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Too Small For An Air Permit

Posted on - 08/28/2007
by JHP

You are the owner of a widget assembly plant called Nopaint Inc. Your facility exists in Ohio, but does business with manufacturers all over the United States. Your plant receives premanufactured parts from around the country and assembles the parts into a product ready for market. Your company is registered with Ohio EPA as a small quantity generator of hazardous waste, but requires no air permits or water permits for its production of assembled products.

Recently, a potential client contacts your company and asks you to be a subcontractor for him on a special government project. Your potential client wants you to assemble a special widget for him. However, the first step in the assembly of this particular widget requires that a part of the widget be painted. As a government subcontractor, your potential client explains that you must certify that your facility will be in compliance with all environmental laws. Your potential client explains that he has been looking for an assembler that can certify that its facility will comply with all applicable air pollution control laws and applicable air permit requirements during the painting and assembly. The potential client explains that three other companies have turned away the project in other states because none had an air permit that would have covered this project even though it requires the application of less than five gallons of paint per day. Provided that you can paint one small piece of the widget before it is assembled, you get the contract for assembling it.

The prospects of obtaining this contract are very exciting. Unfortunately, you do not have a coating applicator or an air permit. However, before telling the potential client that you too cannot take the job, you ask him to allow you to call him back after evaluating the capability of your facility. You call a supplier of coating applicator equipment and determine that the mechanical equipment necessary for doing the job is not that expensive, is immediately available, and can be constructed at your facility within a week. If you can get an air permit for the coating applicator, you are in business with this potential client. Your next step is to determine how difficult it will be to comply with Ohio's air pollution control laws and obtain an air permit in Ohio.

You call the Ohio Environmental Protection Agency and ask the person to whom you are transferred how difficult it will be to obtain an air permit. The person at Ohio EPA is very helpful, but not very encouraging. First, you will need a permit to install pursuant to section 3745-31-02 of the Ohio Administrative Code. According to Ohio EPA, you must obtain the permit to install before you can begin construction. The application for a permit to install can take several months for approval. You must also apply for and obtain a permit to operate pursuant to the requirements of section 3745-35-02 of the Ohio Administrative Code. The person from Ohio EPA asks if you would like to have an application for a permit to install and an application for a permit to operate sent to you so that the process can begin. You decline the offer knowing that your potential client cannot wait for months while Ohio EPA processes your requested air permits. You decide instead to call an environmental attorney to see if he has any ideas on how to speed the permit process along.

Your initial conversation with the attorney revolves around how to get an air permit from Ohio EPA on a "fast track" before you lose your potential client. Your attorney informs you of the same thing that the Ohio EPA representative stated. You will need several months to get a permit from the regulators, especially with the amount of work created for Ohio EPA by the new Title V program. Your attorney asks you if you are sure that you need an air permit. You respond that you assumed every painting operation in Ohio needed an air permit.

Surprisingly, your attorney informs you that this is not necessarily the case. Your attorney asks you to send him the Material Safety Data Sheet (MSDS) for the type of paint you will use. You immediately obtain a copy of the MSDS and fax it to your attorney. Using the MSDS, your attorney compares your proposed discharge to the air permit exemptions in the Ohio Revised Code and the Ohio Administrative Code. After checking on the status of the law, and verifying the amount of chemicals that will be released from the amount of paint you will be using every day, your attorney calls you back with good news. Ohio EPA will not require a permit to install for your new source of air pollution since it meets certain criteria found in the Ohio Administrative Code. Section 3745-15-03(kk) of the Ohio Administrative Code states that a permit to install is not needed for . . .

Coating applicators with properly designed and operated particulate control devices and venting systems that employ less than five gallons of only air-dried coating material in any one day provided that the applicators are:

(i) Not located in a nonattainment area for ozone,

(ii) Not subject to limits specified in or specifically exempted from rule 3745-21-09 of the Administrative Code,

(iii) Not subject to federal standards of performance for new stationary sources; and

(iv) Not located at a facility with actual emissions of twenty-five or more tons of volatile organic materials per year and are not subject to a standard under Title III of the Clean Air Act.

Since your facility does not exist in one of Ohio's ozone nonattainment areas, does not fall under any of the other exceptions, and will apply less than five gallons of paint per day, your attorney informs you that you need not obtain a permit to install. This is great news, but you still have the problem of obtaining a permit to operate an air contaminant source.

Your attorney explains that this also will not be a problem. The Legislature in Ohio provided an exemption for certain sources that are simply too small to require that the source obtain an air permit. Section 3704.011 of the Ohio Revised Code states that an "air contaminant source is exempt from this chapter and rules adopted under it if the emissions of particulate matter, nitrogen oxides, organic compounds, sulfur dioxide, carbon monoxide, lead, or any other air contaminant from that source do not exceed ten pounds per day . . . ." While there are exceptions to the exemption, your attorney informs you that your proposed coating applicator definitely will not need an air permit under Ohio's regulatory program. However, your attorney cautions you that because the coating applicator that you wish to install has the "potential to emit," as defined at 3745-15-05(A)(6) of the Ohio Administrative Code, more than ten pounds per day of air pollutants, you must maintain certain records for the exemption to be valid. Pursuant to Ohio Revised Code § 3704.011(C), you must "maintain records that are adequate to demonstrate that actual emissions have not exceeded ten pounds per day." Under Ohio's "De Minimis" air contaminant source exemption rule found in the Ohio Administrative Code at Section 3745-15-05(E), the owner or operator of the source must:

. . . maintain records that show that emissions of any air contaminant from the source did not exceed ten pounds per day on each day the source emitted air contaminants, and that the source in any one year did not emit more than one ton of hazardous air pollutants as defined in division (1) of section 3704.03 Of the Revised Code, and that the emissions from the source, in combination with similar air contaminant sources at the same facility, did not result in potential emissions of any air contaminant from the facility in excess of twenty-five tons during the preceding calendar year. All the following information, if applicable, shall be adequate to make that demonstration:

(1) A narrative description of how the emissions from the source were determined and maintained at or below the daily exemption level, and, for emissions of hazardous air pollutants, at or below the annual exemption level;

(2) A description of the air pollution control equipment used on the source and a statement that the source is not capable of operating without that pollution control equipment functioning;

(3) If air pollution control equipment is used, a copy of any report of the results of any emission test that was conducted following Ohio EPA approved methods, if applicable, or any other emission evaluation;

(4) A description of all production constraints required for the source to comply with the exemption levels;

(5) Records of actual operations that demonstrate that the daily and annual emissions from the source were maintained at or below the exemption level by the use of the necessary production constraints or pollution control equipment;

(6) A list of all similar sources at the same facility and a statement for each such source of the annual potential emissions. Compliance with paragraph (C)(4) of this rule shall be demonstrated; and

(7) A summation of the total emissions from each exempt or similar source, a summation of stated potential emissions from all sources identified in paragraph (E)(6) of this rule, and a certification under oath that the applicable exemption levels were complied with.

You must maintain these records for at least two years, and you must produce the records upon demand, if requested by a representative from Ohio EPA. While these requirements appear somewhat overwhelming, your attorney explains that it is quite simple to be in compliance with the record keeping requirements.

You are amazed that Ohio has made it relatively simple for you to operate a small painting operation. You immediately call the potential client and inform him that you can perform the painting as part of the assembly project. You also inform him that you will be in compliance with Ohio's air pollution control laws and permitting program.

My advice to clients with small operations is to read and to understand the laws and regulations before jumping to any conclusions about the need for a permit. In this example, the owner undertook an investigation of Ohio's air permit laws, and from that investigation was able to obtain new business because he learned that he could legally operate without an air permit. Many states have exempted small operations from the requirements of obtaining air permits under certain conditions. Understanding the regulations helps your business stay out of trouble with the regulators. Like the owner in this example learned, it can also increase your profitability by allowing you to accept projects that you might otherwise refuse.

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