Workshop AA New & Emerging Water Management Issues Ohio Water - - PDF document

Workshop AA

New & Emerging Water Management Issues … Ohio Water Quality, Permitting, Regulatory Initiatives, Compliance & Enforcement Developments

Wednesday, March 27, 2019 8:00 a.m. to 9:15 p.m.

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.

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.

Ohio Water Update:

Permitting, Regulatory Initiatives, and Compliance & Enforcement...

March 27, 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

Introduction

• S

ession overview...

• CWA cooperative federalism update
• “ Enforcement vacuum” redux...
• Toledo’ s new Lake Erie “ Bill of Rights”
• PFAS
• verview, case study, and warnings...

HAAK LAW LLC

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

Cooperative Federalism Update

HAAK LAW LLC

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

Cooperative Federalism Update

• Continued US

EPA “ randomness”

• S

tates and tribes encouraged to take over wetlands permitting under CWA S ection 404

• Army Corps of Engineers directed to take a more

active role in ensuring speedy 401 WQCs by states

• Decrease in federal level enforcement by US

EPA

• What’ s happening with enforcement at the state level?

HAAK LAW LLC

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

The Far Side of an Enforcement Vacuum

HAAK LAW LLC

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

Reduced USEPA Activity Won’t Leave a Vacuum

“ Active” US EPA (Left ) v. “ Passive” US EPA (Right )

HAAK LAW LLC

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

USEPA States Citizens (NGOs)

# of Enforcement Cases (By S

• urce)

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
• Ohio EPA declares West Basin “ impaired” in 2018

HAAK LAW LLC

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

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)

• Challenged in court by farming interests the next day

HAAK LAW LLC

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

Per- and Polyfluoroalkyl Substances (“PFAS”)

• What does ” PFAS” include?
• PFOA
• PFOS
• GenX
• How are/ were PFAS

substances used?

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

substances are bioaccumulative

• PFAS

substances may cause or contribute to various health problems

HAAK LAW LLC

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

PFAS Regulatory Status and the Future

• Planned and/ or possible regulation by US

EPA

• S

afe Drinking Water Act MCLs

• CERCLA listing of PFOA/ PFOS

as “ hazardous substances”

• CERCLA/ RCRA clean-up level recommendations
• Toxicity assessments
• Development of wastewater sampling matrices
• Additional TS

CA regulation

• Much regulatory activity influenced by Flint lead debacle
• The PFAS

net is going to be “ cast wide”

• An inordinate number of ” small fish” will be ensnared

HAAK LAW LLC

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

PFAS Case Study

• Medium-sized facility in the Midwest
• Never manufactured PFAS
• containing products
• Only onsite usage of PFAS

was in fire-fighting foam

• No PFAS
• containing foam onsite in more than 10 years
• PFAS
• containing foam never discharged
• Foam from exercises collected and disposed of offsite
• S

tate requests site to sample stormwater for PFAS

• PFAS

found in samples at the nanogram/ L level (ppt)

• Source identification plan underway...

HAAK LAW LLC

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

Groundwater, Hydrological Connections, and the Clean Water Act

Mike Gray

Mike Gray

13

 Former Air Force civil engineer and Iraq veteran  Graduate of Michigan State University, the Air Force Institute of Technology, and Notre Dame Law School  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

What is a hydrological connection and why should you care?

14

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?

Important Definitions

15

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

Groundwater Traditionally Excluded From CWA

16

 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)

Hawai’i Wildlife Fund v. County of Maui

17

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

Upstate Forever v. Kinder Morgan Energy Partners

18

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)

Coal Ash Pond Cases

19

 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”

EPA Request for Comment

20

 On 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.” 83 Fed. Reg. 7126, 7126.  In January 2019, the Solicitor General stated in regards to the Maui and Kinder Morgan cases, “The EPA has informed this Office that it expects to take further action, reflecting the results of its review, within the next several weeks.”

Conclusion & Questions

21

M/V Nashville being loaded with product at the Wood River Pipeline

• Dock. Wood River, Illinois

Tiffani Kavalec, Chief Division of Surface Water

New Ohio EPA Director

Laurie A. Stevenson

Pipelines exempt from NPDES Construction Storm Water

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 46 NOI coverages issued 13 NOIs submitted, awaiting for 401 approval

– HDD contingency plans reviewed

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

Waters of the United States Rulemaking Infographic

Provided by USEPA at: https://www.epa.gov/wotus-rule/step-two- revise

Waters of the US Rulemaking: Implications

• 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, regardless of the depth

• f strata in which underground water is located, that are

situation wholly or partly within, or border upon, this state, or are within its jurisdiction, except those private waters that do not combine or effect a junction with natural surface or underground waters.

Waters of the US Rulemaking: Implications

• 6111.04(A)(1) No person shall cause pollution or

place or cause to be placed any sewage, sludge, sludge materials, industrial waste, or other wastes in a location where they cause pollution

• f any waters of the state.
• 6111.01(D) “Other wastes” means garbage,

refuse, decayed wood, sawdust, shavings, bark, and other wood debris, lime, sand, ashes, offal, night soil, oil, tar, coal dust, dredged or fill material, or silt…

Waters of the US Rulemaking: Implications 401

• Discharge of fill into isolated wetlands are

permitted through authority in ORC 6111.020‐ 6111.028.

• Discharge of fill into federally jurisdictional

wetlands and streams are permitted through Section 401 WQC with authority in ORC 6111.30, 6111.31, and OAC 3745‐32.

Waters of the US Rulemaking: Implications 401

• No similar Ohio laws or rules allow discharge
• f fill to non‐federally jurisdictional

(ephemeral) streams.

• Discharge of fill would be prohibited until a

permitting program was established in rule or law.

Waters of the US Rulemaking: Implications 402

• Permitting Uncertainty

– Facilities discharging to state only waters – Lack of state based permitting program for streams

• Legal Implications

– Legal challenges likely (What is a natural tributary? Farm ditches? Permitting authority? WQS applicability?)

PFAS

• Ohio EPA has an internal, multi‐divisional

workgroup to develop a draft Ohio EPA Response Strategy for PFAS……

US EPA PFAS Action Plan

• Announced on February 14, 2019
• Drinking water: EPA is moving forward with the

maximum contaminant level (MCL) process outlined in the Safe Drinking Water Act for PFOA and PFOS— two of the most well‐known and prevalent PFAS chemicals

• By the end of this year, EPA will propose a regulatory

determination, which is the next step in the Safe Drinking Water Act process for establishing an MCL

US EPA PFAS Action Plan

• Clean up: EPA has already begun the regulatory

development process for listing PFOA and PFOS as hazardous substances and will issue interim groundwater cleanup recommendations for sites contaminated with PFOA and PFOS. This important work will provide additional tools to help states and communities address existing contamination and enhance the ability to hold responsible parties accountable.

US EPA PFAS Action Plan

• Enforcement: EPA will use available enforcement

tools to address PFAS exposure in the environment and assist states in enforcement activities.

• Monitoring: EPA will propose to include PFAS in

nationwide drinking water monitoring under the next Unregulated Contaminant Monitoring Program. The agency will also consider PFAS chemicals for listing in the Toxics Release Inventory to help the agency identify where these chemicals are being released.

US EPA PFAS Action Plan

• Research: EPA will develop new analytical methods

so that more PFAS chemicals can be detected in drinking water, in soil, and in groundwater. These efforts will improve our ability to monitor and assess potential risks. EPA’s research efforts also include developing new technologies and treatment options to remove PFAS from drinking water at contaminated sites.

US EPA – Cooperative Federalism

• Region V has stopped requesting review of all coal

related minor NPDES permits

• Reduced the annual review list of major NPDES

permits

• National Enforcement Initiative (NEI) inspections –

consult state status first

• Region V just realigned all compliance &

enforcement resources into one office

US EPA – 404

• Improved resource protection
• Increased program efficiency
• Effective allocation of federal and state agency

resources

• Improved integration with other state resource

programs

• State assumption does not come with federal

funding!

Questions?

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