Ohio EPA Seeks to Rewrite Discharge Limit Process

Buried in the thousands of pages that make up this year’s budget proposal is an attempt to overhaul how the Ohio Environmental Protection Agency (Ohio EPA) develops pollution limits for Ohio’s waterways, known as total maximum daily loads (TMDLs). TMDLs can significantly impact business operations as they are used when issuing discharge permits, making it vital to ensure the process for setting TMDLs is fair, transparent and based on respect for due process.  In the budget, Ohio EPA is attempting to address the uncertainty surrounding existing TMDLs in the aftermath of a court case, while also creating a public input process for future TMDLs.

Prior to the Supreme Court of Ohio’s ruling in Fairfield County v. Nally in 2015, Ohio EPA set TMDLs outside of Ohio’s normal rulemaking process. The Ohio Chamber filed a friend of the court brief in that case urging the Supreme Court to recognize that TMDLs, under existing law, are rules that must conform to the rulemaking process before they can be used for as a basis for granting discharge permits. The court agreed with the business community and ordered Ohio EPA to treat the formulation of TMDLs as it would any other rulemaking. This created uncertainty around TMDLs in existence prior to the court’s decision.

Given the Ohio Chamber’s past involvement with TMDLs, our energy and environment committee created a working group to monitor the TMDL budget language and provided Ohio EPA with recommendations to adequately protect Ohio businesses. Specifically, we urged the agency to protect the ability of permitted dischargers with TMDLs set before the 2015 ruling to seek review of the limit. Additionally our comments recommended that dischargers into publicly owned treatment works be considered as Ohio EPA goes through the TMDL setting process.

The substitute budget bill released April 25th by the House contains the original budget language. During interested party meetings, Ohio EPA reiterated their plan to amend the language to incorporate stakeholder input when the budget debate moves to the Senate. As the agency moves to finalize amendments, the Ohio Chamber will push for a robust, fair TMDL development process that affords adequate due process.

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