Clean Air News

Federal And State Air Quality Experts Propose “Notice and Go” Permit Reform Alternative To Rolling Back 30 Years Of Environmental Progress

As the new home of Ohio PIRG's environmental work, Environment Ohio can be contacted regarding this news release.  

COLUMBUS—The nation’s former top prosecutor for clean air enforcement along with the director of Dayton’s air pollution control agency are calling on state lawmakers to set aside a pair of industry-written bills they say will lead to dirtier air and complicate the efforts of 32 Ohio counties to comply with federal clean air standards.

Instead, the experts are proposing an alternative plan that streamlines the permitting process for smaller factories and other industrial facilities yet protects local air quality. According to the experts, the industry-written legislation (Ohio Senate Bill 265 and Ohio House Bill 496) pending in the General Assembly will:

• Prevent the Ohio EPA from requiring that all industrial facilities use the best available pollution control technology to reduce toxic emissions
• Take away the right of citizens to sue local polluters for causing a nuisance
• Exempt from Best Available Technology review any industrial facility that emits less than 10 tons of emissions per year of carbon monoxide, lead, nitrogen dioxide, particulate matter, ozone, and sulfur oxides. Hundreds of such small facilities exist in Ohio, such as boilers, printing presses, cement kilns, paint lines, asphalt plants, process lines, etc.
• Roll back Ohio’s “minor New Source Review” program (which requires the owner of a smaller industrial facility to install modern air pollution controls when expanding an existing or building a new facility) without any analysis of the environmental or economic impacts that would occur
• Allow the Ohio EPA until only 2008 to change its best available technology rules to reflect a weaker rule schedule based on existing pollution source rules, diverting scarce staff resources from the time-intensive effort to comply with new federal air quality standards for ground-level ozone and particle pollution
• Prohibits the Ohio EPA from imposing additional, state air quality monitoring requirements that are stronger than federal minimum requirements, even though many of the federal rules are based on 20-year old technology
• Prohibits the Ohio EPA from requiring an operating restriction that has the practical effect of increasing the stringency of an existing applicable emission limitation or standard
• Give the Ohio EPA until 2008 to identify which air toxics to regulate by state rules. In effect, this would empower Ohio’s next governor to determine which— if any—of more than 500 hazardous air pollutants not listed in the federal Clean Air Act, Ohio should control. Up for review would be dozens of known or suspected human carcinogens not on the federal list, including aldrin, dieldrin, nickel subsulfide and DDT. At least one gubernatorial candidate, Secretary of State Ken Blackwell, has proposed that Ohio’s environmental laws should be no more stringent than their federal counterparts.
• Repeal the Ohio EPA’s authority to tailor local solutions to solve local problems

“This is the biggest rollback of state clean air laws I’ve ever seen,” said Bruce Buckheit, director of the U.S. EPA’s Air Enforcement Division under the Bush and Clinton administrations from 1999-2003 and former Staff Attorney and Senior Counsel of the U.S. Department of Justice Environmental Enforcement Section from 1984-1996.

The bills are the result of months of private discussion between industry lobbyists, lawmakers, and the Ohio EPA. Industry lobbyists claim the legislation is “environmentally neutral” and intended to merely improve the uniformity, transparency, and predictability of Ohio’s air pollution control permitting program.

But in testimony before an Ohio Senate committee last week, Ohio EPA Director Joe Koncelik said he did not believe the proposed legislation is neutral. Testimony by bill opponents revealed that the proposed legislation mostly tracks three goals outlined in an industry “white paper” delivered to legislative leaders last year:

• Limit the definition of “air contaminant” in Ohio law to the same list of pollutants that are listed in the federal Clean Air Act
• Limit the definition of “best available technology” to technology requirements imposed by the federal Clean Air Act
• Restrict Ohio EPA’s authority to certain new operational restrictions and revised operating requirements in permits for air contaminant sources

When asked how his agency would implement the proposed legislation if it became law, Director Koncelik was unable to say what air toxics would have priority, what would be a reasonable time frame for adopting best available pollution control technology rules, what additional resources would be needed, whether the bill will improve the environment in Ohio, or what portion, if any, of the bill’s best available technology rule requirements his agency will be able to implement.

Buckheit is urging Ohio officials to adopt a streamlined permitting system for small sources of air pollution he calls “Very Best Available Control Technology.”

“Ohio shouldn’t settle for a lowest common denominator-type solution,” Buckheit said. “Instead, the Ohio Legislature should seek the best possible solution where industry and people’s health both benefit. If Ohio’s industry is really serious about achieving a more efficient permitting process without weakening clean air protections, then a better alternative exists”

The alternative proposal would allow industry to add new or modify existing minor sources of air pollution without delay, negotiation or uncertainty as to the level of controls that would be required – in exchange for the facility owner’s commitment to install the most current and protective environmental controls and where there is no public objection to the new or modified facility.

A facility owner that is willing to commit to VBACT limits for minor New Source Review permitting purposes may immediately commence construction and operation of the emissions unit without penalty under a “Notice and Go” permitting program where the source simply files a notice of the proposed activity. The source may be required to suspend activity in those rare instances that an adverse comment is received that must be resolved by Ohio EPA, but the source is guaranteed that its initial activity (if in good faith under the program) is without penalty.

The alternative proposal would guarantee industry cost certainty and a fast start to facility construction while at the same time protecting public health by requiring the use of modern pollution controls. The proposal also would require the Ohio EPA to annually update and post information about the best available pollution control technology that must be followed for new or expanding industrial facilities.

Under the alternative “Notice and Go” permitting system, the Ohio EPA would retain an independent, outside panel of experts such as the National Academy of Sciences to continuously review industry technology and recommend what is the most effective and efficient pollution control technology that must be used installed in Ohio on a new or expanding small industrial facility opting to follow the VBACT program.

Buckheit estimated that Ohio could implement a “Notice and Go” permitting system for about $250,000 to $1 million, paid for by an increase in permit fees paid by factories, power plants and other large emitters of air pollution. The industry-backed legislation, by contract, has no funding source to implement its provisions. Buckheit predicted that the Ohio EPA will face two costly choices in complying with the industry bills: either hire new staff or divert existing staff from existing responsibilities.

John Paul, Director of the Regional Air Pollution Control Agency of Dayton and President of the Association of Local Air Pollution Control Officials, warned that the industry proposal will lead to dirtier air and strangled economic growth.

“The industry bill will roll back clean air protections and lead to an increase in emissions of dangerous air pollutants,” said Paul.

“The public, especially children and the elderly, will be at greater risk of health impacts from breathing dirty air. The bill also will complicate the efforts of local counties to comply with existing clean air standards. This, in turn, could strangle local economic growth because any county that is out of attainment new federal standards for ozone and particulate matter cannot recruit new industry without offsetting any increase in pollution.

“Under the guise of ‘modernizing’ Ohio’s air pollution control laws, industry is proposing that Ohio limit its pollution controls to 20 year-old federal rules. That means 20 year-old control technology, 20 year-old compliance monitoring techniques, 20 yearold emissions standards, etc. This is hardly a ‘modernization’ of Ohio law, as industry claims.”

Air pollution control officials and clean air advocates are alarmed that lawmakers would consider limiting Ohio’s authority to control air pollution, especially in a state that ranks among the nation’s worst for toxic air pollution.

According to industry data reported to the U.S. EPA through the federal Toxic Release Inventory, Ohio industry smokestacks emitted more than 132 million pounds of air toxics in 2003—most in the nation. Last month, the Asthma and Allergy Foundation of America ranked five Ohio cities as among the 20 most challenging places in America to live with asthma: Cleveland, Youngstown, Cincinnati, Toledo and Canton.

According to a December 2005 study by the Associated Press, Ohioans suffer the highest long-term health risks from industrial air pollution. The study found that 26 of the 200 most at-risk neighborhoods in America are in Ohio, including two of the top five, located in Washington and Wood counties. The AP analyzed federal pollution, health and census data for the study.

The Ohio Senate Environment and Natural Resources Committee has scheduled a vote on the Senate version of the industry bill Wednesday morning. If the committee approves the bill, the full Senate could vote on it later that day. The Ohio House Economic Development and Environment Committee is scheduled to hear testimony on the House version of the bill later that day. Buckheit, Paul and other opponents of the bills plan to testify at the hearings.

A copy of the alternative proposal, an analysis of the bills, and other information is available at www.TheOEC.org.

Additional Contacts
Ellen Hawkey, Sierra Club (614) 461-0734 x304
Jack Shaner, Ohio Environmental Council (614) 487-7506