News and Analysis
Ohio EPA is beginning the five year rule review process for the rule on “Toxic Air Contaminates,” which states that the director may require a permit-to-install for any new or modified air contaminant source that emits a toxic air contaminant. The agency prepared this fact sheet on the review.
The OMA was involved in the creation of this rule through Senate Bill 265 in 2006.
The OMA and business sector allies submitted these comments to reinforce that the rule review should be focused on “the directives established by the Revised Code and the recently completed review of the rule by ERAC and the Tenth Appellate Division and that the agency should not reopen and revisit the objection to its rulemaking actions that were recently litigated and put to rest by ERAC and the Court of Appeals.”
To learn more about how to participate in this rule review process, contact OMA’s Rob Brundrett.
This week the OMA filed a memoranda of amicus curiae asking the Ohio Supreme Court to review two issues regarding water discharge permitting in Ohio.
On November 6th the court agreed to review whether Ohio EPA must use the rulemaking process in determining total maximum daily pollutant loadings (TMDLs) for discharges into streams before imposing such limits in discharge permits.
However the court refused to hear two other issues. The first being that the mere presence of a proposed discharge limit in a TMDL does not create, standing alone, a valid factual foundation for a limit in a National Pollutant Discharge Elimination System (NPDES) permit. The second being that the Environmental Review Appeals Commission’s refusal to consider evidence against a NPDES limit based on a TMDL unconstitutionally denies a permittee due process of law because the permittee has no ability to challenge the TMDL, upon which the discharge limit is based.
The OMA filed in support of Fairfield County which was asking the Supreme Court to reconsider these other issues.
This week Ohio EPA held its first Water Nutrient Technical Advisory Group (TAG) meeting. In response to stakeholder outreach earlier this year, the TAG was formed to advise the agency in its work to develop standards for nutrients.
The agency says that nutrient pollution is one of America’s most widespread, costly, and challenging environmental problems. It is caused by too much nitrogen and phosphorus in water.
OMA members John Meyer, Director of Environmental Affairs & Sustainability, John Morrell & Company, and Mike Brom, Director, Environment, PotashCorp, are serving as members of the TAG.
Meeting information and details about Ohio’s water nutrient strategy can be found here.
This week the OMA signed on a letter urging Senator Sherrod Brown to support inclusion of the “Reducing Regulatory Burdens Act” (RRBA) in the Federal Agriculture Reform and Risk Management Act.
The inclusion of the RRBA “corrects the duplicative requirement by specifying that Clean Water Act National Pollutant Discharge Elimination System (NPDES) permits are not needed for the lawful application of pesticides already regulated under Federal Insecticide, Fungicide and Rodenticide Act.”
Incorporating this change would return exclusive jurisdiction to the USDA for the regulation of weed and pest control products for food, feed crops, and landscape uses.
Ohio EPA has launched the next phase of eDocument (eDoc). eDocument Search is designed to improve efficiency; reduce costs; and greatly improve the public’s ability to access to Ohio EPA’s public records.
The system currently includes noncompliance documents issued since January 1, 2007. Eventually, electronic copies of most of the agency’s public records will be available.
This week state Sen. Joe Uecker (R-Miami Township) and Sen. Tim Schaffer (R-Lancaster) introduced Senate Concurrent Resolution 25 which urges Ohio state agencies to build green and energy efficient buildings that meet American National Standards Institute voluntary consensus standard procedures, instead of the U.S. Green Building Council’s LEED (Leadership in Energy and Environmental Design) (version 4) green building standards.
The LEED standards have come under criticism for lack of rigor and questionable environmental benefit.
Here is, in part, how the resolution critiques LEED v4: “WHEREAS, The U.S. Green Building Council’s (USGBC) LEED v4 green building system fails to conform to recognized voluntary standard development procedures, including but not limited to American National Standards Institute (ANSI) procedures, and fails to base environmental and health criteria on risk assessment methodology …”
Cooperation and communication were key ingredients used by OMA member, Pepperidge Farm, and the Ohio EPA to ensure six necessary permits were received on time to support the manufacturer’s $93 million, 227,000-square-foot plant expansion to install a new Goldfish® cracker production line. Fifty new jobs are expected.
One of those permits was to change the oven heat source from thermal oxidizers to catalytic oxidizers, which are proposed to be installed in 2014. This will result in a significant reduction in fuel consumption, making the facility more energy efficient.
This week Ohio EPA Director Scott Nally toured the facility in Willard.
Pepperidge Farm engaged Ohio EPA to ensure the project would be in compliance with all environmental regulations. The cooperative approach benefited both parties by helping Ohio EPA understand the company’s business plans, which contributed to meaningful discussion regarding the permits.
Last week the U.S. Supreme Court agreed to hear several appeals to various appeals related to greenhouse gas emissions (GHGs). Several petitions for hearing were consolidated and the court agreed to hear the cases under a single question, “Whether EPA permissibly determined that its regulation of GHG emissions from new motor vehicles triggered permitting requirements under the Clean Air Act for stationary sources that emit GHGs.”
The Court’s ruling could profoundly impact EPA’s permitting of GHGs. OMA environment counsel Frank Merrill put together this memo for OMA members on the issue.
The OMA Environment Committee gathered this week to discuss the major environmental issues effecting Ohio manufacturers. OMA members Randy Puckett from Campbell’s Soup and Bryson Cole from Anheuser-Busch, gave presentations to the group on what their respective companies are doing in regards to sustainability.
The members also heard from the Department of Natural Resources including an update on the oil and gas drilling in eastern Ohio and what the Department is doing to ensure no adverse impacts to Ohio’s environment.
This summer, the Federal 3rd Circuit Court of Appeals held that the Clean Air Act does not preempt state nuisance claims.
In the case, Bell v. Cheswick Generating Station, originating out of Pennsylvania, the court ruled that although a power plant was operating under the proper permits, those permits do not preclude citizens from suing if their properties are affected. The court stated that the Clean Air Act is simply the floor for operations and that it does not preclude a company from going above and beyond what the Act requires. Thus, such companies are not protected from nuisance lawsuits.
While Ohio is not in the 3rd Circuit and the holding is not binding on the 6th Circuit in Ohio, it could still be influential and cited as persuasive authority in future cases in the district. This case could theoretically open up Ohio companies to common law and statutory tort claims previously thought protected under their permits via the Clean Air Act.
Concerned members will want to attend the October 24th OMA environment committee to learn more on the topic from OMA environment counsel, Frank Merrill of Bricker & Eckler. Here’s a summary Frank drafted. Register at MyOMA.