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While the bill is broad in scope, many of the changes are minor fixes to address out of date statutory language.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:
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:
- The VAP clean up also addresses other hazardous substances or petroleum that is not BUSTR regulated; and
- 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.