Back in 2006, when I was Ohio EPA, I worked on Senate Bill 265 which was the first major overhaul in air pollution regulation in Ohio in over a decade.  One component of S.B. 265 was to provide authority to Ohio EPA to regulate air toxics.  

Prior to enactment of S.B. 265, Ohio EPA did utilize an "air toxics policy" that was used to evaluate whether an air pollution source should obtain a permit due to emission of certain air toxic compounds above certain thresholds.  As a policy, the Ohio EPA did not have clear legal authority to enforce the requirement.  After enactment of S.B. 265, the Ohio EPA was given that authority.  The bill required the director to adopt a list within two years of passage of the bill of those air toxics that could trigger permitting.  

There are literally thousands of compounds that could be considered toxic. Ohio EPA decided to rely upon toxicity information compiled by the American Conference of Governmental Industrial Hygienists ("ACGIH"")  The toxicity value developed by ACGIH is referred to as a chemical’s threshold limit value ("TLV"). The TLV represents the value to which a worker could be exposed without health effects.

However, TLVs are based upon worker exposure (8 hour and 5 day work week).  Ohio EPA felt that the number could be too conservative for residential exposures (24 hours and 7 days a week).  Therefore, Ohio EPA took the TLV for each compound and divided it by 10 as a "safety factor."  The result is a standard Ohio EPA refers to as the Maximum Achievable Ground Level Concentration ("MAGLC"). This is the value which it believes a resident living near a facility would not experience health effects.

Ohio EPA Reduces the List of Toxics

With so many chemical compounds, Ohio EPA tried to concentrate on those they felt presented the greatest risk of health effects.  Ohio EPA culled the list based on toxicity to 639 compounds.  Then, utilizing various factors discussed below, Ohio EPA cut down the original list to 303 total compounds. See, OAC 3745-114-01.

The factors utilized to cut down the list to 303 compounds included:

  1. If the compound was used in consumer products or regulated by other agencies (such as pesticides), then they were excluded;
  2. If the only pathway for exposure was non-inhalation (i.e. dermal contact, ingestion);
  3. If health effects are caused by exposure which is sudden and of short duration, such as those caused by emergency release events, including explosions or catastrophic malfunction (referred to as "acute exposure");
  4. Compounds no longer used or produced in Ohio; and 
  5. Those compounds that only cause irritation, not serious health effects.

Legal Challenge

The Sierra Club filed a legal challenge to the final air toxic rule.  The environmental group said the five factors used to cut the list from 639 to 303 compounds were unlawful.  

The 10th Appellate Court upheld three out of the five factors.  See, Sierra Club v. Koncelik  The Court found that Ohio EPA should not have eliminated compounds simply because they currently aren’t utilized in the State, because they may in the future.  Also, the Court said that Ohio EPA should not have eliminated compounds that posed health effects only through non-inhalation routes of exposure (i.e. dermal contact or ingestion).  

As a result of the Court ruling, Ohio EPA will be adding to the list of 303 compounds. 

With the passage of Ohio’s budget bill (House Bill 59), the State has enacted tougher regulation of oil & gas related wastes. Beginning January 1, 2014, a person is prohibited from storing, recycling, treating, processing, or disposing of brine or other waste substances associated with oil & gas exploration and production without a permit or order authorizing those activities. The relevant provisions are found in Ohio Revised Code 1509.22.

Under the old law, the Chief of the Oil & Gas Division at the Ohio Department of Natural Resources had to either adopt rules or issue orders regarding the management of oil & gas related wastes. H.B. 59 establishes a new permit program. In addition, the old law covered only storage and disposal of such wastes. Under the new law, it clarifies that a permit or order would be needed for recycling, treatment and processing of such wastes.

One aspect these changes are meant to address are operations that take flow back (brine) and allow for solids to settle out prior to disposal via injection well. It was somewhat unclear whether this was deemed "storage" under the old law. Now it is clear these operations are meant to be covered.

In line with the State’s shift toward fees to pay for Agency services which has occurred over the last decade, the new law establishes a $2,500 fee for obtaining such a permit.

Finally, H.B. 59 clarifies the materials that are covered under new permit program. The old law covered: brine, crude oil, natural gas, or other fluids associated with exploration & development of oil and gas resources. H.B. adds to the "other fluids" category- well stimulation, production operations or plugging. It appears the intent was to ensure all waste material associated with either exploration, production or closing of a well are captured under the requirements. As Ohio continues to see development of the Utica Shale resources, it is likely additional changes and regulations will be enacted.

Performing appropriate environmental due diligence prior to acquisition of any industrial or commercial property is a necessity. Due to expansive liability under environmental statutes, most notably CERCLA (i.e. Superfund), a purchaser of contaminated property can be held liable for all cleanup costs regardless of whether the purchaser caused the contamination or knew it was present. Therefore, taking the appropriate steps to understand what you are buying is critical. All purchasers should follow the simple “no surprises rule.”

Here are five tips for purchasers regarding environmental due diligence.

1. Avoid Low Cost Phase Is

Typically, the first step in the environmental due diligence process is a Phase I environmental assessment. A Phase I involves the review of records, government databases, interviews with those familiar with the property and a site walk over by the retained environmental consultant. The purpose of the review is to determine whether there is any information or visible signs to suggest a release of contamination may exist on the property. If the consultant determines such evidence exists, it will be identified in the Phase I report as a “recognized environmental condition” (REC).
Phase I environmental assessments have become the norm in virtually any commercial or industrial property transaction. Most financial institutions will require a Phase I report prior to agreeing to finance a transaction.

In this regard, Phase I’s have become a commodity- A box that needs to checked off before a deal can go through. But buyer beware, while Phase I may be enough to secure financing, does the report provide a high quality review of the condition of the property?

There are a plethora of environmental consultants who perform Phase I’s. However, all consultants and Phase I reports are not equal. Performing a good Phase I involves ensuring a comprehensive review takes place, attention to detail as well as the exercise of professional judgment. At a minimum, the Phase I should meet the ASTM 1527-05 standard which is required in order to potentially qualify for the federal EPA liability defenses discussed below.
Be wary of consultants who are willing to perform a Phase I for less than the typical fee for your area. A low price can be a red flag that you will not receive a quality Phase I.

2. Be Mindful of Lurking Vapor Intrusion Issues

Vapor intrusion can occur when volatile chemicals from contaminated groundwater or soil enter an overlying building. Volatile chemicals can generate vapors that migrate from groundwater or soil through basements or foundations into indoor air similar to radon gas in homes.

Regulations and guidance associated with vapor intrusion are changing rapidly both at the state and federal level. It is likely that forthcoming revisions to ASTM guidance for performing Phase I assessments, which is expected this year, will include new guidance on evaluating the potential for vapor intrusion.

Given the potential legal liability and/or costs associated with addressing vapor intrusion, a purchaser should make sure that the environmental consultant properly evaluated the potential for vapor intrusion during the due diligence process.

3. Take Advantage of Potential Liability Defenses

Under federal law, purchasers can protect themselves from liability under CERCLA by performing proper due diligence, as established by EPA regulation and guidance. Proper due diligence is referred to by EPA as “all appropriate inquiries” (AAI).

If a purchase performs due diligence in accordance with AAI, it can qualify for liability protection known as the “bona fide prospective purchaser defense” (BFPD). AAI requires the performance of a Phase I that meets ASTM 1527-05. It also requires that the purchaser take reasonable steps to address any contamination that may be identified during due diligence.

In December 2012, EPA issued an update to its BFPD guidance which expanded the ability of tenants to qualify for the defense so long as the tenant performs AAI prior to leasing the property.

While it is well worth taking the steps to qualify for available liability defenses such as the BFPD, you should also understand the limitations of these defenses. For example, the BFPD does not cover petroleum related contamination. Also, federal liability protections such as the BFPD do not provide state based environmental liability protection.

4. Access and Confidentiality

Key issues that need to be addressed upfront with the seller include securing proper access to the site as well as obtaining copies of all key documents, such as permits and prior environmental reports. Typically, the parties will enter into a confidentiality agreement that sets forth the terms upon which information will be shared.

It is also critical to make sure you have secured the requisite access before you initiate your due diligence. You should make sure you have the legal right to access the property to perform any tests deemed appropriate. As the purchaser, you want to avoid battles over access once the due diligence process commences.

5. Beware of Issues Not Covered in the Typical Phase I

Typical Phase I’s do not cover whether the property contains wetlands, asbestos or endangered species. However, you can add them to the scope of the Phase I if you determine the conditions of the property justify such a review. For example, if you are purchasing an undeveloped tract of land it is critical to review for wetlands and endangered species. If you are purchasing a building that was built before 1980 then you should strongly consider having an asbestos survey performed.
 

A task force assigned to review the ASTM standard for Phase I environmental assessments has completed its review of the current standard.  It has sent its recommendations to U.S. EPA who is expected to accept the recommendations. 

Any revisions to the ASTM standard for Phase I has big implications.  Phase I reports are a requirement of the "All Appropriate Inquiries" process to establish CERCLA liability defenses.  Most property transactions involve a Phase I assessment.

As reported on the Schnapf LLC blog, the revised standard will likely include the following changes:

  • definition of REC was tweaked to make it more understandable to environmental consultants;
  • A new term “Controlled REC” (CREC) was added which is intended to complement the HREC term. The latter applies to prior RECs that have been remediated to unrestricted cleanup levels while CREC applies to risk-based cleanups that have ongoing institutional or engineering controls;
  • creates a presumption that the environmental professional should perform a file review of agency records in determining the presence of a REC. If the environmental professional decides a file review is not required, it must explain why a file review was not performed;
  • the revised legal appendix clarifies scope of the CERCLA indoor air exclusion from definition of release and also discusses other CERCLA exclusions;
  • the revised legal appendix clarifies the role of that vapor intrusion in phase 1 reports (it is just like any other exposure pathway- (groundwater, air, soil). In most cases, there will be an underlying REC (contaminated groundwater or soil) that will already be a REC. However, there may be instances where there is an off-site source where there is potential for vapors to have laterally migrated through the soil gas to the subject property. In such an scenario, the potential for Vapor intrusion could be a REC. However, determining if the pathway is completed will usually beyond scope of the phase 1unless otherwise specified by the client;
  • a new Business Environmental Risk (BER) appendix describes the BERs that are commonly encountered for commercial properties and discusses factors that may be considered in determining if a client wants to include BERs in the scope of the phase 1.

A couple comments on these potential changes:

  1. REC Definition-  It will be interesting to see how the definition of REC is modified.   In my experience, there is a wide range of interpretations applied by environmental consultants.  Some will opine that any property that had industrial operations should be identified as a REC.  Others say there needs to be some information suggesting a release or at least the potential for a release to have occurred to be identified as a REC.
  2. Vapor Intrusion-  Adding specificity that vapor intrusion issues should be identified as a REC will add to the complexity of analyzing Phase I reports.  With the clarification discussed, it may lead to the vapor intrusion pathway being identified as a REC in more Phase I reports.  This has big implications for due diligence because the vapor intrusion pathway is often the most difficult to assess in a subsequent Phase II.  It doesn’t help that U.S. EPA still hasn’t finalized its vapor intrusion guidance and relies upon 2002 OWSER vapor intrusion guidance still labeled draft.

Often times businesses only worry about performing due diligence (Phase Is and Phase IIs) when they are purchasing a building, factory or land.  In my experience, many tenants never think about the fact that they could inherit liability for pre-existing contamination just by leasing property.  However, tenants, particularly those that are leasing industrial space, should be concerned and protect themselves accordingly. 

Now, U.S. EPA has created an even larger incentive for performing proper due diligence as a tenant.  On December 5, 2012, US EPA issued new guidance that expands liability protections for tenants that could be held liable for cleanup and remediation costs at leased properties.  

Quick Primer on Tenant Liability under CERLCA

The environmental statute that has the most broad reaching liability for pre-existing contamination  is the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)- also known as Superfund.  Under CERCLA, any "owner" or "operator" can be held jointly and severally liable for cleanup costs at a site for even contamination that was present prior to their use or ownership of the property.

Tenants can be deemed an "owner" under CERCLA depending on the structure of the lease.  For example, they could be deemed a de facto owner if they have control over the entire property.

Tenants could also be held liable for pre-existing contamination as an "operator" if they store or generate hazardous substances on the leased property during the term of the lease.  There are varying tests for determining whether a tenant should be deemed an "operator" under CERCLA.  However, any tenant utilizing hazardous substances on a leased property should be aware that they could be deemed potentially liable for pre-existing contamination.

Tenants and the Bona Fide Purchaser Defense (BFPD)

In order to encourage re-use of brownfield properties, in 2002 Congress passed the Small Business Liability Relief and Brownfields Revitalization Act.  As part of the Act, Congress created the "bona fide purchaser defense" (BFPD) which allows purchasers that conduct proper due diligence and follow other requirements  to purchase property with knowledge of hazardous substance contamination without incurring liability as an "owner" or "operator." 

However, when the law was passed in 2002 it did not provide the same opportunities to tenants to qualify for the BFPD.  The only way a tenant could qualify for the protection is if they were deemed an "owner" based upon the lease terms or if the owner already qualified for the BFPD.  Tenants under traditional lease arrangements with an owner that never qualified for the BFPD fell into a gap.  They simply couldn’t qualify on their own for BFPD protections. 

Finally, in December 2012, EPA recognized there was a gap in potential liability protection for most tenants and it issued a new guidance allowing all tenants to qualify for the BFPD if they meet certain conditions, including:

  1. Don’t dispose of hazardous substances on the property;
  2. Conducts proper due diligence (known as "All Appropriate Inquires");
  3. Makes all legally required notices;
  4. Takes "reasonable steps" regarding releases;
  5. Cooperates with regulators;
  6. Complies with any use restrictions or controls designed to protect against exposure to contamination;
  7. Complies with administrative subpoenas and information requests; and
  8. Is not potentially liable for response costs or affiliated with a person who is liable for response costs at the facility.

It is worth noting that this is only enforcement discretion guidance and not statutory liability protection.  This means that EPA could still file a suit against a tenant if it felt the circumstances justified such an action.

Tenants Should Consider the BFPD and Contract Provisions to Protect Themselves

Due to the large liability exposure associated with leasing property that may have had some history of use of hazardous substances, tenants should take steps to protect themselves.  First, perform due diligence prior to signing the lease.  Second, insist on contractual provisions that release and protect them from liability associated with pre-existing contamination. However, contract provisions still don’t prevent regulators from suing you.  Therefore, as a third step tenants should evaluate are the benefits of the BFPD as another means of mitigating risk.

 

On March 6th the Clean Ohio Council approved major changes to the Clean Ohio program.  The changes are now effective and will govern the remaining $15 million in funding that was set aside in the last budget. 

After the $15 million has been exhausted, JobsOhio has indicated it will launch a new $43 million per year brownfield redevelopment program.  No word yet on what the details of that program may look like, however, it is safe to assume that the more streamlined structure and emphasis on jobs will be key aspects of the JobsOhio program.

Here are the major changes approved by the Council on March 6th:

  • Single incentive program- COAF and CORF Combined into one brownfield funding program:
  • Streamlined application process–  Requests for funding are now initiated by submitting a letter of interest to JobsOhio regional network.  This is a positive development for CORF projects that required applicants to invest $20,00 or more to file the application without knowing whether they will be funded;
  • All grants will be awarded on a rolling basis-  This replaces the CORF process of two rounds of funding with pools of applicants competing against one another.
  • Cleanup grants remain capped at $3 million–  The proposal had been to reduce them to $1 million;
  • Assessment grants are capped at $200,000–  compared to $300,000 under the old program.
  • Expanded eligible infrastructure costs under the grant
  • Eliminated the Redevelopment Ready Track- Grant applicants must have a committed end user of the property. 

Last year the Kasich Administration announced that it was phasing out the Clean Ohio brownfield grant program.  The Clean Ohio program,which had been in existence for over a decade, had provided approximately $37.5 million per year in incentives for cleanup and redevelopment of brownfields. 

Last May, the Administration allocated a final $15 million toward traditional Clean Ohio programs for sampling and cleanup work.  JobsOhio took over administration of the program from the Ohio Department of Development.  (Click here for prior post discussing changes)

What has been somewhat unclear since the announcement regarding phase out of the Clean Ohio program is whether JobsOhio would replace it with a new brownfield incentive program.  As discussed in an article in the Crain’s Cleveland Business magazine, it appears JobsOhio does plan on a sizable brownfield redevelopment incentive program to replace Clean Ohio.

About $43 million of the $100 million JobsOhio can spend annually for economic development programs will go toward revitalization projects, Mr. Minor said.

The planned allocation to land revitalization is a big change in the Kasich approach to economic development. The Kasich administration let the former program, Clean Ohio, die last year without assurances that it would be picked up by JobsOhio…

Clean Ohio offered communities as much as $3 million in loans or grants for remediation projects — a number JobsOhio might match, Mr. Minor said. But Mr. Minor said the new program will prefer to invest with companies that will occupy the cleaned-up properties.

What is clear from the comments of JobsOhio officials is that only projects that have a committed end-users after cleanup will qualify for the new brownfield incentives.  Also, the old scoring methods utilized by Clean Ohio will not longer be used to identify good projects.  JobsOhio will heavily emphasize the following factors in selecting projects:

  • number of jobs the project retains;
  • the number of jobs created; and
  • investment in redevelopment of the property and/or equipment.

Clean Ohio Council to Meet

The Clean Ohio Council will meet tomorrow to discuss changes to its policies for awarding grants.  However, whatever changes are made will likely only govern the remaining $15 million in funding.  After that money is spent, JobsOhio will initiate its own program with its own procedures and methodologies for selecting projects. 

Regardless of whether you like some or all of the changes to the process for selecting projects, it is very good news that a strong brownfield incentive program will exist post-Clean Ohio.  In a state with a rebounding economy it is critical to attract redevelopment to properties that may have historical issues tied to Ohio’s strong industrial history. 

Across the country more local governments are attempting to pass their own ordinances regulating or even prohibiting natural gas drilling in their jurisdictions.  Under home rule principals, the typical rule of thumb is that local ordinances are preempted if the state has a comprehensive regulatory scheme for that area.  However, various state courts have reached different conclusions as to whether local ordinances are banned by a comprehensive state regulatory scheme.  Now, an Ohio court has weighed in on this issue.

New York

Recently, in New York, two state courts upheld bans on natural gas drilling.  In one case, the town of Dryden amended its zoning ordinance to “ban all activities related to the exploration for, and production or storage of, natural gas and petroleum."  The ordinance was challenged by company owning thousands of acres of leases in the area. 

The Court said the ordinance was not preempted by state law governing oil & gas drilling.  The Court said the purpose of the state law is to “regulate any development or production of such resources which may occur in a manner that prevents waste, permits greater ultimate recovery of oil and gas, and protects the correlative rights of all persons."  See, Anschutz Exploration Corp. v. Town of Dryden

Pennsylvania

The Pennsylvania Supreme Court found a local ordinance governing drilling preempted while, in a separate case, upheld an ordinance governing where drilling could take place. The Supreme Court found a municipal ordinance that regulated the permitting of drilling as well as site restoration requirement preempted by the state Oil & Gas Act. See, Range Resources Appalachia, LLC v. Salem Tp., 600. Pa. 231, 964 A.2d 869, 876-77 (2009 The Court held the Act preempts all local regulation of gas well operations.

However, the Court upheld a ordinance which designated where natural gas drilling could take place. See, Huntley & Huntley, Inc. v. Borough Council of Borough of Oakmont, 600 Pa. 207, 964 A.2d 855, 866 (2009).  The Court said such an ordinance serves a different purpose that the state Oil & Gas Act.

Ohio

Now, an Ohio Court has reviewed the extent of preemption of natural gas drilling.  In State ex rel. Morrison v. Beck Energy Corp., Ninth Dist. Case No. 25953, 2013-Ohio-356, the Ninth Appellate District reversed a decision of the Summit County Court of Common Pleas and held that local ordinances of the City of Munroe Falls regarding oil and gas drilling were preempted by the comprehensive state regulatory scheme granting authority to regulate oil and gas drilling to the Ohio Department of Natural Resources (ODNR). As a result, the City was barred from enforcing its oil and gas drilling ordinances against Beck Energy.

In its “home rule” analysis, the Appellate Court found that the City’s permit, zoning and rights-of-way ordinances were exercises of the City’s police power, but also that Ohio Revised Code Chapter 1509 was a general law and provided a comprehensive regulatory scheme for oil and gas well operations in this state. The Appellate Court found that the City’s oil and gas drilling and zoning ordinances were in direct conflict with Ohio Rev. Code Chapter 1509 and thus preempted.

The Appellate Court said the City could enforce its ordinances regarding construction of rights-of-way, as long as it did not enforce them in a discriminatory manner against oil and gas well drilling.

The Court did not opine as to whether a local ordinance banning fracking would be preempted.  Similar ordinances were upheld in New York despite state drilling regulations. In this instance,the Munroe Falls zoning ordinance could be viewed simply as a permit to drill which was more clearly preempted by the state’s oil & gas drilling regulations. 

On December 6, 2012, the Ohio Supreme Court issued a rare opinion pertaining to the proper calculation of civil penalties in the context of an environmental enforcement action.  The decision has serious ramifications for any company that is required to perform stack tests to demonstrate compliance with air emission standards.  It also may impact any company that has been issued a notice of violation for an air emission violation.

In State ex rel. Ohio Atty. Gen. v. Shelly Holding Co., Slip Opinion No. 2012 – Ohio – 5700 (Dec. 6, 2012), the Court found that once a violation of an air emission permit or regulatory limit has been demonstrated, the violation is presumed to be continuing in nature until the company provides convincing rebuttal evidence that the violation has ceased.  This finding means that any company that exceeds an air emission limit must act quickly to change operations or reduce emissions to demonstrate compliance.  Otherwise, the company could face a very large civil penalty because each day of non-compliance could warrant a penalty up to $25,000 per day.

Rebuttal of the Presumption Air Emissions Violation is On-Going

The Shelly company had failed a stack test of its asphalt plant.  A key aspect of the failed stack test was that it had to been run under "worst case" conditions- Meaning the emissions were measured when the facility was operating at maximum capacity.  The Court held that the failed stack test established that there was an emission limit violation.  

The State asserted civil penalties were owed for each day following the failed stack test until the Company demonstrated it had returned to compliance.  Shelly argued that it was inappropriate to presume such a violation was continual in nature when its normal operations were not at maximum capacity. 

While the trial court had agreed with the Company, the Supreme Court disagreed with Shelly and concluded the burden was on the Company to demonstrate it returned to compliance through one of the following:

  1. A subsequent stack test at maximum capacity that showed emissions within permit limits;
  2. A revised permit or variance;
  3. Operating conditions during the stack test no longer existed;
  4. Mechanical failures were repaired; or
  5. Raw materials and fuels were changed.

However, relative to numbers 3 through 5, the Court suggested a company would need to supply convincing evidence that emissions were actually within limits.  For example, the Court rejected Shelly’s argument that normal operating conditions where below maximum capacity and, therefore, the State lacked evidence it violated emission limits on days other than the initial stack test. 

 

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.