On February 3rd Magistrate Judge Mark Able of the U.S. District Court in Columbus ruled that Ohio EPA (and really the Ohio General Assembly) violated that federal Clean Air Act by exempting small air pollution sources from stringent air pollution requirements. At issue was one major overhaul of Ohio's air regulation included in state legislation (Senate Bill 265) back in 2006. The law was designed to reduce the regulatory burden on small businesses.
The provision exempted small air pollution sources, those that emit less than 10 tons per year, from the requirement to install Best Available Control Technology (BAT). These sources would still be required to install air pollution control equipment. However, these small sources could avoid the more time consuming BAT permitting process.
I was Director of Ohio EPA when Senate Bill 265 was passed. The complaint regarding BAT was that it resulted in uncertain regulatory requirements for business. Upon receipt of an air permit for a small air pollution source, Ohio EPA would have to decide on a individual case-by-case basis which pollution controls were the most stringent for that particular source.
Businesses complained that the determinations as to what constituted BAT were inconsistent among Ohio EPA's five district offices. They also complained that businesses would not be able to plan ahead of time for the types of controls to install. Rather, business would be forced to wait until Ohio EPA concluded its evaluation.
To reduce the regulatory burden, Ohio businesses sought two major reforms regarding BAT in Senate Bill 265. The General Assembly passed the bill which included the following.
- Exempt all sources smaller than 10 tons from having to install BAT.
- After August 2009, Ohio EPA could only require BAT on larger sources (greater than 10 tons) through specific rulemaking for those types of sources.
The goal of reducing the regulatory burden was understandable. However, there is a long standing tenant in the federal Clean Air Act that restricts the ability of State's to change pollution control strategies to achieve federal clean air standards. This is referred to as "anti-backsliding."
- "Anti-Backsliding"- If you drop an air pollution requirement, you must make up for those lost reductions through alternative control strategies.
The best example of this perhaps is E-check, the automobile tail pipe test that used to be required in Cleveland, Dayton and Cincinnati. E-check was dropped in Dayton and Cincinnati after the 10 year contract expired. In order to drop the program, Ohio EPA was forced to make up the lost reductions through new air pollution control requirements. One new requirement used to replace E-check was the requirement to use less polluting gasoline (RVP gas) in the summer months in Dayton and Cincinnati.
Ohio EPA failed to adopt replacement strategies after the General Assembly dropped BAT on sources less than 10 tons. It is my understanding, that Ohio EPA never actually even quantified the lost reductions attributable to dropping the BAT requirement. U.S. EPA put Ohio EPA on notice this past summer that it failed to address the "anti-backsliding" issue.
Ohio EPA's failure to adopt new controls to replace BAT- a violation of the "anti-backsliding" principal- was one of the reasons Magistrate Abel struck down the provision as a violation of the Federal Clean Air Act. According to a recent newspaper article, Ohio EPA has decided to stop issuing permits for small sources while it figures out how to address the decision.
The agency said Wednesday it won't authorize any new or expanded emissions from small sources until the ramifications of the decision are understood. Spokeswoman Heidi Griesmer said the agency has temporarily suspended issuing permits.
"These are small sources of pollution," she said. "We will be complying with the judge's orders but we're right now looking through the decision and figuring out how to do that..."
Griesmer said it was impossible to determine immediately on Wednesday how many exemptions the state has granted to small source polluters. The agency estimates it will take two weeks to mine through its permit database and count them all, she said.
What a mess...
- The Agency will be forced to decide what to do with hundreds of permits it issued in the last three years in which BAT was not required. Does Ohio EPA go back and revoke those permits requiring businesses to install different air pollution controls?
- Does the Agency still try and comply with Legislative mandate to eliminate BAT for small sources? If so, what new air pollution control requirements will it adopt to replace BAT for sources less than 10 tons.
- What about permits already in the system that were about to be issued? No doubt the Agency will be forced to go back and determine BAT delaying these permits by many months.
This is just a sample of the issues facing EPA after S.B. 265. Next up- The second major reform in S.B. 265 that prevents Ohio EPA from requiring BAT on sources larger than 10 tons per year unless done through rulemaking.