Current through all regulations passed and filed through December 16, 2024
[Comment: For dates and availability of non-regulatory
government publications, publications of recognized organizations and
associations, federal rules, and federal statutory provisions referenced in
this rule, see paragraph (AA) of rule
3745-31-01 of the Administrative
Code titled, "referenced materials."]
(A) A
variance may be applied for and obtained from the director that allows
operation or other use of an air contaminant source that emits an air pollutant
in violation of an applicable law pursuant to the provisions of this rule,
except for the following:
(1) No variance
shall be granted from Chapter 3745-19 of the Administrative Code governing open
burning.
(2) No variance shall be
granted to a new source, as defined in rule
3745-31-01 of the Administrative
Code, from any emissions limitation which was applicable to the source as a new
source.
(3) No variance from any
rule of the director adopted under Chapter 3704. of the Revised Code may be
granted except pursuant to this rule.
(B) Applications for variances shall meet the
requirements of rules
3745-31-02 and
3745-31-04 of the Administrative
Code.
(1) Any variance application that fails
to provide information needed to provide a factual basis for ascertaining
compliance with each of the relevant requirements of this rule may be
considered defective and be treated as if it had not been filed. Such
application shall be returned to the applicant as expeditiously as practicable
with an indication of the deficiencies therein. Further processing of the
application, including issuance of a proposed or final action or the initiation
of any other official response by the Ohio environmental protection agency with
respect to the application, will not occur until deficiencies have been
remedied.
(2) An application which
seeks a variance pursuant to this rule which allows an applicant to emit an air
pollutant at a specified level in excess of emissions standards prescribed by
applicable law without requiring eventual compliance with such standards shall
specify the level of emission sought. Any such application which fails to so
specify may be treated as a deficient application as set forth in paragraph
(B)(1) of this rule.
(C)
Standards for granting variances.
(1) A
variance for an air contaminant source may allow an applicant to do the
following:
(a) Emit from such source a
specified level of emissions of the particular air contaminant which exceeds
the level permitted by applicable law, without achieving eventual compliance
with the level permitted by applicable law.
(b) To achieve compliance with applicable law
pertaining to the particular air contaminant, pursuant to a compliance schedule
included as a term and condition of the variance, on a date later than the date
provided by applicable law upon which compliance by such source
shall be
achieved.
(c) To emit an air
contaminant in accordance with both paragraphs (C)(1)(a) and (C)(1)(b) of this
rule.
(2) A variance may
be issued only if the applicant either demonstrates the requirements of
paragraphs (C)(2)(a) to (C)(2)(c) of this rule, paragraph (C)(2)(e) of this
rule, and paragraph (C)(2)(f) of this rule, or, demonstrates the requirements
of paragraphs (C)(2)(d) to (C)(2)(f) of this rule:
(a) Either:
(i) The ambient air quality standards for the
particular air contaminant to which the requested variance pertains are
currently being met throughout the region affected by the emissions from the
air contaminant source.
(ii) The
emission of air contaminants in accordance with the variance will not prevent
or interfere with the attainment of ambient air quality standards by
contributing, either singly or in conjunction with other sources, to a failure
to attain ambient air quality standards by the date or dates prescribed by
applicable law throughout the region affected by the emissions from the air
contaminant source.
(b)
The emission of air contaminants in accordance with the variance will not
prevent or interfere with the maintenance of ambient air quality standards by
contributing, either singly or in conjunction with other sources, to a failure
to maintain ambient air quality standards throughout the region affected by the
emissions from the air contaminant source for the particular air contaminant to
which the requested variance pertains after such ambient air quality standards
are attained.
(c) The variance is
necessary because compliance with the emission standard from which the variance
is sought is, and, to the extent applicant has not complied with such emission
standards, has been since the adoption of such emission standard, technically
infeasible, economically unreasonable, or impossible because of conditions
beyond the control of the applicant.
(d) Bubble concept:
(i) An alternative emission control strategy
(bubble concept) is provided which will allow emissions of air contaminant from
the source for which the variance is requested to exceed the level permitted by
applicable law and will also require emissions of the same air contaminant from
another source or sources to be less than the
level
permitted by applicable law. The alternative emission control strategy shall do
the following:
(a) Result in a reduction in
actual emissions of the air contaminant from such other source or sources which
is equivalent to or greater than the reduction which would occur if the source
for which the variance is requested were to comply with applicable
law.
(b) Result in an actual net
ambient air quality improvement which is as good as, or better than, that which
would occur if the source for which the variance is requested were to comply
with applicable law and if all such other sources were to either comply with
applicable law or maintain their actual level of emissions if such level is
less than permitted by applicable law.
(c) Include applications for variances or
PTIOs (or modifications of existing variances or PTIOs) for such other sources
at the same facility that specify a level of allowable emissions of an air
contaminant which is below the level established by applicable law and which
satisfies the requirements of paragraphs (C)(2)(d)(i)(a) and (C)(2)(d)(i)(b) of
this rule:
(ii) Air
contaminants from different sources shall be considered to be the same for
purposes of paragraph (C)(2)(d)(i) of this rule only if
the air
contaminants are comparable in terms of type of contaminant.
(iii) Emissions of particulates of the
following types shall not be considered, for purposes of paragraph (C)(2)(d)(i)
of this rule to be the same as emissions of particulates of any other types:
(iv) Emissions of organic compounds of the
following types shall not be considered, for purpose of paragraph (C)(2)(d)(i)
of this rule, to be the same as emissions of organic compounds of any other
types:
(e) Such compliance with
applicable law or other terms and conditions as is required by the variance
will be achieved as expeditiously as practicable.
(f) If any rule from which a variance is
sought has been approved by the administrator of the United States
environmental protection agency as part of the Ohio state implementation plan,
the applicant shall demonstrate those matters required by federal
law or regulations, including, but not limited to
42 USC
7410 and 40 CFR Parts 51 and 52 for approval
of a revision to the plan, except approval by the administrator or the
administrator's representative as a revision to the Ohio state implementation
plan.
(D) The
director retains the discretion to deny the application upon consideration of
evidence regarding matters specified in division (H) of section
3704.03 of the Revised Code
which is submitted by the applicant, developed by the agency, or obtained from
another source, even though the demonstrations required by paragraph (C) of
this rule have been made.
(E)
Action on applications for variance.
(1) Prior
to taking any action on any application for a variance, the Ohio environmental
protection agency may hold a public meeting on the proposed variance in the
manner specified in Chapter 3745-49 of the Administrative Code.
(2) The director shall act on an application
for a variance within six months of the filing of a complete application by
issuing a proposed or final action.
(3) Variances under this rule shall be
issued, denied, modified, or revoked and may be challenged in accordance with
the provisions of Chapter 3745-47 or 3745-49 of the Administrative Code.
In issuing, denying, modifying, or
revoking any variance, the director shall state the director's reasons in
writing, and make the decision and reasons publicly available at the cost of
reproduction and handling
(F) Variances from rules contained in the
Ohio state implementation plan.
(1) A variance
from a rule which has been approved by the administrator of the United States
environmental protection agency as part of the Ohio state implementation plan
shall not be issued unless the following occurs:
(a) Such variance has been submitted to the
administrator as a revision to the Ohio state implementation plan pursuant to
applicable law, including, but not limited to,
42 USC
7410 and 40 CFR Parts 51 and 52.
(b) All requirements of applicable law,
including, but not limited to, 40 CFR Parts 51 and 52 have been met, except
approval by the administrator or
the director's representative as a revision to
the Ohio state implementation plan.
(c) The variance contains a condition that
the variance will not be effective until approved by the administrator or the
administrator's representative as a revision of the Ohio state implementation
plan.
(2) If a variance
has been approved by the administrator pursuant to paragraph (F)(1) of this
rule, a renewal of such variance shall not be subject to paragraph (F)(1) of
this rule unless a significant difference exists between the material aspects
of such variance and the renewed form of such variance. For the purposes of
paragraph (F)(1) of this rule, a significant difference
includes any extension of the final compliance date
of any compliance schedule, but does not include the reduction in allowable
emissions.
(G) Terms and
conditions of variances.
Upon issuance of a variance authorizing emissions as described
in paragraphs (C)(1)(a) to (C)(1)(c) of this rule, and upon approval thereof by
the administrator as provided by paragraph (F)(1)(c) of this rule, if
applicable, the director shall propose to amend the rule from which the
variance is issued to provide for emissions authorized by the variance. The
amended rule shall be proposed only if, in the director's judgment, such
amended rule will conform to all requirements of applicable law, including, if
applicable, requirements regarding implementation plans. Following rulemaking
procedures mandated by law on the proposal, the director shall take such action
on the proposal as is lawful and reasonable.
(1) A single variance issued pursuant to this
rule for an air contaminant source may provide the applicant relief from more
than one emission limitation.
(2)
Except as otherwise appropriate under paragraph (C) of this rule, an approved
compliance schedule shall be incorporated into any variance granted.
(3) Each variance issued pursuant to this
rule and each variance or PTIO issued to another source pursuant to paragraph
(C)(2)(d) of this rule shall include as terms and conditions a specified
emission limit for each air contaminant for which a variance is granted and
test methods for demonstrating compliance with such emissions limits.
(4) In addition to the other registration and
reporting requirements of all air contaminant sources, the holder of a variance
which contains a compliance schedule shall file reports every two months or as
otherwise required by the Ohio environmental protection agency. Such reports
shall be signed by the applicant for the variance. These reports shall
demonstrate to the satisfaction of the director that the source for which the
variance was issued is making consistent progress and has met all interim
deadlines specified in the compliance schedule or specified by the Ohio
environmental protection agency.
(H) The possession of a variance shall not
relieve the holder of responsibility to comply with all other applicable law
and rules of the Ohio environmental protection agency.
(I) Variances may be revoked pursuant to
paragraph (B)(5) of rule
3745-31-07 of the Administrative
Code.
