Ohio Environmental Law Blog : Ohio Environmental Lawyer & Attorney : Joseph Koncelik : Frantz Ward Law Firm : Environmental Regulation, Land Use, Compliance : Cleveland, Ohio

This week U.S. EPA finalized its long awaited rule making establishing air emission standards for industrial and commercial boilers.  The standards are to reduce emissions of hazardous air pollutants (HAPs) by requiring sources to install or meet of Maximum Achievable Control Technology (MACT).

Controversial Rulemaking Process Comes to an End

EPA proposed MACT standards in spring of 2010 which were intended to replace previous rules that had been vacated by the D.C. Court of Appeals.  The spring proposal was met with harsh criticism from business interests who argued the standards were based on incomplete or inaccurate facts.  The business community argued that the poorly supported standards would result in huge costs.  In response, businesses poured in thousands and thousands of comments and supplied data supporting their arguments.

Reaction to the New Standards

Generally, most recognize the final rules are a huge improvement over the Spring 2010 proposal.  By some estimates, the final rules will cost about $1.8 billion less per year than the rules that were proposed last spring. 

However, there is still concern that the standards don't provide needed flexibility.

“Despite the best efforts by the administration and [EPA], what we are left with is a rule that in spirit is a very positive development,” said Bob Cleaves, president and CEO of the Biomass Power Association. “I think a number of important changes were made. But I think it remains problematic.” (click here for more information on the Biomass Industry's reaction to boiler MACT rules)

Some environmental groups are complimenting  EPA's efforts to balance business concerns with protecting the environment.  Perhaps there is growing recognition that EPA's regulations are under assault and there is a need for more balanced proposals. (see, NY Times Article on Boiler MACT Rules) 

"It appears that EPA has addressed many of the industry complaints while still putting out standards that would bring significant public health benefits," said Frank O'Donnell, president of the advocacy group Clean Air Watch. "Let's hope that EPA stands its ground when industries argue for further changes. "

Some appear ready to conclude that this proposal shows the President Obama is listening to concerns regarding the price of EPA regulations and will scale back earlier proposals.  This seems to be perhaps overreaching.  It is more likely that the business community did an excellent job providing EPA good data to demonstrate their earlier proposal was flawed.  No doubt the pressure from the business community helped EPA to take a close look at that data.

Below is some general information regarding the requirements in the new rule.

Boilers Are Covered?

• Boilers that emit or have the potential to emit more than 10 tons per year (tpy) of a single HAP or more than 25 tpy of a combination of HAPs
• Boilers that burn coal, oil, or biomass, or non-waste materials.  It excludes boilers that burn solid waste.
• Different requirements apply to boilers classified as large boilers (10 million BTU per hour or greater) versus small boilers (less than 10 million BTU)
• HAPs include mercury, lead, dioxin, furans, formaldehyde and hydrochloric acid

What Requirements Apply?

The rule establishes standards for emissions of mercury, particulate matter (PM)
(as a surrogate for non-mercury metals), and carbon monoxide (CO) (as a surrogate for
organic air toxics)

New Boilers

• Coal-fired boilers, with heat input equal or greater than 10 million Btu per hour, are required to meet emission limits for mercury, PM, and CO.
• Biomass and oil-fired boilers, with heat input equal or greater than 10 million Btu per
  hour, must meet emission limits for PM
•  Boilers with heat input less than 10 million Btu per hour must perform a boiler tuneup
  every two years.

Existing Boilers

• Coal-fired boilers, with heat input equal or greater than 10 million Btu per hour, are required to meet emission limits for mercury and CO.
• Biomass boilers, oil-fired boilers, and small coal-fired boilers are not required to meet
  emission limits. They are required to meet a work practice standard or a management
  practice by performing a boiler tune-up every 2 years.
• All area source facilities with large boilers are required to conduct an energy
  assessment to identify cost-effective energy conservation measures.

Reaction to Revised Rules

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The Clean Ohio program has released a new interactive tool called the"Project Location and Information Map" which provides an interesting overview of brownfield and greenfield projects that have received grant funding under the program. 

You can search by type of grant funds for all projects across Ohio.  You can also search by specific county and see all the projects in that area that received funding.

The project information is pretty limited once you select a specific site.  It basically has a picture of the site and a description of the type of funding received (the picture above was taken from interactive map).  There does not appear to be any details on the type of development anticipated or description of clean up issues encountered.

The State is inviting the project developers to provide more description, so perhaps there is an opportunity to give more detail.  It would be helpful if the description on the map at least identified the parties involved on the project.  

Due to the limited information, the map does not have much utility other than highlighting the large number of projects that have received grant funding across the State. However, you do have other options to gain more information about projects listed on the map. 

Perhaps you are interested in a property in close proximity to a project that received funding.  You always have the option of making a public record request to find out more details on a specific project.  Under public records law you are entitled to see all the documents generated regarding the investigation and clean up associated with a project.

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Rumors had been swirling that there would possibly be a merger between Ohio EPA and the Ohio Department of Natural Resources (ODNR) in an effort to consolidate programs and reduce staff.  Such a proposal was debated in the prior Ohio Legislature as part of larger plan to reduce the total number of State Agencies.  Its possible that as budget discussion progress that proposal will see new life.

While State Agency mergers remain a possibility, Ohio EPA has already started to reorganize internally. Without an official announcement, word is that the Division of Hazardous Waste Management (DHWM) will be broken apart and portions merged with the Division of Solid and Infectious Waste Management (DSIWM) and the Division of Emergency and Remedial Response (DERR). 

The solid and hazardous waste permit writers and inspectors will be working together under one newly formed Division.  The DHWM clean up staff (RCRA closure and Corrective Actions) will be merged with the DERR staff.

With the dwindling number of permitted hazardous waste (RCRA) facilities, such a reorganization makes practical sense.  This will provide the Agency the opportunity to review work loads and reallocate staff to meet current needs.

Perhaps the most interesting portion of the reorganization to watch will be the merger of the DHWM clean up staff with DERR.  The line between Voluntary Action Program (VAP) clean ups and regulatory clean up in other programs has become increasingly thin.  For example, RCRA Corrective Actions can now be completed by entering the VAP program.

The administrative costs and clean up standards for standard RCRA closures are still much more onerous than VAP clean ups.  Will the merger of this staff lead to a reassessment of how clean ups are conducted?  While federal regulatory requirements still limit the State's flexibility to some degree, there remains the possibility for more common sense and consistent approaches to clean up.

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LexisNexis Environmental Law & Climate Change Community is honoring a select group of blogs that set the online standard for our practice area. I’m pleased to notify you that Ohio Environmenal Law Blog is one of the nominated candidates for the LexisNexis Top 50 Environmental Law & Climate Change Blogs for 2011. http://www.lexisnexis.com/COMMUNITY/ENVIRONMENTAL-CLIMATECHANGELAW/blogs/topblogs/archive/2011/01/24/LexisNexis-Top-50-Blogs-for-Environmental-Law-_2600_-Climate-Change-2011-Nominations.aspx.

I received an e-mail from Lexis/Nexis today about this blog's nomination as a Top 50 Environmental Law & Climate Change blog for 2011.  I previously provided a link to the other nominated blogs which contain high quality content.  As a reader of this blog, if you would like to provide comments to LexisNexis on this or any other nominated blog, see the message and link below. 

Dear Joe:

For the first time, the

 We are asking our online community for their input on our list of nominees, and also welcome comments from your readers. If you’d like to request their support for your nomination, please ask them to comment on ELCCC’s announcement post at the following link:

The deadline for comments is 28 February 2011.

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The Governor's top legislative priority is the privatization of the State's economic development functions.  House Bill 1, known as "JobsOhio", has been introduced and a vote in the Senate may come yet this week. 

The Ohio Department of Development (ODOD) plays a critical role in the administration of the Clean Ohio program which provides millions in grants for brownfield redevelopment.  The Department's current role includes the following:

• Review for Clean Ohio grant applications for completeness;
• With the assistance of Ohio EPA, makes eligibility determinations;
• Meets with applicants to discuss projects (known as "PRAMs");
• Selects which projects will receive Clean Ohio Assistance Fund (COAF) funding which has recently become Phase II assessment grants;
• Assists the Clean Ohio Council in evaluating projects for Clean Ohio Revitalization Fund (CORF) funding for clean up; and
• Determines which projects can be reimbursed with grant funds.

On the brownfield projects I work on, the ODOD personnel are the key point of contact when evaluating projects and through out implementation of the project.  More than once, ODOD personnel have made absolutely critical decisions that impact the viability of projects or have made significant reimbursement decisions that cost  developers hundreds of thousands of dollars. 

With the privatization of economic development functions, ODOD's key role will almost certainly be absorbed by another state agency.  Most likely, Ohio EPA will pick up these functions, but its possible the functions could stay with the newly created non-profit corporate entity.

How far away are we from that transition? House Bill 1 is only the first step in privatization of the Ohio Department of Development and the associated transfer of existing functions to other state agencies.  The bill basically establishes the non-profit corporation to be known as JobsOhio.  The Bill then calls for a six month consultation process to evaluate transition of the other functions of ODOD. 

Here is the relevant section of H.B. 1:

Sec. 187.05. The director of development, as soon as
practical after the effective date of this section, shall, in
consultation with the governor, evaluate all powers, functions,
and duties of the department. Within six months after that
effective date, the director shall submit a report to the general
assembly recommending statutory changes necessary to improve the
functioning and efficiency of the department and to transfer
specified powers, functions, and duties of the department to other
existing agencies of the state or to JobsOhio, or eliminate
specified powers, functions, or duties. The recommendations shall
be submitted in writing to the speaker and minority leader of the
house of representatives and the president and minority leader of
the senate.

After submitting the report, the director, in consultation
with the governor, shall continue to evaluate the department and
make additional recommendations on such matters to the general
assembly.

We are probably at least a year away from seeing any of ODOD's responsibilities transition to other agencies or to the JobsOhio entity.  For now it will be the status quo.  But in the near future a crucial decision will be made as to who will administer ODOD's critical Clean Ohio responsibilities.

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I'm taking a break from the typical focus of my posts to address an article that just makes me crazy.  Forbes has come out with its annual "Most Miserable City List."  Last year Forbes ranked Cleveland No.1 and this year it dropped to No.10.  This is how Forbes described this year's Cleveland ranking:

Last year's most miserable city, Cleveland, fell back to No. 10 this year despite the stomach punch delivered by LeBron James when he announced his exit from Cleveland on national television last summer. Cleveland's unemployment rate rose slightly in 2010 to an average of 9.3%, but the city's unemployment rank improved relative to other cities, thanks to soaring job losses across the U.S. Cleveland benefited from a housing market that never overheated and therefore hasn't crashed as much as many other metros. Yet Cleveland was the only city to rank in the bottom half of each of the 10 categories we considered.

First of all, I thought Forbes was considered a business magazine.  Since when does a pop culture development like a star basketball player leaving get factored its analysis?  But beyond this simple fact, Forbes has no clue as to what is happening in Cleveland right now.

There is a building boom in downtown Cleveland with over $2 billion dollars worth of construction and this construction boom is occurring during one of the toughest economies.  This new construction includes the Medical Mart and New Convention Center, Inner Belt Bridge Project, Flats East Bank Project, Aquarium, and Casino. 

The Cleveland Plain Dealer, a paper in my mind notorious for dwelling on negatives, had an editorial this weekend recognizing the positive developments in the Greater Cleveland region.  Those included:

• With evidence growing that manufacturing is actually leading the nation's economic recovery, unemployment in Greater Cleveland has been running a full percentage point below the national average.

• Monster.com just named Cleveland the seventh-hottest job market in the country.

• Venture capitalists poured $221 million into this region last year -- double the pace of such investments in 2009.

• The Milken Institute, a think tank that has consistently ranked Ohio among the least fertile states for innovation, just cited the state as its most improved for entrepreneurial activity.
 

Want even more indications of Cleveland's positive direction?  From reforming local government to visionary new projects, Cleveland is heading in the right direction.

• Travel & Leisure Magazine just name Cleveland one of the most visionary cities in the world for its urban farming efforts, including its mall to greenhouse transformation.  Only two other U.S. cities were even on the list.
• Entrepreneur magazine recently ranked Northeast Ohio as one of the hottest entrepreneurial regions.
• There is an on-going $350 million dollar renovation of the Cleveland Museum of Art transforming it into a showplace museum.
• Government corruption is part of the criteria Forbes reviews, but it failed to consider recent developments.  Most cities do little about corruption issues and just try and get by.  No doubt Cleveland had its issues, but in November, local voters passed a ballot measure which completely reforms local County government. 
• Cleveland has an organized and progressive sustainability movement which is serving as a model to other Cities-  Sustainable Cleveland 2019.  Partially in recognition for these efforts, a 2008 ranking had Cleveland jumping 12 spaces to the 16th most sustainable City in the U.S. and a lot has happened since then.
• According to U.S. News and World Report, Northeast Ohio hospitals ranked in the top 10 of 11 specialty areas, including heart, pediatrics and urology.
• TripAdvisor.com recently cited Cleveland as one of the top 10 most underrated destinations in the world
• Cost of Living- A family of four can enjoy amenities and attractions in Northeast Ohio, comparable to any other major city or region in the nation, and save as much as 35%.
• Site Selection Magazine named Ohio, for the fourth year in a row, as having the most new or expanded private-sector capital projects edging out Texas for the top spot.

One of the biggest issues facing Cleveland is its own inferiority complex.  Articles likes those written by Forbes don't help to lift the region. To combat this issue, leaders organized an on-going branding effort to accentuate all the positive development in the Greater Cleveland region- Clevelandplus. (Check it out for the latest positive developments).

Before a magazine like Forbes creates a rankings that tags a city with a negative image, perhaps it could spend a little more time gathering information.  No doubt it overlooked all the recent developments I have highlighted.   

Maybe Forbes should issue a correction- Cleveland, one of the top 10 most improved Cities.  Just like Clevelanders, instead of dwelling on negatives, perhaps Forbes can start recognizing positive developments in its publication.

(Photo:  Innerbelt Bridge Design- ODOT webpage)

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The AP is reporting that the Republican controlled House is expected to introduce legislation shortly that will strip all authority from U.S. EPA to regulate greenhouse gases (GHGs) under its existing authority in the Clean Air Act.  This would specifically target the EPA's endangerment finding and could possibly go as far as saying GHGs are not a "pollutant" under the Clean Air Act.

The soon introduced legislation will be very aggressive according to a recent AP article:

Officials said the House bill, which was to be offered Wednesday, would nullify all of the steps the EPA has taken to date on the issue, including a finding that greenhouse gases endanger public health.

In addition, it seeks to strip the agency of its authority to use the law in any future attempts to crack down on the emissions from factories, utilities and other stationary sources.

The House bill joins similar efforts in the Senate:

Republicans are attempting similar restrictions in the Senate, where the political situation is more complicated. Sen. John Barrasso of Wyoming has introduced a more sweeping measure than the one House Republicans are drafting. At the same time, Sen. Jay Rockefeller, D-W.Va., has proposed a two-year moratorium on EPA attempts to regulate greenhouse gases, a plan that already has attracted a handful of Democratic supporters.

It will be very difficult to pass through the Senate the aggressive measures that will likely be included in the House bill.  Only the proposed 2 year delay of implementation is likely to pass the Senate.  Even if something does pass, the legislative efforts appear futile based on comments in an article appearing in Politico from Lisa Jackson, U.S. EPA Administrator:

“What has been said from the White House is that the president’s advisers would advise him to veto any legislation that passed that would take away EPA’s greenhouse gas authority,” Jackson told reporters on Capitol Hill. “Nothing has changed.”

Any Room for Real Compromise?

During the State of the Union, President Obama announced a plan to mandate 80% of the nation's electricity from renewable sources by 2035.  The President signaled a willingness to consider an expansive definition of "renewable energy" that would include nuclear, clean coal and natural gas.  The President suggested financing energy projects by slashing $4 billion annually in government subsidies to oil and gas companies.

Many see the President's proposal of a national renewable energy standard as a switch in strategy now that cap and trade is dead.  While there was no mention of climate change in the President's speech, the renewable standard is seen as, perhaps, less distasteful means of reducing GHGs.  More importantly, it has some possibility of getting a few Republicans on board.

Republicans and the U.S. Chamber seem cool to the President's plan.  However, reality is that U.S. EPA has moved forward and will continue to implement new GHG regulations under its existing authority.  The convoluted and complex rules need to prevented. (See, prior post Regulation under CAA "Absurd")

Perhaps a bill implementing a renewable energy standard offers a mechanism in which the Administration would find palatable a reduction or prohibition on EPA's GHG regulatory authority.  Before dismissing the President's plan, similar to the tax deal, Republicans should see what they could get as part of a broader compromise.  Because without compromise, EPA will continue to issue GHG regulations through 2012.

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Back in 2007, U.S. EPA was sued by some States and environmental groups who challenged the legitimacy of the ozone standard -75 parts per billion (ppb)- selected by the Bush Administration.  In 2009, the Obama Administration announced that it was reconsidering the 75 ppb standard.

U.S. EPA is likely to revise the standard to somewhere between 60 ppb to 70 ppb. (See the map for the implications of a revised standard on the Midwest)

Back in September 16, 2009, U.S. EPA filed a pleading informing the Court that it would finalize the new standard by August 31, 2010. 

In curious timing, the U.S. EPA announced it needed two more months and could not finalize the ozone standard until late October. 

Some questioned, including me, whether the delay was a calculated move to make the controversial announcement after the election. (See, prior post)  Now U.S. EPA has announced, once again, it would delay the finalization of the standard.  Only this time the delay would be nearly six months.

On December 8, 2010, U.S. EPA filed a Motion declaring it would need until the July 29, 2011 to complete its review of the ozone standard.  The U.S. EPA said it needed to consult its science advisory board (Clean Air Scientific Advisory Committee- CASAC) due to the significant number of comments and new information it received. 

In the motion, U.S. EPA sets forth its process for finalizing the ozone standard.

1. U.S. EPA will develop a set of questions for CASAC for its review asking the Committee to review scientific evidence and other information before U.S. EPA
2. CASAC will hold public meetings to discuss its response to the questions;
3. CASAC will provide additional written advice to U.S. EPA regarding the new ozone standard; and
4. New public comment period to provide comments on CASAC review and to U.S. EPA

President's Executive Order

On January 18th, President Obama's issued an executive order requiring all federal agencies to evaluate the economic impacts on business of its rulemakings. The executive order directs federal agencies developing regulations to “use the best available techniques to quantify anticipated present and future benefits and costs as accurately as possible.”  At its core, the order is intended to force federal agencies to provide greater attention to the potential costs and burden of new regulations on businesses.  

While the motion delaying finalization of the ozone standard was filed prior to the executive order, U.S. EPA's actions are consistent with the Obama Administration's overall goal of giving greater scrutiny to the impact on economic growth from regulation.  Only problem is that the U.S. Supreme Court has already ruled that the Clean Air Act prohibits U.S. EPA from considering costs and economic impact when setting the ozone standard. 

U.S. Supreme Court determined in Whitman v American Trucking that U.S. EPA could not consider costs in setting the standard. The Court held EPA can only consider costs if its expressly granted that authority by Congress:

Section 109(b) [of the Clean Air Act] does not permit the Administrator to consider implementation costs in setting NAAQS. Because the CAA often expressly grants the EPA the authority to consider implementation costs, a provision for costs will not be inferred from its ambiguous provisions.

Rather than continuing to manipulate the process by constantly delaying the final ozone standard, perhaps the Administration needs to realize that ozone standards and the National Ambient Air Quality Standards (NAAQS) have huge impacts on the economy. 

Some sort of cost-benefit analysis that allows considerations of costs in setting standards just makes sense. We can't continue to ignore the impacts of new controls and the Clean Air Act's restrictions on economic growth imposed on areas that do no meet the standard. 

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