New Federal Court Ruling in Ohio Will Impact Businesses that Need Permits for Small Air Emission Sources

February 8, 2010

To the surprise of many, on Tuesday, February 2, 2010, Magistrate Judge Mark Abel reversed his earlier ruling, granted summary judgment to plaintiffs in Sierra Club v. Christopher Korleski, Case No. 2:08-CV-865 (U.S. D. Ct OH), and ordered Ohio EPA to stop allowing businesses with small air emission sources (less than 10 tons per year for criteria pollutants) to be exempt from a requirement to use "best available technology" ("BAT") to control such emissions. This court decision will impact not only sources less than 10 tons per year that are currently seeking a permit, but also sources already issued a permit in reliance on the exemption.  

What does this mean to the regulated business?  The 2006 BAT exemption was specifically aimed at small businesses, such as gas stations, and auto-body shops, as well as other small sources of air pollution at larger facilities. The exemption allowed those sources to avoid obtaining more expensive types of pollution control equipment. Depending on the outcome of any possible appeal, this court decision could impact numerous permittees that have relied upon the exemption:

In November 2006, in response to S.B. 265 passed by the Ohio General Assembly, Ohio EPA revised its BAT rules to incorporate an exemption from BAT for new or modified sources of air pollution if the source had the potential to emit less than 10 tons of a criteria pollutant per year.

Normally, in order to make such a change to its regulation, Ohio EPA is required to submit this proposed change to U.S. EPA for approval to Ohio's State Implementation Plan ("SIP"). In this case, Ohio EPA did not submit the change to the U.S. EPA until January 2008, and U.S. EPA indicated the submission was incomplete.

In September, 2008, the Sierra Club brought a lawsuit against Ohio EPA under the "Citizen Suit" provision of the Clean Air Act. The Complaint alleged that Ohio had adopted a standard less stringent than the Federal Clean Air Act, that the 10-ton exemption violated the Clean Air Act "anti-backsliding" provision; and that the Ohio EPA's failure to timely modify its SIP violated the "notice and opportunity to be heard" provision of the federal law. 

Initially, the Court denied a motion filed by the Sierra Club to strike down the exemption on the theory that under the Citizen Suit provision, such a lawsuit could only be brought against a party who was violating an emission standard under the Clean Air Act. Because the Sierra Club's lawsuit was directed at a state agency for failure to enforce a standard, the Court denied the relief sought by the Plaintiffs.

However, on reconsideration, the Court reversed its position and struck down the BAT exemption. The Plaintiffs requested the Court reconsider its decision based upon a case decided by the Sixth Circuit Court of Appeals in 1980, U.S. EPA v. Ohio Dept. of Highway Safety, 635 F.2d 1195. In that case, U.S. EPA successfully sued the Ohio Department of Highway Safety under the Clean Air Act for failure to withhold vehicle registration if the owner failed to demonstrate that the vehicle passed a tailpipe emission test. 

The District Court observed that the language which created a cause of action against "any person who is in violation of any requirement of a plan" is so similar that it cannot be distinguished by the Citizen Suit language of the Clean Air Act. As such, the Court granted the Sierra Club's request for relief, ruling that Ohio's exemption from BAT for new or modified sources of air pollution with potential to emit less than 10 tons violated the Clean Air Act because it was not approved into the SIP, and ordered the Director of Ohio EPA to implement and enforce the prior standard. Ohio EPA is currently evaluating the Court's decision and whether to file an appeal.  

Frank J. Reed, Jr. or any other attorney in the Environmental Practice Group at Frost Brown Todd LLC are available to assist you with determining the impact of this court decision on your facility, and with proactive steps you can take to effectively manage the addition of BAT terms to your permit.