Ohio EPA's DMWM Proposes Beneficial Use Rules to JCARR

Earlier today I had published information regarding Ohio's Dredged Material Program. This afternoon I received the following information from the Ohio EPA's Division of Materials and Waste Management ("DMWM") regarding it's proposed rules on the beneficial use of dredged material.

The DMWM has proposed the beneficial use rules in O.A.C. Chapter 3745-599 to the Joint Committee on Agency Rule Review.  Click here to access the proposed rules and here to view the public notice.

The DMWM plans to host a webinar on August 23, 2016 to answer questions that anyone might have regarding the beneficial use rules. When the Division publishes more information regarding the webinar, we will post it here on our web site.
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Ohio's Dredged Material Program -- Additional Information

 

Given the passage of Ohio Senate Bill 1 earlier this year, finding solutions for keeping Ohio’s northern shipping channels open has taken on new urgency. As stated in previous blog articles, the Army Corps of Engineers handles the dredging of shipping channels but will only pay for the most cost effective options, which is dumping the dredged material in deeper waters in the Great Lakes or putting dredged material into a diked disposal site. If a state requires the Army Corps of Engineers to dump the dredged material in a way that increases the cost, then that state is responsible for payment of the additional costs.

Beginning July 1, 2020, dredged material can no longer be dumped in Lake Erie. The state of Ohio is seeking creative solutions for handling dredged material that will provide for cost effective solutions to its disposal, including the reuse of much of the dredged materials.

Click here for more info about the goals and objectives of Ohio’s Dredged Material Program.

Below are links to additional resources provided by the Ohio EPA related to Ohio’s Dredged Material Program:

-          U.S. Army Corps of Engineers Great Lakes and Ohio River Division

-          Toledo Harbor Project, Ohio Lake Erie Commission

-          Senate Bill 1 Text and Analysis

-          Ohio Clean Lakes Initiative

-          Great Lakes Dredging Team

-          Soil Erosion and Dredging, Great Lakes Commission

-          Dredging in the Great Lakes Region Great Lakes Information Network

 

Ohio's Ports: Facts and Statistics

A couple of weeks ago, I published information regarding Ohio EPA's dredged material program. Today I want to provide some fun facts about each of Ohio's 8 harbors on Lake Erie.  All information was obtained from statistics provided by the Ohio EPA.

Toledo Harbor

8,800,000 tons of commodities (coal, petroleum, aggregates, metal products, limestone, grain, chemicals, iron ore, steel products, cement, ores, minerals, flour and sugar) are moved through the harbor. This activity generated $7,070,000,000 in business revenue with jobs that generated $[1,370,000,000] per year in personal income. Toledo accounts for 55% of the dredged material each year, averaging 850,000 cubic yards. This equals 114,750 dump trucks filled and lined up for 652 miles.

Sandusky Harbor

3,000,000 tons of commodities (coal and salt) are moved through the harbor. This activity generated $604,000,000 in business revenue with jobs that generated $30,100,000 per year in personal income. Sandusky accounts for 9% of the dredged material each year, averaging 140,000 cubic yards. This equals 18,900 dump trucks filled and lined up for 107 miles.

Huron Harbor

367,000 tons of commodities (limestone and grain) are moved through the harbor. This activity generated $63,200,000 in business revenue with jobs that generated $18,500,000 per year in personal income. Huron accounts for 6% of the dredged material each year, averaging 95,000 cubic yards. This equals 12,825 dump trucks filled and lined up for 73 miles.

Lorain Harbor

988,000 tons of commodities (aggregates, ores, limestone, minerals and chemicals) are moved through the harbor. This activity generated $215,000,000 in business revenue with jobs that generated $60,100,000 per year in personal income. Lorain accounts for 4% of the dredged material each year, averaging 66,667 cubic yards. This equals 9,000 dump trucks filled and lined up for 51 miles.

Cleveland Harbor

11,500,000 tons of commodities (sand, gravel, salt, limestone, iron ore, cement, concrete, general cargo and liquid bulk) are moved through the harbor. This activity generated $10,500,000,000 in business revenue with jobs that generated $2,170,000,000 per year in personal income. Cleveland accounts for 15% of the dredged material each year, averaging 225,000 cubic yards. This equals 30,375 dump trucks filled and lined up for 173 miles.

Fairport Harbor

1,500,000 tons of commodities (aggregates, ores, limestone and minerals) are moved through the harbor. This activity generated $161,000,000 in business revenue with jobs that generated $40,100,000 per year in personal income. Fairport accounts for 5% of the dredged material each year, averaging 75,000 cubic yards. This equals 10,125 dump trucks filled and lined up for 58 miles.

Ashtabula Harbor

5,000,000 tons of commodities (coal, iron ore, limestone, chemicals, ores and minerals) are moved through the harbor. This activity generated $2,960,000,000 in business revenue with jobs that generated $611,000,000 per year in personal income. Ashtabula accounts for 3% of the dredged material each year, averaging 50,000 cubic yards. This equals 6,750 dump trucks filled and lined up for 38 miles.

Conneaut Harbor

4,800,000 tons of commodities (coal, iron ore, limestone, lime, ores and minerals) are moved through the harbor. This activity generated $3,160,000,000 in business revenue with jobs that generated $850,000,000 per year in personal income. Conneaut accounts for 3% of the dredged material each year, averaging 40,000 cubic yards. This equals 5,400 dump trucks filled and lined up for 31 miles.
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Ohio EPA's Draft Beneficial Use Rules

In my article a couple of weeks ago, I covered some of the information in the Ohio EPA's Dredged Material Program. Due to state law in Ohio prohibiting open lake disposal of dredged material in Lake Erie after July 2020, the limited space left in confined disposal sites, we need to quickly develop cost effective ways to find a beneficial use for the dredged materials. For this reason the Ohio EPA is attempting to develop Beneficial Use rules that provide a framework that will facilitate the reuse of dredged materials.

Below are the links to the Interested Party draft of the Beneficial Use Rules and related information. Changes have been made to the draft based on comments that the Ohio EPA has received and it anticipates filing an official draft with the Joint Committee on Agency Rule Review later this summer (targeting June 2016).

Beneficial Use Rules

§  Business Impact Analysis Beneficial Use Rules, Ohio Administrative Code 3745-599

§  3745-599 Draft 

§  3745-599-01 Draft Beneficial Use - Applicability 

§  3745-599-02 Draft Beneficial Use - Definitions 

§  3745-599-03 Draft Beneficial Use - Incorporation by Reference 

§  3745-599-05 Draft Beneficial Use - General Exclusions 

§  3745-599-10 Draft Beneficial Use Byproduct Incorporated into Certain Construction Materials or Used as a Fuel or as an Ingredient in a Combustion Unit

§  3745-599-20 Draft Beneficial Use - Prohibitions 

§  3745-599-25 Draft Beneficial Use - Signatures 

§  3745-599-30 Draft Beneficial Use - Relationships Among Authorizing Documents, Rules and the Authority of the Director and Board of Health

§  3745-599-35 Draft Beneficial Use - Legitimacy Criteria 

§  3745-599-60 Draft Approved Sampling and Characterization Procedures for the Use of a Beneficial Use Byproduct 

§  3745-599-200 Draft General Beneficial Use Permit

§  3745-599-210 Draft Notice of Intent to Obtain Coverage Under a General Beneficial Use Permit

§  3745-599-220 Draft Coverage Under a General Beneficial Use Permit 

§  3745-599-310 Draft Application for an Individual Beneficial Use Permit 

§  3745-599-320 Draft Issuance of an Individual Beneficial Use Permit 

§  3745-599-330 Draft Notice and Information for Distribution - Individual Beneficial Use Permits 

§  3745-599-334 Draft Generator Obligations for Record-keeping and Reporting - Individual Beneficial Use Permits 

§  3745-599-335 Draft Distributor Obligations for Record-keeping and Reporting - Individual Beneficial Use Permits 

§  3745-599-340 Draft Characterization and Analysis Plan for Individual Beneficial Use Permits

§  3745-599-345 Draft Compliance Sampling and Analysis for Individual Beneficial Use Permits

§  3745-599-350 Draft Changes to an Individual Beneficial Use Permit

§  3745-599-360 Draft Renewal of an Individual Beneficial Use Permit 

§  3745-599-370 Draft Denial and Revocation of a Beneficial Use Permit

Interested Party Review - 2015 Draft Beneficial Use Rules

Draft General Permits - March 2014

Interested Party Webinar Power Point - June 10, 2015 

Interested Party Webinar Audio - June 10, 2015 

State Law Matters: Ohio's Lake Erie Dredged Material Program

All of the information below was taken from the Ohio Environmental Protection Agency web page for its Dredged Material Program —

If you live or work along Ohio’s northern border, aka Lake Erie, particularly near one of Ohio’s 8 ports, then you may be aware of the need to regularly dredge our shipping channels and the controversy that has been brewing with regard to what is done with the dredged material.  Currently, some or all of the dredged material, depending on where along the lakeshore the dredging occurs, is dumped in the open lake. By July 2020, the State of Ohio will no longer permit disposal of dredged material in the open waters of Lake Erie.

The Ohio EPA and others are scrambling to look for cost effective solutions for the material that is dredged, much, if not most, of which is suitable for reuse.  Here are a few FAQs that are published on the Ohio EPA’s web site:

What is dredged material?

Dredged material includes material excavated or dredged from a lake or stream. The Ohio EPA beneficial use program focuses only on material dredged from federal navigation channels on Lake Erie during harbor or navigation maintenance activities. Dredged material can consist of soil, sand, silt, clay and organic matter that have settled out onto the bottom of the channel. 

What if I want to beneficially us dredged material from a federal navigation channel in an upland setting, do I need Ohio EPA approval?

Yes. If you wish to beneficially use dredged material in an upland setting, you will need to first submit a Land Application Management Plan (LAMP) permit application by completing LAMP Form A and LAMP Form C1 which can be found here (click on the “I-N” Tab and then click on the “LAMP Form” bar to access the forms). In addition, you will need to submit a description of how you will manage, store and/or treat the dredge prior to beneficially using the dredged material. You must also submit all sampling and analysis data of the dredged material along with all proposed beneficial uses. If you are interested in beneficially using dredged material in an upland setting, please contact Ohio EPA’s Division of Materials and Waste Management at 614-644-2621 and they will answer any questions you may have, help you complete the LAMP permit application and assist with the authorization process. 

Is Ohio EPA developing beneficial use rules for dredged materials?

Yes. Ohio EPA is in the process of developing beneficial use rules which will include the use of dredged material from federal navigation channels. In May, 2015, draft beneficial rules were released for interested party comment. Ohio EPA is reviewing the comments received and anticipates taking the first step in the formal part of the Ohio rule-making process by filing proposed rules and providing an Ohio EPA public hearing and comment period early in 2016. Following consideration of formal public comments and testimony, the proposed rules will have a separate hearing before the Ohio Legislative Joint Committee on Agency Rule Review. Once these have been completed, we will file final rules and set an effective date. Until the rules are finalized, the LAMP process described above should be followed. 

Has the Ohio EPA approved the beneficial use of dredged material?

Yes. To date, Ohio EPA has issued two Land Application Management Plan permit authorizations for the beneficial use of dredged material. They are both associated with the beneficial use of dredged material from a Confined Disposal Facility located in Cleveland, Ohio. The first authorization was issued on June 29, 2015; the second authorization was issued on Nov. 5, 2015.

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The Army Corp of Engineers oversees the dredging. It typically covers the cost of dredging and disposal of the dredged material, but only at the level of the most affordable option. Open lake dumping of the dredged material is the lowest cost option available today. If another method of disposal is required, as it will be after July 2020 in Ohio, we will have to come up with the money to pay the cost differential.  We have 4 years to figure that out and implement the solution.

Stay tuned for future updates.

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Ohio Environmental Training, Webinars and workshops

If there is one area of law affecting the use of real estate that can be particularly difficult to understand, it is environmental regulation.  The Ohio EPA’s web site offers an abundance of information that can steer someone in the right direction.

There are also seminars/webinars and workshops that the Ohio EPA provides periodically. Below are some options:

Municipal Storm Water Training Resources

Ohio EPA webinars regarding its service improvement plan

Compost based storm water best management practices webinars

Dredged Material—Making It Your Business: Digging Up Ideas Workshop

Ohio EPA training catalog

Hopefully, the above links will provide interested readers with a start on finding answers regarding state environmental regulation.
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Ohio Supreme Court: OEPA Must Follow Rulemaking Procedure For New TMDLs Before Submitting To US EPA

On March 24, 2015, the Ohio Supreme Court issued its decision in Fairfield Cty. Bd. of Commrs. v. Nally, Slip Opinion No. 2015-Ohio-991, in which the court held that --

1. A total maximum daily load established by the Ohio Environmental Protection Agency (OEPA) pursuant to the Federal Water Pollution Control Act, 33 U.S.C. 1251 et seq. (the Clean Water Act), is a rule that is subject to the requirements of R.C. Chapter 119 of the Ohio Administrative Procedure Act; and
2. The OEPA must follow the rulemaking procedure in R.C. Chapter 119 before submitting a total maximum daily load (TMDL) to the United States Environmental Protection Agency (USEPA) for its approval and before the TMDL may be implemented in a National Pollution Discharge Elimination System (NPDES) permit.

This case involved a challenge brought by Fairfield County regarding a renewed NPDES permit issued by the OEPA back in 2006 to a wastewater treatment place that discharges into Blacklick Creek.  The renewed permit included new phosphorus limitations that were not previously included in the county's permit. The county contended that it should have had a 'full and fair' opportunity to be heard and the right to review and challenge the TMDL before it was submitted to the USEPA for approval. The Ohio Supreme Court agreed affirming the judgment of the court of appeals that had vacated the NPDES phosphorus limitations but for different reasons.

The court of appeals and the Environmental Review Appeals Commission (ERAC) before it had both determined that OEPA had a right to impose the new limits in a renewed NPDES permit without following Ohio's Administrative Procedures Act (the APA) but vacated the limits and remanded to the OEPA for further consideration due to the OEPA's failure to consider with the new permit limits on phosphorus were technologically feasible and economically feasible as required by R.C 6111.03(J)(3).

The OEPA denies that the TMDL is a rule and characterizes it as simply guidance. The court has previously held that the Ohio EPA "cannot regulate through 'guidelines' that are in reality rules requiring formal promulgation" (Jackson Cty. Environmental  Commt. v. Schregardus, 95 Ohio App.3d 527, 642 N.E.2d 1142 (10th Dist. 1994)). When reviewing guidelines or other 'documents' the court has long emphasized that it will look at such guideline or document's effect not how an agency or other governmental entity chooses to characterize it.

When determining that the establishment a new TMDL is a rule requiring the OEPA to follow Ohio's APA, the court notes that it creates new legal obligations, and the standards have general and uniform effect even though they will not be implemented against a point source (such as a wastewater treatment facility) until an NPDES permit is issued.  The court further noted that the USEPA itself is required to proceed through rulemaking when it establishes its own TMDLs and other state supreme courts (ID; SC) have addressed this issue, finding that TMDLs must be promulgated as rules before becoming the basis for discharge limitations in a permit.

Justices O'Donnell and Kennedy, while concurring in the result, did so on the grounds held by ERAC and the court of appeals. In the concurrence prepared by Justice O'Donnell, he noted that the OEPA has issued 1,761 TMDLs, including 132 TMDLs for phosphorus.  Since the OEPA did not follow the Ohio APA for any of these TMDLS, this court's decision for Fairfield County essentially invalidates all of these TMDLs and opens up all of the permits for challenges.

I sympathize with Justices O'Donnell's and Kennedy's concern over the repercussions of this decision. However, in a time when private citizens, including private business, are being subjected to an ever increasing rules and regulations from all levels of government, it's important to all of us that the government is made to follow the rules as well. Only time will tell what the fallout is from this decision.
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