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 pollution 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 and 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.
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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 Edison, 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 regulatory 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 

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.

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” should 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, this 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 November 3, 

2006, the Ohio Environmental Protection Agency (OEPA) 

removed the reference to (C)(4).
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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 alternative 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 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.

b. Paragraph (O), definition of “baseline actual emissions.”

i. The definition of “regulated NSR pollutant” is too narrow. 

EPA responds that Ohio’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 the 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 consecutive 24-month look back provides just 

as much “certainty” as does a 5-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 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. 

iii. 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 

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 startups, 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. 

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 Ohio’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 EPA. 

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 

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.

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,” is identical to the federal definition in 40 

CFR 51.165 and 51.166. Since Ohio’s rules follow the 
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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 period.” 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 sentence 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 “baseline 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 and 
6

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 

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. 

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 

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 startups, 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 “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 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 federal 
7

program and for the reasons stated in the preamble, no 

changes are necessary for the rules to be approved by EPA. 

xiii. The phrase 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 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. 

xv. Subsection (2)(e) should be deleted 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). Furthermore, 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 potentially excludes units that emit hazardous air pollutants (HAPs)

(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 not 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 HAPs 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 sense. 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 Protection 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), definitions 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. because (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 contaminant 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. If 

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” is 
10

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 

contaminant 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 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. 

v. because (HHHH) 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,” OEC 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 emission 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 federal 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 definition 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 program, 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 qualify 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”. 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.

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 its 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. Moreover, 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 40 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

definitions 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 method 
13

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 after 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 the 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 

“modification” 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 that 

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 “baseline” 

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 written, 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 at 
14

40 CFR 51.165 and 51.166, as written, therefore, no changes 

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 these 
15

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 for 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 that 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 

contaminant 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 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 these 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 approvable.

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 this federal 

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 responds 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 with 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 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 responds that several of the changes made do not change 

the meaning of the provisions. They were intended to 

update the rule language to make it consistent with 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 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 the language of OAC 3745-31-24 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 emissions of sources located within . . . .”

EPA responds that the 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 of 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 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. 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 the 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 relevant 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 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 this 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 this section into the SIP.

c. the last sentence in (A)(2)(b) that reads “the emissions unit remains a Clean 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 OAC 3745-

31-30 from its rules. The action became effective on June 

30, 2008. EPA is not approving this 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 this 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 this section into the SIP.

f. the beginning language in (A)(3) that reads “An emissions unit automatically qualifies 

as a Clean Unit 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 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 this section into the SIP.

g. the language in (A)(3)(b) that reads “through the use of an air pollution 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 3745-31-30.

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 this 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 this 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 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 this section into the SIP.

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 its 
20

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.

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 this 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 this 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 projects 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 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 this 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 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 this 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 this 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.”

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 this 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 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 this section into the SIP.

f. the following language in (B)(2)(a) should 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 effective on June 

30, 2008. EPA is not approving this 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 this section into 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, 2008, OEPA removed this OAC 3745-

31-31 from its rules. The action became effective on June 

30, 2008. EPA is not approving this section into the SIP.

i. the language in (B)(3)(c) that reads “should be sufficient” should be changed to read 

“shall be those specified.”

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 this 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 this 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 consistent 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 this 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 construction 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 this 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 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 this 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 effective on June 

30, 2008. EPA is not approving this 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 this 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 this 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 this 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 changed 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 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 this 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 the 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 the language of OAC 3745-31-32 is 

consistent with the federal definitions at 40 C.F.R. 51.165 

therefore, Ohio’s rule 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 NSR rule and requirement for BAT on all 

new units.

EPA responds that the 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 rule 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.