Typically, environmental legislation may be passed in Ohio once every few years. In fact, most environmental regulatory reform is done in small doses during the budget bill process. In the last two weeks, Governor Kasich has signed into law three separate bills that including major environmental regulatory provisions.
- S.B. 315- Establishes new regulations for oil & gas drilling, including provisions regarding fracking;
- S.B. 294- Contained a series of legislative overhauls to laws administered by Ohio EPA including: wetlands, solid waste, and underground storage tanks
- H.B. 473- Implemented Ohio's Water Withdrawal Regulatory Program under the Great Lakes Compact
Below are some of the major highlights from each piece of legislation.
H.B. 473- Ohio's Implementation of the Great Lakes Compact
The Great Lakes Compact required each State to pass implementation legislation to set up regulations governing withdrawls and diversions from the Great Lakes. Under the Compact, the Great Lake States were given wide discretion for deciding when a permit would be needed and the criteria for issuance of a water withdrawal permit. Now that H.B. 473 has passed, for the first time Ohio, businesses may need to get a permit before withdrawing water from Lake Erie or its tributaries.
Last summer, Governor Kasich vetoed Ohio's first attempt at passage of the Compact implementation legislation- H.B. 231. The bill was sharply criticized as being too business friendly.
This time Governor Kasich signed the legislation after certain aspects of the water withdrawal permitting program were made more stringent. (See Prior Post) Here are the most notable changes from H.B. 231:
- Withdrawal Triggers- The thresholds for triggering a permit were significantly lowered. Any withdrawal of the following size will trigger a permit:
- 2.5 million gallons per day (MGD) from Lake Erie or a recognized navigation channel;
- 1 MGD from a river or ground water
- 100,000 gallons from designated high quality streams
- Adverse Impact- If you trigger a permit, ODNR can't grant a permit if it determines the withdrawal will have an "adverse impact" on Lake Erie. H.B. 231 defined adverse impact in the negative- any withdrawal from the Lake less than 90 mgd was presumed to cause no impacts. This proved highly controversial and was jettisoned in H.B. 473. Rather than try and define adverse impacts in the legislation, H.B. 473 simply defers to ODNR to define the term through rulemaking.
In one significant way H.B. 231 and H.B. 473 are very similar. Only impacts to Lake Erie are to be considered in determining whether a withdraw would have an adverse impact. Impacts to the receiving stream itself are not evaluated, except possibly with high quality streams. In the end, Ohio's program is still, in essence, a Lake Erie and not a stream protection program.
S.B. 294- Ohio EPA Omnibus Regulatory Reform Bill
S.B. 294 was dubbed the Ohio EPA regulatory reform bill by the Administration. While it does contain some significant changes to certain Ohio EPA programs, the regulatory reform could hardly be described as controversial.
Most of the changes tweak certain administrative aspects of Ohio EPA's programs. While it is true the legislation does not contain any major substantive regulatory reforms, there are some much needed reforms in the bill, including the following:
- OCAPP Confidentiality- The Office of Compliance Assistance and Pollution Prevention is housed within Ohio EPA. The Office serves as a free compliance assistance resource to businesses. One historical impediment to use of OCAPP has been related to confidentiality. Previously, Ohio law only protected as confidential inquiries related to air pollution compliance. S.B. 294 changes this and provides confidentiality protection to all inquiries made to OCAPP regardless of subject matter (hazardous waste, solid waste, wetland permitting, surface water, and drinking water).
- Underground Storage Tanks- S.B. 294 addresses a longstanding issue with regulatory overlap pertaining to clean up of underground storage tanks. Prior to the legislative changes, a developer or business wishing to clean up their property under Ohio EPA's Voluntary Action Program (VAP) had to first deal with any underground storage tanks regulated by BUSTR. Those portions of the property with BUSTR tanks had to be cleaned up first under BUSTR's clean up program before proceeding with the VAP. This double regulation made no practical sense since VAP standards were designed to address this type of contamination. S.B. 294 allows volunteers to address BUSTR USTs through the VAP thereby removing a significant hurdle that had delayed and increased costs at many brownfield and site clean ups.
- Wetland Mitigation- S.B. 294 provides Ohio EPA the authority to establish an "in-lieu fee" program for wetland mitigation. Instead of a developer needing to create wetlands on-site or buying credits at a wetland bank to offset its wetland impacts, the developer could write a check to pay for the necessary wetland mitigation. If the program is established it could significantly streamline the wetland permitting process.
S.B. 315- New Regulation for Oil & Gas Drilling including "Fracking"
While S.B. 315 was dubbed as an all encompassing energy bill, it is largely tilted toward one form of energy- natural gas. The most significant provisions in the bill place new regulation on the oil & gas industry, in particular "fracking."
For over a year, renewable energy companies and advocates feared Governor Kasich would do away with Ohio's fledgling renewable energy standards (RPS). For many, the good news regarding S.B. 315 is what the bill didn't do- overhaul Ohio's RPS. The bill did allow waste energy recovery systems to qualify for credits towards meeting Ohio's RPS, but the main structure of Ohio's RPS was left in tact.
With regard to oil & gas drilling, S.B. 315 did put in place major new regulations, including:
- New Oil & Gas Permit Requirements- The legislation requires more information to be submitted with permit applications. This includes: agreements with local governments regarding road maintenance, identification of the proposed source of surface or ground water, as well as requiring water well sampling in the neighboring area prior to drilling.
- Disclosure of Chemical Used in Drilling- Upon well completion, the well owner must supply information regarding the amount of products, fluids, and substances used to facilitate drilling or stimulate the well. However, the bill includes a broad trade secret provision that exempts covered chemicals or materials from the disclosure requirements.
- Insurance- Requires the oil and gas well owner to obtain liability insurance in an amount not less than $5 million dollars for bodily injury or property damage. The insurance policy must also include a "reasonable level" of coverage for environmental claims.