To BAT or Not to BAT?



August 3, 2009, has come and gone!  Why is this date so important to Ohio permitting and Best Available Technology (BAT) requirements?  Back in August 3, 2006, Ohio Revised Code (ORC) 3704.03(T) was amended by Senate Bill 265 (SB265).  As a result of these amendments, Ohio EPA is required to use a rule-based BAT approach, as opposed to case-by-case BAT determinations starting with any permit to install (PTI) or permit to install and operate (PTIO) applications submitted after August 3, 2009, for large sources (i.e., sources with post-controlled potential emissions >10 tpy). 

In other words, according to the ORC, Ohio EPA will only be able to apply BAT to a new or modified sources based on an underlying rule that establishes BAT for specific source categories included in the rule.  If your source is not included in one of the listed source categories, BAT does not apply to you!

But, as of today, Ohio EPA has not issued any new prescriptive BAT rules yet.  What does this mean?  Ohio EPA is still working on the answer to this million dollar question.  According to Mr. Mike Hopkins, Assistance Chief of Permitting at Ohio EPA at the July MEC Ohio Permitting Conference, Ohio EPA has been working diligently on the prescriptive BAT rules to be listed in Ohio Administrative Code (OAC) Chapter 22, and currently has developed BAT for a list of approximately 25 general source categories (e.g., chemical manufacturing, surface coating) which include approximately 150 different source types (e.g., natural gas fired boilers, paint spray booths).

Note that the rule-based BAT limits are likely to be different than the pound per hour (lb/hr) BAT limits that the Ohio EPA has relied on for years.  This change is due to the language of ORC 3704.03(T), which states that the rule-based 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;
  • Monthly allowable emissions averaged over a 12-month rolling period

As a result, there will be no more BAT-based hourly emission limits included in PTIs and PTIOs issued after the BAT rules become effective!

In the meantime, Ohio EPA is developing guidance (e.g., Engineering Guide) to assist with permitting between now and when these rules are finalized.  What happens to a PTI/PTIO application submitted between now and then?  This will probably be determined on a case-by-case basis.  Be careful – this may slow down the permitting process!

Ohio EPA has several options, all of which contradict each other:

  1. Assume that BAT does not apply to sources with >10 tpy emissions, since no rules were developed prior to August 3, 2009 (i.e., comply with the controversial SB265 amendments as written);
  2. Comply with the current State Implementation Plan (SIP) since U.S. EPA Region V has not yet approved any of the SB265 changes (meaning BAT applies to all sources obtaining a PTI, even small (<10 tpy) sources); or
  3. Comply with the current OAC rules, which only includes the SB265 language regarding small (<10 tpy) sources (meaning that BAT applies to all large (>10 tpy) sources).

Finally, Ohio EPA has started to incorporate one BAT backstop provision for fugitive PM and VOC emitting sources.  On April 24, 2009, Ohio EPA released draft amendments to OAC 3745-31 in accordance with U.S. EPA’s PM2.5 implementation rule.  With these updates, OEPA included a Reasonable Available Control Technology (RACT) backstop for BAT.  The draft rules indicate that BAT must be, at a minimum, equivalent to RACT for VOC (per OAC 3745-21-09) and fugitive PM (per OAC 3745-17-08) regardless of a source’s location.

If you have any questions concerning the BAT rule changes, please call Amanda Adams at 614-433-0733.