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House Votes on Great Lakes Compact

December 13, 2006

House Votes on Great Lakes Compact

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The House gave unanimous or near-unanimous approval to most bills before it Wednesday (12/13) inclusing a measure to control the use of Lake Erie.

Rep. Matt Dolan (R-Chardon) explained the rationale for the Great Lakes Compact in HB574, which he said would give Ohio an uncommon opportunity to take the lead in the interstate agreement needed to protect the lakes and St. Lawrence River from long-distance consumption by other states and nations.

Dolan offered a final amendment that included a prohibition against interested third parties’ filing claims against water use under the compact and allowing Ohio to withdraw from the compact before ratification and after any subsequent change to the ratified contract. Conversely, if other states do not show due diligence in implementing the compact within three years, Ohio may also withdraw.

The amendment passed, and various members on both sides of the aisle went on to commend Dolan for protecting Ohio’s largest consumable resource. Rep. Brian Williams (D-Akron) had one question about “straddling communities” such as Akron, which would not be diverting water back into the Lake Erie, as the bill generally requires. Dolan said an exemption was included for such communities.

Despite scattered questions, the bill passed 82-5.

Rules for Conducting Environmental Due Diligence

November 16, 2006

Rules for Conducting Environmental Due Diligence

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On November 1, 2005, the United States Environmental Protection Agency (“U.S. EPA”) issued a Final Rule entitled “Standards and Practices for All Appropriate Inquiries,”  that became effective November 1, 2006.  The U.S. EPA has for the first time adopted rules regarding environmental due diligence.  The Final Rule impacts all purchasers of real property who desire to claim one of the defenses to liability under the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”).  The purpose of this Article is to alert the reader to the Final Rule, and its anticipated consequences.

CERCLA imposes strict, and joint and several liability.  An unsuspecting purchaser of contaminated real property can be held liable under CERCLA for the entire cost of cleanup even though the purchaser did not contribute to the contamination.  To avoid such a harsh result, Congress established a limited number of defenses to CERCLA liability, namely: 1) the innocent landowner defense; 2) the bone fide prospective purchaser defense; and 3) the contiguous property owner defense.  However, a party intending to claim the benefits of any of these defenses must have, among other things, conducted “all appropriate inquiries” into the condition of the property immediately prior to acquiring it.  The Final Rule sets forth the standards and practices necessary to satisfy the “all appropriate inquiry” requirement.
Generally stated, under the new Rule, the “all appropriate inquiry” requirement will be satisfied if the following activities are timely conducted by, or under the direct supervision of, an individual who qualifies as an “environmental professional”:

• Interviews with past and present owners, operators and occupants to determine, among other things, current and past property uses, and current and past uses of hazardous substances, pollutants, contaminants, petroleum and petroleum products, and controlled substances on the property and/or adjacent properties;
• Review of historical sources of information;
• Review of federal, state, tribal and local government records;
• Visual inspections of the facility and adjoining properties;
• Commonly known or reasonably ascertainable information about the property or adjacent properties; and
• Degree of obviousness of the presence or likely presence of contamination at the property and the ability to detect the contamination.
The Final Rule also requires that the following inquiries be conducted by or for the party desiring to claim the benefit of the defense:
• Searches for environmental cleanup liens;
• Assessments of any specialized knowledge or experience of the prospective landowner (or grantee); and
• As assessment of the relationship of the purchase price to the fair market value of the property, if the property was not contaminated. 

The Final Rule took effect November 1, 2006.  Because the environmental rules and regulations present unique challenges to all prospective purchasers of real property that may have been environmentally impacted, as well as to owners of adjacent real property, it is important that these parties consult with their legal representative prior to making a purchase.

Article provided by Buckingham, Doolittle and Burroughs, LLP and written by William L. Caplan and David J. Hrina.
 
Bill Caplan is a Shareholder and Chair of the Environmental Law section of the Business Law Practice Group.  He can be reached at bcaplan@bdblaw.com or 330.258.6458.  David Hrina is an Associate in the Environmental Law section of the Business Law Practice Group.  He can be reached at dhrina@bdblaw.com or 330.643.0212.  From OMA Connections Partner, Buckingham, Doolittle and Burroughs, LLP

Voters Face Up to Five Ballot Issues in November

October 20, 2006

Voters Face Up to Five Ballot Issues in November

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By the time voters hit the polls in November, they may have up to five statewide issues to vote on. Two of the five issues hit employment law matters and will be of great interest and concern to manufacturers.

After a year in which it seemed like dozens of potential issues were starting up, five dealing with smoking, gambling, workers’ compensation and minimum wage were the only ones submitted before the deadline on Wednesday.

James Lee, a spokesman for Ohio Secretary of State Ken Blackwell, said the issues must be certified by Sept. 8, at which time the office will inform county boards of elections which candidates and issues are on the statewide ballot so those boards can set their voting machines. In the meantime, the Ohio Ballot Board is expected to meet soon to finalize the language of the issues as they appear on the ballot.

One issue that won’t be on the ballot is the Tax Expenditure Limitation amendment that had been pushed by Blackwell. Although the signatures had been certified, Lee said the office has received the necessary letter from the amendment’s organizers asking for it to be withdrawn. He said the office won’t submit it as a ballot issue on Sept. 8 with the others.

OMA members should pay special attention to the 1) SB 7 Referendum, and the 2) Minimum Wage Ballot / Employment Privacy issue. Both issues have the potential to distort Ohiolaw-making and will result in greater employer liability and costs. Some level of individual company advocacy will be needed in the coming weeks and months if manufacturers are going to impact these outcomes. The OMA has been leading an effort to challenge efforts to put the SB7 repeal on the ballot. OMA member financial support have greatly aided in this effort. 

The ballot issues that were submitted are as follows:

2006 Ballot Issue Summary, August 9, 2006  From Hannah News Service

Strickland’s Running Mate Criticizes Blackwell Turnpike Plan

October 20, 2006

Strickland’s Running Mate Criticizes Blackwell Turnpike Plan

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Over the past few days Ted Strickland’s campaign has been targeting gubernatorial opponent Ken Blackwell’s plan to lease the Ohio Turnpike for criticism.

Strickland’s running mate Lee Fisher issued press releases this week highlighting a study and media reports that found tolls on privatized roads have increased.

“Expert analysis of other toll-road privatization schemes confirm what we’ve feared all along — leasing off our Turnpike will increase tolls, plain and simple,” Fisher said. “Selling off one of our state’s most valuable assets that was built by Ohioans and has been run by Ohioans to a foreign company and tying our hands for the next 99 years is incredibly short-sighted. It’s just one more of Mr. Blackwell’s quick-fix, short-sighted political gimmicks.”

Fisher cited stories from the Houston Chronicle, which said privatization studies in Harris County found officials would have to give up control of toll prices if an 83-mile toll system were privatized, and from a Toronto Star story in which officials said a privatized highway had become “a privately run vacuum cleaner for sucking money out of commuters’ pockets.”

Fisher also noted that truckers left the Ohio Turnpike and were traveling on local roads to avoid high tolls.

The preceding article is an excerpt from The Hannah Report, Ohio’s daily legislative newsletter providing independent, timely and comprehensive coverage of state government. For more information, please contact Hannah News Service at 614.228.3113.  From Hannah News Service

Dems Respond to DeWine Ad, Start War of Words

October 20, 2006

Dems Respond to DeWine Ad, Start War of Words

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The negative advertising in the U.S. Senate race is going full force with nearly four months to go to the election.

The Ohio Democratic Party unveiled its response to a recent ad by U.S. Sen. Mike DeWine that attacked his opponent, U.S. Rep. Sherrod Brown, for being “weak on national security.”

The new ad criticizes DeWine for using 9/11 images in his advertisement and tries to paint him as being weak on security.

The party also put out a statement criticizing DeWine for his negative ad, saying negative campaigning is not new to DeWine and highlighting a series of ads he ran against former U.S. Sen. John Glenn when he ran in 1992.

“Mike DeWine should be ashamed of exploiting the hallowed ground of 9/11 for his partisan purposes,” said party Chair Chris Redfern in a statement. “When you look at his own voting record, as a member of the Senate Intelligence Committee, his exploitation of 9/11 and attacks on Sherrod Brown show how out of touch he really is with his own responsibility for homeland security issues.”

The Ohio Republican Party responded by releasing excerpts of media stories about Brown’s voting record on national security.

“The Democrats are trying to paint over a rusty bucket,” Ohio Republican Party Chairman Bob Bennett said in a statement. “Sherrod Brown can gloss over his pathetic record on national security, but the truth will eventually eat its way through. Brown has done more to leave our country vulnerable to terrorism than nearly anyone in the U.S. House. Anyone who looks at his record on national security knows it’s toxic, even his fellow Democrats.”

The preceding article is an excerpt from The Hannah Report, Ohio’s daily legislative newsletter providing independent, timely and comprehensive coverage of state government. For more information, please contact Hannah News Service at 614.228.3113.  From Hannah News Service

U.S. EPA Neglects Advisory Group Findings, Say Analysts

September 29, 2006

U.S. EPA Neglects Advisory Group Findings, Say Analysts

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An environmental advocacy group accused the U.S. EPA recently (09/22) of ignoring the recommendations of its own advisory panel in crafting final rules for the National Ambient Air Quality Standard (NAAQS). The Ohio Environmental Council (OEC) said the EPA failed to strengthen existing annual standards for fine particulate matter, or “PM 2.5,” as sought by the independent Clean Air Science Advisory Committee (CASAC).

“We should expect EPA to adopt the most health-protective, scientifically defensible health standards,” said Dr. L. Bruce Hill, staff scientist for the Clean Air Task Force (CATF), which commissioned its own study from CASAC. “Today, EPA ignored the overwhelming weight of the scientific evidence and its own independent panel of scientific advisors in setting a standard that fails to adequately protect the health of the American people.”

Tiny PM 2.5 particles are inhaled deep in the lungs, said OEA, where they can trigger premature death, heart attacks, asthma attacks, and a variety of respiratory problems. The environmental group claimed EPA’s decision not to revise the annual standard will result in thousands of avoidable premature deaths and thousands of cases of cardiovascular and lung disease throughout the U.S. OEA noted, however, that final NAAQS rules do tighten the daily standard from 65 micrograms per cubic meter to 35 micrograms per cubic meter.
Air quality standards set the target that states and municipalities must meet under the nation’s clean air laws. Once air quality standards are in place, states have a determined number of years to take necessary pollution-reduction measures to meet those standards.
The major polluting sources contributing to high levels of fine particles include older diesel engines and coal-fired power plants, explained Hill. “For areas that fail to meet the new daily particle standard, cleaning up dirty diesel engines should be Job One.”

In a study performed for CATF in 2005 using EPA methodology, CASAC found diesel pollution shortens the lives of 21,000 Americans and is responsible for over 400,000 asthma attacks annually (See http://www.catf.us/projects/diesel/dieselhealth/).

“If US EPA won’t protect the health of our citizens, then it is up to Ohioans to do the job,” said Staci Putney McLennan, director of Clean Air Programs for OEC. “We renew our call today to Ohio EPA and the Ohio legislature to adopt measures requiring clean up of diesel engines as part of the state plan to meet the fine particulate and ozone air quality standards.”

The National Partnership to Reduce Diesel Pollution weighed in Friday, promising its commitment to the goal of reducing PM 2.5 from diesels fully 70 percent by 2020.

“The National Partnership to Reduce Diesel Pollution, a coalition of over 100 national, state, and local organizations, will continue to work to protect Americans from diesel pollution whether or not they live in areas with air that meets EPA’s new inadequate standard,” said Brooke Suter, campaign director for CATF. “Everyone knows that breathing diesel pollution is unhealthy no matter where you live.”

Founded in 1996, the Clean Air Task Force (CATF) is a nonprofit organization oriented around “healthy environments” through scientific research, public education, and legal advocacy.

The preceding article is an excerpt from The Hannah Report, Ohio’s daily legislative newsletter providing independent, timely and comprehensive coverage of state government. For more information, please contact Hannah News Service at 614.228.3113.

Environmental Permitting Based on Sound Science

September 1, 2006

Environmental Permitting Based on Sound Science

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The cornerstone of OMA’s environmental policy agenda is that regulatory directions by the EPA be based on sound scientific evidence. Towards that objective, the OMA recently issued comments to Ohio EPA on its proposed Air Toxic Contaminants list with the science to back it up.

OMA Connections partner Shaw Environmental performed a review of Ohio EPA’s proposed methodologies, monitoring standards and toxic substances. Their report details a science based process for evaluating compounds for inclusion on Ohio’s Air Toxic Contaminants list. 

”Without this kind of process, decisions on toxic substance monitoring would continue to be left up to the whims of administrations seeking to expand or contract the list,” Commented OMA’s Kevin Schmidt. “What we did was create a list that is scientifically defensible, is protective of the public’s health and represents those compounds in need of regulation.” 

This rule comes as a result of the recently passed Senate Bill 265 environmental permitting reforms. One of the requirements of SB 265 was that Ohio EPA, through administrative rule, develop and maintain a list of air toxic compounds it will be regulating through air permits.  A list developed without a clear scientific process may increase a company’s permit requirements and costs and open up the possibility for litigation.

See the links below for more details on OMA’s comments.

Revamping Industrial Waste Rules

August 31, 2006

Revamping Industrial Waste Rules

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On August 1st, Ohio EPA released a massive proposal rewriting industrial waste rules in Ohio. Nearly every company who is regulated under these rules will be impacted. The Agency’s goal was to bring common sense to regulating industrial waste by regulating waste based on its relative toxicity rather than a piece-meal approach. The comment deadline for these rules has been extended to November 1st. Below you will find a link to these rules. At the upcoming OMA Committee day being held on September 20th in Columbus Frank Merrill (Bricker & Eckler) along with Terry Baehr (Senior Hydrogeologist) and Chuck Renn (Senior Environmental Engineer) will be presenting an in depth review and analysis of these rules.

EPA Extends Comment for Draft Rules Regulating Waste Disposal

August 29, 2006

EPA Extends Comment for Draft Rules Regulating Waste Disposal

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EPA Extends Comment for Draft Rules Regulating Waste DisposalTo allow more time for public review and comment, Ohio EPA has extended the public comment period until Wednesday, Nov. 1, 2006, on draft rules to regulate waste disposal in Ohio.

The purpose of the draft rules is to provide consistent, science-based requirements for protective liners at construction and demolition debris (C&DD) landfills, industrial waste landfill facilities and disposal lagoons.

Ohio EPA began evaluating its liner requirements in 2004 in response to concerns about disposal requirements for industrial waste. Some of the concerns about over-regulation were legitimate, Ohio EPA acknowledged. While Ohio EPA was researching possible alternatives, the Ohio General Assembly passed two bills to strengthen regulations for C&DD landfills.

HB432 required Ohio EPA to develop rules to create a ground water monitoring fee on disposal of C&DD. HB397 required Ohio EPA to adopt rules to govern ground water and leachate monitoring, closure and post-closure care of C&DD facilities: prohibit pulverized debris; and require compliance history disclosures. It also requires Ohio EPA to establish a permitting program for construction and demolition debris facilities, including expanded siting criteria.

Following extensive research using available science and Ohio-specific data, Ohio EPA has proposed, what it calls “a consistent approach to liner standards based on the potential environmental impacts of the facility independent of its legal classification.” As a result, the draft rules include 14 liner options for lagoon systems, 12 options for industrial waste landfills and seven options for C&DD landfills. Requirements range from no liner at all to a five-foot thick recompacted clay liner combined with a dense plastic liner. Requirements for C&DD landfills range from a minimal recompacted soil liner to a five-foot thick recompacted clay liner combined with a dense plastic liner.

Information about these rules can be obtained on Ohio EPA’s website at: http://www.epa.state.oh.us/dsiwm/ or by calling 614/644-2621.

To comment on the rules, contact Scott Heidenreich at 614/728-5333, or send written comments by email to scott.heidenreich@epa.state.oh.us or by mail to Ohio EPA, Division of Solid and Infectious Waste Management, P.O. Box 1049, Columbus, Ohio 43216-1049, no later than Nov. 1, 2006.

Ohio EPA will consider all comments submitted prior to Nov. 1 before formally proposing these rules. When the rules are formally proposed, Ohio EPA will hold a public hearing and offer another public comment period before adopting final rules.
The preceding article is an excerpt from The Hannah Report, Ohio’s daily legislative newsletter providing independent, timely and comprehensive coverage of state government. For more information, please contact Hannah News Service at 614.228.3113.

Taking An Active Role In Regulating Air Toxins

August 11, 2006

Taking An Active Role In Regulating Air Toxins

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An important administrative rule that is working its way through Ohio EPA’s rule making process as a result of the recently passed Senate Bill 265 could have a significant impact on manufacturing air permitting efforts. 

The OMA led the effort to pass SB 265 earlier this year which made sweeping changes to the way Ohio EPA handles air permitting in Ohio.  The main goals of SB 265 were to increase the transparency, predictability and consistency of permitting.  One of the requirements of SB 265 was that Ohio EPA, through administrative rule, develop and maintain a list of air toxic compounds they will be regulating through air permits.  The rule creating this list is currently out for comment and according to industry experts, it’s troublesome. 

The list contains many compounds that are not considered toxic, which is counter to the intent of the legislation. Additionally, the EPA did not include in this rule the process they used to develop this list. A list developed without a clear scientific process may increase a companies permit requirements and costs.  Additionally, it may open up the possibility for litigation as compounds generally seen as safe will now be included among toxic and carcinogenic compounds.

The OMA is drafting comment right now to advocate for and offer to OhioEPA a scientific process that can use to create and maintain the list of air toxic compounds. 

To do that we have partnered with Shaw Environmental Inc., a third party environmental consulting group and OMA member to develop a responsible and scientifically defensible process for evaluating compounds.  The OMA has commissioned this important research to take place so manufacturing can have a strong voice and advocate for responsible environmental regulations.

For more information on this project, contact OMA’s Kevin Schmidt at (800) 662-4463.