Ohio EPA has announced an early stakeholder outreach regarding its intent to modify the rules controlling its “Permits-to-Install New Sources and Permit-to-Install and Operate Program” (OAC 3745-31-01) to exempt facilities in non-attainment areas from nonattainment new source review for ammonia and Volatile Organic Compounds (VOCs) for the purpose of regulating fine particulate matter 2.5 micrometers in diameter or smaller (PM2.5). Currently, Cuyahoga and Loraine Counties are designated as non-attainment under the PM2.5 2012 standard.

This early outreach is the result of EPA’s August 24, 2016, publication of its “Final Air Quality State Implementation Plans; Approvals and Promulgations: Fine Particulate Matter National Ambient Air Quality Standards Rule” (81 Fed. Reg. 58,010) (Final Rule). The Final Rule addresses the requirements for State Implementation Plans (SIP) relating to areas designated as nonattainment under the PM2.5 2012 National Ambient Air Quality Standards (NAAQS). In the Final Rule, EPA concluded that it no longer had authority to provide a rebuttable presumption to exempt VOC and ammonia from non-attainment new source review (NNSR) permitting requirements based on the January 4, 2013, ruling by the Court of Appeals for the District of Columbia in NRDC v. EPA, 706 F.3d 428 (2013). In that case, the court held that EPA erred in implementing the PM2.5 NAAQS under the general implementation requirements in Subpart 1 of the Clean Air Act, rather than relying on the implementation requirements specific to PM10 in Subpart 4. The court expressed concern over the use of a rebuttable presumption exempting precursors such as ammonia and VOCs from regulation stating that the presumption was the type of “administrative gamesmanship” that Congress sought to end when it enacted Subpart 4.

The Final Rule now allows states to exempt ammonia and VOCs from NNSR control requirements only upon approval of one of three possible precursor demonstrations. The options that states have for precursor demonstrations are 1) a “comprehensive precursor demonstration” to show that all existing stationary, area, and mobile sources located in the nonattainment area do not significantly contribute to PM2.5 levels that exceed the standard in the area; 2) a “major stationary source” precursor demonstration that all existing major stationary sources located in the nonattainment area do not significantly contribute to PM2.5 levels that exceed the standard in the area; or 3) a “NNSR precursor demonstration” that consists of a sensitivity based analysis to show that an increase in a particular precursor does not significantly contribute to PM2.5 levels that exceed the standard in the area.

In response to the Final Rule, Ohio EPA performed a NNSR precursor demonstration to show that increase in ammonia would result in less than 0.08 µg/m3 in PM2.5 levels and an increase in VOCs would result in an increase of less than 0.02 µg/m3 in PM2.5 levels. These demonstrated levels are well below the 0.2 µg/m3 PM2.5 level that EPA would consider significant. Details regarding Ohio EPA’s precursor attainment demonstration are available at: http://www.epa.ohio.gov/dapc/SIP/2013.aspx Ohio EPA now proposes to modify its rules to exempt facilities from NNSR control requirements for ammonia and VOCs for purpose of meeting PM2.5 limits based on its precursor demonstration. Ohio EPA is accepting written comments on its early stakeholder outreach through close of business on Monday, October 31, 2016. Ohio EPA’s early stakeholder outreach is available at: www.epa.ohio.gov/Portals/27/regs/3745-31/3745-31_NNSR_ESO_2016.pdf