Q:       I want to build a house near a small lake, but a friend said the property might be a wetland. What is that, exactly?

A:        Wetlands are areas “inundated or saturated” enough by surface or groundwater that they can and generally do support vegetation adapted for living in saturated soil conditions. As such, wetlands are valuable because they improve water quality, help control flood waters, provide a habitat for fish and wildlife, and are aesthetically beautiful. For these reasons, state and federal agencies like the U.S. Environmental Protection Agency (U.S. EPA), the U.S. Army Corps of Engineers (Army Corps), and the Ohio Environmental Protection Agency (Ohio EPA) impose and enforce regulations meant to preserve and protect wetlands. If you are planning to build a home or start any project that could impact wetlands, you should be aware of these regulations. 

            U.S. EPA and a few state agencies have enforced wetlands regulations against individual homeowners for failing to obtain proper permits before undertaking activities that impact wetlands. For example, in 2012, the U.S. Supreme Court decided the case of Sackett v. U.S. EPA., which involved a 2/3-acre residential lot near Priest Lake in Idaho. The couple purchasing the lot filled part of it with dirt and rock in preparation for constructing their dream home. Shortly thereafter, U.S. EPA issued a compliance order informing them that the lot contained jurisdictional wetlands, and that filling the lot with dirt and rock without a permit violated the Clean Water Act. The order directed the couple to restore the property to its original condition or risk being fined up to $75,000 per day in penalties. The couple prevailed in the issue before the Supreme Court, which involved their right to appeal the order in an administrative proceeding, but they have yet to reach resolution with U.S. EPA or to resume construction of their home. 

Q:       What should I know about wetlands regulations before building or adding on to a home?

A:        Whether you are building your dream home, or merely adding a room, swimming pool, patio, or deck to your home, you should determine if there is a wetland on or near your property that your project might impact. It is not always easy to tell if an area is a wetland, especially if it is only “wet” for part of the year. You may need to consult with a wetlands delineation expert who will examine the vegetation, soils, and hydrology to determine if your property contains a wetland, and if so, its location, size and quality. 

Q:       What must I do if I want to build in a wetland? 

A:        If your project will impact a wetland that adjoins or is close to a navigable waterbody, you must get a Clean Water Act Section 404 (individual or nationwide) jurisdictional permit from the Army Corps. If the wetland is isolated from navigable waters, you must get an Isolated Wetlands permit from the Ohio EPA. Most single-family residential construction projects are eligible for a streamlined Nationwide Permit 29 (as long as less than half an acre of wetlands will be disturbed). If you are eligible, you will be able to avoid the more burdensome process of getting an individual permit. Overall, the location, size, and quality of the wetlands to be impacted will determine the type of permit required, and where to obtain it. Individual permits from the Army Corps require a separate state Section 401 water quality certification from Ohio EPA. You must comply with the requirements of your permit. 

            In addition to the cost and time associated with preparing and filing these applications, you can expect to wait at least 30 days for a nationwide permit and as many as 60 days for an isolated permit before the Ohio EPA or the Army Corp approves your permit, and you may wait up to 180 days or longer for an individual permit.

Q:       Can I avoid getting a permit? 

A:        If only part of your property is a wetland, you may be able to plan the construction and design of your project in a way that avoids impacting the wetland.

Q:       What if I receive a notice from the government that I have violated a wetlands requirement? 

A:        If you get a notice of violation, you may have to pay a fine, and you will probably have to eliminate the violation by restoring the property to its original state or obtain an after-the-fact permit to make it legal. Depending on the circumstances, you may need to consult with an environmental attorney and possibly a wetland delineation expert. 

Law You Can Use is a weekly consumer legal information column provided by the Ohio State Bar Association.  This article was prepared by Chris Kim Kahn, an attorney with Frost Brown Todd LLC.

Articles appearing in this column are intended to provide broad, general information about the law. Before applying this information to a specific legal problem, readers are urged to seek advice from an attorney.

Q:       I plan to buy a small manufacturing business in Ohio. Do I need an air permit?
A:        If you will be using manufacturing equipment, your business must comply with certain environmental regulations. In particular, air pollution regulations are closely monitored and enforced, so you should understand these regulations and obtain any appropriate permits. Ohio EPA may be willing to guide you in this process, but if you aren’t sure about your permitting status, consult an attorney.

Q:       When does Ohio require air permits?
A:        Ohio usually requires a “permit to install and operate” (PTIO) before air pollution sources are installed. An air pollution “source” may be anything from an industrial furnace stack to a paint booth, or even a gravel roadway that creates dust. 

Q:       Are there any exceptions to air permitting requirements?
A:        Yes. There is an exception for very small (“de minimis”) sources of air pollution that have the potential to emit no more than 10 pounds of any individual pollutant in a 24-hour period of continuous operation. This exception also applies to sources that would emit more than 10 pounds if operated continuously for 24 hours, but never do so in normal operations, but the operator must keep records showing that the 10-pound threshold is never exceeded.

Q:       Our pollution sources are small, but may not qualify under the “de minimis” source requirements. Might any other exceptions apply to us?
A:        Yes. If you don’t think you are a “de minimis” source, you still may be on Ohio EPA’s list of 45 types of sources that can receive “permanent exemptions” from air permitting. Some common sources that do not require permits include certain small boilers, tumblers, bakery ovens, laboratory equipment, small storage tanks and inkjet printers.

            Also, Ohio EPA has created “permits by rule” that exempt other types of small sources from having to obtain a PTIO, so long as they follow some basic notification and recordkeeping requirements. Such sources include certain types of auto body shops, gas stations, boilers/heaters fired by natural gas, printing facilities, emergency generators, compressors and water pumps, resin compression/injection molding, crushing/screening operations and soil remediation activities. Rather than getting permits for these sources, your company must follow certain specific rules.

            Ohio EPA also provides less complicated “general permit” PTIOs for other small sources. Your business must still need submit an application and obtain a permit, but the permit doesn’t take long to get, and is essentially already written. Sources requiring general air permits include certain aggregate processing, certain boilers, diesel engines, digester operations, drycleaning operations, mineral extraction, metal parts painting lines, ready-mix concrete batch plants, storage piles, and paved and unpaved roadways and parking areas.

Q:       What if our business doesn’t fall into any of the “small source” categories?
A:        If your facility has relatively minor sources of air pollution, but does not fall into one of the above categories, you must get a standard PTIO from Ohio EPA. You can get a form through the Ohio EPA’s website (www.epa.ohio.gov), and you can probably get assistance with your application from the Ohio EPA. If your company has larger sources of air pollution, you may need to get a federal permit under the New Source Review and Title V permitting programs. (Visit www.epa.gov/region05/air/permits/index.html for more information.)

Q:       What should I do if an Ohio EPA inspector visits my facility?
A:        You should prepare for unannounced inspections if you have environmental permits. To properly prepare, designate someone from your facility who understands the company’s operations and environmental issues to accompany the inspectors, explain the facility’s layout and operation, and to serve as the Ohio EPA contact person.

            When the inspectors arrive, you should find out: 1) contact information and title for each inspector; 2) what prompted the investigation (whether a complaint, a specific event or a routine inspection); and 3) what procedures will be followed during the inspection (areas to be inspected, records to be reviewed, samples to be taken). If there is any indication that the inspection may be part of a criminal investigation, contact legal counsel immediately.

            During the inspection, stay with the inspectors and take notes of the inspector actions and questions. If samples are taken, note the collection process and get split samples. If an inspector takes photos, do the same. Answer questions fully, but do not speculate or volunteer information.

            After the inspection, ask for an exit interview. Try to learn if the inspector observed any deficiencies requiring follow up. Finally, document all inspection events and conversations in a written report, and identify all documents shared with the inspectors. Following these steps will minimize your risk of liability and help you respond to any further agency action.

This “Law You Can Use” column was provided by the Ohio State Bar Association. It was prepared by Cincinnati attorney Thaddeus H. Driscoll of Frost Brown Todd LLC. Articles appearing in this column are intended to provide broad, general information about the law. Before applying this information to a specific legal problem, readers are urged to seek advice from an attorney.

Q:       When someone installs an oil and gas well on my property, is there any waste? If so, what kind?

            A:        Yes. Drilling well borings for oil and gas production creates a variety of wastes and byproducts including drill cuttings, drilling mud, pipe scale and brine. Drill cuttings are generally pulverized rock returned to the surface during the drilling of the well boring. Drilling mud is typically a semi-solid dirt/fluid mixture designed to keep the boring open during drilling. Pipe scale is a buildup caused by drilling that sticks to boring surfaces and drilling equipment. Brine is basically salty water produced from the rock layers and combined with some drilling fluids. Brine is generated during the well-drilling or fracking process, and also during the cleaning and development process used to prepare for oil and gas production. 

                        These various types of waste or byproducts may contain oil-based substances and low-level, naturally occurring radioactive materials. Each waste or byproduct generated is handled according to its nature and type.

            Q:       What regulatory controls address oil and gas well wastes in Ohio?

            A:        In July 2013, House Bill 59 amended several sections of Ohio law to provide greater assurance that oil and gas well waste is being managed safely. These amendments give the Ohio Department of Health, the Ohio Department of Natural Resources (ODNR) and the Ohio Environmental Protection Agency (Ohio EPA) greater oversight and coordination over oil and gas well management, and revise Ohio’s solid waste statute for “Technologically Enhanced Naturally Occurring Radioactive Material,” as explained below.

            As of 2014, a person is prohibited from storing, recycling, treating, processing or disposing of brine or other wastes associated with the exploration, development, well stimulation, production operations or plugging of oil and gas resources unless the Chief of the ODNR, Division of Oil & Gas Resources Management, gives that person an order or permit. Laws in the Ohio Revised Code (Chapter 1509) govern disposal of brine waste. Non-brine waste material that is removed from the drilling site must be disposed of according to Ohio solid waste law. 

Q:       What does the law say about how oil and gas well wastes must be handled?

            A:        Generally, drill cuttings may be managed on the drill site. Drill cuttings and scale that come into contact with refined oil-based substances or other contaminants are generally disposed off-site; the Ohio Environmental Protection Agency regulates these substances as solid waste. Drilling muds typically are recycled, since they can be useful for subsequent borings. The ODNR Division of Oil and Gas Resources Management regulates brine transport and disposal. The Division also permits and oversees underground injection wells for disposal of waste fluids including brine.

                        Drillers may also need an Ohio EPA air permit for installations or activities that emit air pollutants.

           

            Q:       Can oil and gas well development cause radioactive materials to move within the environment?

            A:        Yes. Soils and muds produced during oil and gas well development may emit radionuclides. Naturally Occurring Radioactive Material (NORM) consists of undisturbed materials that exist in the environment and emit low levels of naturally-occurring radiation. An example of NORM is the radon gas collecting in home basements. NORM is exempted from regulation.

            However, when NORM radionuclides are modified, either naturally or through various technologies, they may become concentrated. When this happens, they turn into Technologically Enhanced Naturally Occurring Radioactive Material (TENORM). The Ohio Department of Health, Bureau of Radiation Protection, has primary regulatory authority over TENORM. In addition to oil and gas wastes, examples of TENORM wastes include wastes derived from the metal mining/processing industry, and sludge from water treatment plants­­ and from geothermal energy production. TENORM is also found in phosphate fertilizers.

Q:       What does Ohio law say about handling TENORM wastes?
A:        Ohio has some of the most stringent TENORM rules in the country. TENORM wastes cannot be disposed of at the drill pad. Oil and gas drilling solids that are also TENORM must be tested for radium concentrations before leaving the drill pad. TENORM wastes with concentrations of less than 5 pico-curies per gram above a “natural background” (about 79.4 millirem) may be disposed of at licensed solid waste landfills. Wastes with elevated concentrations of TENORM must be sent to a low-level radioactive waste disposal facility. If brine contains TENORM, brine disposal laws govern disposal. In Ohio, this almost always means that the brine is injected into a deep well for disposal.

  

This “Law You Can Use” column was provided by the Ohio State Bar Association. It was prepared by Columbus attorney Brian A. Ball, former practicing geologist, of the Ohio Attorney General’s Environmental Enforcement Section. Articles appearing in this column are intended to provide broad, general information about the law. Before applying this information to a specific legal problem, readers are urged to seek advice from an attorney.