Enforcement; Verified Complaint Procedure by mcu14908

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									     Ohio EPA
      Policy                 Enforcement; Verified Complaint Procedure
   DSW-0300.003                                                  Ohio EPA, Division of Surface Water
                          Statutory reference:
                                                                 Revision 0, May 18, 1989
                          Rule reference:
     Removed                                                     Removed, April 30, 2003

                     THIS POLICY DOES NOT HAVE THE FORCE OF LAW
         Pursuant to Section 3745.30 of the Revised Code, this policy was reviewed and removed.



This policy deals with internal management and procedural matters and does not meet
the definition of policy contained in Section 3745.30 of the Ohio Revised Code. Ohio
EPA is removing this document from the Division of Surface Water Policy Manual.


For more information contact:
   Ohio EPA, Division of Surface Water
   Compliance/Technical Assistance Unit
   P.O. Box 1049
   Columbus, OH 43216-1049
   (614) 644-2001


H:\RulePolicyGuid_Effective\Policy\2003ManualUpdate\03_03r.wpd
                                                       NUMBER:     DSW-0300.003
                                                       ISSUED:     5-18-89
                                                       STATUS:     FINAL
                                                       DIVISION:   DSW
                                                       PAGE:       1 OF 5


Enforcement;     Verified Complaint Procedure

APPLICABLE
REGULATIONS: ORC 3745.08, 6111.05
ATTACHMENTS: 3 (3 pgs.)
PURPOSE:       To provide for consistent and efficient handling of all matters
               before the director pursuant to Revised Code Sections 3745.08 and
               6111.05. This procedure deals with definitions and explanations of
               verified complaint elements, and defines responsibility and
               procedural handling of such complaints from receipt through
               resolution.

BACKGROUND: Verified complaints are established in Ohio law in Revised Code
            Sections 3745.08 and 6111.05. Revised Code 3745.08 (A) specifies
            who may file a complaint; that the complaint must allege a past,
            present or potential violation of a law, rule, standard, valid
            license, permit or plan approval; and the procedure which the
            complainant must follow in filing the complaint with the director.
            Revised Code Section 6111.05 provides that a verified complaint can
            be submitted for any alleged act of pollution or failure to comply
            with Chapter 6111 of the Revised Code, or any order, rule, the terms
            and conditions of a permit or other determination pursuant thereto".

               Under Revised Code Sections 3745.08 (B) and 6111.05, the director
               must cause a prompt investigation to determine whether a violation
               has occurred, is occurring, or will likely occur.               Such
               investigation must include a discussion with the alleged violator.
               following the investigation, the director may enter such orders
               deemed necessary, request the Ohio Attorney General to commence
               legal proceedings or, where prior violations have been terminated
               and future violations of the same kind are unlikely to occur, he may
               dismiss the complaint. The complaint will be dismissed where no
               violation or threatened violation is found.

               Before taking any action, the director may commence an adjudication
               hearing, providing twenty days prior public notice. If an order is
               entered without a hearing, an opportunity for the complainant and
               alleged violator to attend a conference with the director or his
               delegate will be provided prior to issuing the orders. Revised Code
               Section 3745.08, paragraph (C), contains the procedures for hearings
               and intervention.   Paragraph (D) authorizes the consolidation of
               complaints, and limits the number of hearings to no more than one
               with respect to each violation alleged.

POLICY:        Whenever a district office, the director's office, or a division of
               Ohio EPA receives what appears to be a verified complaint pertaining
               to water pollution, it shall immediately be forwarded to the
               Enforcement Section Manager, who will then submit it to the Legal
               Section. The Legal Section will without delay determine whether or
               not it is a valid verified complaint. If determined not to be a
               valid verified complaint, the Enforcement Section will notify the
               complainant and forward the complaint to the appropriate district
                                          NUMBER:     DSW-0300.003
                                          ISSUED:     5-18-89
                                          STATUS:     FINAL
                                          DIVISION:   DSW
                                          PAGE:       2 OF 5


office for answer as a normal complaint. A copy of the inter-office
communication forwarding the complaint to the district office will
be retained in Enforcement Section files of closure of the matter.

Valid Complaint Notice and Distribution

If determined to be a valid verified complaint, it will be assigned
a verified complaint file number.    A file will be created and a
public notice will be prepared by the Enforcement Section for
publication in an appropriate newspaper and Weekly Review (deadline
for submitting notice to the newspaper is fifteen days after
determination of valid verified complaint; for Weekly Review, one
week after such determination). The complaint will be entered into
a tracking log.

The Enforcement Section will send an acknowledgement letter (refer
to Attachment 1) to complainant and will send to the appropriate
district office unit supervisor a transmittal memorandum (refer to
Attachment 2) requesting package will be a copy of the verified
complaint and any permits, plans, orders, or relevant documents.

Verified Complaint Confidentiality

The verified complaint file will be handled as an enforcement
sensitive item and is, therefore, to be considered confidential
while being actively investigated.     If a request is received to
review a verified complaint or investigation report, the Enforcement
Section is responsible of coordinating such review with the
respective district office. An opinion may be obtained from the
division attorney to determine if the complaint should be considered
enforcement sensitive.
District Office Complaint Investigation Report
The district office will complete their investigation and provide an
investigation report to the Enforcement Section within thirty days
of receipt of the complaint in the district.      The format of the
investigation report will be on letter size white bond with a cover
sheet with a centered title as follows:
                 Investigation Report
      In The Matter of: Verified Complaint No.___________
                Alleged violator: _______________
                  Complainant: ___________
The district office writing the report will be identified on the
lower center portion of the cover sheet with the date of completion.
The internal format of the investigation report will be as follows:

1.    Statement of the Complaint:
2.    Statement of current facts found upon investigation (set forth
      facts found in chronological order and attach all evidence
      proving the facts):

3.    Statement of laws and/or regulations which have been or are
      likely to be violated:
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                                        ISSUED:     5-18-89
                                        STATUS:     FINAL
                                        DIVISION:   DSW
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4.    Possible measures to remedy the violations:
5.    History of entity's compliance/noncompliance:
6.    Recommendation (to be made on separate page)

Investigator's Name ____________________________________
Date: _________________________________________________
District Chief: _______________________________________
Date: _________________________________________________
Upon completion of the investigation and report, the district chief
or his authorized delegate will review and sign the report.
District Office Complaint Investigation Recommendation

The recommendation for complaint disposition will be returned to the
Enforcement Section with the investigation report, but must appear
on a separate page from the investigation report. A memorandum will
be used to convey the investigator's recommendation to the
Enforcement Section Manager. The actions which may be recommended
to the committee are: 1) dismissal; 2) referral to the Attorney
General for enforcement proceedings; or 3) findings and orders.
When findings and orders are recommended, draft orders should be
provided to the committee for their consideration with the report.

Central Office Investigation Report Review
After the investigator's report and recommendations are logged in by
the Enforcement Section, the section manager will review the report
and the recommendation to determine if the verified complaint was
thoroughly investigated and determine what action shall be taken.
If the section manager finds the report incomplete, he will send a
memorandum to the district office specifying what further
information is necessary and by what date it must be submitted.

After his review, the section manager will forward the report and
recommendation to the Water Pollution Enforcement Committee for
inclusion on the agenda of the next meeting. The report will be
forwarded to the committee by memorandum, and a copy (without
attachment) will be sent to the division chief.
Water Pollution Enforcement Committee Action
The committee will recommend that the verified           complaint be
dismissed, set for hearing, resolved through orders,    or referred to
the Attorney General's Office for enforcement           action.    The
committee's attorney will prepare the legal papers to   accomplish the
desired action.

Findings and Orders Options

The last sentence of Section 3745.08 of the Revised Code reads as
follows: "If the director enters an order pursuant to this division
without having commenced a hearing, the director or his delegate,
prior to entry of the order, shall provide an opportunity to the
complainant and the alleged violator to attend a conference with the
director or his delegate concerning the alleged violation." When
orders are to be issued, consent orders will normally be used.
                                        NUMBER:     DSW-0300.003
                                        ISSUED:     5-18-89
                                        STATUS:     FINAL
                                        DIVISION:   DSW
                                        PAGE:       4 OF 5


Orders will be prepared in final form for the director's signature
and waiver by the alleged violator. The final findings and orders
and a notice of the orders will be sent to both the complainant
(refer to Attachment 3) and alleged violator by certified mail.
The orders will be public noticed as a final action in the Weekly
Review and a newspaper of general circulation in the county of
alleged violation. All parties to the complaint will be advised in
the notice of their right to a conference, or appeal before the
Environmental Board of Review.     In limited circumstances, draft
orders may be used (in consultation with the Legal Section) for
negotiation purposes; however, issuance of final consent orders will
be the standard operating procedure.

Dismissals

A dismissal recommendation will include relevant findings of fact
and state either: no violation has occurred, is occurring, or is
likely to occur; or, past violations documented in the investigation
report have been terminated and are unlikely to recur based upon
(specify) corrective actions taken after the last violation. Note
that a dismissal is not a legitimate action where a violation is
documented and may reasonably be expected to occur again.          A
dismissal of a verified complaint will be public noticed as a final
action in the Weekly Review and in a newspaper of general
circulation in the county of alleged violation.       A copy of the
dismissal is to be sent to all involved parties and will be placed
in the verified complaint file.

Enforcement Referral Option

An enforcement referral recommendation will require additional
divisional effort in the form of support to the agency attorney and
the Attorney General's Office. When additional file material or
assistance is requested by the attorney preparing the record to
accomplish the desired action, the Enforcement Section will work
with the division attorney to assemble a case file with relevant
information.
Closure of the File
Closure of the verified complaint file will be accomplished by a
memorandum from the Water Pollution Enforcement Committee indicating
the action taken to resolve the verified complaint. The memorandum
will be directed to the division chief with a copy to the
Enforcement Section and the appropriate district. A copy of any
orders or dismissal will be included in the file. Upon receipt of
the memorandum from the committee, the Enforcement Section will
close the record and send a letter advising the complainant and the
alleged violator of the disposition of the complaint.



Complainant Withdrawal

If complainant withdraws the verified complaint at any time, the
Enforcement Section will send a letter of acknowledgement to the
                                       NUMBER:     DSW-0300.003
                                       ISSUED:     5-18-89
                                       STATUS:     FINAL
                                       DIVISION:   DSW
                                       PAGE:       5 OF 5


complainant (refer to Attachment 3), the appropriate       district
office, the alleged violator, and the committee.

Although a verified complaint is withdrawn by the complainant, the
agency may proceed with an enforcement action against the alleged
violator as deemed appropriate.
DSW-0300.003 ATTACHMENT 1

(Address of Complainant)

Dear (Complainant):

This letter is to acknowledge the receipt of the verified complaint you have
filed with the director of Environmental Protection against (Alleged violator).
The complaint has been determined to be procedurally correct and a prompt
investigation, as required by ORC 3745.08, will occur. The verified complaint
will be advertised in the Weekly Review and in a paper of major circulation in
_____ County. You will be informed of the results of the investigation which was
routed to the ______ District Office, on
(Date)        ,   19 .
Verified Complaint No. _______ concerns alleged violations of
(PROVIDE FULL DESCRIPTION AS ADVERTISED)




Please contact me at (614) 644-2001 if you have any questions or require any
further assistance.

Sincerely,


Manager
Enforcement Section
Division of Water Pollution Control
cc:   Enforcement Coordinator
      Permits Section Manager
      Attorney, Legal Section
      Unit Supervisor, District Office
      File
DSW-0300.003 ATTACHMENT 2

       (NAME)     , (D.O.), DSW Unit Supervisor            (DATE)

      Manager, Enforcement Section, DSW
      Verified Complaint No. ________

Attached is a copy of the Verified Complaint received by the director, (DATE
  and routed to this office     (DATE)     . The verified complaint has been
determined to be procedurally correct per ORC 3745.08 by the Legal staff.
The verified complaint, No.       , concerns violations by (ALLEGED VIOLATOR).
The complaint will be advertised as:




Be advised that Ohio Revised Code Section 3745.08(B) requires a prompt
investigation of the complaints to determine whether a violation, as alleged, has
occurred,is occurring, or is likely to occur. The investigation shall include
a discussion of the complaint with the alleged violator(s).

Please investigate this complaint and send me your investigation report, and
separate complaint disposition recommendation, with all evidence attached, in an
envelope stamped "confidential," within thirty days of receipt of this
memorandum.

cc:   Enforcement Coordinator
      Permits Section Manager
      Attorney, Legal Section
DSW-0300.003 ATTACHMENT 3

ADDRESS OF COMPLAINANT



Dear COMPLAINANT:
This letter is to advise you that an investigation of the complaint you have
filed with the director of Environmental Protection against ALLEGED VIOLATOR has
been investigated, as required by Ohio Revised Code Section 3745.08. Action
resulting from your verified complaint submittal was REFERRAL/DISMISSAL/ISSUANCE
OF ORDERS/WITHDRAWAL OR COMPLAINT.
You may direct any further questions you may have regarding the disposition of
this complaint to           of the Ohio EPA legal section at (614) 644-2115.
Sincerely,



Manager
Enforcement Section
Division of Water Pollution Control

cc:   Enforcement Coordinator
      Permits Section Manager
      Attorney, Legal Section
      Unit Supervisor, District Office
      File

								
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