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Watch group critical of Ohio EPA enforcement report



NATE ELLIS
Daily Reporter Staff Writer
05/15/2002


A recent report compiled by the Ohio Environmental Protection Agency lauding the office's enforcement efforts in 2001 has been met with skepticism by a state-based issues watch group.

According to the Ohio EPA's "Summary of 2001 Enforcement Performance," the agency issued more environmental enforcement orders and assessed more civil penalties in 2001 than any year since 1995.

The report, which was produced for the second consecutive year as an internal management tool, but was released publicly for the first time this year, touts 2001 as a "very successful year for administrative enforcement actions."

But despite these claims and a number of statistics that would seemingly reinforce them, Ohio Citizen Action, a non-profit, non-partisan organization focusing on issues ranging from toxic waste and food safety to insurance rates and political reform, is somewhat critical of the agency.

The group maintains that serious environmental problems remain in the state and that the release of the report is nothing short of a tactic to combat the negative publicity the Ohio EPA has previously received for enforcement shortcomings.

Since January 2000, the United States EPA has been conducting reviews of a number of federal environmental programs administered by the Ohio EPA in response to a petition submitted by Ohio Citizen Action, the Ohio Environmental Council (later replaced by the Ohio Public Interest Research Group), the Sierra Club of Ohio and Rivers Unlimited.

The groups expressed concerns with Ohio environmental programs and requested that the U.S. EPA withdraw and/or revoke its authorization, delegation and/or approval to the Ohio EPA for certain programs.

The U.S. EPA conducted its reviews and currently is preparing a report in order to gather information and evaluate whether it is appropriate to initiate withdrawal and/or revocation proceedings in response to the petition.

In fall 2001, the agency sent a draft audit report to the Ohio EPA which described preliminary conclusions based upon the investigation to date.

In many cases, the U.S. EPA's draft audit concluded that the Ohio EPA has performed reasonably well. It stated that allegations of insufficient action with respect to the Clean Water Act and compliance with federal laws pertaining to disposal of solid waste lacked cause to commence withdrawal proceedings.

Further, the U.S. EPA's preliminary conclusion was that the Ohio EPA effectively initiates, prosecutes and resolves a "significant" number of environmental enforcement cases.

"In particular, Ohio's criminal environmental enforcement program is considered among the best in the nation," the draft audit stated.

This finding was readily presented within the Ohio EPA's 2001 enforcement performance report. The agency's director, Christopher Jones, said 2001 was noteworthy for issuing 146 enforcement orders, assessing civil penalties of more than $2.1 million and resolving all but nine verified complaints levied by citizens.

"We made enforcement a priority and not only met, but in many cases exceeded, the high standards we set for resolving our cases," Jones said.

The Ohio EPA report also notes that enforcement actions in its air pollution control program resulted in a reduction of 607.7 tons of air pollution last year. What is less prevalent, however, is the fact that the U.S. EPA's draft audit states that insufficiencies in the Ohio EPA's enforcement of the Clean Air Act "may provide the basis for the commencement of withdrawal or revocation proceedings" for each of the state's five Clean Air Act programs.

According to the U.S. EPA's preliminary findings, the Ohio EPA's Clean Air Act programs are summarized as follows:

Ohio EPA currently employs fewer employees than it had indicated it would need to run its air programs.

There has been a decline in recent years in Ohio EPA air inspections, enforcement case conclusions, complaint investigations and collected penalty amounts.

There are potential gaps in Ohio EPA's legal authority to implement portions of the delegated new stationary sources and national emission standards for hazardous air pollutants.

Ohio EPA has no comprehensive system or process for identifying prevention of significant deterioration sources that have not identified themselves to the agency.

Ohio EPA does not have procedures to check the accuracy of statements made by regulated entities.

Ohio EPA does not have a training program that ensures a minimal level of training and consistency across the state.

Ohio EPA has not provided inspection strategy compliance tracking and enforcement program plans as part of its Title V program application.

Ohio EPA's Division of Air Pollution Control currently has a very high level of vacancies with no system in place to expeditiously fill those vacancies.

Further, the draft audit said the Ohio EPA has fallen behind the statutory and regulatory timetable for issuing final Title V permits, has not implemented a Phase II acid rain program as part of its Title V permitting program, and is not obtaining "sanitized" versions of Title V permit applications from applicants with confidential claims to forward to the public.

It said Ohio EPA is including incomplete statements of basis with draft Title V permits and does not prohibit by regulation the exclusion of insignificant emission units from Title V applications and permits, as well.

"I think the Ohio EPA report raises a lot of questions," said Jennifer O'Connell, the Akron-area director of Ohio Citizen Action. "I think a lot of it is spin and they are doing it because they know the U.S. EPA is taking a look at the petition we submitted.

O'Connell said the Ohio EPA could make substantial improvements in terms of clean air enforcement and overall enforcement if the agency remained committed to promised improvements. However, she said the agency has fallen behind in various areas.

Still, Ohio EPA spokeswoman Carol Hester said the fact that, in 2001, the agency resolved 76 of 81 cases that were backlogged two years or more indicates it is on the right path in terms of enforcement.

She said the agency also surpassed its goal of issuing 100 orders by nearly 50 percent and she noted there has been nearly an 80 percent increase in the agency's productivity in getting enforcement cases resolved.

"We had a real successful year," Hester said. "We've improved our efficiency, so we can settle more cases. By focusing on our goals and increasing efficiency, we have been able to be more productive."

According to the Ohio EPA report, the Division of Surface Water assessed penalties of more than $3.1 million, the second highest annual amount in the last 12 years. The report stated that the Division of Air Pollution Control issued 54 orders, the highest annual amount in the past eight years, and assessed its second highest annual amount of penalties - more than $3.1 million - in the last 10 years.

Further, the agency's report stated the Division of Drinking and Ground Waters issued 10 orders in 2001 and assessed $340,150 in penalties, the highest annual total collected by the division since the agency began tracking agency-wide performance more than 12 years ago.



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