Ohio EPA 2006 Enforcement Report

In August 2007, Ohio EPA released its annual Enforcement Report summarizing the enforcement activities of Ohio EPA and the Ohio Attorney General’s office and comparing those results against the “goals” set for 2006. Some of the highlights of the Report include:

• Ohio EPA issued 195 administrative enforcement orders in 2006, surpassing its goal of 153 orders.

• The Agency assessed $3,523,386 in administrative penalties, an increase of 21 percent from 2005.

• Civil penalties awarded in court judgments or secured in consent decrees by the Attorney General’s Office in 2006 totaled $2,652,940, plus the recovery of $4,472,811 in other response costs.

• The Division of Surface Water issued 50 orders, the highest of all divisions. These efforts resulted in administrative penalties of $616,907.

• The Division of Air Pollution Control secured $1,248,917 in administrative penalties, the highest penalty amount of all divisions, and issued 41 orders.

• The Division of Hazardous Waste Management issued 43 orders, an increase of 72 percent over 2005.

• The Division of Solid and Infectious Waste Management issued 32 orders, exceeding its goal of 20.

USEPA National Priorities for Enforcement and Compliance Assurance

On Oct. 12, 2007, USEPA announced its enforcement priorities for fiscal years 2008, 2009, and 2010. Some of these priorities are summarized as follows:

1. Clean Air Act: Air Toxics

   Reducing public exposure to toxic air emissions by ensuring compliance through directed monitoring and enforcement of the Maximum Achievable Control Technology (MACT) standards.

2. Clean Air Act/Prevention of Significant Deterioration and New Source Review

   Ensuring that New Source Review (NSR) and Prevention Of Significant Deterioration (PSD) requirements of the Clean Air Act (CAA) are implemented. Failure to comply with NSR/PSD requirements may lead to the inadequate control of emissions resulting in the release of thousands of tons of pollution to the air each year, particularly of nitrogen oxides, volatile organic compounds, and particulate matter.

3. Clean Water Act: Wet Weather

   Ensuring compliance with Clean Water Act requirements by addressing four (listed below) environmental challenges that are exacerbated by wet weather. Wet weather discharges contain bacteria, pathogens and other pollutants that can cause illnesses in humans, lead to water quality impairment, including beach and shellfish bed closures and harm our nation's water resources.

   1. Concentrated Animal Feeding Operations: The major environmental problem associated with CAFOs is the large volume of animal waste generated in concentrated areas.

   2. Combined Sewer Overflows: Combined sewer systems are designed to collect rainwater runoff, domestic sewage and industrial wastewater in the same pipe. During periods of rainfall or snow melt, the wastewater volume in a combined sewer system can exceed the capacity of the system or treatment plant.

   3. Sanitary Sewer Overflows: The main pollutants in raw sewage from SSOs are bacteria, pathogens, nutrients, untreated industrial wastes, toxic pollutants, such as oil and pesticides, and wastewater solids and debris.

   4. Storm Water: Storm water runoff from urban areas can include a variety of pollutants, such as sediment, bacteria, organic nutrients, hydrocarbons, metals, oil and grease.

4. Reducing Conservation and Recovery Act: Mineral Processing

   Reducing risk to health and the environment by achieving increased compliance rates throughout the mineral processing and mining sectors and by ensuring that harm is being appropriately addressed through compliance assistance and enforcement.

Air Permitting Issues

Rule-Based Approach for Determining BAT: Effective Aug. 3, 2009, Ohio EPA will shift from a case-by-case determination of BAT to a rule-based approach for all NAAQS pollutants. On Aug. 3, 2006, SB 256 was passed amending ORC 3704.03(T), which governs regulation of BAT. Ohio EPA notified interested parties on Oct. 17, 2007, and is forming a stakeholder group to participate in forming BAT rules for priority air pollution source categories. Ohio EPA has proposed to complete research and development for top BAT categories by September 2008, develop rule language for top BAT categories by November 2008, provide interested parties with proposed language by December 2008, and complete BAT rules by August 2009. Information regarding how to participate in this rulemaking process was distributed to the OMA Environment Committee members on Oct. 26, 2007.

2007 Title V Emissions Fee: The Title V Emissions Fee for calendar year 2007 is $41.96/ton.

Permit-to-Install and Operate (PTIO) Program (OAC 3745-31 and -35): On July 3, 2007, Ohio EPA released revised draft rules to implement a combined air permit-to-install (PTI) and permit-to-operate (PTO) program, which was approved in concept by former Director Jones in February 2004. Rather than requiring a source to apply for a PTI, which is issued with both installation and operation terms, and then apply for a PTO within a year of construction, the new program will require one application for both a PTI and PTO and both installation and operation requirements will be issued under one document. OMA and other business trade groups submitted comments on the proposed rules on Aug. 10, 2007, Aug. 24, 2007, and Nov. 14, 2007.

Air Regulations

Proposed Emission Reports 2008 Filing Extensions: Proposed Amendments have been submitted to the Joint Committee on Agency Rule Review (JCARR) for OAC 3745-24-03 “Deadlines for the Submission of Emission Reports” and OAC 3745-78-02 “Fee Emissions Reports” to minimize hardship related to implementation of the new electronic reporting system currently being developed by the Division of Air Pollution Control (DAPC). The proposed rule would change the current emission reporting due date for 2008 from April 15 to June 6, but would only apply to the year 2008. Submissions must occur through the new electronic system by midnight of June 6th. Public comments are due by Jan. 7, 2008, and a public hearing will be held at Ohio EPA offices on Jan. 7, 2008.

Toxic Chemical Release Reporting: Amendments to existing rules in OAC chapter 3745-100 have been proposed as a result of two new Toxic Release Inventory (TRI) rules finalized by USEPA in 2006. The proposed amendments will change reporting requirements for TRI facilities to include using North American Industry Classification (NAICS) Codes instead of Standard Industrial (SIC) Codes and using Form A certification statement in lieu of more detailed Form R. Public comments are being accepted through Dec. 10, 2007.

Clean Air Interstate Rules (CAIR) (OAC Chap. 3745-109): Effective September 21, 2007, Ohio’s CAIR rule establishes a cap-and-trade program for annual and seasonal emissions of nitrogen oxides and a discounting method for sulfur dioxide from EGUs and non-EGUs to achieve emissions reductions. This rule is intended to assist Ohio in complying with USEPA’s federal CAIR rule.

Emission Reduction Credit Bank (OAC Chap. 3745-111): On Sept. 13, 2007, OEPA issued draft language for chapter 3745-111 governing the “ERC Trade and Banking Program”. The purpose of the program is to create an official method for Ohio companies to register creditable ERC’s into an Ohio EPA “ERC Bank” for future internal use or to trade for the purpose of offsets. OMA and other trade groups submitted comments that were considered in the draft language. The public comment period ended Nov. 15, 2007.

Miscellaneous: The following draft rules have been covered in previous OMA Counsel Reports and will not be set forth again in detail, but updated information is supplied below:

1. Control of Emissions of Organic Materials from Stationary Sources (OAC 3745-21-07): Re-filed with JCARR on Nov. 20, 2007 after addressing comments made during the public comment period.

2. Nitrogen Oxides - Reasonable Available Control Technology (NOx RACT) Rules (OAC 3745-110): On Oct. 23, 2007 these rules were re-filed after most recent public comment and hearing period ending on June 8, 2007.

3. Particulate Matter Standards (OAC 3745-17): Proposed amended rules submitted to JCARR after public comment period ended and hearing occurred on Oct. 19, 2007.

4. Architectural and Industrial Maintenance (AIM) Coatings (OAC Chap. 3745-113): Effective Sept. 21, 2007, the Director adopted AIM Coating Standards to specifically assist with NAAQS attainment in the eight-county Cleveland/Akron area by regulating the use of AIM coatings, which are a source of VOCs.

5. “Consumer Products” Rule (OAC Chap. 3745-112): Effective Sept. 15, 2007, the Director adopted Consumer Products Rules to assist with NAAQS attainment by setting specific standards for the amount of VOCs used in consumer products sold in the State of Ohio.

Water Regulations

Permit to Install (OAC 3745-42-02): On Nov. 14, 2007, Ohio EPA filed proposed revisions addressing the applicability of permits to install and procedures. The proposed changes primarily relate to the enactment of ORC 6111.451, which exempts certain pre-construction and site preparation activities from needing a permit to install. Public comments are due by Dec. 18, 2007.

Water Quality Standards (OAC 3745-1): On Nov. 7, 2007, Ohio EPA issued proposed revisions to designation rules for beneficial use designations for specific bodies of water throughout the State. Public comments are due by Dec. 14, 2007.

Storm Water Rule (OAC 3745-39-04): On Oct. 22, 2007, Ohio EPA adopted this section governing NPDES requirements for industries and large and medium municipal separate storm sewer systems (MS4s). Under this section, discharges from industries and large and medium MS4s require a NPDES permit.