RESPONSE TO COMMENTS OF THE OHIO ENVIRONMENTAL COUNCIL

TO EPA’S PROPOSED RULE TO CONDITIONALLY APPROVE OHIO’S

CHANGES TO ITS NEW SOURCE REVIEW RULES. The Ohio Environmental Council (OEC) commented on Environmental Protection Agency ’s proposal to conditionally approve Ohio’s new source review (NSR) rule changes. OEC primarily commented on the requirements of the federal NSR rules, not Ohio’s application of the federal requirements in its own rules. The more appropriate venue for these comments would have been when EPA public noticed the rule changes at the federal level. However, this response to comment document responds to the entire range of comments in the comment letter submitted by OEC on the May 11, 2005 proposal to conditionally approve Ohio’s new source review rule changes. Following an italicized statement or summary of each major point made by OEC, EPA responses to the comment are set forth. 1. As an initial matter, the Ohio Environmental Council states that the final New Source Review rules promulgated by the EPA on December 31, 2002, violate the Clean Air Act (CAA) and are less protective of the public health and the environment than the NSR regulations which they replaced. Consequently, Ohio’s revisions to its NSR program, which incorporate the federal revisions, are also less protective and violate the CAA. EPA responds that EPA’s rules were upheld by the court which reviewed them, in the case titled State of New York et al. v. EPA , No. 02

- 1387, 2005 WL 1489698 , with the exception of the p ollution control project and clean unit provisions. Therefore , EPA’s rules (with the exception noted) have been found lawful . Ohio’s rules are being approved for the reasons stated in the notice of final rulemaking
. 2. In addition, and for the sake of consistency, clarity and certainty, the OEC recommends that EPA and Ohio EPA should not replace “actual emissions” and “representative actual annual emissions” as formerly defined at Ohio Adm. Code 3745

- 31

- 01(C) and (SSS) with the definition of “projected actual emissions” that is currently utilized in 40 CFR 51.165(a)(1)(xxviii). Adding another definition, “projected actual emissions,” to an already confusing, cumbersome and rather unwieldy regulatory program would result in the expenditure of more time a nd resources than Ohio EPA currently has, thereby lengthening the permitting process to the detriment of human health and the environment. EPA responds that Ohio’s rules follow the federal program requirements on this point . This comment could have been raised in the previous federal rulemaking action on this point
. Since Ohio’s rules follow the federal program requirements on this point, and for the reasons stated in the preamble, EPA finds the Ohio rule approvable.2

3. The United States District Court for the Southern District of Ohio has already issued an opinion that discusses the definitions of “modification,” “actual emissions,” “representative actual annual emissions,” “net emissions increase” and “contemporaneous.” See United States v. Ohio Ediso n, Case No. 2:99

- CV

- 1181 (August, 2003). This opinion provides for regulatory certainty and establishes legal precedent. Adding another definition, “projected actual emissions,” to an already confusing and cumbersome regulatory program, for which regulato ry certainty and legal precedent have been established, would add more confusion and required time to process permits in Ohio, thereby being detrimental to human health and the environment. EPA responds that Ohio’s rules follow the federal program requir ements on this point . This comment could have been raised in the previous federal rulemaking action on this point
. Since Ohio’s rules follow the federal program requirements on this point, and for the reasons stated in the preamble, EPA finds the Ohio ru le approvable.

4. OAC 3745

- 31

- 01, Definitions a. Paragraph (C), definition of “actual emissions.” i. Limiting the definition of “actual emissions” in paragraph (C) only to “regulated NSR pollutant” is too narrow. All references to “NSR pollutant” shou ld be deleted because the concept excludes many types of polluting emissions from regulation. For example, many types of toxic emissions would escape regulation under the proposed rule. Moreover, the term “regulated NSR pollutant” is not consistent with the statutory definitions of “air contaminant” and “air pollution” that are contained in Ohio Revised Code Chapter 3704. EPA responds that the Ohio’s definition of “projected actual emission” is required by the federal rule at 40 CFR 51.165, therefore, th is definition is necessary for approval. Since Ohio’s rules follow the federal program requirements on this point, and for the reasons stated in the preamble, EPA finds the Ohio rule approvable. ii. Paragraph (C) refers to determining the actual rate of emissions “in accordance with paragraphs (C)(1) to (C)(4)” yet there is no paragraph (C)(4). EPA responds that the use of the term “regulated NSR pollutant” and phrasing of the definition are consistent with 40 CFR 51.165 and 51.166. Furthermore, on Nov ember 3, 2006, the Ohio Environmental Protection Agency (OEPA) removed the reference to (C)(4).3

iii. Paragraph (C)(1) should read “allow the use of a different time period if the Director determines.” As currently written, anyone who makes such an alterna tive determination would necessarily force the Director to use the different time period in calculating actual emissions. EPA responds that Ohio’s definition of “projected actual emission” is required by 40 CFR 51.165, therefore, this definition is necess ary for approval. Since Ohio’s rules follow the federal program requirements on this point, and for the reasons stated in the preamble, EPA finds the Ohio rule approvable. b. Paragraph (O), definition of “baseline actual emissions.” i. The definition of “regulated NSR pollutant” is too narrow.
EPA responds that O hio ’s definition of “baseline actual emissions,” including “regulated NSR pollutant” is identical to the federal definition in 40 CFR 51.165 and 51.166. Since Ohio’s rules are consistent with t he federal program and for the reasons stated in the preamble, no changes are necessary for the rules to be approved by EPA. ii. “Any consecutive 24

- month period selected by the owner or operator within the 5

- year period” should be changed to read “the consecutive 24

- month period.” A five year “look back” is not representative of actual emissions and would only serve to remove more emissions from any netting equation that could be used to determine that a “major modification” has occurred. Moreover, a co nsecutive 24

- month look back provides just as much “certainty” as does a 5

- year look back

. EPA responds that O hio ’s definition of “baseline actual emissions,” including the phrase “Any consecutive 24

- month period selected by the owner or operator within t he 5

- year period” is identical to the federal definition in 40 CFR 51.165 and 51.166. Since Ohio’s rules are consistent with the federal program and for the reasons stated in the preamble, no changes are necessary for the rules to be approved by EPA. i ii. The phrase in (O)(1)(a) that reads “and emissions associated with startups, shutdowns and malfunctions” should be deleted. As the prefatory language of “baseline actual emissions” expressly states, an average rate of emissions should be the focus of this determination and there is no way to determine the “average rate” of emissions associated with startups, shutdowns and malfunctions. Moreover, implicit in the definition of “baseline actual emissions” is that such emissions should be “representative” of the source’s “normal” operation, and emissions associated with startups, shutdowns and malfunctions are not at all representative of normal operations.4

In addition, including emissions from startups, shutdowns and malfunctions in a baseline determination results in an artificial baseline. Finally, emissions from startups and shutdowns are not included in a source’s “actual” emissions for purposes of determining compliance with the source’s allowable emission limit, so they should not be included in de termining any baseline emission level for the source. EPA responds that Ohio’s definition of “baseline actual emissions,” including the phrase “and emissions associated with startups, shutdowns and malfunctions” is identical to the federal definition in 4 0 CFR 51.165 and 51.166 . Since Ohio’s rules are consistent with the federal program and for the reasons stated in the preamble, no changes are necessary for the rules to be approved by EPA. iv. Subsection (O)(1)(b) fails to address the situation where an entity has not yet received the requisite permits at the time construction of the project commences. A situation could thus develop whereby an unpermitted source could exclude from its “baseline actual emissions” all of its non

- complying emissions, thus making the netting and the major modification determination meaningless. This section should be rewritten to address this scenario. EPA responds that O hio ’s definition of “baseline actual emissions” is identical to the federal definition in 40 CFR 51.165 and 51.166. The federal rules do not require the definition to address an unpermitted source. Since Ohio’s rules are consistent with the federal program and for the reasons stated in the preamble, no changes are necessary for the rules to be approved by E PA. v. The phrase in (O)(1)(c) “For a regulated NSR pollutant” should be deleted. EPA responds that Ohio’s definition of “ baseline actual emissions , ” including the phrase “ for a regulated NSR pollutant, ” is identical to the federal definition in 40 CF R 51.165 and 51.166. Since Ohio’s rules follow the federal program requirements on this point and for the reasons stated in the preamble, EPA finds the Ohio rule approvable. vi. The sentence in (O)(1)(c) “A different consecutive 24

- month period can be used for each regulated NSR pollutant” should be deleted in its entirety. EPA responds that Ohio’s definition of “baseline actual emissions,” including the phrase “A different consecutive 24

- month period can be used for each regulated NSR pollutant,” i s identical to the federal definition in 40 CFR 51.165 and 51.166. Since Ohio’s rules follow the5

federal program requirements on this point and for the reasons stated in the preamble, EPA finds the Ohio rule approvable. vii. Subsection (O)(1)(d) should be deleted in its entirety. EPA responds that Ohio’s definition of “baseline actual emissions ,” including (O)(1)(d) is identical to the federal definition in 40 CFR 51.165 and 51.166. Since Ohio’s rules follow the federal program requirements on this point and for the reasons stated in the preamble, EPA finds the Ohio rule approvable. viii. The phrase in (O)(2) “any consecutive 24

- month period selected by the owner or operator within the 10

-

year period” should be changed to read “the consecutive 24

- month p eriod.” A ten year “look back” is not representative of actual emissions and would only serve to remove more emissions from any netting equation that could be used to determine that a “major modification” has occurred. Moreover, a consecutive 24

- month look back provides just as much “certainty” as does a 10

- year look back

. EPA responds that Ohio’s definition of “baseline actual emissions,” including the phrase “any consecutive 24

- month period selected by the owner or operator within the 10

- year period,” is identical to the federal definition in 40 CFR 51.165 and 51.166. Since Ohio’s rules are consistent with the federal program and for the reasons stated in the preamble, no changes are necessary for the rules to be approved by EPA. ix. The end of the sen tence in (O)(2) that begins with “either the date the owner or operator begins actual construction” should be deleted in its entirety and replaced with “on which the owner or operator begins actual construction of the project. The reviewing authority shall allow the use of a different time period upon a determination that it is more representative of normal source operation.” As a result of this change and the change suggested above, section (O)(2) should read: “For an existing emission unit (other than an electric utility steam generating unit), baseline actual emissions means the average rate, in tons per year, at which the emissions unit actually emitted the pollutant during the consecutive 24

- month period immediately preceding the date on which the owner or operator begins actual construction of the project. The reviewing authority shall allow the use of a different time period upon a determination that it is more representative of normal source operation.” EPA responds that Ohio’s definition of “baselin e actual emissions” including the phrase “either the date the owner or operator begins actual construction,” is identical to the federal definition in 40 CFR 51.165 and 51.166. Since Ohio’s rules are consistent with the federal program and6

for the reasons stated in the preamble, no changes are necessary for the rules to be approved by EPA. x. The phrase in (2)(a) “and emissions associated with startups, shutdowns and malfunctions” should be deleted. As the prefatory language of “baseline actual emissio ns” expressly states, an average rate of emissions should be the focus of this determination and there is no way to determine the “average rate” of emissions associated with startups, shutdowns and malfunctions. Moreover, implicit in the definition of “baseline actual emissions” is that such emissions should be “representative” of the source’s “normal” operation, and emissions associated with startups, shutdowns and malfunctions are not at all representative of normal operations. In addition, including em issions from startups, shutdowns and malfunctions in a baseline determination results in an artificial baseline. Finally, emissions from startups and shutdowns are not included in a source’s “actual” emissions for purposes of determining compliance with the source’s allowable emission limit, so they should not be included in determining any baseline emission level for the source

. EPA responds that Ohio’s definition of “baseline actual emissions ,” including the phrase “and emissions associated with startup s, shutdowns and malfunctions” is identical to the federal definition in 40 CFR 51.165 and 51.166. Since Ohio’s rules are consistent with the federal program and for the reasons stated in the preamble, no changes are necessary for the rules to be approved by EPA. xi. Subsection (2)(b) also fails to address the situation where an entity has not yet received the requisite permits at the time construction of the project commences. A situation could thus develop whereby an unpermitted source could exclude from its “baseline actual emissions” all of its non

- complying emissions, thus making the netting and the major modification determination meaningless. This section should be rewritten to address this scenario. EPA responds that Ohio’s definition of “baselin e actual emissions” is identical to the federal definition in 40 CFR 51.165 and 51.166. The federal rules do not require the definition to address an unpermitted source. Since Ohio’s rules are consistent with the federal program and for the reasons stated in the preamble, no changes are necessary for the rules to be approved by EPA. xii. The phrase in (2)(c) “or maintenance plan” should be deleted. EPA responds that Ohio’s definition of “baseline actual emissions,” including the phrase “or maintenance plan,” is identical to the federal definition in 40 CFR 51. 165 and 51.166. Since Ohio’s rules are consistent with the federal7

program and for the reasons stated in the preamble, no changes are necessary for the rules to be approved by EPA. xiii. The ph rase in (2)(d) “For a regulated NSR pollutant” should be deleted. EPA responds that Ohio’s definition of “baseline actual emissions,” including the phrase “For a regulated NSR pollutant” is identical to the federal definition in 40 CFR 51.165 and 51.166. Since Ohio’s rules are consistent with the federal program and for the reasons stated in the preamble, no changes are necessary for the rules to be approved by EPA. xiv. The sentence in (2)(d) “A different consecutive 24

- month period can be used for each regulated NSR pollutant” should be deleted in its entirety. EPA responds that Ohio’s definition of “baseline actual emissions,” including the phrase “A different consecutive 24

- month period can be used for each regulated NSR pollutant,” is identical t o the federal definition in 40 CFR 51.165 and 51.166. Since Ohio’s rules are consistent with the federal program and for the reasons stated in the preamble, no changes are necessary for the rules to be approved by EPA. xv. Subsection (2)(e) should be de leted in its entirety. EPA responds that Ohio’s definition of “baseline actual emissions ,” including (2)(e) is identical to the federal definition in 40 CFR 51.165 and 51.166. Since Ohio’s rules are consistent with the federal program and for the reasons stated in the preamble, no changes are necessary for the rules to be approved by EPA. c. Paragraph (Q), definition of “baseline concentration.” i. Since this definition incorporates the definition of “actual emissions,” the comments above also apply to this definition. Baseline concentration should be calculated in accordance with “actual emissions” as changed by the above comments. See response above to the comments regarding the definition of “actual emissions”. d. Paragraph (Y), definition of “clean unit.” i. OEC’s comments on the “clean unit” rule, 3745

- 31

- 30, are applied to this provision

.8

EPA responds that in a November 15, 2005 letter , the Ohio withdrew its request for approval of the definition for “clean unit” found in OAC 3745

- 31

- 01(Y). F urthermore, on June 2, 2008, OEPA removed OAC 3745

- 31

- 01(Y) from its rules. The action became effective on June 30, 2008. EPA is not approving this definition into the SIP. e. Paragraph (MM), definition of “emissions unit.” i. The definition potentiall y excludes units that emit hazardous air pollutants (H APs) (addressed by OEPA’s air toxics policy). This creates the novelty of having air toxics being unregulated as an “emissions unit.” EPA responds that the regulations at 40 CFR 51.165 and 51.166 do n ot require HAPs be considered in the definition of “emissions unit.” f. Paragraph (III), definition of “major modification.” i. The definition is flawed because only a significant net emissions increase from a “NSR pollutant” triggers the major modification provisions. The proposed definition does not address the situation in which a hazardous air pollutant not previously emitted is now emitted because of the physical change

. EPA responds that the regulations at 40 CFR 51.165 and 51.166 do not require H APs be considered in the definition of “major modification.” g. Paragraph (KKK), definition of “major stationary source.” i. again, the definition is too narrow because it addresses only “NSR pollutants” and not hazardous air pollutants. Under the proposed definition, an air contaminant source that emits more than 10 tons per year of a single HAP or 25 tons per year of a combination of HAPs would not constitute a major stationary source. EPA responds that the regulations at 40 CFR 51.165 and 51.166 do not require HAPs be considered in the definition of “major stationary source.” h. Paragraph (SSS), definition of “net emissions increase.” i. since this definition incorporates the definition of “actual emissions,” the comments above apply to this definition as well. A “net emissions increase” should be calculated in accordance with “actual emissions” as changed by the comments to that definition. EPA refers here to our response to the comments on the definition of “actual emissions,” as set forth above. ii. again, “NSR pollutant” is too narrow and should be changed as commented above.9

EPA refers here to our response to the comments on the definition of “NSR pollutant,” as set forth above. iii. subparagraph (SSS)(3)(f)(ii) is new and does not make sens e. The phrase “federally enforceable” should be reinstated and the phrase “as a practical matter” should be deleted. EPA approves Ohio’s use of the term “as a practical matter” because in the case National Mining Ass’n v. United States Environmental Prote ction Agency, 59 F.3d 1351 (D.C. Cir. 1995), the court rejected an EPA requirement that potential to emit be based on federally enforceable terms. Instead limitations need only be enforceable as a practical matter. i. Paragraphs (CCCC) through (KKKK), d efinitions pertaining to “PALs.” i. OEC’s comments to the “Plantwide Applicability Limit” rule, 3745

- 31

- 32, are incorporated herein

. EPA refers here to our response to the comments on the “Plantwide Applicability Limit” rule, as set forth below. ii. beca use (CCCC)(1) refers to “emissions units,” OEC understands that “PAL allowable emissions” can not be calculated from air contaminant sources that do not meet the definition of “emissions unit.” If this understanding is incorrect, then EPA needs to explain

. This is EPA’s understanding. Ohio’s definition of “PAL allowable emissions” is consistent with the definition of “allowable emissions” in 51.165(f)(2) and 51.166(w)(2). Therefore, consistent with the federal program, Ohio’s rules allow only air contam inant sources which meet the definition of “emissions unit” to be included in the PAL. iii. because (DDDD) refers to a “PAL permit,” OEC understands that air contaminant sources that do not constitute “emissions units” cannot be covered in a PAL permit. I f this understanding is incorrect, then EPA needs to explain. Also, the word “generally” should be clarified; what would be an instance when the “PAL effective date” would NOT be the effective date of the PAL permit? EPA responds that Ohio’s definition of “PAL effective date” is consistent with the federal definition in 51.165(f)(2) and 51.166(w)(2). Therefore, consistent with the federal program, Ohio’s rules allow only air contaminant sources which meet the definition of “emissions unit” to be included in the PAL. The use of the term “generally” is10

also consistent with the federal definition, therefore, the definition is to be applied consistently with the federal program. iv. because (FFFF) refers to “major emissions unit,” OEC understands that air co ntaminant sources that are regulated ONLY under state law cannot be a “PAL unit” or cannot be part of the “PAL permit.” If this understanding is incorrect, then EPA needs to explain. EPA responds that Ohio’s definition of “PAL major emissions unit” is con sistent with the federal definition in 51.165 (f)(2) and 51.166(w)(2). Therefore, consistent with the federal program, Ohio’s rules allow only air contaminant sources which meet the definition of “emissions unit” to be included in the PAL. v. because (H

HHH) refers to “PAL permit” and includes the phrase “major stationary source,” OEC understands that minor sources cannot and do not qualify for a “PAL.” If this understanding is incorrect, then EPA needs to explain

. EPA responds that Ohio’s definition of “PAL permit” is consistent with the federal definition in 51.165(f)(2) and 51.166(w)(2). Therefore, consistent with the federal program, Ohio’s rules provide for PAL permits at major stationary sources. vi. because (JJJJ) refers to “emissions unit,” O EC understands that “small emissions unit” cannot include any air contaminant source that does not emit any “NSR pollutant.” If this understanding is incorrect, then OEPA needs to explain. EPA responds that OAC 3745

- 31

- 01(JJJJ) defines “PAL significant em ission unit” which has no mention of “small emissions unit.” OAC 3745

- 31

- 01(KKKK) defines “PAL small emissions unit.” Both definitions are consistent with the federal program. “PAL small emissions units” are defined as emission units which emit the PAL pollutant below the significance level. The PAL pollutant is defined in OAC 3745

- 31

- 01(IIII) as the pollutant for which a PAL is established at a major stationary source. Therefore the Ohio definition is consistent with the federal program.
j. Paragraph (PPPP), definition of “PM10.” i. This is a new definition that was not previously addressed before the proposed rule. Ohio EPA has not indicated what impact adding this definition to the NSR program would have, thus causing more uncertainty to the program.11

EPA responds that this PM10 definition is based on the federal definition found in 40 CFR 50.6. PM10 has been a regulated pollutant in the federal program and Ohio’s program for well over a decade. Since the Ohio definition is consistent with the fede ral definition, and PM10 has been regulated under the NSR program, the addition of this definition is approvable and does not provide uncertainty to the program. k. Paragraph (QQQQ), definition of “PM10 emissions.” i. This is a new definition that was not previously addressed before the proposed rule. Ohio EPA has not indicated what impact adding this definition to the NSR program would have, thus causing more uncertainty to the program. EPA responds that this PM10 definition is based on the federal defin ition found in 40 CFR 50.6. PM10 emissions have been regulated under the federal program and Ohio’s program for well over a decade. Since the Ohio definition is consistent with the federal definition, and PM10 emissions have been regulated under the NSR p rogram, the addition of this definition is approvable and does not provide uncertainty to the program. 1. Paragraph (RRRR), definition of “Pollution Control Project.” i. OEC’s comments to the “Pollution Control Project” rule, 3745

- 31

- 31, are incorporated herein. EPA refers to our responses to comments regarding the Pollution Control Project rule below. ii. because (RRRR) refers to “at an existing emissions unit,” OEC understands that air contaminant sources that do not emit any “NSR pollutant” cannot qu alify for a pollution control project. If this understanding is incorrect, then EPA needs to explain. EPA responds that in a November 15, 2005 letter , the OEPA withdrew its request for approval of the definition for “Pollution Control Project”. Furthermo re, on June 2, 2008, OEPA removed this definition from its rules. The action became effective on June 30, 2008. EPA is not approving this definition into the SIP. iii. EPA needs to clarify whether the phrase “with a more effective unit” refers only to

“emissions units” that emit only a “NSR pollutant” or whether a “more effective unit” includes any air contaminant source.12

EPA responds that in a November 15, 2005 letter , the OEPA withdrew it s request for approval of the definition for “Pollution Control Project”. Furthermore, on June 2, 2008, OEPA removed this definition from its rules. The action became effective on June 30, 2008. EPA is not approving this definition into the SIP. m. Paragraph (XXXX), definition of “Prevention of Significant Deterioration (PSD) Permit.” i. This is a new definition that was not previously addressed before the proposed rule. Ohio EPA has not indicated what impact adding this definition to the NSR program would have, thus causing more uncertainty to the program. Moreo ver, addition of this rule would require Ohio EPA to issue a PSD permit to an entity that received a PSD permit from another state, even if that other state had worse air quality than Ohio, thereby hindering Ohio’s efforts to timely comply with the NAAQS. EPA responds that this state definition is based on the federal definition
. PSD permits have been issued under the federal program and Ohio’s program for well over 2 decades. Since the definition is consistent with the federal definition and PSD permits have been issued by OEPA for many years, the addition of this definition is approvable and does not provide uncertainty to the program. n. Paragraph (ZZZZ), definition of “Projected Actual Emission.” i. again, the phrase “a regulated NSR pollutant” is too narrow and should be deleted because it excludes many types of emissions from regulation. EPA responds that OEPA’s definition of “projected actual emission,” including the phrase “a regulated NSR pollutant” is consistent with the federal definitions at 4 0 CFR 51.165 and 51.166, therefore, this definition approvable. ii. the phrase “in any one of the 5 years (12

- month period)” should be replaced with “for the two year period.” A five year “look ahead” is not representative of actual emissions. Moreover, a two year look ahead provides just as much “certainty” as does a 5

- year look ahead. EPA responds that OEPA’s definition of “projected actual emission,” including the phrase “in any one of the 5 years (12

- month period) , ” is consistent with the federal defi nitions at 40 CFR 51.165 and 51.166 as written, therefore, no changes are necessary for approval. iii. the phrase that reads “following the date the unit resumes regular operation after the NSR project” should be replaced with “after a physical change or change in the method13

of operation of a unit.” The proposed rule would allow additional emissions into the atmosphere without being accounted for, i.e., emissions from the date of startup to the date of “regular operation,” and would thus be detrimental to human health and the environment. In addition, the proposed rule fails to define “regular operation,” thus allowing additional emissions into the atmosphere to the detriment of human health and the environment. The sooner the “projected

- actual” calculation is begun, the lesser the adverse impact the construction will have on human health and the environment

. EPA responds that OEPA’s definition of “projected actual emission,” including the phrase “following the date the unit resumes regular operation afte r the NSR project , ” is consistent with the federal definitions at 40 CFR 51.165 and 51.166 as written, therefore, no changes are necessary for approval. iv. the language that begins with “or in any one of the 10 years” and the language that constitutes th e remainder of the sentence should be deleted in its entirety because it makes no sense. As written, a source could increase its potential to emit without being subject to New Source Review. This is clearly contrary to the existing definition of “modifica tion” as contained in both the Clean Air Act and the Ohio Administrative Code. For example, any source that increases its potential to emit would, as a matter of law, be increasing its “allowable” emissions, and under current Ohio law any such increase tha t is a result of a physical change or change in the method of operation of a source constitutes a “modification” and must be preceded by the issuance of a Permit to Install. The proposed rule, however, would compare those increased emissions to a “baselin e” to determine whether “significant” threshold levels are exceeded, and if not then New Source Review is unnecessary. Thus, the proposed rule provides for an anomaly, i.e., a source may increase its allowable emissions yet not be subject to New Source Review. Consequently, the proposed rule creates an absurd result and should not be approved by EPA. If EPA ultimately decides to approve the rule, it would be impossible for the Ohio Attorney General to certify that Ohio’s Permit to Install program is “more stringent” than the federal New Source Review program. EPA responds that OEPA’s definition of “projected actual emission,” including the language referenced in your comment, is consistent with the federal definitions at 40 CFR 51.165 and 51.166 as writte n, therefore, Ohio’s rule is as stringent as the federal program in this respect. v. the language in (ZZZZ)(1) that states “before beginning actual construction” should be changed to read “before commencement of actual construction” in order to be consistent with current Ohio law. EPA responds that OEPA’s definition of “projected actual emission,” including the phrase “before beginning actual construction,” is consistent with the federal definitions at14

40 CFR 51.165 and 51.166, as written, therefore, no c hanges are necessary for approval. vi. section (1)(b) should be deleted in its entirety. There is no way to determine a maximum annual rate of emissions associated with startups, shutdowns and malfunctions. Moreover, implicit in the definition of “projected actual emissions” is that such emissions should be “representative” of the source’s “normal” operation, and emissions associated with startups, shutdowns and malfunctions are not at all representative of normal operations. In addition, including emissions from startups, shutdowns and malfunctions in a projected actual emissions determination results in an artificial projection. Moreover, emissions from startups and shutdowns are not included in a source’s “actual” emissions or purposes of determining compliance with the source’s allowable emission limit so they should not be included in determining any projected actual emission level for the source. Finally, the proposed rule as written would allow a source to include as part of its projected actual” calculation all “actual” emissions that exceed its “allowable” emissions, creating an absurd result, i.e., including non - complying emissions in a “projected actual” calculation. EPA responds that OEPA’s definition of “projected actual emission,” including section (1)(b), is consistent with the federal definitions at 40 CFR 51.165 and 51.166 as written, therefore, no changes are necessary for approval. o. Paragraph (DDDDD), definition of “Regulated NSR pollutant.” i. the definition should be rejected in its entirety. The proposed definition exempts from New Source Review the installation in a non

- attainment area of a new source that has the potential to emit over 100 tons per year of mercury. This is an absurd result. EPA responds that OEPA’s definition of “projected actual emission” is consistent with the federal definitions at 40 CFR 51.165 and 51.166 as written, therefore, no changes are necessary for approval. p. Paragraph (EEEEE), definition of “replacement unit.” i. because the definition refers to “emissions unit,” OEC understands that air contaminant sources that do not emit an “NSR pollutant” cannot qualify as a replacement unit. If this understanding is incorrect, then EPA needs to explain. EPA shares this understanding . A “ replacement unit ” is an emissions unit that meets the criteria in OAC 3745

- 31

- 01(EEEEE) and emits at least one regulated NSR pollutant. 2. OAC 3745

- 31

- 01(E), (J), (M), (X), (JJ), (QQ), (DDD), (EEE), (XXX), (HHHHH), and (XXXXX). a. OEC objects to the inclusion of these definitions in 31

- 01 because they have not been addressed by the interested parties and they have nothing to do with the December 2002 federal regulations that were adopted by EPA. Although Ohio EPA alleges these15

definitions are necessary because OAC 3745

- 31

- 03 (exemptions to NSR) has been modified, Ohio EPA has not demonstrated that these new definitions are required at this time and has not provided any explanation why they are required at the present. EPA finds no reason not to approve these definitions. OEPA submitted the relevant changes to OAC 3745

- 31

- 03 to EPA for approval into its state implementation plan (SIP) on April 24, 2006. Once these exemptions to Ohio’s NSR program are acted on, interested parties will be able to comment on the exemptions fo r which these definitions would apply. 3 . OAC 3745

- 31

- 10, Air Stationary Source Obligations a. OEC objects to the inclusion of this rule because it has not been addressed by the interested parties and it has nothing to do with the federal regulations tha t were adopted by EPA. Although Ohio EPA alleges this rule is necessary because of recent changes to its non

- attainment designations by EPA, Ohio EPA has not demonstrated that this rule is required at this time and has not provided any explanation why it is required at the present. EPA responds that OAC 3745

- 31

- 10 is consistent with the federal definitions at by 40 C.F.R. 51.165(a)(6) and 51.166(r), therefore , the rule is approvable . b. Paragraph (C). i. because this rule refers to “emissions units,” only those projects undertaken at air contaminant sources that do not emit a “NSR pollutant” are exempt from the requirements of paragraph (C). EPA shares this understanding. Therefore, consistent with the federal program, Ohio’s rules allow only air contami nant sources which meet the definition of “emissions unit” would be exempt from the requirements of paragraph (C). 4. OAC 3745

- 31

- 13, Attainment Provisions a. OEC objects to the inclusion of this rule because it has not been addressed by the interested pa rties and it has nothing to do with the federal regulations that were adopted by EPA. Although Ohio EPA alleges this rule is necessary because of recent changes to its nonattainment designations by EPA, Ohio EPA has not demonstrated that this rule is requ ired at this time and has not provided any explanation why it is required at the present. EPA responds that t he se changes to OAC 3745

- 31

- 13 update the rule to be consistent with the terminology of the federal program and the CAA . These changes are approv able . b. Paragraph (H), exemptions to ambient monitoring.16

i. since mercury, beryllium and vinyl chloride are now deleted from the ambient monitoring requirements of the proposed rule, OEC understands that these pollutants are now regulated under the final “Interstate Air Quality Rule” and final “Mercury Emissions from Power Plants” rules. If this understanding is incorrect, then EPA needs to explain. EPA responds that Section 112(b)(6) of the CAA prohibits the regulation of these compounds under th is fed eral program. 5. OAC 3745

- 31

-21, Nonattainment Provisions a. OEC objects to the inclusion of this rule because it has not been addressed by the interested parties and it has nothing to do with the federal regulations that were adopted by EPA. Although Ohio EPA alleges this rule is necessary because of recent changes to its nonattainment designations by EPA, Ohio EPA has not demonstrated that this rule is required at this time and has not provided any explanation why it is required at the present. EPA resp onds that Ohio’s changes to these rules are to update the rule to be consistent with the terminology of the federal program and the CAA . These changes are necessary. b. Paragraph (B), applicability of nonattainment provisions. i. all of the nonattainment provisions contained in rules 31

-21 through 31

-27 should apply to all air pollutants, not to just “NSR pollutants.” EPA responds that Ohio’s rules do not define “air pollutants.” The definition of “regulated NSR pollutant” was added to be consistent wit h the federal program. Ohio’s choice to change “air pollutant” to “regulated NSR pollutant” makes its rules more consistent with the federal program and is approvable. 6. OAC 3745

- 31

-22, Nonattainment Provisions a. OEC objects to the inclusion of this ru le because it has not been addressed by the interested parties and it has nothing to do with the federal regulations that were adopted by EPA. Although Ohio EPA alleges this rule is necessary because of recent changes to its nonattainment designations by EPA, Ohio EPA has not demonstrated that this rule is required at this time and has not provided any explanation why it is required at the present. EPA responds that s everal of the changes made do not change the meaning of the provisions. They were intend ed to update the rule language to make it consistent wit h a general regulatory format.17

In a November 15, 2005 letter , OEPA withdrew its request for approval of OAC 3745

- 31

- 22(A)(3)(e) and (f). Furthermore, on June 2, 2008, OEPA removed this language from its rules. The action became effective on June 30, 2008. EPA is not approving these sections into the SIP. The language of OAC 3745

- 31

- 22(A)(3)(g) is still required by 40 C.F.R. 51.165 , therefore, Ohio’s rules are consistent with the federal program. 7. OAC 3745

- 31

-24, Nonattainment Provisions a. OEC objects to the inclusion of this rule because it has not been addressed by the interested parties and it has nothing to do with the federal regulations that were adopted by EPA. Although Ohio EPA alleges t his rule is necessary because of recent changes to its nonattainment designations by EPA, Ohio EPA has not demonstrated that this rule is required at this time and has not provided any explanation why it is required at the present. EPA responds that t he l anguage of OAC 3745

- 31

- 2 4 is consistent with the federal definitions at 40 C.F.R. 51.165 , therefore, Ohio’s rules are consistent with the federal program. b. Paragraph (B)(1). There is a typographical error in the phrase that should read “the actual emiss ions of sources located within . . . .” EPA responds that t he language of OAC 3745

- 31

- 24(B)(1) does read as described in the comment , therefore there is no typographical error
. 8. OAC 3745

- 31

-26, Nonattainment Provisions a. OEC objects to the inclusion o f this rule because it was not submitted for public comments by interested parties and it has nothing to do with the federal regulations that were adopted by EPA. Although Ohio EPA alleges this rule is necessary because of recent changes to its nonattainm ent designations by EPA, Ohio EPA has not demonstrated that this rule is required at this time and has not provided any explanation why it is required at the present. Moreover, there is no basis in the Clean Air Act for a nonattainment area to be designated “Basic” nor for a VOC offset ratio to be greater than 1.0 to 1.0 without specifying how much greater. EPA responds that the November 29, 2005 final 8

- hour ozone rule, and the CAA, require this offset ratio for subpart I nonattainment areas. Although t he federal 8

- hour ozone rule does redesignate areas in Ohio as “basic” nonattainment areas, Ohio’s NSR rules that we are approving do not refer to the “basic” designation, therefore OEC’s comment about the legalities of “basic” nonattainment areas is not r elevant to this rulemaking.18

9. OAC 3745

- 31

- 30, Clean Unit a. the language in (A)(1) that reads “within the past 10 years” should be changed to read “within the past 5 years.” EPA responds that in a November 15, 2005 letter , the OEPA withdrew its req uest for approval of OAC 3745

- 31

- 30. Furthermore, on June 2, 2008, OEPA removed this OAC 3745

- 31

- 30 from its rules. The action became effective on June 30, 2008. EPA is not approving th is section into the SIP. b. the word “project” in section (A)(2)(a) and those sections following should be defined. Does this encompass “any physical change in or change in the method of operation of” a source? EPA responds that in a November 15, 2005 letter , the OEPA withdrew its request for approval of OAC 3745

- 31

- 30. Furthermore, on June 2, 2008, OEPA removed this OAC 3745

- 31

- 30 from its rules. The action became effective on June 30, 2008. EPA is not approving th is section into the SIP. c. the last sentence in (A)(2)(b) that reads “the emissions unit remains a Clea n Unit” should be changed to read “the emissions unit remains a Clean Unit for that project.” EPA responds that in a November 15, 2005 letter , the OEPA withdrew its request for approval of OAC 3745

- 31

- 30. Furthermore, on June 2, 2008, OEPA removed this O AC 3745

- 31

- 30 from its rules. The action became effective on June 30, 2008. EPA is not approving th is section into the SIP. d. the language in (A)(2)(c) that reads “then the emissions unit looses its designation as a Clean Unit upon issuance of the necessary permit revisions (unless the quit requalifies as a Clean Unit pursuant to paragraph (A)(3)(c) of this section)” should be deleted in its entirety and should be replaced with the following “then actual construction on the project is prohibited.”
EPA responds that in a November 15, 2005 letter , the OEPA withdrew its request for approval of OAC 3745

- 31

- 30. Furthermore, on June 2, 2008, OEPA removed this OAC 3745

- 31

- 30 from its rules. The action became effective on June 30, 2008. EPA is not approving th is section into the SIP. e. the language in (A)(2)(e) that reads “In addition, the requirements of * * *do not apply to emissions units that qualify for Clean Unit status under * * *” should be deleted. The clean unit’s allowable emission limit will be already established by the PSD permit and any off

-sets that may have been allowed will already have been accounted for.19

EPA responds that in a November 15, 2005 letter , the OEPA withdrew its request for approval of OAC 3745

- 31

- 30. Furthermore, on June 2, 2008, OEPA removed this OAC 3745

- 31

- 30 from its rules. The action became effective on June 30, 2008. EPA is not approving th is section into the SIP. f. the beginning language in (A)(3) that reads “An emissions unit automatically qualifies as a Clean Un it when the unit meets the criteria in paragraphs * * * of this rule” should be deleted because it is inconsistent with the definition in 3745

- 31

- 01(Y). EPA responds that in a November 15, 2005 letter , the OEPA withdrew its request for approval of OAC 37 45

- 31

- 30. Furthermore, on June 2, 2008, OEPA removed this OAC 3745

- 31

- 30 from its rules. The action became effective on June 30, 2008. EPA is not approving th is section into the SIP. g. the language in (A)(3)(b) that reads “through the use of an air po llution control technology” should be changed to read “through the use of an installed air pollution control technology approved by the director.” EPA responds that in a November 15, 2005 letter , the OEPA withdrew its request for approval of OAC 3745

- 31

- 3 0. Furthermore, on June 2, 2008, OEPA removed this OAC 3745

- 31

- 30 from its rules. The action became effective on June 30, 2008. EPA is not approving th is section into the SIP. h. the language in (A)(4)(a) that reads “the emissions unit’s air pollution control technology” should be changed to read “the emissions unit’s approved air pollution control technology.” EPA responds that in a November 15, 2005 letter , the OEPA withdrew its request for approval of OAC 3745

- 31

- 30. Furthermore, on June 2, 2008, OEPA removed this OAC 3745

- 31

- 30 from its rules. The action became effective on June 30, 2008. EPA is not approving th is section into the SIP. i. the language in (A)(5)(a) and (b) should be consistent with section (A)(2)(c). EPA responds that in a Nove mber 15, 2005 letter , the OEPA withdrew its request for approval of OAC 3745

- 31

- 30. Furthermore, on June 2, 2008, OEPA removed this OAC 3745

- 31

- 30 from its rules. The action became effective on June 30, 2008. EPA is not approving th is section into the S IP. j. the sentence in (A)(8) that begins with “However, if the Clean Unit reduces emissions below the level that qualified the unit as a Clean Unit, * * * should be deleted in its20

entirety because this language allows what the rest of this and the other proposed regulations prohibit, i.e., emissions reductions created by a Clean Unit shall not be used for calculating offsets or credits. EPA responds that in a November 15, 2005 letter , the OEPA withdrew its request for approval of OAC 3745

- 31

- 30. Further more, on June 2, 2008, OEPA removed this OAC 3745

- 31

- 30 from its rules. The action became effective on June 30, 2008. EPA is not approving th is section into the SIP. k. the language in (A)(8) that reads “For purposes of generating offsets, the reductions must also be federally enforceable” should be changed to read “For purposes of generating offsets, emissions that are reduced below the level that qualified the unit as a Clean Unit must also be federally enforceable.” EPA responds that in a November 15 , 2005 letter , the OEPA withdrew its request for approval of OAC 3745

- 31

- 30. Furthermore, on June 2, 2008, OEPA removed this OAC 3745

- 31

- 30 from its rules. The action became effective on June 30, 2008. EPA is not approving th is section into the SIP. 10. OAC 3745

- 31

- 31, Pollution Control Project a. does EPA intend for “pollution prevention projects” to be included within the definition of “pollution control projects”? Ohio EPA has an “office of pollution prevention” that encourages pollution prevention ( P2) projects, and Ohio EPA has a policy of encouraging P2 projects, either through a voluntary program initiated by the regulated community, through findings and orders, or through enforcement orders negotiated with the attorney general’s office. If P2 pro jects are to be included in the scope of this rule then the definition of PCP needs to be changed and “prevention” needs to be added to this portion of the rule. EPA responds that in a November 15, 2005 letter , the OEPA withdrew its request for approval o f OAC 3745

- 31

- 31. Furthermore, on June 2, 2008, OEPA removed this OAC 3745

- 31

- 31 from its rules. The action became effective on June 30, 2008. EPA is not approving th is section into the SIP. b. anytime the word “project” is used, it should be changed to read “any operation, activity or project.” This is necessary to be consistent with the definition of “air contaminant source,” which is defined in OAC chapter 3745

- 31 as an “operation or activity.” EPA responds that in a November 15, 2005 letter , the OE PA withdrew its request for approval of OAC 3745

- 31

- 31. Furthermore, on June 2, 2008, OEPA removed this OAC 3745

- 31

- 31 from its rules. The action became effective on June 30, 2008. EPA is not approving th is section into the SIP.21

c. the OEC recommends that the federal list of “approved” PCPs for which a permit application is not necessary should not be adopted by EPA. Any attempt to further relax the standards of the clean air act through federal administrative fiat should be rejected. EPA responds that in a November 15, 2005 letter , the OEPA withdrew its request for approval of OAC 3745

- 31

- 31. Furthermore, on June 2, 2008, OEPA removed this OAC 3745

- 31

- 31 from its rules. The action became effective on June 30, 2008. EPA is not approving th is section into the SIP. d. the language in (B)(1) which reads “the owner or operator must submit a permit application and obtain approval” should be changed to read “the owner or operator must submit a modified permit application and receive a modified permit.”
EP A responds that in a November 15, 2005 letter , the OEPA withdrew its request for approval of OAC 3745

- 31

- 31. Furthermore, on June 2, 2008, OEPA removed this OAC 3745

- 31

- 31 from its rules. The action became effective on June 30, 2008. EPA is not approvin g th is section into the SIP. e. the word “outweigh” in (B)(2)(a) should be defined, or some concrete, objective criteria developed before an “environmental benefit” is determined. EPA responds that in a November 15, 2005 letter , the OEPA withdrew its re quest for approval of OAC 3745

- 31

- 31. Furthermore, on June 2, 2008, OEPA removed this OAC 3745

- 31

- 31 from its rules. The action became effective on June 30, 2008. EPA is not approving th is section into the SIP. f . the following language in (B)(2)(a) sh ould be deleted: “A statement that a technology from a PCP of this section is being used shall be presumed to satisfy this requirement.” The entity seeking the PCP exclusion should be required to perform the requisite analysis to demonstrate the “environmentally beneficial” aspect of the PCP. EPA responds that in a November 15, 2005 letter , the OEPA withdrew its request for approval of OAC 3745

- 31

- 31. Furthermore, on June 2, 2008, OEPA removed this OAC 3745

- 31

- 31 from its rules. The action became effecti ve on June 30, 2008. EPA is not approving th is section into the SIP. g. an additional criteria should be included in paragraph (B)(2)(b), such as “emissions increases from the project will not cause a violation of any applicable law.” EPA responds that in a November 15, 2005 letter , the OEPA withdrew its request for approval of OAC 3745

- 31

- 31. Furthermore, on June 2, 2008, OEPA removed this OAC 3745

-22

31

- 31 from its rules. The action became effective on June 30, 2008. EPA is not approving th is section i nto the SIP. h. under section (B)(3)(a), the description of the project should include the costs and the timetable. EPA responds that in a November 15, 2005 letter , the OEPA withdrew its request for approval of OAC 3745

- 31

- 31. Furthermore, on June 2, 20 08, OEPA removed this OAC 3745

- 31

- 31 from its rules. The action became effective on June 30, 2008. EPA is not approving th is section into the SIP. i. the language in (B)(3)(c) that reads “should be sufficient” should be changed to read “shall be those s

pecified.” EPA responds that in a November 15, 2005 letter , the OEPA withdrew its request for approval of OAC 3745

- 31

- 31. Furthermore, on June 2, 2008, OEPA removed this OAC 3745

- 31

- 31 from its rules. The action became effective on June 30, 2008. EPA i s not approving th is section into the SIP. j. the language in (B)(3)(d) that reads “in such a way as to minimize” should be changed to read “in such a way as to minimize or prevent.” EPA responds that in a November 15, 2005 letter , the OEPA withdrew its request for approval of OAC 3745

- 31

- 31. Furthermore, on June 2, 2008, OEPA removed this OAC 3745

- 31

- 31 from its rules. The action became effective on June 30, 2008. EPA is not approving th is section into the SIP. k. the language in (B)(3)(e) that reads “an air quality impact analysis is not required for any pollutant that will not experience a significant emissions increase as a result of the project” should be deleted. If this language is not deleted, then “significant” should be defined in a manner co nsistent with OAC chapter 3745

- 31. EPA responds that in a November 15, 2005 letter , the OEPA withdrew its request for approval of OAC 3745

- 31

- 31. Furthermore, on June 2, 2008, OEPA removed this OAC 3745

- 31

- 31 from its rules. The action became effective on June 30, 2008. EPA is not approving th is section into the SIP. l. the language in (B)(4) that reads “may begin actual construction of the project immediately after notice is sent to the director” should be changed to read “may begin actual constructio n of the project no sooner than 30 days after notice is sent to the reviewing authority.” This change allows the director to determine if additional information on the PCP is necessary, as contemplated by the remainder of section (B)(4),23

and prevents a situation where the entity rushes to begin actual construction only to find later that its project does not qualify as a PCP. EPA responds that in a November 15, 2005 letter , the OEPA withdrew its request for approval of OAC 3745

- 31

- 31. Furthermore, on June 2, 2008, OEPA removed this OAC 3745

- 31

- 31 from its rules. The action became effective on June 30, 2008. EPA is not approving th is section into the SIP. m. the language in (B)(4) that reads “shall respond to any requests by the director for additional information” should be changed to read “shall, within 10 days, provide any additional information requested by the director.” EPA responds that in a November 15, 2005 letter , the OEPA withdrew its request for approval of OAC 3745

- 31

- 31. Furthermore, on Ju ne 2, 2008, OEPA removed this OAC 3745

- 31

- 31 from its rules. The action became effective on June 30, 2008. EPA is not approving th is section into the SIP. n. the language in (B)(6)(a) that reads “in such a way as to minimize” should be changed to read “in such a way as to minimize or prevent.” EPA responds that in a November 15, 2005 letter , the OEPA withdrew its request for approval of OAC 3745

- 31

- 31. Furthermore, on June 2, 2008, OEPA removed this OAC 3745

- 31

- 31 from its rules. The action became eff ective on June 30, 2008. EPA is not approving th is section into the SIP. o. the language in (B)(6)(b) that reads “must maintain copies on site” should be changed to read “must maintain copies on site for a minimum of three years.” EPA responds that in a November 15, 2005 letter , the OEPA withdrew its request for approval of OAC 3745

- 31

- 31. Furthermore, on June 2, 2008, OEPA removed this OAC 3745

- 31

- 31 from its rules. The action became effective on June 30, 2008. EPA is not approving th is section into the SIP. p. the language in (B)(6)(d) that reads “unless the emissions unit further reduces emissions” should be changed to read “unless the emissions unit demonstrates that further emissions reductions will be achieved.” EPA responds that in a November 15, 2005 letter , the OEPA withdrew its request for approval of OAC 3745

- 31

- 31. Furthermore, on June 2, 2008, OEPA removed this OAC 3745

- 31

- 31 from its rules. The action became effective on June 30, 2008. EPA is not approving th is section into the SIP.24

q. The sentence in (B)(6)(d) that begins with “The owner or operator may generate a credit for the difference” should be deleted in its entirety because this language allows what the rest of this and the other proposed regulations prohibit, i.e., emissions reductions created by a PCP shall not be used for calculating offsets or credits. EPA responds that in a November 15, 2005 letter , the OEPA withdrew its request for approval of OAC 3745

- 31

- 31. Furthermore, on June 2, 2008, OEPA removed this OAC 3745

- 31

- 31 from its rules. The action became effective on June 30, 2008. EPA is not approving th is section into the SIP. r. the language in (B)(6)(d) that reads “For purposes of generating offsets, the reductions must also be federally enforceable” should be ch anged to read “For purposes of generating offsets, the further emissions reductions that are demonstrated after the emissions unit qualifies for the PCP exclusion must also be federally enforceable” EPA responds that in a November 15, 2005 letter , the OEP A withdrew its request for approval of OAC 3745

- 31

- 31. Furthermore, on June 2, 2008, OEPA removed this OAC 3745

- 31

- 31 from its rules. The action became effective on June 30, 2008. EPA is not approving th is section into the SIP. 11. OAC 3745

- 31

- 32, PALs a. OEC does not see any benefit to this rule, thus, it should be deleted. The concept of a PAL has been embodied by Ohio EPA in various permits it has already issued. This practice should continue through permitting rather than through a rule that is too lengthy and cumbersome to be of any value, to either industry, Ohio EPA, human health or the environment. EPA responds that t he language of OAC 3745

- 31

- 32 is required by 40 C.F.R. 51.165 therefore, Ohio’s rules are consistent with the federal program. b. because the PAL rule uses the definition of baseline actual emissions, it is possible to have a baseline that allows increased emissions which results in an exemption from NSR. Thus, an increase in actual emission should result in the installation of modern air pollution controls, rather than a reward in the form of being exempted from NSR. See the response to comments on the definition of “baseline actual emissions” above. c. baselines set at levels within the past 10 years could exceed the emissions in ozone maintenance inventories, and a PAL that is set at a level exceeding the facility level in the maintenance inventory would require a SIP revision with equal reductions required from some other source in the inventory. Such baselines would also allow increases in areas that are nonattainment for the 8

- hr standard, where the current inventory is obviously not low enough.25

EPA responds that t he language of OAC 3745

- 31

- 32 is consistent with the federal definitions at 40 C.F.R. 51.165 therefore, Ohio’s ru le is consistent with the federal program. d. under the federal PAL, new units could be installed without controls, another unreasonable proposal for nonattainment areas. Ohio EPA should go on record as stating that they are going to retain their minor NS R rule and requirement for BAT on all new units. EPA responds that t he language of OAC 3745

- 31

- 32 is consistent with the federal definitions at 40 C.F.R. 51.165 , therefore, Ohio’s rules are consistent with the federal program. e. an area where the PAL ru le could be useful is an extension of the “Clean Unit” concept to a “Clean Facility.” Facilities that have BACT on all significant units would be accorded flexible operation under the BACT level cap. The idea of "partial PALs", where a group of sources (production line, boiler house, group of printing presses, etc) with BACT installed would be allowed flexible operation, seems workable. This comment would be more appropriately directed to the federal rule. However, since Ohio’s rule is consistent with the federal rule, it is approvable.