The Ohio EPA regulates construction sites by issuing NPDES permits that impose restrictions on the discharge of stormwater. Construction sites, however, have little incentive to follow these requirements. For many construction sites, it is more economical to be out of compliance and risk an unlikely fine than to comply with the permit. When these construction sites are out of compliance, stormwater runoff carries sediment into waterways and adversely affects water quality. In negligence torts, the Learned Hand Formula is used to determine what a reasonable person would do. The Learned Hand Formula, when applied to what an economically reasonable construction company would do, indicates that violating the NPDES permit is in a construction company's best economic interest. While probably not actually thinking through the application of the Learned Hand Formula, construction companies are reaching this same conclusion. Therefore, construction companies need stronger disincentives not to violate their permits. To achieve this, the Ohio EPA needs to be able to utilize non-monetary enforcement methods because the current enforcement of the general construction NPDES permit does not effectively encourage compliance. Part II of this article discusses the damage sediment inflicts on waterways and ecosystems. Part III provides an overview of the NPDES program, including examples of the typical violations that Ohio EPA auditors find on construction sites. Part IV reviews the US EPA's stormwater enforcement strategy. Part V shows the number of construction sites that are out of compliance with the NPDES permit and demonstrates why those construction sites do not have the incentive to comply. Part VI establishes that monetary penalties alone cannot be an effective deterrent to noncompliance. Part VII discusses several types of nonmonetary penalties, whether they are available to the U.S. EPA, Ohio EPA, or local governments, and whether those non-monetary penalties are likely to be an effective deterrent.
Note, An Environmental Law Even Judge Learned Hand Would Violate: Ohio EPA Needs Non-Monetary Penalties to Enforce Construction NPDES Permits, 60 Clev. St. L. Rev. 275 (2012)