Ohio Environmental Update Edited by Sarah J. Staley Environmental l  Toxic Tort l  Litigation January 2010   To Our Clients and Friends,   McMahon DeGulis LLP is pleased to bring you our monthly Ohio Environmental Update.  This Update features important state and federal cases, statutory and regulatory changes, and policy initiatives affecting environmental law in Ohio.  New links will be posted throughout the month on our related blog.  Please visit our blog at www.ohioenvironmentalupdate.blogspot.com. We hope you find the Update interesting and helpful, and we would be grateful for any feedback you might have.  Thank you.   Federal Court Cases: United States v. Bd. County Comm’rs Hamilton County, No. 1:02-cv-00107 (S.D. Ohio January 14, 2010).  The City of Loveland sought to secede from the Metropolitan Sewer District of Greater Cincinnati, which is subject to a federal consent decree.  Because Loveland was neither a party to the consent decree nor participated in the comment period for the consent decree, the court held that the theories of laches and equitable estoppel prevent secession.  Lou McMahon and Andrea Salimbene represented the City of Cincinnati in this case. United States v. Lexington-Fayette Urban County Gov’t, No. 06-00386 (6th Cir. January 7, 2010). A district court may not disapprove of a Clean Water Act settlement due to the fact that the settlement involves civil penalties rather than remedial action.  33 U.S.C. §1319(d) expressly permits civil penalties in these circumstances.  State Cases: Nat’l Solid Wastes Mgmt. Ass’n v. Stark-Tuscarawas-Wayne Joint Solid Waste Mgmt. Dist., No. 2009-Ohio-6765 (Ohio 2009). The Director of Ohio EPA is not a necessary party to a suit regarding the legality of locally enacted solid-waste-management rules.  Case Leasing & Rental v. Ohio Dep’t Natural Res., No. 09AP-498 (10th Dist. December 15, 2009). The relative benefits doctrine does not apply to property damage caused by the negligent construction and maintenance of a lake by ODNR.  Additionally, a court may not award both damages for diminution of property and costs of repair.  Stark C&D Disposal v. Bd. Health, No. ERAC 766132 (Ohio Env.Rev.App.Com. January 6, 2010). The Ohio General Assembly did not intend to establish a minimum distance requirement for the modification of a C&D landfill.  When considering a modification application, local boards of health should consider the adverse effect of the landfill on public health, safety, and the environment rather than focusing on the distance between the landfill and private water wells.    Statutory and Regulatory Changes: US EPA proposes to tighten smog standards to between .060 and .070 parts per million. Once the proposed rule is published in the Federal Register, the public will have 60 days to comment.  More Information... If passed, Senate Bill 165 would alter Ohio oil and gas laws. The bill, which has been passed by the Ohio Senate, affects a number of different issues related to oil and gas law, including new restrictions on urban drilling and strengthening the authority of the Chief of ODNR Division of Mineral Resource Management.   More Information...   Policy Initiatives: Ocean Policy Task Force Releases Interim Framework for Effective Coastal and Marine Spatial Planning. Framework addresses concerns involving oceans, coasts, and the Great Lakes.  Comments are due by Friday, February 12, 2010.  More Information...   US EPA releases reports regarding coal ash at 22 facilities throughout the United States The reports are part of an ongoing process undertaken by US EPA to better regulate and manage coal ash.  US EPA proposes to establish a program to reduce stormwater discharges from new development and redevelopment EPA will accept comments on the proposal until February 26, 2010.  Ohio EPA’s new Surface Water Improvement Fund offers grants for Stream Improvements across the state. Proposals are due by February 15, 2010.  News: US Supreme Court denies Michigan’s motion for a preliminary injunction against Illinois regarding the closing of waterway locks to prevent the invasion of Asian carp.  The Court issued no statement with its denial.  Michigan has also moved to reopen a case granting Illinois certain rights with regards to Lake Michigan.  The Court has not yet ruled on that motion.  To unsubscribe from our Update, please email us at envlaw@mdllp.net.

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