The MD Ohio Environmental Update     Edited by Sarah J. Staley Environmental  l  Toxic Tort  l  Litigation March 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: Kentucky Oil and Refining v. W.E.L., No. 7:09-148 (E.D. Ky March 8, 2010). The Court granted a preliminary injunction ordering Kentucky Oil to clean up waste on its property, holding that W.E.L. had a substantial likelihood of success on its RCRA claim.  As part of its evaluation, the Court stated that W.E.L. need not demonstrate that the waste in question originated with Kentucky Oil, but rather, that the waste was now on Kentucky Oil’s property and presents an imminent and substantial endangerment to health or the environment.    State Cases: Ohio Power Siting Board approves first large wind farms in Ohio. McMahon DeGulis LLP attorney Dave Nash represented JW Great Lakes Wind Farm before the Ohio Power Siting Board.  The farm received its approval on March 22, 2010.  Located in Hardin County, the farm will span over 3,400 acres and will include between 19 and 27 wind turbines with a total capacity of 50MW.    Sierra Club v. Jones, No. 255633 (ERAC March 17, 2010)  In order to determine whether a permit to install expired at a heat recovery metallurgical coke plant, ERAC sought to determine whether the plant was undergoing a continuing program to install.  ERAC held that for such a program to exist, the company seeking a continuation of the PTI must bring forth more than just contracts associated with the physical construction of a facility.   Salem v. Korleski, No. 09AP-620 (Ohio App. Dist. 10 March 23, 2010). In order to be eligible to receive an NPDES permit, the applicant need not provide 30 days of data regarding total dissolved solids.  Concomitant evidence would be sufficient.   Statutory and Regulatory Changes: Ohio EPA proposes rule changes regarding the implementation of water quality standards and NPDES permits.  As part of the changes, Ohio EPA would remove the definition for “non-point source” and would allow for thermal mixing zones in state lakes and waters that are designated as exceptional warmwater habitats and coldwater habitats.  Comments on the proposed rule are due April 26, 2010.    Policy Initiatives: Ohio EPA issues new guidance regarding the 10 tons/year exemption for BAT. In light of Sierra Club v. Korleski, Ohio EPA intends to evaluate new and modified sources on a case-by-case basis (without the applying of the previously-used exemption).   Ohio Department of Development announces new Brownfield Revolving Loan Fund. Local governments and nonprofits may apply for grants of up to $200,000.  Applications are due by April 9, 2010.    Ohio EPA comments on US EPA’s proposal to strengthen its ozone standard. Ohio EPA focused on the accomplishments Ohio has already made and the difficulty of meeting a more stringent standard.    Ohio EPA comments on the federal  GHG Tailoring Rule. While Ohio EPA supports limiting GHGs, Ohio EPA would prefer legislation on the issue rather than regulation of GHGs through the Clean Air Act.   News: Ohio EPA issues Covenant Not to Sue to Steelyard Commons. McMahon DeGulis LLP attorneys, Suzanne Fisher and Dave Nash, represented Steelyard Commons through the VAP process.   Ohio EPA issued the announcement on March 2, 2010.   To unsubscribe from our Update, please email us at envlaw@mdllp.net.

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