ERAC issues judgment

SENECA COUNTY — Last week the Environmental Review Appeals Commission (ERAC) issued a judgment regarding WIN Waste's appeals against the conditions put on its 2023 and 2024 operating licenses by the Seneca County General Health District. ERAC judged all conditions put on WIN Waste's 2023 and 2024 operating licenses. The conditions and judgments Condition 1: WIN Waste must maintain the facility's gas collection and control system to ensure its proper operation to prevent subsurface gas migration and odors. ERAC determined this condition to be unlawful because "the regulation of general air emissions is not within the health district's jurisdiction," according to court documents. Condition 2: WIN Waste shall immediately notify the health district if "any flare in the facility's gas collection and control system becomes inoperable or is down for repairs," the document reads. It also required WIN Waste to provide the health district with a copy of any written statement sent to the Ohio EPA about an inoperable flare or any other issue with the facility's gas collection and control system. ERAC found this condition to be unlawful because state law "does not empower the health district to expand the scope of its jurisdiction to enforce all of Ohio's air pollution laws and regulations." Condition 3: WIN Waste shall not operate in a manner that emits odors that endanger the health, safety, or welfare of the public or cause unreasonable injury or damage to property. The commission found that the state law does not empower the health district to expand the scope of its jurisdiction. It also states that the health board's argument that its inclusion of this condition is "not well taken." Condition 4: This condition requires WIN Waste to submit certain reports to the health district. The commission finds this condition to be lawful and reasonable. Condition 5: WIN Waste must copy the health district when submitting "certain reports related to the facility's air permit-to-install and title V (5) permit to Ohio EPA." The commission found this unlawful because state law does not empower the district to expand its jurisdiction to air pollution laws and regulations. Condition 6: WIN Waste must provide at least two days' notice to the health district before placing "the first layer of waste" on any composite liner at the facility. ERAC found this condition to be lawful and reasonable because it complies with both former and current state laws. Condition 7: WIN Waste is required to contain all litter at the facility so that it is not "blown into or deposited on property" not owned by WIN Waste. It was found that this condition is unlawful because "it requires WIN to contain all litter rather than employ all reasonable measures to contain litter" and that the condition is "more stringent than the requirements of Ohio's solid waste regulations." Condition 8: WIN Waste cannot apply water to the waste in rail cars in "quantities that result in the leakage of water other liquid from the rail cars." It also requires that 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" for the waste to be lawfully disposed at a wastewater facility. The commission finds the first sentence of the condition to be unlawful because it is not "appropriate to ensure compliance" with state law and is unlawful under a different state law. Condition 9: This condition requires WIN Waste to employ measures to prevent litter from being blown off or escaping from the rail cars. The commission found condition 9 to be lawful and reasonable as it complies with state law. Condition 10: WIN Waste is required to undertake actions necessary to correct ponding, erosion or leachate outbreaks within three hours. The condition was found to be lawful because it is consistent with state laws. Condition 11: Condition 11 has four requirements. The first is that rail cars entering WIN Waste must be watertight or covered with an impermeable and watertight cover. The second is that WIN must conduct daily inspections for leaks and spills. The third is that WIN must immediately contain and remediate any leaks and spills discovered during the inspection. The last requirement is that WIN must maintain a log of daily inspections. ERAC found the first component of the condition to be unlawful because it does not comply with state law and that state law does not grant the health district "unlimited authority" to impose conditions related to water pollution. Condition 16: This condition was only on the 2023 operating license. It required that WIN "implement all recommendations in the letter dated April 7, 2023, from Mallorey Smith of Ohio EPA to David Follett" within 60 days after the license was issued. The commission found this condition to be moot as WIN had already complied with the recommendations in the letter. Conditions 12 – 15 (2023 condition)/17 – 21 (2024 condition): These conditions require WIN to submit certain reports related to the company's National Pollutant Discharge Elimination System permit to the health district. The conditions were found unlawful because state law does not grant the health district unlimited authority to regulate water pollution. Condition 22 (2023 condition)/21 (2024 condition): WIN must prevent dust from the facility which includes its rail car unloading area, roads and soil borrow pits from entering property not owned by WIN in "such a manner or in such amounts as to endanger the health, safety or welfare of the public or cause unreasonable injury or damage to property." The commission found the condition to be unlawful because it does not follow state law. Condition 23 (2023 license)/22 (2024 condition): WIN is required to report annually to the health district both the quantity of waste received and the amount of landfill space used at the facility each year. The commission finds this to be lawful because the condition addresses subjects in state law. Condition 24 (2023 license)/23 (2024 condition): WIN is required to grant the health district's inspectors access to the facility to determine compliance with "the license, the consent order, (state law) and the rules and permits of those laws and to protect public health and safety and the environment." The commission found that the condition is lawful and reasonable when authorizing the inspectors access to the facility to verify compliance with WIN's license, certain state laws and solid waste provisions in the consent order. It found the health district's motion "not well taken" regarding inspector access to verify another state law and air pollution provisions in the consent order. Condition 25 (2023 condition)/24 (2024 condition): WIN Waste must submit all license-mandated reports and notices to the health district by email. The commission found this condition to be lawful and reasonable to the extent the commission found "underlying notice and reporting requirements" lawful and reasonable. Two portions of the appeals also alleged violations of the state's Open Meetings Act. The commission found that it lacks jurisdiction over those complaints. WIN and Health District respond The following statement was provided to the A-T by Ben Nutter, community engagement and government affairs for WIN Waste: "WIN Waste Innovations is pleased with the Environmental Review Appeals Commission's (ERAC) Jan. 29, 2025, ruling that overwhelmingly supports our position and confirms that the Seneca County General Health District (SCGHD) has overstepped its authority in attempting to obstruct our operations. While the SCGHD has attempted to twist and warp the conclusions found by the Commission, the facts speak for themselves: ERAC struck down the majority of the SCGHD's conditions as unlawful, determined that the SCGHD has no authority over air and water regulations and is entitled to zero deference in interpreting Ohio's solid waste laws. Moreover, ERAC invalidated several conditions relating to rail cars, specifically ruling that the SCGHD could not require rail cars entering the facility to be covered or watertight. The Ohio Environmental Protection Agency (OEPA) enforces regulations and has consistently found WIN Waste in substantial compliance. We are pleased that our significant investment in the landfill has proven that our operations remain compliant and safe. This is a win for businesses' right to operate, regulatory fairness and Seneca County. Instead of continuing to waste resources on baseless litigation, we hope to move forward with the County and the Health District to prioritize the residents of Seneca County." The following statement from Seneca County Board of Health Vice President Robert Podach was issued via a press release by Erika Handru, health communications specialist for the Health District: "While we are disappointed with some parts of the judgment, we are pleased with ERAC's decisions pertaining to actions necessary to improve future compliance and the ability to regulate railcars present at the landfill. Railcars with considerable-sized holes have been identified at WIN Waste, which can leak polluted leachate into the environment. Seneca County Board of Health and Seneca County General Health District will continue to monitor the landfill to ensure the safety and health of nearby residents and the environment."