Potential impacts of H.B. 197 on Ohio EPA regulated entities

H.B. 197, passed by the Ohio Senate and the Ohio House and now awaiting Governor DeWine’s signature, includes several provisions that may impact entities or communities regulated by Ohio EPA. First, Section 27 of H.B. 197 specifically authorizes Ohio EPA to waive penalties or late fees owed to Ohio EPA from outstanding loans or permits. Additionally, Section 27 authorizes the agency to suspend reporting requirements for solid waste facilities or water research recovery facilities. Notably, while these provisions grant discretion to Ohio EPA to take such actions, they do not mandate that the agency take such actions. Consequently, entities that are subject to such reporting requirements, penalties or late fees should be sure to communicate with Ohio EPA about the applicability of H.B. 197 to their operations.

Second, Section 22 of H.B. 197 tolls any statute of limitations for any administrative action or proceeding as provided under the Ohio Revised Code or the Ohio Administrative Code that is set to expire between March 9, 2020, and July 30, 2020. Section 22 further specifies that it applies retroactively to the date of the emergency declared by Executive Order 2020-01D, issued on March 9, 2020, and that it expires on the date the period of emergency ends or July 30, 2020, whichever is sooner. Significantly, this provision would appear to apply to administrative actions before the Ohio Environmental Review Appeals Commission (ERAC), which has jurisdiction to hear appeals of final actions taken by the director of Ohio EPA. Pursuant to R.C. 3745.04 and 3745.07, an appeal must be filed with ERAC within 30 days of notice or issuance of the director’s final action. Consequently, Section 22 of HB 197 appears to extend the time for appeals of final actions of the director of Ohio EPA to ERAC for any final action that takes place between February 8, 2020, through July 30, 2020 (or if sooner, when the period of emergency ends). Entities that are considering an appeal to ERAC of a final action of the director should be sure to consult an attorney to assess the impact of H.B. 197 on their situation and calculate the applicable statute of limitations.

An overview of all of the provisions within H.B. 197 can be found here.