# SHUMAKER® 1 0 1000 Jackson Street Toledo, Ohio 43604-5573 419.241.9000 419.241.6894 fax**Shumake~**Loop &Kenchick,LlP www.slk-law.com

CHERIA. BUDZYNSKI 419.321.1332 cbudzynski@slk-law.com

May 7, 2013



### VIA U.S. MAIL AND ELECTRONICALLY ON REGULATIONS.GOV
Susan Hedman Regional Administrator U.S. EPA, Region 5 77 WestJackson Blvd. R-19J Chicago, Illinois 60604-3507 hedman.susan@epa.gov
John Summerhays, Environmental Scientist/ AttainmentPlanning and Maintenance Section 

### Air Programs Branch (AR-18J) U.S. EPA, Region 5 77 WestJackson Boulevard Chicago, Illinois 60604 sun11llerhays.john@epa.gov


### Re: Petition for Reconsideration and Comments Approval and Promulgation ofAir Quality Implementation Plans; Ohio; Ohio AmbientAir Quality Standards; Correction 

### ATTN: EPA-ROS-OAR-2009-0807 OurFile No. 043590
Dear Regional Administrator Hedman and Mr. John Summerhays:
On April 3, 2013, U.S. EPA published in the Federal Register "Approval and Promulgation ofAir Quality Implementation Plans; Ohio; Ohio Ambient 

### Air Quality Standards; Correction." 78 Fed. Reg. 19990 (Apr. 3, 2013). The following petition for reconsideration and comments are submitted on behalf of the Ohio Utility Group and its member companies ("OUG" or "the Utilities"), 1 which is an association ofindividual electric utilities in the State of Ohio. The electric utilities own and operate power plants and other facilities that generate and transmit electricity for residential, commercial, industrial, and institutional customers. These power plants and other

1 The member companies include: Buckeye Power, Inc., The Dayton Power and Light Company, Duke Energy Ohio, FirstEnergy, Ohio Power Company (a unit of AEP), and Ohio Valley Electric Corporation.

CHARLOTTE 

### I COLUMBUS 

### I SARASOTA 

### I TAMPA 

### I TOLEDOSusan Hedman John Summerhays May7,2013 Page2

facilities are subject to the Clean 

### Air Act. OUG's purpose, in part, is to participate collectively on behalfofits members in administrative proceedings under various environmental laws, including the Clean Air Act and in litigation arising from those proceedings that affect electric generators. Thus, the notice affects the members ofOUG.
The Utilities object to the final action that U.S. EPA issued on April 3, 2013 on procedural grounds and substantive grounds. Thus, pursuant to Clean 

### Air Act §307(d)(7)(B), the Utilities request reconsideration of U.S. EPA's final action. The Utilities believe that reconsideration is warranted because, as describe below, U.S. EPA was required to provide a period for comment. Having failed to do so, the Administrator should reconsider the improper procedure used in this matter, withdraw the final action, and issue a proposed action, while affording an opportunity for public comment. The Utilities provide the following comments in support of their request for reconsideration.
U.S. EPA's purpose ofissuing the April3, 2013 notice was allegedly to correct an error in a State Implementation Plan ("SIP") approval issued on October 26, 2010. Approval and Promulgation of

### Air Quality Implementation Plans; Ohio; Ohio Ambient Air Quality Standards, 75 Fed. Reg. 65572 (Oct. 26, 2010). This notice was issued as a Final Direct Rule, which allowed public comment on the approval The April 3, 2013 notice indicated that U.S. EPA erred in approving Ohio Adm.Code 3745-17-03 with the exception ofparagraph (A).
Clean 

### Air Act §110(k)(6) allows U.S. EPA to make corrections to its approval, disapproval,
or promulgation ofany SIP. Clean Air Act §110(k)(6) provides:
Whenever the Administrator determines that the Administrator's action approving, disapproving, or promulgating any plan or plan revtston (or part thereof), area designation, redesignation, classification, or reclassification was in error, 

### the Administrator may 

### in the same manner as the approval, disapproval, or promulgation revise such action as appropriate without requiring any further submission from the State. Such determination and the basis thereof shall be provided to the State and the public. (emphasis added). Because the manner in which the original approval was promulgated included the taking and consideration of public comments, the revision must be promulgated in the same manner. Thus, the failure of the April 3, 2013 notice to provide for a public comment period is unlawful and not in conformance with the statutory language that allows U.S. EPA to issue corrections "in the same manner" as the original approval. Instead, the April 3, 2013 notice should have been issuedby proposed or final directrule with the opportunity to submit adverse comments.
U.S. EPA's correction is not trivial. In 2001 and 2002, during Ohio EPA's promulgation of these rules, the Utilities met with Ohio EPA and submitted extensive comments on Ohio Adm.Code 3745-17-03 and how reliance on continuous opacity monitors for compliance demonstration was more restrictive than measuring compliance with Method 9. See, Attachments A

SLK_TOL#2043798vlSusan Hedman John Summerhays May 7, 2013 Page 3

and B. These rules, as approved in 2010, impact the Utilities' ability to ensure compliance for particulate matter. For this reason, the Utilities believe that U.S. EPA should have included a comment period for this action consistentwith the statutoryprovision.
The Utilities petition U.S. EPA for reconsideration of this final action for several reasons. First, the final action is illegal and inconsistent with Clean 

### Air Act §110(k)(6), which requires U.S. EPA to make a correction in the same manner as it approved Ohio's SIP. Second, these rules have
a significant impact on the Utilities and how they measure compliance. Thus, the Utilities' reliance on the 2010 approval and now the "correction" impacts their operations. In addressing this petition for reconsideration, the Utilities ask that U.S. EPA act on this petition for reconsideration before the statutory time to file an appeal ofU.S. EPA's April3, 2013 final action.

CAB\md Enclosures

SLK_TOL:#2043798v1 Very truly yours,

# ~a.~ Cheri

### A. Budzynski

# ATTACHMENT AMICHAEL E. BORN mborn@slkwlaw.com (614) 463-9441

Christopher Jones Director Ohio EPA Lazarus Government Center 122 SouthFront Street P.O. Box 1049 Columbus, OH 43216-0149 December 21, 2001

Re: December 13. 2001 Meeting to Discuss Opacity Rules and Related Pennit Issues
DearDirector Jones:
This letter is onbehalfofthe Environmental Committee ofthe Ohio Electric Utility Institute and the following member companies:

hereinafter, "the Utilities." American Electric Power Buckeye Power, Inc. Cinergy Corp. DaytonPower & Light Company Ohio Valley Electric Corporation

The Utilities appreciate and thank you and your stafffor taking the time to meet withus and the otherinterestedmembers ofthe regulated communityto discuss Ohio's opacityrules. We think that the open discussion and exchange ofideas at the meetingrepresents a verypositive first step toward the development ofan amicable resolution to the issues facing all ofus as relates to the implementation and content ofOhio's opacity rules. While wehave not had an opportunityto fully analyze the details ofthe proposal presented at the meeting, theUtilities fully supp01t the overall concept ofrevising Ohio's opacityrules to include and utilize continuous emissions monitoring ("COMs") data in areasonable manner that allows for the use ofa compliance factor. TheUtilities planto analyze the details oftheproposal andprovide comments to Ohio EPA.
The Utilities also want to acknowledge your expressed appreciation for our concerns as to the impact ofthe existingrule and its implementation in the Title V pem1ittingprocess. WeChristopherJones December 21, 2001

understand that Ohio EPA must submit a new, revised schedule for completingthe issuance of Title V permits to U.S. EPA eaTly in2002. The Utilities will work as expeditiously as possible to pmvide your staffwith comments on theproposal presented atthe December 13, 2001 meeting. The Utilities fully support Ohio EPA's commitment to proposing revisions to Ohio's opacity SIP, but, also, wantto reiterate the need for inclusion oflanguage similarto therule proposal infuture Title V permits.
Ohio EPA's anticipated issuance ofTitle V permits in 2002 without suchpermittenus will be costly and troublesome to boththe Agency and the regulated community. The Utilities (and, webelieve, the other affected industries will, too) want to strongly urge the Agencyto placethe final, agreed-upori language in future Title V permits prior to their issuance. 

### 2

If, as discussed at the meeting, Ohio EPA places language similarto that inthe proposal in the Title V pennits, there is little, ifany, risk to Ohio EPA or the regulated community. Under the existing Title V rules, ifOhio EPAwere to send to U.S. EPA (as proposed pennits)utility and other industrial boilerpermits containing compliance factor language, U.S. EPA wouldhave to consider whether to allow the permits to be issuedby Ohio EPA orto object to thepermits and require Ohio EPA to revise them. IfU.S. EPA were to file a formal objection to the roughly thirty or forty permits proposedby the Agency, Ohio EPAwould then always have the option of removing the compliance factor language and then reproposing tl1e pe1mits without it. However, ifU.S. EPA did not file a fonual objection to the permits, not onlywouldit address theregulated collllllunity's concerns inthe near term, butit would clearlymake theprocessing and acceptance ofthe anticipated SIP revisions far more acceptable to U.S. EPA.


### Inclosing, the Utilities againwant to thank you and your stafffor working withus. If youhave any further questions, please feel free to contact me.

MEB/md 43592 cc: Title V TaskForce Verytruly yours,

Michael E. Born

# ATTACHMENT BMICHAEL E. BORN**mbom@slk~law.com** (614) 463-9441

Christopher Jones, Director Ohio Environmental Protection Agency Lazarus Government Center 122 South Front Street 

### P. 0. Box 1049 Columbus, Ohio 43216-1049 July I, 2002

RE: Proposed Revisions to OAC Section 3745-17-03
Dear Director Jones:
OnMay31, 2002, Ohio EPAproposed for public commentrevisions to Section 3745-17- 03 ofthe Ohio Administrative Code. This letter is on behalfofthe Environmental Committee of the Ohio Electric UtilityInstitute and the following companies:
AmericanElectric Power Buckeye Power, Inc. Cinergy Corp. DaytonPower 

### & Light Company Ohio Valley Electric Corporation hereinafter, "the Utilities."
The Utilities appreciate and thank you and your stafffor taking the time to meet with us and consider our concerns with Ohio's current approach to opacityregulation. We think that the open discussion and exchange ofideas at our Decembermeeting and subsequent meeting with your staffrepresent a verypositive step toward the development ofan amicable resolution to the issues facing all ofus as relates to the implementation and content ofOhio's opacityrules.
The Utilities want to thankthe Agency for considering ourprevious verbal and written comments and developing aproposalto formally adopt COMs as a compliance method with appropriate adjustments for using the COMs to measure full time compliance. From our discussion, the Utilities understand Ohio EPAwants to avoid criticism from U.S. EPA for any perceived "loosening" ofthe current standards. However, the state should recognize that any revision to adopt COMs will result in an increase in stringency ofthe opacityrule. As the UnitedChristopher Jones Ohio EPA July 1, 2002

States District Court for theEastemDistrict ofTennesseeruled lastNovember, anyuse ofa COM to monitor compliance with an opacitylimitis an increase instringency overMethod 9. 1

"I agree withthe D.C. Circuit Court ofAppeals that changing the method ofmeasuring compliance with an emission limitation can affect the stringency ofthe limitations itself. SeeAppalachian Power Company v. EPA, 208 F.3d 1015, 1027 (D.C.Cir. 2000); Portland CementAssociation v. Ruckelshaus, 486 F.2d 375, 396- 97 (D.C.Cir. 1973). Obviously, monitoring the smokestack emissions continuouslywith equipment capable ofreliably measuring the opacitywill identifymanymore exceedances than willbe identifiedby an operator "eyeballing" the smokestack emissions once a day, or less. I believe thatitwas completely reasonable for TDEC to consider the COMmonitoring byTV A at its plants to be a more restrictive standard than the Tennessee SIP reqllired and therefore concluding that EPAapproval ofthatmore restrictive standard wasnotnecessary."
Nat 'l Parks Conservation Ass 'n v. TVA, 175 F.Supp2d 1071, 1079 (E.D. Tellll. 2001).
In summary, whatever compliance factor Ohio EPA selects based on the data, the finalmle will be substantiallymore stringentthan the existingrule. Overall, the proposedrevisionprovides several improvements to the opacitymle. It clarifies the availabilityofCOM data for compliance purposes for all parties. 

### It also incorporates a reasonable approach for transition compliance from an occasional method to a continuous methodbythe incorporation ofa compliance factor (the same approach as used by Tellllessee in the above cited case). 

### 2

The Utilities would like Ohio EPAto consider several additional issues before finalizing the rules. First, there continue to be discrepancies in Ohio EPA's database. Ohio EPA district offices and local air authorities do not all use the same criteria wheninciuding/excluding data for exempt, non-exempt, and malfunction-related exceedences. This has created geographical/jurisdictional inconsistencies as to the inclusion ofdatapoints. Ohio EPA should review the criteriafor each distdct/local air authority and develop a ulliform approach for data entry, and further refine the data base for consistency.
A second issue for consideration is the currentrules' verylimited valianceprovision. The variances available under the current rule are verynarrow and do not adequately reflect the wide range ofother factors that mayinterfere with a well operated unit's compliance withthe limit. Ohio EPA should consider expanding the current variance language to allow a wider set of circumstances to be considered.

1 In the TVAcase, the COM was used with a2% compliance factor.Christopher Jones Ohio EPA July 1, 2002 

### 3

Finally, themost important concern is the Agency's decision to use either a five or ten year data base instead ofthe entire historical data base to calculate a compliance factor. The original 1.5% compliance factor, along with the 90th percentile compliance goal, were both baseduponthe older database. IfOhio EPAwants to use a 90thpercentile target for determining a compliance factor, the entire database -notjust a five or ten year data baseshouldbe used inthat calculation. Ohio EPA staffhaverecognized that there have been vast improvements bothin control technology operation as well as data reporting and malfunction identificationin the five and ten years data base. Using a 90thpercentile compliance goal onjust a five and tenyear database is inappropriate. Ohio EPA should use that compliance goal only on the entire data base. Alternatively, Ohio EPA should revise its percentile goal for compliance ifusing only the five or ten year data base. Ifthe entire database, including pre-1990 data, is no longer appropriate in Ohio EPA's opinion, thenneither should the 90th percentile goal be appropriate. The original goal of90% ofthe sources demonstrating compliance wasbased on the previous historic database. Ifthe five and tenyear databases demonstrate a much higher level of compliance across the regulated community as well as more accurately reported data, Ohio EPA should revise its compliance goal to match the data base. Ohio EPA shouldreview 95th percentile, 98th percentile and 99thpercentile goals inreviewing its compliance factor.
h1 previous correspondence (incorporated herein byreference) the Utilities' have provided Ohio EPAwith a revised data base which, in addition to removing a number ofthe duplicative or misleading data sets, calculates the compliance factor at various compliance goals. Based on this data base, Ohio EPA's compliance goals should be, at a minimum, the 95th percentile ofthe operating sources and the Agency should strongly consider a 98th or 99th percentile compliance factor. While a compliance factor of 1.5% is clearlywarranted bythe data, the compliance factor should be at least 1.25%, not .75%. In addition to more accurately reflecting the newer and more accurate data bases, therevised percentile goals also more accuratelyreflect the Agency's need to have a rule which is functionally achievable by all regulated sources. Any mlewhich is designed to permit only ninety percent ofthe sources to .comply is flawed on its face. Ohio EPA's goal should be more in line with 95 to 98% oftheregulated sources complyingwith the standard. Ohio EPA should setits compliance factor based on a 95% orhigher compliance goal, as this wouldmore accuratelyreflect the number ofwelloperated sources entitled to a reasonable basis for demonstrating compliance underthe new rule.
Please review the database and factor it into your final revisions to the ruleChristopher Jones Ohio EPA July 

### 1, 2002 

### 4

proposal. Ifyou have any further questions orrequest auy further data, please feel free to contact me.

MEB/md 

### 43592 Very truly yours,

Michael E. Born