Ohio Environmental Law Blog
Ohio EPA Attempts Second Effort to Develop Beneficial Use Rules
In June 2012, Ohio EPA issued an Early Stakeholder Outreach for Beneficial Use of Industrial Byproducts. This is the Agency's second attempt at developing a comprehensive regulatory scheme for reuse of industrial materials such as fly ash, bottom ash, foundry sand, slag and other materials.
From 1994 until the early 2000's, Ohio EPA regulated these materials under Policy 400.007 "Beneficial Use of Non-Toxic Bottom Ash, Fly Ash and Spent Foundry Sand, and Other Exempt Waste." The policy was revoked after legal challenge was raised to EPA's authority to regulate through policy. Since revocation of Policy 400.007, Ohio EPA has not had clear guidelines for reuse of these materials.
Revocation of the policy left a regulatory vacuum. Some industry representatives take the position that the industrial materials are unregulated because Ohio EPA has not established rules. Ohio EPA takes the legal position that this material is regulated as a waste under R.C. 6111. Ohio EPA asserts that companies need authorizations from the Division of Surface Water in order to be deemed protective of water resources.
Back in 2006, Ohio EPA first announced an effort to develop beneficial use rules. The Agency's 2006 effort provided highly controversial. After debating the issue for six years, the Agency is attempting a second run at rule development. Making matters worse, in recent years, Ohio EPA seems reluctant to issue authorizations for beneficial reuse without completion of its rulemaking effort.
Many Obstacles Remain to Ohio EPA's Development of Beneficial Reuse Rules
Policy 400.007 was very popular because of its flexibility and generous standards. In essence, any material that was below thirty times (30 x) drinking water standards could be reused without obtaining a permit from Ohio EPA. In addition, the agency required only limited sampling to verify material met applicable standards.
As part of the early stakeholder outreach, Ohio EPA released an three page concept paper which discussed the proposed structure of the rules. While Ohio EPA would allow pre-approved uses in some cases, the majority of beneficial use projects will need coverage under either a general or individual permit from Ohio EPA.
What is missing from Ohio EPA's conceptual proposal is any discussion of proposed standards or discussion of the potential scope of sampling that would be required. Back in 2006, the Agency stated it felt the 30 times drinking water standard was not protective. In subsequent draft proposals, Ohio EPA proposed standards orders of magnitude lower than the 30 x drinking water standards under Policy 400.07. The Agency also proposed more extensive sampling.
As demonstrated by the 2006 proposal, the three biggest hurdles the Agency faces to development of a successful beneficial rule are:
- Development of reasonable standards for "acceptable" levels of contamination in the material proposed for reuse:
- Pragmatic sampling requirements (i.e. number of samples and frequency of sampling)
- Overcoming industry objections that the rules expand Ohio EPA's regulatory authority beyond current requirements.
Historically, Ohio EPA has been unable to force through unpopular rules that weren't mandated by U.S. EPA. There is no such U.S. EPA mandate in play with regard to beneficial reuse. Unless Ohio EPA successfully engages with industry, it will likely be revisiting the issue again in another six years.
Tucker Ellis LLP
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