Biographical InformationWilliam B. Hayes, Member, Frost Brown Todd LLC3300 Great American Tower, 301 East Fourth Street, Cincinnati, OH 45202513-651-6827 Fax: 513-651-6981 email@example.comMr. Hayes is a Member of Frost Brown Todd LLC with a practice focused on air quality issues. He hasexpertise in plant expansions, processing changes, transactions, and enforcement defense in mattersbrought by local, state and federal environmental agencies. Mr. Hayes also advises clients on climatechange regulatory developments and TSCA compliance matters. He has extensive experience with allaspects of the Clean Air Act, including major and minor New Source Review, New Source PerformanceStandards, Maximum Achievable Control Technology requirements, and Title V Operating permits. Healso has unique experience and insight with regards to compliance counseling to the automobilemanufacturing and parts industries. Mr. Hayes received his B.A. from Denison University, his J.D.from Capital University, and his L.L.M. in Environmental Law/Climate Change from Vermont LawSchool.Robert Hodanbosi, Chief, Division of Air Pollution Control, Ohio EPAMailing Address: P.O. Box 1049, Columbus, OH 43216-1049Street Address: 50 West Town St., Suite 700 Columbus, OH 43215614.644.2270 Fax: 614.644.3681 firstname.lastname@example.orgBob Hodanbosi became Chief of the Division of Air Pollution Control, Ohio EPA in September 1992. Hiscurrent duties include being responsible for the air pollution control program for the State of Ohio anddevelopment of programs needed to comply with the Clean Air Act Amendments of 1990. From May1987 to September 1992, he served as Assistant Chief and Manager of the Air Quality Modeling andPlanning Section for the agency. From April 1978 to May 1987, he served as Air Quality Modeling andPlanning Section Manager responsible for: development of the technical support for regulations forcriteria air pollutants: atmospheric dispersion modeling: air quality designations; new source reviewprocedures; development of the SARA right-to-know program and air toxics control program. Priorpositions with the Ohio EPA include: Supervisor, Environmental Assessment Unit and PermitsReviewer, Northeast District Office. Hodanbosi is a member of the American Institute of ChemicalEngineers and Air & Waste Management Association. He is a registered Professional Engineer in theState of Ohio. He is Chairman of the State and Territorial Air Pollution Program AdministratorsPermitting Committee. He has lectured extensively on topics relating to the requirements and thecontrols needed to obtain cleaner air. Hodanbosi received his Masters of Science degree in ChemicalEngineering at the Cleveland State University in 1977 and his BA in Chemical Engineering at theCleveland State University in 1973. In addition, he has completed post-graduate courses in fluidmechanics and turbulence at the Ohio State University.Stephen Fogle, Staff Engineer, Honda North America Services, LLC24000 Honda Pkwy., Marysville, OH 43040-9251937-642-5000 ext. 62541 Stephen_Fogle@hna.honda.comMr. Fogle currently provides support to Honda's North America manufacturing facilities in the areas ofair compliance, TSCA, EPCRA, and sustainability metrics. Prior to his current assignment in therecently formed Honda North America Services, LLC, he spent eleven years managing the aircompliance programs at Honda's Marysville, Ohio automobile manufacturing plant. In addition to hisexperience in the automobile industry, Mr. Fogle has also worked within the electronics, chemicaldistribution, and appliance manufacturing industries. During his career, Mr. Fogle has also managedsolid and hazardous waste, industrial waste water, stormwater, emergency response, spill preventioncountermeasure and control, safety and health, and ISO 14001 programs. He received a Master ofScience degree in Environmental, Health, and Safety Management from the University of Findlay andBachelor of Science degree in Chemical Engineering from the University of Cincinnati.
U.S. EPA’s SIP Call onstate SSM provisionsWilliam B. HayesFrost Brown Todd LLCStephen FogleHonda North America Services, LLC
SIP Call focus on four categoriesof SSM provisions• First category: “automatic exemptions,” orprovisions that automatically exempt fromliability excess emissions during periods ofSSM• EPA’s basis: inconsistent with the CAArequirement that emissions limitations applycontinuously• Example of offending rule: W. Va. Code R.§§ 45-2-9.1, 45-7-10.3, and 45-40-100.8
SIP Call focus on four categoriesof SSM provisions• Second category: “discretionaryexemptions,” or provisions that establish anexemption subject to the discretion of thestate agency• EPA’s basis: allows state agencies to defacto amend SIP requirements withoutfollowing procedural requirements• Example: 326 IAC 1-6-4(a)
SIP Call focus on four categoriesof SSM provisions• Third category: provisions that would applystate enforcement discretion regarding SSMevents to U.S. EPA enforcement actionsand/or federal citizen suits• EPA’s basis: SIP provisions cannot bar EPAor the public from enforcing applicablerequirements• Example: Knox County (TN) Regulation32.1(c)
SIP Call focus on four categoriesof SSM provisions• Fourth category: provisions that createunlawful affirmative defenses for SSM events• EPA’s basis: various – affirmative defensescannot apply to injunctive relief, must benarrowly tailored, etc.• Example: Mich. Admin. Code r. 336.1916
Provisions in dispute• Kentucky: Grant• Indiana: Grant• West Virginia: Grant• Tennessee: Grant• Michigan: Grant• Ohio: Partially grant; partially deny
Awaiting decision• EPA held public hearing on March 12• Comment period extended from March 25 toMay 13• Substance of public comments
Questions?William B. HayesFrost Brown Todd LLC3300 Great American Tower301 East Fourth Streetwhayes@fbtlaw.com(513) 651-6827Stephen FogleHonda North America Services, LLCAdministration – Facilities DepartmentEnvironmental Compliance / Green Factory24000 Honda ParkwayMarysville, Ohio 43040-9251Stephen_Fogle@hna.honda.com(937) 644-7797
Ohio EPADivision of Air Pollution ControlBob Hodanbosi
U. S. EPA settled a lawsuit with the Sierra Club thataddresses rules associated with startup, shutdown andmalfunctions in 39 statesU.S. EPA proposed a “SIP Call” in 36 states (includingOhio) that require that states modify their rules becausethese rules contain language “inconsistent with the CleanAir Act”These state rules were previously approved by U.S. EPA… but are now “objectionable”State rules allow “Director’s discretion”US EPA claims citizens suits are prevented
U.S. EPA went further in Ohio …. Even though not part of the lawsuit, U.S. EPAidentified the Scheduled Maintenance Rule asalso one of the objectionable rules U.S. EPA did not ask questions on how Ohio EPAoperate the rules …. U.S. EPA did not consult with Ohio EPA prior tolawsuit settlement …. U.S. EPA made incorrect errors and assumptions
Objectionable Rule 1: OAC 3745-15-06(C) – Malfunction ofequipment◦ The director retains the responsibility to evaluate any report submitted pursuantto this rule. The director shall take appropriate action upon a determination thatthe reporting requirements of this rule have not been satisfied, that theequipment was not properly operated and maintained prior to breakdown, thatshutdown of the source or operation during the period of maintenance orbreakdown was or has become practicable, that the shutdown or breakdownwas or has become avoidable, or was induced or prolonged in bad faith, or thatthe emissions endanger or tend to endanger the health or safety of the public.Where is Director’s discretion? “Director shall take appropriateaction…” Not about discretion…but about who decidesappropriate action.U.S. Southern District of Ohio found that the Ohio rule containsobjective standards and are enforceable by citizens suits.
Objectionable Rule 2: OAC rules 3745-17-07(A)(3)(c)and 3745-17-07(B)(11)(f) – Visible Emission Rules◦ The malfunction of any air contaminant source or the malfunction/shutdown ofair pollution control equipment associated with any air contaminant source, ifthe owner or operator of said air contaminant source or air pollution controlequipment complies with the requirements of rule 3745-15-06 of theAdministrative Code and none of the conditions listed in paragraph (C) of rule3745-15-06 of the Administrative Code exists.◦ The malfunction of any air contaminant source or the malfunction/shutdown ofair pollution control equipment associated with any air contaminant source, ifthe owner or operator of said air contaminant source or air pollution controlequipment complies with the requirements of rule 3745-15-06 of theAdministrative Code and none of the conditions listed in paragraph (C) of rule3745-15-06 of the Administrative Code exists.
These rules exempt visible emission requirements duringmalfunctions – does not exempt the malfunction or theunderlying emission violation (e.g. particulate emission rule)Visible emission standard is not directly related to anyambient air quality standardSources must still meet conditions in OAC 3745-15-06(C)
Objectionable Rule 3: OAC 3745-15-06(A)(3): ScheduledmaintenanceOhio EPA issues Director’s Letter that allows the shutdown ofair pollution control equipment under certain conditions;◦ “In cases where a complete source shutdown may result indamage to the air pollution sources or is otherwiseimpossible or impractical, the owner or operator may requestauthorization to continue operating the sources during thescheduled maintenance of air pollution control equipment.”U. S. EPA says we cannot allow this. Source should shutdownNot realistic – many examples of impracticality – glassfurnaces, coke ovens, etc…
Does not “exempt” emission exceedances – still must bereported as a deviation for Title V purposesOhio EPA processes about 2 – 3 requests each weekU.S. EPA wants to have say – means having companiesnegotiate these matters with the attorneys in Chicago –would never get done in timeAbout who is in control- state or federal government
Objectionable Rule 4: - OAC 3745-14-11(D) – NOx fromCement Plants◦ The requirements of this rule shall not apply to the followingperiods of operation:• (1) Start-up and shutdown periods and periods ofmalfunction, not to exceed thirty-six consecutive hours;and• (2) Regularly scheduled maintenance activitiesNot our language – U.S. EPA suggested we add this during therulemaking processThe revised NSPS for cement plants allows for an “affirmativedefense” argument. Burden is entirely on company; U.S. EPAgets to decide
U.S. EPA has not shown that application of Ohio’sstartup, shutdown, and malfunction rules or the scheduledmaintenance rules cause air quality violationsClean Air Act puts responsibility on states to meet airquality standardsAlso Clean Air Act gives primary authority to states, notU.S. EPAIssues are about who gets to decide
Ohio EPA provided detailed response to U.S. EPAon the proposal Available athttp://epa.gov.ohio/dapc/whatsnew.aspx