# Article V

Response to Comments

# QliIER\

Division ofAir Pollution Control

Responseto Comments Draft Rule Language Comment Period

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

Agency Contactforthis Package

Division Contact: JenniferHunter, Division ofAir Pollution Control, 614-644-3696, jennifer.hunter@epa.state.oh.us

Ohio EPAprovided a30daycommentperiod, which was extended an additional 30 days, and ended on February8, 2007. Theoriginal proposal alsocontained OAC rule 3745-15-07, Air Pollution Nuisance Prohibited. Duetoconcerns raised in comments by stakeholdersthis rule is not being addressed oramended atthistime. Comments on OAC rule 3745-15-07arestill being considered and interested partieswill be notified priorto anyfuturerulemaking regarding this rule. This documentsummarizesthe comments and questions received atthe public hearings and/orduringtheassociated comment period related toall otherrules ofOACChapter3745-15 exceptOAC rule 3745-15-07, Air Pollution Nuisance Prohibited.

Ohio EPAreviewed and considered all comments received during the publiccomment period. By law, Ohio EPAhas authorityto considerspecificissues related to protection ofthe environmentand public health.

In an effortto helpyou reviewthis document, the questionsaregrouped bytopicand organized in aconsistentformat. Thecommentisfollowed in parentheses bythe 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 relevantRule Package: Ch. 15, exceptnuisance Response to Comments 2/8107 Page20f31

Response 1: factors. There is no listofperse nuisance aircontaminants identified in OAC3745-15-07oranywhereelse. 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/contaminantcombinations. (Kathy Milenkovski)

Ohio EPA will not be refilling amendments to the nuisance rule in OAC rule 3745-15-07 atthis time. Therefore, we will be removing the language added to paragraph (C)(5) ofthis 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

Comment2: 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 shutdown.

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 ofthatsource.

The proposed changes listthefactorsthatthe 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 ofanyconsideration ofthe impacton thesurrounding community

- such as; (1) residents, given the amount of uncontrolled emissions; (2) the hazardous orodorous nature of the uncontrolled emissions; (3) the source's proximity toRule Package: Ch. 15, exceptnuisance Response to Comments 2/8/07 ---'--P.::,ag"'e:...c 3 ::..:0

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sensitive populations; (4) environmental justice issues; or, (5) the feasibility of dramatically reducing production if it is not legitimatelyfeasible to haltall production.

Ifthese types ofconsiderations 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 considerfactors otherthan those specificallylisted.

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 aone-sided (Le., unbalanced) analysis is directly at odds with RG 3704.03(E)(1)'s requirementthatthe Directorconsiderduring rulemaking not onlythe costofcompliance butthe "benefitsofthe people of the state to be derived from that compliance." Moreover, it appears the Director has failed to considerthe otherfactors stated in RC 3704.03(E) when listing the factors he may considerunderOAG 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 otherfactors that mayormay combineto affectairpollution.

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 setforth specifically inthe 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 unconscionablethatthe public isn'tnotified. It's onething for the Ohio EPA and the facility operator to know when maintenance will take place, butthis does nothing to protectRule Package: Ch.15, exceptnuisance Response to Comments 218107 Page4 of31

Response2: the public health and safety. The public must be warned of the possible dangers so theycan take precautions. (Joseph A Bawidamann)

Paragraph (A) addresses scheduled maintenanceand 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 responsibilityto 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 protectand enhancethe qualityof 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 ofthe 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 "setforth such requirements as shall be necessaryto secure and maintain those levels ofairquality 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 ofthe directorshall 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 endangerthe health or safety ofthe public." Therefore, the director always takes these factors into consideration when acting upon requests forauthorization to continue operating during periodsofmaintenance.

Paragraph (A)(3) provides a list of information the owner mustsubmit in their request. These items include pertinent information suchas aquantification ofthe emissionsthatwill occur, the length of time and a demonstration of interim control measures to reduce emissions. Paragraph (A)(4)Rule Peckage: Ch.15, exceptnuisance Response to Comments 218107 Page5 of31

provides the criteria by which the director will judge if the justification submitted bythe 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 completelyshutdoWn 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 ofthe 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 considerthe "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 ifthese 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 limitthe director's authority, and fully indicates the current authority, we will incorporatethefollowing language:

"In order to detennine if the request submitted under paragraph (A)(3) ofthis ruleis consistentwiththepurpose of this chapter. as specified in rule 3745-15-02 of the Administrative Code. and satisfies the requirements contained inparagraphs (A)(3)(a) to (A)(3)(f) ofthis rule, the director may consider the following, among other factors"

Paragraph (B); Malfunctions

Comment3: And let me saythat it is absolutely crazyto have a problem thatyou say people don't knowwhatto 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 aboutthe malfunction that last afew minutes. Everyday. Crazy? Iwould use anotherword. Breathtaking. (David Altman)

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

some companies say they are "confused" about how toRule Package: Ch.15, exceptnuisance Responseto Comments 218107 Page 60f31

Response3: reportan airpollution control equipment malfunction that is a "few minutes in duration." To· remedy this purported problem, theTaft EPA is proposing to give all companies up to three hours of malfunctions during each 24 hour period. Thissolution is breathtaking. (David Altman)

As isthe earlierrule, 06 which would allowyou to operate as
a malfunction fortwoorthree hourseveryday. I mean that's just.

...itsjust.

...ridiculous. (EllisJacobs)

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 liabilityfor using thattechnology in the mannerdesigned and intended. Regulations that demand the impossible or impractical are notreasonable, and are notauthorized bythe GeneralAssembly. (KathyMilenkoYski)

USEPA has long recognized that malfunctions ofequipment will occur. Therefore, USEPA has developed a malfunction regulation policy and various guidance documents that identify necessary program elements necessaryforstatesto implement malfunction requirement. That is the purpose of this rule.

It is importantto notethatthis rule does not "allow" asource 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 identifieswhen 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 isthe responsibilityofthe owneror operator to correct the occurrence and return the source backto 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 manyRule Package: Ch.15, exceptnuisance Response to Comments 2/8/07 Page 70f31

Comment4: states require similar types of tiered reporting requirement, whether based on the duration·ofthe release orthe quantity ofthe release. Ourrule has been considered ambiguous and often leads to'confusion as to how small of a release requires reporting, forexample, 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 thatANY release under Part 302, regulation of hazardous substances, or Part 355, regulation ofextremely hazardous substances, ofTitle40 ofthe 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 byafacility.

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 breakdownsthatcauseviolations offederal orstate air laws. In addition, the Director re-defines the term "malfunction' to exclude breakdowns that cause violations ofthe lawshorter in duration than the time period prescribed. Under the proposed rule, forviolations offederal law, illegal emissions could continue intermittentlyfortwo hours beforethe event is considered amalfunction. Similarly, forviolations ofstate 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 orconsidered bythe Director. The Directorhas a duty under RC119to adequatelydescribe 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, underthe proposed rule, the Directorwill no longer be able to address repeated and excessive breakdowns lasting lessRule Package: Ch. 15, exceptnuisance Response to Comments 218107 Page8 0'31

than thetwotothree hours per24 hourtime period underhis authorityto 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 abatementplan forthosefacilities.

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 thatsuch eventscannot be excused asviolations.

The existing rule requires the immediate reporting of any breakdown or failure of emission source or air pollution control equipment in a mannerthat caused emissions ofair contaminants inviolation ofapplicable law. The existing rule does not require the reporting ofany breakdowns orfailures justbecausetheycausesome 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 preventairpOllution.)

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-hourgrace period before timely notice ofthatviolation 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 Directorfailed to properly balance the benefits and harmsRule Package: Ch.15, exceptnuisance Response to Comments 218107 Page 9 of31

resulting from this change as required underOhio's Air Law, RC 3704.03, and Ohio'sAdministrative 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. Forexample, the Directorfailed to considerthe purpose of Chapter3704,

as setfor in RC 3704.02, by ignoring the impacttwo to three hour violations have on the surrounding public and the public's immediate need to know exactly what its members havebeen exposedto.

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 forexceedances lasting lessthan 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 Directorseemsto believesupports his position.

In addition, the Directorproposes to change the requirement in OAC 3745-15-06 that breakdowns causing violations be reported "immediately' to the OEPA. Instead, he is allowing

afull dayto 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 bythe 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 becauseofthe violation. (David Altman)

OEC also strongly opposes the Director's attempt to extend

afacilities requirementto report malfunctions orbreakdowns ofequipmentthat result in violations ofairquality rules. The previous rule called for such malfunctions to result in immediate reporting. The basis forthis immediate reporting

comes form the purposes ofOhio's AirQuality 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-Rule Package: Ch.15, exceptnuisance Response to Comments 2/8/07 Page 10of31

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 especiallyhowthis changewill 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 dayfor "breakdowns") based violations arbitraryand 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 leadsto confusion as to howsmall ofa release requires reporting. In our review of other states' malfunction reporting requirements, we found many states require a reporting requirement based on the duration ofthe release or the quantity of the release (our review did not identify anystate with requirements similarto 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 underthe 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 ofair contaminants in excess of state and federal requirements are a malfunction. It is not the intent of this ruletostatethat ifthetime 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 ofthe 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 notthe onlytool used by the Directorto conduct complianceoversight. Therefore,RulePackage: Ch.15, exceptnuisance Responseto Comments 2/8/07 Page 11 of31

we also disagree that the director"will no longer be able to address repeated and excessive breakdowns lasting less than thetwoto three hours per24 hourtime period underhis authorityto 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 incorporatethefollowing language:

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

..."

and;

(F) Nothinq in this rule is intended to excuse anvviolation of rule or lawas a result ofany action orfailure ofthe owneror operator of an air contaminant source, whether or not such action·or failure is deemed a reportable malfunction under this rule. Nor does anything inthis rule excuse or relieve an
owneroroperatorfrom reporting violations as required under otherapplicable rules orlaws.

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, wefelt a malfunction continuing forgreater 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 thatthis malfunction does not haveto be continuous in nature, but could consistofintermittentstarts and stops of the same nature occurring overthe 48-hour period. Itshould 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 correctthe malfunction and then notifyOhio EPAas 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.RulePackage: Ch.15, exceptnuisance Response to Comments 218107 Page 12of31

Comment5: Focusing on procedural notification requirements to the detriment of resolving the malfunction quickly is contrary to protection ofpublic health. Wefeel itwould 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 electronicmeans, such as e-mail is appropriate.

This rule does not imply the directorwill "ignore the impact two to three hourviolations 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 directorwith 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 authorityto appropriatelyenforce the laws of Ohio and the laws delegated to Ohio by the federal government. Furthermore, as identified above, ANY release under Part302, regulation of hazardous substances, or Part 355, regulation of extremely hazardous substances, ofTitle 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 tookgreatcare in reviewing

numerous other states' requirements when updating our malfunction requirementsto be moreconsistentand 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 priorto breakdown, that shutdown ofthe source
oroperation during the period ofmaintenance or breakdown

was orhas been avoidable, orwasprolonged in badfaith, orRule Package: Ch.15, exceptnuisance Responseto Comments 218107 Page 13of31

that the emissions endanger ortend to endangerthe health

or safety ofthe public." OAC 3745-15-06(C). The Director "retains the responsibility to evaluate any report submitted pursuantto [OAC 3745-15-06]," id., and maydeterminethat

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 orauthorized bythe 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 ofthe rule are not considered violations ifthe 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 ofcomplianceversus noncompliance.

US EPAand a numberofstates usevarious formulations of malfunction rules that effectuate the same primary purpose: to accommodate the reality oftechnological fallibility, a'nd to not demand impossible or impractical performance. For example, the NewJerseyAir Pollution Control Act provides:

The Legislature finds that equipment in facilities regulated bythe "Air Pollution Control Act (1954)," P.L.1954, c.212, may malfunction

orfail to perform optimally, even when carefully maintained and operated; thatviolations ofthe 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 accordedRule Package: Ch.15, exceptnuisance Response to Comments 218107 Page 14of31

penalties as long as any resulting airemission

causes no potential threatto the pUblic health, welfare or the environment. The Legislature thereforefinds and declaresthat it isthe 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 reducethe 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, andwhen the emissions do notcause
a potential threat to the public health, welfare

ortheenvironment.

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

Indeed, even stringenttechnology-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 applicableemission limitduring periods ofstartup, shutdown, and malfunction be considered a violation ofthe applicable emission limit unless otherwise specified in the applicable standard." See 40 CFR60.8(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 ofstartup, shutdown, ormalfunction does not, requirethe owneroroperatorto achieve emission levelsthat would be required bythe applicable standard at othertimes if this is not consistent with safety and good air pollution control practices

..."Rule Package: Ch. 15, exceptnuisance Response to Comments 2/8107 Page 15of31

Many states provide special treatmentfor 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 ofthe rules," provided the source demonstratesthat "(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 airquality

... (3) Malfunctions have not exceeded five percent (5%), as a guideline, of the normal operational time ofthefacility. (4) The malfunction is notdue to the negligence of the operator." See 326 lAC 1-6-4, Conditions underwhich malfunction not considered violation (emphasisadded).

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, Emergencydefense (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 ofthis section are satisfied and the determinations specified in subsection (4) ofthis section are made." 401 KAR 50:055, General compliance requirements (emphasis added). Subsection (4) ofthatsection 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 ashowing bythe owneroroperator ofthe source, that: (a) the malfunction or shutdown and ensuing start-up did not result from the failure by the owner or operator ofthe 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 reasonableRule Package: Ch. 15, exceptnuisance Response to Comments 2/8/07 Page 16of31

steps were taken to minimize the emissions and theireffect

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. (emphasisadded).

In Virginia, "noviolation ofapplicable emission standards or monitoring requirements shall be judged to havetaken place ifthe excess emissions or cessation of monitoring activities is due to a malfunction," provided that the procedural requirements ofVirginia's rule 9VAC 5-20-180 are satisfied. (Emphasisadded).

As U.S. EPA and all of these states recognize, where a malfunction occurs and it is not the result of poor maintenance orcareless 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 likethe otherState 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 eventsare undulyrepetitive orthe result of poor operation or maintenance of the source, the rule authorizesthe Directorto rejecttheclaim ofa "malfunction," and, where the substantive and procedural malfunction requirements are not met, the Directorcan take "appropriate action," which might include enforcement of applicable emission limits. We believethis historical interpretation and application of the current rule should be preserved in any future revisions ofthe rule.

The Ohio EPA Responsiveness Summarythat accompanied this proposal stateS that it is importantto notethatthe useof the term "violation" was notadded as part ofthis rulemaking action. The use of that term has been in this rule since inception and placed there intentionally. Malfunctions reported underthis rule areviolations.Rule Package: Ch.15, exceptnuisance Response to Comments 2/8/07 Page 17of31

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 ofliability. It is unnecessaryto 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 liabilityand to impose notification and reporting requirements todocumentboth the malfunction and itscorrection.

Commenters ask, what is the point of enacting a regulation that creates liability for unavoidable and unforeseeable malfunctions? Thethreatofsuch liabilitycan notand will not eliminate unavoidable equipment malfunctions, thus the rule cannot be intended as a deterrent. If the rule does not
serveto prevent malfunctions ordetereventsthat 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 ofaircontaminants in violation ofthe 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 helpsto clarifythatan exceedance of an emissions limitation during a malfunction event is not meant to establish a "violation:' but only to trigger requirements underthe rule.

Applying the malfunction rule to "emissions in excess of an applicable requirement" ratherthan "emissions in violation of

an applicable requirement" is also the approach used by states that Ohio EPA cites for guidance in the Rule Synopsis. TheTexas 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 commonRule Package: Ch.15, exceptnuisance Response to Comments 218107 Page 18of31

,,:. 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 byimproperdesign 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 "anysudden, infrequentand not reasonably preventablefailure ofasource, 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. maintenanceorcareless operation are notmalfunctions," id., and sets forth the requirements when a malfunction "results in emissions ofanyaircontaminant continuing for morethan 2 hours in excess of a standard or limitation established by anyapplicable requirement." MI Adm. Code R336.1912«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 consistentwith the purpose of a malfunction rule. (First Energy)

We disagree that "action" of an enforcement nature would not be appropriate and is not contemplated orauthorized by the malfunction rule" unlessthe directordetermines "thatthe reporting requirements of this rule have not been satisfied, that the equipment was not properly operated and maintained priorto breakdown, that shutdown ofthe source
oroperation during the period ofmaintenance orbreakdown

was orhas been avoidable, orwas prolonged in badfaith, or thatthe emissions endanger ortend to endangerthe 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 thisRule Package: Ch. 15, exceptnuisance Response to Comments 2/8/07 Page 19 of31

rule "from its inception

.... has provided protection tofacilities during timesofunanticipated 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. Eventsthatwould otherwise be "violations" in the absence ofthe 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 aviolation evidenced in the original language which states "breaks down in such a manneras 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 commentsasfollows:

January24. 1979 Comments on Preliminary Draft Language from Robert L. Duprey. DirectorAirand 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 ofaircontaminants in excess ofthe allowable shall be considered at all times tobe aviolation ofthe 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 ofAir 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 attachmentfrom Robert

### L. Duprey, DirectorAir andHazardous Materials Division (USEPA) to Jacob Durnell, Chairman Illinois Pollution ControlBoard.

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 USEPARule Package: Ch.15, exceptnuisance Response to Comments 2/8/07 Page20of31

Comment6: position, excessemissions are aviolation, thatwas 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 continuesto besame, excessemissions areviolations.

Ohio EPA, like USEPA and other states, recognizes malfunctions occur. But, forOhio EPAto draft rule language that**id~ntifies** malfunctions are not violations would jeopardizethe abilityfor Ohio EPAto obtain SIP approval of these proposed amendments. Ohio EPAwill continueto use enforcementdiscretion, as appropriate based on Ohio EPA's enforcement policy, when malfunctions result in violations of

. applicable requirements.

It is important to note one ofthe purposes ofthis 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 peopleofthe state."

Ohio EPA states that it is proposing reVISions to the malfunction rule "in orderto provide clarity and update the requirements to be more consistentwith similar programs in other states." See Rule Synopsis. We do not believe that the currentproposal accomplishes eitherofthese goals. We believethatOhio EPAcan improvethe clarity ofOAC 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 consistentwith rules in otherstates.

Contraryto Ohio EPA's stated intention, the current proposal does not make Ohio's rule more consistent with similar programs in otherstates 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 authoritiesfor 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 expresslyRule Package: Ch.15, exceptnuisance Response to Comments 218107 Page21 of31

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 subjectto 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," ifthe owner proves the required information and takes theappropriate 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. Thatstudyranked Ohio44th overall, and an alarming 4ih out of50 with respectto Ohio's business competitiveness based

on its environmental policies. See State Competitiveness Report 2006, http://www.beaconhill.org/Compete06/06StateCompeteFinal. pdf.

IfOhio EPAwants 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 bythose otherstates. We propose that Ohio EPAcan meet its stated objectives of improved consistency and clarity

- without sacrificing enforcement authority

- by making any of thefollowing editsto OAC3745-15-06:

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

Bysimplychanging afewwords in the current rule proposal, Ohio EPAwould 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 proposethefollowing:Rule Package: Ch.15, exceptnuisance Response to Comments 2/8/07 Page22of31

(B) Malfunctions of air pollution control equipment shallee reflerteel asfollews:

(1) In the event that any emission source, air pollution control equipment, or related facility breaks down in such a manneras 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

Anotheroption isto 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 asfollows:

Emissionstemporarilyexceeding otherwise applicable emission limitations or standards which are due to malfunctions of facilities or emission control equipmentshall not be considered aviolation ofthose emission limitations or standards provided that the

sourcedemonstratesthat (1) All reasonable measures were taken to correct, as expeditiously as practicable, the conditions causing the emissionsto exceedthe allowable limits; (2) All possible steps were taken to minimize the impact of the excessive emissions on ambientairquality; (3) Malfunctions have not exceeded five percent (5%), as a guideline, of the normal operationaltime ofthefacility; and (4) The malfunction is not due to the negligenceofthe operator.Rule Package: Ch.15, exceptnuisance Response to Comments 2/8/07

or Page23 of31

Emissions which, due to shutdown or malfunctions, temporarilyexceed anyotherwise applicableemission 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 bythe owner or operatorofthe source, that:

(a) the malfunction or shutdown and ensuing start-up did not result from the failure by the

owneroroperatorofthe source to operate and maintain properlythe 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, ifnecessary; (c)All reasonable stepswere 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, ormaintenance; 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" bythe Director.

Any ofthese three options would satisfy Ohio EPA's stated goal ofensuring that Ohio's program is consistent with other states andfederal regulations. (Kathy Milenkovski)Rule Package: Ch.15, exceptnuisance Response to Comments 218107 Page24 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 numberofmalfunctions orresulting 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 inthefirst 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 rulewould allowforaction againstthesourcefor

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

unforeseeableand unavoidableevent. (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 statementto

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 individualRule Peckage: Ch.15, exceptnuisance Response to Comments 2/8/07 Page25 of31

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 bythe commenterare best addressed via the flexibility of enforcement/compliance oversight ratherthan the factual basis ofwhether aviolation has, infact, occurred.

We disagree with the commenter's assertion thatthe 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 commenterpreviouslystated "we knowofno 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 notethatamendments that encompass "Ohio EPA's proposed approach to malfunctions" did notaddress amendments to the use ofthe term "violation" which currently exists in this rule. As stated previously, our rule is consistentwith federal interpretation of law and we are unaware of excusing ofviolations by rule in otherstates 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 durationswhich 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. TheseRule Package: Ch. 15, exceptnuisance Response to Comments 2/8/07 Page26 of31

Comment7:

Response7: violations continue to be evaluated and appropriate action taken in accordancewith Ohio EPA'senforcementpolicy.

The proposed revisions do not "clarify" the current reguirements.

The definition of"malfunction" in the current proposal further complicates, ratherthan clarifies, the existing requirements. The proposal definesamalfunction asfollows:

Forpurposes ofthis rule, a malfunction occurs wheneveran 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, includingthose established underthe CAA, continuing for more than one hour or totaling more than two hours in anytwenty-fourhourperiod; or (b) Any reportable quantity's [sic]threshold identified in 40 CFR Part302 and 40 CFR Part355. Malfunctions ofthis nature also require reporting underOhio EPA's emergency response unit spill hotline at 1-800-282- 9378; or (c) Any state applicable law, standard or limitation for

morethan two continuous hours ortotaling morethan three hours in anytwenty-fourhourperiod.

This proposed definition confuses what constitutes a malfunction with what triggers reporting requirements for a malfunction. Ignoring the EPCRA and CERCLA reportable events forthe moment, the proposal essentiallysays 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 orSIP rules orlongerthan two hours oracumulative total ofthree hours in 24forstate rules. This approach begs the question of howto treat malfunctions that are shorter in duration. While we agree thatthere should be fewer, ifany, reporting burdens for brief malfunctions than for those that last several hours or days, we nevertheless believe that all malfunctions, howeverbrief 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 toRule Package: Ch. 15, exceptnuisance Response to Comments 218107 Page27 of31

Comment8:

Response 8: ensure our amendments do not attempt to define malfunction but ratheronlywhen a malfunction is reportable,

we will revisethe languageasfollows:

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

.."

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 agiven 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 ofthe 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 clarifythe requirements. We urge Ohio EPA to keep the rule simple and easy to understand for all affected byit. (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 ofthe 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 orderensure the reporting requirement is beingRulePackage: Ch.15, exceptnuisance Response to Comments 2/8/07 Page280'31

Comment9:

Response 9: met, when the federal vs. state basis of the requirement is questionable. If Ohio EPA were to revise the requirement,

we would incorporatethe 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 ofthe state vs. federal basis of their requirement to take full advantageofthe reporting frequencies proposed.

Finally, as proposed, the rule is difficult, if not impossible, to applyto manyemission units in Ohioforwhich compliance is notdetermined on a "per hour" or"pertwo hours" basis. By using onlytwo specifictime elements todefine a malfunction (one hourforfederal rules and two hoursforstate rules), the proposal ignoresthefact thatfor manysources, compliance is based on some othertime period (3-houraverage, weekly, monthly, 3D-dayrolling average, etc.), oris nottied totime at all (e.g., many limits are expressed as pounds per mmBtu, pounds pergallon ofcoating, parts permillion, grains perdry standard cubic foot, etc.) Commenters question, how is a permitholderto determine ifit has exceeded a perdayor30 dayaverage limitfor more than one hourorfor more than a total oftwo hours in any 24 hour period? It can't be done, becausethe 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 ofwhethera 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. (KathyMilenkovski)

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 hourortotaling morethan two hours in anytwentyfour 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 currentlywritten. (First Energy)

We do not believe the inclusion of the trigger levels for reporting is overly complex. We agree it is not asRule Package: Ch.15, exceptnuisance Response to Comments 218107 Page29 of31

Comment 10: streamlined as the current language, where "immediate notification" is required forany"emission source, airpollution control equipment, or related facility breaks down in such a
manner as to cause the emission of air contaminants in violation ofany applicable law." However, foryearswe have heard concerns from the regulated community that this language is not clear. Permittees have voiced the concern that Ohio EPA expects notification ifa control device breaks down forthree minutes. Thatthey must immediatelyassess what the excess emissions would have been for that three minute period to determine ifan applicable lawwas 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 outweighsthe added intricacyofthe rule language.

The commenter is concerned that itwould 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 thatan 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 provisionsfora permitteeto "quantifyaircontaminants which have been or may be emitted intothe ambient airduring the breakdown malfunction period." In our proposed amendments we have further clarified that this can be either the "actual quantity orestimated quantity" and the permittee shall identifythe "method used toderivethe 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. InRule Package: Ch.15, exceptnuisance Responseto 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 emergencyrelease reporting onlyifthe malfunction results in

a release of more than the Reportable Quantity (RQ) threshold ofany EPCRAorCERCLA 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 greaterthan an RQ, without considering whether those emissions are nevertheless within permitted limits. As a result, this proposal imposes additional and unwarranted new reporting requirements withoutjustification. 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 AirActorin an applicable rule adopted bythe director, the director shall not impose an additional requirement in a permit that is a different monitoring, record-keeping, or reporting requirementotherthan the requirementspecified 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." Ifitis reportable underPart302 orPart355, and is the result of a malfunction, it is to be reported as. a malfunction in accordance with the proposed rule. Whether

ornot it is a reportable.permitted quantityora reportable unpermitted quantity it is to be reported as part of the malfunction rule. Many other states require reporting, as part oftheir malfunction requirements, of Part 302 and PartRule Package: Ch. 15, exceptnuisance Response to Comments 2/8107 Page31 of31

355 events. Just as with all excess emissions reported underthis rule, it is only in those cases where it is due to a
source breakdown/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 weeksfor 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 amendmentwhich replaces the ambiguous reference to "immediate" with 24 hours is appropriate.

Proposed Paragraph 3745-15-06(B)(5)(al IsConfusing

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. Itappears to be Ohio EPA's intentto require reporting if, once the malfunction is corrected, the permit holderdiscovers 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. (KathyMilenkovski)

Wewill makethe appropriate corrections.

End ofResponseto Comments