This all started 5 years ago - when Dayton Power and Light along with a handful of energy companies challenged the state of Ohio. They said the state permits couldn’t use a standard set by the Ohio River Valley Sanitation Commission, known as ORSANCO, that limits the temperature of the companies’ waste discharges into the Ohio River. That’s because the state had never officially adopted the ORSANCO standards in Ohio law. And the companies won.
“It was a shock.”
Tom Fitzgerald is an ORSANCO commissioner. Each of the eight Ohio River states has two or three commissioners on the board. I caught up with Fitzgerald by phone, on his way to the Kentucky legislature where he lobbies on environmental issues. On ORSANCO, he’s considered a federal commissioner.
“I’m one of three federal commissioners that were appointed by President Obama. I guess I’m a holdover.”
ORSANCO is compact between the eight Ohio River states that dates by to 1948 - before the federal Clean Water Act. Before states had their own water quality standards.
Through the decades the experts at ORSANCO have created rules and standards for all kinds of discharges into the river - like specific limits on chemicals such as benzene, and mercury - to protect aquatic life and human health.
What came to light in that 2014 case was that - while some states in the compact, like Pennsylvania and Indiana, have adopted the ORSANCO standards to protect water quality. Others like Ohio and Illinois have not.
“Your technical people and your commissioners have been approving these standards for decades. Are you now telling me they’re suitable and appropriate for the river, but you’re not using them?”
FitzGerald says this disparity impacts water quality and creates an unfair playing field for industries in the different river states. For instance, states that have adopted ORSANCO regulations like Pennsylvania limit some mercury discharges into the River, while Illinois does not.
Toby Frevert is an ORSANCO commissioner from Illinois, and chair of its Pollution Control Standards Committee. His state has its own pollution control board, and he says ORSANCO has no legal authority.
“They don’t have the luxury of delegating that off to an interstate commission or anybody else. They have to adopt the regulations that the administrative agency is bound to operate by.”
Frevert says the states are required to work with the US EPA to meet federal water quality standards. And there’s no longer a need for ORSANCO as a pollution regulator.
“In my opinion, ORSANCO’s a great organization, I love it. But it really not designed or staffed to handle regulations in the modern era the way US EPA and the state environmental agencies are.”
But one analysis by ORSANCO found 188 instances where ORSANCO regulates pollution, and the U.S. EPA does not, or is less stringent.
Tom FitzGerald, the federal commissioner in Kentucky looks at the current rollback of federal environmental regulations, and says states that care about the health of the Ohio River should maintain ORSANCO protections.
“Even the Clean Water Act itself is in turmoil. This is not the time to signal a retreat from the maintenance of standards intended to protect the health of the public and the use of river.”
ORSANCO received well over 5000 public comments on its proposal, most of them opposed to eliminating the pollution control standards.
The Commission is scheduled to vote February 14 - but many expect it will be delayed, as the board considers revisions.