Who pays, if county loses to EPA?

No one has an answer

With the Washington County commissioners set to fight the Ohio Attorney General’s office and the Ohio Environmental Protection Agency on orders to sewer Devola there are more questions than answers as to what’s next.

The commissioners face north of $10,000 per day in civil penalties for noncompliance with Ohio EPA orders to sewer Devola which to date could total more than $11 million. They also face a potential $16 million in damages for breaking a contract with the city of Marietta to sewer both Devola and Oak Grove by the close of 2016.

But if the county is ordered to pay, where will this money come from?

“I don’t know,” said Washington County Commissioner Ron Feathers, on Wednesday. “It couldn’t come from the county general because that would be an undue tax. If it came out of the enterprise fund it would bankrupt it.”

Washington County Auditor Bill McFarland explained that the county’s sewer enterprise fund functions as a singular fund to support sewer operations throughout the county.

“Enterprise funds in theory are set up to be self-sustaining and the moneys that come in can only go to support that service run as a business-type activity,” he said.

Commissioners’ Clerk Rick Peoples said there is no fund to pay for legal fees or penalties in the county’s budget.

“We don’t have insurance that would cover something like this either,” he said.

Feathers said historically state civil penalties are “thrown out in court” when levied against government agencies because there’s not a means by which to pay them.

“It’s not like we have property or risk like a corporation,” he said. “And it’s not like we get a lot of state funding already, except for what goes to transportation, the (Department of Jobs and Family Services) and local government funds,” he said. “That would be real sweet for them to threaten the elderly and the jobless.”

Ohio Attorney General’s Office public information officer Kate Hanson would not provide direction on the next steps for the state’s case against the commissioners.

“Because we are the lawyer for the Ohio EPA, we can’t comment on what next steps would be,” she said.

Ohio EPA Communications Deputy Director Heidi Griesmer said there is precedent for civil penalties being enforced, but normally in the form of enforcing the orders of the agency.

“Generally instead of having a flat fine we ask them to put that towards fixing the problem that exists,” she said.

Neither the OAG nor the Ohio EPA would comment on where those funds could be gleaned, or whether state funding could in fact be pulled as a penalty for noncompliance with a court order.

As to next steps, environmental law veteran attorney Jack A. Van Kley, who cut his teeth working for the Ohio Attorney General’s office in the early 1990s, provided insight.

“The EPA could go to court to enforce the orders by a binding injunction,” said Van Kley. “If the people of the township believed the orders were not valid or are unreasonable they can take it to an administrative court called the Environmental Review Appeals Commission.”

But that appeal window, only 30 days from the time of the original orders, has long since passed.

“Once that appeal deadline has passed the state would have the option of filing suit in the court of common pleas,” Van Kley explained. “As a practical matter the maximum penalty is never assessed. Those penalties, the top limit of $10,000 per day out of compliance can be scary but practically speaking that’s not what happens.”

But that doesn’t mean a fine couldn’t still be substantial, he noted.

“Sure, there is precedent. The very first case I was ever assigned when I began my career with the Ohio Attorney General’s Office was to enforce (Ohio EPA) Director’s Orders to sewer a city,” he said, referring to Avon in northeast Ohio. “We won that case and they had to sewer.”

Other questions and statements made in prior meetings with the commissioners have included whether prior county commissioners and Marietta City councils have had the legal authority to sign a contract to obligate property owners to sewer.

“Yes, they do,” answered Van Kley.

And Feathers has stated previously that the commissioners are willing to take the case up to the Ohio Supreme Court or further if the legislative body deems necessary.

“They have two levels of courts to go through before getting to try to have their case accepted and heard by the Ohio Supreme Court,” added Van Kley. “Most of these cases are settled, only occasionally does one go to trial in the court of common pleas.”

At a glance

¯ Washington County Commissioners are facing potential penalties and damages through lawsuits for not sewering Devola and Oak Grove.

¯ In a potential suit levied by the Ohio Environmental Protection Agency and the Ohio Attorney General’s Office the county faces north of $11 million in penalties.

¯ In a lawsuit filed by the City of Marietta against the commissioners there’s potential for a $16 million in damages assessment.

¯ County commissioners say they don’t know where this money could come from.

Source: Times research.

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