3745-31-05 Criteria for decision by the director.

 

 

 

Rule Summary and Fiscal Analysis (Part A)

 

Ohio Environmental Protection Agency

Agency Name

 

Division of Air Pollution Control (DAPC)        Paul J. Braun

Division                                                                  Contact

 

50 West Town Street, Suite 700 PO Box 1049 Columbus OH 43216-1049

614-644-2270        614-644-3681

Agency Mailing Address (Plus Zip)                                       Phone                     Fax

[e-mail]

Email

3745-31-05

Rule Number

AMENDMENT

TYPE of rule filing

Rule Title/Tag Line              Criteria for decision by the director.

RULE SUMMARY

1.  Is the rule being filed for five year review (FYR)? Yes

2.  Are you proposing this rule as a result of recent legislation? No

3.  Statute prescribing the procedure in accordance with the agency is required to adopt the rule: 119.03

4.  Statute(s) authorizing agency to adopt the rule: 3704.03(F), 3704.03(G), 3704.03(T)

5.  Statute(s) the rule, as filed, amplifies or implements: 3704.03(T), 3704.03(G), 3704.03(F), 3704.03(A)

6.  State the reason(s) for proposing (i.e., why are you filing,) this rule:

The rule is being proposed to adopt amendments made after a review to fulfill the requirements of ORC 106.03 and 106.031.

7.  If the rule is an AMENDMENT, then summarize the changes and the content of the proposed rule; If the rule type is RESCISSION, NEW or NO CHANGE,

then summarize the content of the rule:

The existing rule:

1.  Identifies the criteria used by the director in issuing a PTI, for example, compliance with federal requirements, best available technology, and attainment with air quality standards.

2.  Provides language for special terms and conditions in permits, often referred to as "synthetic minor" limits.

3.  Provides a mechanism for requesting, and the criteria for approving, express PTI processing and relocation of portable sources.

4.  A 180-day time frame for issuing PTIs.

5.  Language for coordinating permits among the different agencies at Ohio EPA.

In addition to minor changes to address grammar and typos, Ohio EPA made the following changes for this rulemaking:

Paragraph (A)(3)(iv) was added to clarify that BAT is not required for sources subject to plant-wide applicability limits approved by the director.

Paragraph (A)(3)(f) was added to incorporate VOC BAT requirements consistent with the VOC RACT requirements specified in OAC rule 3745-21-09, 3745-21-11 and 3745-21-16. Amending this rule is in response to Ohio EPA's obligation to legislation promulgated under Senate Bill 265. Ohio EPA is also referencing the RACT requirements for fugitive dust sources as being equivalent to BAT for any new fugitive dust source as part of the Senate Bill 265 obligation to provide for BAT in rules in the future.

Paragraph (F)(1) was amended to clarify language regarding special terms and conditions for voluntary limits on allowable emissions. As currently written, the paragraph does not explicitly provide the authority for the director to issue a permit with such restrictions, when requested by an applicant. This amendment will clarify the authority to do so.

Paragraph (H) has been removed from OAC rule 3745-31-05 and moved to OAC rule 3745-31-03.

8.  If the rule incorporates a text or other material by reference and the agency claims the incorporation by reference is exempt from compliance with sections

121.71 to 121.74 of the Revised Code because the text or other material is generally available to persons who reasonably can be expected to be affected by the rule, provide an explanation of how the text or other material is generally

available to those persons:

This rule contains references to the Ohio Administrative Code (OAC) and the Ohio Revised Code (ORC). While copies of these rules and laws are generally available to the public through libraries and on-line sources, including the Ohio EPA website, ORC 121.76 (A) exempts such references from the provisions of ORC 121.71 through 121.75.

This rule also contains references to the Code of Federal Regulations (CFR). These rules are generally available through libraries, Ohio EPA and U.S. EPA websites. CFR references have also been dated to reference the specific version of the rules. ORC 121.75 (D) exempts such references from the requirements of ORC 121.71 through 121.74.

This rule also contains references to the Clean Air Act (CAA). The CAA is generally available through libraries, Ohio EPA and Government Printing Office's websites. References to the CAA have also been dated to reference the specific version of the act. ORC 121.75 (D) exempts such references from the requirements of ORC 121.71 through 121.74.

Referenced materials are cited, dated and availability noted in OAC rule 3745-31-01 (AAAAAA).

9.  If the rule incorporates a text or other material by reference, and it was infeasible for the agency to file the text or other material electronically, provide an explanation of why filing the text or other material electronically was infeasible:

Not Applicable

10.  If the rule is being rescinded and incorporates a text or other material by reference, and it was infeasible for the agency to file the text or other material, provide an explanation of why filing the text or other material was infeasible:

Not Applicable.

11.  If revising or refiling this rule, identify changes made from the previously filed version of this rule; if none, please state so. If applicable, indicate each specific paragraph of the rule that has been modified:

The rule is being refiled to fix a typo in the RSFA, question #4. The authorizing statutes should read: "3704.03(F), 3704.03(G), 3704.03(T)"

12.  Five Year Review (FYR) Date: 11/30/2015

(If the rule is not exempt and you answered NO to question No. 1, provide the scheduled review date. If you answered YES to No. 1, the review date for this rule is the filing date.)

NOTE: If the rule is not exempt at the time of final filing, two dates are required: the current review date plus a date not to exceed 5 years from the effective date for Amended rules or a date not to exceed 5 years from the review date for No Change rules.

FISCAL ANALYSIS

13.  Estimate the total amount by which this proposed rule would increase / decrease either revenues / expenditures for the agency during the current biennium (in dollars): Explain the net impact of the proposed changes to the budget of your agency/department.

This will have no impact on revenues or expenditures.

$0.00

Not Applicable

14.  Identify the appropriation (by line item etc.) that authorizes each expenditure necessitated by the proposed rule:

Not Applicable

15.  Provide a summary of the estimated cost of compliance with the rule to all directly affected persons. When appropriate, please include the source for your information/estimated costs, e.g. industry, CFR, internal/agency:

This rule states the director shall only issue a PTI or PTIO after review of the application and determining the source will not violate any applicable laws and will employ best available technology (BAT) when applicable. BAT is required under ORC 3704.03(F) and defined in ORC 3704.01 as "any combination of work practices, raw material specifications, throughput limitations, source design characteristics, an evaluation of the annualized cost per ton of pollutant removed, and air pollution control devices that have been previously demonstrated to the director of environmental protection to operate satisfactorily in this state or other states with similar air quality on substantially similar air pollution sources." Essentially, BAT can be compliance with a rule in another chapter or could require the installation of air pollution control equipment (equipment/capital costs and operating costs). The cost of BAT can vary widely from $0 to millions of dollars for control equipment.

This rule also incorporates requirements for a compliance plan submittal if a source knows it will be unable to comply with the permit terms and conditions at the time of issuance. Any cost associated with submitting a compliance plan as part of the application would be minimal compared to the overall application process and is included in the estimates provided for application submittal under OAC rule

3745-31-02 above.

This rule also incorporates requirements for conditional permit issuance for sources which were already issued a PTIO but are unable to comply with certain requirements after issuance. This requires a new application be submitted and a conditional permit be issued with requirements for the source to come into compliance within six months. Historically, Ohio EPA has not issued conditional permits for sources because the permitting process is often as lengthy as the time necessary to come into compliance. Typically a source will ask for a modification of their PTIO to include a compliance plan as discussed in the previous paragraph. However, we retain this provision in the rules because they are explicitly identified as a program element under the Ohio Revised Code.

This rule also includes requirements for including voluntary limits on emissions and other special terms and conditions including federally enforceable limitations on potential to emit. There is no additional cost associated with a source requesting these types of terms and conditions that is not already accounted for in the overall application process and is included in the estimates provided for application submittal under OAC rule 3745-31-02 above. Often these are optional terms and conditions requested by an applicant because they are limiting their operations in order to avoid more stringent applicable requirements.

There is no cost of compliance associated with the remaining portions of this rule; express processing of permits and relocation of portable sources. Ohio EPA is retaining the current mechanism for sources to request, under certain conditions, express processing of their application(s). This rule outlines the criteria for the request. There are also requirements in this rule a facility must meet in order to relocate a portable source without the need to obtain a permit.

16.  Does this rule have a fiscal effect on school districts, counties, townships, or municipal corporations? Yes

You must complete Part B of the Rule Summary and Fiscal Analysis in order to comply with Am. Sub. S.B. 33 of the 120th General Assembly.

17.  Does this rule deal with environmental protection or contain a component dealing with environmental protection as defined in R. C. 121.39? Yes

You must complete the Environmental rule Adoption/Amendment Form in order to comply with Am. Sub. 106 of the 121st General Assembly.

S.B. 2 (129th General Assembly) Questions

18.  Has this rule been filed with the Common Sense Initiative Office pursuant to

R.C. 121.82? Yes

19.  Specific to this rule, answer the following:

A.) Does this rule require a license, permit, or any other prior authorization to engage in or operate a line of business? No

B.) Does this rule impose a criminal penalty, a civil penalty, or another sanction, or create a cause of action, for failure to comply with its terms? No

C.) Does this rule require specific expenditures or the report of information as a condition of compliance? Yes

This rule states the director shall only issue a PTI or PTIO after review of the application and determining the source will not violate any applicable laws and will employ best available technology (BAT) when applicable. BAT is required under ORC 3704.03(F) and defined in ORC 3704.01 as "any combination of work practices, raw material specifications, throughput limitations, source design characteristics, an evaluation of the annualized cost per ton of pollutant removed,and air pollution control devices that have been previously demonstrated to the director of environmental protection to operate satisfactorily in this state or other states with similar air quality on substantially similar air pollution sources." Essentially, BAT can be compliance with a rule in another chapter or could require the installation of air pollution control equipment (equipment/capital costs and operating costs). The cost of BAT can vary widely from $0 to millions of dollars for control equipment.

                                                                                                                                             

Page B-1                                                                                   Rule Number: 3745-31-05

Rule Summary and Fiscal Analysis (Part B)

1.  Does the Proposed rule have a fiscal effect on any of the following?

(a)  School Districts

(b)    Counties                                 (c) Townships           (d) Municipal

Corporations

Yes                              Yes                              Yes                              Yes

2.  Please provide an estimate in dollars of the cost of compliance with the proposed rule for school districts, counties, townships, or municipal corporations. If you are unable to provide an estimate in dollars, please provide a written explanation of why it is not possible to provide such an estimate.

This rule states the director shall only issue a PTI or PTIO after review of the application and determining the source will not violate any applicable laws and will employ best available technology (BAT) when applicable. BAT is required under ORC 3704.03(F) and defined in ORC 3704.01 as "any combination of work practices, raw material specifications, throughput limitations, source design characteristics, an evaluation of the annualized cost per ton of pollutant removed, and air pollution control devices that have been previously demonstrated to the director of environmental protection to operate satisfactorily in this state or other states with similar air quality on substantially similar air pollution sources." Essentially, BAT can be compliance with a rule in another chapter or could require the installation of air pollution control equipment (equipment/capital costs and operating costs). The cost of BAT can vary widely from $0 to millions of dollars for control equipment.

3.  If the proposed rule is the result of a federal requirement, does the proposed rule exceed the scope and intent of the federal requirement? No

4.  If the proposed rule exceeds the minimum necessary federal requirement, please provide an estimate of, and justification for, the excess costs that exceed the cost of the federal requirement. In particular, please provide an estimate of the excess costs that exceed the cost of the federal requirement for (a) school districts, (b) counties, (c) townships, and (d) municipal corporations.

Not Applicable.

5.  Please provide a comprehensive cost estimate for the proposed rule that includes the procedure and method used for calculating the cost of compliance. This comprehensive cost estimate should identify all of the

major cost categories including, but not limited to, (a) personnel costs, (b) new equipment or other capital costs, (c) operating costs, and (d) any indirect central service costs.

As noted above, the range of the cost of applying BAT to a source can be from no cost to millions of dollars. Each facility's cost is determined on a case-by-case basis, working with the facility to determine the best, most cost effective solution to fit their particular need.

(a)  Personnel Costs

As noted above, the range of the cost of applying BAT to a source can be from no cost to $millions of dollars. Each facility's cost is determined on a case-by-case basis, working with the facility to determine the best, most cost effective solution to fit their particular need.

(b)  New Equipment or Other Capital Costs

As noted above, the range of the cost of applying BAT to a source can be from no cost to millions of dollars. Each facility's cost is determined on a case-by-case basis, working with the facility to determine the best, most cost effective solution to fit their particular need.

(c)  Operating Costs

As noted above, the range of the cost of applying BAT to a source can be from no cost to millions of dollars. Each facility's cost is determined on a case-by-case basis, working with the facility to determine the best, most cost effective solution to fit their particular need.

(d)  Any Indirect Central Service Costs

As noted above, the range of the cost of applying BAT to a source can be from no cost to millions of dollars. Each facility's cost is determined on a case-by-case basis, working with the facility to determine the best, most cost effective solution to fit their particular need.

(e)  Other Costs

As noted above, the range of the cost of applying BAT to a source can be from no cost to millions of dollars. Each facility's cost is determined on a case-by-case basis, working with the facility to determine the best, most cost effective solution to fit their particular need.

6.  Please provide a written explanation of the agency's and the local government's ability to pay for the new requirements imposed by the proposed rule.

The existing requirements of this rule continue to require a cost of compliance that has existed for a number of years and has been funded through existing budgets.

The amendments proposed as part of this action will not impose any additional cost for compliance.

7.  Please provide a statement on the proposed rule's impact on economic development.

The existing requirements of this rule will continue to impact economic development in that any agency/local government or other entity installing or modifying an air contaminant source in the state of Ohio will have to incur additional costs for the project in order to address the air pollution control requirements of the state, and the requirement to obtain a permit-to-install prior to construction of such sources. We believe the proposed amendments can only have a positive impact on economic development.

                                                                                                                                             

Page E-1                                                                                   Rule Number: 3745-31-05

Environmental Rule Adoption/Amendment Form

Pursuant to Am. Sub. H.B. 106 of the 121st General Assembly, prior to adopting a rule or an amendment to a rule dealing with environmental protection, or containing a component dealing with environmental protection, a state agency shall:

(1)    Consult with organizations that represent political subdivisions, environmental interests, business interests, and other persons affected by the proposed rule or amendment.

(2)   Consider documentation relevant to the need for, the environmental benefits or consequences of, other benefits of, and the technological feasibility of the proposed rule or rule amendment.

(3)  Specifically identify whether the proposed rule or rule amendment is being adopted or amended to enable the state to obtain or maintain approval to administer and enforce a federal environmental law or to participate in a federal environmental program, whether the proposed rule or rule amendment is more stringent than its federal counterpart, and, if the proposed rule or rule amendment is more stringent, the rationale for not incorporating its federal counterpart.

(4)   Include with the proposed rule or rule amendment and rule summary and fiscal analysis required to be filed with the Joint Committee on Agency Rule Review information relevant to the previously listed requirements.

(A)  Were organizations that represent political subdivisions, environmental interests, business interests, and other persons affected by the proposed rule or amendment consulted ? Yes

Please list each contact.

A draft of these rules was released on November 13, 2014 for a 30-day public comment and review period. The rules were released to Ohio EPA's electronic interested parties list, posted on Ohio EPA's regulations website and shared with interested industry parties. Several comments were received as a result of the request for draft review.

(B)  Was documentation that is relevant to the need for, the environmental benefits or consequences of, other benefits of, and the technological feasibility of the proposed rule or amendment considered ? Yes

Please list the information provided and attach a copy of each piece of documentation to this form. (A SUMMARY OR INDEX MAY BE ATTACHED IN LIEU OF THE ACTUAL DOCUMENTATION.)

Ohio EPA reviewed various federal rules to determine changes needed as a result of

Page E-2                                                                                   Rule Number: 3745-31-05

federal language updates as well as comments from public and industry groups affected by these rules.

(C)  Is the proposed rule or rule amendment being adopted or amended to enable the state to obtain or maintain approval to administer and enforce a federal environmental law or to participate in a federal environmental program ? Yes

Is the proposed rule or rule amendment more stringent than its federal counterpart ? No

Not Applicable

(D)  If this is a rule amendment that is being adopted under a state statute that establishes standards with which the amendment is to comply, is the proposed rule amendment more stringent than the rule that it is proposing to amend? No