On March 24, 2015, the Ohio Supreme Court issued its opinion in Fairfield County Board of Commissioners v. Nally finding that Total Maximum Daily Loads (TMDLs) established by Ohio EPA must go through a formal rulemaking process prior to being submitted to USEPA for approval. The decision creates substantial uncertainty for entities applying for or renewing NPDES permits in Ohio and casts a shadow on the thousands of permits issued based on existing TMDLs.
The decision is the culmination of a dispute dating back to 2002 and related to a NPDES permit issued to the Fairfield County Board of Commissioners authorizing discharge from a wastewater treatment plant. After a lengthy procedural history involving appeals to the Environmental Review Appeals Commission and the Court of Appeals for Franklin County, the Ohio Supreme Court was asked to determine whether a TMDL established by the Ohio EPA, approved by USEPA and used as a basis for Fairfield County’s NPDES phosphorous discharge limitations, is a rule that should have gone through the requirements of the Ohio Administrative Procedure Act. The court found that a TMDL is a rule because a TMDL has general and uniform operation and prescribes a legal standard which did not previously exist. Thus, the court stated that the TMDL must first be formally promulgated as a rule before it can be enforced against the general public. The court further analogized to the fact USEPA is obligated to proceed through rulemaking when it independently establishes TMDLs in states without authorized programs. Further, the court noted other state supreme courts that have addressed the issue have ruled that TMDLs must be promulgated as rules being used as a basis for discharge limitations. Because the relevant Ohio TMDL was not promulgated as a rule, the court vacated the relevant portions of the permit and remanded the matter to Ohio EPA.
More than 1700 TMDLs have been established by Ohio EPA. These TMDLs have served as a basis for determining appropriate discharge limitations for hundreds if not thousands of permits. The validity of these permits, along with the agency’s ability to renew or issue new NPDES permits, is in question in light of the Ohio Supreme Court’s decision. The Ohio EPA is evaluating the court’s decision. Stay tuned for further developments.