Deny Indefinite Permit Extensions for Major Polluting Facilities Under Appeal

Genevieve Damico, Chief, Air Permits Section, U.S. Environmental Protection Agency, Region 5

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The Ohio Environmental Protection Agency (OEPA) is seeking a revision to Ohio law that would allow for the automatic extension of air permits-to-install (PTI) for major polluting facilities, potentially threatening local air quality and eliminating opportunities for public input.

Under the current Clean Air Act State Implementation Plan, major polluters must submit a formal application for an air permit-to-install to the OEPA before constructing a facility. The permitting process allows both state and federal agencies to ensure major polluting facilities do not violate National Ambient Air Quality Standards by setting and enforcing regulations and ensuring the facility uses the best available pollution control technology.

Through provisions included in the federal Clean Air Act (CAA), the OEPA must also seek and respond to input from citizens to allow the public to have meaningful involvement in decision making with respect to permitting such facilities. Before issuing a final permit-to-install, OEPA must issue a public notice and draft permit and review and address all comments received during a 30-day public comment period.

Once the permit is approved, polluters have 18 months to begin construction of the permitted facility with the opportunity for a one-time, 12-month extension. At the end of the cumulative 30 month period, if construction has not started, polluters must begin the formal application process anew.

Ohio’s current legislation exists to protect frontline communities from hazardous levels of air pollution. The expiration of permits after an 18-month period is included in federal regulations and is designed to ensure that major sources of air pollution are constructed with reasonably current pollution control standards and on the basis of current information on air quality in the area to be impacted.

The proposed revision would allow for the extension of an installation permit by the length of time a permit was under appeal, which could be years. An automatic extension of air permits-to-install runs counter to the regulatory design of current Ohio law. It could allow major polluting facilities to operate under aging air regulations with outdated pollution control technology, potentially endangering local residents’ health. The proposed legislative revision also eliminates opportunities for public input on the construction and operation of major sources of pollution. Automatic extensions of air permits-to-install do not require the distribution of a public notice, nor do they require OEPA to accept and address public concerns.

We demand the U.S. Environmental Protection Agency deny the Ohio Environmental Protection Agency’s request to revise the state implementation plan, allowing for the indefinite extension of permits for major polluting facilities under appeal. We also demand a public hearing on the proposed revision to Ohio’s SIP and an extension to the public comment period for U.S. EPA’s proposal to approve Ohio’s SIP to allow residents to voice their concerns about this proposed revision.


To: Genevieve Damico, Chief, Air Permits Section, U.S. Environmental Protection Agency, Region 5
From: [Your Name]

U.S. EPA must NOT approve Ohio’s proposed revision to its State Implementation Plan (“SIP”) Under the Clean Air Act.

Including Ohio Revised Code 3704.03(F)(2)(b)(iv), Ohio’s SIP is in conflict with the purpose and requirements of the Clean Air Act’s preconstruction requirements for major sources of air pollution, which requires that the facility must be subject to best available control technology and will not cause or contribute to air pollution in excess of the National Ambient Air Quality Standards and will meet applicable emissions standards and standards of performance. The Clean Air Act also requires an analysis of air quality impacts from growth associated with the facility, a public hearing, and an opportunity for public comment on the air quality impact of the facility, control technology requirements, and other relevant considerations.

Because the preconstruction requirements are dependent upon reasonably current information, the 18-month time period currently in Ohio law (and in U.S. EPA regulations) is designed to ensure that major sources of air pollution are constructed with up-to-date pollution control standards and current air quality information.

U.S. EPA’s proposal to approve Ohio’s SIP revision would automatically extend the 18-month time period to begin construction under a PSD permit by the amount of time that permit is under third-party appeal, which could range from 6 months to upwards of 3 years. This extension would allow the construction of a new major source of air pollution that has not been subjected to the best available control technology, has not demonstrated with reasonably current information that the facility will not cause or contribute to air pollution in excess of the National Ambient Air Quality Standards and will meet applicable emissions standards and standards of performance, has not completed an analysis of air quality impacts based on reasonably-current information, has not been subjected to a public hearing and a public comment period. This contradicts the purpose and requirements of the Clean Air Act.
Ohio EPA says that it will maintain discretion to re-assess the permit in the instance of a lengthy appeal process. This assurance is essentially meaningless. Ohio statute now automatically extends a PSD permit by the length of time that permit is under appeal. If that provision is made a part of Ohio’s SIP, both federal and state law will also automatically extend a PSD permit by the length of time that permit is under appeal. U.S. EPA cannot just take Ohio EPA at its word that it will only properly use a provision that contradicts the purpose of the requirements of the Clean Air Act in ways that actually support the Clean Air Act. This is entirely unreasonable, illogical, and unacceptable.

Ohio EPA also says that it has a website that it will use to notify the public of the extended permit. This is an unreasonable and inadequate substitute for the public hearing and opportunity to submit written and oral comment to which the public is entitled under the Clean Air Act. It is also a misstatement and exaggeration of the truth. Ohio EPA has a poorly functioning website where it posts some documents. The public regularly struggles with Ohio EPA to obtain information and documents. U.S. EPA cannot just take Ohio EPA at its word on the issue of public input.

Ohio’s current SIP gives plenty of time for an Applicant to begin construction. It gives 18 months. It also gives another extension of 12 months if an Applicant requests one and shows that extension is justified—Applicants easily meet this burden and Ohio EPA regularly grants 12-month extensions. This means Applicants already have 30 months to begin construction.

After 30 months have passed, there is new information available that is relevant to the PSD permitting process and the requirements of the Clean Air Act. A new Best Available Control Technology analysis must be done. Air analysis must be completed using updated information for air quality in the surrounding area. This is necessary to ensure the project still will not cause or contribute to violations of National Ambient Air Quality Standards. The public is entitled to comment on this updated information and to have their input considered in permitting. For these reasons, U.S. EPA must NOT approve Ohio’s proposed revision to its SIP.

A PSD permit is still effective when it is under appeal. An Applicant is able to move forward with construction during the appeal process. If the permit is not stayed during the appeal, then the permit should not automatically be extended for the duration of the appeal.

Ohio EPA mentions that it made this proposal to change its SIP available for public input. Ohio EPA does not specify what non-electronic means the agency used to distribute this proposal, but a large portion of the impacted public does not have access to high speed internet and would not have been made aware of Ohio EPA’s proposal by electronic disbursement. This lack of public awareness is the only reason that the impacted public did not submit extensive comments and demand a public hearing on this proposal.

Lastly, U.S. EPA cannot approve a revision to a state’s SIP unless there has been reasonable notice and a public hearing. Ohio EPA admits that there has been no public hearing for this proposed change to Ohio’s SIP, and there has been no reasonable notice to the impacted public. Therefore, U.S. EPA cannot approve this proposed change to Ohio’s SIP.

We demand a public hearing on the proposed revision to Ohio’s SIP and an extension on the public comment period for U.S. EPA’s proposal to approve Ohio’s SIP to allow residents to voice their concerns about this proposed revision.

U.S. EPA must deny Ohio’s request to revise its State Implementation Plan under the Clean Air Act.