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 

CHERI A. 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 West Jackson Blvd. R-19J 

Chicago, Illinois 60604-3507 

hedman.susan@epa.gov 

John Summerhays, Environmental Scientist/ 

Attainment Planning and Maintenance Section 

Air Programs Branch (AR-18J) 

U.S. EPA, Region 5 

77 West Jackson Boulevard 

Chicago, Illinois 60604 

sun11llerhays.john@epa.gov 

Re: Petition for Reconsideration and Comments 

Approval and Promulgation of Air Quality Implementation Plans; Ohio; Ohio 

Ambient Air Quality Standards; Correction 

ATTN: EPA-ROS-OAR-2009-0807 

Our File 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 

of Air 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 of individual 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 TOLEDO 
Susan Hedman 

John Summerhays 

May7,2013 

Page2 

facilities are subject to the Clean Air Act. OUG's purpose, in part, is to participate collectively on 

behalf of its 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 of OUG. 

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 of issuing 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 of paragraph (A). 

Clean Air Act §110(k)(6) allows U.S. EPA to make corrections to its approval, disapproval, 

or promulgation of any 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 issued by proposed or final direct rule 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#2043798vl 
Susan 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 consistent with the statutory provision. 

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 of U.S. EPA's April3, 2013 final action. 

CAB\md 

Enclosures 

SLK_TOL:#2043798v1 

Very truly yours, 

Cheri 

~a.~ A. Budzynski 
ATTACHMENT A 
MICHAEL E. BORN 

mborn@slkwlaw.com 

(614) 463-9441 

Christopher Jones 

Director 

Ohio EPA 

Lazarus Government Center 

122 South Front 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 

Dear Director Jones: 

This letter is on behalf of the Environmental Committee of the Ohio Electric Utility 

Institute and the following member companies: 

hereinafter, "the Utilities." 

American Electric Power 

Buckeye Power, Inc. 

Cinergy Corp. 

Dayton Power & Light Company 

Ohio Valley Electric Corporation 

The Utilities appreciate and thank you and your stafffor taking the time to meet with us 

and the other interested members of the regulated community to discuss Ohio's opacity rules. 

We think that the open discussion and exchange of ideas at the meeting represents a very positive 

first step toward the development of an amicable resolution to the issues facing all of us as 

relates to the implementation and content of Ohio's opacity rules. While we have not had an 

opportunity to fully analyze the details of the proposal presented at the meeting, the Utilities 

fully supp01t the overall concept of revising Ohio's opacity rules to include and utilize 

continuous emissions monitoring ("COMs") data in a reasonable manner that allows for the use 

of a compliance factor. The Utilities plan to analyze the details of the proposal and provide 

comments to Ohio EPA. 

The Utilities also want to acknowledge your expressed appreciation for our concerns as 

to the impact of the existing rule and its implementation in the Title V pem1itting process. We 
Christopher Jones 

December 21, 2001 

understand that Ohio EPA must submit a new, revised schedule for completing the issuance of 

Title V permits to U.S. EPA eaTly in 2002. The Utilities will work as expeditiously as possible 

to pmvide your staff with comments on the proposal presented at the December 13, 2001 

meeting. The Utilities fully support Ohio EPA's commitment to proposing revisions to Ohio's 

opacity SIP, but, also, want to reiterate the need for inclusion of language similar to the rule 

proposal in future Title V permits. 

Ohio EPA's anticipated issuance of Title V permits in 2002 without such permit tenus 

will be costly and troublesome to both the Agency and the regulated community. The Utilities 

(and, we believe, the other affected industries will, too) want to strongly urge the Agency to 

place the final, agreed-upori language in future Title V permits prior to their issuance. 

2 

If, as discussed at the meeting, Ohio EPA places language similar to that in the proposal 

in the Title V pennits, there is little, if any, risk to Ohio EPA or the regulated community. Under 

the existing Title V rules, if Ohio EPA were to send to U.S. EPA (as proposed pennits) utility 

and other industrial boiler permits containing compliance factor language, U.S. EPA would have 

to consider whether to allow the permits to be issued by Ohio EPA or to object to the permits and 

require Ohio EPA to revise them. If U.S. EPA were to file a formal objection to the roughly 

thirty or forty permits proposed by the Agency, Ohio EPA would 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 only would it address the regulated 

collllllunity's concerns in the near term, but it would clearly make the processing and acceptance 

of the anticipated SIP revisions far more acceptable to U.S. EPA. 

In closing, the Utilities again want to thank you and your staff for working with us. If 

you have any further questions, please feel free to contact me. 

MEB/md 

43592 

cc: Title V Task Force 

Very truly yours, 

Michael E. Born 
ATTACHMENT B 
MICHAEL 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: 

On May 31, 2002, Ohio EPA proposed for public comment revisions to Section 3745-17-

03 of the Ohio Administrative Code. This letter is on behalf of the Environmental Committee of 

the Ohio Electric Utility Institute and the following companies: 

American Electric Power 

Buckeye Power, Inc. 

Cinergy Corp. 

Dayton Power & Light Company 

Ohio Valley Electric Corporation 

hereinafter, "the Utilities." 

The Utilities appreciate and thank you and your staff for taking the time to meet with us 

and consider our concerns with Ohio's current approach to opacity regulation. We think that the 

open discussion and exchange of ideas at our December meeting and subsequent meeting with 

your staff represent a very positive step toward the development of an amicable resolution to the 

issues facing all of us as relates to the implementation and content of Ohio's opacity rules. 

The Utilities want to thank the Agency for considering our previous verbal and written 

comments and developing a proposal to 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 EPA wants to avoid criticism from U.S. EPA for any 

perceived "loosening" of the current standards. However, the state should recognize that any 

revision to adopt COMs will result in an increase in stringency of the opacity rule. As the United 
Christopher Jones 

Ohio EPA 

July 1, 2002 

States District Court for the Eastem District ofTennessee ruled last November, any use of a 

COM to monitor compliance with an opacity limit is an increase in stringency over Method 9. 1 

"I agree with the D.C. Circuit Court of Appeals that changing the 

method of measuring compliance with an emission limitation can 

affect the stringency of the limitations itself. See Appalachian 

Power Company v. EPA, 208 F.3d 1015, 1027 (D.C.Cir. 2000); 

Portland Cement Association v. Ruckelshaus, 486 F.2d 375, 396-

97 (D.C.Cir. 1973). Obviously, monitoring the smokestack 

emissions continuously with equipment capable of reliably 

measuring the opacity will identify many more exceedances than 

will be identified by an operator "eyeballing" the smokestack 

emissions once a day, or less. I believe that it was completely 

reasonable for TDEC to consider the COM monitoring by TV A at 

its plants to be a more restrictive standard than the Tennessee SIP 

reqllired and therefore concluding that EPA approval of that more 

restrictive standard was not necessary." 

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 substantially more stringent than the existing rule. 

Overall, the proposed revision provides several improvements to the opacity mle. It 

clarifies the availability of COM data for compliance purposes for all parties. It also 

incorporates a reasonable approach for transition compliance from an occasional method to a 

continuous method by the incorporation of a compliance factor (the same approach as used by 

Tellllessee in the above cited case). 

2 

The Utilities would like Ohio EPA to consider several additional issues before finalizing 

the rules. First, there continue to be discrepancies in Ohio EPA's data base. Ohio EPA district 

offices and local air authorities do not all use the same criteria when inciuding/excluding data for 

exempt, non-exempt, and malfunction-related exceedences. This has created 

geographical/jurisdictional inconsistencies as to the inclusion of data points. Ohio EPA should 

review the criteria for 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 current rules' very limited valiance provision. 

The variances available under the current rule are very narrow and do not adequately reflect the 

wide range of other factors that may interfere with a well operated unit's compliance with the 

limit. Ohio EPA should consider expanding the current variance language to allow a wider set of 

circumstances to be considered. 

1 In the TV A case, the COM was used with a 2% compliance factor. 
Christopher Jones 

Ohio EPA 

July 1, 2002 

3 

Finally, the most important concern is the Agency's decision to use either a five or ten 

year data base instead of the entire historical data base to calculate a compliance factor. The 

original 1.5% compliance factor, along with the 90th percentile compliance goal, were both 

based upon the older data base. If Ohio EPA wants to use a 90th percentile target for 

determining a compliance factor, the entire data base -not just a five or ten year data baseshould be used in that calculation. Ohio EPA staffhave recognized that there have been vast 

improvements both in control technology operation as well as data reporting and malfunction 

identification in the five and ten years data base. Using a 90th percentile compliance goal on just 

a five and ten year data base 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 if using only the 

five or ten year data base. If the entire data base, including pre-1990 data, is no longer 

appropriate in Ohio EPA's opinion, then neither should the 90th percentile goal be appropriate. 

The original goal of90% of the sources demonstrating compliance was based on the previous 

historic data base. If the five and ten year data bases 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 should review 95th 

percentile, 98th percentile and 99th percentile goals in reviewing its compliance factor. 

h1 previous correspondence (incorporated herein by reference) the Utilities' have 

provided Ohio EPA with a revised data base which, in addition to removing a number of the 

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 of the operating sources and the Agency should strongly consider a 98th or 99th 

percentile compliance factor. While a compliance factor of 1.5% is clearly warranted by the 

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, the revised percentile goals also more 

accurately reflect the Agency's need to have a rule which is functionally achievable by all 

regulated sources. 

Any mle which is designed to permit only ninety percent of the sources to .comply is 

flawed on its face. Ohio EPA's goal should be more in line with 95 to 98% ofthe regulated 

sources complying with the standard. Ohio EPA should set its compliance factor based on a 

95% or higher compliance goal, as this would more accurately reflect the number of welloperated sources entitled to a reasonable basis for demonstrating compliance under the new rule. 

Please review the data base and factor it into your final revisions to the rule 
Christopher Jones 

Ohio EPA 

July 1, 2002 

4 

proposal. If you have any further questions or request auy further data, please feel free to contact 

me. 

MEB/md 

43592 

Very truly yours, 

Michael E. Born