You are the Plant Manager for Coaters, Inc., an Ohio Corporation. Founded in 1963, your company prepares and coats a variety industrial equipment for its customers. Your operation uses different preparation techniques before coating depending on the particular coating application. Some equipment is sand blasted before coating, others are prepared with a solvent preparation, and still others are chemically prepared with an alkaline cleaning before coating. Your solvent preparation line requires an air permit for the discharge of volatile organic chemicals. Because your facility is in an ozone non-attainment area, your emission limits on the volatile organic chemicals are very strict. Operating at full production, your facility’s air pollution control equipment is unable to keep your facility’s emissions within the allowable limits issued by Ohio EPA to your company. You have decided to upgrade your facility to allow you to increase production while simultaneously reducing the total amount of volatile organic emissions from your facility. To you, this appears to be a win-win situation — your company can increase its production by adding a new production facility while keeping EPA happy by decreasing the volatile organic emissions from the plant by upgrading the pollution control equipment.
You begin ordering equipment for your new air pollution control equipment and your new line of production. You determine where to place the equipment in your existing plant, and you have construction drawings prepared. Since you are going to be reducing the amount of volatile organic chemicals released from your facility while simultaneously increasing the production of your plant, you see no reason to bother EPA regarding the new equipment you are installing.
Soon, construction equipment begins arriving. Your old air pollution control equipment is dismantled, and sent off for scrap. Footers for the new production equipment are dug, and concrete is poured. All seems to be going smoothly when a state EPA inspector shows up unexpectedly at your facility. He asks what you are constructing, and you proudly explain the new production line and emissions control system that you are installing. You explain that the new system will allow you to increase production while simultaneously reducing air emissions. You also explain that your production will be shut down until the new system is installed since the old air pollution control system had to be dismantled before the installation of the new system.
The inspector asks to see your “Permit to Install,” otherwise known as a PTI, for the new production system. With a confused look, you ask the inspector to explain his concern. You are not building a new plant, nor are you going to increase pollution. You are simply adding production capacity and updating the pollution control equipment required to operate your current production. At this point, the inspector states that he will have someone from enforcement contact you regarding the need for a PTI.
Nervous about your conversation with the inspector, you contact an environmental attorney to ask about the need for a PTI. Your attorney explains that the law in Ohio states:
“[N]o person shall cause, permit, or allow the installation of a new source or air pollutants . . . or cause, permit, or allow the modification of an air contaminant source . . . without first obtaining a permit to install from [Ohio EPA]” Ohio Admin. Code § 3745-31-02(A).
Your attorney explains that since your installation of the new production line will result in the “modification of an air contaminant source,” Ohio EPA requires that you obtain a PTI prior to construction. Pursuant to a 1989 Internal Memorandum on PTI applications, for a new facility, Ohio EPA expects a company to obtain a PTI prior to “when the entity begins pouring concrete for the foundations for the structure.” For an existing facility that is expanding, the entity must have a PTI from Ohio EPA prior to “when the entity starts pouring concrete for the foundation for the building expansion or for the foundation for any new equipment.” To add equipment to an existing facility, an entity must have a PTI prior to “when the entity receives new equipment at the facility.” Your attorney explains that your project involves the addition of equipment to an existing facility. Therefore, you would either need the PTI before receiving the equipment on site, or before pouring the footers for the foundation of the equipment, depending on whether Ohio EPA views your project as a physical addition to the plant, or a simple addition of equipment. To be safe, your attorney advises you that a PTI should be in hand before either pouring footers or bringing the equipment on site.
You ask your attorney how long it will take to push through the necessary paperwork for a PTI. Your attorney explains that the agency has 60 days to do a completeness review after Ohio EPA receives the application. Then, if Ohio EPA believes that your source is of such significance that public comments are required, you should allow at least an additional 6 to 8 months. You feel a sudden sickness in your stomach. Your plant is shut down, you have contractors on site with heavy equipment waiting to begin installing what you thought would be a benefit to the environment, and Ohio EPA may refuse to allow you to continue construction because you failed to realize that a PTI was necessary before construction began. You realize that this mistake could put you out of business, or at a minimum cost you a lot of money while your facility is shut down waiting for the necessary paperwork to be approved. To make things worse, your attorney explains that since you are requesting a PTI after construction began, the permit application fee charged by Ohio EPA is automatically doubled.
You explain to your attorney that you could easily be out of business if you cannot continue with construction. Under the circumstances, your attorney believes that you may qualify for a “Temporary Exemption” from the PTI requirements. Your attorney explains that Ohio Revised Code Section 3704.03(W) provides for exemptions from the requirements of a PTI where
“the applicant demonstrates that the source will be installed to comply with all applicable emission limits and will not adversely affect public health or safety or the environment and if [Ohio EPA] determines that such an action will avoid an unreasonable hardship on the owner or operator of the source.”
You have to show Ohio EPA two things to receive a temporary exemption. First, you have to show that your new facility will comply with all the pollution control laws, and second, you have to prove that you will be “caught between a rock and a hard place” if you do not receive a temporary exemption. After some research, your attorney advises you that Ohio EPA has issued temporary exemptions from PTI requirements where people would be laid off if construction could not continue, or a company would go out of business if construction could not continue.
Your attorney explains that your situation would warrant a temporary exemption from Ohio EPA’s PTI requirements to allow you to go forward with construction. Your new facility, even with its increased production capability will be in compliance with all environmental laws and will be emitting less volatile organic chemicals after the construction is complete. Your attorney places a few phone calls to Ohio EPA, and documents in writing with Ohio EPA your predicament. After assuring Ohio EPA that your new facility will comply with all environmental laws, you receive a temporary exemption from the PTI requirements. However, your attorney explains that you must still apply for a PTI while construction proceeds, and he reminds you that the application fee will be doubled.
You are forever grateful. Construction can proceed while your PTI application is pending. Your attorney then mentions that you should submit you application for a “Permit to Operate,” otherwise known as a PTO, at the same time as the PTI application. You smile at your attorney and explain that you already have a PTO. Your attorney smiles nervously and says, “Not for your new system you don’t.” You suddenly realize, you have even more paperwork to do.
My advice to clients is not to be caught between a rock and hard place. Be aware of the PTI and PTO requirements before you begin construction. Ohio EPA has built into its regulations some leniency so that even if you forget the PTI application, you may get a temporary exemption. However, each state is different, and there is no guarantee that your construction will be allowed to proceed without the proper permits. Once your construction starts, knowingly proceeding without the proper permits puts you at risk that the project may never be allowed to operate, and puts you at risk for knowingly violating an environmental law — a criminal offense.
