and demolition debris, scrap tires and infectious waste).
Generally, the Guidance is used to determine an appropriate penalty amount that is lower than the maximum penalty allowed by Ohio law (in most cases - $10,000 per day per violation). However, the Guidance specifically states that Ohio EPA may deviate from the guidance and seek to recover the maximum civil penalty allowed in any case where the Director of Ohio EPA determines that a lower penalty would be inadequate to address the past violations or sufficiently deter future violations.
In summary, the Guidance establishes a methodology for calculating an appropriate civil penalty, which is made up of the “base penalty” plus or minus the “adjusting factors.”
The base penalty is a function of several factors, including: 1) the priority classification of the violation; 2) the duration and/or frequency of the violation; 3) the degree to which the violator deviated from the regulatory requirement; 4) the harm caused to human health, the environment, or the regulatory program; and 5) any aggravating or mitigating circumstances. The base penalty is calculated by making a series of selections in the DSIWM Civil Penalty Policy Scoring Worksheet.
The adjusting factors take into account the violator’s: 1) recalcitrance and previous enforcement history; 2) economic benefit enjoyed from the non-compliance; 3) ability to pay; 4) costs of referral to the Attorney General’s office for handling; and 5) litigation risk associated with the case.
The Guidance clearly states that when Ohio EPA proposes a civil penalty assessment in an administrative enforcement proceeding, any negotiations concerning the amount of the civil penalty must take place within the context of the methodology and criteria set forth in the Guidance. Furthermore, in such a case, Ohio EPA will not entertain arguments that the guidance itself should be disregarded or that a civil penalty amount should be calculated pursuant to some other process or formula.
Consequently, Ohio EPA strongly encourages anyone engaged in administrative enforcement proceedings with DSIWM to become thoroughly familiar with the Guidance and the specific facts of their enforcement case.
Frost Brown Todd LLC's Environmental Department is familiar with DSIWM’s new Guidance and with Ohio EPA’s past implementation of the 1990 RCRA Civil Penalty Policy for alleged violations of Ohio’s solid waste laws.
If you have any questions regarding the Guidance or would like to receive a copy of it, please call Daniel A. Brown in the Middletown, Ohio office of Frost Brown Todd LLC at (513) 422-2001 ext. 214.