Back in 2006, while I was still at Ohio EPA, a major piece of state legislation worked its way through the General Assembly. Senate Bill 265 was developed by business groups in Ohio to address concerns with the structure and implementation of Ohio air pollution permitting programs. The main target to be fixed was the requirement for all non-federally regulated air sources to install Best Available technology (BAT).
Business groups believed that the BAT requirement put Ohio at a disadvantage to neighboring states by requiring a higher (and more costly) level of controls. Even more importantly, Ohio businesses felt that implementation of BAT at Ohio EPA lacked the certainty that businesses look for in regulatory programs.
Issues with BAT
The lack of certainty stemmed from the fact that BAT was determined on a case-by-case basis with each individual permit that was submitted to the Agency. Concerns were expressed that permit reviewers reached different conclusions as to what constituted BAT, sometimes for similar sources.
During the debate over BAT I was at the center of the storm working as Director of Ohio EPA. I had to testify numerous times before the Legislature. While I did not agree with every argument against BAT, I did agree that Ohio EPA was placing too much time and energy into regulating small sources of air pollution.
- FACT: Ohio has some 70,000 regulated air sources in the State whereas Michigan has less than 10,000
The huge difference in regulated sources is not attributable to there being less industry in Michigan, rather it was because Ohio regulated much smaller sources. For these reasons, Ohio EPA took a neutral position on the legislation.
Senate Bill 265 passed the Legislature and included two major components as an overhaul of the BAT requirement:
- It exempted all sources less than 10 tons per year from having to install BAT.
- For sources larger than 10 tpy, Ohio EPA could only require BAT by adopting rules specifying what exactly BAT would be for particular sources. The legislation gave Ohio EPA a three year window to adopt rules. The window is up this month (August 3, 2009)
Region 5 U.S. EPA Questions Ohio’s Ability to Modify BAT
In the ensuing three years since passage of S.B. 265 the course of change has been anything but certain. U.S. EPA has issued two letters to Ohio EPA. A June 2008 letter rejected Ohio EPA’s rule which would exempt sources smaller than 10 TPY because U.S. EPA said Ohio EPA failed to prove Ohio’s air pollution control strategy would not be weakened. On May 22, 2009, U.S. EPA sent a second letter expressing concern over the impending deadline of August 3, 2009 when Ohio would no longer be able to require BAT without source specific rules.
In discussing the letters with staff, Ohio EPA is confident it can work out with U.S. EPA the exemption of sources smaller than 10 TPY. However, it is much more difficult to envision a resolution of the issue pertaining to sources larger than 10 TPY.
As an indication of the messy situation that may emerge, U.S. EPA Region 5 could start issuing notices of violation (NOVs) to all sources that receive an air permit without BAT after August 3, 2009. In an attempt to avoid such a situation, Ohio EPA has discussed passing a rule that would require BAT on all sources larger than 10 tpy. The rule would specify BAT are those general characteristics set forth in S.B. 265.
- Work practices;
- Source design characteristics or design efficiency of applicable air contaminant control devices;
- Raw material specifications or throughput limitations averaged over a twelve-month rolling period;
- Monthly allowable emissions averaged over a twelve-month rolling period.
Sierra Club Sues Ohio for Failing to Enforce the Clean Air Act
It was not just Region 5 of U.S. EPA that was attacking changes to BAT. The Sierra Club filed suit against Ohio EPA over its rule exempting sources smaller than 10 tpy. The Sierra Club challenged Ohio EPA under the Clean Air Act”s citizen suit provisions.
In a very surprising decision, Magistrate Judge Abel found the citizen’s suit provisions of the Clean Air Act did not allow suits against a State for failing to to enforce the Clean Air Act. This decision will be appealed given its broader implications on the scope of the citizen suit provisions. Given the prior precedents it is unclear whether Judge Abel’s decision will be upheld.
We will have to wait and see how these major issues unfold over the next few months. However, there is no doubt that the situation that has emerged after three years is not at all what was envisions during passage of S.B. 265.
The complexities involved in trying to change a State’s air pollution control strategy on any significant scale are immense. Ohio’s BAT experience is a prime example. With 70,000 regulated sources the ability to determine the impact of the BAT changes is almost impossible. Making such a demonstration is the first step toward gaining U.S. EPA’s approval.
Unfortunately, after three years businesses may be left with less certainty than they had before the overhaul was attempted.
- Back to case-by-case BAT
- Region 5 scrutiny of Ohio EPA air permits
- Continuing litigation of changes to Ohio’s State Implementation Plan (SIP)
This is hardly the specificity that the business community envisioned during passage of S.B. 265. Business groups envisions rules that would specifically state that type of controls or work practices that must be utilized for different types of sources. The stop gap rule proposed by Ohio EPA looks more like case specific BAT.