Interim U.S. EPA Enforcement Guidance- Defer to the States

On January 22, 2018, U.S. EPA's Assistant Administrator issued a memorandum to all U.S. EPA Regional Administrators that contained interim guidance on enforcement of environmental violations by State EPAs and the federal EPA.  The interim guidance is a significant shift away from the traditional federal/state balance on enforcement giving much greater leeway to the States. 

U.S. EPA has always been active in enforcement in states, even states that have delegated programs.  EPA traditionally has set its own enforcement priorities, performed its own inspections and proceeded with enforcement when it finds violations.  While it may inform the states of its activities, it generally would not defer to the states once it initiates enforcement. 

Often the federal EPA can be more stringent than the states in seeking corrective measures and/or civil penalties.  States are viewed as being more reasonable and open to considering practical compliance issues and costs of compliance.

The interim guidance signifies a shift away from this traditional approach.  Specifically, the memorandum makes the following two major statements:

  • With respect to inspections and enforcement, the EPA will generally defer to authorized States as the primary day-to-day implementer of their authorized/delegated programs. except in specific situations.
  • Where the EPA identifies violations at a facility, but the State requests that it take the lead for
    remedying the violations, the Region should defer to the State except where the EPA believes that some EPA involvement is warranted (as described in paragraph 2, above)

These statements are signify a pretty dramatic shift towards the states in controlling enforcement process within its borders.  In particular, the idea that if the EPA identifies violations and informs the states, the state can request to take the lead.  In this instance, the guidance makes clear the EPA should defer to the states except in special circumstances that are outlined in the memorandum.

The memorandum is just another indication that the Trump Administration wants to shift primary regulatory and enforcement authority to the states.  


State EPA Federal Permitting and Preemption by FERC

According to a Forbes article in 2016, the Federal Energy Regulatory Commission (FERC) approved almost 40 major pipeline projects across the country, covering 1,200 miles, over 14 Bcf/d of new capacity (total national consumption is around 75 Bcf/d), and over $10 billion in new investment.  Most of these new pipelines are being built in the eastern third of the U.S.  There are three major pipelines currently being constructed or will soon start construction in Ohio.

With all this new construction, a key issue is the interplay between regulation under the Natural Gas Act (NGA) administered by the FERC and State EPA environmental permitting.  In order to expedite construction and avoid duplication in regulation, the NGA preempts much of the State regulatory oversight.  

On August 18th the Federal Court in the 2nd Circuit issued a significant decision regarding state environmental permitting authority and preemption.  The case relates to the State of New York’s permitting authority under the Clean Water Act (CWA).

In Constitution Pipeline Company v. New York State Department of Environmental Conservation, the New York State Department of Environmental Conservation (NYSDEC) denied a stream/wetland permit requested by Constitution Pipeline to construct a pipeline that crossed through New York.  The dispute involved whether less water quality impacts were feasible by avoiding open cuts through streams and wetlands in favor of horizontal directional drilling which goes underneath these resources.  

During the FERC review, NYSDEC submitted comments requesting more HDDs and Constitution Pipeline submitted comments in response favoring the current plans.  FERC agreed with Constitution Pipeline and issued a certificate for the project pursuant to the NGA.  NYSDEC ended up denying the CWA 401 permit on the grounds more HDDs would result in less state water quality impacts.  Constitution Pipeline challenged the denial of the 401 in federal court arguing the NGA preempted the State since the FERC had already determined as part of its review the more HDDs were not feasible. 

The Court noted that the NGA has specific carve outs from preemption for the Clean Water Act.  The Court held that states retain their authority under the CWA and NYSDEC was within its right to deny the 401 permit.   Constitution Pipeline is looking to appeal arguing this gives the State’s veto authority over FERCs decision to approve pipeline routes.

Budget Bill Fix to VAP Automatic Tax Exemption

This blog has previously detailed some of the ambiguity of the Voluntary Action Program ten year automatic tax abatement provisions set forth in Revised Code 5709.87. (See prior posts here and here). Three primary issues caused significant problems for developers attempting to leverage the VAP automatic tax abatement:
  1. How to value the abatement- The prior law was ambiguous as to how to value the abatement;
  2. Timing- The timing for locking in the tax abatement was difficult to navigate causing some developers to lose out on millions of dollars in tax abatements; and
  3. Exclusion for New Improvements and Structures- Until an Ohio Supreme Court ruling, the law was somewhat unclear as to whether the abatement covered the land and only existing buildings.  The Ohio Supreme Court clarified that new improvements and buildings were not covered by the automatic tax abatement. 

House Bill 463 included language to fix the first two issues. (H.B. 463 changes to R.C. 5709.87)

How to Value the Abatement

The act specifies that the beginning point for measuring the increase in value subject to abatement is the beginning of the year in which environmental remedial activities began.  Under the prior law, the value was based  upon the date of issuance of the tax abatement order by the Tax Commissioner.  At the start of a brownfield project, it wasn't certain which year would be used as the base value for determining the exemption.

The changes enacted through House Bill 463 specify that the exemption is to measured using the year remedial activities were initiated as the base year.  Each of the ten years during which the property is exempted, any increase in value from the base year is exempted from taxes.


The other issue with the prior law related to timing.  The date of the exemption and calculation of the value of exemption was not tied to a specific year.  Rather, the exemption was tied to the tax list of the year prior to when the Tax Commissioner issued their abatement order.  The fact the value "floated" with the date the Tax Commissioner issued their order meant it was difficult to secure the full value of abatement. 

For example, assume remediation commenced in 2012 and the property was valued a $1 million. The VAP Covenant-Not-to-Sue (CNS) is issued in 2015.  By 2015, some improvements were completed and the property doubled in value to $2 million.  The Tax Commissioner issues the abatement order in 2016, which means the 2015 tax value (not the 2012 value) would be used to determine the value of the abatement.  This means the developer would lose out the abatement for the increase in taxes associated with property values increasing between 2012 and 2015.

This created challenges for developers who had to time completion of improvements with completion of the VAP CNS and Tax Commissioner Order.  Some developers didn't plan correctly or were confused by the law and lost out on millions in abatement. 

For instance, once Cincinnati company lost out on a potential tax exemption on a $4 million dollar increase in the value of the property simply because the paperwork was not issued by the government officials in a timely fashion.  see, Hamilton Brownfields Redevelopment LLC v. Zaino, Tax Commissioner of Ohio.

Surge in Environmental Citizen Suits Anticipated under Trump Administration

The Trump Administration has made rollback of environmental regulations a top priority.  Through the use of Executive Orders and the Congressional Review Act(CRA), the Administration has already undone significant Obama era regulations, including the Waters of the U.S. Rule (WOTUS) and the Clean Power Plan.

The Trump Administration has also proposed significant budget cuts to EPA which could result in the reduction of 31% in federal funds to EPA and result in layoffs of 3,200 EPA workers. Budget cuts to State EPAs through reduction of state categorical grants have also been proposed. These cuts to federal funds could lead to reduced staff at State EPAs across the country.  

While the regulatory rollback and reduction in EPA staffs move forward, donations to major environmental groups around the country have surged since the election.  As reported in the Washington Times, the Sierra Club has reported an increase of 700% in donations since the election.  Across the board, green groups, like the NRDC are reporting a surge in donations.

Putting the New Money to Work

Whether it is the EPA budget reductions or EPA's exercising enforcement discretion, most anticipate EPA federal environmental enforcement will be on the decline under the Trump Administration. While EPA may not bring suits, many long time environmental legal practitioners anticipate a surge in green groups use of citizen suit provisions to fill the void on enforcement.  

Almost all of the major federal environmental statutes include a "citizen suit" provision that allows individuals and groups harmed by environmental violations to step in the shoes of EPA and sue companies to address violations and pay civil penalties.  Such provisions are included in the Clean Air Act, Resource Conservation and Recovery Act (RCRA) and the Clean Water Act.  Why do many anticipate a surge in such suits?

  • Justify Donations- Green groups will show that increased donations are being put to work by taking enforcement to fill the void left by a less active EPA;
  • Easy Access to Monitoring Data- Permit compliance and monitoring data is readily accessible online through EPA databases like ECHO or state database counterparts.  This makes it increasingly easier for green groups to identify violations that have gone unaddressed;
  • Civil Penalties-  The citizen suit provisions allow groups to assess civil penalties.  Under law, any civil penalties must go to the U.S. Treasury.  However, groups have used creative approaches like Supplemental Environmental Projects (SEPs) to direct funds to environmental improvement projects or funding local groups;
  • Attorney Fees- Perhaps the biggest incentive to utilize citizen suit provisions is the attorney fee provision.  Courts have established a low threshold for recovery of fees.  This makes it easy for groups to recover their investigatory and legal expenses in pursuing actions; and
  • Lack of Availability of the Diligent Prosecution Defense-  Not only will reductions in EPA staff and resources lead to less enforcement, it also makes it less likely that companies will be able to secure "friendly" administrative or judicial enforcement orders used to block citizen suits during notice periods.  The 60 or 90 day notice periods are meant to give time to allow for state or federal regulators to take appropriate action to resolve violations after receiving notice of a potential citizen suit (i.e. "diligent prosecution" defense).

"New" Citizen Suit Legal Theories

In is not just an anticipated increase in the number of citizen suit actions brought, most see an expansion of the types of harms such suits are used to address.  Across the country, green groups have already utilized long-standing citizen suit provisions to bring creative new causes of action, including:

  • Tennessee Riverkeeper, Inc. v 3M Company- Environmental group have brought a RCRA imminent and substantial endangerment claim against 3M for historical releases of teflon related substances (PFOA/PFOS) which are not currently regulated by EPA.  The Court denied a motion to dismiss the action;
  • Sierra Club v. Chesapeake Operating LLC- Brought RCRA imminent and substantial endangerment claim for earthquakes in Oklahoma allegedly caused by disposal of water from oil and gas extraction;
  • Conservation Law Foundation v. ExxonMobil Corp.-  Alleging imminent and substantial endangerment under RCRA due to climate change; and
  • Upstate Forever and Savannah Riverkeeper v. Kinder Morgan-  Claims brought under the Clean Water Act alleging passive migration of contaminated groundwater to surface water from an oil spill was a violation of the Clean Water Act.  The case was dismissed after the Judge ruled plaintiffs failed to allege facts demonstrating migration of groundwater constituted a "point source" under the Clean Water Act.

Suing EPA to Compel Non-Discretionary Acts

Green groups have always sued EPA to compel the Agency to promulgate regulations or take action that are required under environmental statutes. The Administrative Procedure Act (APA) allows green groups to bring suit to compel an agency action unlawfully withheld or unreasonably delayed. See, 5 U.S.C. Section 706(1).  

Because the Trump Administration will be less inclined to promulgate new environmental regulations, there will almost certainly be a major increase in suits against EPA to compel action. Unlike under the Obama Administration, which resolved many of these suits using consent orders, the Trump Administration will be far less inclined to settle.  This will inevitably lead to long and protracted litigation.  A recent article in the Legal Intelligencer by Kenneth J. Warren discusses the complications for Courts facing these suits to compel EPA to perform non-discretionary duites.

Ohio Senators Oppose Closing Midwest Regional Office of U.S. EPA

In the past several months, the Trump Administration has targeted U.S. EPA for major regulatory reform, massive budget cuts and a roll-back of Obama era regulations.  No Administration since the enactment of the landmark environmental statutes has gone as as far as the Trump Administration in attempting to change the landscape of environmental regulation.

After signing multiple executive orders and proposing a huge EPA budget cut, rumors are swirling as to what may be next. This creates a massive amount of regulatory uncertainty which is something businesses always say they hate.  This uncertainty extends to what the size and structure of what U.S. EPA will look like under the Trump Administration, including which Regional Offices will remain if the budget cuts and staff layoffs are implemented.  

Recently, one rumor causing significant uncertainty is whether EPA's Region V Office, located in Chicago, will be eliminated.  Region V covers Ohio, Illinois, Michigan, Wisconsin, Indiana and Minnesota.   

Both Ohio Senators along with ten others in the Great Lakes congressional delegation wrote to EPA Administrator Pruitt strongly opposing closing of the Region V Office.  This from the Plain Dealer Article discussing the letter:

Recent reports that the U.S. EPA's Region 5 office, which is based in Chicago and includes Ohio among other Great Lake states, will be shut down has alarmed members of Ohio's Congressional delegation and other representatives of the five states of the Great Lakes region.

On Tuesday, Senator Rob Portman, R-Ohio, joined Senator Sherrod Brown, D-Ohio, and a coalition of Democratic senators and house members in delivering a letter to EPA Director Scott Pruitt expressing their concern over the proposal, and demanding he not relocate Region 5's 1,500 employees to the Region 7 office in Lenexa, Kansas.

"Closing EPA's Region 5 office would have a devastating effect on those who call Illinois, Michigan, Wisconsin, Indiana, Minnesota and Ohio home," the letter reads. "Therefore, we urge you to protect the environmental health and well-being of our states by keeping Region 5 intact and fully supporting its critical mission."

The focus of the letter is largely on consequences to public health and the environment, including the Great Lakes.  However, it is also worth noting the negative economic impacts elimination of the Regional Office would have on a region President Trump has stated he wants to help.

While delegated State EPAs handle most of the permitting for new factories or plant expansions, EPA plays a critical role in reviewing draft permits.  Until such permits are issued construction is limited and the new operations cannot commence.  Region V staff also address a myriad of issues that directly impact economic growth.  Without adequate staff permitting and decision making will slow.

The Midwest still has significant manufacturing.  President Trumps says he wants to keep or bring back U.S. manufacturing jobs.  Having adequate personnel to process permits and address other regulatory issues that impact economic development are critical to that effort.   

Let's hope this is just another rumor.  However, these types of rumors are not helpful due to the uncertainty they create.  For example, if a business is currently thinking of expanding or locating in the Midwest, the inability to secure timely permits or address other regulatory decisions that impact economic growth could cause businesses to rethink locating in the region.

Slow Pace of Appointments and Restrictions on Decision Making at EPA

The Trump Administration has been slow to announce appointments to key positions within U.S. EPA. Administrator Scott Pruitt is in many ways  is operating on a island within the Agency. As reported in the New York Times, the Administration has not nominated any of the dozen key EPA senior positions:

At the Environmental Protection Agency, Scott Pruitt, the administrator, was confirmed by the Senate last month, and he has hired a chief of staff and a few others. But the White House has yet to nominate anyone to fill another dozen key jobs requiring Senate confirmation, like the assistant administrators who oversee clean air and water regulation

At the same time Administrator Pruitt is restricting decision making authority throughout the ten Regional Offices.  As first noted on the blog Law and the Environment, the following memorandum was recently sent to Regional Offices:

Because the Presidentially-appointed Assistant Administrators and Regional Administrators have yet to assume their duties, for the next 30 days, the Administrator wishes to retain approval authority for Agency actions having significant regulatory and enforcement effect. The Administrator will rely on the Acting RA’s and AA’s to identify and send upward any proposed decisions or final agency actions for the Administrator’s review which, in the judgement of the Acting RA’s and AA’s would limit the flexibility of the States, limit energy resource use, impose significant costs on industry or commerce, or otherwise likely result in significant public attention on the proposed decisions or final agency actions (emphasis added)

The underlined language provides a broad description of the types of actions the Administrator expects to be sent for his review and approval.  This will certainly cause a slow down on decision making at the Agency.

These developments could have both good and bad implications for businesses.  It is likely the rulemaking and enforcement will be slowed.  However, for businesses working through permitting, compliance issues and settlement of enforcement actions, these developments could have the negative effective of slowing the pace of reaching a final resolution or obtaining a necessary permit. 

Federal EPA Budget Doesn't Reflect Stated Priorities

This week, President Trump released his Administration's first federal budget dubbed the "America First- A Blueprint to Make America Great Again."  Under the budget proposal, U.S. EPA current budget would be cut by 31% which amounts to a $2.6 billion dollar reduction.  

This leaves the Agency with $5.7 billion to run its programs which is the lowest amount funding provided U.S. EPA since 1990.  As reported by POLITICO, the proposed budget cuts would force U.S. EPA to layoff 3,200 workers. 

Since 1990, environmental regulation and science has advanced significantly.  As a result, numerous new programs have been added, including: climate change, protection of the Great Lakes, improving air and water quality standards.  

In the early years of environmental regulation the "easy" pollution reductions were achieved first. Additional reductions become much more challenging.  As a result, environmental permitting (NPDES, Title V, New Source Review) has become far more complex.

A drastically reduced workforce at the state and federal level will make implementation of these programs impossible and threaten to compromise the progress made over the last forty years.  The improvements to air and water quality since environmental regulations were implemented in the U.S. are well documented:

  • From 1970 to 2015, aggregate national emissions of the six common pollutants alone dropped an average of 70 percent while gross domestic product grew by 246 percent. This progress reflects efforts by state, local and tribal governments; EPA; private sector companies; environmental groups and others.
  • In the forty years since passage of the Clean Water Act there has been dramatic improvement to U.S. waterways:
    • Only about a third of U.S. water was safe for swimming or fishing. Now, an estimated 65% pass the fishable and swimmable test;
    • Before passage of the Clean Water Act, the country was losing up to 500,000 acres of wetlands per year. With wetland regulations, average wetland losses have fallen below 60,000 acres per year; and
    • Before the Clean Water Act and Safe Drinking Water Act, 30% of tap water samples exceeded federal limits for certain chemicals. According to a 2012 EPA report, 90.7% of U.S. community water systems met “all applicable health-based standards” in 2011.

The President's EPA budget blueprint has a stated goal of shifting authority back to the states for primary implementation of the federal environmental regulations.  The Administration cites to waste as a result of duplication between state EPA's and U.S. EPA.  Here are some of the statements included in the budget blueprint regarding prioritizing delegation of authority and responsibility to the states:

  • Avoids duplication by concentrating EPA’s enforcement of environmental protection violations on programs that are not delegated to States, while providing oversight to maintain consistency and assistance across State, local, and tribal programs. This reduces EPA’s Office of Enforcement
    and Compliance Assurance budget to $419 million, which is $129 million below the 2017 annualized CR level;
  • Supports Categorical Grants with $597 million, a $482 million reduction below 2017 annualized CR levels. These lower levels are in line with the broader strategy of streamlining environmental protection. This funding level eliminates or substantially reduces Federal investment in State environmental activities that go beyond EPA’s statutory requirements.

State Categorical Grants fund core programs, such as implementation of the Clean Air Act, Clean Water Act, hazardous waste regulation (RCRA) and the Safe Drinking Water Act.  The budget blue print calls for a 45% reduction in support to the states to run these programs.  

A recent article in the Columbus Dispatch discussed the potential impacts on Ohio EPA.  As noted in the article, federal funds make up a significant portion of Ohio EPA's operating budget.

After fees for permits, inspections and licenses, federal funding is the Ohio EPA's second-largest source of income, accounting for about $40 million of its $200 million budget.

In 2016, the U.S. EPA awarded its Ohio counterpart nearly $37 million for programs that maintain Superfund sites, restore wetlands, protect the Great Lakes and manage hazardous waste. 

The Administration is missing an opportunity to be more cost effective in implementation of environmental regulation.  The Administration is also losing a significant opportunity to be true to principles of federalism by entrusting the states with greater autonomy with regard to implementation of environmental program.  

If the Administration truly wants to shift power more toward the states, then drastic cuts to federal funds that allow states to implement those federal programs undermines that important policy goal. The danger exists that without adequate funding states cannot meet the increased demands.  In the years to follow, the states inability to be to handle the increased burden will be used by those who champion increased federal oversight to justify taking authority away from the states.  

Thirty EPA Rules Frozen by New Executive Action

On January 20th, Reince Preibus, President Trumps Chief of Staff, issued a broad regulatory freeze memorandum entitled “Regulatory Freeze Pending Review” halting federal rules that had not yet become effective. All rules covered by the memorandum are suspended for 60 days (March 21, 2017). On January 26, 2017, EPA published a list of 30 rules subject to the freeze.

The vast majority of EPA rules temporarily frozen are actually rules that would lessen regulatory burdens or approve plans for meeting existing standards.  These include: a grant of primacy to Kentucky's Underground Injection Control Program, numerous air plans for compliance with ozone or PM 2.5 air quality standards and attainment designations for areas that now meet air quality standards.

The most significant rule affected by the freeze include:

  • Amendments to EPA's Risk Management Program (RMP)
  • Renewable Fuel Standard's renewable volume obligations
  • Pesticides; Certification of Pesticide Applicators

EPA's recent amendments to the Risk Management Plan (RMP) Rule titled "Accidental Release Prevention Requirements:  Risk Management Programs Under the Clean Air Act."  The RMP amendments, which will be discussed in a later post, increase emergency preparedness requirements at some 12,500 facilities that handle chemicals or hazardous substances.

Another rule impacted is the Renewable Fuel Standard's renewable volume obligations.  As discussed in a recent Bloomberg article, the biofuel industry struck a major victory when the Obama Administration raised 2017 quotas- Renewable Volume Obligations (RVOS)- to new record levels. As discussed in the Bloomberg article, the freeze triggered a sell-off of biofuel credits.

Renewable Identification Numbers (RINs), tracking compliance with 2017 ethanol consumption targets, plummeted 23 percent to 46 cents a piece on Wednesday, the lowest since November 2015, broker data compiled by Bloomberg show.  The credits are attached to each gallon of biofuel.  Once a refiner blends ethanol or biodiesel into petroleum, they can keep the credit to show adherence to the program or trade it to another party.

Finally, the final rule Pesticides; Certification of Pesticide Applicators was also frozen.  EPA states the purpose of the rule was to ensure that persons using certain types of pesticides- Restricted Use Pesticides (RUPs)- were competent to use the product.  The rule creates new certification requirements for persons who want to use RUPs.  According to EPA, the most acutely toxic pesticides or those needing to be applied with special care are classified as RUPs.


While the freeze did have a major impact on the RMP rules, pesticide certification and biofuels, the vast majority or rules affected are likely beneficial.  These majority rules demonstrate compliance with federal air quality standards, allows states to take over implementation of regulatory programs or  approves air quality compliance plans developed by States.

After the temporary freeze most if not all of the rules will likely move forward.  The most likely rules that could be targeted by future Congressional action include the RMP amendments and raise in biofuel volume requirements. 

How Quickly Can President Trump Unwind Environmental Regulations?

President Elect Trump has vowed to unwind regulations which he believes are dramatically constraining economic growth.  The Obama Administration's environmental regulations are specifically being targeted, including:  the Clean Power Plan, the Waters of the U.S. Rule and ozone regulations. His transition web-page even touts that for every one new regulation enacted his Administration will remove two old regulations.  

Billionaire investor Carl Ichan was given the position of Special Adviser on Regulatory Issues.  As reported on CNBC, Mr. Ichan said this about government regulation when his new position was announced:

"Under President Obama, America's business owners have been crippled by over $1 trillion in new regulations....It's time to break free of excessive regulation and let our entrepreneurs do what they do best: create jobs and support communities."

But just how quickly can the Trump Administration unwind environmental regulations?  What tools does the Administration have at its disposal to reduce or eliminate environmental regulation?

Federal Rulemaking Process

The rulemaking procedures for federal agencies, including U.S. EPA, are governed by the Administrative Procedures Act (APA).  While the APA imposes a formal process for adoption of new rules that naturally slows the pace of federal rulemaking, it also imposes restrictions on the ability to either remove existing regulations as well as stop regulations once they are in process.

The APA (5 U.S.C. Section 553) requires a four step rulemaking process:

  1. Issue a notice of proposed rulemaking;
  2. Receiving comments on the proposed rule;
  3. Issue a final rule; and
  4. Setting an effective date at least 30 days after publication of the final rule n the Federal Register.

Once a rule has completed this four step process, it becomes much more difficult to remove or prevent the rule from going into effect.  Below are some of the administrative, legislative and legal strategies the Trump Administration may employ to reduce and/or eliminate environmental regulation.

Executive Order to Stop Regulations in Process

On the first day of office, President Trump can have a memorandum issued directing all federal agencies, including the U.S. EPA, to freeze current rule making efforts.  Similar memorandums were issued on the first day by Bush and the Obama Administrations.  But the APA has limits on the authority to derail current rulemaking efforts.

A similar memorandum was issued on January 20, 2001, by Andrew Card, President Bush's Chief of Staff.  See, 66 Fed. Reg. 7702 (Jan. 24, 2001) The memo directed executive agencies to withdraw rules not yet published and to postpone the effective dates of public regulations. However, prior Court precedent forced agencies to go through proper APA procedures prior to withdrawing or delaying rules. 

In Natural Resources Defense Council, Inc. v. EPA, 683 F.3d 752 (3d Cir. 1982) the Court specifically addressed whether indefinite postponement of an EPA rule would violate the APA.  At issue was an EPA rule that had completed the four-step APA process with an effective date.  An Executive Order was issued to suspend the effective date of certain rules to reconsider the costs and benefits of the new rule.  The Court held that such a postponement was tantamount to rulemaking itself and the four step APA process would need to be completed to delay the effective date of the rule.

A GAO study showed that the Card memorandum resulted in the delay of the effective date of 90 rules and 15 rules still had not gone effective after one year from the date of issuance of the memorandum.  See, U.S. General Accounting Office, GAO-02-370R, Feb. 15, 2002.

While the Trump Administration can delay rules in process, past precedent shows that executive authority to stop a rule in process is does have constraints.

Slow the Pace of New EPA Regulations

The Trump Administration can also direct U.S. EPA to be cautious in adopting any new regulations. Certainly the new Administration can reduce the number of newly adopted regulations.  A similar action was taken by President Reagan through his Executive Order 12291.  The Order enacted on February 17, 1981, required all agencies perform a "Regulatory Impact Analysis" to determine if the "potential benefits to society for the regulation outweigh the potential costs to society" and the rule with the "least net cost to society" shall be enacted.

President Reagan order did reduce the number of new regulations adopted during his Presidency. However, such an Executive Order cannot prevent all new rulemaking, in particular with regard to U.S. EPA that is statutorily required to adopt certain regulations.

In fact, environmental groups often sue U.S. EPA to force adoption of new regulations.  Such suits were common during the Bush Administration.  Environmental statutes, such as the Clean Air Act and Clean Water Act, contain citizen suit provisions that authorize third parties to compel an agency to perform a mandatory act under those statutes.  See, Clean Air Act, 42 U.S.C. Section 7604(a)(2) and Clean Water Act, 33 U.S.C. Section 1365(a)(2).

However, litigation takes time.  Even if Courts agree and order the U.S. EPA to adopt statutorily mandated regulations, the Trump Administration will have the power to slow pace of newly adopted EPA regulations.

Legislative Options

The Congressional Review Act (CRA- 5 U.S.C. Section 801-808) requires federal agencies to submit rules to Congress for review.  Under the CRA, Congress has the ability to revoke rules through a special joint resolution during the 60 day period following the rules submission to Congress.

While the CRA could be used to revoke rules enacted at the end of the Obama Administration, the process to adopt a special joint resolution is required for each rule to be rescinded.  Therefore, the process is time consuming.  

As discussed in Forbes, another option is to pass legislation such as the RED Tap Act (S. 1944), which would require elimination of one rule for every new rule enacted.  

Current Litigation Involving Obama Administration EPA Rules

Challenges to two of the Obama Administration's signature environmental rules- the Clean Power Plan and the Waters of U.S..- are still pending in the Courts.  The Trump Administration could simply not put on a strong defense to rules currently being challenged.  If the Court invalidates a rule, then the Trump Administration could simply choose not to enact the rule.

Authority to Repeal Existing EPA Regulations

While the ability to delay or revoke rules in process is important, what authority does the Administration have to revoke rules that are currently in place.  Previous Administrations have learned, typically through the courts, that Presidential powers to revoke existing rules is limited.  An existing regulation can only be amended or repealed if the four step APA rulemaking process is followed.  Furthermore, the APA requires the Administration to not act "arbitrary" or "capricious" in revoking or amending a rule.  In other words, the Agency must justify its change in position.  See, FCC V. Fox Television Stations, Inc., 556 U.S. 502 (2009).

A good example of the limits on the ability to revoke prior enacted rules is the Tongass National forest exemption to the U.S. Department of Agriculture's "Roadless Rule" which limited road construction and timber harvesting in national forests.  The Roadless Rule was promulgated under President Clinton.  President Bush created an exemption to the rule that was challenged in Court as arbitrary and capricious under the APA.  After years' of litigation, the Ninth Circuit Court of Appeal overturned the exemption stating the Agency provided insufficient justification for its change in policy.  See, Organized Village of Kake v. USDA, 795 F.3d 956 (9th Cir. 2015)


Clearly, the Trump Administration can slow down the regulatory rulemaking process.  It can also choose not to defend rules currently being challenged in the Courts.  However, under the APA, the Administration cannot simply revoke existing rules without sufficient technical and legal justification.  

Two Trump Administration Environmental Priorities to Help the "Rust Belt"

There is a lot of hyperbole regarding President-Elect Trump's potential environmental agenda. During the campaign there was also a lot made about issues of employment and opportunity in the "Rust Belt" (a term I personally do no like).  Here are two suggestions of how the incoming Trump Administration could bring greater opportunity to the Rust Belt without controversial roll backs of environmental standards.   

  1. Bring Logic to Air Quality Standards and Regulations
  2. Moonshot on Brownfield Redevelopment

Bring Logic to Air Quality Standards and Regulations 

Midwestern states with large populations and a heavy manufacturing base are hit particularly hard by tightening air quality standards for ozone and small particulate matter (p.m. 2.5).  On October 1, 2015, EPA strengthened the National Ambient Air Quality Standards (NAAQS) for ground-level ozone to 70 parts per billion (ppb).  EPA will designate areas in late 2017 based on monitoring data as to whether they meet the ozone standard ("Attainment Areas") or do not meet the standard ("Non-Attainment Areas"). States will have until at least 2020 to achieve compliance with the revised standards. 

As the adjacent map demonstrates, Wisconsin, Michigan, Ohio and Pennsylvania (all key states to Trump's victory) will have significant portions of the state designated as non-attainment areas.  The designations will result in more regulation and restrictions on economic growth.

The good news is that U.S. EPA projects that most areas will be able to reach attainment of the new standards as a result of already promulgated federal regulations for gasoline, autos, power plants, and other sources of emissions. U.S. EPA projects that these already promulgated regulations will bring all but 14 of the 241 counties that currently don't meet the 70 ppb ozone standard into attainment.  However, the bad news is that these reductions will not be achieved until 2025, five years past the ozone deadline.  Furthermore, some Members of Congress are trying to block the federal regulations.

As discussed in a recent Congressional Research Service report on the new ozone standard, some while Members in Congress have objected to the federal standards for motor vehicles, fuels, power plants, and other sources.  However, the net effect of repealing them would be to shift the burden of attaining the ozone NAAQS more squarely in the direction of state and local governments. As detailed in prior posts (here and here), the states have very little ability to improve air quality through state specific regulations under required emission reduction plans (State Implementation Plans- SIPs) to meet the NAAQS.  The federal regulations are far more cost effective.

It's not just new regulations that will hamper economic growth in non-attainment areas, it is also mandated restrictions on economic growth.  Under the Clear Air Act, businesses looking to expand or relocate must pay for more costly emission controls in non-attainment areas.  Also, in non-attainment areas any increase in air emissions associated with a business expansion must be offset by reductions from existing businesses before a permit can be issued that allows the expansion to go forward (i.e. "Offsets").  These requirements push businesses to avoid non-attainment areas reducing opportunities for economic expansion.  

A Trump Administration could bring more logic to this regulatory mish mash by resisting calls to roll back the more cost effective federal regulations and by adjusting attainment deadlines to give states more time to take full advantage of federal regulations already on the books. Such actions would also avoid promulgation of costly new local air regulations that will largely do very little to improve air quality.  

Moonshot on Brownfield Redevelopment

A major focus during the campaign was how to improve our urban centers- finding ways to attract development and jobs to our neglected cities.  A highly effective means of giving a boost to our inner cities would be to energize U.S. EPA's brownfield program as well as other brownfield incentives. 

As detailed in a four part series on this blog, brownfields lead to significant decay, social injustice and loss of opportunity (i.e. jobs).  The cost for businesses to expand in our urban centers is often complicated by the cost to cleanup pre-existing contamination.  Those costs are avoided by moving out of the City and developing on greenfields instead.

While brownfield programs have been successful, they have been wholly inadequate to make a significant difference.  If part of the Trump Administration's massive infrastructure program was directed toward brownfield redevelopment, this could be a major shot in the arm promoting capital investment, cleaning up sites that pose public health issues and creating more jobs for those living in the inner city.  

First 100 Days- Repeal of the Clean Water Rule and Clean Power Plan

In a major upset, Donald Trump wins the Presidency last night.  In less than twenty-four hours after the official concession by Secretary Clinton, people are scrambling to figure out what a Trump Presidency really means.  Because he was purposefully silent on specifics during the General Election, many are left this morning "reading the tea leaves" to figure out what the future might hold. It is no different when it comes to the future of the EPA and environmental regulations.

Clearly, President-Elect Trump intends to reduce environmental regulation.  Just how far he plans on going has yet to be seen.  However, two of the most significant EPA regulatory actions under the Obama Administration are clearly on the chopping block-  the Clean Water Rule and Clean Power Plan.

What repeal of the Clean Water Rule will mean?

The Clean Water Rule was the Obama Administration's attempt to extend the reach of federal jurisdiction under the Clean Water Act to most waters and wetlands.  To understand the reason for the Clean Water Rule it is important to review the long history that led to is promulgation by EPA.

The CWA limits jurisdiction to "navigable waters" which is defined as "waters of the United States, including the territorial seas." 33 U.S.C. Section 1361(7)  Interpretation of the vague term- "waters of the United States"- has been left largely to guidance and the Courts. The most significant decisions were issued by the Supreme Court in Rapanos and SWANCC. Justice Kennedy, plurality decision in Rapanos held that CWA jurisdiction extended to both navigable waters and any non-navigable water that had a "significant nexus" to a navigable waterway.  

As applied, the "significant nexus" test extends jurisdiction to small tributaries and wetlands separated from large rivers or water bodies.  Under the test, these smaller streams or wetlands fall under federal jurisdiction if impacts to the stream or wetland would affect the "chemical, physical, and the biological integrity of a navigable water."

EPA issued the Clean Water Rule in attempt to better define how the significant nexus test should be applied as well as establish which waterways were exempt from coverage.  The rule was harshly criticized as an overreach by EPA. Soon after its release, the rule was challenged by a number of states and business groups.  The Sixth Circuit Court issued a stay blocking implementation of the rule until the case could be heard.  

There is little doubt the a Trump Administration will repeal the Clean Water Rule as a significant overreach of federal jurisdiction under the Clean Water Act.  However, unless the rule is replaced with a new definition of "waters of the U.S." businesses and individuals will have no regulatory certainty.  Repeal of the rule will mean continuation of the status quo of vague guidance and litigation in the Courts over the extent of federal jurisdiction.  

What will be fascinating to see is whether a Trump Administration is simply satisfied with repeal of the Clean Water Rule or whether the Administration attempts to provide much needed regulatory certainty. One approach would be to limit federal jurisdiction under a new rule and rely on the states to determine which smaller streams or more isolated wetlands should be protected strictly under state law.  Ohio provides a good example of how this regulatory structure could work as it was one of the few states that passed a law protecting isolated wetlands after the Supreme Court decision in Rapanos.

Revoking the Clean Power Plan

It is also clear that the Obama Administration most significant regulatory action- promulgation of the Clean Power Plan- will be undone within the first 100 days of the Trump Presidency.  Years of technical and legal work by EPA went into development of the rule.  However, the rule was based on very tenuous legal grounds.  

After repeal, unlike the Clean Water Rule, there is virtually no chance the EPA under President Trump will replace the Clean Power Plan.  Furthermore, there is a very good chance additional climate change regulatory actions by EPA will be eliminated.  

However, despite those who forecast the end of all climate change related regulation, the Clean Air Act will still exist.  The Supreme Court has already decided that greenhouse gases are a "pollutant" under the Clean Air Act.  What this means is a likely a return the the Bush-era on climate change litigation- Blue States and environmental groups using the Courts to push for regulation or blocking attempts to repeal enacted regulations.  Litigation means less certainty for businesses, however, less regulation is a certainty as well.

Ohio EPA's New Guidance Raises Stakes on Vapor Intrusion

On August 24th, Ohio EPA released new guidance that incorporates an unprecedented approach to vapor intrusion.  Under the new guidance, Recommendations Regarding Response Action Levels and Timeframes for Common Contaminants of Concern at Vapor Intrusion Sites in Ohio, the Agency is for the first time demanding immediate action when contaminant levels exceed certain established "trigger levels."  In the case of one particular contaminant, trichloroethylene (TCE), the Agency expects action within days if the associated trigger levels are exceeded.  The guidance, as outlined below, has major implications for businesses, property owners, consultants and attorneys.

The guidance establishes specific trigger levels for sub-slab and indoor air.  With regard to TCE, it establishes trigger levels for groundwater in addition to sub-slab and indoor air.  Groundwater or sub-slab exceedances will require immediate indoor air sampling.  If indoor air trigger levels are exceeded, immediate action is required in the form of installation of a remedy and/or notifying regulators.  The response times for exceedance of indoor air trigger levels are set forth below.

Response Times for Common Indoor Air Contaminants

Exceeds Indoor Air Risk Standard
Chronic Response Resample or install remedy within 3-90 days
Accelerated Response Coordinate with appropriate state, local and health authorities on response action


* Common contaminants include: vinyl chloride, tetrachloroethylene, chloroform, carbon tetrachloride and naphthalene


Response Times Specific for TCE

Exceeds Indoor Air Risk Standard
Accelerated Early and interim response actions evaluated within weeks
Urgent Response actions evaluated within days. Consider relocation of residents/occupants
Imminent Immediately contact state, local and public health officials.  Relocate residents/occupants

The Agency made the following public statement following release of the new guidance:

The Division of Environmental Response and Revitalization (DERR) has developed a memorandum on action levels and response timeframes for sites that are being investigated for vapor intrusion of trichloroethylene (TCE) and other associated chemicals. These actions levels and time frames are based primarily upon the short term exposures to TCE and the potential for cardiac malformations in developing fetuses. DERR developed this guidance in consultation with USEPA and use these risk levels and response times when conducting Ohio EPA lead investigations for the CERCLA and RCRA programs. This guidance does not have the force of law, but Ohio EPA recommends its use to outside stake holders, including the Voluntary Action Program (VAP), in evaluating the concentrations of volatile compounds in ground water, soil gas or indoor air in residences and commercial buildings.(emphasis added)

What is unprecedented about this new guidance is the requirement to take immediate action, within days in some cases, based upon risk based screening values.  Historically, vapor intrusion risks were vetted through sampling and analysis, a process that could take a year or more before cleanup was implemented.

Guidance on TCE

TCE is a very common metal degreaser.  As set forth above, the response timeframes for exceedances of TCE trigger levels are particularly aggressive.  Ohio EPA bases its urgent call to respond upon a specific evaluation of the risks of TCE exposure:

“In September, 2011, [U.S. EPA] updated the toxicity assessment for TCE which concluded, in part, that women in the first trimester of pregnancy are one of the most sensitive populations to TCE inhalation exposure due to the potential for fetal cardiac malformations. Because the key steps for cardiac development occur within the first 8 to 10 weeks of pregnancy, exposure to TCE during early pregnancy is of concern.”

To give some perspective as to the number of sites in Ohio that may have some level of TCE contamination, earlier this year, Massachusetts recently announced a TCE initiative in which it reviewed 1,000 closed cleanup sites across the State.  Ohio, a much larger and more industrial state, likely could have more TCE impacted sites. 

Implications of New Vapor Intrusion Guidance

The guidance has major implications for businesses/property owners, consultants and attorneys:

  • Property owners have increased liability risk, in particular if they are aware that trigger levels may be exceeded.
  • Through guidance and training sessions, Ohio EPA has pressured consultants to come forward with data even in instances when their clients may not want the information to be public;
  • It will be critical for attorneys to ensure adequate evaluation of vapor intrusion is included in Phase Is.  While it is a requirement to evaluate vapor intrusion risks under the current Phase I standard (ASTM 1527-13), inconsistencies persist among consultants in evaluation of vapor intrusion in their Phase I reports.
  • Where Ohio EPA has data and wants further evaluation of vapor intrusion risks, the Agency is notifying property owners they must take action or the Agency will proceed with sampling.
  • In early summer, Ohio EPA revoked portions of its prior vapor intrusion guidance that relied upon use of the Johnson & Ettinger model (a less conservative model than U.S. EPA Vapor Intrusion Screening Level (VISL) Calculator).  Ohio EPA still hasn't been clear as to whether it will reopen previously closed cleanup sites that relied upon the Johnson & Ettinger model.
  • While the guidance states it does not have the force of law, EPA is taking action based upon the new guidance.  


Expect Dramatic Increases in Federal Civil Penalties for Environmental Violations

On November 2, 2015, President Obama signed into law the Federal Civil Penalties Inflation Adjustment Improvement Act of 2015.  The law required all federal agencies to increase civil penalties with inflation. While there were previous requirements to increase civil penalties, the new law provides for more dramatic increases attributable to the following changes:

  • Requires adjustments annually instead of every four years as had been previously been required;
  • Institutes a "catch-up" period to increase penalties assuming the more accelerated schedule had previously been in place with a cap on total increases of 150% (which is quite dramatic)
  • Formula for the "catch-up" period is based on how much the October 2015 Consumer Price Index (CPI) exceeds the 1990 CPI (called the "cost-of-living multiplier")

The EPA promulgated the Civil Monetary Penalty Inflation Adjustment Rule to establish a schedule for penalty increases including implementation of the "catch up" provision.  The schedule began implementation on August 1st.  EPA described the purpose of the rule as follows:

The primary purpose of the rule is to reconcile the real value of current statutory civil penalty levels to reflect and keep pace with the levels originally set by Congress when the statutes were enacted.  

EPA's Adjustment Rule includes the following increases (there are a range of potential penalties in the Adjustment Rule.  The ranges shown below are for some of the more common violations):

  • TSCA toxic substances violations - go from $25,000 per day to $37,000
  • RCRA-  from $25,000 per day to anywhere from $56,467 to $70,117 depending on the nature of the violation
  • Clean Air Act-  from $37,500 (set in 2009) to $44,539 for EPA administrative penalties and a maximum of $93,750 for penalties assessed by a court (the maximum increase of 150% allowed under the rule)
  • Clean Water Act- from $37,500 to anywhere from $44,539 to $51,570
  • ECPRA and CERCLA- from $37,500 to $53,907

To understand the specific penalty increases for particular violations of the statutes set forth above, consult Table 2 of 40 CFR Section19.4 of the EPA Civil Monetary Penalty Inflation Adjustments Rule.

While EPA still has discretion to seek less than the per day maximum civil penalty set forth in the Adjustment Rule, the rule shows an intent that penalties for environmental violations will be significantly larger even when EPA exercises is discretion.

Five Things to Expect from State EPA Regulators After the Flint and Sebring Water Crises

On July 29th, the Michigan Attorney General Bill Schuette charged six more public officials in connection with their roles in the Flint Water Crisis.  One of the six charged included a senior management official at the Michigan Department of Environmental Quality (MDEQ)- the former Chief of the Office of Drinking Water and Municipal Assistance. The latest charges are in addition to the two MDEQ officials charged in April.  

Attorney General Schuette stated:

"Many things when tragically wrong in Flint.  Some people failed to act, others minimized harm done and arrogantly chose to ignore data.  Some intentionally altered figures and covered up significant health risks."  (emphasis added)

Ohio experienced its own issues with drinking water in Sebring Ohio.  In January, Ohio EPA fired two employees for failing to timely provide information to the District Office deemed critical to providing timely information regarding the condition of water in Sebring.  Here is what Ohio EPA's Press Release said about the reason for terminating the employees: 

"Ohio EPA Central Office employee responsible for sending laboratory results from the Central Office failed to ensure that data was provided to the field office to help them conduct their review...The employee’s supervisor is also being terminated for not properly managing an employee who had an existing record of performance issues and not providing appropriate corrective counseling or progressive discipline despite being instructed to do so."

Ohio EPA also announced that it established a new process to provide staff with a direct and expedited communication route to senior Ohio EPA officials of situations that have possible “significant environmental and public health consequences.”

It is rare for State environmental protection agencies to fire employees for not performing their job.  It is even more rare for criminal charges to be brought against State EPA employees relating to performance of their job functions.  The firings and criminal charges have garnered national attention.  The crises have, no doubt, had an effect on the cultural and work environments of State EPA.s

Here are five things businesses can expect:

  1.  More Aggressive Deadlines-  One of the themes from Flint and Sebring was whether officials acted on information on a timely basis.  Also, whether officials raised public health issues up the chain quickly.  As a result, it is likely regulators will be demanding more aggressive deadlines for businesses to address non-compliance and/or investigate issues.
  2. Demand for Action-  Regulators will have less tolerance for debating over appropriate responses to ongoing violations and/or investigating issues.  If businesses don't respond in a timely fashion (in the Agency's viewpoint) or refuse to take the steps the Agency believes are appropriate, regulators will takes action.  This could be performing sampling using Agency resources (not waiting for businesses to sample).  This could be referring matters up the chain more quickly for enforcement.  
  3. Less Deference to Outside Technical Consultants-  Regulators will be less willing to defer to the private sector to decide how to appropriately respond.  Historically, it was common place for private consultants and agency representatives to debate technical issues.  With the pressure on agency employees to perform their duties quickly this will likely translate to less deference to private consultants.
  4. More Involvement of Management in Decision Making-  Another theme from both Flint and Sebring was whether agency employees made management aware of issues in a timely fashion.  For example, Ohio EPA announced a new protocol for making senior management aware of "public health" issues quickly.  What constitutes a public health issue or  potential issue is vague.  Lower level employees will be more inclined to raise issues up chain of command to management.  In some cases, even directing businesses to address correspondence directly to senior management when that same correspondence would have gone to staff just a year ago.
  5. Changing Work Environments-  Even though environmental regulators perform a critical function, the stereotype is that government workers have less stress and more reasonable work hours then their counterparts in the private sector. With the added pressure and spotlight these recent news events have brought, there will be changes in the work environment within State EPAs.  These "cultural" changes will also be felt by businesses, consultants and individuals that interact with regulators. 


Guest Post from Arun Kottha and Christopher Caryl at Tucker Ellis.

On June 22, President Obama signed into law the Frank R. Lautenberg Chemical Safety for the 21st Century Act, which amends the Toxic Substance Control Act (TSCA), the nation’s primary chemical management legislation. TSCA was originally enacted in 1976 and is administered by the United States Environmental Protection Agency (EPA). One of the main objectives of the TSCA was to assess and regulate new commercial chemicals before they enter the market. When TSCA was originally enacted, all then-existing chemicals were considered safe for use and were “grandfathered” in. Under the 1976 law, tens of thousands of chemicals already in existence in 1976 were considered in compliance without any requirement for the EPA to review them for safety.

The 2016 amendment makes several significant changes to the existing law, including risk assessment and management of all chemicals in commerce (not just new ones), additional tools to prevent new chemicals from entering the market, changes to claims of proprietary information, and guaranteed funding of the new program. These amendments require the EPA to assess numerous chemicals previously deemed “safe” and signal a shift toward heavier regulation of the chemical industry.


The EPA is required to evaluate the safety of existing chemicals in interstate commerce and to start with those most likely to cause health risks. So-called “high-priority” chemicals must be assessed by the EPA starting with 10 assessments to be under way within 180 days, and 20 at any given time to be under way within a few years. Low-priority chemicals need not be tested but can be moved into high-priority with the development of additional hazard information. The initial assessment is a new risk-based safety standard that considers if the chemical poses an “unreasonable risk,” especially to susceptible or highly exposed populations (like children, the elderly, and industry workers), irrespective of cost. If there is an “unreasonable risk” identified, cost may be then considered in the mitigation of the health risks, along with bans, phase outs, or other actions.


New chemicals may also have a tougher time getting to market. Under the 1976 law, companies would notify the EPA of their intention to manufacture a new chemical or a significant new use for the chemical by using a Pre-Manufacturing Notice (PMN). The 1976 act did not require any toxicity testing before submitting a PMN and did not require safety information to be included with the documentation. Under the 1976 law, in order to regulate new chemicals, the EPA needed to make a determination that the chemical might present “an unreasonable risk to human health or the environment...” If it could not satisfy this requirement within a narrow window of 90 days, the chemical was allowed to be legally marketed and sold. Now, the EPA must make an affirmative finding on the safety of a new chemical or significant new use of an existing chemical before it is allowed into the marketplace. While this may be a win for health and safety advocates, it may cause a significant backlog and therefore impede business and innovative progress.


The amendment also limits claims of confidentiality by chemical manufacturers with a rebuttable presumption that “the public interest in the disclosure of the information outweighs the public or proprietary interest” of the manufacturer. And finally, the EPA will be able to collect up to $25 million per year in user fees from chemical manufacturers and processors, supplemented by congressional budgeting to pay for these expanded regulatory activities. 


The EPA may renew its previously unsuccessful effort to completely ban the use of asbestos. EPA Administrator Gina McCarthy states in her blog, “The dangers of inaction were never more stark than in the case of asbestos, a chemical known to cause cancer through decades of research.” McCarthy goes on to write that “[d]uring the first Bush Administration, EPA tried to ban asbestos under TSCA, but the rule was overturned in court. In the law’s 40-year history, only a handful of the tens of thousands of chemicals on the market when the law passed have ever been reviewed for health impacts, and only 5 have ever been banned.”

This amendment may cause turmoil in the chemical industry with the assessment, for the first time, of decades-old chemicals that previously were deemed “safe.” In the next six months, we will know which high priority chemicals are selected for the initial risk assessment. The bill can be found here.

Ohio EPA Takes Hard Look at Vapor Intrusion Risks

Vapor intrusion is the process where contamination in soil and groundwater volatilizes and enters indoor air in buildings.  Understanding and evaluating the risks to occupants of buildings with vapor intrusion issues has received dramatic new focus nationally in recent years.

In Ohio, scrutiny of vapor intrusion issues is at an all time high.  This post details some of the recent significant initiatives and actions taken by Ohio EPA to address vapor intrusion.

Ohio EPA Revokes 2010 Vapor Intrusion Guidance

On May 27, 2016, Ohio EPA announced that it was revoking prior guidance in place since 2010 on analyzing the risks associated with vapor intrusion.  Ohio EPA revoked two entire chapters of its 2010 vapor intrusion guidance document.  It also indicated that environmental consultants should utilize U.S. EPA’s guidance document titled, “Technical Guide for Assessing and Mitigating the Vapor Intrusion Pathway from Subsurface Vapor Sources to Indoor Air (June 2015)” and U.S. EPA’s Vapor Intrusion Screening Level (VISL) calculator.

The VISL calculator is a new tool utilized by U.S. EPA to quickly determine whether a site presents a potentially unacceptable health risks due to vapor intrusion.  Using the VISL, soil gas, soil and groundwater sample results are plugged into the calculator to determine if risk presented by the detected contaminant levels exceed screening levels.  If screening levels are exceeded, the Agency can require either more investigation or cleanup.

The VISL replaces prior modeling techniques that have been utilized for years to evaluate contaminated properties.  Ohio EPA's 2010 Vapor Intrusion Guidance document relied heavily on the Johnson & Ettinger (J&E) model to analyze risk.  J&E was used to evaluate vapor intrusion at hundreds of site in Ohio.

Some consultants tell me that the VISL is approximately 50 times more conservative than the J&E model.  As a result, site contamination issues previously thought to present no issues under J&E are now viewed as significant problems under VISL.

Ohio EPA's revocation of portions of its 2010 vapor intrusion guidance includes the chapters regarding the J&E model.  Ohio EPA's announcement included a statement that all sites currently being evaluated will no longer consider J&E data valid and will require use of the VISL.

Ohio EPA Reviews TCE Site Inventory

Ohio EPA has also decided to heavily scrutinize any site with trichloroethylene (TCE) contamination (typically associated with a solvent used to clean metal parts).  A new study determined that the risk presented by exposure to TCE contamination to woman of child bearing years and pregnant women are greater than previously thought.  Those risks are also thought to be acute risks (i.e. short term) versus the long term risk based upon 30 years of exposure used to develop many cleanup standards.  

Beginning in the later part of 2015 and continuing through today, Ohio EPA has been internally evaluating any site where it has data showing TCE contamination.  Those sites are being analyzed using the new TCE cleanup standards and the VISL calculator.  Due to the fact both the cleanup standard and VISL are more conservative, sites are much more likely to be deemed to present potential health issues.  

Ohio EPA has sent letters to owners of sites with TCE contamination requesting additional investigation or cleanup.  In some cases, Ohio EPA has demanded additional testing and if the property owner refused, Ohio EPA performed its own sampling.

In February 2012, at an Ohio EPA brownfield training course, environmental consultants were told of Ohio EPA's position regarding vapor intrusion and TCE.  Here are some of the key points discussed:

  • Ohio EPA will not "sit on data" if it believes an issue exists it will move quickly to seek or take additional action;
  • In terms of sampling techniques to evaluate vapor intrusion, Ohio EPA wants to see sub-slab paired with indoor air samples to analyze the risk;
  • In analyzing vapor intrusion, Ohio EPA will want multiple sample locations and multiple sampling events (to address seasonal variation in contaminant levels);
  • If off-property vapor intrusion needs to be analyzed, the Agency's expectation is the owner/developer will do it.  In not, the Agency will collect the data it needs;
  • Agency is not going to have long technical debates whether a health issue may exist.  If the Agency thinks there may be an issue it wants to act quickly;
  • On Voluntary Action Program (VAP) cleanups, if a consultant is aware of data that indicates a potential health issue, the Agency expects the consultant to come forward with the information even if the property owner or developer doesn't want the information released to the Agency;
  • Due to TCE's short term risks to sensitive populations, the Agency expects quick action and evaluation of data at sites where TCE is at issue.

At the Spring 2016 Ohio Brownfield Conference many of these points were reiterated by Agency representatives.  In particular, participants were told the Agency will act quickly and aggressively when it believes contamination has the potential to present a public health issue.  

Ramifications to Property Owners and Developers

The changes relative to analysis of vapor intrusion in general as well as the specific initiative on sites with TCE, has major ramifications for property owners and developers.  Here are some the issues or considerations for owners/developers:

  • Consultants are under increasing pressure to disclose any data to Ohio EPA that suggests a public health issue may exist;
  • Expectation is that properties with potential vapor intrusion issues on or off site will be evaluated very quickly;
  • The standards and models use to analyze vapor intrusion risk have become significantly more conservative.  Sites are much more likely to be deemed to present potential issues than even a year ago; 
  • All ASTM compliant Phase I reports are supposed to evaluate the potential for vapor intrusion.  In light of the increased focus on vapor intrusion, it is critically important to conduct high quality due diligence prior to acquisition that includes a robust evaluation of the potential for vapor intrusion; 
  • Liability risks have increased dramatically in recent years for owners and/or developers of property that may have vapor intrusion issues; and
  • Due to increased stringency of modeling and cleanup standards, what will the Agency do regarding sites that were previously deemed sufficiently cleaned up under outdated guidance and cleanup standards?


EPA Release New National Enforcement Initiatives for 2017-2019

On February 28, 2016, U.S. EPA publicly announced its priority enforcement areas (EPA National Enforcement Initiatives or NEIs) for the next three years (fiscal years 2017-2019).  The announcement provides keen insight into how EPA plans to allocate its enforcement resources in the coming years.  

 EPA describes the NEIs in the following manner:

"Every three years, EPA selects National Enforcement Initiatives to focus resources on national environmental problems where there is significant non-compliance with laws, and where federal enforcement efforts can make a difference"

EPA has elected to keep five of its current enforcement initiatives, expanding some of its efforts, as well as add two new initiatives.  This brings the total priorities to seven for fiscal years 2017-2019.  The NEIs take effect on October 1, 2016. 

A brief summary of each NEI is provided below.


  • Reducing Air Pollution form the Largest Sources-  EPA's New Source Review (NSR) initiative has targeted cement, glass and acid plants.  However, its principal target has been coal fired power plants.  According to U.S. EPA statistics, from FY 2010 to FY 2015, of the 800 facilities inspected, EPA has increased the number of facilities with enhanced air pollution controls from 41% to 77%.  By maintaining this enforcement priority, EPA will likely focus on compliance with existing decrees as well as target new industries.
  • Cutting Hazardous Air Pollutants - EPA is expanding this initiative for the FY 2017-2019 to focus its efforts on two additional source categories-
    • Large product storage tanks used by refineries,chemical plants and bulk storage facilities- EPA will likely used enhanced inspection techniques, such as infrared cameras to looks for leaks of volatile organic compounds (VOCs) from these storage units;
    • Hazardous waste generator and treatment, storage, and disposal facilities-  the focus of this expanded initiative will be to address hazardous waste tanks, surface impoundments, or containers, as well as related hazardous waste treatment equipment.

Energy Extraction

  • Ensuring Energy Extraction Activities Comply with Environmental Laws

The attached chart shows the dramatic increase in the number of inspections and enforcement actions related to energy extraction.  

EPA has increased the number of inspections from 361 in FY 2011 to between 600 to 700 per year.  Interestingly, the number of enforcement actions has not significantly increased when comparing FY 2011 to subsequent years. 

It is also interesting that EPA maintained this initiative despite the recent dramatic economic downturn in the energy sector.


Hazardous Chemicals

  • Reducing Pollution from Mineral Processing Operations- Focus is on releases from mining operations that EPA believes threaten drinking water, surface water as well as cleanup mining sites.
  • Reducing Risks of Accidental Releases at Industrial and Chemical Facilities (NEW)-  The focus of this new initiative will be compliance with Risk Management Plan (RMP) rule.  RMPs are required for facilities that store extremely hazardous materials.  RMP is required under Section 112(r) of the Clean Air Act.  Facilities are required to have plans that inventory the materials and have a plan to implement in the event of releases or emergencies.  Plans are required to be updated every five years. It is likely EPA will look for facilities that have failed to comply with the RMP rule or those facilities with outdated plans.


  • Keeping Raw Sewage and Contaminated Stormwater Out of Our Nation's Water-  EPA has largely addressed municipal wastewater treatment plants (WWTPs) with combined sewer overflows (CSOs) and/or sanitary sewer overflows (SSOs).  This initiative was renewed most likely to focus on compliance with existing consent decrees.  In many cases, cities are facing the most expensive parts of their compliance schedules.
  • Preventing Animal Waste from Contaminating Surface and Ground Water- EPA has been focused on inspections and enforcement of Combined Animal Feeding Operations (CAFOs) for a number of years.  Since 2011 it has conducted over 1,800 inspections and concluded 217 enforcement actions under the Clean Water Act.
  • Keeping Industrial Pollutants Out of the Nation's Waters (NEW)-  EPA will be focusing on certain industries that it believes contribute a larger portion of nutrient and metal pollution. Those industries include chemical and metal manufacturing, mining and food processing.  On its web-page, EPA signals that it will look to compliance with NPDES permits and electronic reporting of effluent violations (eDMRs) to initiate actions.

Highlights from 2015 ABA SEER Spring Meeting

The Clean Power Plan and Waters of the U.S. Rule have dominated much of the discussion at the ABA's Spring Meeting of the Section of the Environment, Energy and Resources (SEER) in Chicago.  SEER is a gathering of nations prominent environmental and energy attorneys from both the private sector and government.

Waters of the U.S. Rule (WOTUS)

The WOTUS rule defines the jurisdiction of the Clean Water Act.  WOTUS was issued after the Supreme Court suggested in the Rapanos decision that the regulated community would benefit from a rule.  EPA released the rule earlier this summer.  As previously discussed in a prior post, the Sixth Circuit has issued a stay of the EPA's WOTUS rule after numerous lawsuits have been filed.  

Steven Neugeboren, Associate General Counsel, Water Law Office, U.S. EPA, discussed the Agency's development of the rule.  He emphasized that the Administrator's directive in developing WOTUS was to "follow the science."   He opined that part of the reason for all of the litigation and controversy surrounding the rule is based upon "speculation" and "fear" fostered by some in the regulated community regarding the scope of the rule.  

As an example, Mr. Neugeboren cited to public comments on the draft of the rule that argued EPA was trying to regulate puddles.  EPA responded by putting specifically in the final rule that puddles are exempt form regulation.  In response, he indicated some commented that the inclusion of the exemption was an indication EPA planned to regulate puddles all along.

Comments on the private bar during the conference have centered on the broad scope of the rule. EPA's approach in the rule was described as extending regulation to virtually every waterway and relying upon narrow exemptions to carve out instances EPA deems regulations unnecessary.  Due to the broad and vague language used in WOTUS there is tremendous uncertainty as exactly what is covered under the rule.

Are Wetland/Stream JD's Appeallable?  The Supreme Court Will Decide

As a first step in wetland/stream permitting, many developers and property owners will hire a consultant to perform a wetland and/or stream delineation on the property. The delineation is the consultant's opinion as to whether federally protected wetlands or streams exist on the property. The delineation will also determine the size and quality of the water resources on the property. However, the consultant's delineation is not a legal determination. Only the Army Corps of Engineers (ACOE) can determine if wetland or streams are federally protected. Therefore, although not required, many property owners/developers submit their wetland delineations to the ACOE for concurrence. This is called a "Jurisdictional Determination" or JD. See, 33 CFR 320.1(a)6)

The Eighth Circuit Court of Appeals determined that an approved jurisdictional determination (JD) is a final agency action that can be challenged. See, Hawkes Co., Inc. et al v. Corps, Case No. 13-3067 (April 10, 2015).  The Court determined that if a JD is not appeallable a property owner is left with the Hobson choice of risking enforcement or acquiescing to the ACOE permitting process.

At the conference, a panel discussed the likelihood the the Hawkes case would be heard by the U.S. Supreme Court.  Because there has been a split in the circuits, the panelists all believed the case would likely be heard.  

Panelist Ray Ludwiszewski, attorney at Gibson, Dunn & Crutcher, offered his opinion that while the case would be heard, he believed the Court would determine a JD is not appeallable because JDs are voluntary.  He distinguished JDs to the enforcement order that was issued by EPA in the Sackett case which compelled the property owner to comply.  

Professor Richard Lazarus, Harvard, agreed that the voluntary nature of JDs may be a key factor in how the Court would rule, but he said the Court may rule JDs are appeallable because the Court, in prior decisions like Sackett, showed its "anger" over the EPA's application of the 404 wetland/stream permitting and the "heavy handed nature of government regulation" in this area.

Clean Power Plan

Not surprisingly, EPA strongly defended the legality of the rule at the conference while attorneys from the private sector questioned its legal foundation.  The biggest open issue regarding the legality of the Clean Power Plan was the scope of Section 111(D) of the Clean Air Act.   Conference participants agreed the key issue is whether EPA's authority Section 111(D) is limited to the "fence line" at a power plant or provides much broader authority to regulate the mix of energy (coal, natural gas and renewables) across the country.

Another issue discussed was the uncertainty caused by litigation  The States must file their plans to comply (referred to as a "State Implementation Plan" or "SIP") by September 2016.  The rule allows incentives to State's to file SIPs.  For example, states can get more time to develop their plans and cannot participate in a emission trading plan if they don't submit a compliance plan. Despite the incentives, states that strongly oppose the rule may elect to not file a compliance plan.  

Art Harrington, attorney from Godfrey & Kahn, discussed the uncertainty the rule is causing in his State of Wisconsin.  The implementation time lines and requirements, especially with the cloud of litigation, is causing tremendous uncertainty in the regulated community.  

Monica Trauzzi, reporter for E&ETV/E&E Publishing, commented that in her discussions with Governors and State agency air directors, the states are having conversations around development of compliance plans.   Conversations are occurring even in states strongly opposed to the plan because the utility industry has been putting pressure on states due to the uncertainty associated with failing to comply with the plan.


Ohio EPA Releases Draft Beneficial Use Rules...Again

Over the last decade, Ohio EPA has attempted to promulgate beneficial reuse rules a number of times. Each time the rules have been released for public comment the proposals have been met with significant criticism and the proposals never moved forward.

The crux of the issue is that Ohio lacks a defined regulatory program for recycling or reuse of certain industrial byproducts such as: spent non-toxic sand, dredgings, fly ash, bottom ash, slag, etc.  Right now any person who wants to recycle or reuse these materials can either move forward and risk Ohio EPA enforcement or seek an adhoc regulatory approval from Ohio EPA.

In a prior post from 2012, I discussed the history behind the beneficial use rules.  This is a summary from my prior post:

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 [or as a solid waste under R.C. 3734]. Ohio EPA asserts that companies need authorizations from the Division of Surface Water [or Division of Materials and Waste Management] in order to be deemed protective of water resources.

Currently, the Agency reviews beneficial use proposals either under its current Integrated Alternative Waste Management Program (IAWMP) or Land Application Management Program (LAMP)(click here for information on both programs).  Both amount to basically permits.  However, neither program has defined standards for sampling of material prior to reuse nor are there specific regulatory standards for approving uses.  More importantly, each proposed use requires its own separate IAWMP or LAMP approval.

Split Among Industries

One of the biggest challenges Ohio EPA has faced in promulgating beneficial use rules has been a split within industry groups as to the perceived need for rules.  Some industries, such as the Steel Industry, has taken the position that they do not need a regulatory approval from Ohio EPA for beneficial reuse projects involving byproducts such as slag.  These industries have strongly opposed rules for these materials.

Other industries, such as foundries, have been very supportive of rules in order to provide regulatory certainty.  These industries believe the reuse/recycle market will grow substantially if the threat of Ohio EPA enforcement is removed through rules and permits that approve uses.

Ohio EPA's latest rule package attempts to address this split within industry by specifying the rules would apply to only specific industrial byproducts and materials:  foundry sand, water treatment residuals, waste uses as a fuel, and dredged material (i.e. sediment).

Proposal Avoids the Issue of Standards

One of the biggest issues with developing a beneficial reuse program in Ohio has been the standards imposed for approving projects.  Ohio EPA has traditionally been much more conservative than industry in identifying standards for approvals.  Industry has been harshly critical of Ohio EPA's proposed standards as overly conservative leading to little use of the program. This debate has delayed the rules for a number of years.

In an attempt to avoid this controversy, Ohio EPA's latest proposal does not identify a specific standard that will be used in reviewing projects.  Rather, the proposal simply references various options the Agency could use to evaluate proposals, including:

Public Comment Period Open on Latest Proposal

On May 14th, Ohio EPA released its latest proposed draft rules for public comment.  The public comment period is open until June 22nd.  

A complete listing of the draft rules and the business impact analysis is provided on Ohio EPA's webpage (click here).  On June 10, 2015, Ohio EPA conducted an Early Stakeholder Outreach in which it made a formal presentation regarding the rules (click here for access to Ohio EPA's powerpoint presentation).  The presentation provided a simple comparison to Ohio EPA's previous proposed rule package with very little discussion of the substantive elements of the rules.

Draft Rules- An Approval Process with Little Regulatory Certainty

It appears the Agency's latest attempt at rules main purpose is to set up a defined mechanism for regulatory approvals for recycling/reuse:

  1. Pre-Approved Uses- Certain uses that are allowed so long as they meet specifications and requirements set forth in rule.  There are very few pre-approved uses in the proposal.  These include: incorporation into construction materials such as concrete or use as a fuel.
  2. General Permits-  The next step would be for Ohio EPA to release general permits that would cover large categories of reuse.  [Two example beneficial reuse general permits are still on Ohio EPA's webpage- specific uses of foundry sand and alum sludge in topsoil]
  3. Individual Permits-  Any proposal that doesn't fall within either a pre-approved use or general permit would need an individual permit.  To obtain an individual permit the permittee would need to supply additional sampling and technical justification for its proposal.

While the regulatory approval process may be defined, the rules provide little certainty with regard to the more challenging issues such as:

  • How much sampling is requires to demonstrate the levels of contamination in the material;
  • How much sampling will be required once the project is completed;
  • What standards will be used to approve the proposed use (RSLs, VAP, etc.);
  • What conditions and/or limitations will be incorporated into general permits or individual permits

Ohio EPA asserts these main issues are left vague to provide regulatory flexibility.  However, the proposal sacrifices regulatory certainty for flexibility.  The proposal is simply delaying the bigger fights until after the rules are in place.

U.S. EPA Encourages Use of Third Party Verification of Compliance with Enforcement Settlements

We know that U.S. EPA budget is tight.  Maybe that is why they are looking for new and innovative ways to reduce their work load.  This is evident in the memorandum released on January 7, 2015 by EPA's Office of Enforcement and Compliance Assurance.

The memorandum is titled "Use of Next Generation Compliance Tools in Civil Enforcement Settlements." In the memo, U.S. EPA Assistant Administrator Cynthia Giles discusses use of advances in pollutant monitoring and information technology to "increase compliance with environmental regulations."  

Third Party Verification

One the the tools U.S. EPA recommends in its memorandum is the incorporation of "independent third party verification" into settlement agreements.  The concept is that an outside firm would be identified in the settlement to monitor a companies compliance with the injunctive relief portion of the settlement.  

U.S. EPA notes that the verifier must be truly independent.  It cannot be an environmental consultant who provides a report to the company before it supplies the compliance review report to U.S. EPA.  The verifier will have to certified as independent.  

The Agency notes that use of third party verifiers may be especially valuable in situations where the injunctive relief has a lengthy and/or complex compliance schedule. While the memo doesn't discuss it, I'm certain the expectation is that the company will pay for the third party verification costs.  

Other Advanced Compliance Techniques

Other tools discussed in the memorandum include:

  • Advanced monitoring- Examples include monitoring techniques that are "not yet in widespread use," or less expensive, easier to use or mobile monitoring techniques. 
  • Electronic reporting-  A company would set up a system whereby it would electronically submit required reports and data in a searchable format.  EPA makes clear electronic reporting doesn't mean just e-mailing the report to a U.S. EPA Regional Office.
  • Public accountability through increased transparency of compliance data-  The memo encourages companies to display compliance status on their webpage, via a mailer or on the Enforcement and Compliance History Online database (ECHO).  The idea is wider dissemination of compliance data will allow the public to monitor and notify U.S. EPA if a company is not meeting its commitments.


While EPA states this strategic initiative is designed to increase compliance.  The reality is that U.S. EPA doesn't have the staff to keep up with its ever increasing workload.  The U.S. EPA wants to use monitoring equipment, the public and third parties as another set of eyes to monitor compliance. The additional costs for all of these new techniques will almost certainly be placed upon the settling party.  

Ohio High Court Ruling on Local Authority Over Fracking More Limited Than Portrayed

Municipalities across the country have attempted to place restrictions on the use of fracking associated with oil & gas drilling.   Most cases involve outright bans on fracking or more rigorous permitting requirements.    Ohio was no different.  Other states, like Pennsylvania and New York, both allowed local regulation of fracking.  Ohio was different, sort of.

The Ohio Supreme Court issued its decision in State ex del. Morrison v. Beck Energy Corp., ruling 4-3 that the City of Munroe Falls could not stop Beck Energy Corp. from drilling based on non-conformance with local ordinances.  Justice French wrote the decision for the majority:

R.C. Chapter 1509 regulates oil and gas wells and production
operations in Ohio. While it preserves certain powers for local governments, it
gives state government “sole and exclusive authority” to regulate the permitting,
location, and spacing of oil and gas wells and production operations within the
state. R.C. 1509.02.

Ohio has Home Rule, which grants local governments the power to adopt local regulations.  Ohio's Home Rule provision is set forth in the Ohio Constitution, Article XVIII, Section 3, which states:

"Municipalities shall have authority to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws."

It is the last part of the provision which is key- "as are not in conflict with general laws."   Justice French opined that R.C. 1509 is a state law that establishes all regulation on permit, location and spacing of oil and gas wells.  Justice French ruled that since the General Assembly clearly intended R.C. 1509 to regulate most aspects of oil and gas exploration, it follows that local governments lack authority to pass their own regulations.  However, Justice French opinion was only supported by three of the Court's seven justices.

Fourth Vote- Justice O'Donnell's Concurrence

While Justice French's opinion seems to be very clear that R.C. 1509 prohibits most aspects of local regulation of fracking, the fourth and deciding vote of Justice O'Donnell concur in judgment only.  While his fourth vote struck down the City of Munroe's law, his concurring opinion is not as clear cut as Justice French in terms of the scope of preemption of R.C. 1509.

Justice O'Donnell begins his opinion by noting that the Court's decision is limited to the City of Munroe's ordinances only.  He also states that ordinances designed to add permitting requirements are preempted by R.C. 1509.  However, Justice O'Donnell indicates other traditional areas of zoning may still be valid. He states:

"This appeal does not present the question whether R.C. 1509 conflicts with local land use ordinances that address only the traditional concerns of zoning laws, such as ensuring compatibility with local neighborhoods, preserving property values, or effectuating a municipality's longterm plan for development, by limited oil and gas wells to certain zoning districts without imposing a separate permitting regime applicable only to oil and gas drilling."

This language makes clear the door is still open for local regulation.  With Justice O'Donnell representing the swing vote, this decision is not as clear cut as the news media has portrayed.  The majority of Justices do believe municipalities have powers to regulate fracking.  

This key point seemed to be missed by many of the stories in the media. These are headlines from various papers (click on the link to read the full story):

"Local governments cannot regulate fracking, Ohio Supreme Court says."  Columbus Dispatch

"Ohio Supreme Court case over Munroe Falls' drilling laws could impact home rule authority across the state."

"Ohio Municipalities Can't Regulate Drilling and Fracking On Their Own, State Supreme Court Rules." Huffington Post


Ohio EPA Begins Policy to Rotate Inspectors

Ohio EPA has recently announced a new policy of rotating personnel within its districts and divisions. The new policy will apply to inspectors and staff, but will not apply to management.  

The policy is intended to provide Ohio EPA staff with a wider range of experience and technical skill.  

This from Director Butler announcing the staff rotation policy:

"As many of you know, creating professional development opportunities in any area of business is essential to maintaining a well-rounded organization.  Many of you in the private sector offer your employees these opportunities and we are implementing a similar strategy in an effort to streamline our operations and improve the depth and breadth our employee's knowledge."

A second letter was sent by the Division of Surface Water announcing how the new policy will impact staff charged with reviewing Permits-to-Install and NPDES permits:

"The Division of Surface Water (DSW) staff assignments will change in the National Pollutant Discharge Elimination System (NPDES) and permit-to-install programs approximately every five years.  For NPDES permittees, this means the same staff person will likely complete one permit renewal since renewals are required every five years."

Having worked with many Ohio EPA inspectors both while at the Agency and since working in the private sector, it will be interesting to see how the new policy is received.  As expected with every large organization, there is array of expertise, temperament and communication styles among inspectors and staff.  

For facilities and business that like the inspector assigned to them, the new policy will likely not be seen as good news, especially if the newly assigned inspector isn't viewed in a positive light.  For those that have been frustrated by their current inspector or permitting staff, they may welcome the change.

While rotating personnel will certainly provide a wider range of experience to staff.  It will also have the effect of shifting institutional knowledge.  Some sites and facilities are very complicated.  It may take a few years for staff to fully understand all the operations or issues.  

Rotating staff could mean that businesses experience some level of frustration when trying to "get the new person up to speed."  Perhaps, Ohio EPA will try and accommodate these situations by maintaining continuity at these more complex sites.

If I had to predict, the Agency will likely get more calls complaining about the policy then praising it. Most people only call when they are frustrated or don't like a change. 

TSCA Penalty Serves as Warning Regarding Non Compliance with Disclosure Requirements

 In a very significant case, the Chief Administrative Law Judge (ALJ) for U.S. EPA imposed a $2.5 million dollar penalty against a manufacturer, Elementis Chromium, Inc. ("Elementis") for failing to submit a health study to EPA pursuant to the requirements of TSCA.  The EPA imposed the large penalty despite the fact,

  • Many of the findings in the study were disclosed to EPA through other studies; and
  • The violation occurred more than five years ago- past the applicable statute of limitations period


Elementis was part of a business coalition who undertook an epidemiological study of chromium-based products.  The study was performed, in part, as an attempt to potentially provide support for modification of the permissible exposure limit (PEL) for hexavalent chromium adopted by OSHA. 

The study was completed in 2002.  Elementis didn't provide the study to U.S. EPA until six years later, in 2008, in response to a subpoena.  

EPA filed a complaint against Elementis for failing to disclose the study in accordance with the requirement set forth in TSCA Section 8(e) which provides:

Any person who manufacturers, processes, or distributes in commerce a chemical substance or mixture and who obtains information which reasonably support the conclusion that such substance or mixture presents a substantial risk of injury to health or the environment shall immediately inform the Administrator of such information unless such person has actual knowledge that the Administrator has been adequately informed of such information.

Elementis argued the EPA was "adequately informed" regarding the impacts of chromium and the study did not need to be disclosed as a result.  Also, the company asserted the failure to disclose occurred more than five years ago, past the applicable statute of limitation period. 

Statute of Limitations

EPA admitted that the five-year statute of limitations is generally applicable to administrative penalty actions brought under TSCA.  However, the EPA's ALJ ruled that violations of TSCA Section 8(e) are continuing in nature.  Therefore, so long as the company failed to disclose, the statute of limitations did not begin to run.

New Information

The company also argued there was no violation of Section 8(e) because EPA was previously aware of the general conclusions of the study.  The ALJ rejected the Company's argument and ruled it was required to disclose the report because there were significant distinctions between the study at issue and previous studies.  

The ninety page decision includes a highly detailed analysis of the ALJ determination the study had distinguishing characteristics which triggered the mandatory duty to disclose under TSCA. Many of the differences noted by the ALJ were with regard to the test methodologies employed, not necessarily health impacts.  

The opinion highlights the risks involved in the TSCA duty to disclose under 8(e).  The company incurred a substantial penalty despite:

  • Information and conclusions in the study had similarities to prior studies of chromium-based products;
  • The violation, failure to disclose, occurred more than five years ago which was past the normal statute of limitations period.

It is worth noting that the ALJ felt the Company's failure to report, was so egregious in this instance, that it increased the penalty by 10%.  The ALJ felt the Company made critical comments in regulatory proceedings regarding data gaps involving chromium health impacts while being aware of the study, which it helped complete, and did not disclose to regulators.


Ohio EPA Director Scott Nally Resigns- Butler Named as Interim Director

On January 7th, Scott Nally resigned as Director of Ohio EPA after a three year stint.  Local media coverage of his resignations raised questions regarding the abrupt and surprise announcement.  Speculation included the fact that it was tied to the Nally's firing of long-time Division of Surface Water Chief George Elmaraghy earlier this year.  This from the Columbus Dispatch:

“We can’t understand what Director Nally did or didn’t do in complete lock step with this administration. Maybe he is voluntarily pursuing other interests, but it’s suspicious he didn’t personally make the announcement.”

Kasich spokesman Rob Nichols said Nally’s resignation was not connected to the resignation last year of George Elmaraghy, who was chief of the EPA division that oversees the state’s efforts to protect streams, lakes and wetlands from pollution. Elmaraghy said he was asked to step down by Nally and Kasich because of clashes with the coal industry about water-pollution permits.

With Director Nally's resignation, Craig Butler, who had served in Governor Kasich's office, was named as interim Director.  With the Governor's election this November, it it unlikely a replacement will be named until after the election.  This means Mr. Butler will more than likely serve as Director until after the election.

Butler brings a wealth of experience to the position.  He served as an industrial liaison in the Director's Office of Ohio EPA under Governor's Voinovich and Taft.  He also served as District Chief of Central District Office and Southeast District Office.  More recently, he served in Governor Kasich's Office as the Executive Assistant to various agencies, including Ohio EPA.

His background and experience will be a major asset to him as he serves as Director.  He has seen the practical implications of EPA regulations on businesses, dealt with local issues as a District Chief as well as the political side to the Agency (Both in the Director's Office and Governor's Office).  


State Settlements: When Can You Recover Costs from Prior Owners/Operators

If you settle with the State EPA in your jurisdiction and perform a cleanup under State regulatory statutes, can you recover costs from prior a owner and/or operator?  

This is an issue that federal courts are grappling with in the aftermath of the U.S Supreme Court Ruling in Cooper Industries, Inc. v. Aviall Services, Inc.  In Aviall, the Supreme Court limited the rights of a potentially responsible party (PRP) under CERCLA to recover its costs by bringing a contribution claim under Section 113(f) of the Act.  The Court ruled that a PRP could not sue other owners/operators (PRPs) to recover its costs under Section 113(f) unless it had settled its CERCLA liability with the government.  

After this ruling, companies (PRPs) voluntarily performing cleanups were potentially left without any means of seeking contribution unless the government had already sued them or they had reached a settlement. 

In 2007, the U.S. Supreme Court found that a PRP could still bring an action under Section 107 without having to wait for government enforcement.  See, United States v. Atlantic Research Corp.

However, you are only entitled to bring Section 107 claims as long as you haven't settled with the government.

What about State Settlements?

After Aviall, an issue that was still left open was whether a PRP that reached a settlement with the State EPA under State specific statutory cleanup authorities could seek contribution from other PRPs.  For example, in Ohio, R.C. 3734.20 provides some authority to Ohio EPA to seek cleanup of hazardous waste.  If you settle with Ohio EPA under this authority it can you seek contribution under Section 113 of CERCLA?  

This issue has yet to be decided in the Sixth Circuit.  However, a split has emerged amount the other circuits.

The Second Circuit appears to have answered "no" to this question initially. In two cases, Consolidated Edison Co. of N.Y. Inc. v. UGI Utils. Inc. and W.R. Grace & Co. v. Zotos International Inc.,, the Second Circuit held that Section 113(f) creates a contribution right only after the resolution of claims brought under CERCLA, not a state statute.

Recently, the Third Circuit found the opposite result.  In Trinity Industries v. Chicago Bridge & Iron, the Third Circuit held that Section113(f) of CERCLA allows a PRP to seek contribution from another PRP for cleanup of a contaminated Pennsylvania site even though the PRP seeking contribution resolved its environmental liability with Pennsylvania regulators under a pair of state statutes.

Due to the large cost of environmental cleanup, it makes sense to explore all possible remedies and rights of recovery.  In regards to cleanup of contaminated sites, CERCLA represents the most complicated statute with the broadest authorities and the most litigation.  It has been more than 30 years since passage CERCLA, yet the courts are still deciding what rights parties posses to recover costs or pursue cleanup.  

Huge Increase in Disposal of Frac Water in Ohio Deep Wells

An article in the Akron Beacon Journal discusses a study by Kent State University regarding the disposal of flow back water from natural gas fracking in deep wells in Ohio.  Flow back water is the water that comes back up from fracking a natural gas well.  The flow back water is considered wastewater.

A prior post discussed the issues Pennsylvania was facing in handling disposal of flow back water.  As a result of increased regulations in Pennsylvania, the main method of disposal of flow back water had become shipment to Ohio for disposal in deep wells.  Ohio has 179 permitted deep wells.  Pennsylvania has five permitted deep wells. 

Here are some of the key statistics from the study as discussed in the ABJ article:

The volume of Marcellus wastewater has grown 570 percent from 2004 to 2011 due to increased shale gas production in Pennsylvania, Lutz said.

Pennsylvania has about 6,400 Marcellus shale wells that have been drilled and another 3,500 that have been permitted. In comparison, Ohio has about 500 wells permitted in the Utica shale, of which 200 have been drilled.

Lutz said Pennsylvania generated about 20 million barrels (each holding 42 gallons) of wastewater in 2011. About 7 million barrels were shipped to Ohio injection wells.

Ohio is projecting that its injection wells handled nearly 14 million barrels in 2012, up from 12.8 million barrels in 2011. (Final figures have not been compiled). More than half of that volume came from Pennsylvania and West Virginia.

While the increases are huge, what happens when Ohio has more wells?  Will there be a reliable method for disposal of the flow back water from the Pennsylvania and Ohio wells.

As mentioned in the article, Ohio has no means of banning the shipments from out of state.  Ohio tried to regulate shipments of out-of-state solid waste from the east coast.  A similar issue arose when eastern states stopped permitting new landfills and Ohio was the closest state with available capacity.  Ohio starting receiving shipments of solid waste by rail. 

Laws meant to regulate the shipments of out-of-state solid waste were struck down as unconstitutional.  Solid waste was determined by the courts to constitute "interstate commerce."  Under the U.S. Constitution, one state cannot treat unfairly interstate commerce.

Now a similar dynamic is playing out with flow back water from fracking.  The issue will only get worse when Ohio has more wells drilled and needs to find a home for more flowback water generated in-state.


What Does a Second Term for President Obama Mean for Environmental Regulation?

Through out the long and contentious election process the focus of the debate was getting America back to work.  Much of the debate centered on tax policy and budget cuts.  However, the President was accused of "over-regulation" which Mitt Romney argued cooled the economic recovery.

As part of the debate over regulation, environmental regulation was discussed.  The President was accused of waging "a war on coal."  Governor Romney also asserted that the President's climate change regulations represented an over-reach.

Now that the election is over and the President has won a second term, what does a second term really mean for forthcoming environmental regulation.  Most observers believe the President will be more emboldened in terms of environmental regulation now that he doesn't need to worry about re-election. 

Below are some of the areas in terms of environmental regulation that the Obama Administration will likely push forward with:

  1. Climate Change-  Some of environmental groups supporting President Obama hope that he will push forward with a major piece of legislation on climate change.  In the President's first term, Democrats came close to passing a cap-and-trade bill that would have put in place the largest new environmental program since creation of the EPA and the early environmental statutes (Clean Air Act, Clean Water Act, Superfund).  In reality, new legislation on climate change looks very unlikely.  The Re publican's still control the House and the margin is thin for the Democrats in the Senate.  Instead, the Administration will continue to implement climate change regulations under EPA's existing authority under the Clean Air Act.  This will likely mean lowering the carbon emission thresholds that trigger New Source Review and Title V permitting utilizing the Tailoring Rule.  It also means establishing emission standards for new major sources (i.e. New Source Performance Standards).
  2. Ozone-  The President came into office promising to undo the Bush era ozone standard of .75 ppm stating the standard was not based on science.  While the EPA proposed lowering the ozone standard it ended up punting on four separate occasions due to pressure from the business community.  Now it appears almost a certainty that the EPA will finally move forward with a lower standard of .70 ppm.
  3. Coal-Fired Power Plant Emission Reductions-  This past August the D.C. Circuit Court vacated U.S. EPA's Cross-State Air Pollution Rule (CSAPR) also known at the "Transport Rule." The Transport Rule was the second attempt by EPA to establish emission standards for existing coal-fired power plants.  The Transport Rule was blamed for potentially forcing the closure of a significant number of existing power plants threatening to driving up energy prices.  CSAPR was the Obama's Administration's effort to fix the issues the predecessor Bush era program known as the Clean Air Interstate Rule (CAIR) which was also struck down by the Courts.  In the Obama Administrations second term, EPA will once again attempt to fix this massive regulation.
  4. Fracking Regulation-  The natural gas industry continue to boom in Pennsylvania, Ohio and West Virginia.  The massive reserves found in the Marcellus and Utica Shale formations promise to provide home grown energy for a century.  Fracking is used to access these deep reserves that were previously not accessible.  Fracking uses deep wells and then breaks up the rock to release the gas.  Environmentalists are very concerned with the air emissions, water pollution and potential to contaminate groundwater from the fracking process. The Obama Administration moved slowly in putting in place new regulations in his first term.  EPA did establish federal air permitting requirements for new wells.  The Obama Administration also created a federal agency fracking working group to look at the process and recommend new regulations and coordinate between federal agencies.  It is very likely that in a second term will be proactive developing new regulation.
  5. Support for Renewable Energy-  The Obama Administration is likely to continue its strong support for renewable energy like wind, solar and biomass.  Its possible the President will explore a federal renewable energy standard similar to the renewable energy portfolio standards (RPS) imposed in many states.  An RPS mandates a certain percentage of power production must be provided by renewable energy sources.  It is possible the President will try and impose such a mandate nationally.  This still seems unlikely given the make up of Congress.  More likely is that the Obama Administration will continue financial support for the industry through tax breaks, grants and loans.
  6. Boiler MACT- In a second term, President Obama is likely to implement long-delayed emissions regulations for industrial boilers that apply to a whole array of industry. The  Boiler MACT (Maximum Achievable Control Technology), was proposed in 2004  before being delayed by litigation in the Courts.  EPA issued a new proposal in 2011 which was again delay due to controversy surrounding the sweeping new standards.  EPA may issue the final rules as soon as December.
  7. The Role of the Courts-  Many of the areas of regulation discussed above are involved in protracted litigation.  Challenges to climate change regulation are still pending.  EPA's re-write of CASPR will be challenged again.  There could be more challenges to the final boiler MACT rule.  The final ozone rule will almost certainly be challenged.  The petroleum industry will likely challenge any new fracking regulation.  Overall, the second term will not only see significant new regulation but major uncertainty as proposals, both new and old, will be challenged in the Courts.  Businesses like certainty.  In the world of environmental regulation that almost never seems to be the case.


The Threat of Personal Liability for Environmental Violations of Small Businesses

Owners of small business form corporations, in part, to insulate themselves from personal liability. A recent trend in Ohio is that the State has become far more aggressive in pursuing owners of small businesses personally in environmental enforcement actions.

A business owner could still be pursued even if the corporate formalities were followed.  More and more the State is pursuing any president or owner of a small business who has an active role in managing his company day-to-day.

Due to the high costs associated with environmental compliance, this is a trend that owners of small businesses should be aware of and take prudent steps to try and protect themselves. 

"Piercing the Corporate Veil"

A fundamental rule of corporate law is that, normally, shareholders, officers, and directors are not liable for the debts of the corporation. There are exceptions to this rule  Courts have found that the “veil” of the corporation can be “pierced” and individual shareholders held liable for corporate misdeeds when it would be unjust to allow the shareholders to hide behind the fiction of the corporate entity.  This is commonly referred to as "piercing the corporate veil."

The test in Ohio for disregarding the corporate form is whether:

  1. Control over the corporation by those to be held liable was so complete that the corporation has no separate mind, will or existence of its own;
  2. Control over the corporation by those to be held liable was exercised in such a manner as to commit fraud or an illegal act against the person seeking to disregard the corporate entity; and 
  3. Injury or unjust loss resulted to the plaintiff from such control and wrong.

[See, Belvedere Condominium Unit Owners' Assn. v. R.E. Roark Cos. (1993), 67 Ohio St.3d 274, 287, 617 N.E.2d 1075]

It had been a rare instance when the AGO would try to "pierce the corporate veil" and pursue shareholders, owners or officers of a corporate personally for environmental violations.  That has changed since the State won a victory in 2006 in case of State of Ohio v. Mercomp.  In that case, the State successfully pierced the corporate veil attaching personal liability to Manny Rock, a shareholder of a landfill.

What Actions Gave Rise to Liability?

 Here are some of the facts that the Court gave rise to personal liability:

  • Mr. Rock was the sole shareholder of the corporation;
  • The name of the corporation was based upon his initials;
  • Regulatory violations by a corporation, absent affirmative wrongful conduct by the shareholder, is sufficient; and
  • The failure of the Corporation to correct the environmental violations threatened public health and the environment.

It is important to note that the Court found liability even though it did not find under-capitalization, failure to observe corporate formalities, insolvency, or diversion of corporate funds for personal use.

Since 2006 State Seeks Individual Liability Frequently

Since the Mercomp decision in 2006, the State of Ohio has frequently sought (and obtained) personal liability of owners of small businesses.  Individuals are not only required to perform clean up, they are also subject to civil penalties if they don't perform on a timely basis. 

For small businesses that have a sole or large majority shareholder, the Mercomp case increases the liability risks for individuals.  If a company has environmental violations that have gone unaddressed, the State may argue for personal liability.

Owners of small businesses must be aware of these risks and take steps to try and protect themselves. .

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.

Governor Signs Three Major Pieces of Environmental Legislation

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. 


Ohio EPA's Asbestos Rule Change Continues to Generate Controversy

In two prior posts, I discussed the recent Ohio EPA rule change to its asbestos rules.  As discussed previously, Ohio EPA added a single sentence to definition of "friable asbestos" appearing in Ohio Administrative Code Rule 3745-20-01.  The sentence states:

Any category I or category II asbestos containing material that becomes damaged from either deterioration or attempts at removal or abatement resulting in small fragments the size of four square inches or less shall also be considered friable or RACM.

The change is being referred to as the "four square inch" rule. 

Since the rule change was issued, many contractors and industry officials have commented that it represents a significant change that directly impacts abatement and demolition practices.  Ohio EPA has maintained that all they were doing was providing greater clarity as to what the term "small fragments" refers to in the rule.

BECO Luncheon Highlights Controversy Regarding the Rule

This afternoon I attended the Building Environment Council of Ohio (BECO) luncheon where a panelist of three Ohio EPA staff were present to discuss and answer questions regarding the rule.  A simple one sentence change resulted in more than two hours of discussion. 

Why so much discussion?  The dispute seems to boil down to whether non-friable asbestos category I material, such as vinyl floor tile or roofing material, must be removed prior to demolition of the structure. 

Contractors in the audience told Ohio EPA that it was virtually impossible to demolish a large structure without breaking up Category I material into four square inches.  They also asserted that if the demolition didn't break up the material, the clean up afterward would more than likely result in four squire inch pieces.  Contractors noted that U.S. EPA guidance suggests Category I non-friable asbestos can remain during demolition.

Ohio EPA responded that they felt the rule change had nothing to do with the issue of removal prior to demolition.  The Agency indicated all the rule does is define what constitutes "small fragments."  The Agency personnel acknowledged the U.S. EPA guidance and said its still the rule that non-friable material can remain during demolition, but noted, even prior to this rule change- you run the risk material gets broken up into small fragments which we could consider a potential violation.

The Agency mentioned that in West Virginia and Tennessee the asbestos rules simply require removal of all Category I non-friable material prior to demo.  Contractors in the audience asked the Agency why they didn't simply write the rule to require removal like those other states. 

Ohio EPA responded that they wanted to preserve the option that building owner did not have to remove the Category I non-friable material prior to demolition.  Staff said that "perhaps the owner is very confident demolition won't result in small fragments."  It was noted by several in the audience that the lack of clear standard puts demolition contractors in a very tough spot.

The takeaway from the discussion-  If you leave Category I asbestos material in place during demolition, you run the risk that from the point of demolition to disposal in a landfill it gets broken into small fragments which the Agency may consider a violation.  The Agency said said one piece four inches in size wouldn't be a violation, there would have to be a "substantial" amount of such small fragments.  What constitutes "substantial" would be decided on a case by case basis.

U.S. EPA Releases New Air Emission Standards for Fracking

On April 17th, EPA issued new rules designed to reduce air emissions from oil & gas operations, including wells drilling using hydraulic fracturing ("fracking").  The new federal standards (New Source Performance Standards -NSPS) are seen as the first significant new federal regulation governing fracking. 

Some may wonder how gas wells generate air emissions.  When a horizontal gas well is drilled and fracking is used, large amounts of water and some chemicals are pumped down the well to break up rock in the shale formations in order to release the gas for recovery.  Prior to putting the well into production, the water and chemicals are removed.  This is referred to as "flowback water."

When flow back water is recovered it is accompanied by gases, including volatile organic compounds (VOCs) and methane, which in most cases, is simply vented to the atmosphere. 

Methane emissions from fracking has received significant attention recently due to the fact it is a potent greenhouse gas- 20 times more damaging than CO2 emissions.

EPA says that the oil & gas industry is the largest source of methane emissions in the U.S. making up approximately 40% of all methane emissions.  Controlling VOC and methane emissions is what prompted EPA to issue the new federal standards.

EPA Delay's More Expensive Controls to 2015

EPA seeks to reduce air emissions from fracking by requiring, initially destruction of the gas and then recovery through "green completion."  In a green completion, special equipment separates gas and liquid hydrocarbons from the flowback that comes from the well as it is being prepared for production. The gas and hydrocarbons can then be treated and used or sold.

EPA's draft rule would have mandated "green completion" as the best control technology.  However, industry voiced strong concern that the equipment wasn't widely available and requiring this technology too quickly could impact production.  In the final rule, EPA decided to delay the mandate for "green completion" until January 1, 2015.

Until 2015, producers must control emissions by using flares to burn off the VOCs and methane emissions. The flare must be able to eliminate 95% for the VOC emissions.

For more information:


Ohio EPA Loses in Court Over "Friable Asbestos" Triggering Rule Change

In a prior post (Ohio EPA Asbestos Rule Changes Could Prove Costly), I discussed Ohio EPA rule change to the definition of friable asbestos.  As discussed in the prior post, Ohio EPA added a single sentence to definition of "friable asbestos" appearing in Ohio Administrative Code Rule 3745-20-01.  The sentence states:

Any category I or category II asbestos containing material that becomes damaged from either deterioration or attempts at removal or abatement resulting in small fragments the size of four square inches or less shall also be considered friable or RACM.

It appears that the Ohio EPA rule change was triggered by the fact is lost in Court over this very issue- whether small pieces of category I ACM were "friable asbestos" triggering NESHAP management regulations.  Not only did Ohio EPA lose at the trial court level, it now has also lost on appeal. 

A Battle of Experts

The appellate court decision was issued March 30th in State of Ohio v. Titan Wrecking & Environmental LLC.  The case involved the removal of vinyl floor tile in a Cleveland School prior to demolition. 

The issue was whether Titan's method of removal (use of a bobcat to pull up the tile) caused the tile to become "regulated asbestos containing material" (RACM) and subject to asbestos regulations (the NESHAP regulations).  State experts asserted at trial that the vinyl floor tile was rendered friable and/or that it had been subject to grinding by Titan's removal activities and, as a result, Titan should have complied with the emission control and disposal procedures set forth in the Ohio Administrative Code.

Ohio EPA asserted that contractors cannot deliberately cause ACM tile to become friable by removal.  That the tile should have been removed intact and remain that way all the way through disposal.  The fact the tile was "broken into small pieces...some pieces smaller than a dime" meant it had become friable.

Titan's expert said U.S. EPA had removed the term "broken" in prior guidance.  Current EPA guidance says the tile must be "crumbled, pulverized, or reduced to powder" to be considered friable, not just broken. 

The Court said it weighed the evidence and the testimony of the experts and agreed with Titan's expert (Wayne Ingram- Testing Services International)  The Court of Appeals refused to overturn the trial court's decision that broken vinyl floor tile was not enough evidence to conclude it had become friable.

After Losing in Court Ohio EPA Changes the Rule

As you can see from the description of the case, the issue really came down to whether broken pieces of floor tile triggered asbestos regulations.  Since Ohio EPA lost based on expert witness testimony and a review of current EPA guidance, Ohio EPA decided to amend the rule to specifically add language incorporating their preferred interpretation.

As discussed in the prior post, the rule change could prove costly for contractors who typically preferred removing floor tile or other ACM prior to demolition. 


President Issues Executive Order Creating Interagency Work Group on Fracking

On April 13th, President Obama issued an Executive Order creating a federal inter-agency task to coordinate efforts on oversight of horizontal well drilling and hydraulic fracturing for natural gas.  Method such as hydraulic fracturing (i.e. "fracking") have allowed access to massive new deposits of natural gas bring the price down for natural gas to historic lows.  While fracking has resulted in a huge increase in production, the drilling method continue to generate environmental concerns.

Thus far, the States have really taken the lead in development of new regulations and requirements for fracking.  In my last post I discussed Ohio's recent legislative proposal. Now, the federal government will attempt to coordinate its efforts regarding oversight and planning associated with unconventional natural gas drilling techniques such as fracking.  The Executive Order creates the inter-agency work group for the following purposes:

  1. Coordinate agency policy activities, ensuring their efficient and effective operation and facilitating cooperation among agencies, as appropriate;
  2. coordinate among agencies the sharing of scientific, environmental, and related technical and economic information;
  3. engage in long-term planning and ensure coordination among the appropriate Federal entities with respect to such issues as research, natural resource assessment, and the development of infrastructure; 
  4. promote interagency communication with stakeholders; and
  5. consult with other agencies and offices as appropriate.

The Work Group is made up of 13 federal agencies and departments, including: U.S. EPA, U.S. Dept. of Transportation, Dept. of Interior, Dept. of Energy, and others. 

It appears that industry supports the working group as a potential mechanism to avoid applicative regulation.  This from the Washington Post:

“We have called on the White House to rein in these uncoordinated activities to avoid unnecessary and overlapping federal regulatory efforts and are pleased to see forward progress,” said Jack Gerard, president and CEO of the American Petroleum Institute, the largest lobbying group for the oil and gas industry.

Gerard and other industry leaders met with White House officials Friday.

Dave McCurdy, president and CEO of the American Gas Association, said the new working group will help promote consistency among administration policies.

In it is interesting that the Washington Post and other news outlets reported the purpose of the working group as to "coordinate new regulation."  However, reading through the five stated purposes of the working group none of them even mention regulation. Rather, it appears as if the purpose of the group is to share information, not coordinate regulatory efforts.

In my experience working with such federal inter-agency workgroups associated with the Great Lakes, federal agencies were reluctant to give up their own turf.  Unless the Administration takes an active role in working group it seems very unlikely the agencies, on their own, will coordinate their regulatory efforts.. 



Governor Releases Bill to Regulate Shale Gas Drilling and Wastewater Disposal

Right now there is no other topic in Ohio that generates more news coverage than horizontal gas drilling (or "fracking").   It seems a day doesn't go by without a new news story regarding fracking or related developments.

Ohio has seen oil & gas wells installed for well over a hundred years.  However, until recently huge deposits of natural gas in shale formations deep beneath the ground were not accessible.  Now, using new technology (i.e. fracking) those deposits can be tapped.  The implications for Ohio are certainly significant.

Along with the tremendous opportunity that access to the Utica Shale deposits present, come concerns regarding protecting the environment, including ground water resources. Many have said that Ohio's out dated oil & gas laws need to catch up with today's technology.

Senate Bill 315

In order to address these concerns, on March 22nd Governor Kasich released Ohio Senate Bill 315 (S.B. 315).  While the bill is dubbed an energy bill and does touch on other subjects, its principal focus is new regulation of horizontal gas well drilling.

The bill also attempts to increase regulations on deep well injection as a means of disposal of massive amounts of fracking wastewater and/or brine.  In the aftermath of the controversy as to whether disposal of fracking wastewater led to earthquake(s) in Northeast Ohio, the bill adds to the growing list of new regulations governing this method of disposal.

Major New Requirements in S.B. 315 Governing Horizontal Wells or "Fracking"

  • Creates a new oil & gas permit to be issued by the Ohio Department of Natural Resources (ODNR) for "horizontal wells:"
  • The new horizontal well permit application will require new information that the old oil & gas permit applications never addressed, including:
    • A $15,000 permit fee;
    • Road Use Maintenance Agreements-  will require the applicant to provide a copy of an agreement with local government(s) concerning maintenance of roads, streets, and highways;
    • Source Water Identification- must identify the ground water or surface water source for the production of the well.  This is requirement applies to horizontal well permits because they use millions of gallons of water;
    • Residential Well Sampling-  must show the sample results of all water wells within 1,500 feet of the proposed well prior to commencement of drilling;
    • Insurance Coverage-  must obtain $5 million in coverage for injury to persons or property.  Also, must include a "reasonable level" of coverage for any pollution or contamination that may occur as a result of the drilling, operation, or plugging of the owner's wells. (See discussion below regarding insurance)
    • Disclosure of fluids used in wells- one area of controversy associated with fracking is the use of chemicals along with the water during the drilling and fracking process.  Under the bill, the owner of the well will have to disclose all chemicals used and the amount used during service, operation, and plugging of the well.  These compounds will be posted on ODNR's web page.
    • Fresh Water Impoundments-  ONDR is given rule making authority to regulate location and construction of fresh water impoundments used in fracking.

Major New Requirements Governing Deep Well Injection

  • S.B. 315 increases disposal fees and includes new regulations governing oil & gas injections wells, including:
    • Doubles the fee for each barrel of substance generated locally that is disposed through deep well injection;
    • Raises the fee by five times the amount (20 cents to $1 dollar) for out of state substances shipped in for disposal in Ohio deep wells.  This is likely to address the concern Pennsylvania is shipping its wastewater associated with fracking to Ohio for disposal;
    • Increases the information that must be submitted by a brine/wastewater transporter to be properly certified by the State; and
    • Owner of deep well must obtain list from transporter of brine or wastewater generated through fracking a list of all chemical compounds.

Key Issue under S.B. 315:  How Much Environmental Insurance will be Required?

The philosophy of the bill seems to be requiring data collection prior to commencing the fracking process.  What data is being collected?  The current levels of contamination, if any, in existing residential wells within 1,500 feet prior to horizontal drilling.  Followed by disclosure of all the chemicals compounds used in the fracking process.  

The hope is that the information  (i.e. baseline record) could be used to determine if fracking contaminated groundwater or drinking water supplies.  Simply compare the old well samples to new sample, post fracking, and see if any of the disclosed chemical compounds are detected.

Assume it is demonstrated that contamination did occur as a result of fracking.  The bill requires a "reasonable level" of insurance coverage be provided for environmental contamination.  The determination of "reasonable" will be key issue.

It is likely (and would make good business sense) if you were an oil & gas driller to use the corporate form to try and limit liability if something goes wrong.  This means it is quite possible the only funds that may be available to address contamination will be insurance proceeds.    Therefore, how much insurance coverage is required will be a key issue. 

EPA Overhauls Underground Storage Tank Regulations for the First Time in Over Two Decades

EPA is proposing a whole series of new inspection and testing requirements for underground storage tanks (USTs).  By expanding the types of UST systems covered under the rules, EPA is  proposing to extend application of all UST regulations to entities not previously regulated, such as hospitals and universities.

EPA first promulgated regulation governing underground storage tanks (USTs) in 1988 (40 CFR Part 280). This regulation set minimum standards for new tanks and required owners and operators of existing tanks to upgrade, replace, or close them. The regulations largely covered gasoline dispensing facilities (GDFs).  Now EPA wants to extend these regulations to other UST systems, such as those used for emergency power generators.

EPA has not significantly changed the UST regulations since 1988.  In November 2011, EPA released a proposed UST rule package that would amend the 1988 regulations for the first time in over two decades. 

Basic Purpose of New UST Regulations

EPA states the purpose of the amendments to the UST regulations is to add additional protections to prevent contamination of ground water. The amendments add new requirements in the following areas:

  • new inspection requirements;
  • establish operator classifications and associated mandatory training;
  • establish new standards for when tanks must be replaced; and
  • extend application of the regulations to tanks not previously covered.

Costs Associated with the New Regulations

U.S. EPA performed a regulatory impact analysis for the new requirements for USTs.  It asserts that the total cost for businesses to comply with the new requirements is $210 million.  EPA asserts that these costs are offset by the avoided clean up costs associated with spills that the new requirements are projected to prevent. 

In weighing compliance costs with spill prevention, EPA says there is a net benefit to businesses. Its hard to see that businesses will view these new requirements as an overall cost benefit.  In addition, the regulations add a new layer of paperwork for every tank covered.

EPA estimates it will cost each facility approximately $900 per year to comply with the new requirements.  However, that figure does not capture the costs that may be incurred by entities that will be covered by the UST regulations for the first time.

Details on the Proposed Changes to the 1988 UST Rules

Along with the rule package, EPA put together a chart explaining the changes to the 1988 rules.  Some of the major changes worth noting are as follows:

  1. Extends Regulations to New USTs-  the proposed rule eliminates "deferrals" that had exempted certain tank systems from the UST rules.  Systems that would be covered include: emergency power UST systems, airport hydrant fuel distribution systems, field-constructed tanks, and certain waste-water treatment tanks systems.
  2. National Inventory of USTs-  All owners of USTs covered by the rule are required to submit a one-time notification of how many USTs they have, where they are located, when they were installed, and other identifying and compliance information.
  3. Creates Operator Classifications and Mandatory Training- the new regulations create three classifications of operators (A, B and C).  An individual must be designated for each of the three classes which cover employees with managerial, maintenance and day-to-day operational duties.. Each operator classification is required to be trained on minimum defined areas.  Records must be maintained at each facility to show the operator training requirements have been satisfied;
  4. New Tanks Must Have Secondary Containment and Under-Dispenser Containment (UDC)-  all new and replaced UST systems must have secondary containment and UDC.
  5. Spill and Overfill Inspections and Testing-  Overfill equipment must be tested regularly.  Spill prevention and release detection equipment must be tested regularly.  Walk through inspections will be required to check on condition of equipment.  The rules would phase out vapor monitoring and groundwater monitoring as release detection methods.
  6. Replacement of UST Once Lining Fails-  The 1988 UST regulations allowed lining as an upgrade option to extend the life of some tanks.  Under amendment, once lining fails the UST must be taken out of service and replaced.
  7. Testing After Repairs-  Testing of the system is required after any repair to spill and overfill equipment and secondary containment.  Even if the repair was due to general maintenance and not related to a release.
  8. Standards for Tanks Holding Ethanol or Biodiesel-  EPA is concerned certain chemicals are degrade tanks more quickly.  Therefore, any tank holding greater than 10% ethanol or 20% biodiesel must demonstrate compatibility.  The proposed regulations set forth standards for determining compatibility. 
  9. States Given Three Years to Adopt New Standards

Comment Period Extended

The original rule package was issued on November 18, 2011.  EPA decided to extend the comment period until April 16, 2012. 

Ohio EPA Reform Bill Introduced

Last week Senator Schaffer introduced Senate Bill 294- dubbed the EPA reform bill.  According to testimony from Senator Schaffer and OEPA Director Scott Nally, the two had been working on the legislation for months.

This bill is the probably the first since Ohio EPA creation that touches on so many different areas of EPA regulatory authority, including:

  • Infectious waste- eliminate duplicate regulation
  • Wetland mitigation- change the hierarchy of mitigation (see below)
  • Underground storage tank clean up at brownfields- streamlines brownfield clean up (see below)
  • Compliance assistance to small businesses- expands confidentiality for inquiries for assistance by small businesses
  • Construction & demolition debris fees- clarifies fees apply to asbestos containing material
  • Statute of limitations for environmental enforcement actions- applies statute of limitations to enforcement actions related to construction & demolition debris
  • Regulation of public water systems and public water system operators- establishes criminal penalties for falsification and vandalism related to public drinking water systems
  • Disposal of solid waste- bans disposal of certain aluminum production waste after issues with fires at Countywide landfill

While the bill is broad in scope, many of the changes are minor fixes to address out of date statutory language.  The biggest changes fall into the following areas:

Wetland Mitigation- 

Anytime a developer impacts wetlands, they must offset the impacts with mitigation.  Under current law, the hierarchy of mitigation required the developer to, first, try and perform mitigation on-site by creating new wetlands.  Then mitigate off-site, but in the same watershed.  If on-site and off-site mitigation weren't possible, the final option was purchasing credits at a wetland mitigation bank owned and operated by a third party. 

Years ago, Ohio EPA studied the effectiveness of on-site mitigation and found that most newly created wetland were failing.  This prompted a lengthy discussion about the merits of using wetland banks versus developer driven mitigation projects.

S.B. 294 flips the hierarchy on its head.  Now, the preferred option is purchasing credits at a mitigation bank.  Such a change may allow for better success in terms of survival of man-made wetlands.  Also, a preference towards banks should greatly accelerate the permitting process for developers who often get bogged down in trying to find mitigation sites.

S.B. 294 also provides Ohio EPA with the authority to start an in lieu fee program.  Under such a program, a developer could simply write a check paying for mitigation credits versus finding a mitigation project or bank.  Ohio EPA, ODNR or a private entity operating the in lieu fee program could then use the funds to start mitigation projects they select.  This option assist developers when they can't find sufficient credits at an acceptable mitigation bank.

Underground Storage Tanks at Brownfields-

This has long been an issue highlighted on this blog.  Under current Ohio law, any business or developer cleaning up a brownfield is forced to go through two separate clean up programs if their site has underground storage tanks regulated by the Bureau of Underground Storage Tank Regulation (BUSTR).

Under Ohio law, any areas of brownfield site with BUSTR tanks is ineligible for participation in the Voluntary Action Program (VAP) until it, first, clean up the BUSTR tanks in accordance with BUSTR regulations.  Never mind that the VAP clean up standards and BUSTR were equivalent in their protection of human health and the environment.

What resulted is lengthy delays at brownfield sites while the volunteer addressed all BUSTR tank issues prior to proceeding with the VAP.

S.B. 294 will allow any person cleaning up a brownfield to use the VAP to address BUSTR tanks as long as two conditions are met:

  1. The VAP clean up also addresses other hazardous substances or petroleum that is not BUSTR regulated; and
  2. The fire marshal has not issued an enforcement order requiring BUSTR closure.

This is a great reform that is a long time coming.  It should make brownfield as well as VAP clean ups at operating sites far less complicated.

Compliance Assistance for Small Businesses

Ohio EPA has the Office of Compliance Assistance and Pollution Prevention (OCAPP).  OCAPP allows small business to call EPA staff and ask for assistance with permitting or compliance issues without fear of enforcement. 

Under existing law, only inquiries regarding air permitting are confidential.  S.B. 294 would make inquiries into other permitting programs confidential.  This gives the business the comfort of knowing their noncompliance, by law, cannot be reported to other EPA divisions or offices. 

OCAPP can be a great tool for small businesses to cost effectively untangle complex EPA regulations and file for permits.  S.B. 294 will enhance OCAPP's capabilities.

Introduction Just Marks the Beginning of the Legislative Process

S.B. 294 will be very interesting to watch as it proceeds through the legislature.  Will Senator Schaffer and Ohio EPA be able to prevent it from becoming a "Christmas Tree", where every group and legislator tries to include their concepts or ideas for reforms to EPA?

Time will tell.


Recent Court Case Limits Ohio EPA Enforcement Authority and Ability to Recover Costs

A recent court case calls into question Ohio EPA's legal authority to recover certain costs related to investigation and clean up of contaminated sites.  The case also raises questions about Ohio EPA's long standing practice to negotiate administrative settlements of enforcement actions.

On January 18, 2012, the First District Court of Appeals in Hamilton County issued a decision in DeWine v. Mass Realty.  Due to the serious implications that may stem from this decision, it is certain the State will seek a appeal to the Ohio Supreme Court.

Recovery of "Response Costs"

Ohio EPA has long pursued recovery of costs it incurs in investigating, cleaning up and taking enforcement actions at sites that have soil and groundwater contamination.  Ohio EPA tracks the time its personnel work on these properties and routinely recovers such costs through enforcement actions against the owners or operators of those sites.  Ohio EPA relies on R.C. 3734.20 as the basis of its authority to recover such costs.

The Court in Mass Realty said that Ohio EPA had over reached its statutory authority under R.C. 3734.20 in terms of the types of costs it could recover.  The Court said Ohio EPA's authority is limited to costs the Agency's incurs directly related to "investigation" or "corrective measure."  The Court said that staff time and travel costs were simply "normal office overhead items" for which Ohio EPA does not have the legal authority to recover.

The Court's view of costs recoverable under R.C. 3734.20 is more limited than U.S. EPA's ability to recover response costs under CERCLA (Superfund). 

Enforcement Authority

For decades, Ohio EPA has negotiated resolution of enforcement actions with companies using administrative order settlements.  These orders are referred to as Consensual Director's Findings & Orders ("Consensual F&Os").

Use of agreed settlements is important to Ohio EPA because it lacks the authority to unilaterally impose civil penalties. By negotiating resolutions of enforcement actions, Ohio EPA could impose penalties without having to refer those cases to the Ohio Attorney General's Office.

In virtually all Consensual F&Os issued over the last decade, Ohio EPA routinely cited to R.C. 3745.01 as its legal authority for such actions.  Ohio EPA has argued this statutory provision provides the Agency the ability to enter contracts.  Ohio EPA says Consensual F&Os are contracts- a voluntary agreement to resolve violations between the Agency and companies or individuals.

The Court rejected Ohio EPA's claim.  It said that R.C. 3745.01 did not provide the legal authority for such Orders.  The Court said Consensual F&Os goes beyond the type of contracting authority granted the Agency by the Ohio Legislature.

Potential Impact of the Ruling on Ohio EPA's Enforcement Process

Ohio EPA stopped issuing enforcement reports in 2006.  However, reviewing the charts from the last available report, highlights the significant issue that the Agency faces should Ohio EPA be found to lack the authority to impose penalties through Consensual F&Os.

 If Ohio EPA is forced to refer every case to the Attorney General's Office that it wishes to impose a civil penalty could mean a 400% increase in the number of cases referred.






Ohio Could be at the Center of a Major Energy Transformation from Coal to Natural Gas

U.S. EPA finally issued its long awaited air pollution regulation aimed at reducing mercury emissions from coal-fired power plants- Mercury and Air Toxics Standards (MATS).  MATS sets specific numeric emission standards for mercury and other air toxics from coal-fire power plants  25 megawatts in size or larger.

MATS will apply to some 1,400 generating units across the country.  The rules carry with them a $9.6 billion dollar price tag.  Power produces have until 2015 to 2016 to comply with the new regulations.

The new regulation, along with a series of earlier federal regulations, have made coal power generation more expensive. Meanwhile, the rich deposits of natural gas in the Marcellus and Utica Shale have kept natural gas prices down. 

Ohio could be at the center of a major shift in power generation.   Right now Ohio's baseload power generation tilts heavily in favor of coal with 86% of its generation from coal and only 2% from natural gas.  However, the scales may be starting to go  in favor of natural gas.  MIT's recent study on natural gas showed its role will increase significantly the coming years in the energy sector. 

On June 8, 2011, AEP released its compliance plan which calls for retirement of coal plants and new natural gas capacity.  According to SourceWatch:

 AEP’s compliance plan would retire nearly 6,000 megawatts (MW) of coal-fueled power generation; upgrade or install new advanced emissions reduction equipment on another 10,100 MW; refuel 1,070 MW of coal generation as 932 MW of natural gas capacity; and build 1,220 MW of natural gas-fueled generation. The cost of AEP’s compliance plan could range from $6 billion to $8 billion in capital investment through the end of the decade

In 2011, many power producers announced they were closing Ohio coal-fire generating facilities.  These include:

  • AEP's Picway
  • AEP's Conesville
  • AEP's Muskingham River
  • Duke Beckjord
  • DP&L Hutchings

According to an Associated Press survey of 55 power producers, more than 32 mostly coal-fired power plants in a dozen states would close. The survey indicated no threat to the reliability of the nation’s power system.

Pennsylvania is about decade ahead of Ohio in its shift toward natural gas due to the fact the Marcellus shale formation is proven and the Utica shale is not.  Pennsylvania offers a glimpse into Ohio's future.

Chart shows Pennsylvania's ten fold increase in natural gas power generation.  In a decade, natural gas has gone from 2% of Pennsylvania's power generation to 17%. 

Meanwhile, coal power generation in Pennsylvania has seen a corresponding drop from 56% to 47% of overall generation in the State.   (Chart- Investment U "Pennsylvania leading the shift to natural gas)


Study Reveals Environmental Issues in Oil & Gas Leases

There was an excellent article in the New York Times discussing the issues homeowners and landowners are facing when signing oil & gas leases- Learning Too Late of the Perils in Oil & Gas Leases

The Times reviewed 111,000 oil & gas leases from Ohio, Pennsylvania, New York Texas and West Virginia.  It found many of the leases contained very unfavorable terms for landowners and homeowners who sign up with drilling companies.  Many of the issues pertain to the potential environmental problems that may happen once drilling commences or even after work is finished at the property.

Concerns identified included:

  • less than half the leases compensate for water contamination;
  • many lack language to protect against livestock and crop damage;
  • grant driller broad rights to build road, store chemicals and even leave waste in place once drilling has ceased.

Not discussed in the article are other issues that need to be considered by landowners when negotiating leases. 

First, even if the lease contains language which entitles the landowner to compensation if environmental contamination or other property damage occurs, does the company really have the resources to pay?  Its possible the corporate structure is established to prevent liability from flowing to the parent corporation.  

Second, what happens if you neighbors sue you claiming environmental contamination, nuisance or property damage?  Does the lease provide any guarantee that your attorney costs will be paid? 

Landowners are constantly hearing about the opportunities associated with the Marcellus and Utica shale deposits.  However, are they protecting themselves properly in the event something goes wrong?   

Sackett Case Could Be a "Game Changer" on EPA Enforcement

Back in June, the Supreme Court agreed to hear the case of Sackett v. EPA which could forever change the way EPA enforcement actions are defended.  While the case involves an EPA administrative enforcement order for unauthorized filling of a wetland, the ruling potentially impacts EPA enforcement under all its major statutes- RCRA (hazardous waste), Clean Air Act (CAA), Clean Water Act (CAA), and even CERCLA.

What is at issue?

When EPA believes a violation of its regulations has occurred it has the power to issue an administrative order compelling the alleged violator to remedy the issue.  EPA takes the position that the person/entity subject to that order cannot challenge the Order's validity prior to EPA taking a formal enforcement action in Court (referred to as "pre-enforcement review"). 

EPA's position leaves the person or company subject to the order with a Hobson's choice- either comply and incur the costs upfront or defy the order and face penalties for its noncompliance.

The courts have almost universally upheld EPA's position that its compliance orders cannot be challenged until it takes an enforcement action.  However, the Supreme Court has agreed to take a fresh look at this issue in the Sackett case.

Synopsis of Sackett Case

The Sacketts were building a residential home on their property.  EPA alleges that, during construction of the home, the Sacketts filled a 1/2 wetland without a permit. Filling a wetland without a permit is a violation of Section 404 of the Clean Water Act.   EPA issued an administrative order requiring the Sacketts to remove the fill and restore their property to its original condition.

Sacketts could either spend the money to remove the fill and restore the property or they faced penalties for non-compliance with EPA's order of up to $37,500 per day.  To give an idea of the risk the Sacketts must take if they did not comply, one month's worth of penalties could equal $750,000.

Sacketts petitioned EPA for a hearing to challenge EPA conclusion that their property had a jurisdictional wetland.  EPA did not grant the hearing, so the Sacketts filed suit making the following challenges:

  1. No Bar to Pre-Enforcement Review of EPA's Order-  The Sacketts argue that the Clean Water Act ("CWA"), unlike CERCLA (Superfund), contains no express statutory bar to pre-enforcement review of administrative orders.  Therefore, the should be able to challenge the validity of EPA's order without risking being subject to civil penalties for non-compliance with the Order.
  2. If there is a Bar to Pre-Enforcement Review it Violates Due Process under the Constitution-  In the alternative, if the Court finds that the CWA does contain an implied bar against pre-enforcement review, such a bar violates the U.S. Constitutional guarantee of Due Process.

 Game Changer?

If the Supreme Court agrees with the Sacketts, companies and individuals would be provided much better options when facing an EPA order.  Rather than immediately complying or risking penalties, they could challenge the EPA's order in Court.  Importantly, the challenge could be made before EPA has the legal authority to assert civil penalties for failure to comply with the Order.

This case involves EPA's enforcement authority under all its major statutes (CWA, RCRA, CAA and CERCLA).  This means EPA efforts to immediately compel action under any of these statutes through administrative orders would be practically be eliminated.  It would likely mean that EPA would, in many cases, skip the administrative order step and immediately sue in Court.

Legal Arguments

Implied Bar Against Pre-Enforcement Review

Only CERCLA contains an express bar in the statute against pre-enforcement review of administrative orders issued under the Act.  While the other environmental statutes (CWA, RCRA and CAA) don't contain such an express bar, the Administrative Procedures Act (APA) states that a bar exists if the "the congressional intent to preclude judicial review is fairly discernible in the statutory scheme."

The Ninth Circuit in Sackett said the bar was implied in the CWA because Congress intended EPA to have the authority to remedy violations quickly.  Similar arguments have been successful in other cases challenging EPA's authority involving other statutes.

The Supreme Court will review the Ninth Circuit's determination that an implied bar exists.

Bar Against Pre-Enforcement Review Violates Due Process

Even if the Court finds the implied bar exists, it could still say such a bar violates the Constitution.  At issue will be whether the negative ramifications of receiving a Unilateral Administrative Order constitute property deprivations protected by the Due Process Clause

General Electric ("GE") challenged EPA's Administrative Order authority when it received an CERCLA Order requiring clean up.  GE argued that its stock price could suffer, its brand would take a hit and it could face higher financing costs.  GE said all of these negative ramifications were enough a property deprivation to require due process (i.e. the ability to challenge the Order pre-enforcement).

The D.C. Circuit rejected GE's arguments.  It said GE could always challenge any penalties for noncompliance once EPA brought an enforcement action in Court.  It also found the consequential impacts on GE from receiving the Order were not significant enough to merit due process protection.


The odd thing is that the Supreme Court agreed to hear the Sackett case.  Only three weeks earlier it rejected GE's petition on the Due Process issue.  Also, regarding the existence of an implied bar, there appears to be no split among Circuits on the issue that typically is a basis for the Supreme Court to review an issue. 

The fact that the Court agreed to hear the case suggests some on the Court are uncomfortable with the current state of the law.

New BUSTR Classification for Underground Storage Tanks Meant to Accelerate Clean Ups

One of the issues that can complicate a clean up is if multiple environmental regulatory programs apply to the site.  Even the same type of contamination may be required to be addressed under different programs and different processes.

A prime example of this issue in Ohio is the disconnect between Ohio's Voluntary Action Program (VAP) and the Bureau of Underground Storage Tank Regulation (BUSTR) which applies to petroleum underground storage tanks (USTs).  Until recent legislation, a BUSTR regulated UST was totally ineligible for clean up under the VAP.

As a practical matter, the ineligibility of BUSTR tanks can cause significant delays on a clean up project.  Why?  Because the property owner typically wants to eliminate the BUSTR eligibility issue first by investigating and cleaning up USTs under BUSTR regulations before proceeding with the VAP. 

If you don't front load the BUSTR clean up and proceed with the VAP, you can be left with what is called a "Swiss Cheese" covenant upon completing the VAP- you get a legal release (covenant not to sue- CNS) from Ohio EPA that excludes all areas failing to complete a BUSTR required clean up.

In order to avoid the "Swiss Cheese" CNS, property owners complete their BUSTR Tier 1 investigations and Tier 2 clean up, if needed, under BUSTR regulations first before completing the VAP.  This often prolongs a clean up by months or even up to a year.  It also adds costs to the project.

Does this really make sense when both VAP  and BUSTR clean up standards have been determined to be protective of human health and the environment?

New Legislation Creates BUSTR Class C

In an attempt to partially remedy the delays caused by the conflict between BUSTR and VAP, House Bill 152 amended the law on June 30, 2011.  The new law is effective as of September 28th.

The law states that certain BUSTR USTs- Class C tanks- can be cleaned up under the VAP without completing a BUSTR clean up first. The tank has to be removed in accordance with BUSTR regulations, but the soil assessment and clean up can be performed under the VAP.

A Class C release is defined as a release of petroleum subject to BUSTR laws, where the responsible person for the release is determined by BUSTR to not be a viable person capable of undertaking or completing the required assessment and clean up.  In other words, the responsible party has no money to perform the BUSTR clean up.

BUSTR can determine a UST is a Class C if the following apply:

  • responsible party is deceased or bankrupt
  • a review of financial records demonstrates the responsible party is financially unable to assess and clean up the release

Based upon an Ohio EPA fact sheet on the BUSTR Class C designation, 121 sites have Class C releases already determined (as of July 12, 2011).  

For more information here is a link to Ohio EPA's web page discussing the Class C designation.

Class C Designation Doesn't Go Far Enough

As discussed above, the fact BUSTR clean up regulations can apply to a VAP clean up can result in significant delays, added costs and additional complexities.  Both clean up programs are protective of the environment.  So, why not allow all BUSTR regulated tanks to be closed and cleaned up pursuant to the VAP?

I suppose the State's answer is, in part, if a viable party responsible for the tanks exists they shouldn't be allowed off the hook for their BUSTR clean up obligations.  This would be rewarding a tank owner who ignored its legal obligations.

The only problem with that argument  is that the ineligibility of BUSTR tanks for the VAP really hurts the volunteer more than it does the responsible party.  The volunteer wants an expedited and cost effective clean up. The volunteer often doesn't want to chase down the responsible party before completing its clean up.  Forcing the volunteer to address the outstanding BUSTR obligations first before proceeding with the VAP results in both delays and added costs to the detriment of the volunteer.

Why not at least allow a volunteer to address BUSTR tanks under the VAP without having to demonstrate the tank's responsible party is not viable?  You could still exclude the responsible owner from using the VAP.  This would at least not reward the UST responsible party, but would greatly assist the volunteer.

(Photo:  South Carolina Department of Health and Environmental Control)

Kasich Administration Releases Plan for Reorganization of the Ohio Department of Development

One of Governor Kasich's top priorities is to restructure the Ohio Department of Development shifting some of its core functions to the private sector. The General Assembly passed the JohsOhio Bill which launched an evaluation of the current Department.

The bill allowed for the creation of a non-profit corporation which would assume some of the duties and responsibilities of the existing Department. The bill also required the Director of the Ohio Department of Development to evaluate all powers, functions, and duties of the existing Department and submit a report to the General Assembly that includes recommendations in the following areas:

  • Improve the functions and efficiency of the Department
  • Transfer specified powers, functions, and duties to other existing state agencies or to JobsOhio (private sector entity);
  • Eliminate specified powers, functions, or duties of the Department.

On August 18th, the Administration released its report with the results of its review and proposal for restructuring the Ohio Department of Development to the Ohio General Assembly. In the report, the Administration makes the recommendation to transfer core duties to the non-profit corporation. The Department will also undergo a restructuring relative to those duties and responsibilities that remain with the Department.

JobsOhio Duties

The following functions will be moved to the non-profit corporation:

·        Office of Business Development- responsible for jobs retention, expansion and location. This includes incentive packages to attract or retain companies.

·        Office of Grants and Tax Incentives- responsible for grants and tax incentives associated with business attraction and development.

·        Office of Loans and Services- loan origination and servicing

·        Ohio Tourism- marketing of the tourism in the State

Ohio Development Services Agency

The old Ohio Department of Development will be renamed the Ohio Development Services Agency. It will have three key divisions that will retain a large portion of the remaining functions of the current Department.  The new organization of the Agency will consist of three divisions:

·        Business Services

·        Community Services

·        Operations

Impact on Environmental Grant Programs (Clean Ohio)

The Clean Ohio and Jobs Ready Site programs are the two largest grant programs available for redevelopment of brownfields. These programs will remain government functions and be housed under the Community Services Division of the newly formed Ohio Development Services Agency.

The report includes additional recommendations from stakeholders and staff about changes to the urban development functions including the Clean Ohio program. One possibility apparently not seriously discussed was moving these functions over to Ohio EPA’s brownfield program.  Other improvements suggested including reducing public notice periods and expediting grant administration.

It appears that the Clean Ohio program will largely be untouched by the major transformation at the Ohio Department of Development. The only possibility could be staff reductions. The report contains the following chart showing significant staff reductions. However, the report notes that most of those reductions will be through attrition (i.e. as people leave they won’t be replaced). 







What the Debt Deal Means for EPA....Staff Cuts and Lawsuits

It is no secret that EPA and its wave of recent and forthcoming regulations have stirred up much angst among Republicans in Congress. Many industry groups argue that EPA's rulemaking, especially its anticipated announcement of a much stricter ozone standard, will have a devastating impact on our fragile economy.

While plenty of bills have been floated since the start of the Obama Administration to try and stop EPA from enacting rules, in particular climate change related regulations, those efforts have been unsuccessful. So long as there is a power split between the House and Senate, any proposal to rein in EPA is a non-starter

The best the Republican controlled House has been able to do is call in EPA to testify before House Subcommittees to put pressure on EPA directly. Those efforts have had little success as the regulations continue to emerge from the Agency.

Now comes the debt deal and its initial $1 trillion in budget cuts. Due to political wrangling the cuts come almost entirely from discretionary spending which makes up approximately one-fifth of the total federal budget. Republicans see the cuts an opportunity to push forward their anti-regulatory agenda through significant funding reductions that will effectively prevent EPA from being able to act.

EPA and Renewable Energy Programs on the Chopping Block

Both Republican and Democrat lawmakers have indicated that funding for EPA and other federal agency programs that benefit the environment and renewable energy are surely to get hit and get hit hard.  EPA staffing cuts in programs implementing climate regulations, air programs and water infrastructure will result from the first round of the $917 billion in cuts called for in the debt-ceiling deal.  The Department of Energy will likely see less funding for grants, loans and other programs for renewable energy.

Time Magazine said the hidden Republican agenda in the debt-deal battle was to "gut the EPA."

It was lost in the endless drama of the debt-ceiling negotiations, but last week, the Republicans in charge of the House of Representatives launched an unprecedented attack on the U.S.'s environmental protections. GOP Representatives added rider after rider to the 2012 spending bill for the Environmental Protection Agency and the Interior Department, tacking on amendments that would essentially prevent those agencies -- charged with protecting America's air, water and wildlife -- from doing their jobs.

While the riders were unsuccessful, the dramatic budget cuts seem inevitable.  This from Politico discussing likely cuts to EPA and renewable energy programs:

“These guys are looking at 20 percent real cuts in the next two or three or four years,” said GOP strategist Mike McKenna said. “That’s a big, big hit for an agency to take.”

 Lawmaker Says Cuts will Mean More Lawsuits

While the EPA will have less staff to implement its programs and develop new regulations, EPA still faces statutory mandates to enact rules.  EPA routinely is sued by environmental groups trying to enforce these statutory deadlines.  One such example is the ozone standard which EPA is under a Court order to act.  

Jim Moran, D-Va., ranking Democrat on the House Interior-Environment spending subcommittee predicted an avalanche of new suits seeking to compel EPA to act.

"The irony is that the law isn’t going to change, it’s just that the people whose job it is to implement the law won’t be able to do that, so the environmental issues will play out in the courts instead of administratively or over a negotiating table," Moran told National Journal. "It’s more costly, it’s more time-consuming, and usually it’s less satisfying." 

While reducing funding can slow down EPA's ability to act, its a much messier then changing the law.  As long as the law remains the same, the regulatory environment really won't change for industry.


Ohio Debates Purpose and Scope of Great Lakes Compact

Competing bills have been introduced to the Ohio Legislature which are designed to implement the Great Lakes Compact.  The Compact was passed by the other States that border the Great Lakes.  Its fundamental purpose was to establish a new regulatory structure over water withdraws from the Great Lakes.  

In 2008, Ohio passed H.B. 416, by which Ohio officially became part of the Compact.  After all states passed endorsements of the Compact, it was approved by Congress.  While the Compact set up the regional structure for regulation of water withdraws, the nuts and bolts of the program were left to States through implementation legislation. 

If a State fails to pass its own implementation legislation, then the Compact has provisions that automatically become applicable in the State. Ohio wants to avoid the automatic standards and is moving forward now with implementation legislation.

Some of the key issues decided in the Ohio's implementing legislation include:

  • What size withdrawal from Lake Erie or its tributaries will require a permit?
  • What industries or types of withdrawals should be entirely exempt from the water withdrawal regulatory process?
  • If the size of the withdraw triggers the need for a permit, what is the standards for determining issuance of the permit.  Principally, will the withdraw have adverse impacts?
  • Are tributaries meant to be protected under the Compact or was the goal to protect the lakes themselves?

One legislative proposal is being supported by industry and the other is being pushed by environmental groups.  The proposals take vastly different views of the purpose the Great Lakes Compact.

Reasons for Passage of Compact at the Center of Ohio Debate

The seeds for passage of the Compact were laid in 1998 when Nova Group, a Canadian company, saw an opportunity to meet the growing fresh water needs of Asia and received a permit to export 158 million gallons per year of water from Lake Superior. The permit was eventually retracted.

However, the Nova proposal coupled with the growing scarcity of water in the western states raised fears the Great Lakes, which holds 20% of the world's fresh water, would drained by exports to areas in need of fresh water.  The Compact was seen as a means to create a new legal structure to prevent unregulated exports out of the basin. 

As the Compact was developed it added water conservation measures to the mix, including allowing States to regulate withdraws by any business within their boundaries.  The question remained as to how much regulation local businesses who were not exporting water should be subject o under the Compact.  The Compact left that debate up to the individual states who were provided flexibility to shape their own programs.

In Ohio, the debate has become a classic example of economy versus environment.    At its core, the debate centers on whether an enhanced water conservation and regulatory program is needed.

H.B. 231 Sponsored by Rep. Wachtmann (Companion Bill in Senate Sponsor- Sen. Grendell)

H.B. 231 Great Lakes Compact Implementation Legislation is supported by a variety of industry groups (Ohio Chamber, Ohio Manufacturers Association, Ohio Farm Bureau, etc.).  In addition, the Kasich Administration has testified in support of the Legislation. 

Key provisions in H.B. 231:

  1. Trigger thresholds for permit-  As outlined in a recent Dispatch article, the bill would set some of the highest trigger thresholds of any of the States who passed the Compact.  Withdraws from Lake Erie trigger a permit at 5 million gallons per day (gpd).  The lowest trigger is for small high quality streams, with a withdrawal requiring a permit at 300,000 gpd. Michigan has triggers of 2 mgd for lake withdrawals and 100,000 gpd from streams.  Pennsylvania and New York require permits at 100,000 gpd no matter the location of the withdrawal.
  2. Adverse Impacts-  Under the Compact, a permit cannot be issued if it results in adverse impacts.  Under the bill, only impacts to Lake Erie can be considered and not potential impacts to a stream where the withdrawal occurs.  As to lake impacts, the bill defines adverse impacts in the negative- anything at below 90 mgd from the Lake or 45 mgd from groundwater is presumed not to cause an impact.(Note:  the bill uses the term "annual mean runoff" but those figures can be converted roughly to the mgd figures noted above) 90 mgd is a very large withdrawal, there may be only one current user with that large of withdraw.

Key perspectives shaping the legislation:

  • Avoid Creating New Regulations that Do Not Address a Real Problem-   Groups supporting H.B. 231 note the lack of examples where businesses who withdrawal for industrial or agricultural purposes are having a negative ecological impact on the Great Lakes as direct result of that withdrawal.  They argue implementing legislation should focus Compact requirements on preventing exports of water to other states outside the Great Lakes or to other countries.
  • Avoid Creating Additional Regulatory Hurdles for Economic Development-  The implementing legislation establishes a major new environmental regulatory program that could complicate business expansions or prevent new facilities from being built in the Great Lakes region.  If Ohio has less regulation it could put the State at a competitive advantage to attracting new business.

 H.B. 257 Sponsored by Rep. Murray (Companion Bill in Senate- Sponsor Sen. Skindell)

A competing bill H.B. 257, was introduced which is supported by environmental groups and offers a stark alternative to H.S. 231. 

Key Provisions:

  1. Trigger Thresholds-  At the high end, for Lake withdraws the bill sets a trigger level of 2.5 mgd.  The other trigger levels are based on size of the stream and go as low as 10,000 gpd.  These triggers would be close to those enacted by other states, but would be more restrictive for high quality streams.
  2. Adverse Impacts-  The bill defers to rulemaking the standards for determining adverse impacts.  However, the rule's definition of "adverse impact" would have to be based on a science based assessment that includes an analysis of whether stream flows would be protective of aquatic life.  Furthermore, impacts to streams would be considered.

Key perspectives shaping the legislation:

  • Passage of Compact Included Water Conservation-  Those supporting a more restrictive regulatory program argue that water conservation programs and regulation of local withdraws were part of the bargain in passing the Compact.  They argue Congress, with members of states outside the Great Lakes states, wanted to see requirements regulating "local withdraws." That was the bargain struck for there to be broad support of the Compact in Congress.
  • Streams Need Protection from Impacts from Withdrawals-  Environmental groups argue that large withdraws that go beyond a stream or rivers capacity can harm the ecological quality of those streams.  Therefore, Ohio should go beyond protecting just the lake itself and include the rivers and streams that feed Lake Erie.

Editorials across Ohio Newspapers have focused on comparing the standards in H.B. 231 to neighboring states.   

Toledo Blade Editorial on Great Lakes Compact

Cleveland Plain Dealer Editorial on Great Lakes Compact

Akron Beacon Journal Editorial on Great Lakes Compact



EPA's Self- Assessment of Regulatory Improvements Misses a Golden Opportunity

Back on January 18th President Obama issued Executive Order 13563 requiring federal agencies to consider the impacts of new regulations and to perform a self assessment of existing regulations.  For existing regulations, the President requested the agencies perform an analysis to determine whether rules are "outmoded, ineffective, insufficient, or excessively burdensome." 

After performing self-examinations, each agency was ordered to do the following:

"Within 120 days of the date of this order, each agency shall develop
and submit to the Office of Information and Regulatory Affairs a preliminary
plan, determine whether any such regulations should be modified, streamlined, expanded, or repealed so as to make the agency’s regulatory program more effective or less burdensome in achieving the regulatory objectives." (emphasis added)

On May 24th, U.S. EPA issued its preliminary plan, titled "Improving Our Regulations:  A Preliminary Plan for Periodic Retrospective Reviews of Existing Regulations."   EPAs preliminary plan falls way short of the goals articulated in the President's Order. 

Specifically, the preliminary plan calls for very little review of existing regulations to determine if they should be modified or repealed.  In fact, the EPA's plan in some cases calls for new regulations, including:

  • SSO Blending Rule
  • MACT Rules to "reduce emissions through the use of technologies and practices to achieve multiple benefits"

In other cases, EPA calls for additional rules to "clarify" or "streamline" requirements.  Often efforts to clarify simply mean additional regulations increasing complexity:

  • Water Quality standards- EPA intends to clarify antidegredation and  variance provisions, among other requirements;
  • Clean Air Act Title V-  streamline by use of electronic filings

What is missing from EPA's proposal is an acknowledgment that some key regulatory programs should be reviewed to determine if there is simply a more efficient and effective way to achieve the same goals.  Or, whether some regulations are outdated.

EPA Should Listen to the Business Community in Developing its Plan

The President's Order only gave U.S. EPA 120 days to develop a preliminary plan.  That did not leave much time for public input prior to development of the plan.  The EPA's plan is open for public comment until June 27th.  Click here to an EPA link to comment on the plan

Because EPA has already developed its plan pursuant to the Order its much harder to make wholesale changes to plan that is already in writing.  More than likely, EPA will tweak the existing plan some based on the comments it receives.

However, by simply packaging some existing tweaks to rules and policies as its regulatory analysis EPA is simply playing around the edges.  EPA is missing a golden opportunity to look at fundamentally overhauling its more complex and controversial rules.  While I believe there are multiple examples of regulations that deserve a complete overhaul, I think one particular program serves as a shining example: 

New Source Review-  The NSR program is highly complex.   It also involves far too much subjectivity.  Courts have reached vastly different conclusions regarding whether NSR was triggered in cases involving very similar projects and fact patterns.  To make matters worse, NSR has recently been applied to greenhouse gases which raises dramatically the impact of the program.  Perhaps no EPA program symbolizes more the frustration of the regulated community and is in serious need of review/overhaul.


Ohio EPA Budget Testimony Sheds Light on New Initiatives

On April 5th, Ohio EPA Director Nally testified on the Agency's proposed budget before the House Finance and Appropriations – Agriculture and Natural Resources Subcommittee.  According to the Director's Testimony, Ohio EPA is not asking for any fee increases.  Ohio EPA's proposed budget calls for a reduction of 11.8% for fiscal year 2012 and 13.8% for fiscal year 2013.  To meet these budget reductions, the Agency is planning on reducing 53 current positions through attrition.

The Director also mentioned the consolidation of the Division of Hazardous Waste Management  (DHWM) into the Division of Solid & Infectious Waste (DSIWM) along with other components in the Division of Emergency Remedial Response (DERR).  DHWM's permitting and inspection activities will be in DSIWM and clean up will be with DERR.

In addition to budget reductions and the consolidation of DHWM, Director Nally also hinted at other initiatives the Agency is planning to undertake in the near future. 

New Ohio EPA Initiatives

“In-lieu Fee” Program –  The Director signaled potential significant change on wetland and stream mitigation requirements.  Typically the 404/401 permit applicant must find appropriate mitigation projects and include those proposals in their permit application.  With an “in-lieu fee" program, the applicant is relieved of the burden of finding a mitigation project .  Rather, the applicant pays a few based on the acreage of wetlands or feet of stream impacted by the project.  The Director has recently announced a "listening session" to hear from the regulated community and others regarding the proposal.

Permitting efficiencies/Permitting Backlog – Most every Ohio EPA Director faces the pressure to get permits out the door faster.  Director Nally is no different.  Upon taking office, he announced this would be a top priority of his administration.  His testimony suggests he will be re-looking at permit-by-rule and general permits to streamline permit approvals.  While the Agency has utilized these tools in the past, business complain that the terms and requirements are too onerous.  Modifying air permitting requirements can present unforeseen issues, as the business community learned after the Courts stepped in blocking major changes adopted in Senate Bill 265.

IT initiatives and Compliance Assistance –  Ohio EPA has moved toward allowing more reports and permitting to be performed using the web or through special electronic systems.  These systems provide flexibility, but businesses complain they can be difficult to use.  The Director announced training sessions to assist businesses with understanding how to use these systems better. 

Brownfields redevelopment – The Director testimony contained a vague reference to a new initiative with brownfield redevelopment.  The current structure has the Ohio Dept. of Development passing out the grant money and Ohio EPA monitoring the clean up.  It will be interesting to watch whether Ohio EPA announces new initiatives in this area to accelerate re-use of  brownfields.

Marcellus and Utica Shale – ODNR has the lead with regard to permitting for gas exploration.  However, U.S. EPA has indicated it will be closely watching and may exercise enforcement authority at sites where drilling has gone wrong or resulted in polluted groundwater.  The Director intends to support ODNR's efforts in light of U.S. EPA's scrutiny.

Expedited Settlement Program (ESP) -- No details were given regarding this new concept to accelerate resolution of enforcement actions.  Here was the Director's testimony...Given my priority of compliance first, I am initiating modifications to the current enforcement process to help drive quicker compliance.  Historically, the existing enforcement options have been time consuming and resource intensive for both the agency and the regulated entity. By developing new steps to be used early in the enforcement process, I hope to resolve uncomplicated cases
expeditiously, putting a facility on notice of a problem, and quickly achieving compliance. 

Perhaps Ohio EPA intends to make modifications at the Notice of Violation (NOV) stage.  The Agency could improve tracking of NOVs and notify businesses more quickly when issues have been resolved.

The Director's testimony did provide a good insight into his early priorities.  Details were not provided so we will need to watch closely as they are released.

Budget and Collective Bargaining Bill Impact Ohio EPA

As reported in the Columbus Dispatch, Ohio EPA has experienced a drop in revenue attributable to reduced fees collected associated with its various programs due to the recession.  Governor Kasich has not proposed any fee increases to restore the loss in funding. 

Fee increases are seen as additional direct taxes on business which runs counter to the Governor theme of restoring a pro-business environment to Ohio.  Here is the discussion of the budget impacts reported in the Columbus Dispatch:

Since 2005, the Ohio Environmental Protection Agency has relied on fees it collects from businesses to fight pollution and clean the state's air, land and water.

It's an arrangement that worked pretty well until the recession hit. EPA officials hoped to collect $130 million this fiscal year, but estimate they'll fall short by $21.4million.

That led to the proposed 11.8 percent overall spending cut in Gov. John Kasich's proposed two-year budget plan, which begins July 1.

The article reports that the loss in revenue will not lead to layoffs, but Ohio EPA will eliminate 14 vacant positions. From some Ohio EPA staff I have talked to the Agency will also experience a slow attrition because it will not filling vacant positions with departures or retirements. 

The Collective Bargaining Bill (S.B. 5) is also having an impact on the Agency beyond the changes to the law.  It has accelerated retirements of long time Agency employees who fear that S.B. 5 is the first step toward additional changes to the State's retirement system (PERS).  Long-time employee (30 years of experience or more) are leaving in hopes of locking retirement benefits under the current structure.

The loss of institutional knowledge will have a greater impact than the elimination of vacant positions or a de facto hiring freeze.  Staff with thirty years of experience have managed numerous challenging sites, permits and issues.  They also understand the history behind various environmental programs.

While young staff can bring a much needed fresh perspective to management.  Experienced staff are often the most capable problem solvers. 

The  cuts and loss of experienced staff also coming at a time when U.S. EPA continues to place more and more work on State EPAs.  The loss of staff couples with additional demands means Ohio EPA will need to do even more with borrow a phrase from former Governor Voinovich.

(Chart from Dispatch Article)

Economic Impact of Permitting Energy Projects

The U.S. Chamber commissioned a study of the economic impact of project that have been delayed or canceled as a result of federal and state permitting processes. As described by the U.S. Chamber on its website:

This study estimates the potential loss in economic value of 351 proposed solar, wind, wave, bio-fuel, coal, gas, nuclear and energy transmission projects that have been delayed or canceled due to significant impediments, such as regulatory barriers, including inefficient review processes and the attendant lawsuits and threats of legal action.

The Chamber does acknowledge you can't blame the fact these project did not move forward exclusively on permitting:

As noted above, we do not believe that all of the subject projects will be approved or constructed even in the absence of any legal and regulatory barriers. Also, as with all economic forecasts, we recognize that there is an element of uncertainty. This could be true here because, to our knowledge, this is the first empirical study to quantify the macroeconomic and employment impact of the regulatory barriers imposed on the development and operation of so many energy projects.

The Study is a first real attempt to aggregate data on the impacts regulations on development. Below is a snaptshot of projects at issue in Ohio.


Reorganization of Ohio EPA Underway

Rumors had been swirling that there would possibly be a merger between Ohio EPA and the Ohio Department of Natural Resources (ODNR) in an effort to consolidate programs and reduce staff.  Such a proposal was debated in the prior Ohio Legislature as part of larger plan to reduce the total number of State Agencies.  Its possible that as budget discussion progress that proposal will see new life.

While State Agency mergers remain a possibility, Ohio EPA has already started to reorganize internally. Without an official announcement, word is that the Division of Hazardous Waste Management (DHWM) will be broken apart and portions merged with the Division of Solid and Infectious Waste Management (DSIWM) and the Division of Emergency and Remedial Response (DERR). 

The solid and hazardous waste permit writers and inspectors will be working together under one newly formed Division.  The DHWM clean up staff (RCRA closure and Corrective Actions) will be merged with the DERR staff.

With the dwindling number of permitted hazardous waste (RCRA) facilities, such a reorganization makes practical sense.  This will provide the Agency the opportunity to review work loads and reallocate staff to meet current needs.

Perhaps the most interesting portion of the reorganization to watch will be the merger of the DHWM clean up staff with DERR.  The line between Voluntary Action Program (VAP) clean ups and regulatory clean up in other programs has become increasingly thin.  For example, RCRA Corrective Actions can now be completed by entering the VAP program.

The administrative costs and clean up standards for standard RCRA closures are still much more onerous than VAP clean ups.  Will the merger of this staff lead to a reassessment of how clean ups are conducted?  While federal regulatory requirements still limit the State's flexibility to some degree, there remains the possibility for more common sense and consistent approaches to clean up.

Forbes Doesn't Have a Clue About Cleveland

I'm taking a break from the typical focus of my posts to address an article that just makes me crazy.  Forbes has come out with its annual "Most Miserable City List."  Last year Forbes ranked Cleveland No.1 and this year it dropped to No.10.  This is how Forbes described this year's Cleveland ranking:

Last year's most miserable city, Cleveland, fell back to No. 10 this year despite the stomach punch delivered by LeBron James when he announced his exit from Cleveland on national television last summer. Cleveland's unemployment rate rose slightly in 2010 to an average of 9.3%, but the city's unemployment rank improved relative to other cities, thanks to soaring job losses across the U.S. Cleveland benefited from a housing market that never overheated and therefore hasn't crashed as much as many other metros. Yet Cleveland was the only city to rank in the bottom half of each of the 10 categories we considered.

First of all, I thought Forbes was considered a business magazine.  Since when does a pop culture development like a star basketball player leaving get factored its analysis?  But beyond this simple fact, Forbes has no clue as to what is happening in Cleveland right now.

There is a building boom in downtown Cleveland with over $2 billion dollars worth of construction and this construction boom is occurring during one of the toughest economies.  This new construction includes the Medical Mart and New Convention Center, Inner Belt Bridge Project, Flats East Bank Project, Aquarium, and Casino

The Cleveland Plain Dealer, a paper in my mind notorious for dwelling on negatives, had an editorial this weekend recognizing the positive developments in the Greater Cleveland region.  Those included:

• With evidence growing that manufacturing is actually leading the nation's economic recovery, unemployment in Greater Cleveland has been running a full percentage point below the national average.

• just named Cleveland the seventh-hottest job market in the country.

• Venture capitalists poured $221 million into this region last year -- double the pace of such investments in 2009.

• The Milken Institute, a think tank that has consistently ranked Ohio among the least fertile states for innovation, just cited the state as its most improved for entrepreneurial activity.

Want even more indications of Cleveland's positive direction?  From reforming local government to visionary new projects, Cleveland is heading in the right direction.

  • Travel & Leisure Magazine just name Cleveland one of the most visionary cities in the world for its urban farming efforts, including its mall to greenhouse transformation.  Only two other U.S. cities were even on the list.
  • Entrepreneur magazine recently ranked Northeast Ohio as one of the hottest entrepreneurial regions.
  • There is an on-going $350 million dollar renovation of the Cleveland Museum of Art transforming it into a showplace museum.
  • Government corruption is part of the criteria Forbes reviews, but it failed to consider recent developments.  Most cities do little about corruption issues and just try and get by.  No doubt Cleveland had its issues, but in November, local voters passed a ballot measure which completely reforms local County government. 
  • Cleveland has an organized and progressive sustainability movement which is serving as a model to other Cities-  Sustainable Cleveland 2019.  Partially in recognition for these efforts, a 2008 ranking had Cleveland jumping 12 spaces to the 16th most sustainable City in the U.S. and a lot has happened since then.
  • According to U.S. News and World Report, Northeast Ohio hospitals ranked in the top 10 of 11 specialty areas, including heart, pediatrics and urology.
  • recently cited Cleveland as one of the top 10 most underrated destinations in the world
  • Cost of Living- A family of four can enjoy amenities and attractions in Northeast Ohio, comparable to any other major city or region in the nation, and save as much as 35%.
  • Site Selection Magazine named Ohio, for the fourth year in a row, as having the most new or expanded private-sector capital projects edging out Texas for the top spot.

One of the biggest issues facing Cleveland is its own inferiority complex.  Articles likes those written by Forbes don't help to lift the region. To combat this issue, leaders organized an on-going branding effort to accentuate all the positive development in the Greater Cleveland region- Clevelandplus. (Check it out for the latest positive developments).

Before a magazine like Forbes creates a rankings that tags a city with a negative image, perhaps it could spend a little more time gathering information.  No doubt it overlooked all the recent developments I have highlighted.   

Maybe Forbes should issue a correction- Cleveland, one of the top 10 most improved Cities.  Just like Clevelanders, instead of dwelling on negatives, perhaps Forbes can start recognizing positive developments in its publication.


(Photo:  Innerbelt Bridge Design- ODOT webpage)

Ruling Highlights Benefits of Recent Legislative Changes to Permit Status During Appeal

Recently, the Toledo Blade had a story on the recent court ruling regarding the FDS Coke permit.  The FDS permit has been the subject of numerous appeals which have dragged on years.  The 10th Appellate Court recently issued a ruling sending the FDS  permit back to the Environmental Review Appeals Commission for determination of whether construction had begun in order to maintain the validity of the permit.

The FDS permit had a condition that a continuing program of construction must be commenced to maintain the validity of the permit.  The Court said more information was need to determine whether the permit was still valid.

The ruling is largely irrelevant for future air permits due to a legislative change that allows permits to be valid so long as an appeal is pending. R.C. 3704.03(F)(2)(b)(iv) was revised to expressly suspend the expiration clock for air permits during a third party appeal.  It states: 

(iv) The installation permit is the subject of an appeal by a party other than the owner or operator of the air contaminant source that is the subject of the installation permit, in which case the date of termination of the permit is not later than eighteen months after the effective date of the permit plus the number of days between the date in which the permit was appealed and the date on which all appeals concerning the permit have been resolved.

However, its another legislative change to the appeal process that I want to comment on.  The Blade included the following in the story regarding the FDS Coke decision:

In 2005, former Ohio EPA Director Joe Koncelik took the unprecedented action of modifying the permit while it was still under appeal, softening it for FDS. That action was ruled invalid, prompting Gov. Ted Strickland to seek a permanent change in state law that would allow such modifications to occur. The Ohio General Assembly approved it, giving greater power to state EPA directors.

The permanent change referenced was Am. Sub. H.B. 119 (September 2007) which modified the language in Revised Code 3745.04 to state:

The environmental review appeals commission has exclusive
original jurisdiction over any matter that may, under this
section, be brought before it. However, the director has and
retains jurisdiction to modify, amend, revise, renew, or revoke
any permit, rule, order, or other action that has been appealed
to the commission.

The story implies that the bill was some sort of power grab for Director's of Ohio EPA.  In fact, it is necessary authority given the reality of our permit appeal process. 

It is not unusual for permits to be under appeal for years.  During that time period circumstances can change that warrant modifications, revisions or revocation of a previously issued permit.  It could be changing regulations or environmental conditions that push the need for the change. 

If the law was left as it stood after the ruling saying Director's could not modify permits under appeal, it would effectively freeze these action in time while ever changing environmental conditions and regulations march forward.  The legislative change was a logical reaction to this reality.



Kasich Names New Directors for Ohio EPA and ODNR

Last week, Governor-Elect Kasich named the new Director's for Ohio EPA (Scott Nally) and the Ohio Department of Natural Resources (David Mustine).  At the press briefing, Kasich reiterated his election theme of returning business growth to Ohio.  This from the Columbus Dispatch:

"These departments are going to send a message to Ohio that we are open for business," Kasich said in naming Scott Nally of Indiana as head of the EPA and former American Electric Power executive David Mustine as director of Natural Resources.

Kasich, a former Republican congressman who will take office Jan. 10, emphasized that he doesn't plan to empower business at "the cost of environmental degradation." But in the next breath, he said he wants to "exploit the wonders of our state."

"When you have something that's really valuable, use it," he said in a briefing at the Rhodes Tower. That includes drilling for oil and gas in state parks and on state land, he said.

Additional Background on Both Appointments

Scott Nally

Current Title: Assistant Commissioner, Office of External Affairs for IDEM

Degree(s): Master of Science from University of Wyoming; Bachelor of Science in Biological Sciences from North Carolina State University

Special license(s): Wastewater Operator certified in Indiana and Virginia; Pesticide Applicator License certified in Indiana

Experience: Regional environmental manager at Perdue Farms Incorporated; numerous publications; held various positions in the environmental and biological sciences; served as president, chairman or board member on various county boards

David Mustine

David Mustine was a Senior Vice President for American Electric Power (AEP) for European business development.  More recently he had his own consulting business. He also served as an investment manager for a Bechtel Group.  He has a B.S. in business from Ohio State, an MBA from DePaul and a MA from Ashland Seminary.

Appointments Consistent with Kasich "Business" Theme

The Governor Elect was all about jobs, jobs and jobs during the election.  He said a key to addressing Ohio's high unemployment rate was creating a better business climate.

Both appointments appear consistent with those themes. Scott Nally served in The Indiana Department of Environmental Management (IDEM) which has been under the leadership of Tom Easterly since 2005 when Governor Mitch Daniels appointed him Commissioner.  Easterly has  had a strong emphasis in running IDEM with an eye toward assisting business in navigating complex environmental regulations. 

Mustine's background at AEP will certainly be viewed with a skeptical eye by many environmental groups in Ohio.  However, he brings a unique business background to a organization whose past two Directors were much more political- both were former State Senators. 

Quick Hits: Boiler MACT Delayed; S.C. to Hear Climate Change Nuisance Case

Boiler MACT Rules-  On December 7th, EPA filed a motion with the Court requesting more time in order to re-propose the Boiler MACT rules and allow for public comment.  In EPA's motion to the Court, EPA sets forth following timetable if its motion is granted to move impending January deadline is moved to April: it will publish revised proposals no later than June 1, 2011, and promulgate the final emission standards no later than April 13, 2002. 

EPA states that more time is needed because significant issues with the proposed standards were raised in the public comment period and it needs more time to evaluate the technical merits of those comments.  This from EPA's motion:

As evidenced by the number of comments, which include a substantial amount of
additional new data, the major source boilers, area source boilers, and CISWI rules will have far reaching effects. Estimates of the monetized value of the public health benefits for all three rules combined range from $18 billion and $44 billion. The economic impacts of implementation of these standards will also be significant and vary by rule. For example, the nation-wide capital cost for the proposed major source boilers rule was estimated to be $9.5 billion in the year 2013, with a total national annual cost of $2.9 billion in the year 2013. The major source and area source boilers rules are expected to apply at almost 200,000 boilers at over 90,000 facilities. On balance, given the broad impact these rules will have, EPA believes that the overall public interest is best served by allowing EPA to re-propose the rules so that the Agency will be able to issue emission standards that are based upon a thorough consideration of all available data and reduce potential litigation risks

Many are very relieved that EPA has decided to take a second look at its proposed standards.  The rules have wide ranging applicability and huge costs associated with them.

U.S. Supreme Court to Hear Climate Change Nuisance Case-  The Supreme Court has agreed to hear an appeal of Second Circuit's decision in American Electric Power v. Connecticut.  The lower court allowed several states, municipalities, and environmental groups to pursue a federal public nuisance action against a group of electric power producers for their emissions of greenhouse gases (GHGs). 

The issue of GHG emission contributing to climate change is global issue with millions of sources contributing.  The Court will examine how much a single subset of sources should be exposed to liability for their contribution to the issue.  

The lower court found the Plaintiffs showed the requisite grounds to bring the suit.  The Court found plaintiffs properly identified an injury, presented causation and redressability that should allow the suit to go forward.   The Supreme Court granted the petition to hear the appeal to review this determination.

Also at issue is whether federal nuisance actions have been displaced by U.S. EPA's recent promulgation of climate change regulations (monitoring, Endangerment Finding, Light-Duty Vehicle Rule, Tailoring Rule).  Federal nuisance actions are no longer available if it is determined that their is sufficient federal action to address the issue. 

If the Court finds federal nuisance action has been displaced by EPA's regulations, this may prove to by a phyrric victory for some.  Presumably, federal nuisance is only displaced so long as those regulation remain in place.  What should happen if congressional action delays implementation or litigation successfully overturns the Endangerment Finding?

Regardless, this will be a fascinating case to follow next year.

Ohio EPA + ODNR?



Ohio is facing a $8 billion dollar budget gap.  Governor-elect Kasich has stressed the need to streamline state government as part of solving the budget crisis as well as making government more efficient. 

During his campaign he already announced one very creative proposal to eliminate the Ohio Dept. of Development.  Could an idea being tested in other states- combining State environmental programs-be a proposal worth considering in Ohio? 

Good in Theory?

A brief overview of the current state structure suggests combining responsibilities would gain efficiencies.  Similar functions and staff with similar capabilities are spread across five different state agencies. 

Combining functions and potentially agencies could benefit those organizations.  Greater efficiency is not only good for business, its good for agencies that are constantly fighting for funding to support their programs.

The counter argument is that combining large government agencies you run the danger of creating even a larger bureaucracy.  Not only could there be even more layers of management the organization could become too large to effectively manage. 

An Overview of the Current Ohio Structure

Most environmental regulatory functions are split between the Ohio EPA and the Dept. of Natural Resources.  However,  there are clean up, regulatory and grant programs related to the environment spread across a total of five different state agencies. 

Here is just a quick look at various functions that have commonalities and are divided up between multiple agencies.

Brownfield Redevelopment and Clean Up

  • Clean Ohio Program- divided between Ohio Dept. of Development and Ohio EPA

Federal Water Pollution Permitting Programs

  • Combined Animal Feeding Operations NPDES (Clean Water Act) permit program-  Department of Agriculture
  • NPDES (Clean Water Act) permit program- Ohio EPA

Litter and Recycling

  • Division of Soil & Water Resources (Previously Divisions of Soil & Water Conservation and Division of Recycling & Litter Prevention)- ODNR
  • Division of Solid Waste Management (manages Solid Waste Management District recycling efforts)- Ohio EPA


  • Environmental Review Program (Wetlands)- ODNR
  • Division of Surface Water (401 and Isolated Wetlands Permitting)- Ohio EPA

Ground Water Management

  • Ground water well information (within Division of Soil & Water Resources)- ODNR
  • Division of Drinking and Ground Waters- Ohio EPA

Surface Water and Lake Erie

  • Soil and Water Conservation programs - ODNR
  • Coastal Zone Management Program - ODNR
  • Great Lake Compact Program (Under development)- ODNR
  • Lake Erie grants program- Lake Erie Commission
  • Surface water Lake Erie Unit- Ohio EPA
  • Surface water regulatory and permitting programs- Ohio EPA

Underground Storage Tanks

  • Bureau of Underground Storage Tanks (BUSTR)- regulation and clean up of releases of hazardous substances from USTs- Dept. of Commerce
  • Clean up of hazardous substances un-related to USTs- Ohio EPA
    Diesel Engine Grant Programs

Diesel Emission Reduction Programs

  • Diesel Emission Reduction Grant Program- Ohio Dept. of Development
  • School bus diesel emission grant program- Ohio EPA

The list of similar functions spread across multiple agencies is probably longer.   In addition to similar regulatory functions, each of these agencies maintain their own Information Technology Offices, HR, Motor Pools, Facilities Management, Press Offices and Director's Offices.  Combining support offices could also gain efficiencies.

Not a Budget Fix

After modifications to its funding strategy, Ohio EPA utilizes no general revenue funds to support its programs.  ODNR has substantially reduced its reliance on GRF.  So combining agencies is not going to do much to fix the $8 billion dollar budget hole.

However, both agencies (as well as the other three agencies) assess multiple fees to business to support their programs.  These fees have regularly been increased to support rising human resource expenses within the Agencies.  Fees, while imposing costs on businesses, have traditionally not received the same political attention as GRF.

While streamlining and combining functions may not solve the $8 billion budget hole, it could avoid or reduce the need to raise fees on businesses. 

For a discussion of what has occurred in other states...continue reading.

Continue Reading...

Long Awaited "Green Guides" Revisions Published

On October 6th, the Federal Trade Commission (FTC) published the final revisions to the 1988 "Green Guides" which provide guidance to companies when making environmental claims regarding their products.  The FTC is seeking public comments on the proposed changes until December 10, 2010, after which it will decide which changes to make final.

The FTC can take legal action against unfair or deceptive marketing practices under Section 5 of the FTC Act.  The 1988 "Green Guides" provide standards for asserting environmental benefits or advantages of products.  However, the 1988 guides were outdated.  Since their release in 1988, the number of companies asserting environmental benefits relative to their products has grown exponentially as well as the type of claims being asserted.

The proposed revisions to the "green guides" (copy here) provide much more detail than the 1988 version.  For the first time issues such as- renewable energy claims, carbon offsets, and use of renewable materials are addressed in the proposed revisions.

Past court decisions highlight the importance of the guides.  Judges have been willing to abide by the guidance set forth in the guides in determining whether a claim constitutes an unfair or deceptive marketing practice. 

Here are some of the key proposed revisions:

  • Stay away from general environmental benefit claims.  These general claims such as "green" or "eco-friendly" are almost impossible to substantiate.  The requirement to justify any green claims is a central requirement of the guides.
  • Third Party Certifications- Seals or endorsement of environmental benefits will receive heightened scrutiny.  Any material connection to the certifier must be disclosed.  Also, a 3rd party certification doesn't eliminate the requirement to substantiate all claims.
  • Renewable Energy-  If a company wants to say they utilize renewable energy in the manufacturing of their product, they better be prepared to provide more detail.  For example, if the company does not have its own wind or solar generation sources and is only purchasing RECs, it must disclose this as part of its claim.  If you generate your own renewable energy, but sell the RECs you cannot claim you use renewable energy.
  • Climate Change-  The concept of "additionality" has entered into marketing claims regarding carbon offsets.  A company cannot claim it is offsetting its carbon emissions if those reductions were required by law.
  • Recycling- Proposed revisions will create various tiers for claiming your product is recyclable.  If the product is only partially recyclable due to lack of access to recycling, then any recycling claim must carry with it certain qualifications.

This is just a brief highlight of the many topics covered in the revised guidelines.  Once the revisions are finalized, the guides will likely cause wholesale revisions to marketing campaigns for products.  While companies will still have a strong incentive to market the green attributes of their products, those campaigns will have lawyers reviewing the labeling, support for claims and mandatory qualifications required under the guides.


EPA Releases Interim Guidance on Environmental Justice

In my tenure at Ohio EPA, no issue was as vexing as Environmental Justice (EJ).  In a nutshell, there is a legitimate issue behind the concept of EJ- low income and minorities are exposed to more pollution.  Here is how EPA presents the EJ issues:

Fair Treatment means that no group of people should bear a disproportionate burden of environmental harms and risks, including those resulting from the negative environmental consequences of industrial, governmental, and commercial operations or programs and policies.

The root causes of disproportionate impacts can be traced to the history of how our country developed and expanded. Lower income housing can typically be found near areas zoned industrial.  In our past, this occurred for easy access to plant and factories.  However, this history has carried forward and people living in these communities are disproportionately impacted by pollution. 

However, the difficulty was trying to address this social problem through EPA rulemaking or decision making on permits for new industrial facilities.  EJ issues come into conflict with concepts of urban redevelopment, brownfield redevelopment and creating jobs in low income communities. 

Are we really prepared to declare an industrial area off limits to new factories or manufacturing because the pollution burden is too great?  How would someone establish a standard for what is deemed too great an exposure?

How does EPA "regulate away" this social issue?  EPA struggled with answer to these questions for so long that is has released and than retracted EJ policies over time.  For long stretches the Agency simply put EJ issues on the back burner. 

Now, EPA has released its first new Environmental Justice guidance document in a long time.

EPA is required to develop procedures to evaluate EJ issues in its decision making process as a result of Executive Order 12898 which directs agencies such as EPA to do the following:

 “[t]o the greatest extent practicable and permitted by law,” to “identify[…] and address[…], as appropriate, disproportionately high and adverse human health or environmental effects” of agency programs, policies, and actions on minority populations and low-income populations.

EPA's new fifty page guidance document walks through a complex process for evaluating EJ issues in EPA decision making.  I think the chart below says it all.   Is this really helpful in addressing a complex social issue?

Reading the document, the EJ document is strinkingly similar to past efforts by EPA.  It really seems to boil down to two requirements that fall onto EPA staff.

1.  Ensure participation by low income and minority groups in the EPA decision making process-  the guidance offers suggestions for how to reach out to communities and make sure they are informed regarding EPA actions.

2.  Document that EJ issues were considered in the decision making process-  When EPA issues is response to public comments, it must include a description of the EJ issues that were identified and how those impacted the decision making process.

What the guidance document doesn't address- When EPA is required to take alternative action as a direct result of EJ considerations?  The reason EPA avoids setting such standards is that a uniform "regulation" would be nearly impossible to develop.  Therefore, the new guidance appears to be very similar to past EPA approaches to incorporate EJ considerations in its decision making-

  1. Inform;
  2. Consider the alternatives; and
  3. Document how EJ issues were considered in the decision making process 

E-Waste Recycling Legislation Introduced in Ohio

Ohio does not have regulations governing the disposal or recycling of consumer electronic waste.  State legislation has been adopted by at least nineteen other states to encourage the recycling of e-waste and divert computers and other electronic equipment from landfills. 

Why manage e-waste differently? E-waste components can contain hazardous or toxic compounds that make it different than other household municipal waste. 

Recently, Representative Dennis Murray introduced legislation (H.B. 447) designed to encourage the recycling of e-waste in the state.  Sponsor testimony will be heard this Wednesday. 

The bill is directed at manufacturers who produce and sell computers, printers and video equipment.   Some of the key elements of the proposed legislation include:

  • Registration-  Requires all manufacturers of electronics to register with Ohio EPA.
  • Fee-  Manufactures must pay an annual registration fee of $5,000 to pay for administration of the program
  • Take-Back Programs-  By April 2011 mandate computer and video display consumer take back programs.  Allow consumers to mail or drops of equipment at stores for recycling by the manufacturer
  • Prohibit sales- Without registration or a take back program
  • Reporting-  Manufacturers must report to the State on the success of their take-back programs

The Electronics Take-Back Coalition maintains a good website that provides information regarding state and federal efforts to mandate recycling of electronic waste.  The web site provides a great resource to compare and contrast state legislation that has been adopted in other states with the Ohio proposal.

Recycling Rates E-Waste
Product Units Disposed Trashed Recycled Recycle Rate
T.Vs 26.9  million 20.6 6.3 18%
Computers 205.5 million 157.3 48.2 18%
Cell Phones 140.3 million 126.3 14 10%

The chart above from the Coalition web page provides some interesting information regarding recycling rates.  Certainly, more can be done in Ohio to manage e-waste issues.

The Legislation may cast too broad of a net (covering too many products) or places too onerous requirements on manufacturer take-back programs.  However, there is good information available to compare Ohio to the other nineteen (19) states operating programs.  Ohio stands to learn from what has worked and what hasn't worked in these other states. 


Meeting with Serbian Delegation Leads to Interesting Exchange

A few weeks back I was contacted by the Cleveland Council on World Affairs (CCWA) to meet with a small delegation of representatives from Serbia who were interested in learning about environmental regulations, specifically those that relate to solid waste and/or recycling. While I was to be interviewed by the delegation members, I think I learned much more even though I wasn't asking the questions.  Here is a bit of background on the CCWA from their e-mail invitation:

The Cleveland Council on World Affairs (CCWA) hosts international leaders from all over the world year-round. Each year the CCWA hosts over 400 foreign nationals to meet and confer with their professional counterparts and to experience America firsthand. The visitors, who are selected by American Foreign Service Officers and U.S. Embassies overseas, are current or potential leaders in government, politics, the media, education, the arts, business and other fields. This program is sponsored and funded by the United States Agency for International Development (USAID)

Members of the delegation worked in the following areas:

  • Journalist reporting on environmental issues
  • Manager of an electronic waste recycler
  • Member of a trade association for chemical manufacturers
  • Manager for a public utility company
  • Members of Environmental Groups
  • Local Government
  • Green business consultant
  • Small business owner with recycling operation

What jumps out at me from the list above is that you have the same cross-section of organizations and individuals involved in environmental policy in the U.S.  Each individual is interested in representing their own constituents, business or advancing their own environmental principles. 

During the exchange I was asked to describe various regulatory challenges faced by businesses.  I was also asked, generally, about general attitudes of citizens toward protecting the environment or environmental issues.  Here are a few interesting observations or conclusions I made from the meeting:

  1. Management of Electronic Waste-  The delegation was interested to learn that there were no mandates requiring individuals or businesses to recycle electronic waste in Ohio.  I was pressed on this point several times by members of the delegation.  They thought it was interesting that any citizen could carry his old TV out to the corner to be thrown away in a landfill.   Here is Ohio EPA guidance encouraging recycling of electronic waste
  2. Used Tires-  While I think elimination of used tire piles is one of the biggest environmental success stories in the State of Ohio, the delegation provided a different perspective.  The laughed and smirked when told that an individual was allowed to accumulate 23 million tires on their property (Kirby Tire Pile).  For a country known for its sophisticated (if not overly complex) environmental regulations, it is somewhat odd this slipped through the cracks.  As a result, Ohio was forced to enact a new tax on tires and it took nine years to clean up the Kirby Tire Pile.
  3. Renewable Portfolio Standards-  I was asked to provide some pretty detailed information regarding Ohio's Advanced Energy Portfolio Standard, including use of alternative compliance payments and renewable energy credits (RECs).  I was told that Serbia was working toward a RPS standard.  I thought it was interesting that a small European country was developing a very sophisticated energy program.
  4. Jobs and the Environment-  I was asked to comment on general attitude of the public on environmental issues.  Some were interested in understanding how those attitude vary depending on what state you called home.  Overall, there seemed to be general understanding among the delegation of the interplay between the economy and environmental regulation which challenged my perception those debates were less heated in Europe than in the U.S.  Just like in the U.S., I got the feeling there was a wide range of opinions within the room.  Those opinions can change with time as well.  As noted in CNN recent poll on attitudes of Americans towards the root cause of global warming.

Overall, some of my own perceptions or paradigms regarding environmental regulation were challenged.  It usually takes someone or a group of people from the outside to get you to re-examine your own perceptions.  I found it very enlightening even though I didn't get to ask a single question. 

Great Lakes Restoration Initiative Money Could Sit Idle

The Obama Administration proposal for funding the Great Lakes, known as the Great Lakes Restoration Initiative (GLRI), has cleared a key House-Senate conference committee.  The legislation would provide $475 million for a comprehensive Great Lakes restoration and protection initiative.  The funding would be targeted toward the most critical environmental concerns facing the Great Lakes, including invasive species, toxic sediments, non point source pollutants and wildlife habitat loss.

While its wonderful news that increased funding is being directed toward the Great Lakes, there are key components of the legislation that could leave a large portion of the federal money unspent.  Those key components relates to clean up of contaminated sediment under the Legacy Act (the primary vehicle for providing federal funding for removal of sediments).

A recent U.S. EPA Inspector General Report was highly critical of the pace of clean up under the Legacy Act

Contaminated sediment is a massive problem in the Great Lakes. There is an estimated 75 million cubic yards of contaminated sediment. To date, under the Legacy Act, five sediment projects have been completed removing 800,000 cubic yards of contamination.  This represents about 1% of the problem.  As stated in the report, at the current pace, it would take more than 77 years to complete all the contaminated sediment projects in the Great Lakes.  

Now this is where I part ways with the Inspector General Report.  The IG placed the blame for the slow pace of contaminated sediment clean up on the lack of management within the Great Lakes National Program Office (GLNPO).  The real story is the lack of resources at the state and local level.

Cost of removal of contaminated sediment is estimated at $3 billion in federal, state, and local funds. The Legacy Act includes the requirement for a 35% local share before federal funds can be used for clean up. 


Sediment projects carry large price tags. Even a small sediment project can cost millions of dollars. While at least five project have been able to cobble together required 35% match, in some cases it took 5-10 years to generate the funds.  In many other instances there are simply not the resources to develop the required 35% match. 


The inability to generate this level of funding can be attributed to:


  • Limited amount of companies with money to pursue who contributed to the contaminated sediment problem (known as PRPs); 
  • Even if PRPs are identified, complex legal actions or settlements must be pursued which can slow the process for years;
  • Furthermore, the current strain on local and state governments due to economic considerations, especially in the Midwest, makes state/local funding unlikely

As long as the millions in funding for sediment clean up in GLRI includes the 35% local share requirement, major portions of the federal money could remain sitting unused.  Statutory changes to the Legacy Act are needed to provide authority to waive or reduce the 35% local share if it can be demonstrated, for instance that:


  • There are no or few PRPs;
  • The project should be fast tracked based on human health or environmental risks:
  • Local or State governments are constrained on their ability to contribute more of the local share


Court Orders Full Hearings in Ohio Environmental Appeals

The saga involving the Environmental Review Appeals Commission (ERAC) appears to have come to a conclusion (see prior post). ERAC had limited all administrative hearings to 1-hour in response to deadlines imposed by the Ohio General Assembly.  Today, a Franklin County Common Pleas Court issued an judgment entry today ordering ERAC to: 

  1. Vacate all one hour hearings;
  2. Require full and fair hearings (de novo); and
  3. Declaring the Legislative imposed deadlines as non-binding

While we may now return to the status quo as it relates to the hearing process on environmental appeals, the fallout is not over. 

First, ERAC will now have to go through the process of re-scheduling hearings in hundreds of pending appeals.  The result may be a longer time frame for decisions than what would have occurred had the General Assembly never tried to impose deadlines. 

Second, Legislation is still possible.  The deadlines were imposed for a reason and business groups may try to re-craft deadlines in a more constructive manner.  The Court found the deadlines non-binding because no ramification was imposed on ERAC if it missed the deadline.  Some may see that as a road map to creating effective deadlines. 

My hope is that all of this will bring about positive change in terms of increased funding for ERAC.  Most see that as the real answer.  Now we just have to find the money, which may be no easy task.

Ohio Environmental Appeals Proceed with 1-hour Hearings Despite Court Actions

The latest developments in the saga involving current hearing process in the Ohio Environmental Review Appeals Commission (ERAC) shows chaos rains for the hundreds of appeals pending before the Commission.  As previously covered on this blog (see, A Dozen Companies File Constitutional Challenges to 1-hour Hearings), in response to legislative deadlines imposed on the Commission, ERAC has scheduled or has proposed to schedule 1-hour hearings with no discovery on ALL pending appeals.

Businesses as well as environmental groups were very concerned with ERAC's approach.  The first legal challenge to be filed sought a writ of mandamus from the 10th Appellate Court to compel ERAC to provide for full blown hearings (de novo hearings).  The State, attorneys for ERAC and the attorneys for the 13 companies negotiated an uncontested motion for the writ.  Despite the uncontested nature of the motion, the Court issued a ruling declining to issue the writ.  However, the ruling contained some non-binding language (dicta) regarding due process rights:

Indeed, the clear legal right and clear legal duty identified are uncontroversial-relators have a right to de novo hearings that comply with due process, and the Commission has the duty to provide for such.

Despite the language in the order, ERAC continued to proceed with holding 1-hour hearings.  I even heard a story of one attorney who tried to put a witness on to introduce evidence only to be cut-off after thirty minutes by the Commission telling them "your time is up." 

The attorneys representing the original 13 companies followed the Appeals Court advice and filed a declaratory judgment action in common pleas court.  Shortly after the suit was filed, the Court issued a temporary restraining order (TRO) against ERAC preventing the Commission from holding any of the 1-hour hearings in the 40 upcoming hearings involving the 13 companies.

Even after the TRO was obtained, ERAC continued to proceed with 1-hour hearings in cases that were not covered by the Order.  Chairwoman of the three-member commission, Lisa Eschleman, was quoted in the Columbus Dispatch as saying:  "ERAC is going to proceed as scheduled so that we can comply with the mandate of the General Assembly," 

Because ERAC is continuing to proceed with 1-hour hearings on appeals not involving the 40 subject to the TRO, each Appellant is being forced to go to the Court and request their own TRO. Others have elected just to proceed with 1-hour hearings probably betting that the decision will be overturned on appeal because due process was not provided.

If companies and environmental groups are both upset with the current process, why hasn't the State which represents Ohio EPA and the Ohio Department of Agriculture (among others) been vocal?  I have been told that one reason the State is not objecting to ERAC's process is that the whole mess has forced settlement of a lot of pending appeals.  Another reason for the lack of concern maybe that 1-hour hearings make it much more likely that the decision of the State Agency will be upheld due to the limitations on presenting evidence.

Hopefully, the Court will issue a decision in the declaratory judgment action that results in a permanent fix- restoring full hearings on appeals.  Until such a decision is issued, the situation involving the hundreds of appeals before the Commission remains in a state of flux. 

Meanwhile, the outcry has grown (including me) that the real solution to this problem is to fund ERAC who has a tiny budget. Only problem- where do you get the money in a State which is facing a $1 billion dollar hole in their current budget.  On Tuesday, the Columbus Dispatch issued a editorial against legislative deadlines and supporting more funding:

"Such a delay demands further explanation, but arbitrarily rationing time before the commission is unreasonable. Lawmakers should consider whether the three-person commission, which has only two additional employees, needs more help. Unlike other such boards, ERAC members conduct all their own hearings, do their own legal research and write their decisions."

A Dozen Companies File Constitutional Challenge to 1-hour Hearings on Ohio Environmental Appeals

A discussed in prior posts, the Environmental Review Appeals Commission (ERAC) has taken an aggressive respond to deadlines imposed by the Ohio Legislature compelling ERAC to render decisions in 339 appeals in a matter of months.  It issued orders in all pending appeals canceling prior hearings and establishing an expedited hearing format that consists of the following:

  • one hour hearings- split between the sides equally
  • no presentation of witnesses
  • five page briefs
  • no meaningful discovery (depositions, document production, etc.)

My prior posts resulted in an interview with Gongwer regarding the ERAC deadlines and corresponding orders for expedited hearings.  In the article, Gongwer quoted ERAC Chairwoman Lisa Eschleman who said:

Limits on hearings were necessary to comply with new deadlines for ERAC to issue rulings, which were included in the biennial budget bill (HB 1).
Under the new deadlines, the commission must issue final decisions in 339 appeals by Dec. 15, she said, noting hearings were scheduled through Dec. 1.

"We took 339, divided it by the number of days, minus the number of holidays. It means we had to do six de novo hearings a day," she said. "Physically we had to put a limit on the amount of the time the people can have."

Previously, average de novo hearings at ERAC lasted about five days, she said.

The deadlines imposed in the Budget Bill were not opposed by the business community, only environmental groups sought a veto from Governor Strickland.  However, now that ERAC has responded to the deadlines with its expedited hearings, businesses are scrambling to address the issue.

A lawsuit was filed in the 10th Appellate Court on behalf of over a dozen companies with forty appeals pending before ERAC.  The lawsuit (called a Writ of Mandamus) seeks the Appellate Court to issue an order to compel ERAC to comply with due process requirements.  The suit states:

A writ is necessary because the Commission has embarked upon a process of scheduling hearings de novo in over three hundred pending appeals that limit appellants, including the Relators, to not more than one-half hour to present evidence in support of their appeals, as more fully described below. Such a patent deprivation of Relators’ right to a hearing de novo that adheres to the most basic requirements of due process can only be adequately addressed through issuance of the requested writ.

While such a lawsuit was inevitable, even if successful, it will not on its own address the other two hounded and ninety appeals that also received orders.  Nor will address the hundreds of appeals that are still pending after the initial December 15th deadline. 

Clearly, a broader fix is necessary.  While quicker decisions is an admirable goal, mandated deadlines such as this result in unanticipated consequences.  The real answer to this problem is difficult to implement in tough budget times- more money for ERAC.  The Commission is grossly understaffed and has outdated technology to handles the several hundred cases it has pending. 

Perhaps there is even the need for appointment of more Commissioners to hear all these appeals.  ERAC has three Commissioners and all three hear every appeal.  Appellate Courts have more judges than sit on any one panel for a case, why not ERAC?

Its still clear this problem will become worse without some kind of legislative fix either

  • giving the money ERAC needs
  • increasing its staff and/or Commissioners or
  • simply removing the deadlines and tolerating longer appeals.

Environmental Commission Responds Forcefully to Appeal Deadlines Established by the Ohio Legislature

The Ohio General Assembly included in the state budget a series of deadlines for issuing decisions in environmental appeals. (See prior post) The deadlines apply to the Environmental Review Appeals Commission (ERAC) which hears administrative appeals for hundreds of Ohio EPA and other state Agency actions.  Here are the deadlines imposed on ERAC:

The commission (ERAC) shall issue a written order affirming, vacating, or modifying an action pursuant to the following schedule:

(1) For an appeal that was filed with the commission before April 15, 2008, the commission shall issue a written order not later than December 15, 2009.

(2) For all other appeals that have been filed with the commission as of October 15, 2009, the commission shall issue a written order not later than July 15, 2010.

(3) For an appeal that is filed with the commission after October 15, 2009, the commission shall issue a written order not later than twelve months after the filing of the appeal with the commission.

ERAC has responded in a forceful way to the imposed deadlines.  It has been issuing orders for numerous pending appeals that restructure the normal hearing process.  Typical hearings included discovery, motions and multi-day hearings followed by briefs.  In response to the imposed deadlines ERAC has cut out all discovery, limited hearings to one hour and will accept only five page briefs.  (Here is an example ERAC order on one of the many appeals facing the deadline)

For many complicated environmental cases heard by ERAC it is impossible to present the issues in a coherent and supported manner under this structure.  Based upon the limited amount of information provided to ERAC under this structure suggests they will mostly play it safe in rendering decisions by perhaps deferring to the Agency.

Perhaps this is an example of unintended consequences, but it seems almost certain that this will not be the end of the story.  Additional legislative action to tweak or change the budget language almost seems a certainty.

Ohio Budget Update: Environmental Related Developments

Here is a quick update on some of the important changes that were or were not included in the Ohio Budget (H.B. 1) that impact environmentally related issues and Ohio EPA's budget:

ERAC Deadlines-   As discussed in my previous post, the Ohio Budget included mandatory deadlines placed on ERAC for making determinations on appeals filed before the Commission.  Environmental groups wrote a strong letter to the Governor requesting a veto the ERAC deadlines.  The Governor did not veto the provision, however it appears likely the language will be tinkered with in the Budget Corrections Bill. 

Extension of Deadline for Construction after Issuance of Air PTI:  All air permits for construction and installation of new sources in the State of Ohio include a requirement that the permit expires after eighteen (18) months if construction of the source has not been completed.  An appeal of an air PTI can complicate financing efforts for projects.  Banks may not provide financing while an appeal is pending.  To address this and other issues associated with the construction deadline, the Budget Bill included new language that allows extension of that deadline for any of the following reasons (copy of amendment for exact language):

  • Owner has undertaken a continuing program of installation or modification during the eighteen-month period
  • Owner entered a binding contract for construction of the source within the eighteen month period
  • Director of Ohio EPA issues an extension
  • The air PTI is the subject of an appeal by a third party receives an automatic extension based upon the number of days the permit was under appeal
  • Original permit is superseded by a subsequent air PTI

$1.25 increase in Solid Waste Tipping Fee to fund Ohio EPA:  The municipal solid waste tipping fee was increased by $1.25 a ton which raises the total fee from $3.50 a ton to $4.75 a ton. Of the increase, .25 goes to ODNR for the Soil and Water Conservation Districts. The remaining $1.00 will go to Ohio EPA to support its programs.  

The tipping fee increase was included, in part, to address a reduction in the amount of solid waste going into Ohio's landfills.  As the fee continues to increase, businesses will have a greater incentive to look for alternative ways to dispose of industrial waste other than sending it to a solid waste landfill.  One such option is beneficial use of the material.  Ohio EPA has yet to to release its second draft of the beneficial use rules, however, as costs of disposal increase interest in this option will rise.

Spending Authority Caps:  While the Legislature agreed to restore the $1.25 increase in tipping fees, it failed to remove the spending caps that were placed on Ohio EPA fee accounts in the Senate.  The practical ramification is that even though the accounts have fee revenue, Ohio EPA will be prevented from spending the revenue to support its staff and programs.  Ohio EPA intends to seek removal of the spending authority caps through the Controlling Board.  If Ohio EPA gets support from business groups it appears likely the caps will be removed and possibility of dramatic staff reductions appears unlikely.

Rejection of the Expansion of Renewable Energy Projects-  Ohio has one of the broadest definitions for what qualifies as "renewable energy source" for purposes of meeting the State's Renewable Portfolio Standard (RPS).  Efforts were rejected to expand the definition to include burning of solid waste.

Ohio Budget Includes Directive to Speed Up Decisions on Environmental Appeals

Buried in the thousand pages of the Ohio Budget Bill (H.B. 1) is an amendment that could have a major impact on hundreds of pending and future appeals of environmental decisions.  The budget bill amendment includes language placing strict deadlines for issuing decisions on environmental appeals. The deadlines could impact some very controversial permit appeals, including the Natural Resource Defense Council (NRDC) appeal of AMP Ohio's air permit for its new baseload coal-fired power plant.

By law the Environmental Review Appeals Commission (ERAC) hears and issues decisions on a multitude of actions by Ohio EPA as well as a limited number of actions by other state agencies.  The appeals heard by ERAC include:

  • Ohio EPA rules
  • Ohio EPA enforcement orders
  • Ohio EPA permitting decisions in air, water, solid waste, hazardous waste, etc.
  • Actions by the Boards of Health related to solid waste facilities
  • Ohio EPA decision related to the Voluntary Action Program (brownfields)
  • Orders of the State Fire Marshall relative to underground storage tanks (BUSTR)
  • Water permits and orders issued by Ohio Department of Agriculture for large factory farms

At any given time ERAC will typically have hundreds of appeals pending.  Some appeals can sit before ERAC for years, but this is typically by mutual consent of the parties in the appeal.   However, its not uncommon  in complex cases for hearings to be scheduled 18 to 24 months after appeal has been filed. 

Obviously someone felt concerned that ERAC was taking too long in issuing the majority of its decisions because the Ohio Budget Bill included strict deadlines for making determinations.  Here is the language (click here for the actual H.B. 1 Budget amendment):

The commission (ERAC) shall issue a written order affirming, vacating, or modifying an action pursuant to the following schedule:

(1) For an appeal that was filed with the commission before April 15, 2008, the commission shall issue a written order not later than December 15, 2009.

(2) For all other appeals that have been filed with the commission as of October 15, 2009, the commission shall issue a written order not later than July 15, 2010.

(3) For an appeal that is filed with the commission after October 15, 2009, the commission shall issue a written order not later than twelve months after the filing of the appeal with the commission. 

The language is silent on what happens if ERAC fails to adhere to the deadlines.  If left as is the language could create a right to file an action against ERAC to compel it to issue a decision (called a mandamus action). 

I am told that the legislative intent of the language was to remove the appeal from ERAC's jurisdiction and allow the Court of Appeals to hear the appeal.  If that was indeed the intent it would appear to be unworkable given the Court of Appeals doesn't accept testimony of witnesses.   In addition, there would be no assurance a Court, with its very busy docket, would make a determination any quicker.

Regardless, the new deadlines could have a significant impact.  With so many appeals pending before ERAC, the Commission may be forced to shorten hearings, reduce discovery or take other steps to speed up the decision making process.  It is also possible the deadlines could influence ERAC's level of scrutiny of Agency actions.

Indeed, the language could impact some very controversial actions currently under appeal, including the NRDC appeal of the AMP Ohio air permit on multiple grounds including regulation of greenhouse gases. According to ERAC's docket, a hearing is scheduled to begin March 8, 2010. The original appeal was filed in early spring of 2008. Under the imposed deadlines a decision would have to be issued no later than December 15, 2009.

It is possible that the Legislature will used the Budget Correction Bill to amend the language. Given the fact that the public hasn't had an opportunity to see it or provide input we may yet see substantial revisions. 

(Photo: wallyg/

Budget Update: Ohio EPA Faces Potential Loss of 200 Staff

Its not often you see business associations support budget requests by State agencies, especially when its Ohio EPA.  However, as a result of Senate actions with would cap Ohio EPA's spending authority business groups have sent a strong letter of support to the Ohio Legislature requesting the caps be removed. (Ohio Chamber and Ohio Manufacturer's Letter Re: Ohio EPA's Budget).

When Ohio EPA introduced their budget proposal they requested an increase in solid waste and construction & demolition debris tipping fees in order to maintain the current staff.  Under the proposal municipal waste dumping fees would go from $4.75 per ton from the current $3.50 per ton.  C&D fees would have seen the largest jump, going from $1.70 per ton to $4.40 per ton.Ohio EPA argued the fee increases were necessary to offset increasing costs to maintain as well as adjust for a decline in the amount of waste being disposed in Ohio's landfills. 

The fees became lost in a sea of other fee increase proposed by Governor Ted Strickland designed to help balance Ohio's beleaguered budget.  More so than in budget battles past, the fees were likened to tax increases and many (including Ohio EPA's request) were stripped from the budget.

In a recent Springfield News-Sun article, State Sen. Keith Faber, R-Celina, articulated "fees are hidden taxes" argument.  Here is his quote from the article:

“The EPA is a fee-based entity. They should have to tighten their belts like everybody else. Not just ask for more fees,” Faber said.

Ohio EPA requested that the Legislature restore their spending authority and re-establish the $1.00 fee increase in municipal solid waste fees.  Now this issue will play out in a contentious Conference Committee this weekend.  The Business Group's letter strongly supports the restoration of spending authority, but is silent on any fee increase. 

However, the Senate went one dramatic step beyond stripping out proposed fee increases, it placed a cap on allowable expenditures from existing fees.  In other words, Ohio EPA would be prohibited above the cap from spending money it had already collected from existing fees.

In response, Ohio EPA issued an analysis that if the fees remain out and the caps in place it would be forced to eliminate 200 positions (cut or not fill vacant positions).  Understanding the budget debate needed to be linked to Ohio's ailing economy, the Agency said many of the eliminated positions would likely be in permitting sections which could slow down economic development in the State. Here is the analysis provided by Ohio EPA of the potential staff cuts. 

Division of Air Pollution Control Staff Cuts

Division of Surface Water Staff Cuts

Unfortunately, this issue is a relatively small issue in terms of the $2.4 billion dollar budget gap that the Conference Committee must fill.  Governor Strickland recently proposed very controversial spending cuts to many State programs.  How Ohio EPA will fair in this type of difficult budget climate remains to be seen. 

Ohio EPA is my former employer and I still have the scars from past budget battles.  From my time at the Agency I am a strong believer in the fact the Agency needs to maintain staff to keep up with an ever increasing workload. A workload that many outside the Agency walls don't see or don't fully appreciate. I am crossing my fingers that the Legislature will devote a small amount of time to resolve this issue and will do the right thing.

(Photo: J.Stephen Conn/flickr)

Green New Deal? Green Trinkets and Empty Packages in the Stimulus Bill

I have been following discussion regarding the green elements of the Presidents Stimulus Package, known as the American Recovery and Reinvestment Act of 2009.  There is certainly a lot directed toward environmentally related projects, especially renewable energy development.  Leading some to call these provisions the "Green New Deal." 

What is the real story behind some of the spending that has been reported?  You certainly can find information all across the web and on government sites that simply lists the amount of money in the bill and which program it has been directed.  However, detail about what the money will really be used for can be hard to find.

Bottom line, some provisions are better than others.  For instance, much of the money directed toward U.S. EPA will pay for existing projects.  This includes prior grant applications, clean ups already under contract or projects previously selected for funding.  So, for many of you expecting great new opportunities for EPA related projects, I don't think the bill offers you that much. (with the exception of diesel engine related grants- see below).

The renewable energy side of the equation is a totally different story.  There are continued and new tax incentives as well as new grant opportunities.  There is a lot in the bill and it will literally pay to stay on top of what is available. 

I.  EPA Side- the American Recovery and Reinvestment Act of 2009 specifically includes $7.22 billion for projects and programs administered by EPA

Below is a description of the major areas of funding as well as an analysis of whether this funding presents new opportunities. EPA has established a web site page with helpful links that discuss the opportunities in the Stimulus Bill relative to the money designated for EPA.

Brownfields:  There is over $100 million directed to U.S. EPA's brownfield redevelopment program.  I was intrigued regarding this new slug of money for it could present another great opportunity for clients outside of the Clean Ohio program.  However, after asking for more details from U.S. EPA, I learned that this money is basically already spent.  The U.S. EPA intends to use it for projects that requested funding back in 2008 but were not funded due to an over abundance of proposals.  While its good news more projects are getting funded, I believe U.S. EPA could have even received better project proposals if they would have allowed for new applications. 

Diesel Emission Retrofits Act (DERA):  The Stimulus directed over $300 million in new money to fund the DERA program. DERA is the federal grant program that pays for diesel engine retrofits, repowers and replacements.  Last years allocation was only $50 million for the entire country.  So the Stimulus does provide real, new money for this program.  U.S. EPA intends to spend the money quickly so watch U.S. EPA's website and to jump in with your project.

Underground Storage Tank (USTs) Cleanups: $200 million was provided to U.S. EPA's Leaking Underground Storage Tanks (LUST) Program, EPA provides resources to states and territories for the oversight, enforcement and cleanup of petroleum releases from underground storage tanks (USTs). EPA estimates that every year 7,570 new releases occur which just adds to the sites that have not yet been completed.  There could be as many as 116,000 sites requiring clean up actions in 2009. However, it appears the funding will be used to help pay for clean ups of abandoned tanks rather than create a new grant program.  Here is additional detail from the from the Convenience Store News regarding the Stimulus package:

Other measures relevant to c-stores include a final approval of $200 million for the Leaking Underground Storage Tank (LUST) Trust Fund, which assists in the cleanup of abandoned gas stations, but will not pay for inspections or to assist state reimbursements programs.

Superfund Cleanups: $600 million was provided to U.S. EPA's superfund program.  However, these funds will be obligated mostly through existing contracts and Interagency Agreements.  In 2009 there could be as many as 20 Superfund sites ready for construction, but not funded due to budget shortfalls. The Recovery funds will begin to address those sites, plus accelerate construction at many of 600 sites where work has been limited in the past by funding constraints.

Clean Water State Revolving Fund and Drinking Water State Revolving Fund: $4 billion for assistance to help communities with water quality and wastewater infrastructure needs and $2 billion for drinking water infrastructure needs. A portion of the funding will be targeted toward green infrastructure, water and energy efficiency and environmentally innovative projects. (guidance on the green infrastructure component)

Ohio EPA has begun soliciting projects for its Drinking Water and Wastewater Revolving Loan Programs.  However, projects must already have been planned and reviewed by Ohio EPA for inclusion on project planning lists.  For instance, drinking water projects must be on the Drinking Water Project Priority List (PPL).

II.  Renewable Energy- the American Recovery and Reinvestment Act of 2009 bill is anticipated to provide around $43 billion for renewable energy in the form of tax breaks and other incentives

The extended entry includes a summary of the renewable energy incentives and investment as assembled by the American Council on Renewable Energy (ACORE). (the link provides you a hard copy of the ACORE document- which does a great job of assembling the relevant information for renewable energy incentives- or see the extended entry for a summary).

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