Ohio Water Environment Association · Title: Ohio Water Environment Association Author: jrpetersharr Created Date: 3/9/2015 2:58:09 PM

© Copyright 2015, Vorys, Sater, Seymour and Pease LLP. All Rights Reserved.

Ohio Water Environment

Association

Government Affairs Committee Workshop

March 5, 2015


Wastewater Litigation Update

Presented By:

Ted Boggs Vorys, Sater, Seymour and Pease LLP

614.464.8319 | [email protected]


Federal Case

Sierra Club v. ICG Hazard – 6th Cir. Ct Appeals

• CWA §402 “Permit Shield” Case – January 2015

• Important for Citizen Suits

• Does permit shield extend to General Storm Water Discharge NPDES Permit?

• Thunder Ridge KY Coal Mine

• Selenium in Storm Water – No Permit Limit


Sierra Club v. ICG Hazard Case

• 2-1 Decision – Held for the Coal Mine

• Followed Piney Run Preservation Decision

from 4th Circuit 2-Prong Test

• Permit Shield Appropriate When:

1. Express Terms of Permit are Complied With

2. Pollutant Within Reasonable Contemplation

by State at Time Permit was Issued


Sierra Club v. ICG Hazard Case (cont’d)

• Mine Reported Detecting Selenium in

Accordance With One-Time Monitoring

Requirement for GP Coverage

• KY Then Required Continual Monitoring in a

Permit Modification

• Court Held Selenium Discharges From Coal

Mines Were Within KY’s Reasonable

Contemplation at Time GP Issued


Sierra Club v. ICG Hazard Case (cont’d)

• KY has Since Modified Coal Mine WQSs

• Differences in GP and Individual Permit Applications Stand Out

• Holding Still Stands: Piney Run 2-Prong Permit Shield Test Applies to General and Individual NPDES Permits

• Alaska GP Case – Discharge of Coal Particles not Covered by GP; ACAT v. Aurora Energy (9th Cir. 2014) – Failed First Prong, so Shield not Allowed


Ohio Supreme Court

NEORSD v. Bath Township

• NEORSD Established a Regional Stormwater

Management Program (RSM)

• Adopted Stormwater Fee to Fund the RSM

• Interpretation of Ohio Rev. Code Chapter 6119

Covering Regional Water and Sewer Districts

• Sewer District Filed Lawsuit to Have Court Declare

its Authority to Implement and Fund the RSM

• Three-Week Bench Trial – Over 24 Witnesses


NEORSD RSM Case

Trial Court Held:

• District Authorized Under R.C. 6119 and its Petition and Operations Plan to Address Regional Stormwater Problems

• Fee is Authorized by Statute

• Fee is not Restricted by the Petition/Plan

• Fee is not an Illegal Tax

• RSM Program Does not Violate U.S. or Ohio Constitutions


NEORSD RSM Case (cont’d)

• Ten-Member Communities/Large Property

Owners Appealed the Trial Court Decision

• Court of Appeals in 2-1 Decision Reversed

Major Parts of the Trial Court Decision:

― RSM Exceeds Authority Under R.C. 6119, the

Petition and Operations Plan

― Fee is an Unauthorized Charge



• Dissent Filed – Very Well-reasoned

• Analyzes Plain Language of the Statute

• Concluded District has Authority Over Both: Stormwater and Sewage

• To Find Otherwise Creates Absurd Result Because if the Majority View was Followed, the District Would Only be Able to Manage Polluted Water if it was Mixed With Storm Water



• Case has Been at OSC Since November 2013

• Oral Argument was in September 2014

• Lots of Amicus Briefs Filed for Both Sides

• Turns on Definition of “wastewater”

― “any storm water and any water containing

sewage or industrial waste or other pollutants

or contaminants derived from the prior use of

the water”



• Majority in Court of Appeals Determined That in Order to Qualify as “wastewater” Storm Water Must be Mixed With Water Containing Sewage, etc.

• Does this Mean That No Dry Weather Flow is Allowed?

• Authority Just for Combined Sewage?

• Should the Definition be Read to be: (1) storm water or (2) any water containing sewage…?



• Storm Water Fees Controversial

• Based on Impervious Surface of Property

• Is That a Rational Method and not

Discriminatory Against Small Lot Owners?

• Should it be a Voted Tax?

• Does the Fee Restrict Member Community

Rights to Operate Storm Water Utilities

Within Their Boundaries?




Ohio Supreme Court

Fairfield County v. Nally TMDL Case

• NPDES Permit Appeal – Tussing Road POTW – Discharges to the Blacklick Creek in Pickerington, Fairfield County, Ohio (3.0 MDG Design Q)

• Part of Big Walnut Creek Watershed - 40 Other Waterbodies in Watershed

• OEPA Determined Portions of BWC Impaired - TMDL Developed to Address Causes of Impairment

• OEPA Concluded Excessive Nutrients (Phosphorus) was Primary Cause of Impairment



Fairfield County TMDL Case

• Maximum .11 mg/L Instream “Target Value” for the Entire Watershed

• Target Value: Technical Report: Association Between Nutrients, Habitat & Aquatic Biota in Ohio Rivers & Streams (1999)

• Reductions Allocated to PSs and NPSs

• PS Allocations Were First Calculated Using 1.0 mg/L Phosphorus Limit

• .5 mg/L Phosphorus Limit was Selected to Better Balance the PS-NPS Allocations and .5 was Considered a Technology-Based Standard


Fairfield County TMDL Case (cont’d)

• Renewal Permit Included .5 mg/L Limit

• Estimated $5M Additional Equipment Needed

• Expert Testimony at ERAC From Both Sides

• ERAC Upheld TMDL – Based Permit Limit – But, Remanded to OEPA to Perform R.C. §6111.03(J)(3) Feasibility & Economic Reasonableness Test Which was not Done

• Court of Appeals Upheld ERAC – Appeal to Ohio Supreme Court



• Must a TMDL be Adopted Under State Law Rule-Making Procedures Before Target Values can be Imposed as NPDES Permit Limits?

• May OEPA Insert a TMDL-Based Limit Into a Permit Without Establishing a Good Scientific Connection Between the Discharge and Cause of Impairment?

• Or, is TMDL Approval by U.S. EPA Sufficient Valid Basis for the NPDES Permit Limit?



• Can the Technical Basis of Target Values or Other Conclusions in an U.S. EPA Approved TMDL be Challenged at ERAC as Part of an Appeal of a Permit Limit?

• Is Opportunity to Comment on a TMDL and a Challenge in Federal Court Sufficient Due Process Protection?

• Director’s Discretion Extend This Far?




Munroe Falls Oil & Gas Case

• Municipal Ordinances Regulating O&G

• Criminal Sanctions

• Conflicted with State-wide Regulatory Scheme

• Home Rule Powers

• Cannot Discriminate Against, Unfairly Impede, or Obstruct O&G Activities Allowed by State

• Statute: Sole and Exclusive Authority to ODNR


Munroe Falls Oil & Gas Case (cont’d)

• Split 4-3 Decision

• Stinging Dissents – Critical of General

Assembly (“Zookeeper Created to Feed the

Elephant in the Room”)

• Probably Helps Wastewater Industry –

Sludge Management, Treatment Plant

Locations, etc. Subject to State-wide

Regulatory Program and Issued Permits


Ohio Court of Appeals

Oxford Mining Co. v. Nally

• January 22, 2015 – Franklin County Court of

Appeals

• Appeal from ERAC – CWA § 404/401 Dispute

• Wetlands Classification/Primary Headwaters

• Otsego I Proposed Coal Mine – 1100 acres

• Ohio Rapid Assessment Method (ORAM)

• Headwaters Habitat Evaluation Index (HHEI)


Oxford Mining Case

• Application for 404 Permit and 401 WQC

• Consultant Performed Field Work

• OEPA Conducted its Own Field Work to Verify

• Ultimately a 401 WQ Certification was Issued

• Mitigation Plan Submitted for 5.82 ac Impacts

• Restore Streams With Natural Reconstruction Techniques and create 10.8 ac Wetlands


Oxford Mining Case (cont’d)

• Impact to Some Streams Restricted – Required Demonstration That Streams Would Continue to Support May Flies

• Prohibited Impacts to Wetlands 71 and 72

• Required Construction to Cease Immediately if the Endangered Eastern Massasauga Rattlesnake or Native Muscles/Beds Encountered

• Authorized Only a Temporary Road Across Wetland 72


May Fly


Massasauga Rattlesnake



• At ERAC Trial ORAM Manual Testimony

• Dispute Over Technical Scoring of Category 2 and 3 Wetlands

• Dispute Over use of Primary Head Water Habitat (PHHH) WQS Existing use Designation Which has not Been Adopted in the WQSs

• Dispute Over use of HHEI to Support an Existing use not in the WQSs



Court of Appeals Holdings:

• OEPA did not Follow its Own ORAM Manual

• Proper for Appeals Court to Review Evidence for

Reliability – Includes an Inquiry Into Methods

Used and Whether Complete or not

• Cannot Defer to OEPA Interpretation When its

Plain Words or Explanations not Followed



• When OEPA Does not Follow its Own

Methodology, the Result Cannot be Sure to

Yield an Accurate Result

• ERAC Decision not Supported by Reliable,

Probative and Substantial Evidence

• Moot: Whether Public Need was Properly

Determined Under Anti-degradation



• Even Though the Rattlesnake Provision was not Listed in the Notice of Appeal Specifically, the Issue was Adequately Raised During the Proceedings to put the Director on Notice

• Impacts to Endangered Species are Considered Under the Anti-degradation and WQC Rules

• Director has Authority to Impose Reasonable Restrictions Related to WQ Impacts Upon Endangered Species in a WQC


QUESTIONS

Documents

Ohio Water Environment Association · Title: Ohio Water Environment Association Author: jrpetersharr Created Date: 3/9/2015 2:58:09 PM