Public Water System Enforcement Q&A

Q. What are Significant Noncompliers (SNCs), Pre-SNCs, and SNC Exceptions ?

A. A SNC is a public water system (PWS) that accumulates a certain number of violations in a running 12 month period. The number of violations to become a SNC is dependant on the type of violation. These violations include: microbiological contaminants, chemical (inorganic and volatile organic) contaminants, radiological contaminants, high lead and copper levels, failure to provide consumer confidence reports, surface water treatment rule violations, and many more. A Pre-SNC is a public water system that is one violation away from being a SNC. An exception is a SNC that has a violation in the six months following its SNC determination and has not received a formal enforcement action, which is one of the following: a Bilateral Compliance Agreement, Final Findings and Orders, or referral to the Attorney General’s Office.

Click here to follow a SNC flow chart for a PWS.

Q. What are the Enforcement Actions DDAGW can take?

A. The Enforcement Committee [which may include all of the following: the Enforcement Unit, Division Chief, Ohio EPA legal staff, a representative from the Attorney General’s Office (AGO), and a representative from US EPA], reviews each referred system. Generally, the Enforcement Committee prefers to pursue the lowest level of enforcement. However, enforcement action determinations are done for each case. The lowest level of enforcement action is called a Bilateral Compliance Agreement (BCA). The BCA contains a schedule of what the PWS needs to do to return to compliance and is signed by the Division Chief. The PWS signs the document as record of agreement to comply.

The next level of Enforcement is Final Finding and Orders. Final Findings and Orders can be consensual or unilateral and may or may not contain a penalty. The Findings outline the history of violations incurred at the PWS and the Orders direct the PWS to attain compliance. Consensual Findings and Orders are proposed to the PWS and are negotiated to come to a mutual agreement. A schedule for returning to compliance is also discussed and determined. Final Findings and Orders are signed by Ohio EPA and the PWS.

The Ohio EPA can issue unilateral Findings and Orders with or without a penalty. Unilateral Orders are issued directly to the PWS with a schedule and are non negotiable.

The highest level of enforcement is referral to the AGO. If the PWS cannot settle with the AGO, the case goes to a hearing in the County Court of Common Pleas. Settlements prior to court hearings at the AGO are called Consent Orders. The Consent Orders are filed with the court often require additional penalties. Failure to comply with these orders is contempt. This incurs additional fines or possible jail time.

Q. How are Penalties Assessed?

A. The Division of Drinking and Ground Waters (DDAGW) has the authority to seek penalties up to $25,000 per day per violation as stated in the Ohio Revised Code (ORC) Section 6109.33. To develop reasonable and consistent penalties a civil penalty guideline has been established and consists of three major categories: economic benefit, recalcitrance and risk of harm, and enforcement costs. The economic benefit and enforcement costs are not typically included in DDAGW penalties in order to promote timely settlement. These components are used, however, when the case is referred to the AGO. The PWS is able to reduce the amount of the penalty if they implement a supplemental environmental project (SEP). A SEP is a project a PWS implements above and beyond our requirements. Some examples of these include: water-loss studies, tying into city water, pollution prevention activities, and many more. The cost(s) of the improvement(s) is deducted from the total penalty. Administrative penalties under OAC Rule 3745-81-04, may be assessed and collected by the Director from any person who owns or operates a public water system and violates Chapter 6109. of the Revised Code or the administrative rules adopted thereunder. These penalties are calculated by assigning the value of one thousand dollars for each violation of the PWS. This value is then multiplied by a decimal representing the size of the PWS.