• ERAC Finds Title V Operational Restriction Unreasonable
  • March 20, 2005
  • Law Firm: Stevens & Lee, A Professional Corporation - Reading Office
  • On March 1, 2005, the Environmental Review Appeals Commission (ERAC) issued an important decision on the enforceability of operational restrictions contained in Title V permits. As described more fully below, in General Electric Lighting v. Jones, Case No. ERAC 185017 (March 1, 2005), the ERAC concluded that an operational restriction that prescribed specific voltage and current ranges for General Electric Lighting's (GEL's) electrostatic precipitator (ESP) was unreasonable because the operational restriction did not assure compliance with the particulate emission limit contained in GEL's Title V permit. This case is significant because it establishes a very difficult threshold for Ohio Environmental Protection Agency (EPA) to meet before it can impose operational restrictions that are not expressly required by an existing rule. Accordingly, the case is an important one for Title V permittees who are seeking to remove unreasonable operational restrictions contained in their Title V permits.

    In 2003, in an earlier GEL appeal, the ERAC concluded that the Director's inclusion of operational restrictions in Title V permits is generally lawful pursuant to Ohio Administrative Code 3745-77-07 (A)(1), which authorizes the Director to include operational requirements and limitations that assure compliance with all applicable requirements at the time of the issuance. See General Electric Lighting v. Jones, Case No. 185017 (Aug. 21, 2003). However, the ERAC determined that a de novo hearing was necessary to determine whether the specific operational restriction at issue -- in this case, the specific voltage and current ranges to the ESP for GEL's glass production furnace -- was reasonable.

    During the two-day hearing, GEL argued that the voltage and current ranges constituted an unreasonable operating restriction because it was possible to operate the ESP in violation of the prescribed ranges without violating the particulate emission limit for the source. GEL maintained that because no direct correlation existed between the level of power input and the amount of particulate emissions, the prescribed voltage and current ranges in the operational restriction cannot be used by Ohio EPA as an enforceable surrogate for the applicable stack particulate emissions limit.

    Ohio EPA argued that the operational restriction was reasonable because it established an enforceable standard that would ensure ongoing compliance with the particulate emission limit and gauge GEL's compliance between stack tests. Ohio EPA noted that the voltage and current ranges prescribed in GEL's Title V permit reflected those recorded and submitted by GEL during prior stack tests. Ohio EPA conceded that the particulate emissions during these stack tests were less than half of the legally allowed limit. Nonetheless, Ohio EPA argued that the parametric ranges established during the tests were appropriate operational restrictions to assure Ohio EPA that GEL is continuing to operate in compliance with the mass emission limit.

    The ERAC concluded that, in accordance with OAC 3745-77-07 (A)(1) and earlier ERAC decisions, enforceable operational restrictions "must actually be designed to assure compliance with the underlying applicable requirement . . . [and] directly relate to the enforceability of an existing applicable requirement." Ohio EPA witnesses failed to testify to a reasonable degree of scientific certainty that the operational restrictions added to GEL's Title V permit directly relate to, or assure compliance with, the applicable particulate emission limit. GEL's witness effectively demonstrated that the measured values for voltage and current do not statistically correlate with measured values for particulate emissions. Therefore, the ERAC held that the operational restrictions establishing enforceable ranges for ESP voltage and current were unreasonable permit terms that must be removed from the GEL Title V permit.

    The ERAC also rejected Ohio EPA's standard practice of imposing parameter values from a performance test as enforceable operational restrictions in a Title V permit. The ERAC stated, "the basis for an operational restriction must be more than the fact that a permittee operated a piece of equipment at certain levels during testing, especially when the data demonstrate that no direct correlation exists between the required parameters . . . ." While the ERAC noted that it must afford "considerable deference" to Ohio EPA's interpretation of its rules, it also quoted the Ohio Supreme Court's National Lime decision for the balancing proposition that any uncertainty in Ohio EPA's rules "should be construed in favor of the persons or entity (manufacturer or otherwise) affected by the law." On balance, the ERAC found that Ohio EPA could not impose a new enforceable operational restriction based solely on the fact that the parameter happened to be measured during a performance test demonstrating compliance with an emission limit. The ERAC ordered the permit remanded to the Director for further proceedings consistent with the ERAC's opinion.

    In sum, even though the ERAC concluded in 2003 that operational restrictions in Title V permits are generally lawful, the General Electric Lighting v. Jones decision opens the door for Title V permittees to challenge the reasonableness of such operational restrictions. Indeed, in accordance with the ERAC's opinion in General Electric Lighting v. Jones, operational restrictions can be found to be unreasonable where the Title V permittee can establish that the restrictions fail to assure compliance with the underlying applicable requirement or fail to directly relate to the enforceability of an existing applicable requirement. Operational restrictions, such as pressure differential ranges on baghouses, water flow rates for scrubbers or temperature limitations on thermal oxidizers, may be vulnerable under this analysis when the correlation between the parameter and the emission limit is uncertain.