Water General Session Majo Major W r Water Qu r Quality De - - PDF document

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Water General Session Majo Major W r Water Qu r Quality De ality Developments lopments Impacting Business & Industr Impacting Business & Industry in Ohio in Ohio Michael J. Gray, Environmental Counsel , Marathon Petroleum Company L


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SLIDE 1

Water General Session

Majo Major W r Water Qu r Quality De ality Developments lopments Impacting Business & Industr Impacting Business & Industry in Ohio in Ohio

Michael J. Gray, Environmental Counsel, Marathon Petroleum Company L Marathon Petroleum Company LP, , Findlay; Tiffani Kavalec, Chief, Ohio EPA, Division of Surface Water Ohio EPA, Division of Surface Water, Columbus and William H. Haak, Founder & Partner, Haak Law LLC Haak Law LLC, Cleveland

Wednesda dnesday, July 2 July 24, 20 , 2019 19 10:1 :15 a.m. t 5 a.m. to 1 11:45 a.m. :45 a.m.

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SLIDE 2

Biographical Information

William H. Haak, Founder, Haak Law LLC Cleveland, Ohio 216.772.3532 whh@haaklawllc.com William H. Haak is the Founder of Haak Law LLC (www.haaklawllc.com) – an environmental, health & safety legal and consulting firm based in Cleveland, Ohio. He has nearly 20 years of experience in occupational safety law and worker safety, and 25 years of experience in environmental law (including extensive experience in air pollution control law and multi-media environmental compliance). Mr. Haak practices nationally in the United States and consults globally on all matters related to the EHS field (plus security and crisis management).

  • Mr. Haak graduated from The University of Akron (Business Finance) and Case

Western Reserve University School of Law (J.D. with an emphasis on litigation and trial practice). Following law school, he worked as an Assistant Attorney General in the State of Ohio Attorney General’s Environmental Enforcement Section. As counsel to Ohio EPA, Mr. Haak’s practice was focused primarily on civil and administrative air pollution control cases. During his time with the Attorney General’s Office, Mr. Haak resolved civil environmental enforcement actions resulting in civil penalties totaling approximately $4 million. Prior to forming Haak Law LLC, Mr. Haak was Senior EH&S Counsel for General

  • Electric. He supported GE’s Appliances and Lighting Businesses, and was

engaged in complex air permitting issues for other GE businesses nationwide. Mr. Haak has also been Associate General Counsel – EH&S for Hexion Specialty Chemicals in Columbus, Ohio, and Senior Regulatory Law Counsel for Owens Corning in Toledo, Ohio. He served overseas in the former Soviet Union (Ukraine) as an Environmental Enforcement Specialist with the American Bar Association’s Central & East European Law Initiative ("ABA/CEELI"). Haak is a frequent lecturer to attorneys, engineers, and environmental professionals on topics concerning federal and state air pollution law. In addition, he has taught as an adjunct faculty member at the University of Central Florida in Orlando and Columbus State in Columbus, Ohio. From 2005 through 2018, Haak taught classes focusing on Air Pollution Law and Occupational Safety and Health Law at The University of Toledo College of Law as an Adjunct Professor.

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SLIDE 3

Biographical Information

Michael J. Gray, Attorney, Marathon Petroleum Company LP 539 South Main Street, Findlay, OH 45840 419-421-4505 migray@marathonpetroleum.com

  • Mr. Gray is an environmental attorney for Marathon Petroleum Company LP. Mr.

Gray serves as the environmental attorney for MPLX Terminals, Transport & Rail (“TT&R”) and Brand retail stations, which includes above ground storage tank and underground storage tank compliance. He is as the attorney for truck and rail DOT compliance and the legal officer for TT&R, Tier II, emergency responses. Prior to joining Marathon, Mr. Gray was an environmental attorney at Dinsmore & Shohl LLP in Cincinnati, Ohio. Mr. Gray is a veteran of the United States Air Force where he served as a civil engineer in locations such as Alaska and Iraq. He earned a Master of Science degree in engineering from the Air Force Institute of Technology and a juris doctor degree from Notre Dame Law School. Tiffani Kavalec, Chief, Division of Surface Water Ohio EPA, PO Box 1049, Columbus, OH 43216-1049 614-644-3538 Fax: 614-644-2745 tiffani.kavalec@epa.ohio.gov Tiffani Kavalec assumed the position of Ohio EPA’s Division of Surface Water (DSW) Chief in August, 2015. She has been with Ohio EPA since 1995 where she started as an Environmental Specialist in the Division of Environmental Response & Revitalization’s (DERR) enforcement program negotiating state and federal superfund actions. In early 2002, Tiffani became the manager of the Site Assessment and Brownfield Revitalization (SABR) Program which included working with the Ohio Department of Development to set environmental policy and

  • utreach to local governments for Clean Ohio Funding of brownfield cleanups in
  • Ohio. In 2009, she became the manager of DERR’s Assessment, Cleanup and

Reuse (ACRE) section, where her duties included oversight of Ohio’s Voluntary Action, Federal Facilities, Remedial Response, Site Assessment, and Natural Resource Damages’ Programs. In February of 2014, Tiffani was asked to become the Assistant Chief of DERR. However, a mere five months later in August 2014, it was determined that Ohio EPA could use her skills as an Assistant Chief in DSW to directly oversee NPDES, PTI, Storm Water, 401, Isolated Wetlands, Enforcement & Compliance, and 319 grants. Tiffani received a bachelor’s degree in environmental science from Indiana University and completed more than three years of post-graduate work through the University of Findlay’s Environmental Management Program.

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SLIDE 4

Major Water Quality Developments

Impacting Businesses and Industry in Ohio

July 24, 2019

William H. Haak

Haak Law LLC

HAAK LAW LLC

Environmental, Health & Safety Legal and Consulting Services William H. Haak Tel: 216.772.3532 whh@haaklawllc.com

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SLIDE 5

Introduction

  • S

ession overview...

  • US

EPA and federal enforcement

  • The Lake Erie “ Bill of Rights”
  • The “ Nature Rights” movement
  • The latest on PFAS
  • “ Back t o t he Fut ure” on regulation of water pollution?

HAAK LAW LLC

Environmental, Health & Safety Legal and Consulting Services William H. Haak Tel: 216.772.3532 whh@haaklawllc.com

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SLIDE 6

USEPA and Federal Enforcement

HAAK LAW LLC

Environmental, Health & Safety Legal and Consulting Services William H. Haak Tel: 216.772.3532 whh@haaklawllc.com

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SLIDE 7

The Actual USEPA Guidance Memo...

HAAK LAW LLC

Environmental, Health & Safety Legal and Consulting Services William H. Haak Tel: 216.772.3532 whh@haaklawllc.com

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SLIDE 8

The Lake Erie “Bill of Rights”

HAAK LAW LLC

Environmental, Health & Safety Legal and Consulting Services William H. Haak Tel: 216.772.3532 whh@haaklawllc.com

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SLIDE 9

Lake Erie and Algal Blooms

  • S

tate of Ohio has invested $3B overall since 2011

  • Monitoring and improving water quality
  • Eliminating the disposal of dredged material (2020)
  • Improving farming practices (manure and fertilizer)
  • Focus on nutrient runoff – especially phosphorus
  • Question of impairment dates back at least to 2012
  • The City of Toledo’ s August 2014 drinking water crisis
  • Approximately 400,000 people impacted
  • Residents forced to drink bottled water for 3 days
  • US

EPA sued in 2017 over OEPA’ s 2016 classification

HAAK LAW LLC

Environmental, Health & Safety Legal and Consulting Services William H. Haak Tel: 216.772.3532 whh@haaklawllc.com

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SLIDE 10

Toledo’s Lake Erie “Bill of Rights”

  • Direct response to 2014 Toledo water crisis
  • Amends City of Toledo Charter to give various rights

to Lake Erie (as if it were a “ citizen” )

  • Mirrors “ rights to nature” laws in other countries
  • Gives citizens of Toledo legal standing to sue polluters
  • n behalf of Lake Erie
  • Passed in special election on February 25, 2019 by a

margin of 61% to 39% (with only 9% turnout)

HAAK LAW LLC

Environmental, Health & Safety Legal and Consulting Services William H. Haak Tel: 216.772.3532 whh@haaklawllc.com

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SLIDE 11

Lake Erie “Bill of Rights” – Current Status

  • Challenged in federal court on day after election
  • Case brought against City of Toledo by a family

farming partnership based in Wood County

  • Alleges violation of due process; and,
  • Alleges City of Toledo is overstepping into areas of law

that are reserved to the state and federal governments

  • Preliminary inj unction granted
  • S

tate of Ohio intervened to invalidate

  • Ohio General Assembly also seeking to invalidate
  • Governor DeWine sought ~$1B in latest budget

HAAK LAW LLC

Environmental, Health & Safety Legal and Consulting Services William H. Haak Tel: 216.772.3532 whh@haaklawllc.com

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SLIDE 12

Lake Erie “Bill of Rights” – Aftermath...

  • “ Rights of Nature” movements gaining steam
  • Mirrors the animal rights movement(s)
  • A direct response to perceived government inactivity
  • Last month a citizens’ group in Williams County

launched a ballot initiative to stop diversion of water to three Toledo suburbs

  • S

eeks to protect Michindoh Aquifer

  • Aims to endow the aquifer with “ rights”
  • Bolivia, Colombia, Ecuador, India, and New

Zealand have all conferred “ rights” on nature

HAAK LAW LLC

Environmental, Health & Safety Legal and Consulting Services William H. Haak Tel: 216.772.3532 whh@haaklawllc.com

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SLIDE 13

Per- and Polyfluoroalkyl Substances (“PFAS”)

  • What does ” PFAS

” include?

  • PFOA and PFOS
  • GenX
  • How are/ were PFAS

substances used?

  • Food packaging
  • Non-stick products, Teflon, waxes, fabric treatments
  • Fire-fighting foam
  • PFAS

substances are bioaccumulative and cause or contribute to various health problems:

  • Impacts reproductive health
  • Impacts the immune system
  • May promote various cancers

HAAK LAW LLC

Environmental, Health & Safety Legal and Consulting Services William H. Haak Tel: 216.772.3532 whh@haaklawllc.com

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SLIDE 14

PFAS Regulatory Status and Future

  • Much activity is being undertaken to avoid PFAS

becoming another Flint lead debacle

  • Many states are investigating PFAS

in drinking water, groundwater, surface water, soil, and wastewater

  • US

EPA currently “ recommends” PFAS at no more than 70 parts per trillion in drinking water

  • Bipartisan push in S

enate to force US EPA to do more

  • Individual states have set their own standards
  • US

EPA planning a drinking water MCL

  • The PFAS

net is being cast wide...BEWARE!

HAAK LAW LLC

Environmental, Health & Safety Legal and Consulting Services William H. Haak Tel: 216.772.3532 whh@haaklawllc.com

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SLIDE 15

“Back to the Future” on Water Regulation?

HAAK LAW LLC

Environmental, Health & Safety Legal and Consulting Services William H. Haak Tel: 216.772.3532 whh@haaklawllc.com

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SLIDE 16

How Does it All Tie Together?

  • The Lake Erie ” Bill of Rights” and the “ Rights of

Nature” movement generally are both symptoms

  • [Many], [S
  • me], [A few] citizens feel that government

no longer has the lead in protecting their interests

  • The perception that US

EPA is dragging its feet on PFAS has led states to step forward

  • With US

EPA perceived to be moving backwards on Waters of the United S tates, for example, we may see more state and local protections put in place

  • A return to the pre-Clean Water Act patchwork?

HAAK LAW LLC

Environmental, Health & Safety Legal and Consulting Services William H. Haak Tel: 216.772.3532 whh@haaklawllc.com

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SLIDE 17

WOTUS Definition Rule and Hydrological Connections

Mike Gray

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SLIDE 18

Mike Gray

13

 Environmental attorney at Marathon Petroleum Company LP

– Environmental attorney for MPLX Terminals, Transport & Rail (TT&R) and Brand retail stations, which includes above ground storage tank and underground storage tank compliance – Attorney for truck and rail DOT compliance – Legal officer for TT&R Tier II emergency responses

Light product terminal in Nashville, Tennessee

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SLIDE 19

Waters of the United States Definition

14

 1972 – 2015 – Clean Water Act states that navigable waters include “the waters of the United States, including the territorial seas.” Agencies promulgate various rules and interpretive guidance to define the scope of WOTUS.  2006 – Rapanos, 4-1-4 Supreme Court Decision

– Scalia plurality decision – Uses Webster’s Dictionary definition of “the waters” to limit WOTUS to “includes

  • nly those relatively permanent, standing or

continuously flowing bodies of water "forming geographic features" that are described in ordinary parlance as "streams[,] . . . oceans, rivers, [and] lakes." – Kennedy concurrence – significant nexus to waters that are navigable – Breyer dissent – calls for COE “to write new regulations, and speedily so.”

 2015 – Obama administration promulgates new WOTUS definition citing objections to Rapanos  2017 – Trump administration proposes repeal and replacement of 2015 WOTUS definition

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SLIDE 20

Implementation/Repeal of 2015 WOTUS Definition

15

 Two step process

– Step 1 – Repeal of 2015 WOTUS definition – Step 2 – Implementation of new WOTUS definition

 February 2018: EPA and COE finalized rule attempting to delay 2015 WOTUS definition  August 2015: North Dakota District Court enjoins implementation of 2015 WOTUS definition in 13 states  July 2017: Proposed Repeal Rule published in Federal Register  June 2018: Southern District of Georgia enjoins implementation of 2015 WOTUS definition in 11 states (including Indiana, Kentucky, and West Virginia)  August 2018: South Carolina District Court makes 2015 definition effective in 23 states, the District of Columbia, and the U.S. territories  State-Level Implementation Summary

– Indiana – Pre-2015 definition – Kentucky – Pre-2015 definition – Michigan – 2015 definition – Ohio – 2015 definition – Pennsylvania – 2015 definition

 Status of Repeal Rule: agencies reviewing comments on proposed Repeal Rule

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SLIDE 21

Implementation of New WOTUS Definition

16

 Two step process

– Step 1 – Repeal of 2015 WOTUS definition – Step 2 – Implementation of new WOTUS definition

 Proposed WOTUS definition rule signed on December 11, 2018 and published in the Federal Register on February 14, 2019  60-day public comment period closed

  • n April 15, 2019

 Agencies reviewing comments on proposed WOTUS definition rule

Photo by Mike Gray

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SLIDE 22

The Easy Categories

Pre-2015

 Traditional Navigable Waters: Jurisdictional  Interstate Waters: Jurisdictional  Territorial Seas: Jurisdictional  Impoundments of Jurisdictional Waters: Jurisdictional

17

2015 Proposed

 Traditional Navigable Waters: Jurisdictional  Interstate Waters: Jurisdictional  Territorial Seas: Jurisdictional  Impoundments of Jurisdictional Waters: Jurisdictional  Traditional Navigable Waters: Jurisdictional  Interstate Waters: Removed as separate category  Territorial Seas: Removed as separate category, but is a Traditional Navigable Water  Impoundments of Jurisdictional Waters: Jurisdictional

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SLIDE 23

Tributaries, Lakes, Ponds, and Ditches

Pre-2015

 Tributaries: Jurisdictional  Lakes and Ponds: SWANCC Supreme Court case – isolated

  • nly WOTUS with

“significant nexus”  Ditches: Later rules excluded nontidal drainage and irrigation ditches and ditches draining upland that do not carry a relatively permanent flow of water

18

2015 Proposed

 Tributaries: Jurisdictional with no limit on flow  Lakes and Ponds: Jurisdictional if 100 feet from jurisdictional waterway, in 100 year floodplain and 1,500 feet of ordinary high water mark  Ditches: Jurisdictional with exemptions for intermittent and ephemeral flow  Tributaries: Excludes ephemeral flow  Lakes and Ponds: Jurisdictional if it is a Traditional Navigable Water, contributes flow to Traditional Navigable Water, flooded by WOTUS  Ditches: Jurisdictional

  • nly if are a

Traditional Navigable Water, constructed in a tributary, or constructed in adjacent wetland

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SLIDE 24

Wetlands

Pre-2015

 Adjacent wetlands Jurisdictional

19

2015 Proposed

 Adjacent wetlands jurisdictional  “Adjacent” includes all waters in 100-year floodplain not more than 1,500 feet from the ordinary high water mark of the water  Adjacent wetlands jurisdictional  “Adjacent” requires direct hydrological surface connection, intermitted or perennial flow includes, but ephemeral is not included

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SLIDE 25

Explicitly Excluded Waters

Pre-2015

 Prior converted crop land  Waste treatment systems

20

2015 Proposed

 Prior converted crop land  Waste treatment systems  Certain ditches (see prior slide)  Artificially irrigated areas that would revert to dry land should application of water to that area cease;  Artificial reflecting pools or swimming pools created in dry land;  Small ornamental waters created in dry land;  Water-filled depressions created in dry land incidental to mining or construction activity  Erosional features, including gullies, rills, and other ephemeral features that do not meet the definition of tributary, non-wetland swales, and lawfully constructed grassed waterways  Puddles  Groundwater  Stormwater control features constructed to convey, treat, or store stormwater  Wastewater recycling structures constructed in dry land  Prior converted crop land  Waste treatment systems  flow only in response to precipitation  groundwater  certain ditches (see prior slide)  artificially irrigated areas that would revert to upland if artificial irrigation ceases  certain artificial lakes and ponds constructed in upland  water-filled depressions created in upland incidental to mining or construction activity  stormwater control features excavated

  • r constructed in upland to convey,

treat, infiltrate, or store stormwater run-

  • ff

 wastewater recycling structures constructed in upland  Anything not included in WOTUS

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SLIDE 26

Waters of the State & No Stricter than Federal Laws

21

 Many States define “waters of the State”

–ORC 6111.01(H) “Waters of the State” means all streams, lakes, ponds, marches, watercourses, waterways, wells, springs, irrigation systems, drainage systems, and other bodies or accumulations of water, surface and underground, natural or artificial . . .

“No stricter than federal laws”

–Some states have laws that prevent the application or promulgation of environmental laws that are more strict than the federal requirement

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SLIDE 27

What is a hydrological connection and why should you care?

22

On February 19, 2019, the Supreme Court decided to hear the question: “Whether the CWA requires a permit when pollutants

  • riginate from a point source but are conveyed to navigable

waters by a nonpoint source, such as groundwater.” Key Questions if the answer is “Yes”

–Do plumes that migrate to a navigable water require NPDES permits? –How do you set pollutant limits for impacted groundwater that reaches navigable water? –Would this expansion of the CWA undermine cooperative federalism by preempting state remediation and non-point source programs? –Would the CWA undermine other federal regulatory programs such as RCRA, which exclude pollution regulated under CWA?

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SLIDE 28

Important Definitions

23

Point sources

– CWA outlaws the “discharge of a pollutant” into “navigable waters” without an NPDES Permit issued by the federal government or a state delegated program – “Discharge of a pollutant” means any addition of any pollutant to navigable waters from any “point source” – “Point source” means any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding

  • peration, or vessel or other floating craft, from which pollutants are or

may be discharged. – “Navigable waters” – See proposed Waters of the United States rule making

Non-point sources

– Everything that is not from a point source. States are required to develop nonpoint source pollution management programs to receive CWA Section 319 funds

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SLIDE 29

Groundwater Traditionally Excluded From CWA

24

 Comments of Senate on declining to add groundwater to scope of CWA

– “Several bills pending before the Committee provided authority to establish Federally approved standards for groundwaters which permeate rock, soil, and other subsurface

  • formations. Because the jurisdiction regarding groundwaters is so complex and varied

from State to State, the Committee did not adopt this recommendation.” S. Rep. No. 414, 92d Cong., 1st Sess. 73 (1972).

 “Neither the Clean Water Act nor the EPA's definition [of Waters of the United States] asserts authority over ground waters, just because these may be hydrologically connected with surface waters.” Vill. of Oconomowoc Lake v. Dayton Hudson Corp., 24 F.3d 962, 965 (7th Cir. 1994)  “The CWA does not cover any type of ground water; the CWA covers only surface water. Nothing in the terms of the CWA or the regulation at issue here interpreting the CWA could be construed as extending jurisdiction to a body of ground water. Federal regulation of ground water is covered in other statutes.” United States v. Johnson, 437 F.3d 157, 161 n.4 (1st Cir. 2006)

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SLIDE 30

Hawaii Wildlife Fund v. County of Maui

25

886 F.3d 737 (9th Cir. 2018)

 County of Maui operated 4 injection wells used to dispose of treated effluent water  Dye test confirmed that the effluent water entered the ocean  CWA citizen suit filed, Environmental group wins at district court and 9th Cir.  In Rapanos v. United States, Justice Scalia wrote that CWA does not forbid the “‘addition of any pollutant directly to navigable waters from any point source,’ but rather the ‘addition of any pollutant to navigable waters.’” 547 U.S. 715, 743 (2006)  Holding: “We hold the County liable under the CWA because

– (1) the County discharged pollutants from a point source, – (2) the pollutants are fairly traceable from the point source to a navigable water such that the discharge is the functional equivalent of a discharge into the navigable water, and – (3) the pollutant levels reaching navigable water are more than de minimis.”

 Supreme Court will hear this appeal

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SLIDE 31

Upstate Forever v. Kinder Morgan Energy Partners

26

887 F.3d 637 (4th Cir. 2018)

 In 2014, a pipeline rupture causes 369,000 gal. gasoline spill near Belton, SC  Pipeline repaired, but small amounts of gasoline seep into nearby waterways  Kinder Morgan implements remediation program required by SC DEHC  Citizen suit filed under CWA, district court dismisses suit, 4th Cir. reverses  Did the violation cease once the pipe was repaired?  Relying on Maui, the 4th Cir. Held:

– “[A]n alleged discharge of pollutants, reaching navigable waters located 1000 feet or less from the point source by means of ground water with a direct hydrological connection to such navigable waters, falls within the scope of the CWA.”

 The Supreme Court has not accepted this case (but has not declined it either)

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SLIDE 32

Coal Ash Pond Cases

27

 Sierra Club v. Va. Elec. & Power Co., 903 F.3d 403 (4th Cir. 2018)

– Held that the landfill and settling ponds at issue in the case did not constitute “point sources” as defined in the CWA

 Kentucky Waterways Alliance v. Kentucky Utilities Co., 905 F.3d 925 (6th Cir. 2018)

– Criticized both Maui and Kinder Morgan decisions and CWA does not impose liability on surface water pollution that comes by way of groundwater. – Notes that regulating groundwater would conflict with RCRA, which excludes pollution regulated under CWA

 Tennessee Clean Water Network v. Tennessee Valley Authority, 905 F.3d 436 (6th Cir. 2018)

– “[W]hen the pollutants are discharged to the river, they are not coming from a point source; they are coming from groundwater which is a nonpoint-source”

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SLIDE 33

EPA Request for Comment

28

 February 20, 2018: EPA requested comment on “whether pollutant discharges from point sources that reach jurisdictional surface waters via groundwater or other subsurface flow that has a direct hydrologic connection to the jurisdictional surface water may be subject to CWA regulation.”  April 23, 2019: EPA published its “Interpretive Statement on Application

  • f the Clean Water Act National Pollutant Discharge Elimination System

Program to Releases of Pollutants From a Point Source to Groundwater”

– “the best, if not the only, reading of the statute is that all releases to groundwater are excluded from the scope of the NPDES program, even where pollutants are conveyed to jurisdictional surface waters via groundwater.” – Interpretive statement does not apply in Fourth and Ninth Circuits (Fourth Circuit includes West Virginia)

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SLIDE 34

Tiffani Kavalec, Chief Division of Surface Water

29th Annual Environmental Permitting Conference

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SLIDE 35

Budget / Personnel

  • 20/21 Budget = 194 FTEs
  • 18/19 Budget = 197 FTEs
  • 16/18 Budget = 200+ FTEs
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SLIDE 36

Personnel

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SLIDE 37

Lake Erie 303(d) Impairments

References: http://www.epa.ohio.gov/Portals/35/tmdl/2018intreport/SectionF.pdf https://www.youtube.com/watch?v=nlKoBZSQwYU

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SLIDE 38
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SLIDE 39

H2Ohio

  • $8.765 million – Ohio EPA

‐Disadvantaged community infrastructure ‐Failing home sewage treatment systems ‐Lead line replacement ‐Monitoring/data collection ‐Innovative technology research

  • $46 million – ODNR
  • $33.3 million ‐ ODA
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SLIDE 40

Pipelines exempt from NPDES Construction Storm Water

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SLIDE 41
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SLIDE 42

Oil & Gas Pipeline General Permit ‐ 6111

  • Effective Date: September 17, 2018
  • Required projects that started prior to the effective date to
  • btain coverage (and develop a SWP3) if project would have 5 or

more acres disturbed beyond December 17, 2018 90+ NOI coverages issued NOIs awaiting for 401 approval

– HDD contingency plans reviewed

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SLIDE 43

Oil & Gas Pipeline General Permit

  • APPEALED

– appellants filed their motion for summary judgment February 15, 2019 – our response will be due March 8, 2019

  • Prohibits oil & gas from utilizing NPDES permit exemption

provided under federal law

  • Exceeds Director’s statutory authority to issue under ORC

6111

  • Encroaches upon ODNR’s sole & exclusive authority to

regulate oil & gas production operations

  • Potential Settlement
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SLIDE 44

DSW ‐ Rules

Triennial Review

Rules in Development:

  • 3745‐1‐32, ‐33, ‐34: Human Health Criteria

– Adopting US EPA’s updated human health water quality criteria ‐ 94 chemicals – Adopting ORSANCO’s criteria if more stringent for Ohio River numbers – IPR ended 05/02/19

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SLIDE 45

The Water Quality Spider Web

Rules Pretreatment/IDPs SWAP HSTS Integrated Report Stormwater CSO/SSO 319/NPS Use Designations NPDES Antidegradation Fish Tissue AOC/BUIs Biological and Water Quality Surveys TSDs 401

WQS

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SLIDE 46

DSW ‐ Rules

Triennial Review

Rules in Development:

  • 3745‐1‐07: Use Designation Rule

– Definitions of terms and use designations – New definition for “Coldwater Habitat”

Native Fauna

  • thermal plus biological demonstration
  • standalone biological demonstration

Native Trout

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SLIDE 47
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SLIDE 48

Length of Stream Network and Designated Miles

  • Exceptional

Warmwater Habitat

  • Coldwater

Habitat

  • Warmwater

Habitat

  • Modified

Warmwater Habitat

  • Limited

Resources Water

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SLIDE 49

Triennial Review Rules in Development:

  • Antidegradation

IPR

DSW ‐ Rules

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SLIDE 50

Antidegradation

  • Categories

– Limited Quality Waters

  • MWH, LRW

– High Quality Waters

  • General High Quality

– Most waters

  • Superior High Quality

– “Tier 2½”

  • Outstanding State Water

– “Tier 2 ¾”

  • Outstanding National

Resource Water

– “Tier III” – None listed yet in Ohio

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SLIDE 51

DSW ‐ Rules

Interested Party Review:

  • 3745‐6‐01 through 6‐09: Water Quality Certified

Professional

– Comment deadline was 2/25/19

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SLIDE 52

Water Quality Standards

A lot of ways to do this:

  • Legislation – statewide limit
  • Antidegradation – technology standard
  • TMDL – near‐field impairment (case by case)
  • River assimilation – Large River effort
  • Far‐field considerations

– Lake Erie – Gulf Hypoxia

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SLIDE 53
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SLIDE 54

Basin Surveys as Proposed

  • 37 project basins
  • 1‐4 basins/year
  • ~12 year rotation
  • 90‐120 sites/project
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SLIDE 55

Probability Surveys

  • ~350 sites
  • done over 2 years
  • attainment status EWH &

WWH

  • condition status
  • direct reporting to US

EPA

Wadeable Frame (3 - 500 mi2) Headwater Frame (1 - 3 mi2) Large River Frame (>500 mi2)

  • ~150 sites
  • 1 year
  • condition status
  • establish baseline
  • improve resolution of fish

IBI

  • predictive modeling
  • ~150 sites
  • 1 year
  • EWH & WWH

attainment

  • essentially a census
  • focal point of

important issues

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SLIDE 56
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SLIDE 57

Questions?

Tiffani Kavalec, Chief Division of Surface Water tiffani.kavalec@epa.ohio.gov