Commission makes ruling in conditions appeal

COLUMBUS – The Ohio Environmental Appeals Commission issued a ruling regarding WIN Waste Innovation's appeal against Seneca County General Health District's issuance of the 2024 annual operating license with conditions for Sunny Farms Landfill. In a motion for stay filed by legal counsel for WIN Waste alleged that "...WIN's 2023 and 2024 Licenses include unlawful conditions where the Board asserts sweeping authority over railroad transportation and operations." The company's counsel alleged that the unlawful conditions were conditions 8, 9 and 11. The entirety of those conditions, according to court documents, is below: 8. Licensee shall not apply water to the waste in rail cars in quantities that result in the leakage of water or other liquids from the rail cars. Any water or other liquids leaking from the rail cars inside the rail car unloading building shall be contained on a concrete slab sloped to direct the liquids into a leachate collection sump. The liquids shall be lawfully disposed of at a wastewater treatment facility. 9. Licensee shall require all rail cars of waste entering the Facility to employ measures that prevent litter from being blown off or escaping from the rail cars. Licensee shall not allow any rail car to enter the Facility if the rail car does not employ these measures. 11. Licensee shall require all rail cars of waste entering the Facility to be either watertight or covered with an impermeable and watertight cover so that water and/or other liquids do not leak from the rail cars. Licensee shall daily inspect the loaded and unloaded rail cars at the Facility for leaks or spills of water or other liquids from inside the rail cars and for leaks and spills of oil and hydraulic fluids from the rail cars. Immediately after discovering any such leaks or spills of water or other liquids from inside the rail cars or leaks or spills of oil and hydraulic fluids from the rail cars, Licensee shall stop the leaks and spills or capture them in containers, mats, or other devices to prevent them from entering soil or gravel and shall remove any leaked or spilled materials that have already fallen onto soil or gravel. Licensee shall keep a daily log of inspections conducted pursuant to this condition, including the date and time of each inspection, a description of any leaks and spills, and a description of any actions taken to stop or remediate the leaks and spills. Licensee shall make this log available for SCGHD's review at the Facility and shall provide SCGHD with copies of the log upon request. The company's council alleged that the conditions are not authorized under Ohio law and "...are preempted by the Interstate Commerce Commission Termination Act," because the conditions "unreasonably interfere with rail transportation of property." WIN Waste also alleged that "...(u)nder Ohio law, a local board of health cannot regulate rail transportation of property or which rail cars may enter a landfill facility. The Board cannot require rail cars to be "watertight" or "covered with an impermeable and watertight cover" before the cars enter the Landfill facility and cannot prevent rail cars from entering the facility. Additionally, it claimed that the license conditions for 2024 "...unlawfully discriminate against waste transport by rail and violate WIN's rights under the Commerce Clause of the U.S. Constitution" and that the restrictions are unique to WIN Waste and that similar restrictions are not imposed on similar landfills in Ohio and other states. Counsel for WIN Waste sought to delay the effective date of the three conditions in its 2024 operating license issued by the Seneca County Board of Health. The ruling In a March 13 ruling by the Ohio ERAC, the commission granted WIN Waste's motion for stay with respect to one sentence of condition 11, which reads: "Licensee shall require all rail cars of waste entering the Facility to be either watertight or covered with an impermeable and watertight cover so that water and/or other liquids do not leak from the rail cars." The ERAC denied WIN Waste's motion for stay for the rest of condition 11 and remaining conditions 8 and 9. The commission also granted WIN Waste's motion for an expedited hearing. It ruled that "(t)he parties shall file a joint proposed case management schedule on or before March 29, 2024." The motion to consolidate ERAC 24-7193 and 23-7181 was granted as well. Counsel for Seneca County General Health District's motion for leave to file additional evidence in opposition to WIN Waste's motion for stay was granted. The evidence the Health District's counsel is filing with this motion is a report of the Health Department's Feb. 14 inspection of Sunny Farms landfill. The appeal was filed with the Ohio ERAC Jan. 12 against Seneca County Health Commissioner Julie Richards in reference to the final action taken by Richards "... in issuance of the 2024 annual operating license with conditions (collectively referred to as the "2024 License") for WWSC's facility located at 12500 W. County Road 18, Fostoria, Ohio (the "Landfill")," according to the notice of appeal. "We're encouraged that the Environmental Review Appeals Commission (ERAC) ruled in favor of our motion to halt enforcement of the unreasonable condition regulating railcars in the Seneca County General Health District's (SCGHD) 2024 operating license," said Ben Nutter, community engagement and government affairs for WIN Waste Innovations. "We look forward to the expedited hearing that will make this decision permanent. "We're proud that our significant investment in the landfill continues to show that we are in substantial compliance with the Ohio EPA, including passing 17 inspections in February alone, proving the essential service we provide is protective of public health," Nutter concluded. "While these additional amendments involving rail cars are not enforced anywhere else in the United States, we do take pride in overachieving on our already strict regulations by the Ohio EPA to ensure we are operating in the safest, most reliable way possible at the service of our communities." Seneca County Board of Health responds "These conditions (on WIN Waste's 2024 license) contain nine requirements for WIN Waste that are designed to prevent pollution from incoming railcars loaded with waste," read a press release provided by the board of health. "The ERAC denied WIN Waste's request to delay the effective date for eight of the nine requirements. The ERAC suspended the effective date for a requirement that all incoming rail cars of waste be either watertight or covered with an impermeable and watertight cover until such time that an evidentiary hearing is held later this year to accept evidence about that requirement." The 2024 operating license issued by Seneca County Board of Health contains 24 conditions, the release said. "The conditions outlined in WIN Waste's 2024 operating license are reasonable and aimed at protecting the environment and residents of Seneca County," said Seneca County Health Commissioner Julie Richards. "I'm pleased that ERAC upheld eight out of the nine requirements in the three conditions designed to prevent the contamination of the environment from waste leaking from railcars at the landfill." The release also discussed the report from the Board of Health's Feb. 13 inspection that was accepted by the ERAC in the Wednesday ruling. The report included a notice of violation, finding that WIN Waste "... failed to undertake the actions necessary to prevent and correct conditions causing erosion in two areas of the landfill in which wastes had been disposed" and "... noted the discovery of ponding that had not been timely removed from the landfill's waste disposal area." The notice also found that "...WIN Waste had not kept accurate logs of its mandatory daily inspections for these areas." Another notice of violation was issued by the Board of Health on Wednesday "... for the violation of a license condition requiring WIN Waste to test its gas extraction wells to find out whether they are functioning correctly. The license condition is meant to prevent noxious odors from the landfill. " "The efforts by the Board to ensure landfill oversight and compliance are now discovering violations. Two notices of violations have already been issued in 2024 and one of those violations includes a failure to comply with a reasonable condition in both the 2023 and 2024 licenses," said Dr. Zachary West, vice president of the Seneca County Board of Health and chair of the Environmental Committee. "The Seneca County Board of Health is making great strides in establishing the highest quality landfill oversight with the tools, resources and necessary personnel aimed at ensuring the health and wellbeing of our citizens and the place we collectively call "home" is protected. Every step taken by the Board, however, continues to be met with legal action by WIN Waste." During a special board meeting March 7, the Seneca County Board of Health approved the creation of a Landfill Oversight and Compliance Division. The division will be tasked with the oversight of WIN Waste. "As the landfill continues to grow, so do the issues and concerns related to it," West said. "The Seneca County General Health District must therefore adapt and respond. The creation of the Landfill Oversight and Compliance Division allows the Health District to further focus on the enforcement of landfill compliance."