Today, Ohio EPA released its response to the federal court ruling which struck down the exemption from BAT for sources that emit less than 10 tons per year. The memo makes clear that it supplants the February 2nd e-mail instructing staff to not issue air permits until the ruling was evaluated.
There are few surprises in the memo. It basically states sources will have to go back to case-by-case BAT evaluations. This was what Senate Bill 265 was designed to eliminate. Therefore, three years after passage of the bill the status quo remains.
The memo also says Ohio EPA has supplied some information to U.S. EPA to support the rule exempting sources less than 10 tons per year. However, U.S. EPA requested additional information which it could not supply due to staffing shortages. The memo contains no discussion of what has been supplied or what additional information is going to be collected.
The memo also points out that there may be instances when sources less than 10 tons per year have more stringent regulations than sources greater than 10 tons per year. I don’t anyone anticipated that outcome three years after passage of Senate Bill 265.
Also, notably absent is any discussion of the status of air permits that were issued over the last three years without BAT in accordance with the exemption. The memo only states that Ohio EPA has yet to make a decision as whether to go back and re-issue these permits. Businesses holding these permits received no word as to whether they are still considered valid or subject to potential federal enforcement.