Significant Amendments to Ohio’s Air Pollution Control Law
On May 2, 2006, Governor Taft signed into law several significant amendments to Ohio's Air Pollution Control Law. These amendments will affect the permitting of many new and modified air contaminant sources. Overall, these amendments are beneficial to industry, and should provide more certainty and efficiency in the permitting process, however they may also result in less flexibility. The amendments are effective 90 days after signature by the Governor and filing with the Secretary of State, though in many instances they require rulemaking by Ohio EPA before their benefits are truly realized. In adopting the rules required by these amendments, as well as any other new air pollution control rules, the amendments require that Ohio EPA consider the overall cost of compliance with the rules.
Following are the main points of the new amendments:
- List of Air Contaminants: Currently, Ohio EPA has no defined list of regulated air contaminants and therefore regularly establishes emission limits for contaminants that go well beyond the federally-regulated criteria pollutants and hazardous air pollutants. The amendments require Ohio EPA to adopt a rule within two years to specify that a permit to install (PTI) is necessary only for a new or modified air contaminant source that emits: (1) an air contaminant or a precursor to an air contaminant for which a National Ambient Air Quality Standard (NAAQS) has been adopted; (2) an air contaminant for which the air contaminant source is regulated under the federal Clean Air Act; or (3) an air contaminant that presents or may present a threat of adverse human health or environmental effects, and is identified in the rule by chemical name and chemical abstract service number. The amendments will therefore serve to limit the scope of air contaminants that trigger PTI requirements.
- Air Toxics: The amendments formalize Ohio EPA's longstanding 1986 policy on regulation of air toxics, but with significant revisions. The amendments provide that modeling of the maximum hourly rate of emissions from a new or modified source must be conducted to determine the increase in the ground level concentration of the air toxic beyond the facility's boundary. If the modeling demonstrates that the concentration is greater than or equal to 80 percent but less than 100 percent of the maximum acceptable ground level concentration (MAGLC), Ohio EPA can include terms in the permit that requires the source to maintain emissions at the modeled level, expressed as allowable emissions per day. If the concentration is less than 80 percent of the MAGLC, then in lieu of an emission limit, the source must annually report to Ohio EPA whether the operation of the source is consistent with the information used in the modeling. The amendments also provide that the air toxic provisions do not apply to certain source categories, including parking lots, grain silos, grain dryers, emergency generators, gasoline dispensing operations, and air contaminant sources that emit air contaminants solely from the combustion of fossil fuels, or the emissions of wood dust, sand, glass dust, coal dust, silica, and grain dust.
- Beginning Actual Construction: Currently, the PTI rules prohibit beginning actual construction prior to receipt of a PTI, which is defined to expansively mean the initiation of physical on-site construction activities that are of a permanent nature. The amendments relax this requirement and provide more specificity by requiring Ohio EPA to adopt a rule within one year to identify activities that do not, by themselves, constitute beginning actual construction, such as the grading and clearing of land, on-site storage of portable parts and equipment, and the construction of foundations or buildings that do not themselves emit air contaminants. In addition, the rule must also allow specified activities prior to issuance of a PTI that do constitute the installation or modification of an air contaminant source, such as the installation of electrical and other utilities, as long as Ohio EPA has deemed the PTI application complete, and the owner or operator has notified Ohio EPA.
- Monitoring, Recordkeeping and Reporting Requirements: Title V permits in Ohio regularly include extensive monitoring, recordkeeping and reporting requirements, which in many instances is duplicative of existing regulatory requirements. The amendments prohibit Ohio EPA from adding new monitoring, recordkeeping and reporting requirements for a source where a monitoring, recordkeeping and reporting requirement is specified in an applicable federal or state regulation. In addition, Ohio EPA is prohibited from requiring an operational restriction that has the practical effect of increasing the stringency of an existing emission limit or standard. Therefore, there should be a reduction in certain monitoring, recordkeeping and reporting terms in PTIs and Title V operating permits.
- Best Available Technology: The amendments substantially change how Ohio EPA applies Best Available Technology (BAT) to new and modified sources. Beginning three years after the effective date, BAT cannot be more stringent than various specified federal standards. In addition, for air contaminants with a NAAQS, BAT can only be mandated to the extent required by the forthcoming rules. BAT established by rules can only be expressed in one of four ways: (1) work practices; (2) source design characteristics or design efficiency of control devices; (3) raw material specifications or throughput limitations averaged over a 12-month rolling period; or (4) monthly allowable emissions averaged over a 12-month rolling period. As of the effective date, BAT will not apply to air contaminant sources with a potential to emit, taking into account controls, of less than 10 tons per year.
If you have any questions on these amendments to the Air Pollution Control Law and how they may impact your operations, please contact Frost Brown Todd's Environmental Attorneys.