The MD Ohio Environmental Update     Edited by Sarah J. Staley Environmental l  Toxic Tort l  Litigation February 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.mdohioenvironmentalupdate.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:   Sierra Club v. Korleski, No. 2:08-cv965 (S.D. Ohio Feb. 2, 2010). Ohio EPA may not exempt sources that emit fewer than 10 tons from its best available technology requirement unless US EPA approves such a modification to Ohio’s State Implementation Plan.  This essentially reverses some of the reforms of ORC §3704.03. Am. Canoe Ass’n v. Louisa, No. 01-99-ART (E.D. Ky Jan. 27, 2010). In a Clean Water Act citizen suit, a substantially prevailing party is entitled to attorneys’ fees and costs.  A party need not achieve complete success in order to qualify as a substantially prevailing party; however, the fee awarded must be reasonable.  Reasonableness is determined based on the location of the venue and the appropriateness of time spent, among other things. State Cases:   Ohio Envtl. Dev. Ltd. P’ship v. Ohio Envtl. Prot. Agency, No. 09 AP-683 (Ohio 10th Dist. Ct. App. Feb. 9, 2010). Ohio Environmental Development Limited Partnership operated emission checkpoints on leased property in Cincinnati as part of Ohio’s E-check program.  Following the initiation of the program, Ohio petitioned US EPA to allow termination of its E-check program.  Ohio then terminated its program without approval and in violation of the Clean Air Act.  OEDLP brought claims related to the continuing violation of Ohio’s SIP.  However, the court held that the statute of limitations for these claims was triggered upon non-renewal of the contract and not based on the continuing violation; therefore the claims were barred.  Furthermore, even though the parties contracted to practice in commercial good faith, the court held that a violation of the Clean Air Act did not constitute failure to practice in commercial good faith.  Natl. Solid Wastes Mgt. Assn. v. Stark-Tuscarawas-Wayne Joint Solid Waste Mgt. Dist., 2010-Ohio-228 (Ohio 5th Dist. Ct. App.  January 25, 2010). A solid waste district must obtain Ohio EPA approval for its initial and amended solid waste management plans.  Where a district does not amend its plan, Ohio EPA may write a plan for the district; however, only a plan written by the district may authorize local rulemaking.  Statutory and Regulatory Changes:   Ohio EPA to terminate its CAMR program in light of upcoming US EPA regulation on the matter. The new federal rule will regulate mercury emissions from coal-fired power plants. Ohio EPA amends the rules regarding Title V permitting. The new changes aim to improve implementation of the program and include provisions to help a facility transition out of Title V. Policy Initiatives:   SEC Issues Interpretive Guidance on disclosures related to Climate Change. Included in the guidance are examples of how climate change might trigger disclosure requirements.  News:   Governor Strickland appoints Steven Lesser as PUCO Commissioner.  Lesser had previously served as the chief of staff at the PUCO. US Chamber of Commerce to challenge EPA’s endangerment finding regarding greenhouse gas emissions. The Chamber objects to EPA’s use of the Clean Air Act to regulate greenhouse gas emissions.  Ohio awarded $6 million from US Department of Labor for green job training. Funding will be spent in auto-impacted communities.  Ohio to establish Ohio Energy Gateway Fund to invest in energy projects and companies. $40 million has been committed  to the fund.   To unsubscribe from our Update, please email us at envlaw@mdllp.net.

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