Ohio EPA released its much anticipated policy document outlining how Best Available Technology (BAT) requirements should be addressed until source-specific BAT rules are issued as mandated by Senate Bill 265 (SB265). The policy document, which is contained in an Inter-Office Communication, was provided to attendees of yesterday's Permit Advisory Group (PAG) meeting held at Ohio EPA's Central Office. A copy of the policy document is included here. As detailed in our August 2009 eNews, SB265 amended the provisions of Ohio Revised Code (ORC) 3704.03(T) requiring Ohio EPA to forego its historical case-by-case BAT approach while issuing installation/modification permits for non-exempt sources (i.e., sources with post-controlled potential emissions >10 tpy) in favor of a rule-based BAT approach as of August 3, 2009. Because Ohio EPA was unable to issue any source-specific BAT rules by August 3, 2009, Ohio EPA has issued this new policy document to address U.S. EPA's position that issuing permits on or after August 3, 2009, without BAT limits would be considered "backsliding" under the Clean Air Act.

The policy outlines an eight-step process for Ohio EPA permit writers and reviewers to develop BAT limits for sources with post-controlled potential emissions >10 tpy as follows:

Step 1. Determine if the policy applies based on the date the source was installed/modified and the date the permit application was filed. Both dates must occur after August 3, 2009, for the policy to apply. This policy also does not apply to administrative modification applications.

Step 2. Review each source on a pollutant-by-pollutant basis to determine if a Maximum Achievable Control Technology (MACT), Best Available Control Technology (BACT), or Lowest Achievable Emission Rate (LAER) limits apply.  If, for the applicable pollutant, one or more of the above limits apply, then BAT shall be equivalent to the most stringent of those federal standards. If, for a specific pollutant, MACT/BACT/LAER limits do not apply, then proceed to Step 3.

Step 3. Review each source to determine if there are any Reasonably Available Control Technology (RACT) requirements for VOC or NOx that apply to the same size and type of source being considered (regardless of location of the source). If one or more RACT rules exist, then BAT shall be, at a minimum, equivalent to the most stringent of the RACT rules. The VOC RACT rules in question are contained in OAC 3745-21 and must have been effective as of January 1, 2006. The NOX RACT rule is contained in OAC 3745-110. If, for VOC and/or NOX, RACT limits do not apply, then proceed to Step 4.

Step 4. For any remaining pollutants for which BAT limits are not established in Steps 2 or 3, establish case-by-case BAT limits using past procedures, but utilize the format for the BAT limit as specified in SB265. Specifically, ORC 3704.03(T) specifies that BAT requirements can be expressed only in one of the following ways:

  • Work practices,
  • Source design characteristics or design efficiency of applicable air contaminant control devices,
  • Raw material specifications or throughput limitations averaged over a 12-month rolling period, or
  • Monthly allowable emissions averaged over a 12-month rolling period.

Ohio EPA has developed a prescriptive list of BAT limit formats (e.g., ppm, lb/MMBtu, lb/ton of raw material feed or production, gr/dscf, percent control, opacity, or tons per rolling, 12 month period) that it believes are "most appropriate" for numerous sources categories. These source categories include acid production, asphalt plants, batch processes, boilers, cement kilns, coke ovens, degreasers, combustion turbines, concrete batch plants, crematoriums, fugitive particulate sources, glass making operations, incinerators, industrial burners, industrial material dryers, material handling operations, storage piles, paint operations, fugitive equipment leaks, printing lines, roadways, shot blasters, steel/iron/other furnaces, smelters, and storage tanks. The Best Available Technology Emission Limit Format Table was also released at the PAG meeting and is included here.

Permit writers are directed to identify the BAT limit format for the source type that is most similar to the source in question and convert the case-by-case BAT limit to the format established in the table. The result is the how the BAT limit will be represented in the permit. Note that the policy document is clear that only one BAT limit may be included for each pollutant.

Step 5. Develop monitoring, record keeping, reporting, and testing requirements needed to demonstrate compliance with the BAT limit following standard procedures.

Step 6. Provide a copy of permit terms to the permittee and discuss proposed BAT limits and their options. These options include the following:

  • Option 1. Accept the proposed BAT limit,
  • Option 2. Propose a voluntary limit that is equivalent to BAT, which allows more flexibility with regards to the format of the limit, or
  • Option 3. Do not accept any type of BAT limit.

Ohio EPA has indicated they will notify the U.S. EPA of the affected permit that has been issued using Options 2 or 3. In addition, the policy indicates that Options 2 or 3 may open the source (or the Ohio EPA) up to enforcement action by U.S. EPA.

Step 7. Document the decision concerning the establishment of BAT limits under this policy.

Step 8. Process the permit per standard procedures.

When asked about the averaging times over which the BAT limits should be applied, Ohio EPA indicated that the formats included in the Best Available Technology Emission Limit Format Table should be considered ceiling-type limits that must be complied with at all times, unless specified otherwise. This is likely to be particularly troubling to Ohio industry given that SB265 was intended to replace the use of short-term (lb/hr) BAT limits with 12-month rolling average limits. Coupled with the threat of U.S. EPA enforcement if a source chooses Options 2 or 3 under Step 6 above, the policy appears to be a continuation of the case-by-case BAT approach that has historically been used by Ohio EPA.

Another change addressed by the policy is that projects relying on the use of add-on controls to reduce emissions to below major New Source Review (NSR) thresholds will now require synthetic minor permits. Thus, these permits will trigger the need for a public comment period. This has not been Ohio EPA's practice up to this point. The reason for the change is that the statute no longer allows the Ohio EPA to establish BAT limits as part of its federally enforceable NSR program. As such, permits for projects that utilize controls to reduce emissions to below major NSR levels must have a public comment period to ensure the controls are federally enforceable. Ultimately, this will mean significantly more installation/modification permits issued in Ohio will be subject to a 30-day public comment period.

Lastly, Ohio EPA has indicated that the versions of the policy and the Best Available Technology Emission Limit Format Table handed out at the PAG meeting and attached here will likely be revised as interested parties review and attempt to apply the guidance contained therein. Trinity is already aware of a few cross-referencing errors in the policy document and an error in the listing of BAT limit formats under crematoriums, which were intended for glass-making operations. As such, look for updates to the documents in the near future.

If you have any questions concerning the new BAT policy, please call Ellen Hewitt or Kirk Lowery at 614-433-0733.