February 15, 2011

A New Twist on Potential to Emit

Posted on February 15, 2011 by Michael L. Hardy

Seasoned Clean Air Act lawyers have grappled with the application of the concept of “potential to emit” in permit applications and in other regulatory settings. In virtually every decade since the 1970’s, there has been a significant judicial ruling, codified regulation or guidance document that attempts to elucidate the principles of “potential to emit” for purposes of permitting and enforcement.

A recent decision of the Court of Appeals of Ohio, Tenth Appellate District (which sits in Columbus, Ohio) undertook a review of the significant case and regulatory developments on the topic. State of Ohio ex rel Ohio Atty. Gen. v. The Shelly Holding Co, et. al., resulted from an appeal of a lengthy enforcement case over the alleged failure to secure the proper permits for asphalt plants. The concept of “potential to emit” played a significant role in the enforcement case at the trial court.

Ohio alleged that Shelly violated the air pollution laws at a number of its asphalt plants and portable generators by failing to obtain appropriate Title V “major source” permits before commencement of operations, among other things. Shelly, on the other hand, maintained that these plants were minor sources by reason of the restrictions Shelly voluntarily imposed on operations to keep emission levels below the regulatory triggers. After a lengthy bench trial leading to a record of over 2000 pages, the court found in favor of the State on 13 of 20 counts and assessed a civil penalty of $350,123.52 against Shelly. Nevertheless, Ohio appealed on several grounds, including the trial court’s application of the “potential to emit” to the defendants’ facilities.

According to Ohio, “potential to emit” requires a stationary source’s potential emissions to be calculated on the basis of the source’s maximum capacity to generate emissions – that is, worst case conditions 24 hours per day, 365 days per year, or 8,760 hours per year, unless there was a federally enforceable permit that imposed temporal or capacity limits on the operations. The trial court accepted Shelly’s self-imposed limits, which it had placed in its permit applications, as effective limits for determining the “potential to emit” and rejected Ohio’s insistence that federally enforceable limitations represent the only exception to the maximum design capacity as the basis for “potential to emit.” Under Ohio’s argument, “federally enforceable” limits as the only exception would arise through a permits issued through Title V notice and comment procedures.

The Court of Appeals reversed on the grounds that a source owner’s voluntary restrictions are insufficient. While the restrictions need not be federally enforceable, they must be legally or practically enforceable by the state. Thus, they could arise from a duly granted permit to install or permit to operate under state law. The problem in this case is that Ohio’s permit backlog meant there were periods of operation without formal permits to operate. But the Court of Appeals decided that “…an owner cannot be penalized for the Ohio EPA’s failure” and delays. The appellate court remanded the case to the trial court to reconsider the scope of the penalties in light of its instructions. The state agency’s delay in properly processing the state issued permits could affect the amount of penalties.

Another interesting issue arose from Shelly’s failure to pass a stack test. The trial court accepted Shelly’s argument that a stack test does not represent normal operating conditions, but rather is “snap test and does not relate to day-to-day operations, so that only the day of the (failed) stack test should constitute a violation and warrant a fine.” Failing at high load conditions does not mean that it would fail at lower load levels. Rejecting the trial court’s conclusion, however, the appellate court directed the trial court, in determining the number of days of violation, to presume that the violation continued until a subsequent stack test passed. Thus, the appellate court seems to disregard other ways, like engineering calculations, to show compliance during normal day-to-day operations.

Shelly has not sought to appeal this decision to the Ohio Supreme Court, but is currently preparing to do so.

Tags: Air


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