OEC Veto Request to Governor Kasich

June 26, 2015

The Ohio Environmental Council respectfully asks you to veto the following provisions of the Conference Committee report on House Bill 64:

1. "EPCRA" – DNRCD8 Federal Emergency Planning + Community Right to Know Act

We respect that your Administration has recognized the need to bring Ohio into compliance with the federal Emergency Planning and Community-Right-to-Know (EPCRA) law of 1986. While we appreciate the good intention of your Executive amendments, we strongly disagree with your Administration's proposed provision, and we caution that it may further move Ohio away from such compliance. Chemical reporting by ALL industries needs to be updated for the 21st century, but it must be done within the letter and intent of federal law. The EPCRA related amendment in HB 64 does NOT move us toward this end goal, but rather further complicates the efforts to ensure that Ohio’s first responders, emergency planners and communities have access to information about hazardous chemicals and extremely hazardous chemicals in their communities.

Any updates to EPCRA should occur within ORC Chapter 3750, should not interrupt direct reporting to first responders and emergency planners, and should not require a chief of any division or department to judge which information is shared or withheld from the public. The General Assembly should comprehensively address the need to modernize Ohio’s chemical reporting requirements under EPCRA, and soon, but we urge that this process should include input from first responders and emergency planners and must comply with the federal law.

A disjointed emergency notification process coupled with uncertain public disclosure of chemicals in a community poses unnecessary impediments to protecting public safety. The provision is not in the public interest; as such, it should be vetoed.

2. "Coal Mining vs. Property Rights” – DNRCD48 Amendments to R.C. §1513.07 Coal mining permit applications

We respectfully request that you veto a provision that was added in the House and Senate versions of HB64 that unjustifiably weakens the requirements on coal mining operators to prove they have rights to the property they wish to mine -- inhibiting your Administration’s oversight of the industry.  Current law requires a coal mining applicant to prove it has rights to enter ALL land it proposes to mine through, and do so through properly recorded legal documents. This is important to coal country landowners because it limits mining to where rights have been lawfully granted, and assists the Department of Natural Resources' full review of coal mining operations.

HB64’s amendment to R.C. §1513.07, however, allows a coal mining applicant to submit a notarized statement describing the applicant's legal right to enter and commence mining; and provides that a coal mining permit application cannot be denied or considered incomplete if the applicant documents his/her right to enter at least 67% of the total area for which coal mining operations are proposed.

The provision unnecessarily tramples over property owners' rights, diminishes the responsibility of the coal industry to definitively demonstrate their legal right to enter properly with officially recorded real property documents, and allows regulatory efficiency to supersede legal due diligence. Through the entire budget process, there was no public justification of the proposed provisions by coal mining interests, nor any meaningful stakeholder engagement.

This provision, therefore, is not in the public interest; as such, it should be vetoed.

3. “Grow, don't bury, Ohio's high-value recycling industry” – EPACD25 Source separated recyclable materials

Waste is becoming a more attractive commodity as technology advances and higher-value products can be mined from municipal waste. To enable this, existing law wisely provides for "flow control," which enables a predictable, continuous stream of recyclable materials to designated locations. The Senate’s amendment to HB64 would upend this, repealing Ohio's flow-control law. The amendment also will threaten rural recycling efforts by destroying the guaranteed minimum volume of recyclable materials that flow control guarantees. Ohio EPA is presently undergoing a full-scale review of Ohio’s Solid Waste Law originally passed with the landmark HB592 in 1989.  The Agency’s review of HB592, which includes collaborative input from all stakeholders, is the proper venue for addressing a matter of such significance to environmental protection and local economic development. 

The Senate’s provision would upset years of progress that have turned trash into treasure for Ohio, and therefore, this provision is not in the public interest and thus should be vetoed.

4.  "Tread and Mow On Me Amendment"- LOCCD34 Maintenance of buffer around drinking water reservoir

Publicly-owned buffer areas and their natural/native vegetation play an important and necessary role in reducing flooding, soil erosion, and pollution from entering Ohio's water bodies. Natural/native vegetation in these buffer areas provide these benefits to the state; mowed grass and vegetation, just like hard, impervious surfaces, simply do not.  A provision added by the Senate, however, would authorize private citizens to trespass, alter, and usurp public property and utilize it as their own private property. This careless amendment would enable any property owner adjacent to a water supply reservoir to mow or clear the property so they can see the water; it could even permit earth-moving and installation of structures next to a reservoir. This innocent-sounding change poses negative implications for water and wildlife resources, drinking water treatment, and water rate payers: it could result in increased soil erosion, runoff of fertilizer and pesticides, and further exacerbate Ohio’s annual summer battle with toxic algae and its plague of many inland lakes and drinking water systems.

The amendment may benefit a relative few, but at the expense of millions of citizens and the public's natural resources.  Approving such a provision is an anathema to the progress made and plans pursued by your Administration to address pollution due to runoff into Ohio’s drinking water. 

This provision is not in the public interest; as such, it should be vetoed as you did with similar language proposed in HB59 (130th General Assembly) for the Biennial Budget for FY14-15.

5. “Forever means Forever” –  EPACD22  Isolated wetlands permits; Section 401 water quality certifications

When a high-quality wetland or stream is destroyed, it is gone forever; the protection of the replacement wetland and stream should be just as permanent.  The House and Senate amended HB64 to add provisions to require that mitigation projects be legally protected only for an undefined "long term" basis, not "in perpetuity" as provided in current law.  This seemingly simple twist of phrase would seriously weaken protections for perhaps all future wetland and stream mitigation projects in the state, and put us at odds with the intent of the Federal Clean Water Act. In the notes accompanying promulgation of the final federal wetland mitigation rule (40 CFR 230.97), the Army Corps and USEPA made clear that, “The goal of the rule is to ensure permanent protection of all compensatory mitigation project sites.” 

The consequences of this change are amplified by the Executive Budget’s proposed privatization of state water pollution certification for mining, development, and other projects that impact small streams and wetlands by authorizing private "certified professionals" to characterize stream segment and wetland water quality and to certify mitigation projects. OEC testified that this novel proposal is not ready for prime-time; citing concerns with conflict of interest, lack of necessary transparency and public accountability for the CWQPs, as well as the ability for Ohio EPA staff to discretionarily audit CWQP reports concerning impacts on sensitive watersheds and/or significantly sized projects. While those concerns persist, we have been encouraged by discussions with the Agency that the development of the CWQP program will address some of our concerns.  However, no matter how responsible the CWQP program is, it may be moot if the replacement or preserved wetland or stream can later be destroyed.

The state’s burden as trustee of the people’s water resources, and compliance with the federal Clean Water Act, both dictate maintaining the longstanding requirement that the public be compensated for its loss of stream and wetland segments with perpetual -- not long-term -- mitigation projects.

This provision, therefore, is not in the public interest; as such, it should be vetoed.

6. “No new tax on electric rate payers” – TAXCD96 Repeal of tax on electric company generation property

Currently the taxes assessed to generation plants are collected as local property taxes for the benefit of local schools etc.  The taxes are then paid by the generation company directly.  A late addition by the Senate proposes to shift the burden of property taxes from power plants, owned by unregulated affiliates of utility holding companies, onto transmission and distribution customers of the regulated distribution utilities.  With zero identification, explanation, or justification for this amendment, we are left with only speculation as to the impact of this provision. 

How will this tax shift pass legal muster under Ohio’s electricity company corporate separation law? Since Transmission companies are regulated by the federal government (FERC) and only FERC can authorize recovery through a transmission tariff, what authority does the Ohio PUCO and/or Ohio legislators have to authorize the recovery of the extra expense from new taxes? How much will distribution customer bills increase?  Will the increase on bills be even across the board, or more heavily felt by residential and small businesses?  Uncertainty abounds.

With all of these uncertainties, what is clear is that generation taxes that Ohio customers may never have paid previously will now be thrown on the backs of Ohio distribution company customers.  This provision is not in the public interest, and thus, should be vetoed.