On Wednesday, July 2, 2010, Ohio Environmental Protection Agency (Ohio EPA) released a revised version of February 19, 2010 memo that describes Ohio EPA's approach to for addressing Best Available Technology (BAT) in light of the February 2, 2010, U.S. District Court ruling that prohibits Ohio EPA’s use of the less than 10 tpy BAT exemption until such time as the exemption is approved into the State Implementation Plan (SIP). Specifically, the memo addresses how the agency intends to treat permits that were already issued with the less than 10 tpy exemption. The February 19th memo had provided that renewal permits with the less than 10 tpy BAT exemption would be placed on hold until the agency determined how to treat permits for these sources. The revised memo provides that for existing permits with the less than 10 tpy BAT exemption, it will be required to add the case-by-case BAT determination if they come up for revision or renewal. This means that Title V renewals will trigger the need to administratively modify any Permits-to-Install (PTIs) with this exemption prior to issuing the Title V renewal. In most cases the Ohio EPA will perform the case-by-case BAT determination and modify the PTI when processing the Title V renewal; however, if the facility would like to propose their own case-by-case BAT determination, they should do so by submitting an administrative permit modification for the affected PTI along with the Title V renewal. Please note that the agency may issue a modified permit without providing warning to the permittee first. Thus, for facilities that wish to suggest the case-by-case BAT, they should inform the agency of this intention upon submittal of the Title V renewal.

The July memo also provides example bifurcation language which will be included in permits for sources that would otherwise have qualified for the less than 10 tpy exemption. The language provides that until Ohio’s State Implementation Plan (SIP) is approved, the requirement to satisfy BAT still exists as part of the federally-approved SIP for Ohio, but after the SIP approval the associated case-by-case BAT limits and/or control requirements no longer apply.

Other than revision or renewal, at this point, Ohio EPA does not believe that the court ruling requires that they reissue all permits that have the less than 10 tpy exemption. To view the revised memo click here. To read more about this on the Ohio EPA's Senate Bill 265 web page please click here. If you have any questions concerning this article, please call Ellen Hewitt at 614-433-0733.