Article V

Response to Comments
QliIER\

Division of Air Pollution Control

Response to Comments

Draft Rule Language Comment Period

Rule: 3745-15-01, -02, -04, -05, -06, "08, and -09: General Provisions on Air

Pollution Control

Agency Contact for this Package

Division Contact: Jennifer Hunter, Division of Air Pollution Control, 614-644-3696,

jennifer.hunter@epa.state.oh.us

Ohio EPA provided a 30 day comment period, which was extended an additional 30

days, and ended on February 8, 2007. The original proposal also contained OAC rule

3745-15-07, Air Pollution Nuisance Prohibited. Due to concerns raised in comments by

stakeholders this rule is not being addressed or amended at this time. Comments on

OAC rule 3745-15-07 are still being considered and interested parties will be notified

prior to any futurerulemaking regarding this rule. This document summarizes the

comments and questions received at the public hearings and/or during the associated

comment period related to all other rules of OAC Chapter 3745-15 except OAC rule

3745-15-07, Air Pollution Nuisance Prohibited.

Ohio EPA reviewed and considered all comments received during the public comment

period. By law, Ohio EPA has authority to consider specific issues related to protection

of the environment and public health.

In an effort to help you review this document, the questions are grouped by topic and

organized in a consistent format. The comment is followed in parentheses by the

commenter(s).

OAC 3745-15-05 - the De Minimis Rule

Comment 1: Ohio EPA is proposing the addition of one new category of

sources to the list of sources that may not qualify for the

OAC 3745-15-05 de minimis exemption from permitting.

Specifically, Ohio EPA is proposing that the de minimis

exemption in OAC 3745-15-05 not apply to a source if it

"emits an air contaminant that constitutes a nuisance as

specified in rule 3745-15-07 of the Administrative Code."

See proposed OAC 3745-15-05(C)(6). The language that

Ohio EPA has proposed implies that there exists a category

of air contaminants that constitute nuisances. This is not

true. Rather, whether any given pollutant constitutes a

nuisance is based upon a balancing a various relevant
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Response 1:

factors. There is no list of per se nuisance air contaminants

identified in OAC 3745-15-07 or anywhere else.

According to Ohio EPA's Responsiveness Summary, this

proposed change is in response to a commenter who was

concerned that exempting de minimis sources from

permitting could allow unregulated emissions of toxic air

pollutants. If there is a concern that emissions of certain

pollutants warrant regulation at levels below the de minimis

thresholds, Ohio EPA should adopt rules to regulate such

source/contaminant combinations. (Kathy Milenkovski)

Ohio EPA will not be refilling amendments to the nuisance

rule in OAC rule 3745-15-07 at this time. Therefore, we will

be removing the language added to paragraph (C)(5) of this

rule during the proposal regarding nuisance provisions. This

language will be revisited at a later date when the nuisance

rule is addressed.

OAC rule 3745-15-06; Malfunction ofequiDment: scheduled maintenance;

reporting.

Paragraph (A); Scheduled maintenance

Comment 2: The change in OAC 3745-15-06(A) does not even list

community impacts for the Director to consider when

confronted with the issue of whether a facility should

continue to operate when its pollution control equipment is

shut down.

The Director's proposed changes to subsection (A), the rule

that addresses circumstances during which a source may

continue to operate its air pollution source despite the fact

that the pollution control system is off-line for scheduled

maintenance, fails to include counterbalancing interests of

the local community that is directly impacted by. the

uncontrolled operation of that source.

The proposed changes list the factors that the Director "may"

consider when evaluating a request to operate the source

while the pollution-control equipment is off-line. These

considerations are limited to facts associated with the

technical aspects of the maintenance needed and the

operation of the source and the. like. .The proposed rule is

devoid of any consideration of the impact on the surrounding

community - such as; (1) residents, given the amount of

uncontrolled emissions; (2) the hazardous or odorous nature

of the uncontrolled emissions; (3) the source's proximity to
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sensitive populations; (4) environmental justice issues; or,

(5) the feasibility of dramatically reducing production if it is

not legitimately feasible to halt all production.

If these types of considerations are not included in the list of

items that may be considered when evaluating a request of

continued operation, then, arguably, the Director will be

prohibited from considering those factors. The new

language does not include a general phrase allowing him to

consider factors other than those specifically listed.

Such a one-sided list of consideration violates RC 119.032

by not only taking away flexibility at the local level, but by

being inconsistent with a central purpose of Ohio's Air Law

(e.g. to protect health, welfare and prevent air pollution that

includes interferences with the comfortable enjoyment of life

'and property). Similarly, such a one-sided (Le., unbalanced)

analysis is directly at odds with RG 3704.03(E)(1)'s

requirement that the Director consider during rulemaking not

only the cost of compliance but the "benefits of the people of

the state to be derived from that compliance." Moreover, it

appears the Director has failed to consider the other factors

stated in RC 3704.03(E) when listing the factors he may

consider under OAG 3745-15-06(A):

1. 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.

2. Topography, prevailing wind directions and velocities,

physical conditions and other factors that mayor may

combine to affect air pollution.

When considering whether to allow a source to continue to

operate even though its pollution-control equipment is offline, the Director should, at the very least, consider those

factors set forth specifically in the law. (David Altman)

As one having a mechanical maintenance background, I

understand the necessity for period maintenance. But

bypassing an operation without the means to correct the

condition before final release was not an option. We had

redundant systems. Even if temporarily bypassing system

controls is an acceptable industry standard, I still find it

unconscionable that the public isn't notified. It's one thing for

the Ohio EPA and the facility operator to know when

maintenance will take place, but this does nothing to protect
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Response 2:

the public health and safety. The public must be warned of

the possible dangers so they can take precautions. (Joseph

A Bawidamann)

Paragraph (A) addresses scheduled maintenance and states

that maintenance of air pollution control equipment that

requires shutdown or bypassing of the control must be

accompanied by the shutdown of the associated source

(paragraph (A)(2» except under the circumstance where

complete source shutdown is impossible or impractical

(paragraph (A)(3». Under these circumstances, it is the

owner's responsibility to request in advance authorization for

continued operation. It is the director's discretion to

authorize this operation if he/she believes the situation is

justified.

ORC 3704.02(A) states the purpose of the air pollution

statute, which includes "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." We disagree that this rule does not

consider the purpose of the Ohio's air law and the welfare

and safety of the public, as well as public health, economic

vitality and the productive capacity. The rules themselves

further add that the purpose of the air pollution rules, is to

"set forth such requirements as shall be necessary to secure

and maintain those levels of air quality which are consistent

with the protection of health and the prevention of injury to

plant, animal life, and property in the state of Ohio, and to

provide for the comfortable enjoyment of the natural

attractions of the state to the greatest extent practical. All

regulations of the director shall be construed in such manner

as to effectuate this purpose." [OAC rule 3745-15-02]. Rule

3745-15-06(C) further states the director shall "take

appropriate . action". considering numerous factors which

include whether "the emissions endanger or tend to

endanger the health or safety of the public." Therefore, the

director always takes these factors into consideration when

acting upon requests for authorization to continue operating

during periods of maintenance.

Paragraph (A)(3) provides a list of information the owner

must submit in their request. These items include pertinent

information such as aquantification of the emissions that will

occur, the length of time and a demonstration of interim

control measures to reduce emissions. Paragraph (A)(4)
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provides the criteria by which the director will judge if the

justification submitted by the owner is adequate. It includes

items such as comparisons of similar source's that have

performed similar maintenance to ensure it is impossible or

impractical to completely shutdoWn the source, to ensure the

time period is appropriate and to ensure the most

appropriate measures to reduce emissions are performed.

We believe that it is through a review of the detailed

technical information that Ohio EPA can ensure all

reasonable measures are being taken to ensure protection

of the surrounding community. We believe the inclusion of

this list does not limit us from considering other factors not

listed, which is evidenced in the use of the language "may

consider." Notwithstanding these criteria, the director will

always consider the "protection of health and the prevention

of injury to plant, animal life, and property in the state of

Ohio, and to provide for the comfortable enjoyment of the

natural attractions of the state to the greatest extent

practical" as required under OAC rule 3745-15-02.

Therefore, we disagree that if these types of considerations

are not explicitly included in the list of items that may be

considered when evaluating a request "then, arguably, the

Director will be prohibited from considering those factors."

However, to ensure the rule language cannot be construed

to limit the director's authority, and fully indicates the current

authority, we will incorporate the following language:

"In order to detennine if the request submitted under

paragraph (A)(3) of this rule is consistent with the purpose

of this chapter. as specified in rule 3745-15-02 of the

Administrative Code. and satisfies the requirements

contained in paragraphs (A)(3)(a) to (A)(3)(f) of this rule,

the director may consider the following, among other

factors"

Paragraph (B); Malfunctions

Comment 3: And let me say that it is absolutely crazy to have a problem

that you say people don't know what to do with malfunctions

that last a few minutes? The Taft EPA, they had a great

answer. Give them two to three hours. That way they don't

have to worry about the malfunction that last a few minutes.

Every day. Crazy? I would use another word. Breathtaking.

(David Altman)

The changes in OAC 3745-15-06(B) are proposed because

some companies say they are "confused" about how to
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Response 3:

report an air pollution control equipment malfunction that is a

"few minutes in duration." To· remedy this purported

problem, the Taft EPA is proposing to give all companies up

to three hours of malfunctions during each 24 hour period.

This solution is breathtaking. (David Altman)

As is the earlier rule, 06 which would allow you to operate as

a malfunction for two or three hours every day. I mean that's

just. ...its just. ...ridiculous. (Ellis Jacobs)

State and federal emission control programs have contained

"malfunction" provisions since their inception. Such

provisions are necessary and appropriate because

technology is not infallible; occasional malfunctions,

breakdowns, upsets, or failures are inevitable. It would be

wrong for a command and control regulatory program to

force technology to reduce emissions, and then impose

liability for using that technology in the manner designed and

intended. Regulations that demand the impossible or

impractical are not reasonable, and are not authorized by the

General Assembly. (Kathy MilenkoYski)

USEPA has long recognized that malfunctions of equipment

will occur. Therefore, USEPA has developed a malfunction

regulation policy and various guidance documents that

identify necessary program elements necessary for states to

implement malfunction requirement. That is the purpose of

this rule.

It is important to note that this rule does not "allow" a source

to operate as a malfunction for any given period. The rule,

first and foremost, states (as it historically has) that

malfunctions that cause the emission of air contaminants in

excess of stateand federal requirements are a violation. It

then, with the proposed amendments, clearly identifies when

and how these violations must be reported under the

malfunction rule. As with any occurrence, malfunction or

otherwise, at a facility that causes a violation of an

applicable requirement, it is the responsibility of the owner or

operator to correct the occurrence and return the source

back to an operational state that maintains compliance with

applicable requirements and permits. It is Ohio EPA's

responsibility to monitor these activities at a facility and

follow up as necessary.

Ohio EPA's currel;lt rule does not provide clarity regarding

malfunctions that trigger reporting. Our review found many
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Comment 4:

states require similar types of tiered reporting requirement,

whether based on the duration·of the release or the quantity

of the release. Our rule has been considered ambiguous and

often leads to' confusion as to how small of a release

requires reporting, for example, a 1-minute exceedance on a

continuous emissions monitor (CEM). This change provides

clear direction as to when reporting is required under the

malfunction rule. Furthermore, it provides tiered reporting

where repeated occurrences and occurrences that continue

intermittently after 24-hours are sUbject to more stringent

reporting requirements.

It is also important to note that ANY release under Part 302,

regulation of hazardous substances, or Part 355, regulation

of extremely hazardous substances, of Title 40 of the CFR is

always required to be reported in accordance with those

requirements. This malfunction rule does not implement or

replace those requirements. Finally, it should be noted that

any release that exceeds federal requirements will require

more stringent reporting than those only regulated under

state rules and that all releases that deviate from permitted

levels will always be required to be reported under the

written deviation reports submitted by a facility.

The Director's proposed changes to OAC 3745-15-06(B),

Ohio's malfunction rule, are also unreasonable and unlawful.

In this proposed rule change, the Director seeks to

dramatically reduce the reporting requirements for

breakdowns that cause violations of federal or state air laws.

In addition, the Director re-defines the term "malfunction' to

exclude breakdowns that cause violations of the law shorter

in duration than the time period prescribed. Under the

proposed rule, for violations of federal law, illegal emissions

could continue intermittently for two hours before the event is

considered a malfunction. Similarly, for violations of state law

requirements, the illegal emissions could occur intermittently

up to three hours before the event is considered a

malfunction.

Changing the definition of "malfunction" has broad

consequences not recognized or considered by the Director.

The Director has a duty under RC119 to adequately describe

the changes he is making. By failing to alert the public of

these additional consequences of modifying the malfunction

rule, the Director has violated Chapter 119. For example,

under the proposed rule, the Director will no longer be able

to address repeated and excessive breakdowns lasting less
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than the two to three hours per 24 hour time period under his

authority to require preventive maintenance and malfunction

abatement plans. See OAC 3745-15-06(D). Under OAC

3745-15-06(D), the Director may require such plans where

there are excessive or unduly prolonged "malfunctions."

However, under the proposed rule, there would be. no

"malfunction" where a facility has repeated, even daily,

breakdowns that cause violations that fall just short of the

two to three hour cut-offs. Thus, the Director would not be

able to require a preventive maintenance and malfunction

abatement plan for those facilities.

Moreover, in his Responsive Summary, the Director makes

clear that the USEPA has required Ohio EPA to clearly

identify that "malfunctions" resulting in violations of

applicable requirements are not excused as a result of the

malfunction rule. By redefining the term "malfunction," the

Ohio EPA may be attempting to avoid US EPA's position

that such events cannot be excused as violations.

The existing rule requires the immediate reporting of any

breakdown or failure of emission source or air pollution

control equipment in a manner that caused emissions of air

contaminants in violation of applicable law. The existing rule

does not require the reporting of any breakdowns or failures

just because they cause some increased emissions. Rather,

immediate reports are only required where the excess

emissions actually violated the law. To change this rule to

give violating facilities further ability to hide their violations

from the government than the pUblic does not serve the

purpose behind Ohio's air law (e.g., to protect health and

welfare arid prevent air pOllution.)

The Director is claiming to address the polluters' confusion '

about whether they must report a one-minute exceedance

on a continuous emissions monitor by giving polluters a

three-hour grace period before timely notice of that violation

is required. The Director's solution is not rationally related to

the "problem" he is purporting to address and is, therefore,

unreasonable.

Moreover, the potential for abuse in allowing facilities two to

three hours per day to have unreported violations is

remarkable. The resulting impact on the surrounding

community could be dramatic. In modifying this rule, the

Director failed to properly balance the benefits and harms
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resulting from this change as required under Ohio's Air Law,

RC 3704.03, and Ohio's Administrative Law, RC119.032.

Additionally, the Director has failed to properly consider the

other factors required to be evaluated in RC 119.032 and

3704.03. His failures to properly consider the criteria in

those laws render his proposed rule unlawful. For example,

the Director failed to consider the purpose of Chapter 3704,

as set for in RC 3704.02, by ignoring the impact two to three

hour violations have on the surrounding public and the

public's immediate need to know exactly what its members

have been exposed to.

Moreover, the Director's analysis of what other states

required in their "malfunction" rules is lacking. First, the

Director's flawed analysis is clear from the face of the

Director's description; in this description, the Director

acknowledges that other states have more stringent

reporting requirements for exceedances lasting less than the

two to three hour time period the proposed change would

allow. Further, he did not evaluate all state laws and

appears to have only chosen a handful of states that the

Director seems to believe supports his position.

In addition, the Director proposes to change the requirement

in OAC 3745-15-06 that breakdowns causing violations be

reported "immediately' to the OEPA. Instead, he is allowing

a full day to go by before reporting is required. The Director

has failed to provide evidence that this change is justified

under Chapter 119 or consistent with the purpose and

mandates of Chapter 3704. The Director has offered no

evidence that facilities have been unable to "immediately

report" the breakdowns. Since the consequences are often

"immediately" detectable by the surrounding community, it is

only right that the Ohio EPA has the information from the

company necessary to answer the community's questions

about the resulting change in air quality that they are

experiencing because of the violation. (David Altman)

OEC also strongly opposes the Director's attempt to extend

a facilities requirement to report malfunctions or breakdowns

of equipment that result in violations of air quality rules. The

previous rule called for such malfunctions to result in

immediate reporting. The basis for this immediate reporting

comes form the purposes of Ohio's Air Quality Laws and the

powers and duties of the facilities to hide violations of air

laws from malfunctions that last up to three hours in a 24-
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Response 4:

hour period, and breakdowns that last over one day. The

Director has provided no evidence as to why the change is

necessary, and especially how this change will protect health

and welfare and prevent pollution as the Ohio Air Laws are

designed to accomplish. Not only is a three hour minimum

for malfunction (and an entire day for "breakdowns") based

violations arbitrary and capricious but could result in serious

health impacts to sensitive populations in the neighboring

community. The Director needs immediate notification of

such violations, not to determine how much to fine and

punish, but to quickly investigate the problem and notify

those sensitive populations that may be at risk. (Trent

Dougherty)

As stated above, Ohio EPA's current rule does not provide

clarity regarding malfunctions that trigger reporting. The

current rule language does not explicitly identify at what

point reporting is triggered and has been considered

ambiguous and often leads to confusion as to how small of a

release requires reporting. In our review of other states'

malfunction reporting requirements, we found many states

require a reporting requirement based on the duration of the

release or the quantity of the release (our review did not

identify any state with requirements similar to Ohio's current

trigger for notification regardless of malfunction time or

quantity of excess emissions). This change provides clear

direction as to when reporting is required under the

malfunction rule.

We disagree that under the proposed rule "illegal emissions

could continue....before the event is considered a

malfunction: This rule does not authorize emissions in

violation of requirements. Rather it explicitly states the

emission of air contaminants in excess of state and federal

requirements are a malfunction. It is not the intent of this

rule to state that if the time period for reporting a malfunction

is not triggered then the event.is not a malfunction. It still

remains a malfunction and any exceedances or deviations

from applicable requirements, irrespective of the time period

and irrespective of whether they are a result of a

malfunction, will continue to be reported as required under

other reporting regimes (e.g., deviation reporting in permits).

Malfunction reporting is in addition to the monitoring, record

keeping and reporting required through permits that are

necessary to ensure compliance with applicable

requirements. Malfunction reporting is not the only tool used

by the Director to conduct compliance oversight. Therefore,
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we also disagree that the director "will no longer be able to

address repeated and excessive breakdowns lasting less

than the two to three hours per 24 hour time period under his

authority to require preventive maintenance and malfunction

abatement plans." In order to ensure our amendments do

not suggest that a malfunction under the reportable time

periods is construed to not be a malfunction, we will

incorporate the following language:

(B)(1): "For the purposes of this rule, a reportable

malfunction occurs whenever..."

and;

(F) Nothinq in this rule is intended to excuse anv violation of

rule or law as a result of any action or failure of the owner or

operator of an air contaminant source, whether or not such

action· or failure is deemed a reportable malfunction under

this rule. Nor does anything in this rule excuse or relieve an

owner or operator from reporting violations as required under

other applicable rules or laws.

It should be noted there are also expanded and clarified

reporting requirements included in the proposed rule. For

example, we felt a malfunction continuing for greater than

24-hours (current rule states 72-hours) is excessive enough

to warrant a written follow-up to the Agency. We also felt it

should be clarified that this malfunction does not have to be

continuous in nature, but could consist of intermittent starts

and stops of the same nature occurring over the 24-hour

period. Similarly, we felt a malfunction continuing for greater

than 48-hours (current rule states 72-hours) is excessive

enough to warrant a written follow-up with preventative

measures to the Agency. Again, we also felt it should be

clarified that this malfunction does not have to be continuous

in nature, but could consist of intermittent starts and stops of

the same nature occurring over the 48-hour period. It should

be noted that malfunction event records must be maintained

on-site for a 57year period for all malfunctions that are

reported. A commenter noted that we also amended

language stating malfunctions must be reported

"immediately." In addition to "immediately" being ambiguous,

it is paramount that the facility prioritizes acting quickly to

correct the malfunction and then notify Ohio EPA as soon as

possible. Many times the event, magnitude, cause, and

resolution to a malfunction event is not immediately clear

and takes concerted resources to resolve the situation.
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Comment 5:

Focusing on procedural notification requirements to the

detriment of resolving the malfunction quickly is contrary to

protection of public health. We feel it would be unreasonable

for any notification to exceed 24-hours without notification.

We have clarified that this quick notification would not be

appropriate through paper means, but rather telephone or

electronic means, such as e-mail is appropriate.

This rule does not imply the director will "ignore the impact

two to three hour violations have on the surrounding public

and the public's immediate need to know exactly what its

members have been exposed to." As identif.ied above, other

reporting requirements, such as deviation reporting, provide

the director with a mechanism to monitor exceedances and

deviations from emissions limitations required by state and

federal law. . The director, through the review of these

reports, through on-site inspections and review of records,

and through various other means, such as citizen

complaints, retains the authority to appropriately enforce the

laws of Ohio and the laws delegated to Ohio by the federal

government. Furthermore, as identified above, ANY release

under Part 302, regulation of hazardous substances, or Part

355, regulation of extremely hazardous substances, of Title

40 of the CFRis always required to be reported in

accordance with those requirements. These federal rules

were developed to provide the public with immediate

notification of releases the federal government has

determined are hazardous. This malfunction rule does not

implement or replace or otherwise undermine those

requirements.

Lastly, we regret that the commenter feels the "director's

analysis of what other states required in their "malfunction"

rules is lacking: We believe we took great care in reviewing

numerous other states' requirements when updating our

malfunction requirements to be more consistent and clear.

Ohio's malfunction rule, in effect since 1972, treats

malfunction events differently from other operating

circumstances. The rule authorizes the Director to take

"appropriate action" in response to .claimed "malfunction"

events if and only if the Director determines "that the

reporting requirements of this rule have not been satisfied,

that the equipment was not properly operated and

maintained prior to breakdown, that shutdown of the source

or operation during the period of maintenance or breakdown

was or has been avoidable, or was prolonged in bad faith, or
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that the emissions endanger or tend to endanger the health

or safety of the public." OAC 3745-15-06(C). The Director

"retains the responsibility to evaluate any report submitted

pursuant to [OAC 3745-15-06]," id., and may determine that

a reported "malfunction" was avoidable, prolonged in bad

faith, due to improper operation or maintenance, or

otherwise subject to "appropriate action" based on the

factors set forth in OAC Rule 3745-15-06(C). But without

such a determination by the Director, "action" of an

enforcement nature would not be appropriate and is not

contemplated or authorized by the malfunction rule. The rule

is thus plainly designed to excuse legitimate malfunction

events, and to establish criteria for differentiating legitimate

from specious claims of "malfunction" events. Events that

would otherwise be "violations" in the absence of the rule are

not considered violations if the requirements of the rule are

met.

The requirements of Ohio's malfunction rule are triggered

only if emissions "violate" any applicable law. Taken in

context, the word "violate" in OAC Rule 3745-15-06(8)(1) is

used to quantify emissions, not to establish liability. Many

equipment breakdowns and abnormal operational conditions

do not result in emissions that exceed any applicable

standard. Emissions that do not "violate" underlying

emission limits do not require any malfunction provision

protection. The word "violate" is thus used to describe an

emission threshold, not to circumvent a proper adjudication

of compliance versus noncompliance.

US EPA and a number of states use various formulations of

malfunction rules that effectuate the same primary purpose:

to accommodate the reality of technological fallibility, a'nd to

not demand impossible or impractical performance. For

example, the New Jersey Air Pollution Control Act provides:

The Legislature finds that equipment in

facilities regulated by the "Air Pollution Control

Act (1954)," P.L.1954, c.212, may malfunction

or fail to perform optimally, even when carefully

maintained and operated; that violations of the

act may occur due to an unforeseeable and

unavoidable malfunction, during equipment

start-up or shut-down, or during necessary

equipment maintenance due to the inherently

intricate nature of mechanical equipment; and

that these violations should not be accorded
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penalties as long as any resulting air emission

causes no potential threat to the pUblic health,

welfare or the environment. The Legislature

therefore finds and declares that it is the policy

of this State to protect the public health,

welfare and the environment, to promote the

careful operation and maintenance of

equipment in facilities regulated by the "Air

Pollution Control Act (1954)," and to reduce the

unnecessary burden of monetary penalties for

violations caused by a' non-recurring

equipment malfunction, equipment start-up, qr

equipment shut-down or during necessary

equipment maintenance by providing an

affirmative defense to liability for penalties

when a facility is operated and maintained

carefully, when all reasonable steps are taken

to minimize emission levels caused by a

violation, and when the emissions do not cause

a potential threat to the public health, welfare

or the environment.

See N.J. 26:2C-19.1.

Indeed, even stringent technology-based federal regulations

such as the New Source Performance Standards (NSPS)

and the Maximum Achievable Control Technology (MACT)

Standards excuse unavoidable malfunctions. The general

provisions of both the NSPS and the MACT standards

provide that "[o]perations during periods of startup,

shutdown, and malfunction shall not constitute

representative conditions for. the purpose of a performance

test nor shall emissions in excess of the level of the

applicable emission limit during periods of startup, shutdown,

and malfunction be considered a violation of the applicable

emission limit unless otherwise specified in the applicable

standard." See 40 CFR 60.8(c), 40 CFR 63.7(e) (emphasis

added). In addition, while the MACT standards impose a

General Duty to minimize emissions, 40 CFR 63.6(e)

provides that "[t]he general duty to minimize emissions

during a period of startup, shutdown, or malfunction does not,

require the owner or operator to achieve emission levels that

would be required by the applicable standard at other times

if this is not consistent with safety and good air pollution

control practices..."
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Many states provide special treatment for excess emissions

resulting from malfunctions. In Indiana, for example, the

rules provide that "emissions temporarily exceeding the

standards which are due to malfunctions of facilities or

emission control equipment shall not be considered a

violation of the rules," provided the source demonstrates that

"(1) All reasonable measures were taken to correct, as

expeditiously as practicable, the conditions causing the

emissions to exceed the allowable limits... (2) All possible

steps were taken to minimize the impact of the excessive

emissions on ambient air quality... (3) Malfunctions have not

exceeded five percent (5%), as a guideline, of the normal

operational time of the facility. (4) The malfunction is not due

to the negligence of the operator." See 326 lAC 1-6-4,

Conditions under which malfunction not considered violation

(emphasis added).

New York provides that "a violation of any applicable

.emission standard for necessary scheduled equipment

maintenance, start-up/shutdown conditions and malfunctions

or upsets may be excused if such violations are

unavoidable." NYCRR §201-1.4, Unavoidable

noncompliance and violations (emphasis added). The New

York rules go on to provide that "An emergency constitutes

an affirmative defense to an action brought for

noncompliance with emission limitations or permit

conditions..." provided that the notification and reporting

requirements of rule are met. See NYCRR §201-1.5,

Emergency defense (emphasis added).

In Kentucky, "emissions which, due to shutdown or

malfunctions, temporarily exceed the standard set forth by

the cabinet shall be deemed in violation of such standards

unless the requirements of this section are satisfied and the

determinations specified in subsection (4) of this section are

made." 401 KAR 50:055, General compliance requirements

(emphasis added). Subsection (4) of that section goes on to

state that "[a] source shall be relieved from compliance with

the standards set forth by the cabinet if the director

determines, upon a showing by the owner or operator of the

source, that: (a) the malfunction or shutdown and ensuing

start-up did not result from the failure by the owner or

operator of the source to operate and maintain properly the

equipment; (b) All reasonable steps were taken to correct,

as expeditiously as practicable the conditions causing the

emissions to exceed the standards, including the use of offshift labor and overtime, if necessary; (c) All reasonable
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Response to Comments

2/8/07 Page 16 of 31

steps were taken to minimize the emissions and their effect

on air quality resulting from the occurrence; (d) The excess

emissions are not part of a recurring pattern indicative of

inadequate design, operation, or maintenance; and (e) The

malfunction or shutdown and ensuing start-up was not

caused entirely or in part by poor maintenance, careless

operation or any other preventable upset conditions or

equipment breakdown." Id. (emphasis added).

In Virginia, "no violation of applicable emission standards or

monitoring requirements shall be judged to have taken place

if the excess emissions or cessation of monitoring activities

is due to a malfunction," provided that the procedural

requirements of Virginia's rule 9 VAC 5-20-180 are satisfied.

(Emphasis added).

As U.S. EPA and all of these states recognize, where a

malfunction occurs and it is not the result of poor

maintenance or careless operation, the owner or operator is

excused from failing to meet. the otherwise applicable

emission limits. (Kathy Milenkovski)

As we commented previously, Ohio's malfunction rule, from

its inception - just like the other State malfunction rules cited

above - has provided protection to facilities during times of

unanticipated and unpreventable upsets. The rule has been

effective. We know of no instance in the history of OAC

3745-15-06 in which a' malfunction was treated as

enforceable noncompliance, provided the procedural and

substantive requirements of the rule were met. Where

claimed malfunction events are unduly repetitive or the result

of poor operation or maintenance of the source, the rule

authorizes the Director to reject the claim of a "malfunction,"

and, where the substantive and procedural malfunction

requirements are not met, the Director can take "appropriate

action," which might include enforcement of applicable

emission limits. We believe this historical interpretation and

application of the current rule should be preserved in any

future revisions of the rule.

The Ohio EPA Responsiveness Summary that accompanied

this proposal stateS that it is important to note that the use of

the term "violation" was not added as part of this rulemaking

action. The use of that term has been in this rule since

inception and placed there intentionally. Malfunctions

reported under this rule are violations.
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Response to Comments

2/8/07 Page 17 of 31

We do not dispute the fact that the term "violation" has

always appeared in this rule. However,as explained above,

where the rule states that a malfunction is an event in which.

"an emission source, air pollution control equipment, or

related facility breaks down in such a manner as to cause

the emission of air contaminants in violation of any

applicable law:' we believe that the word "violation" simply

means that a malfunction has caused emissions to exceed

allowable limits; it is in no wayan adjudication or a required

confession of liability. It is unnecessary to use a malfunction

rule to create liability for exceeding applicable emission

limitations. Such liability exists elsewhere. Thus, the

malfunction rule can only have been created to excuse such

liability and to impose notification and reporting requirements

to document both the malfunction and its correction.

Commenters ask, what is the point of enacting a regulation

that creates liability for unavoidable and unforeseeable

malfunctions? The threat of such liability can not and will not

eliminate unavoidable equipment malfunctions, thus the rule

cannot be intended as a deterrent. If the rule does not

serve to prevent malfunctions or deter events that might lead

to malfunctions, the rule's imposition of liability for such

unavoidable malfunctions is arbitrary and unreasonable.

(Kathy Milenkovski)

Ohio EPA's proposal to revise the OAC 3745-15-06(8)(1)

definition of "malfunction" as being a breakdown that

"CaUse[s) the emission of air contaminants in violation of the

lowest of the quantities of [various applicable laws)" is

unclear. The rule has historically been understood and

applied to establish the minimal amount of emissions that

would trigger a malfunction response so it would be more

clear and accurate to replace the word "violation" with the

word "excess." This also helps to clarify that an exceedance

of an emissions limitation during a malfunction event is not

meant to establish a "violation:' but only to trigger

requirements under the rule.

Applying the malfunction rule to "emissions in excess of an

applicable requirement" rather than "emissions in violation of

an applicable requirement" is also the approach used by

states that Ohio EPA cites for guidance in the Rule

Synopsis. The Texas Commission on Environmental Quality

addresses malfunctions in the context of an "emissions

event:' defined as "any upset event or unscheduled

maintenance, startup, or shutdown activity, from a common
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Response to Comments

218107 Page 18 of 31

,,:.

Response 5:

cause that results in unauthorized emissions of air

contaminants from one or more emissions points at a

regulated entity," 30 Texas Adm. Code § 101.1(28). The

. Texas CEQ then describes the detailed reporting and

recordkeeping requirements for such an "emissions event."

30 Texas Adm. Code § 101.201. In Missouri, the

Department of Natural Resources defines "malfunction" as

"[a] sudden and unavoidable failure of air pollution control

equipment or process equipment or of a process to operate

in a normal and usual manner," 10 MO CSR 10-

6.020(2)(M)(4). The rule also clarifies that ''[e]xcess

emissions caused by improper design shall not be deemed a

malfunction," id., and sets forth the requirements when a

malfunction "results in excess emissions that exceeds one

(1) hour." 10 MO CSR 10-6.050(3)(A). Similarly, the

Michigan Department of Environmental Quality defines

"malfunction" as "any sudden, infrequent and not reasonably

preventable failure of a source, process, process equipment,

or air pollution control equipment to operate in a normal or

usual manner," Ml Adm. Code R 336.1113(d). The rule

clarifies that "[f]ailures that are caused in part by poor.

maintenance or careless operation are not malfunctions," id.,

and sets forth the requirements when a malfunction "results

in emissions of any air contaminant continuing for more than

2 hours in excess of a standard or limitation established by

any applicable requirement." MI Adm. Code R 336.1912«3).

All of these states consider malfunctions in the context of

emissions that exceed an applicable requirement, not as

violations of that applicable requirement, a reasonable

approach more consistent with the purpose of a malfunction

rule. (First Energy)

We disagree that "action" of an enforcement nature would

not be appropriate and is not contemplated or authorized by

the malfunction rule" unless the director determines "that the

reporting requirements of this rule have not been satisfied,

that the equipment was not properly operated and

maintained prior to breakdown, that shutdown of the source

or operation during the period of maintenance or breakdown

was or has been avoidable, or was prolonged in bad faith, or

that the emissions endanger or tend to endanger the health

or safety of the public." The malfunction rule covers

malfunctions that result in a violation of requirements. The

director's authority to enforce violations of applicable

requirements, whether resulting from a malfunction or

otherwise, is not limited by this rule nor do we believe this
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Response to Comments

2/8/07 Page 19 of 31

rule "from its inception.... has provided protection to facilities

during times of unanticipated and unpreventable upsets."

The commenter further states "the rule is thus plainly

designed to excuse legitimate malfunction events, and to

establish criteria for differentiating legitimate from specious

claims of "malfunction" events. Events that would otherwise

be "violations" in the absence of the rule are not considered

violations if the requirements of the rule are met." We

disagree. Ohio's rule has always ascertained that these

emissions are a violation evidenced in the original language

which states "breaks down in such a manner as to cause the

emission of air contaminants in violation of any applicable.

law." This language was purposely added to address

concerns raised by USEPA during the original promulgation

of Ohio's malfunction rule language. USEPA provided

several comments as follows:

January 24. 1979 Comments on Preliminary Draft Language

from Robert L. Duprey. Director Air and Hazardous Materials

Division (USEPA) to Clyde Watkins, Director Office of Air

Pollution (Ohio EPA)

"A malfunction or breakdown of air pollution control

equipment or related facility in a manner that causes the

emission of air contaminants in excess of the allowable shall

be considered at all times to be a violation of the applicable

emission limit." USEPA stated in their comments that any

contradiction of this position would jeopardize the

approvability of Ohio EPA's proposed rule (at that time) into

the SIP."

March 13, 1979 Letter from Steve Rothblatt. Chief Air

Programs Branch (USEPA) to Chuck Taylor, Acting Chief

Office of Air Pollution (Ohio EPA).

"Basic to USEPA's malfunction regulation policy is the fact

that all excess emissions are violations of the applicable

emissions standards."

From attachment from Robert L. Duprey, Director Air

and Hazardous Materials Division (USEPA) to Jacob

Durnell, Chairman Illinois Pollution Control Board.

USEPA's 1999 guidance document "Clarification - State

Implementaiton Plans (SIPs): Policy Regarding Excess

Emissions During Malfunctions, Startup, and Shutdown,"

which was re-issued in 2001, identifies the same USEPA
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2/8/07 Page 20 of31

Comment 6:

position, excess emissions are a violation, that was identified

by USEPA during comment of Ohio's original rule language

which was approved into Ohio's SIP prior to the guidance

document. Our rule, and original intent in the record, clearly

identifies Ohio EPA's position has always been and

continues to be same, excess emissions are violations.

Ohio EPA, like USEPA and other states, recognizes

malfunctions occur. But, for Ohio EPA to draft rule language

that id~ntifies malfunctions are not violations would

jeopardize the ability for Ohio EPA to obtain SIP approval of

these proposed amendments. Ohio EPA will continue to use

enforcement discretion, as appropriate based on Ohio EPA's

enforcement policy, when malfunctions result in violations of

. applicable requirements.

It is important to note one of the purposes of this rule is to

provide a timely mechanism to keep Ohio EPA and the

public informed when malfunctions occur so that Ohio EPA

can assist owners with reducing these occurrences in order

to ensure the purpose of the air pollution control laws are

met; such as "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."

Ohio EPA states that it is proposing reVISions to the

malfunction rule "in order to provide clarity and update the

requirements to be more consistent with similar programs in

other states." See Rule Synopsis. We do not believe that

the current proposal accomplishes either of these goals. We

believe that Ohio EPA can improve the clarity of OAC 3745-

15-06 with less drastic revisions, which we propose later in

these comments.

1. The proposed changes do not make Ohio's rule more

consistent with rules in other states.

Contrary to Ohio EPA's stated intention, the current proposal

does not make Ohio's rule more consistent with similar

programs in other states because, as illustrated above, most

.other states provide an excuse for malfunctions that Ohio

EPA's proposal fails to provide. Even states that Ohio cites

as authorities for its proposed revisions - Indiana and Texas

- afford protection to facilities when malfunctions are

properly reported and documented. See Indiana's

regulation 326 lAC 1-6-4, qUoted above, which expressly
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Response to Comments

218107 Page 21 of 31

states that excess emissions due to malfunctions are not

violations when the rule's procedural requirements are

satisfied. See a/so, Texas Rule §101.222, which provides

that "upset events that are determined not to be excessive

emissions events are subject to an affirmative defense to all

claims in enforcement actions brought for these events,

other than claims for administrative technical orders and

actions of injunctive relief," if the owner proves the required

information and takes the appropriate actions in response to

the event

Ohio EPA's proposed approach to malfunctions, which

would treat events that are unforeseeable and beyond the

reasonable control of the owner or operator. as "violations"

subject to a host of administrative and civil penalties -

including potential criminal liability - is not a lawful or

reasonable policy. Adopting such an interpretation will hurt

Ohio's competitiveness. A recent study by the Beacon Hill

Institute at Suffolk University ranked the 50 states on

competitiveness, considering government and fiscal policy,

security, infrastructure, human resources, technology,

business incubator, openness, and environmental policy.

That study ranked Ohio 44th overall, and an alarming 4ih out

of 50 with respect to Ohio's business competitiveness based

on its environmental policies. See State Competitiveness

Report 2006,

http://www.beaconhill.org/Compete06/06StateCompeteFinal.

pdf.

If Ohio EPA wants its malfunction rule to be consistent with

other state programs, then the Ohio malfunction rule should

continue to provide the types of protections (exceptions to

the compliance obligation and affirmative defenses) provided

by those other states. We propose that Ohio EPA can meet

its stated objectives of improved consistency and clarity -

without sacrificing enforcement authority - by making any of

the following edits to OAC 3745-15-06:

Option 1: Remove the word "violation" from the current

proposal

By simply changing a few words in the current rule proposal,

Ohio EPA would eliminate the issue we are concerned with,

while still providing the Director with authority to pursue

enforcement for excess emissions that are preventable and

should not be excused. We propose the following:
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Response to Comments

2/8/07 Page 22 of 31

(B) Malfunctions of air pollution control equipment

shallee reflerteel as follews:

(1) In the event that any emission source, air

pollution control equipment, or related facility

breaks down in such a manner as to cause the

emission of air contaminants in vielatieA

EXCESS of any applicable IawEMISSION

LIMITATION OR STANDARD, the person

responsible for such equipment shall

immeeliately notify the Ohio environmental

protection agency district office or elele§ate

a§eAOY ef stloh failtlFe or 13reakele'....A LOCAL

AIR AGENCY OF SUCH MALFUNCTION AS

SOON AS PRACTICABLE, BUT NOT LATER

THAN TWENTY-FOUR HOURS AFTER THE

DISCOVERY OF THE EVENT.

NOTIFICATION SHALL TAKE THE FORM OF

A TELEPHONE CALL. FAX, OR OTHER

ELECTRONIC NOTIFICATION....

Option 2: Add greater c1aritv similar to malfunction

provisions in neighboring states

Another option is to amend the rule to provide a more clear,

concise malfunction excuse. Two examples of simple,

clearly worded malfunction rules, based on the Indiana and

Kentucky rules, are as follows:

Emissions temporarily exceeding otherwise applicable

emission limitations or standards which are due to

malfunctions of facilities or emission control

equipment shall not be considered a violation of those

emission limitations or standards provided that the

source demonstrates that

(1) All reasonable measures were taken to

correct, as expeditiously as practicable, the

conditions causing the emissions to exceed the

allowable limits;

(2) All possible steps were taken to minimize

the impact of the excessive emissions on

ambient air quality;

(3) Malfunctions have not exceeded five

percent (5%), as a guideline, of the normal

operational time of the facility; and

(4) The malfunction is not due to the

negligence of the operator.
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Response to Comments

2/8/07

or

Page 23 of 31

Emissions which, due to shutdown or malfunctions,

temporarily exceed any otherwise applicable emission

limitation or standard shall be deemed in violation of

such emission limitation or standard unless the

requirements of this section are satisfied. A source

shall be relieved from compliance with the otherwise

applicable emission limitation or standard if the

director determines, upon a showing by the owner or

operator of the source, that:

(a) the malfunction or shutdown and ensuing

start-up did not result from the failure by the

owner or operator of the source to operate and

maintain properly the equipment;

(b) All reasonable steps were taken to correct,

as expeditiously as practicable the conditions

causing the emissions to exceed the

standards, including the use of off-shift labor

and overtime, if necessary;

(c) All reasonable steps were taken to minimize

the emissions and their effect on air quality

resulting from the occurrence;

(d) The excess emissions are not part of a

recurring pattern indicative of inadequate

design, operation, or maintenance; and

(e) The malfunction or shutdown and ensuing

start-up was not caused entirely or in part by

poor maintenance, careless operation or any

other preventable upset conditions or

equipment breakdown.

Option 3: Change nothing.

Nothing requires that Ohio EPA revise OAC 3745-15-06 at

this time. Consequently one option would be to leave the

rule as is and to maintain the historical interpretation that

excess emissions attributable to a legitimate and

unavoidable malfunction are not the proper subject of any

"action" by the Director.

Any of these three options would satisfy Ohio EPA's stated

goal of ensuring that Ohio's program is consistent with other

states and federal regulations. (Kathy Milenkovski)
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Response to Comments

218107 Page 24 0'31

Response 6:

Proposed changes to OAC 3745-15-06(C) provides for the

Director to take appropriate action if the source failed to

comply with the requirements of the malfunction rule or

otherwise could have avoided the malfunction. A new

provision has been added that authorizes the Director to

bring an action when the number of malfunctions or resulting

emissions are "excessive." Periodic upsets and

malfunctions of complex equipment and processes are

inevitable, and. are by definition not foreseeable or

preventable. First Energy strives to minimize their

occurrence, but this is increasingly difficult as more and

more control systems are integrated. The malfunction rule

provides a mechanism for excusing malfunction events from

otherwise applicable requirements if certain conditions exist

and the appropriate actions are completed. Indeed,

providing an explanation of a legitimate, unavoidable and

unforeseeable malfunction is the purpose of having a

malfunction rule in the first place.

As pointed out earlier, the malfunction rUle serves to excuse

legitimate, unavoidable and unforeseeable malfunctions. If

the Director deems the number of malfunctions or resulting

emissions to be somehow "excessive," a vague term, the

malfunction rule would allow for action against the source for

an event that was not avoidable or foreseeable. The

malfunction rule should not depart from its original purpose

. not to hold the owner or operator of a source liable for an

unforeseeable and unavoidable event. (First Energy)

While we understand that changing a few words would

eliminate the commenter's concerns, we believe the change

requested is not necessary and would jeopardize

implementation approval by U.S. EPA. As indicated above,

USEPA clearly states that malfunctions in excess of

standards are a violation. Ohio EPA's current rule and

proposed rule is consistent with USEPA's interpretation of

federal· law and regulation, and furthermore has been

approved as such through the Ohio state implementation

plan. Removing the word "violation" and replacing it with

"excess" does not impact whether or not it is a violation.

Ohio EPA does not agree with incorporating a statement to

excuse violations resulting from malfunctions. A violation of

the applicable standard is a fact, not an interpretation.

Rather, we believe the appropriate mechanism is

enforcement discretion based on Ohio EPA's enforcement

policy through a case-by-case analysis of each unique

situation that exists based upon the facts for· the individual
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Response to Comments

2/8/07 Page 25 of 31

facility. This long-standing policy has served citizens and

industry well by protecting public health and taking into

consideration the myriad factors associated with malfunction

events. The concerns expressed by the commenter are best

addressed via the flexibility of enforcement/compliance

oversight rather than the factual basis of whether a violation

has, in fact, occurred.

We disagree with the commenter's assertion that the current

proposal does not make Ohio's rule more consistent with

similar programs in other states based solely on the

commenter's statements that other "states provide an

excuse for malfunctions that Ohio EPA's proposal fails to

provide." Our intention in being more consistent with other

states' malfunction rules was not with respect to excusing

violations, but rather with respect to reporting of

malfunctions, which is the scope of paragraph (B) of this

rule.

The commenter previously stated "we know of no instance in

the history of OAC 3745-15-06 in which a malfunction was

treated as enforceable noncompliance, provided the

procedural and substantive requirements of the rule were

met." However, then the commenter raises concern that

"adopting such an· interpretation [violation] will hurt Ohio's

competitiveness." Again, please note that amendments that

encompass "Ohio EPA's proposed approach to

malfunctions" did not address amendments to the use of the

term "violation" which currently exists in this rule. As stated

previously, our rule is consistent with federal interpretation of

law and we are unaware of excusing of violations by rule in

other states having resulted in economic benefit in the other

states. Further, clear enforceability, coupled with

enforcement discretion enhances awareness and

compliance with preventive maintenance and minimized

malfunctions episodes or malfunction durations which results

in more protective health and fewer catastrophic

malfunctions.

Lastly, we want to emphasize that it has not been Ohio

EPA's "historical interpretation that excess emissions

attributable to a legitimate and unavoidable malfunction are

not the proper subject of any "action" by the Director" as

alluded by the commenter. As identified repeatedly above,

historical and current records indicate excess emissions

from malfunctions are considered violations. These
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Response to Comments

2/8/07 Page 26 of 31

Comment 7:

Response 7:

violations continue to be evaluated and appropriate action

taken in accordance with Ohio EPA's enforcement policy.

The proposed revisions do not "clarify" the current

reguirements.

The definition of "malfunction" in the current proposal further

complicates, rather than clarifies, the existing requirements.

The proposal defines a malfunction as follows:

For purposes of this rule, a malfunction occurs whenever an

emission source, air pollution control equipment, or related

facility breaks down in such a manner as to cause the

emission of air contaminants in violation of any of the

following:

(a) Any federal applicable law, standard or limitation,

including those established under the CAA, continuing

for more than one hour or totaling more than two

hours in any twenty-four hour period; or

(b) Any reportable quantity's [sic] threshold identified in

40 CFR Part 302 and 40 CFR Part 355. Malfunctions

of this nature also require reporting under Ohio EPA's

emergency response unit spill hotline at 1-800-282-

9378; or

(c) Any state applicable law, standard or limitation for

more than two continuous hours or totaling more than

three hours in any twenty-four hour period.

This proposed definition confuses what constitutes a

malfunction with what triggers reporting requirements for a

malfunction. Ignoring the EPCRA and CERCLA reportable

events for the moment, the proposal essentially says that an

excess emission event is a malfunction only if it lasts longer

than one hour or a cumulative total of two hours in 24 for

federal or SIP rules or longer than two hours or a cumulative

total of three hours in 24 for state rules. This approach begs

the question of how to treat malfunctions that are shorter in

duration. While we agree that there should be fewer, if any,

reporting burdens for brief malfunctions than for those that

last several hours or days, we nevertheless believe that all

malfunctions, however brief in duration, should be entitled to

the protections afforded malfunctions in other states, as

outlined above. (Kathy Milenkovski) .

This rule did not intend to define what a malfunction is,

historically or in the proposed amendments. In order to
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Response to Comments

218107 Page 27 of 31

Comment 8:

Response 8:

ensure our amendments do not attempt to define

malfunction but rather only when a malfunction is reportable,

we will revise the language as follows:

(B)(1): "For the purposes of this rule, a reportable

malfunction occurs whenever. .."

With respect to malfunctions that are shorter in duration, we

continue to believe the appropriate mechanism for

compliance oversight lies in whether to exercise

enforcement discretion, consistent with the enforcement

policy, as part of a case-by-case analysis of each unique

situation that exists based upon the facts for the individual

facility.

This proposed rule also creates additional and unnecessary

complexity by requiring the permit holder to determine - in

less than an hour - whether a given emission limitation is a

"federal applicable law, standard or limitation," or a "state

applicable law, standard or limitation" because the rule

imposes different reporting triggers for different

requirements. As anyone who has ever worked with the

State Implementation Plan can attest, it can be very difficult

to determine whether a provision in the current Ohio

Administrative Code has been approved as part of the SIP

(thus making the provision "federal applicable law") or, if it

has been approved, whether. the approved version of the

rule contains the same requirements as the version that is

currently in the Ohio Administrative Code. There is no

reason to complicate the current rule by including different

reporting requirements for different rules, especially where

Ohio EPA has stated it is proposing revisions to OAC 3745-

15-06 in an effort to clarify the requirements. We urge Ohio

EPA to keep the rule simple and easy to understand for all

affected by it. (Kathy Milenkovski)

We are unsure why the commenter believes the rule

requires "the permit holder to determine - in less than an

hour" if an emission limitation is a federal or state

requirement. We have placed no such requirement in the

rule. We assume that an owner would be aware of their

federal versus state requirements. We do understand where

confusion, especially in regards to the interval between

signature of the Director establishing enforceability of a rule

and SIP approval by U.S. EPA can occur. However, an

owner can always opt to report under the more stringent

procedure in order ensure the reporting requirement is being
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Response to Comments

2/8/07 Page 280'31

Comment 9:

Response 9:

met, when the federal vs. state basis of the requirement is

questionable. If Ohio EPA were to revise the requirement,

we would incorporate the more stringent reporting frequency

for both state and federal requirements. We believe

retaining the language as written will be most appropriate.

This will allow those owners who are knowledgeable of the

state vs. federal basis of their requirement to take full

advantage of the reporting frequencies proposed.

Finally, as proposed, the rule is difficult, if not impossible, to

apply to many emission units in Ohio for which compliance is

not determined on a "per hour" or "per two hours" basis. By

using only two specific time elements to define a malfunction

(one hour for federal rules and two hours for state rules), the

proposal ignores the fact that for many sources, compliance

is based on some other time period (3-hour average, weekly,

monthly, 3D-day rolling average, etc.), or is not tied to time at

all (e.g., many limits are expressed as pounds per mmBtu,

pounds per gallon of coating, parts per million, grains per dry

standard cubic foot, etc.) Commenters question, how is a

permit holder to determine if it has exceeded a per day or 30

day average limit for more than one hour or for more than a

total of two hours in any 24 hour period? It can't be done,

because the applicable emission limitation and the proposed

definition of malfunction are based on unrelated criteria.

Thus, we encourage Ohio EPA to leave the wording in the

revised rule as it is in the current rule, such that malfunction

reporting requirements are triggered only after a source

becomes aware that a malfunction has caused it to exceed

an applicable limit. The determination of whether a limit has

been exceeded is governed by the underlying applicable

requirement - not by the malfunction rule - and will vary

from source to source and from emission limit to emission

limit. (Kathy Milenkovski)

Also, the proposed language in OAC 3745-15-06(B)(1)

includes two different reporting requirements for

malfunctions that result in emissions ... "continuing for more

than one hour or totaling more than two hours in any twentyfour hour period" (federal), or "for more than two continuous

hours or totaling more than three hours in any twenty-four

hour period" (state). This language is confusing. First

Energy recommends that the reporting requirement remain

as it is currently written. (First Energy)

We do not believe the inclusion of the trigger levels for

reporting is overly complex. We agree it is not as
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Response to Comments

218107 Page 29 of 31

Comment 10:

streamlined as the current language, where "immediate

notification" is required for any "emission source, air pollution

control equipment, or related facility breaks down in such a

manner as to cause the emission of air contaminants in

violation of any applicable law." However, for years we have

heard concerns from the regulated community that this

language is not clear. Permittees have voiced the concern

that Ohio EPA expects notification if a control device breaks

down for three minutes. That they must immediately assess

what the excess emissions would have been for that three

minute period to determine if an applicable law was violated

and reporting is required. As we reviewed other states, we

found that most included such types of tiered reporting

levels. We believe the benefits of providing a tiered

reporting system based on the severity of the applicable

requirement being violated and duration of the violation

outweighs the added intricacy of the rule language.

The commenter is concerned that it would be "difficult, if not

impossible" to apply the rule to emissions units where

compliance is not determined ona "per hour" or "per two

hours" basis. That it ignores time periods for compliance

such as 3-hour average, weekly, monthly, 30-day rolling

averages, etc. We disagree. This implies that an emissions

unit with a monthly limit would never have to report a

malfunction unless it occurred for great than a month. This

was never the intent of Ohio's malfunction rule. It has

always been necessary for a permittee to assess if short

period malfunctions caused a violation of a longer term

emission limit. Our rule language continues to contain

provisions for a permittee to "quantify air contaminants which

have been or may be emitted into the ambient air during the

breakdown malfunction period." In our proposed

amendments we have further clarified that this can be either

the "actual quantity or estimated quantity" and the permittee

shall identify the "method used to derive the quantity."

Going back to the issue of EPCRA and CERCLA release

reporting, as referenced in proposed rule OAC 3745-15-

06(6)(1 )(b), the proposal creates redundant and

unnecessary new reporting obligations. First, for those

releases that properly trigger EPCRA or CERCLA

emergency release reporting, the proposal creates

unnecessary and duplicative reqUirements, as other

provisions of both state and federal law already require

prompt reporting of EPCRA and CERCLA emergency

releases to both local, state and federal authorities. In
Rule Package: Ch. 15, except nuisance

Response to Comments

218107 Page 300f31

Response 10:

addition, however, the proposed requirement would require

malfunction reporting in instances where EPCRA or

CERCLA emergency release reporting would not be

required. Commenters question whether this was Ohio

EPA's intent.

Under EPCRA and CERCLA, a malfunction requires

emergency release reporting only if the malfunction results in

a release of more than the Reportable Quantity (RQ)

threshold of any EPCRA or CERCLA listed substance within

a 24 hour period and if the release is unpermitted. If a

release is permitted, emergency release reporting is

triggered only if the release exceeds the permitted limit by

more than an RQ. See U.S. EPA's numerous guidance

documents on "Federally Permitted Releases." The

proposed rule fails tei make any distinction between

permitted and unpermitted emissions and requires reporting

any time a malfunction results in emissions greater than an

RQ, without considering whether those emissions are

nevertheless within permitted limits. As a result, this

proposal imposes additional and unwarranted new reporting

requirements without justification. Creating new, duplicative

or unnecessary requirements runs counter to recent efforts

to streamline or eliminate redundant requirements under

Ohio's air program, such as the recent revisions to ORC

§3704.03(1), which provide that "where a specific monitoring,

record-keeping, or reporting requirement is specified for a

particular air contaminant from a particular air contaminant

source in an applicable regulation adopted by the United

States environmental protection agency under the federal

Clean Air Act or in an applicable rule adopted by the director,

the director shall not impose an additional requirement in a

permit that is a different monitoring, record-keeping, or

reporting requirement other than the requirement specified in

the applicable regulation or rule for that air contaminant

except as otherwise agreed to by the owner or operator of

the air contaminant source and the director." (Kathy

Milenkovski)

We disagree. The proposal states "any reportable quantity's

threshold." If it is reportable under Part 302 or Part 355, and

is the result of a malfunction, it is to be reported as. a

malfunction in accordance with the proposed rule. Whether

or not it is a reportable.permitted quantity or a reportable unpermitted quantity it is to be reported as part of the

malfunction rule. Many other states require reporting, as

part of their malfunction requirements, of Part 302 and Part
Rule Package: Ch. 15, except nuisance

Response to Comments

2/8107 Page 31 of 31

355 events. Just as with all excess emissions reported

under this rule, it is only in those cases where it is due to a

source break down/malfunction.

Please note, ORC 3704.03(1) is with respect to

requirements placed in permits and not

requirements contained in rules.

reporting

reporting

Comment 11:

Response 11:

Comment 12:

Response 12:

Since a malfunction is an unexpected and unavoidable

"upset," time may be needed to investigate the situation and

to gather information. Depending upon the event, detailed

information (as proposed) may not be available within 24

hours of discovery. The current requirement to make a

verbal notification "immediately" with detailed information

required within two weeks for malfunctions lasting more than

72 hours seems a more reasonable approach. (First

Energy)

The current rule requires the "immediate" notification contain

the same information that the proposed rule will require

within 24 hours. We believe the proposed amendment which

replaces the ambiguous reference to "immediate" with 24

hours is appropriate.

Proposed Paragraph 3745-15-06(B)(5)(al Is Confusing

It appears that proposed paragraph 3745-15-06(B)(5)(a) is

either missing words or inadvertently repeats words such

that the paragraph, as proposed, is internally inconsistent

and confusing. It appears to be Ohio EPA's intent to require

reporting if, once the malfunction is corrected, the permit

holder discovers that the information initially reported to the

agency about the malfunction was inaccurate. If this

paragraph is to remain in the final rule, we encourage Ohio

.EPA to revisit and revise the language to avoid confusion.

(Kathy Milenkovski)

We will make the appropriate corrections.

End of Response to Comments