Guest Blog by FSELS Legal Intern Christina Pollonais: The Ohio Verified Complaint Process: An Easy, Cost-Effective Way to Seek Results

Have you ever been faced with a situation in which there was an alleged violation of law regarding air pollution, water pollution, solid waste, infectious waste, hazardous waste, construction and demolition debris, public water supply, or cessation of chemical operations? Or has there ever been a circumstance where you suspected that a company has failed to meet a requirement of a license, permit, variance or plan approval relating to any of the previously listed violations?

If so, then most likely you have called your local or state authorities to report. However, waiting on the agency to respond or to take action, if ever, can be a frustrating process that citizens often have little control over. Well, Ohio law provides a way in which you can ease this frustration. You can file a verified complaint directly to the Ohio EPA. This process provides for formal written and appealable agency response to your complaint. If you file proper a verified complaint to the Ohio EPA, they have a duty to respond and act on this complaint within a period of 180 days. By taking advantage of this unique process, you can better assure answers to the numerous questions or problems you may be facing within your local community or home when an environmental violation occurs.

Ohio’s rules for filing verified complaints can be found under Ohio Revised Code §3745.08. Once an individual demonstrates that they have been adversely affected by an environmental issue, they can file a verified complaint. If the director determines a violation is evident from the verified complaint that you have filed, the director may issue an order to the violator to correct the problem or request that the Attorney General's Office begin legal proceedings.

It is important to note that if for any reason the verified complaint is reviewed and dismissed, the dismissal is considered a final decision of the Director of the Ohio Environmental Protection Agency (EPA). Any action taken by the Director in relationship to a verified complaint is considered appealable to the Ohio Environmental Review Appeals Commission (ERAC). Specifically, if the complainant is adversely affected by the decision, he or she can file a Notice of Appeal with ERAC in order to appeal a final action if the Ohio EPA proceeding or decision was arbitrary, capricious or unlawful.

There are four issues that a verified complaint must fully address to ensure that a verified complaint is filed properly. These include:

1)         The person submitting the complaint must demonstrate “standing”

a.         To address standing the complainant must: identify the complainant, and how he/she is personally affected by the violation that has occurred, will occur or is occurring;

b.         Also, the complainant must describe his or her knowledge of the violation.

                                                                                             i.         Standing cannot be based upon something the complainant simply read.

2)        The complainant must provide a detailed background of the situation

a.         The complainant must give as many detailed facts as possible. This is because often times a verified complaint can be dismissed where the Ohio EPA cannot gather sufficient information about the violation. Photographic evidence can be very useful.

3)         The complainant must provide a list of the alleged violations citing the specific laws or regulations that were disregarded.

a.         It may be helpful to have attorney review your complaint prior to submitting it. This way you can identify as many laws and regulations that were believed to be violated, and the Ohio EPA will have a better idea of what the specific problem is.

4)        The complainant must provide verification in the form of a sworn and notarized affidavit by the complainant, or his/her agent or attorney.

a.         To notarize prevents fraud and ensures the appropriate people execute documents freely. Institutions rely upon notaries so they may have full faith in important documents. These materials serve as a means of verifying the transaction so others may rely upon it. When you see a notary’s seal on a document, it means a trusted notary public represents that it is authentic and properly executed.

b.         The verified complaint must be in writing and include the words “Verified Complaint” at     the top.

Be sure to review your verified complaint several times before submitting it! It is imperative to understand that a verified complaint may be of ease and cost efficient, BUT it can be easily dismissed or overlooked if it isn’t executed properly. The Director of the Ohio EPA makes the decision to either dismiss the complaint or take action.   A properly executed verified complaint can be a powerful tool for landowners who suspect environmental violations have occurred on their property or in their community.