COLUMBUS, Ohio (Legal Newsline) – The State of Ohio might not have missed its chance to punish a pipeline company over alleged pollution.
The Ohio Supreme Court ruled that way March 17 in Attorney General Dave Yost’s lawsuit against Rover Pipeline, which alleges the company and others discharged millions of gallons of drilling fluids into Ohio’s navigable waters.
But the trial court found Ohio failed to act on a Clean Water Act 401 certification request it received on Nov. 16, 2015, within one year – “Its failure to do so, resulted in a waiver of rights,” the trial judge wrote.
That particular certification request said any discharge into the state’s navigable waters would comply with federal law, but Ohio never acted on it.
The state Supreme Court agreed it Ohio can’t act on issues with the certification process but those “contours” have not been established by the trial court. So, the case will go back there to determine whether the violations alleged by Ohio can be prosecuted.
“We do not know the extent to which the claims asserted by the state fall within the four corners of the federal application,” Justice Terrance O’Donnell wrote.
“The trial court concluded that ‘the State of Ohio can prove no set of facts entitling it to its requested relief.’ We disagree. We consider it possible, even likely, that given the opportunity to present evidence, the state will be able to establish that certain of its allegations fall outside the contours of the Section 401 certification.”
One such issue to determine is whether the flow of stormwater is governed by federal and state environmental protection agencies, not the 401 certification.