S. B. No. 265 As Introduced

Senators Spada, Carey, Mumper, Niehaus, Amstutz, Fedor, Armbruster, Clancy, Stivers

A BILL

To amend sections 3704.02, 3704.03, and 3704.09 of 1
the Revised Code to make changes in the Air 2
Pollution Control Law regarding statutory 3
construction, the costs of compliance with rules, 4
permits to install, air quality monitoring, best 5
available technology, and affirmative defenses in 6
private civil actions. 7

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:

       Section 1. That sections 3704.02, 3704.03, and 3704.09 of the 8
Revised Code be amended to read as follows: 9

       Sec. 3704.02. (A) The purposes of this chapter are the 10
following: 11

       (1) To protect and enhance the quality of the state's air 12
resources so as to promote the public health, welfare, economic 13
vitality, and productive capacity of the people of the state; 14

       (2) To enable the state, through the director of 15
environmental protection, to adopt and maintain a program for the 16
prevention, control, and abatement of air pollution that is 17
consistent with the federal Clean Air Act; 18

       (3) To authorize the state to obtain financial assistance and 19
delegation of powers from the federal government for purposes of 20
the prevention, control, and abatement of air pollution. 21

       (B) This chapter, all rules adopted under it, and all 22
permits, variances, and orders issued under it shall be construed, 23
to the extent reasonably possible, to be consistent with the 24
federal Clean Air Act and to promote the purposes of this chapter. 25
If ambiguity exists as to whether a rule, permit, variance, or 26
order adopted or issued under this chapter is more stringent than 27
the federal Clean Air Act, the rule, permit, variance, or order 28
shall be construed to be no more stringent than the federal Clean 29
Air Act. 30

       Sec. 3704.03. The director of environmental protection may 31
do any of the following: 32

       (A) Develop programs for the prevention, control, and 33
abatement of air pollution; 34

       (B) Advise, consult, contract, and cooperate with any 35
governmental or private agency in the furtherance of the purposes 36
of this chapter; 37

       (C) Encourage, participate in, or conduct studies, 38
investigations, and research relating to air pollution, collect 39
and disseminate information, and conduct education and training 40
programs relating to the causes, prevention, control, and 41
abatement of air pollution; 42

       (D) Adopt, modify, and rescind rules prescribing ambient air 43
quality standards for the state as a whole or for various areas of 44
the state that are consistent with and no more stringent than the 45
national ambient air quality standards in effect under the federal 46
Clean Air Act; 47

       (E) Adopt, modify, suspend, and rescind rules for the 48
prevention, control, and abatement of air pollution, including 49
rules prescribing for the state as a whole or for various areas of 50
the state emission standards for air contaminants, and other 51
necessary rules for the purpose of achieving and maintaining 52
compliance with ambient air quality standards in all areas within 53
the state as expeditiously as practicable, but not later than any 54
deadlines applicable under the federal Clean Air Act; rules for 55
the prevention or control of the emission of hazardous or toxic 56
air contaminants; rules prescribing fugitive dust limitations and 57
standards that are related, on an areawide basis, to attainment 58
and maintenance of ambient air quality standards; rules 59
prescribing shade, density, or opacity limitations and standards 60
for emissions, provided that with regard to air contaminant 61
sources for which there are particulate matter emission standards 62
in addition to a shade, density, or opacity rule, upon 63
demonstration by such a source of compliance with those other 64
standards, the shade, density, or opacity rule shall provide for 65
establishment of a shade, density, or opacity limitation for that 66
source that does not require the source to reduce emissions below 67
the level specified by those other standards; rules for the 68
prevention or control of odors and air pollution nuisances; rules 69
that prevent significant deterioration of air quality to the 70
extent required by the federal Clean Air Act; rules for the 71
protection of visibility as required by the federal Clean Air Act; 72
and rules prescribing open burning limitations and standards. In 73
adopting, modifying, suspending, or rescinding any such rules, the 74
director, to the extent consistent with the federal Clean Air Act, 75
shall hear and give consideration to evidence relating to all of 76
the following: 77

       (1) Conditions calculated to result from compliance with the 78
rules, the overall cost within this state of compliance with the 79
rules, and their relation to benefits to the people of the state 80
to be derived from that compliance; 81

       (2) The quantity and characteristics of air contaminants, the 82
frequency and duration of their presence in the ambient air, and 83
the dispersion and dilution of those contaminants; 84

       (3) Topography, prevailing wind directions and velocities, 85
physical conditions, and other factors that may or may combine to 86
affect air pollution. 87

       Consistent with division (K) of section 3704.036 of the 88
Revised Code, the director shall consider alternative emission 89
limits proposed by the owner or operator of an air contaminant 90
source that is subject to an emission limit established in rules 91
adopted under this division and shall accept those alternative 92
emission limits that the director determines to be equivalent to 93
emission limits established in rules adopted under this division. 94

       (F) Adopt, modify, suspend, and rescind rules consistent with 95
the purposes of this chapter prohibiting the location, 96
installation, construction, or modification of any air contaminant 97
source or any machine, equipment, device, apparatus, or physical 98
facility intended primarily to prevent or control the emission of 99
air contaminants unless an installation permit therefor has been 100
obtained from the director or ~~his~~the director's authorized 101
representative. Applications for installation permits shall be 102
accompanied by plans, specifications, construction schedules, and 103
such other pertinent information and data, including data on 104
ambient air quality impact and a demonstration of best available 105
technology, as the director may require. Installation permits 106
shall be issued for a period specified by the director and are 107
transferable. The director shall specify in each permit the 108
applicable emission standards and that the permit is conditioned 109
upon payment of the applicable fees as required by section 3745.11 110
of the Revised Code and upon the right of ~~his~~the director's 111
authorized representatives to enter upon the premises of the 112
person to whom the permit has been issued, at any reasonable time 113
and subject to safety requirements of the person in control of the 114
premises, for the purpose of determining compliance with such 115
standards, this chapter, the rules adopted thereunder, and the 116
conditions of any permit, variance, or order issued thereunder. 117
Each proposed new or modified air contaminant source shall provide 118
such notice of its proposed installation or modification to other 119
states as is required under the federal Clean Air Act. 120
Installation permits shall include the authorization to operate 121
sources installed and operated in accordance with terms and 122
conditions of the installation permits for a period not to exceed 123
one year from commencement of operation, which authorization shall 124
constitute an operating permit under division (G) of this section 125
and rules adopted under it. 126

       No installation permit shall be issued except in accordance 127
with all requirements of this chapter and rules adopted 128
thereunder. No application shall be denied or permit revoked or 129
modified without a written order stating the findings upon which 130
denial, revocation, or modification is based. A copy of the order 131
shall be sent to the applicant or permit holder by certified mail. 132

       In addition to adopting rules governing installation permits 133
under this division, not later than January 1, 2008, the director 134
shall adopt a rule in accordance with Chapter 119. of the Revised 135
Code specifying that a permit to install is required only for new 136
or modified air contaminant sources that emit any of the following 137
air contaminants: 138

       (1) An air contaminant or precursor of an air contaminant for 139
which a national ambient air quality standard has been adopted 140
under the federal Clean Air Act; 141

       (2) An air contaminant for which the air contaminant source 142
is regulated under the federal Clean Air Act; 143

       (3) An air contaminant that presents, or may present, through 144
inhalation or other routes of exposure, a threat of adverse human 145
health effects, including, but not limited to, substances that are 146
known to be, or may reasonably be anticipated to be, carcinogenic, 147
mutagenic, teratogenic, or neurotoxic, that cause reproductive 148
dysfunction, or that are acutely or chronically toxic, or a threat 149
of adverse environmental effects whether through ambient 150
concentrations, bioaccumulation, deposition, or otherwise, and 151
that is identified in the rule by chemical name and chemical 152
abstract service number. 153

       The director may modify the rule adopted under division 154
(F)(3) of this section for the purpose of adding or deleting air 155
contaminants. For each air contaminant that is contained in or 156
deleted from the rule adopted under division (F)(3) of this 157
section, the director shall include in a notice accompanying any 158
proposed or final rule an explanation of the director's 159
determination that the air contaminant meets the criteria 160
established in that division and should be added to, or no longer 161
meets the criteria and should be deleted from, the list of air 162
contaminants. The explanation shall include an identification of 163
the scientific evidence on which the director relied in making the 164
determination. Until adoption of the rule under division (F)(3) of 165
this section, nothing shall affect the director's authority to 166
issue, deny, modify, or revoke permits to install under this 167
chapter and rules adopted under it. 168

       Not later than January 1, 2007, the director shall adopt 169
rules in accordance with Chapter 119. of the Revised Code 170
specifying activities that do not, by themselves, constitute 171
beginning actual construction activities related to the 172
installation or modification of an air contaminant source for 173
which a permit to install is required such as the grading and 174
clearing of land, on-site storage of portable parts and equipment, 175
and the construction of foundations or buildings that do not 176
themselves emit air contaminants. The rules also shall allow 177
specified initial activities that are part of the installation or 178
modification of an air contaminant source, such as the 179
installation of electrical and other utilities for the source, 180
prior to issuance of a permit to install, provided that the owner 181
or operator of the source has filed a complete application for a 182
permit to install, the director or the director's designee has 183
determined that the application is complete, and the owner or 184
operator of the source has notified the director that this 185
activity will be undertaken prior to the issuance of a permit to 186
install. Any activity that is undertaken by the source under those 187
rules shall be at the risk of the owner or operator. The rules 188
shall not apply to activities that are precluded prior to permit 189
issuance under section 111, section 112, Part C of Title I, and 190
Part D of Title I of the federal Clean Air Act. 191

       (G) Adopt, modify, suspend, and rescind rules prohibiting the 192
operation or other use of any new, modified, or existing air 193
contaminant source unless an operating permit has been obtained 194
from the director or ~~his~~the director's authorized representative, 195
or the air contaminant source is being operated in compliance with 196
the conditions of a variance issued pursuant to division (H) of 197
this section. Applications for operating permits shall be 198
accompanied by such plans, specifications, and other pertinent 199
information as the director may require. Operating permits may be 200
issued for a period determined by the director not to exceed five 201
years, are renewable, and are transferable. The director shall 202
specify in each operating permit that the permit is conditioned 203
upon payment of the applicable fees as required by section 3745.11 204
of the Revised Code and upon the right of ~~his~~the director's 205
authorized representatives to enter upon the premises of the 206
person to whom the permit has been issued, at any reasonable time 207
and subject to safety requirements of the person in control of the 208
premises, for the purpose of determining compliance with this 209
chapter, the rules adopted thereunder, and the conditions of any 210
permit, variance, or order issued thereunder. Operating permits 211
may be denied or revoked for failure to comply with this chapter 212
or the rules adopted thereunder. An operating permit shall be 213
issued only upon a showing satisfactory to the director or ~~his~~the 214
director's representative that the air contaminant source is being 215
operated in compliance with applicable emission standards and 216
other rules or upon submission of a schedule of compliance 217
satisfactory to the director for a source that is not in 218
compliance with all applicable requirements at the time of permit 219
issuance, provided that the compliance schedule shall be 220
consistent with and at least as stringent as that contained in any 221
judicial consent decree or administrative order to which the air 222
contaminant source is subject. The rules shall provide for the 223
issuance of conditional operating permits for such reasonable 224
periods as the director may determine to allow the holder of an 225
installation permit, who has constructed, installed, located, or 226
modified a new air contaminant source in accordance with the 227
provisions of an installation permit, to make adjustments or 228
modifications necessary to enable the new air contaminant source 229
to comply with applicable emission standards and other rules. 230
Terms and conditions of operating permits issued pursuant to this 231
division shall be federally enforceable for the purpose of 232
establishing the potential to emit of a stationary source and 233
shall be expressly designated as federally enforceable. Any such 234
federally enforceable restrictions on a source's potential to emit 235
shall include both an annual limit and a short-term limit of not 236
more than thirty days for each pollutant to be restricted together 237
with adequate methods for establishing compliance with the 238
restrictions. In other respects, operating permits issued pursuant 239
to this division are enforceable as state law only. No application 240
shall be denied or permit revoked or modified without a written 241
order stating the findings upon which denial, revocation, or 242
modification is based. A copy of the order shall be sent to the 243
applicant or permit holder by certified mail. 244

       (H) Adopt, modify, and rescind rules governing the issuance, 245
revocation, modification, or denial of variances that authorize 246
emissions in excess of the applicable emission standards. 247

       No variance shall be issued except pursuant to those rules. 248
The rules shall prescribe conditions and criteria in furtherance 249
of the purposes of this chapter and consistent with the federal 250
Clean Air Act governing eligibility for issuance of variances, 251
which shall include all of the following: 252

       (1) Provisions requiring consistency of emissions authorized 253
by a variance with timely attainment and maintenance of ambient 254
air quality standards; 255

       (2) Provisions prescribing the classes and categories of air 256
contaminants and air contaminant sources for which variances may 257
be issued; 258

       (3) Provisions defining the circumstances under which an 259
applicant shall demonstrate that compliance with applicable 260
emission standards is technically infeasible, economically 261
unreasonable, or impossible because of conditions beyond the 262
control of the applicant; 263

       (4) Other provisions prescribed in furtherance of the goals 264
of this chapter. 265

       The rules shall prohibit the issuance of variances from any 266
emission limitation that was applicable to a source pursuant to an 267
installation permit and shall prohibit issuance of variances that 268
conflict with the federal Clean Air Act. 269

       Applications for variances shall be accompanied by such 270
information as the director may require. In issuing variances, the 271
director may order the person to whom a variance is issued to 272
furnish plans and specifications and such other information and 273
data, including interim reports, as the director may require and 274
to proceed to take such action within such time as the director 275
may determine to be appropriate and reasonable to prevent, 276
control, or abate ~~his~~the person's existing emissions of air 277
contaminants. The director shall specify in each variance that the 278
variance is conditioned upon payment of the applicable fees as 279
required by section 3745.11 of the Revised Code and upon the right 280
of ~~his~~the director's authorized representatives to enter upon the 281
premises of the person to whom the variance has been issued, at 282
any reasonable time and subject to safety requirements of the 283
person in control of the premises, for the purpose of determining 284
compliance with this chapter, the rules adopted thereunder, and 285
the conditions of any permit, variance, or order issued 286
thereunder. 287

       The director may hold a public hearing on an application for 288
a variance or renewal thereof at a location in the county where 289
the variance is sought. The director shall give not less than 290
twenty days' notice of the hearing to the applicant by certified 291
mail and cause at least one publication of notice in a newspaper 292
with general circulation in the county where the variance is 293
sought. The director shall keep available for public inspection at 294
the principal office of the environmental protection agency a 295
current schedule of pending applications for variances and a 296
current schedule of pending variance hearings. The director shall 297
make a complete stenographic record of testimony and other 298
evidence submitted at the hearing. The director shall make a 299
written determination to issue, renew, or deny the variance and 300
shall enter ~~his~~the determination and the basis therefor into the 301
record of the hearing. The director shall issue, renew, or deny an 302
application for a variance or renewal thereof, or issue a proposed 303
action upon the application pursuant to section 3745.07 of the 304
Revised Code, within six months of the date upon which the 305
director receives a complete application with all pertinent 306
information and data required by the director. 307

       Any variance granted pursuant to rules adopted under this 308
division shall be for a period specified by the director, not to 309
exceed three years, and may be renewed from time to time on such 310
terms and for such periods, not to exceed three years each, as the 311
director determines to be appropriate. A variance may be revoked, 312
or renewal denied, for failure to comply with conditions specified 313
in the variance. No variance shall be issued, denied, revoked, or 314
modified without a written order stating the findings upon which 315
the issuance, denial, revocation, or modification is based. A copy 316
of the order shall be sent to the applicant or variance holder by 317
certified mail. 318

       (I) Require the person responsible for any air contaminant 319
source to install, employ, maintain, and operate such emissions, 320
ambient air quality, meteorological, or other monitoring devices 321
or methods as the director shall prescribe; to sample those 322
emissions at such locations, at such intervals, and in such manner 323
as the director prescribes; to maintain records and file periodic 324
reports with the director containing information as to location, 325
size, and height of emission outlets, rate, duration, and 326
composition of emissions, and any other pertinent information the 327
director prescribes; and to provide such written notice to other 328
states as the director shall prescribe. In requiring monitoring 329
devices, records, and reports, the director, to the extent 330
consistent with the federal Clean Air Act, shall give 331
consideration to technical feasibility and economic reasonableness 332
and allow reasonable time for compliance, and, for sources where a 333
specific monitoring, record-keeping, or reporting requirement is 334
specified for a particular air contaminant in an applicable 335
regulation adopted by the United States environmental protection 336
agency under the federal Clean Air Act, the director shall not 337
impose an additional requirement other than the requirement 338
specified in that applicable regulation for that air contaminant. 339
To the extent consistent with the federal Clean Air Act, the 340
director shall not require an operating restriction that has the 341
practical effect of increasing the stringency of an existing 342
applicable emission limitation or standard. 343

       (J) Establish, operate, and maintain monitoring stations and 344
other devices designed to measure air pollution and to enter into 345
contracts with any public or private agency for the establishment, 346
operation, or maintenance of such stations and devices; 347

       (K) By rule adopt procedures for giving reasonable public 348
notice and conducting public hearings on any plans for the 349
prevention, control, and abatement of air pollution that the 350
director is required to submit to the federal government; 351

       (L) Through any employee, agent, or authorized representative 352
of the director or the environmental protection agency, enter upon 353
private or public property, including improvements thereon, at any 354
reasonable time, to make inspections, take samples, conduct tests, 355
and examine records or reports pertaining to any emission of air 356
contaminants and any monitoring equipment or methods and to 357
determine if there are any actual or potential emissions from such 358
premises and, if so, to determine the sources, amounts, contents, 359
and extent of those emissions, or to ascertain whether there is 360
compliance with this chapter, any orders issued or rules adopted 361
thereunder, or any other determination of the director. The 362
director, at reasonable times, may have access to and copy any 363
such records. If entry or inspection authorized by this division 364
is refused, hindered, or thwarted, the director or ~~his~~the 365
director's authorized representative may by affidavit apply for, 366
and any judge of a court of record may issue, an appropriate 367
inspection warrant necessary to achieve the purposes of this 368
chapter within the court's territorial jurisdiction. 369

       (M) Accept and administer gifts or grants from the federal 370
government and from any other source, public or private, for 371
carrying out any of the functions under this chapter; 372

       (N) Obtain necessary scientific, technical, and laboratory 373
services; 374

       (O) Establish advisory boards in accordance with section 375
121.13 of the Revised Code; 376

       (P) Delegate to any city or general health district or 377
political subdivision of the state any of ~~his~~the director's 378
enforcement and monitoring powers and duties, other than 379
rule-making powers, as the director elects to delegate, and in 380
addition employ, compensate, and prescribe the powers and duties 381
of such officers, employees, and consultants as are necessary to 382
enable the director to exercise ~~his~~the authority and perform 383
duties imposed upon ~~him~~the director by law. Technical and other 384
services shall be performed, insofar as practical, by personnel of 385
the environmental protection agency. 386

       (Q) Certify to the government of the United States or any 387
agency thereof that an industrial air pollution facility is in 388
conformity with the state program or requirements for control of 389
air pollution whenever such certificate is required for a taxpayer 390
pursuant to any federal law or requirements; 391

       (R) Issue, modify, or revoke orders requiring abatement of or 392
prohibiting emissions ~~which~~that violate applicable emission 393
standards or other requirements of this chapter and rules adopted 394
thereunder, or requiring emission control devices or measures in 395
order to comply with applicable emission standards or other 396
requirements of this chapter and rules adopted thereunder. Any 397
such order shall require compliance with applicable emission 398
standards by a specified date and shall not conflict with any 399
requirement of the federal Clean Air Act. In the making of such 400
orders, the director, to the extent consistent with the federal 401
Clean Air Act, shall give consideration to, and base ~~his~~the 402
determination on, evidence relating to the technical feasibility 403
and economic reasonableness of compliance with such orders and 404
their relation to benefits to the people of the state to be 405
derived from such compliance. If, under the federal Clean Air Act, 406
any such order shall provide for the posting of a bond or surety 407
to secure compliance with the order as a condition of issuance of 408
the order, the order shall so provide, but only to the extent 409
required by the federal Clean Air Act. 410

       (S) To the extent provided by the federal Clean Air Act, 411
adopt, modify, and rescind rules providing for the administrative 412
assessment and collection of monetary penalties, not in excess of 413
those required pursuant to the federal Clean Air Act, for failure 414
to comply with any emission limitation or standard, compliance 415
schedule, or other requirement of any rule, order, permit, or 416
variance issued or adopted under this chapter or required under 417
the applicable implementation plan whether or not the source is 418
subject to a federal or state consent decree. The director may 419
require the submission of compliance schedules, calculations of 420
penalties for noncompliance, and related information. Any orders, 421
payments, sanctions, or other requirements imposed pursuant to 422
rules adopted under this division shall be in addition to any 423
other permits, orders, payments, sanctions, or other requirements 424
established under this chapter and shall not affect any civil or 425
criminal enforcement proceedings brought under any provision of 426
this chapter or any other provision of state or local law. This 427
division does not apply to any requirement of this chapter 428
regarding the prevention or abatement of odors. 429

       (T) ~~Adopt procedures under which the director shall consider~~ 430
~~best available technology for the pollutants regulated by the new~~ 431
~~source performance standards established pursuant to the federal~~ 432
~~Clean Air Act in order to establish emission limits in~~ 433
~~installation permits issued pursuant to division (F) of this~~ 434
~~section. The emission limits shall be equivalent to those new~~ 435
~~source performance standards unless the standards are more than~~ 436
~~five years old or have not been reviewed by the United States~~ 437
~~environmental protection agency for more than five years. In~~ 438
~~determining what technology is best for a specific source~~ 439
~~application, the director may consider the extent to which a~~ 440
~~technology generates pollution or waste other than air emissions~~ 441
~~and shall approve the most cost effective among essentially~~ 442
~~similar efficient control technologies as demonstrated by the~~ 443
~~permit applicant to the satisfaction of the director. Any facility~~ 444
~~that is subject to the federal prevention of significant~~ 445
~~deterioration regulations and major new source review shall comply~~ 446
~~with those regulations~~Require new or modified air contaminant 447
sources to install best available technology, but only in 448
accordance with this division. With respect to permits issued 449
pursuant to division (F) of this section on or after January 1, 450
2008, best available technology for air contaminant sources and 451
air contaminants emitted by those sources that are subject to 452
standards adopted under section 112, Part C of Title I, and Part D 453
of Title I of the federal Clean Air Act shall be equivalent to and 454
no more stringent than those standards. For an air contaminant or 455
precursor of an air contaminant for which a national ambient air 456
quality standard has been adopted under the federal Clean Air Act, 457
best available technology only shall be required to the extent 458
required by rules adopted under Chapter 119. of the Revised Code 459
for permit to install applications filed on or after January 1, 460
2008. 461

       Best available technology requirements established in rules 462
adopted under this division shall be expressed only in one of the 463
following ways that is most appropriate for the applicable source 464
or source categories: 465

       (1) Work practices; 466

       (2) Source design characteristics or design efficiency of 467
applicable air contaminant control devices; 468

       (3) Raw material specifications or throughput limitations 469
averaged over a twelve-month rolling period; 470

       (4) Monthly allowable emissions averaged over a twelve-month 471
rolling period. 472

       The rules shall not apply to an air contaminant source that 473
has the potential to emit, taking into account air pollution 474
controls installed on the source, less than ten tons of emissions 475
of an air contaminant or precursor of an air contaminant for which 476
a national ambient air quality standard has been adopted under the 477
federal Clean Air Act. Best available technology requirements 478
established in rules adopted under this division shall not apply 479
to any existing, new, or modified air contaminant source that is 480
subject to a plantwide applicability limit that has been approved 481
by the director. 482

       (U) Consistent with section 507 of the federal Clean Air Act, 483
adopt, modify, suspend, and rescind rules for the establishment of 484
a small business stationary source technical and environmental 485
compliance assistance program as provided in section 3704.18 of 486
the Revised Code; 487

       (V) Provide for emissions trading, marketable permits, 488
auctions of emission rights, and economic incentives that would 489
reduce the cost or increase the efficiency of achieving a 490
specified level of environmental protection; 491

       (W) Provide for the construction of an air contaminant source 492
prior to obtaining a permit to install pursuant to division (F) of 493
this section if the applicant demonstrates that the source will be 494
installed to comply with all applicable emission limits and will 495
not adversely affect public health or safety or the environment 496
and if the director determines that such an action will avoid an 497
unreasonable hardship on the owner or operator of the source. Any 498
such determination shall be consistent with the federal Clean Air 499
Act. 500

       (X) Exercise all incidental powers, including adoption of 501
rules, required to carry out this chapter. 502

       The environmental protection agency shall develop a plan to 503
control air pollution resulting from state-operated facilities and 504
property. 505

       Sec. 3704.09. Determinations made by the director of 506
environmental protection or other persons acting under sections 507
3704.03 and 3704.04 of the Revised Code shall not be used as 508
evidence in civil actions nor create any presumption of law or 509
finding of fact ~~which~~that shall inure to or be for the benefit of 510
any person other than the state, and sections 3704.01 to 3704.07 511
of the Revised Code do not create,or enlarge~~, or abrogate~~ 512
existing private rights. ~~Nothing~~In a private civil action for an 513
alleged nuisance related to the installation or operation of an 514
air contaminant source, it is an affirmative defense if the air 515
contaminant source is in compliance with the terms and conditions 516
of any permit or applicable rules authorizing the installation or 517
operation of the air contaminant source. Except as provided in 518
this section, nothing in ~~Chapter 3704. of the Revised Code~~this 519
chapter shall be construed to abridge, limit, or otherwise impair 520
the right of any person to damages or other relief on account of 521
injury to persons or property and to maintain any action or other 522
appropriate proceedings therefor. 523

       Section 2. That existing sections 3704.02, 3704.03, and 524
3704.09 of the Revised Code are hereby repealed. 525

Section 1. That sections 3704.02, 3704.03, and 3704.09 of the	8
Revised Code be amended to read as follows:	9

Sec. 3704.02. (A) The purposes of this chapter are the	10
following:	11

(1) To protect and enhance the quality of the state's air	12
resources so as to promote the public health, welfare, economic	13
vitality, and productive capacity of the people of the state;	14

(2) To enable the state, through the director of	15
environmental protection, to adopt and maintain a program for the	16
prevention, control, and abatement of air pollution that is	17
consistent with the federal Clean Air Act;	18

(3) To authorize the state to obtain financial assistance and	19
delegation of powers from the federal government for purposes of	20
the prevention, control, and abatement of air pollution.	21

(B) This chapter, all rules adopted under it, and all	22
permits, variances, and orders issued under it shall be construed,	23
to the extent reasonably possible, to be consistent with the	24
federal Clean Air Act and to promote the purposes of this chapter.	25
If ambiguity exists as to whether a rule, permit, variance, or	26
order adopted or issued under this chapter is more stringent than	27
the federal Clean Air Act, the rule, permit, variance, or order	28
shall be construed to be no more stringent than the federal Clean	29
Air Act.	30

Sec. 3704.03. The director of environmental protection may	31
do any of the following:	32

(A) Develop programs for the prevention, control, and	33
abatement of air pollution;	34

(B) Advise, consult, contract, and cooperate with any	35
governmental or private agency in the furtherance of the purposes	36
of this chapter;	37

(C) Encourage, participate in, or conduct studies,	38
investigations, and research relating to air pollution, collect	39
and disseminate information, and conduct education and training	40
programs relating to the causes, prevention, control, and	41
abatement of air pollution;	42

(D) Adopt, modify, and rescind rules prescribing ambient air	43
quality standards for the state as a whole or for various areas of	44
the state that are consistent with and no more stringent than the	45
national ambient air quality standards in effect under the federal	46
Clean Air Act;	47

(E) Adopt, modify, suspend, and rescind rules for the	48
prevention, control, and abatement of air pollution, including	49
rules prescribing for the state as a whole or for various areas of	50
the state emission standards for air contaminants, and other	51
necessary rules for the purpose of achieving and maintaining	52
compliance with ambient air quality standards in all areas within	53
the state as expeditiously as practicable, but not later than any	54
deadlines applicable under the federal Clean Air Act; rules for	55
the prevention or control of the emission of hazardous or toxic	56
air contaminants; rules prescribing fugitive dust limitations and	57
standards that are related, on an areawide basis, to attainment	58
and maintenance of ambient air quality standards; rules	59
prescribing shade, density, or opacity limitations and standards	60
for emissions, provided that with regard to air contaminant	61
sources for which there are particulate matter emission standards	62
in addition to a shade, density, or opacity rule, upon	63
demonstration by such a source of compliance with those other	64
standards, the shade, density, or opacity rule shall provide for	65
establishment of a shade, density, or opacity limitation for that	66
source that does not require the source to reduce emissions below	67
the level specified by those other standards; rules for the	68
prevention or control of odors and air pollution nuisances; rules	69
that prevent significant deterioration of air quality to the	70
extent required by the federal Clean Air Act; rules for the	71
protection of visibility as required by the federal Clean Air Act;	72
and rules prescribing open burning limitations and standards. In	73
adopting, modifying, suspending, or rescinding any such rules, the	74
director, to the extent consistent with the federal Clean Air Act,	75
shall hear and give consideration to evidence relating to all of	76
the following:	77

(1) Conditions calculated to result from compliance with the	78
rules, the overall cost within this state of compliance with the	79
rules, and their relation to benefits to the people of the state	80
to be derived from that compliance;	81

(2) The quantity and characteristics of air contaminants, the	82
frequency and duration of their presence in the ambient air, and	83
the dispersion and dilution of those contaminants;	84

(3) Topography, prevailing wind directions and velocities,	85
physical conditions, and other factors that may or may combine to	86
affect air pollution.	87

Consistent with division (K) of section 3704.036 of the	88
Revised Code, the director shall consider alternative emission	89
limits proposed by the owner or operator of an air contaminant	90
source that is subject to an emission limit established in rules	91
adopted under this division and shall accept those alternative	92
emission limits that the director determines to be equivalent to	93
emission limits established in rules adopted under this division.	94

(F) Adopt, modify, suspend, and rescind rules consistent with	95
the purposes of this chapter prohibiting the location,	96
installation, construction, or modification of any air contaminant	97
source or any machine, equipment, device, apparatus, or physical	98
facility intended primarily to prevent or control the emission of	99
air contaminants unless an installation permit therefor has been	100
obtained from the director or ~~his~~the director's authorized	101
representative. Applications for installation permits shall be	102
accompanied by plans, specifications, construction schedules, and	103
such other pertinent information and data, including data on	104
ambient air quality impact and a demonstration of best available	105
technology, as the director may require. Installation permits	106
shall be issued for a period specified by the director and are	107
transferable. The director shall specify in each permit the	108
applicable emission standards and that the permit is conditioned	109
upon payment of the applicable fees as required by section 3745.11	110
of the Revised Code and upon the right of ~~his~~the director's	111
authorized representatives to enter upon the premises of the	112
person to whom the permit has been issued, at any reasonable time	113
and subject to safety requirements of the person in control of the	114
premises, for the purpose of determining compliance with such	115
standards, this chapter, the rules adopted thereunder, and the	116
conditions of any permit, variance, or order issued thereunder.	117
Each proposed new or modified air contaminant source shall provide	118
such notice of its proposed installation or modification to other	119
states as is required under the federal Clean Air Act.	120
Installation permits shall include the authorization to operate	121
sources installed and operated in accordance with terms and	122
conditions of the installation permits for a period not to exceed	123
one year from commencement of operation, which authorization shall	124
constitute an operating permit under division (G) of this section	125
and rules adopted under it.	126

No installation permit shall be issued except in accordance	127
with all requirements of this chapter and rules adopted	128
thereunder. No application shall be denied or permit revoked or	129
modified without a written order stating the findings upon which	130
denial, revocation, or modification is based. A copy of the order	131
shall be sent to the applicant or permit holder by certified mail.	132

In addition to adopting rules governing installation permits	133
under this division, not later than January 1, 2008, the director	134
shall adopt a rule in accordance with Chapter 119. of the Revised	135
Code specifying that a permit to install is required only for new	136
or modified air contaminant sources that emit any of the following	137
air contaminants:	138

(1) An air contaminant or precursor of an air contaminant for	139
which a national ambient air quality standard has been adopted	140
under the federal Clean Air Act;	141

(2) An air contaminant for which the air contaminant source	142
is regulated under the federal Clean Air Act;	143

(3) An air contaminant that presents, or may present, through	144
inhalation or other routes of exposure, a threat of adverse human	145
health effects, including, but not limited to, substances that are	146
known to be, or may reasonably be anticipated to be, carcinogenic,	147
mutagenic, teratogenic, or neurotoxic, that cause reproductive	148
dysfunction, or that are acutely or chronically toxic, or a threat	149
of adverse environmental effects whether through ambient	150
concentrations, bioaccumulation, deposition, or otherwise, and	151
that is identified in the rule by chemical name and chemical	152
abstract service number.	153

The director may modify the rule adopted under division	154
(F)(3) of this section for the purpose of adding or deleting air	155
contaminants. For each air contaminant that is contained in or	156
deleted from the rule adopted under division (F)(3) of this	157
section, the director shall include in a notice accompanying any	158
proposed or final rule an explanation of the director's	159
determination that the air contaminant meets the criteria	160
established in that division and should be added to, or no longer	161
meets the criteria and should be deleted from, the list of air	162
contaminants. The explanation shall include an identification of	163
the scientific evidence on which the director relied in making the	164
determination. Until adoption of the rule under division (F)(3) of	165
this section, nothing shall affect the director's authority to	166
issue, deny, modify, or revoke permits to install under this	167
chapter and rules adopted under it.	168

Not later than January 1, 2007, the director shall adopt	169
rules in accordance with Chapter 119. of the Revised Code	170
specifying activities that do not, by themselves, constitute	171
beginning actual construction activities related to the	172
installation or modification of an air contaminant source for	173
which a permit to install is required such as the grading and	174
clearing of land, on-site storage of portable parts and equipment,	175
and the construction of foundations or buildings that do not	176
themselves emit air contaminants. The rules also shall allow	177
specified initial activities that are part of the installation or	178
modification of an air contaminant source, such as the	179
installation of electrical and other utilities for the source,	180
prior to issuance of a permit to install, provided that the owner	181
or operator of the source has filed a complete application for a	182
permit to install, the director or the director's designee has	183
determined that the application is complete, and the owner or	184
operator of the source has notified the director that this	185
activity will be undertaken prior to the issuance of a permit to	186
install. Any activity that is undertaken by the source under those	187
rules shall be at the risk of the owner or operator. The rules	188
shall not apply to activities that are precluded prior to permit	189
issuance under section 111, section 112, Part C of Title I, and	190
Part D of Title I of the federal Clean Air Act.	191

(G) Adopt, modify, suspend, and rescind rules prohibiting the	192
operation or other use of any new, modified, or existing air	193
contaminant source unless an operating permit has been obtained	194
from the director or ~~his~~the director's authorized representative,	195
or the air contaminant source is being operated in compliance with	196
the conditions of a variance issued pursuant to division (H) of	197
this section. Applications for operating permits shall be	198
accompanied by such plans, specifications, and other pertinent	199
information as the director may require. Operating permits may be	200
issued for a period determined by the director not to exceed five	201
years, are renewable, and are transferable. The director shall	202
specify in each operating permit that the permit is conditioned	203
upon payment of the applicable fees as required by section 3745.11	204
of the Revised Code and upon the right of ~~his~~the director's	205
authorized representatives to enter upon the premises of the	206
person to whom the permit has been issued, at any reasonable time	207
and subject to safety requirements of the person in control of the	208
premises, for the purpose of determining compliance with this	209
chapter, the rules adopted thereunder, and the conditions of any	210
permit, variance, or order issued thereunder. Operating permits	211
may be denied or revoked for failure to comply with this chapter	212
or the rules adopted thereunder. An operating permit shall be	213
issued only upon a showing satisfactory to the director or ~~his~~the	214
director's representative that the air contaminant source is being	215
operated in compliance with applicable emission standards and	216
other rules or upon submission of a schedule of compliance	217
satisfactory to the director for a source that is not in	218
compliance with all applicable requirements at the time of permit	219
issuance, provided that the compliance schedule shall be	220
consistent with and at least as stringent as that contained in any	221
judicial consent decree or administrative order to which the air	222
contaminant source is subject. The rules shall provide for the	223
issuance of conditional operating permits for such reasonable	224
periods as the director may determine to allow the holder of an	225
installation permit, who has constructed, installed, located, or	226
modified a new air contaminant source in accordance with the	227
provisions of an installation permit, to make adjustments or	228
modifications necessary to enable the new air contaminant source	229
to comply with applicable emission standards and other rules.	230
Terms and conditions of operating permits issued pursuant to this	231
division shall be federally enforceable for the purpose of	232
establishing the potential to emit of a stationary source and	233
shall be expressly designated as federally enforceable. Any such	234
federally enforceable restrictions on a source's potential to emit	235
shall include both an annual limit and a short-term limit of not	236
more than thirty days for each pollutant to be restricted together	237
with adequate methods for establishing compliance with the	238
restrictions. In other respects, operating permits issued pursuant	239
to this division are enforceable as state law only. No application	240
shall be denied or permit revoked or modified without a written	241
order stating the findings upon which denial, revocation, or	242
modification is based. A copy of the order shall be sent to the	243
applicant or permit holder by certified mail.	244

(H) Adopt, modify, and rescind rules governing the issuance,	245
revocation, modification, or denial of variances that authorize	246
emissions in excess of the applicable emission standards.	247

No variance shall be issued except pursuant to those rules.	248
The rules shall prescribe conditions and criteria in furtherance	249
of the purposes of this chapter and consistent with the federal	250
Clean Air Act governing eligibility for issuance of variances,	251
which shall include all of the following:	252

(1) Provisions requiring consistency of emissions authorized	253
by a variance with timely attainment and maintenance of ambient	254
air quality standards;	255

(2) Provisions prescribing the classes and categories of air	256
contaminants and air contaminant sources for which variances may	257
be issued;	258

(3) Provisions defining the circumstances under which an	259
applicant shall demonstrate that compliance with applicable	260
emission standards is technically infeasible, economically	261
unreasonable, or impossible because of conditions beyond the	262
control of the applicant;	263