Here is an explanation of the “letters” that OH EPA uses in their enforcement communications and how and when they use each type of communication:
1. Inspection or Warning Letter Identifying a Risk of a Potential Violation
An inspection or warning letter identifying a risk of a potential violation is an informal tool that may be used for ensuring continued compliance. This inspection or warning letter will typically be written by inspectors to inform the regulated entity of apparent conditions that could likely lead to a violation if not addressed soon and request preventive actions. An inspector may choose to issue this letter to address conditions that could lead to violations that are few in number, minor, and easily corrected in a limited time with minimal oversight by Ohio EPA.
Inspection or warning letters should include technical assistance advice particularly when compliance challenges may be due to inexperience or misinformation. For a complex or multi-media issue, the agency may need to refer the regulated entity to a specific person at Ohio EPA or a technology that may assist the regulated entity in resolving the issue and preventing its reoccurrence. In that instance, the letter should include an explanation of the deficiency, the name of a contact person with a telephone number and/or e-mail address for the regulated entity to contact for assistance, a suggested timeline for obtaining technical assistance, and a general description of Ohio EPA’s Compliance Assurance through Enforcement Program including consequences of future non-compliance.
If a more severe compliance tool is used against the regulated entity at a later date, the deficiency that generated an inspection identifying a risk of a potential violation should not be cited. This tool should not be used when a regulated entity has violated rules or laws, although Ohio EPA should always be willing to offer technical assistance when possible.
2. Notice of Violation (“NOV”) Letter
A notice of violation (NOV) letter is a means for Ohio EPA to inform a regulated entity that violations of statutes, rules, orders or permits have occurred. A NOV letter includes a listing of the violations at the facility, a reference to a possible civil penalty, a description of the steps the regulated entity should take to return the facility to compliance in a timely manner or a request for a compliance plan and schedule to be submitted in a timely manner.
A NOV letter is to be issued to the regulated entity no later than twenty-one (21) days after discovering a violation.
An exit conference should be held with the regulated entity at the conclusion of any inspection whenever possible to summarize the results of an inspection and the actions that need to be taken by the regulated entity. The exit conference should include technical compliance assistance whenever possible, especially when compliance issues may be due to inexperience or misinformation. It is also acceptable to have the exit conference by phone if the regulated entity is not available. For a complex or multi-media issue, an inspector may need to refer the regulated entity to a specific person at Ohio EPA or another agency or business with the expertise to assist the regulated entity in resolving either the violation or the conditions that could likely lead to a violation if not addressed soon. In that instance, the NOV letter should include an explanation of the compliance issue, the name of a contact person and telephone number and/or e-mail address for the regulated entity to contact for assistance, a suggested timeline for obtaining technical assistance, and a general description of Ohio EPA’s Compliance Assurance through Enforcement Program including consequences of future noncompliance.
If the inspector determines that a regulated entity has committed a violation that reaches the level of significant noncompliance (as defined in the Program Specific Enforcement Policy under Section III) or otherwise needs to be tracked through the agency’s enforcement program, and such violation has not been abated within forty-five (45) days of its discovery, the inspector should promptly arrange a compliance conference where representatives of the regulated entity and Ohio EPA meet to review and discuss the violations and the regulated entity’s compliance efforts. Such compliance conference should be held within thirty (30) days of the expiration of the forty-five (45) day period referenced above.
All violations of Ohio’s environmental laws alleged by Ohio EPA and its inspection designees should be cited appropriately in written correspondence and forwarded to the regulated entity, and filed in accordance with the guidelines of Ohio EPA’s Compliance Assurance through Enforcement Program.
3. Advanced Warning Letters and Bilateral Compliance Agreements (BCA)
a. Program Chief’s Warning Letter
A Program Chief’s Warning Letter may be sent to a company for reasons including the following:
i. The violation(s) resulted in minimal or no environmental harm and the company quickly returned to compliance. In this situation, the purpose of the warning letter is to reinforce the seriousness, to prevent recurrence of the violation(s) that have been corrected, and to remind the company of its obligations under Ohio’s environmental laws.
ii. The violation(s) resulted in minimal or no environmental harm, but the company has yet to demonstrate it has abated the violation(s) or has failed to submit an acceptable plan to return to compliance or the additional information requested by the agency. In this situation, the purpose of the warning letter is to give the violator one last chance to comply without additional escalated enforcement action being recommended to the Director to address noncompliance.
b. Bilateral Compliance Agreements
This compliance tool is a letter of agreement signed by the Division Chief and the regulated entity that memorializes steps that will be taken in an agreed schedule to address noncompliance. This tool has historically been used by the Division of Drinking and Groundwater and has proven to be an effective tool to address violations that are relatively simple to correct thus avoiding the need to pursue a more formal enforcement response. It is recognized that this agreement is not, for practical purposes, enforceable. Accordingly, if the entity fails to fulfill the agreed to commitments in the BCA, it is expected that the program recommend pursuing a more escalated enforcement tool such as Findings and Orders or AGO referral.
c. Director’s Warning Letter
A Director’s Warning Letter may be appropriate following a compliance conference when the regulated entity needs to be placed on notice that Ohio EPA is on the verge of going to the next stage in the enforcement process which could include a recommendation to the Director that enforceable orders including a financial penalty and/or a referral to the Ohio Attorney General be pursued. This tool may also be helpful if getting the attention of a regulated entity’s corporate management may result in more timely compliance. This letter is not a final action of the Director.
4. Expedited Settlement Agreement (“ESA”)
An Expedited Settlement Agreement (“ESA”) is an enforcement tool where the Director of Ohio EPA offers an expedited settlement agreement that includes a nominal penalty, in the range of a minimum of $500.00 to a maximum of $10,000 or $20,000 (depending on the program) in exchange for prompt, documented abatement of the documented violations and an agreement that the regulated entity will not contest the settlement agreement. The regulated entity is not required to admit or deny committing the specific violations under this program. The Expedited Settlement Agreement provides the regulated entity with an incentive for prompt compliance with Ohio’s environmental laws and reduces the time and resources spent on contested cases. These will be issued under Ohio Rev. Code § 3745.01 and the applicable program’s enforcement authority as a final action.
When a program’s enforcement staff determines that a regulated entity’s noncompliance requires a formal enforcement response and identifies an ESA as the appropriate enforcement tool, the enforcement staff and its legal counsel should prepare the proposed ESA for review and approval by the Enforcement Coordinator, Program Chief, the program’s supervising attorney, the Deputy Director of Legal Affairs (sometimes referred to as the Director’s Chief Legal Counsel) and the Director. This referral package should be submitted to the official review and approval/sign-off process within sixty (60) days of the Enforcement Committee’s determination that an ESA is the appropriate enforcement tool. Official in-house approval of a final settlement, in the form of an ESA, may occur after signing by the regulated entity’s representative if its terms are within the parameters of the proposed ESA.
A. Eligibility
An ESA may be appropriate when a violation, or a series of violations, is significant enough to warrant a financial penalty of at least $1,000 (before discounting) and the needed injunctive relief to abate the violation, or series of violations, is both apparent and minimal. The compliance action must be able to meet the ESA timeline, which is sixty (60) days, calculated from the date of the regulated entity’s receipt of the offer to resolve violations through an ESA to the date of the signed agreement and receipt of the penalty. If the violations cannot be expected to be abated within 60 days of receipt of the Director’s Invitation to Negotiate (ITN), then the ESA is not an appropriate compliance tool to address the violations at issue. An ESA may also be appropriate when a regulated entity has already abated the violation(s) in response to an inspection or the receipt of an NOV or when there are no actions which need to be taken to abate the violation(s).
B. ESA Guidelines
1. A compliance schedule not to exceed sixty (60) days of receipt of the Director’s Invitation to Negotiate (ITN) that clearly spells out the steps necessary to bring the entity back into compliance. (Note: there is an opportunity to toll the 60-day requirement if an ability to pay request has been promptly submitted until such time as Ohio EPA makes a determination on such request.)
2. The minimum amount of a cumulative penalty (after discounting) shall be $250.00 and the maximum amount shall be $10,000.00 or $20,000 (depending on the program) for all cumulative violations.
3. The public benefit of quick compliance that justifies offering a discount from the standard penalty calculation must be documented in the case materials and in the ESA offer letter to the regulated entity.
4. A rejected ESA shall be immediately placed into an escalated enforcement category such as Findings and Orders, or referral to the Ohio Attorney General or US EPA, unless new information is obtained by Ohio EPA indicating that escalated enforcement is inappropriate.
5. Ohio EPA may offer an ESA for a particular violation only one time. Thus, for example, if an entity violates a PTI requirement and the matter is resolved through an ESA, subsequent violations of the same PTI requirements by the same entity will not be eligible for an ESA.
6. Ohio EPA has the discretion to offer an ESA to resolve a violation, or series of violations, even when such an offer was previously rejected to resolve a different violation, or series of violations.
7. An ESA shall always be drafted to require the regulated entity to waive its administrative and judicial review rights for the matters resolved therein.
8. An ESA shall always be drafted to allow the regulated entity to sign the document without admitting or denying the allegations contained therein.
9. An ESA shall always be drafted to require Ohio EPA to waive any further enforcement action by Ohio EPA against the regulated entity pertaining to the allegations contained therein.
10. An ESA shall always be drafted to require the regulated entity to waive any objections that it may have regarding jurisdiction of Ohio EPA.
11. Penalties and discounts will be identified in program specific addendums.
12. An ESA should not contain obligations that require the regulated entity to perform any additional corrective actions beyond the abatement that is required to be completed within the ESA’s initial 60-day period.