Proposed Revisions to Residual Waste Rules

In September 2005, Ohio EPA proposed draft revisions to Ohio’s residual waste rules adding wastes generated from the manufacture of “fired and unfired, glazed and unglazed, clay and shale products” (OAC Chapter 3745-30). These revisions were proposed to satisfy the Governor’s directive in his veto of an amendment excluding such material from the statutory definition of “solid waste” in the Budget Bill (House Bill 66). A public meeting on the proposed rules was held on January 4, 2006. As a result of the comments at the public hearing, Ohio EPA has decided to withdraw the proposed rules and instead will now work with Ohio manufacturers on an individual basis to address issues relating to these waste streams.

Modernizations of Ohio’s Air Quality Permitting Process
Senate Bill 265/House Bill 496

Many business trade groups have been actively supporting legislation to update Ohio’s air permitting process and program. The Ohio General Assembly is currently holding hearings on this legislation, Senate Bill 265 and companion House Bill 496, which is intended to make Ohio’s air permitting process more rational, transparent, consistent and predictable, bringing Ohio’s permitting process closer into alignment with the law and practices in other states. A summary of the key provisions of this legislation is as follows:

• If ambiguity exists as to whether an Ohio rule or permit condition is more stringent than required by the federal Clean Air Act (CAA), it shall be interpreted as not being more stringent.

• When adopting regulations that limit emissions, the director of the Ohio EPA must consider the overall cost of compliance with the regulations.

• Regarding Permits to Install (PTIs):

  • Within two years, the director must adopt a rule identifying the air pollutants regulated in Ohio beyond those regulated by the U.S. EPA under the federal CAA. The rule must state the scientific basis for regulating each additional pollutant.

  • Within one year, the director must adopt a rule specifying the pre-construction activities small air pollution sources may undertake prior to issuance of the permit, such as grading and clearing of land, construction of foundations and buildings, and installation of electrical and other utilities.

• Requires permits to incorporate the same monitoring, record keeping and reporting requirements specified in existing state and federal rules. Limits, in certain instances, the permit terms and conditions (i.e. operational restrictions) the director may impose on a source.

• Existing statutory language is replaced to better define the state’s best available technology (BAT) requirement. For PTIs issued after two years of the legislation’s effective date, the director may only impose BAT requirements that have been adopted in a rule. Where federal regulations impose technology requirements, the director may impose only those requirements. BAT may only be applied in certain ways, and a defined class of very small sources is exempt from BAT requirements.

• In a private nuisance action pertaining to an air contaminant source, it is an affirmative defense that the source is operated in compliance with applicable rules and permit conditions under Chapter 3704.

Proposed Revisions to Ohio EPA Rules

1. Adjudication and Administrative Rules (OAC 3745-47 and OAC 3745-49) - proposed revisions would require that more specific information be contained in verified complaints, among other things (mostly inconsequential revisions to administrative rules and adjudication hearing process).

2. Organic compounds emissions (OAC 3745-21-07) - excludes certain air contaminant sources with add-on controls from organic emissions limitations. This rule revision package was first introduced on April 19, 2004 and subsequently revised on June 28, 2005. A public hearing was held by the Ohio EPA on March 2, 2006 on the latest revision package, and the public comment period closed on March 2, 2006.

3. Control of VOC emissions from stationary sources (OAC 3745-21-09) - new control strategies have been developed to offset the increases in VOC and NOX emissions caused by the elimination of E-check programs in the Cincinnati and Dayton metro areas; this amended rule became effective March 12, 2006.

4. Permit-to-Install and Operate (PTIO) process (OAC 3745-31 and OAC 33745-35)- on March 8, 2006, Ohio EPA posted draft rules to merge the permit-to-install (PTI) and permit-to-operate (PTO) processes into one PTIO permit. These rules were originally released in draft form in 2003.

Revisions to U.S. EPA Rules

1. Proposed Rule National Ambient Air Quality Standards (NAAQS) for Particulate Matter - on January 17, 2006, the U.S. EPA issued proposed rules revising the acceptable levels of fine particulate matter (PM 2.5). The National Association of Manufacturers (NAM) has indicated that it will challenge the new proposed standard and has urged all manufacturers to file comments opposing the rules.

2. Proposed Rule to Implement Fine Particulate Matter (PM 2.5) NAAQS - on November 1, 2005, the U.S. EPA issued proposed rules to implement the new PM 2.5 standards and how states must revise their SIPs to meet the new standards.

3. “All Appropriate Inquiry” (AAI) Rule - on November 1, 2005, the U.S. EPA issued its final rule governing the scope of due diligence or “all appropriate inquiry” required to establish certain defenses to CERCLA, the federal cleanup statute. The rule, which becomes effective November 1, 2006, sets forth the requirements of a Phase I Environmental Site Assessment to satisfy the statute.