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S. B. No. 265 As IntroducedAs Introduced
126th General Assembly | Regular Session | 2005-2006 |
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Senators Spada, Carey, Mumper, Niehaus, Amstutz, Fedor, Armbruster, Clancy, Stivers
A BILL
To amend sections 3704.02, 3704.03, and 3704.09 of the Revised Code to make changes in the Air Pollution Control Law regarding statutory construction, the costs of compliance with rules, permits to install, air quality monitoring, best available technology, and affirmative defenses in private civil actions.
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 Revised Code be amended to read as follows:
Sec. 3704.02. (A) The purposes of this chapter are the
following: (1) To protect and enhance the quality of the state's air
resources so as to promote the public health, welfare, economic
vitality, and productive capacity of the people of the state; (2) To enable the state, through the director of
environmental protection, to adopt and maintain a program for the
prevention, control, and abatement of air pollution that is
consistent with the federal Clean Air Act; (3) To authorize the state to obtain financial assistance
and delegation of powers from the federal government for purposes
of the prevention, control, and abatement of air pollution. (B) This chapter, all rules adopted under it, and all
permits, variances, and orders issued under it shall be
construed, to the extent reasonably possible, to be consistent
with the federal Clean Air Act and to promote the purposes of
this chapter. If ambiguity exists as to whether a rule, permit, variance, or order adopted or issued under this chapter is more stringent than the federal Clean Air Act, the rule, permit, variance, or order shall be construed to be no more stringent than the federal Clean Air Act.
Sec. 3704.03. The director of environmental protection may
do any of the following: (A) Develop programs for the prevention, control, and
abatement of air pollution; (B) Advise, consult, contract, and cooperate with any
governmental or private agency in the furtherance of the purposes
of this chapter; (C) Encourage, participate in, or conduct studies,
investigations, and research relating to air pollution, collect
and disseminate information, and conduct education and training
programs relating to the causes, prevention, control, and
abatement of air pollution; (D) Adopt, modify, and rescind rules prescribing ambient
air quality standards for the state as a whole or for various
areas of the state that are consistent with and no more stringent
than the national ambient air quality standards in effect under
the federal Clean Air Act; (E) Adopt, modify, suspend, and rescind rules for the
prevention, control, and abatement of air pollution, including
rules prescribing for the state as a whole or for various areas
of the state emission standards for air contaminants, and other
necessary rules for the purpose of achieving and maintaining
compliance with ambient air quality standards in all areas within
the state as expeditiously as practicable, but not later than any
deadlines applicable under the federal Clean Air Act; rules for
the prevention or control of the emission of hazardous or toxic
air contaminants; rules prescribing fugitive dust limitations and
standards that are related, on an areawide basis, to attainment
and maintenance of ambient air quality standards; rules
prescribing shade, density, or opacity limitations and standards
for emissions, provided that with regard to air contaminant
sources for which there are particulate matter emission standards
in addition to a shade, density, or opacity rule, upon
demonstration by such a source of compliance with those other
standards, the shade, density, or opacity rule shall provide for
establishment of a shade, density, or opacity limitation for that
source that does not require the source to reduce emissions below
the level specified by those other standards; rules for the
prevention or control of odors and air pollution nuisances; rules
that prevent significant deterioration of air quality to the
extent required by the federal Clean Air Act; rules for the
protection of visibility as required by the federal Clean Air
Act; and rules prescribing open burning limitations and
standards. In adopting, modifying, suspending, or rescinding any
such rules, the director, to the extent consistent with the
federal Clean Air Act, shall hear and give consideration to
evidence relating to all of the following: (1) Conditions calculated to result from compliance with
the rules, the overall cost within this state of compliance with the rules, and their relation to benefits to the people of the
state to be derived from that compliance; (2) The quantity and characteristics of air contaminants,
the frequency and duration of their presence in the ambient air,
and the dispersion and dilution of those contaminants; (3) Topography, prevailing wind directions and velocities,
physical conditions, and other factors that may or may combine to
affect air pollution. Consistent with division (K) of section 3704.036 of the
Revised Code, the director shall consider alternative emission
limits proposed by the owner or operator of an air contaminant
source that is subject to an emission limit established in rules
adopted under this division and shall accept those alternative
emission limits that the director determines to be equivalent to
emission limits established in rules adopted under this division. (F) Adopt, modify, suspend, and rescind rules consistent
with the purposes of this chapter prohibiting the location,
installation, construction, or modification of any air
contaminant source or any machine, equipment, device, apparatus,
or physical facility intended primarily to prevent or control the
emission of air contaminants unless an installation permit
therefor has been obtained from the director or his the
director's authorized representative. Applications for installation
permits shall be
accompanied by plans, specifications, construction schedules, and
such other pertinent information and data, including data on
ambient air quality impact and a demonstration of best available
technology, as the director may require. Installation permits
shall be issued for a period specified by the director and are
transferable. The director shall specify in each permit the
applicable emission standards and that the permit is conditioned
upon payment of the applicable fees as required by section
3745.11 of the Revised Code and upon the right of his the
director's authorized representatives to enter upon the premises of the
person to whom
the permit has been issued, at any reasonable time and subject to
safety requirements of the person in control of the premises, for
the purpose of determining compliance with such standards, this
chapter, the rules adopted thereunder, and the conditions of any
permit, variance, or order issued thereunder. Each proposed new
or modified air contaminant source shall provide such notice of
its proposed installation or modification to other states as is
required under the federal Clean Air Act. Installation permits
shall include the authorization to operate sources installed and
operated in accordance with terms and conditions of the
installation permits for a period not to exceed one year from
commencement of operation, which authorization shall constitute
an operating permit under division (G) of this section and rules
adopted under it. No installation permit shall be issued except in accordance
with all requirements of this chapter and rules adopted
thereunder. No application shall be denied or permit revoked or
modified without a written order stating the findings upon which
denial, revocation, or modification is based. A copy of the
order shall be sent to the applicant or permit holder by
certified mail. In addition to adopting rules governing installation permits under this division, not later than January 1, 2008, the director shall adopt a rule in accordance with Chapter 119. of the Revised Code specifying that a permit to install is required only for new or modified air contaminant sources that emit any of the following air contaminants:
(1) An air contaminant or precursor of an air contaminant for which a national ambient air quality standard has been adopted under the federal Clean Air Act;
(2) An air contaminant for which the air contaminant source is regulated under the federal Clean Air Act;
(3) An air contaminant that presents, or may present, through inhalation or other routes of exposure, a threat of adverse human health effects, including, but not limited to, substances that are known to be, or may reasonably be anticipated to be, carcinogenic, mutagenic, teratogenic, or neurotoxic, that cause reproductive dysfunction, or that are acutely or chronically toxic, or a threat of adverse environmental effects whether through ambient concentrations, bioaccumulation, deposition, or otherwise, and that is identified in the rule by chemical name and chemical abstract service number.
The director may modify the rule adopted under division (F)(3) of this section for the purpose of adding or deleting air contaminants. For each air contaminant that is contained in or deleted from the rule adopted under division (F)(3) of this section, the director shall include in a notice accompanying any proposed or final rule an explanation of the director's determination that the air contaminant meets the criteria established in that division and should be added to, or no longer meets the criteria and should be deleted from, the list of air contaminants. The explanation shall include an identification of the scientific evidence on which the director relied in making the determination. Until adoption of the rule under division (F)(3) of this section, nothing shall affect the director's authority to issue, deny, modify, or revoke permits to install under this chapter and rules adopted under it.
Not later than January 1, 2007, the director shall adopt rules in accordance with Chapter 119. of the Revised Code specifying activities that do not, by themselves, constitute beginning actual construction activities related to the installation or modification of an air contaminant source for which a permit to install is required such as the grading and clearing of land, on-site storage of portable parts and equipment, and the construction of foundations or buildings that do not themselves emit air contaminants. The rules also shall allow specified initial activities that are part of the installation or modification of an air contaminant source, such as the installation of electrical and other utilities for the source, prior to issuance of a permit to install, provided that the owner or operator of the source has filed a complete application for a permit to install, the director or the director's designee has determined that the application is complete, and the owner or operator of the source has notified the director that this activity will be undertaken prior to the issuance of a permit to install. Any activity that is undertaken by the source under those rules shall be at the risk of the owner or operator. The rules shall not apply to activities that are precluded prior to permit issuance under section 111, section 112, Part C of Title I, and Part D of Title I of the federal Clean Air Act. (G) Adopt, modify, suspend, and rescind rules prohibiting
the operation or other use of any new, modified, or existing air
contaminant source unless an operating permit has been obtained
from the director or his the director's authorized
representative, or the air
contaminant source is being operated in compliance with the
conditions of a variance issued pursuant to division (H) of this
section. Applications for operating permits shall be accompanied
by such plans, specifications, and other pertinent information as
the director may require. Operating permits may be issued for a
period determined by the director not to exceed five years, are
renewable, and are transferable. The director shall specify in
each operating permit that the permit is conditioned upon payment
of the applicable fees as required by section 3745.11 of the
Revised Code and upon the right of his the director's authorized
representatives
to enter upon the premises of the person to whom the permit has
been issued, at any reasonable time and subject to safety
requirements of the person in control of the premises, for the
purpose of determining compliance with this chapter, the rules
adopted thereunder, and the conditions of any permit, variance,
or order issued thereunder. Operating permits may be denied or
revoked for failure to comply with this chapter or the rules
adopted thereunder. An operating permit shall be issued only
upon a showing satisfactory to the director or his the
director's representative that the air contaminant source is being
operated in compliance
with applicable emission standards and other rules or upon
submission of a schedule of compliance satisfactory to the
director for a source that is not in compliance with all
applicable requirements at the time of permit issuance, provided
that the compliance schedule shall be consistent with and at
least as stringent as that contained in any judicial consent
decree or administrative order to which the air contaminant
source is subject. The rules shall provide for the issuance of
conditional operating permits for such reasonable periods as the
director may determine to allow the holder of an installation
permit, who has constructed, installed, located, or modified a
new air contaminant source in accordance with the provisions of
an installation permit, to make adjustments or modifications
necessary to enable the new air contaminant source to comply with
applicable emission standards and other rules. Terms and
conditions of operating permits issued pursuant to this division
shall be federally enforceable for the purpose of establishing
the potential to emit of a stationary source and shall be
expressly designated as federally enforceable. Any such
federally enforceable restrictions on a source's potential to
emit shall include both an annual limit and a short-term limit of
not more than thirty days for each pollutant to be restricted
together with adequate methods for establishing compliance with
the restrictions. In other respects, operating permits issued
pursuant to this division are enforceable as state law only. No
application shall be denied or permit revoked or modified without
a written order stating the findings upon which denial,
revocation, or modification is based. A copy of the order shall
be sent to the applicant or permit holder by certified mail. (H) Adopt, modify, and rescind rules governing the
issuance, revocation, modification, or denial of variances that
authorize emissions in excess of the applicable emission
standards. No variance shall be issued except pursuant to those rules.
The rules shall prescribe conditions and criteria in furtherance
of the purposes of this chapter and consistent with the federal
Clean Air Act governing eligibility for issuance of variances,
which shall include all of the following: (1) Provisions requiring consistency of emissions
authorized by a variance with timely attainment and maintenance
of ambient air quality standards; (2) Provisions prescribing the classes and categories of
air contaminants and air contaminant sources for which variances
may be issued; (3) Provisions defining the circumstances under which an
applicant shall demonstrate that compliance with applicable
emission standards is technically infeasible, economically
unreasonable, or impossible because of conditions beyond the
control of the applicant; (4) Other provisions prescribed in furtherance of the
goals of this chapter. The rules shall prohibit the issuance of variances from any
emission limitation that was applicable to a source pursuant to
an installation permit and shall prohibit issuance of variances
that conflict with the federal Clean Air Act. Applications for variances shall be accompanied by such
information as the director may require. In issuing variances,
the director may order the person to whom a variance is issued to
furnish plans and specifications and such other information and
data, including interim reports, as the director may require and
to proceed to take such action within such time as the director
may determine to be appropriate and reasonable to prevent,
control, or abate his the person's existing emissions of air
contaminants.
The director shall specify in each variance that the variance is
conditioned upon payment of the applicable fees as required by
section 3745.11 of the Revised Code and upon the right of his the
director's authorized representatives to enter upon the premises of the
person to whom the variance has been issued, at any reasonable
time and subject to safety requirements of the person in control
of the premises, for the purpose of determining compliance with
this chapter, the rules adopted thereunder, and the conditions of
any permit, variance, or order issued thereunder. The director may hold a public hearing on an application
for a variance or renewal thereof at a location in the county
where the variance is sought. The director shall give not less
than twenty days' notice of the hearing to the applicant by
certified mail and cause at least one publication of notice in a
newspaper with general circulation in the county where the
variance is sought. The director shall keep available for public
inspection at the principal office of the environmental
protection agency a current schedule of pending applications for
variances and a current schedule of pending variance hearings.
The director shall make a complete stenographic record of
testimony and other evidence submitted at the hearing. The
director shall make a written determination to issue, renew, or
deny the variance and shall enter his the determination and the
basis
therefor into the record of the hearing. The director shall
issue, renew, or deny an application for a variance or renewal
thereof, or issue a proposed action upon the application pursuant
to section 3745.07 of the Revised Code, within six months of the
date upon which the director receives a complete application with
all pertinent information and data required by the director. Any variance granted pursuant to rules adopted under this
division shall be for a period specified by the director, not to
exceed three years, and may be renewed from time to time on such
terms and for such periods, not to exceed three years each, as
the director determines to be appropriate. A variance may be
revoked, or renewal denied, for failure to comply with conditions
specified in the variance. No variance shall be issued, denied,
revoked, or modified without a written order stating the findings
upon which the issuance, denial, revocation, or modification is
based. A copy of the order shall be sent to the applicant or
variance holder by certified mail. (I) Require the person responsible for any air contaminant
source to install, employ, maintain, and operate such emissions,
ambient air quality, meteorological, or other monitoring devices
or methods as the director shall prescribe; to sample those
emissions at such locations, at such intervals, and in such
manner as the director prescribes; to maintain records and file
periodic reports with the director containing information as to
location, size, and height of emission outlets, rate, duration,
and composition of emissions, and any other pertinent information
the director prescribes; and to provide such written notice to
other states as the director shall prescribe. In requiring
monitoring devices, records, and reports, the director, to the
extent consistent with the federal Clean Air Act, shall give
consideration to technical feasibility and economic
reasonableness and allow reasonable time for compliance, and, for sources where a specific monitoring, record-keeping, or reporting requirement is specified for a particular air contaminant in an applicable regulation adopted by the United States environmental protection agency under the federal Clean Air Act, the director shall not impose an additional requirement other than the requirement specified in that applicable regulation for that air contaminant. To the extent consistent with the federal Clean Air Act, the director shall not require an operating restriction that has the practical effect of increasing the stringency of an existing applicable emission limitation or standard. (J) Establish, operate, and maintain monitoring stations
and other devices designed to measure air pollution and to enter
into contracts with any public or private agency for the
establishment, operation, or maintenance of such stations and
devices; (K) By rule adopt procedures for giving reasonable public
notice and conducting public hearings on any plans for the
prevention, control, and abatement of air pollution that the
director is required to submit to the federal government; (L) Through any employee, agent, or authorized
representative of the director or the environmental protection
agency, enter upon private or public property, including
improvements thereon, at any reasonable time, to make
inspections, take samples, conduct tests, and examine records or
reports pertaining to any emission of air contaminants and any
monitoring equipment or methods and to determine if there are any
actual or potential emissions from such premises and, if so, to
determine the sources, amounts, contents, and extent of those
emissions, or to ascertain whether there is compliance with this
chapter, any orders issued or rules adopted thereunder, or any
other determination of the director. The director, at reasonable
times, may have access to and copy any such records. If entry or
inspection authorized by this division is refused, hindered, or
thwarted, the director or his the director's authorized
representative may by
affidavit apply for, and any judge of a court of record may
issue, an appropriate inspection warrant necessary to achieve the
purposes of this chapter within the court's territorial
jurisdiction. (M) Accept and administer gifts or grants from the federal
government and from any other source, public or private, for
carrying out any of the functions under this chapter; (N) Obtain necessary scientific, technical, and laboratory
services; (O) Establish advisory boards in accordance with section
121.13 of the Revised Code; (P) Delegate to any city or general health district or
political subdivision of the state any of his the director's enforcement and
monitoring powers and duties, other than rule-making powers, as
the director elects to delegate, and in addition employ,
compensate, and prescribe the powers and duties of such officers,
employees, and consultants as are necessary to enable the
director to exercise his the authority and perform duties
imposed upon him the director by law. Technical and other
services shall be performed, insofar as practical, by personnel of the
environmental protection agency. (Q) Certify to the government of the United States or any
agency thereof that an industrial air pollution facility is in
conformity with the state program or requirements for control of
air pollution whenever such certificate is required for a
taxpayer pursuant to any federal law or requirements; (R) Issue, modify, or revoke orders requiring abatement of
or prohibiting emissions which that violate applicable emission
standards or other requirements of this chapter and rules adopted
thereunder, or requiring emission control devices or measures in
order to comply with applicable emission standards or other
requirements of this chapter and rules adopted thereunder. Any
such order shall require compliance with applicable emission
standards by a specified date and shall not conflict with any
requirement of the federal Clean Air Act. In the making of such
orders, the director, to the extent consistent with the federal
Clean Air Act, shall give consideration to, and base his the
determination on, evidence relating to the technical feasibility
and economic reasonableness of compliance with such orders and
their relation to benefits to the people of the state to be
derived from such compliance. If, under the federal Clean Air
Act, any such order shall provide for the posting of a bond or
surety to secure compliance with the order as a condition of
issuance of the order, the order shall so provide, but only to
the extent required by the federal Clean Air Act. (S) To the extent provided by the federal Clean Air Act,
adopt, modify, and rescind rules providing for the administrative
assessment and collection of monetary penalties, not in excess of
those required pursuant to the federal Clean Air Act, for failure
to comply with any emission limitation or standard, compliance
schedule, or other requirement of any rule, order, permit, or
variance issued or adopted under this chapter or required under
the applicable implementation plan whether or not the source is
subject to a federal or state consent decree. The director may
require the submission of compliance schedules, calculations of
penalties for noncompliance, and related information. Any
orders, payments, sanctions, or other requirements imposed
pursuant to rules adopted under this division shall be in
addition to any other permits, orders, payments, sanctions, or
other requirements established under this chapter and shall not
affect any civil or criminal enforcement proceedings brought
under any provision of this chapter or any other provision of
state or local law. This division does not apply to any
requirement of this chapter regarding the prevention or abatement
of odors. (T) Adopt procedures under which the director shall
consider best available technology for the pollutants regulated
by the new source performance standards established pursuant to
the federal Clean Air Act in order to establish emission limits
in installation permits issued pursuant to division (F) of this
section. The emission limits shall be equivalent to those new
source performance standards unless the standards are more than
five years old or have not been reviewed by the United States
environmental protection agency for more than five years. In
determining what technology is best for a specific source
application, the director may consider the extent to which a
technology generates pollution or waste other than air emissions
and shall approve the most cost effective among essentially
similar efficient control technologies as demonstrated by the
permit applicant to the satisfaction of the director. Any
facility that is subject to the federal prevention of significant
deterioration regulations and major new source review shall
comply with those regulations Require new or modified air contaminant sources to install best available technology, but only in accordance with this division. With respect to permits issued pursuant to division (F) of this section on or after January 1, 2008, best available technology for air contaminant sources and air contaminants emitted by those sources that are subject to standards adopted under section 112, Part C of Title I, and Part D of Title I of the federal Clean Air Act shall be equivalent to and no more stringent than those standards. For an air contaminant or precursor of an air contaminant for which a national ambient air quality standard has been adopted under the federal Clean Air Act, best available technology only shall be required to the extent required by rules adopted under Chapter 119. of the Revised Code for permit to install applications filed on or after January 1, 2008. Best available technology requirements established in rules adopted under this division shall be expressed only in one of the following ways that is most appropriate for the applicable source or source categories:
(2) Source design characteristics or design efficiency of applicable air contaminant control devices;
(3) Raw material specifications or throughput limitations averaged over a twelve-month rolling period;
(4) Monthly allowable emissions averaged over a twelve-month rolling period.
The rules shall not apply to an air contaminant source that has the potential to emit, taking into account air pollution controls installed on the source, less than ten tons of emissions of an air contaminant or precursor of an air contaminant for which a national ambient air quality standard has been adopted under the federal Clean Air Act. Best available technology requirements established in rules adopted under this division shall not apply to any existing, new, or modified air contaminant source that is subject to a plantwide applicability limit that has been approved by the director. (U) Consistent with section 507 of the federal Clean Air
Act, adopt, modify, suspend, and rescind rules for the
establishment of a small business stationary source technical and
environmental compliance assistance program as provided in
section 3704.18 of the Revised Code; (V) Provide for emissions trading, marketable permits,
auctions of emission rights, and economic incentives that would
reduce the cost or increase the efficiency of achieving a
specified level of environmental protection; (W) Provide for the construction of an air contaminant
source prior to obtaining a permit to install pursuant to
division (F) of this section if the applicant demonstrates that
the source will be installed to comply with all applicable
emission limits and will not adversely affect public health or
safety or the environment and if the director determines that
such an action will avoid an unreasonable hardship on the owner
or operator of the source. Any such determination shall be
consistent with the federal Clean Air Act. (X) Exercise all incidental powers, including adoption of
rules, required to carry out this chapter. The environmental protection agency shall develop a plan to
control air pollution resulting from state-operated facilities
and property.
Sec. 3704.09. Determinations made by the director of environmental protection
or other persons acting under sections 3704.03 and 3704.04 of the Revised Code
shall not be used as evidence in civil actions nor create any presumption of
law or finding of fact which that shall inure to or be for the benefit of any
person other than the state, and sections 3704.01 to 3704.07 of the Revised
Code do not create, or enlarge, or abrogate existing private rights. Nothing In a private civil action for an alleged nuisance related to the installation or operation of an air contaminant source, it is an affirmative defense if the air contaminant source is in compliance with the terms and conditions of any permit or applicable rules authorizing the installation or operation of the air contaminant source. Except as provided in this section, nothing in
Chapter 3704. of the Revised Code this chapter shall be construed to abridge, limit, or
otherwise impair the right of any person to damages or other relief on account
of injury to persons or property and to maintain any action or other
appropriate proceedings therefor.
Section 2. That existing sections 3704.02, 3704.03, and 3704.09 of the Revised Code are hereby repealed.
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