Biographical Information Robert F. Hodanbosi, Chief, Division of Air - - PDF document

Workshop BB

Ohio: Major Air Permitting, Regulatory & Compliance Developments

Wednesday, March 28, 2018 8:00 a.m. to 9:15 p.m.

Biographical Information

Robert F. Hodanbosi, Chief, Division of Air Pollution Control Ohio EPA, Lazarus Government Center, 50 West Town Street, Columbus, OH 43215 614.644.2270 Fax: 614.644.3681 bob.hodanbosi@epa.state.oh.us Bob Hodanbosi became chief of the Division of Air Pollution Control (DAPC), Ohio Environmental Protection Agency (Ohio EPA) in September 1992. His current duties include being responsible for the air pollution control program for the state of Ohio and development of the programs needed to comply with the Clean Air Act Amendments. In 2004, Bob was selected to represent state permitting authorities

• n the Title V Permit Performance Task Force that was formed by the U.S. EPA's Clean Air Act

Advisory Committee. Bob has also had the opportunity to testify at U.S. House and Senate committees

• n Clean Air Act implications for facilities in Ohio. From May 1987 to September 1992, his position was

assistant chief of DAPC and manager of the Air Quality Modeling and Planning Section, DAPC, Ohio

• EPA. From April 1978 to May 1987, as manager of the Air Quality Modeling and Planning Section, his

main duties included: development of the technical support for air pollution control regulations for criteria air pollutants; atmospheric dispersion modeling; air quality designations under Section 107 of the Clean Air Act and, development of new source review procedures. Since the 1980's, Bob has represented Ohio EPA on the Ohio Coal Development Office, Technical Advisory Committee. From January 1977 to April 1978, his position was supervisor of the Environmental Assessment Unit, DAPC, Ohio EPA. The main responsibilities of this position involved the supervising of all air quality evaluation and atmospheric dispersion modeling activities for DAPC. From June 1973 to December 1976, he held a position in the Northeast District Office/Engineering Services Section, DAPC, Ohio EPA. The main function of this position involved the engineering review of air pollution permit applications. Bob is a member of the American Institute of Chemical Engineers and Air & Waste Management Association, and is registered as a Professional Engineer in the state of Ohio. Bob has lectured extensively on topics relating to the requirements under the Clean Air Act and the controls needed to meet air quality

• standards. Bob received his Master's of Science degree in Chemical Engineering at the Cleveland

State University in 1977, and a Bachelor in Chemical Engineering at the Cleveland State University in

• 1973. In addition, he completed post-graduate courses in fluid mechanics and turbulence at the Ohio

State University.

Biographical Information

William H. Haak, Founder, Haak Law, LLC 216.772.3532 Cleveland, Ohio whh@haaklawllc.com William H. Haak is the Founder of Haak Law LLC (www.haaklawllc.com) – an environmental, health & safety legal and consulting firm based in Cleveland, Ohio. He has more than 15 years of experience in

• ccupational safety law and worker safety, and over 20 years of experience in environmental law

(including extensive experience in air pollution control law and multi-media environmental compliance).

• Mr. Haak practices nationally in the United States and consults globally on all matters related to the

EHS field (plus security and crisis management).

• Mr. Haak graduated from The University of Akron (Business Finance) and Case Western Reserve

University School of Law (J.D. with an emphasis on litigation and trial practice). Following law school, he worked as an Assistant Attorney General in the State of Ohio Attorney General’s Environmental Enforcement Section. As counsel to Ohio EPA, Mr. Haak’s practice was focused primarily on civil and administrative air pollution control cases. During his time with the Attorney General’s Office, Mr. Haak resolved civil environmental enforcement actions resulting in civil penalties totaling approximately $4 million. Prior to forming Haak Law LLC, Mr. Haak was Senior EH&S Counsel for General Electric. He supported GE’s Appliances and Lighting Businesses, and was engaged in complex air permitting issues for other GE businesses nationwide. Mr. Haak has also been Associate General Counsel – EH&S for Hexion Specialty Chemicals in Columbus, Ohio, and Senior Regulatory Law Counsel for Owens Corning in Toledo, Ohio. He served overseas in the former Soviet Union (Ukraine) as an Environmental Enforcement Specialist with the American Bar Association’s Central & East European Law Initiative ("ABA/CEELI"). Haak is a frequent lecturer to attorneys, engineers, and environmental professionals on topics concerning federal and state air pollution law. In addition, he has taught as an adjunct faculty member at the University of Central Florida in Orlando and Columbus State in Columbus, Ohio. Since 2005, Haak has taught classes focusing on Air Pollution Law and Occupational Safety and Health Law at The University of Toledo College of Law as an Adjunct Professor. Maxine D. Dewbury, Environmental Regulatory & Regional HSE Manager The Procter & Gamble Company, 8256 Union Centre Boulevard, West Chester Ohio, 45069 Phone: 513-634-9557 dewbury.md@pg.com Maxine Dewbury is U.S. Environmental Regulatory and Regional HSE Manager for The Procter & Gamble Company. Maxine has been responsible for U.S. Federal Environmental Regulatory influence, focused on Clean Air Act issues for the past 18 years. In addition to working with trade associations and U.S. EPA on regulations, Maxine is responsible for helping P&G sites and regional resources

• btain air permits and meet HSE regulatory requirements. Prior to this assignment, Maxine has held a

variety of positions in her 38 year career with P&G. These include Risk Manager at P&G’s Oxnard, California site; Plant Quality Manager at the Flint River, Georgia Pulp Mill; Environmental Manager for the Cellulose & Specialties Division; and several process and project engineering assignments. Maxine graduated in 1979 from Louisiana Tech University with a B.S. in Chemical Engineering.

Session BB: Ohio – Major Air Permitting, Regulatory and Compliance Developments March 28, 2018

Bob Hodanbosi, Chief, OEPA Dept of Air Pollution Control William H. Haak, Founder, Haak Law LLC Maxine Dewbury, Regulatory Manager, Procter & Gamble

27nd Annual Sustainability and Environmental, Health & Safety Symposium

Major Air Permitting, Regulatory and Compliance Developments

Topics:

• Air Quality & NAAQS Update
• Permit Status Update
• Other Current Issues
• EPA Permit Reform
• Chevron, Once In, Always In & Cooperative

Federalism

Sustainability and Environmental, Health & Safety Symposium Workshop BB

Bob Hodanbosi Ohio EPA March 28, 2018

Air Quality Update

• Ozone
• SO2 Actions
• PM2.5 Redesignation

• Old 8- hour Standard – 0.075 ppm average of fourth highest

concentration measured over a three year period – (2008)

– Three marginal nonattainment areas: Cleveland, Cincinnati, Columbus. – Redesignation requests submitted and USEPA approved all between Dec-Jan 2017.

• New 8- hour Standard – 0.070 ppm average of fourth highest

concentration measured over a three year period – (2015)

– Adopted October 1, 2015. – Effective January 1, 2017, March added to Ohio’s ozone season. New season will be March-October. – Designations expected April 2018

Evolution of the Ozone Air Quality Standard and Attainment Status

• October 1, 2018 – Infrastructure SIPs due – include transport
• Attainment demonstrations due for marginal and moderate

nonattainment areas.

– 2 and 3 years from effective date of designations which should have been ~ April 2020 and April 2021. – Based on current ambient air quality data, all Ohio areas should be marginal nonattainment.

• Attainment date for marginal and moderate nonattainment

areas.

– 3 and 6 years from effective date of designations which should have been ~ April 2021 and 2024.

2015 Ozone Standard

Implementation Timeline

• Ohio EPA provided U.S. EPA with recommendations on

nonattainment areas.

• U.S. EPA accepted Ohio’s recommended counites and

provided opportunity for comments

• U.S. EPA is on track for final designations by end of April

2018

2015 Ozone Standard

Implementation Timeline

*monitor in Northern Kentucky measures 71 ppb

2015 Ozone Standard

2012-2014 Data (ppb) 2013-2015 Data (ppb) 2014-2016 Data (ppb) 2015-2017 Data (ppb) City Cleveland 78 73 75 74 Columbus 75 71 71 71 Cincinnati 75 71* 72 73

Ozone Exceedances by Year (through October 6, 2017)

*preliminary

Year 0.125 ppm 1-Hour 0.084 ppm 8-Hour 0.075 ppm 8-Hour 0.070 ppm 8-Hour 2003 22 204 458 2004 25 178 2005 5 192 688 1193 2006 None 39 236 505 2007 None 110 541 1037 2008 None 32 171 419 2009 None 4 31 138 2010 None 20 162 387 2011 None 38 215 434 2012 None 96 329 701 2013 None 2 14 65 2014 None None 11 69 2015 None 1 16 91 2016 None None 42 168 2017 None None 18 62

PM2.5 Annual Design Values (ug/m3) Standard 12.0 ug/m3

*Incomplete Data ** Lost site, have a new site but no 3 yrs. of data yet City 08-10 09-11 10-12 11-13 12-14 13-15 14-16 15-17* Akron 13.3 12.6 12.0 11.0 10.7 11.2 11.0 10.2 Canton 13.8 13.4 13.0 12.1 11.7 11.6 10.8 9.9 Cleveland 13.6 13.1 13.0 12.5* 12.4 12.4 12.2 11.7 Columbus 12.5 12.2 11.9 10.9 10.8* 10.9* 9.8 8.8 Cincinnati 14.4 13.8 13.4 12.3 11.7 11.2 10.7 11.0 Dayton 13.2 12.8 12.3 11.0 ** ** 9.7 8.8 Steubenville 13.0 12.5 12.2 11.6 10.9 10.8 10.1 9.4 Toledo 11.7 11.4 10.9 10.3 10.1 10.1 9.8 9.4 Youngstown 12.4 11.8 11.3 10.7 10.5 10.6 9.6 8.8

PM2.5 Redesignation

• Only area in state nonattainment is

Lorain/Cuyahoga Counties

• 2015‐2017 data shows attainment
• Started work on redesignation
• Not simple – need to project air quality for

next 12 years

Sulfur Dioxide

SO2 Nonattainment Areas NA Area Townships Lake County, OH ALL (Entire County) Steubenville, OH‐WV Cross Creek (OH) Warren (OH) Wells (OH) Steubenville(OH) Cross Creek Tax District (WV) Muskingum River, OH Center Twshp (Morgan County) Waterford Twshp (Washington County) Campbell County, KY‐OH Pierce Twshp (Clermont County, OH) 5 Census Tracts in Campbell County, KY

Next Steps

• All areas now measuring attainment
• Working on putting together redesignation

requests

• May run into some issues – US EPA wants

modeling demonstration that attainment will be met everywhere

• Sometimes source configurations are difficult

to model

Permit Information

• Construction Permits
• Title V Renewals
• Title V Renewals Region V

100 200 300 400 500 600 700

Air Installation Permit Work Load Trends

Permit Received State‐Wide Work Load January 1, 2011 Goal

50 100 150 200 250 12Avg 13Avg 14Avg 15Avg 16Avg Jan017 Feb Mar Apr May Jun Jul Aug Sep Oct Nov Dec

Number of Title V Renewals Pending

Title V Late Renewal Permit Backlog

Year and Month

Other Items

• 176A Petition
• Startup, Shutdown and Malfunction SIP Call
• “Once In Always In”

176A Petition

• The NE states filed a petition for Midwest and

southern states be included in the Ozone Transport Region (OTR) in December 2013

• States petitioned to be included: Illinois, Indiana,

Kentucky, Michigan, North Carolina, Ohio, Tennessee, West Virginia and the portion of Virginia not in the OTR

• Being part of OTR would be very costly. Vehicle

Inspection Maintenance in all Ohio urban areas alone would cost tens of millions of dollars per year

176A Petition

• If included, the NE states would have a

majority of voting members and could dictate control strategies for Midwestern states.

• The petition from NE states was based on old

data going back to 2005

• U.S. EPA proposed to disapprove petition –

comment period ran through May 15, 2017

176A Petition

• Ohio EPA agrees with the U.S. EPA proposal to

disapprove petition to be placed into OTR

• U.S. EPA bases proposed disapproval on actions

taken by U.S. EPA to reduce transport/emissions

• U.S. EPA fails to address core issue in proposal
• NE States petition is technically flawed and out of

date (based on 2005 data).

176 A Petition

• January 2017, U.S. EPA proposed to deny

petition, held public hearing on April 13, 2017

• Final disapproval on November 3, 2017
• U.S. EPA ‐ other Clean Air Act mechanisms

more effective, such as

• 110(a)(2)(D) “Good neighbor provision”
• Cross State Air Pollution Rule (CCSAPR)
• U.S. EPA rules on motor vehicles

176 A Petition/ 126(b) Petition

• New York and other NE states have appealed

action

• Ohio and other affected states have requested

that we be allowed to intervene.

• On March 13, 2018, NY filed another 126 petition

with US EPA – claiming NOx sources above 400 tons per year are interfering with attainment of both 2008 and 2015 ozone standard and US EPA should require additional controls

Startup, Shutdown, and Malfunction SIP Call

• US EPA issued SIP Call for Ohio EPA Rules
• Ohio challenged rules – US EPA has asked for

litigation to be put on hold

• Ohio EPA has worked on modified rules –

ready for proposal

• Waiting for update from US EPA before going

forward

Once In Always In ‐ Rescinded

• What have we done?
• Created summary Fact Sheet
• Asked districts and locals to contact

potentially affected facilities

• Emailed Fact Sheet to each Title V facility
• Setting up webinar

• Questions?

Major Air Permitting Developments March 28, 2018

Maxine Dewbury The Procter & Gamble Company

Sustainability and Environmental, Health & Safety Symposium

NSR Permit Reform

• Background

– The need and previous reforms

• Opportunity

– Trump Memos & Executive Orders – Comments & Specific Opportunities

• Progress

– Title V Permit Petition Process & NSR Lookbacks – Dec 7, 2017 Scott Pruitt Memo clarifying ATPA Applicability Test in Determining Major Modification Applicability – May 13, 2018 Scott Pruitt Memo on Project Emissions Accounting

• Outlook

Background – the Need for NSR Reform

Business Needs Affected by Air Permitting:

• Speed to Market
• Operational Flexibility
• Ability to make modifications to process quickly

to respond to market needs and opportunities

• Need to continually improve reliability, quality,

efficiency and safety of operation.

• Must be able to comply with permit terms and

conditions 100% of the time.

Background – the Need for NSR Reform

Speed to Market/Continual Improvement Federal NSR Construction Permits are too slow

• 18 months lead time before construction start
• PSD Permitting timeline is critical
• Impacts speed to market and competitiveness
• Use Netting to avoid barriers whenever possible

Federal Permitting of minor changes inhibits improvements which would often reduce emissions

• Cost of BACT on small changes often prevents

implementation.

• Many changes would otherwise improve reliability or

efficiency and reduce actual emissions.

Background New Source Review Industry Issues

New Source Review

• intended to ensure good controls on New Major Sources
• also applies to significant changes at existing sources

Federal NSR permitting is required when:

• a physical change or change in method of operation

causes a significant increase in emissions Exclusions:

• Increases in hours of operation (Expected to be able to fully

utilize your invested capability at existing facilities.)

• Routine Maintenance, Repair and Replacement (RMRR)

(Ongoing facility maintenance activities should not trigger NSR.)

New Source Review – Industry Issues

What was wrong with Federal NSR?

• Thousands of pages of conflicting guidance
• Policy on how emission increases are measured
• Actual-to-Potential Test
• Results in a projected “emissions increase” for most changes
• To avoid NSR, must give up permitted production capability.
• Actual-to-Potential Test is improper for existing units
• EPA Settlement Agreement with CMA
• WEPCo Ruling called for use of Actual-to-Future Actual
• Routine Maintenance Repair & Replacement (RMRR)

exclusion

• Enforcement Actions & Policy
• Detroit Edison Determination – 19 factors – hard to make

determinations on what RMRR work is excluded

NSR Reform

Final NSR Reform Rule - 12/31/2002 Emission Increase Methodology

• Baseline Actual Emissions
• Future Actual Emissions

Flexibility for Clean or Well Monitored Units

• Plant wide Applicability Limits
• Clean Unit Provisions
• Pollution Control & Prevention Projects

Final Rule – RMRR - 10/27/03

• The Equipment Replacement Provision (ERP)

NSR Reforms - What Happened?

12/31/02 Final Rule – after litigation

• Emission Increase Methodology - Upheld

– litigation resulted “reasonable probability” rqts if >50% major mod threshold

• Flexibility for Clean or Well Monitored Units

– Pollution Control & Prevention (PCPs) Projects – Clean Unit Provisions – Plantwide Applicability Limits (PALs) (not much help)

10 27 03 Final RMRR Rule – Stayed, Vacated

• The Equipment Replacement Provision (ERP)

9 14 06 Changes Proposed

– Debottlenecking (not Finalized) – Project Netting (no Action) – Project Aggregation (Stayed 2 9 09 by Obama Administration)

The Opportunity Trump’s Memos & Executive Orders

• 1 24 2017 Memo - Streamlining Permitting and Reducing Regulatory

Burdens for Domestic Manufacturing

– 3 7 2017 FR notice seeking information on the impact of Federal Permitting and on regs that adversely impact manufacturers. – Comments submitted 3 31 17.

• 1 30 2017 EO Reducing Regulation and Controlling Regulatory Costs

– For each new regulation issued, at least two prior regulations should be identified for elimination – 2 2 2017 Interim Guidance Issued by OIRA

• 2 24 17 EO Enforcing the Regulatory Reform Agenda

– Puts Regulatory Reform Task Force structures in place to evaluate existing regulations and make recommendations to identify regs that:

• Eliminate jobs or inhibit job creation
• Are outdated, unnecessary or ineffective
• Impose costs that exceed benefits
• Interfere with regulatory reform initiatives and policies

– April 13, 2017 FR Notice – Comments submitted 5 15 2017

Key CAA Issues Identified

• Start-up/Shut-down/Malfunction Policies &

SSM SIP call

• NESHAPs Once-in Always In Policy
• Regional Haze
• Numerous Permit Streamlining Opportunities

Input on Permit Streamlining

Applicability Issues

• Actual to Projected Actual Guidance (beyond 12/7/17 Pruitt memo)
• Debottlenecking
• Project Aggregation
• Major Source Aggregation – what is a source?
• Fugitive Emissions
• Offsets
• PALS
• Pollution Control Projects
• Routine Maintenance Repair & Replacement

Streamlining Permit Processes

• Pre Permit Activities (Begin Actual Construction)

– What can be done before permit is on hand

• BACT Review Process
• GHG Significant Emission Rate
• Dispersion Modelling Reform
• Ambient Air

Removing NSR Gridlock: Modelling Improvement Ideas

IDEAS 1. Receptor modeling location – ambient air 2. Probabilistic tools – emissions, models and background estimation 3. Background characterization 4. PM measurement exaggerated 5. Intermittent sources 6. Dispersion Modeling 7. Modeling cutoffs - SILs/MERPS 8. Precursors 9. Clearinghouse 10. Emission Rates

If you need to get a PSD permit, modelling may be an issue: Here is why:

Modelling Improvement Some Industry Ideas

The Opportunity Trump’s Memos & Executive Orders

EPA Objective:

• Clarify and Streamline NSR Program requirements
• Specific Areas

– Applicability determinations

• When is a Federal vs State permit needed?
• Opportunities: RMRR, source/project aggregation, project netting)

– PSD Permitting Process:

• Where Federal permits needed, can we clarify, streamline and

speed up the Process to obtain them?

• Opportunity - Air Quality Modelling Requirements

– After Permits are Issued:

• Should agencies be second guessed through Title V lookbacks?

Permit Reform Progress – Title V NSR Lookback Policy

Sierra Club Petition to PacifiCorp Title V Permit (Petition Number VIII-2016-4) October 2017 – Petition Declined

“EPA has declined in the title V petition context to review the merits of PSD permits issued by the agency

• r by a permitting authority that has received

delegation to implement the EPA’s federal PSD rules…… Because these permitting decisions may be appealed to the EPA’s Environmental Appeals Board, the EPA has concluded that it need not entertain claims that such permits are deficient when raised in a petition to object to a title V permit.”

Permit Reform Progress - ATPA Guidance

Dec 7, 2017 Scott Pruitt Memo clarifying Actual to Projected Actual Applicability Test in Determining Major Modification Applicability Source Obligations when using ATPA test:

– Prior to beginning construction, the owner must calculate the emissions increase that it projects will be caused by the project and potentially the net emissions increase to determine if NSR permitting is required.

• For EGUs these projections must be submitted to the agency.
• Non-EGUs do not need to submit pre-project projections to the agency.

– After implementing the project, when using ATPA used for emission projections, if there was a reasonable possibility that a significant emission increase could occur sources must track emissions for 5 or 10 years following implementation of the

• project. (10 yrs if increase in design capacity or PTE)
• EGUs must report annual emissions to the agency
• Non-EGUs must report emissions only if a significant emission increase occurs and the projections are

different than the pre-project projections.

DTE Situation:

– Pre-project emissions projections showed no significant emission increase. – Post-Project emissions were managed to prevent a significant emission increase. – EPA Enforcement & Litigation against DTE on relationship between pre-project emission projection and role of post project emissions monitoring.

Permit Reform Progress - ATPA Guidance

• Dec 7, 2017 Scott Pruitt Memo clarifying Actual to Projected Actual

Applicability Test in Determining Major Modification Applicability

• Addresses confusion from DTE litigation involving use of Actual to

Projected Actual Emission Increase Test:

– EPA is not going to second guess the quality of required pre-project NSR applicability analysis involving the actual to projected actual test (e.g. emission projections) – OK to manage future emissions to prevent a significant emission increase – In the future, EPA does not plan to initiate enforcement actions unless actual post-project emissions show the project resulted in a significant emissions increase or net emissions increase.

Permit Reform Progress – Project Emissions Accounting

May 13, 2018 Pruitt Memo Project Emissions Accounting

NSR Applicability - A major modification occurs if:

– Step 1 (Project Netting/Project Emissions Accounting)

• The project results in significant emissions increase

AND

– Step 2 (Contemporaneous Period Netting)

• The project and other projects in the contemporaneous period

result in a significant net emissions increase.

Issue:

– Guidance stating that only emissions increases can be considered in Step 1, even where the project includes emissions increases and decreases. (March 30 2010 HOVENSA Letter)

• e.g. replacing coal fired boiler with gas fired boiler

– Step 2 emission analysis is more complex and time consuming than emission analysis in Step 1.

Permit Reform Progress – Project Emissions Accounting

Pruitt Memo:

• CAA - NSR was only to apply to changes that increase

actual emissions.

• EPA believes confusion was created by using the term

Project Netting for Step 1 – Step 1 should be referred to as Project Emissions Accounting (PEA) – Step 2 is Contemporaneous Period Netting.

• 2006 Proposed Project Netting Rule - Argument for

needing language revisions to allow project netting was the term “sum of the differences” was missing in the hybrid emission calculations so was not allowed.

Permit Reform Progress – Project Emissions Accounting

Conclusions:

• EPA now interprets PSD provisions as providing that any

emissions decreases as well as increases that may result from a given proposed project are to be considered at Step 1 of the NSR applicability process in determining whether the proposed project will result in a significant emissions increase.

– EPA no longer subscribes to the reading of the NSR regulations reflected in Region II’s March 30, 2010 HOVENSA Letter. – While the 2006 Project netting proposal presumed language changes were needed to allow project netting, EPAs current interpretation is that no rule changes are necessary prior to implementing this interpretation. – EPA is still evaluating whether a revision of the text is desirable to provide additional clarity on this issue.

Outlook

• What’s Expected Next?

– Guidance on Ambient Air (modelling issue)

• Other Topics Anticipated:

– Interstate Transport – Good Neighbor Policy – Project Aggregation – Source Aggregation – “Adjacent” Proximity? – Biomass Permitting Policy

• EPA to continue to issue guidance to clarify

and streamline permit processes

• Some will be followed by regulatory actions

Ohio: Major Air Permitting

Legal Developments and Updates

Session BB

March 28, 2018

William H. Haak

Haak Law LLC

HAAK LAW LLC

Environmental, Health & Safety Legal and Consulting Services William H. Haak Tel: 216.772.3532 whh@haaklawllc.com

Introduction

• The uncertain (and ironic?) future of “Chevron”
• USEPA’s reversal of “Once-In, Always-In”
• Brief update on “cooperative federalism”
• Questions...

HAAK LAW LLC

Environmental, Health & Safety Legal and Consulting Services William H. Haak Tel: 216.772.3532 whh@haaklawllc.com

The Future of “Chevron” Deference?

• What is “Chevron” deference?
• Why is it important, and why do we care?
• Chevron benefits and drawbacks
• Efforts to roll-back Chevron through judicial appointments
• Controlling regulatory agencies ”from beyond the grave”?

− Anything not in black letter law goes to court − Agencies get essentially no deference to interpret − Judges could either defer to the legislature or substitute judgment

• The irony of USEPA’s December 2017 NSR Memo...

HAAK LAW LLC

Environmental, Health & Safety Legal and Consulting Services William H. Haak Tel: 216.772.3532 whh@haaklawllc.com

The Enemy of Our Enemy is Our Friend?

• U.S. v. DTE Energy Co. I and II (2013 and 2017)
• USEPA NSR enforcement action dating back to 2010
• Violations pertain largely to alleged failure by DTE to properly

evaluate and apply “demand growth exclusion”

• The reported totality of DTE’s supporting documentation:

HAAK LAW LLC

Environmental, Health & Safety Legal and Consulting Services William H. Haak Tel: 216.772.3532 whh@haaklawllc.com

Snatching Defeat From the Jaws of Victory...

• U.S. v. DTE Energy Co. I and II (2013 and 2017)
• In DTE I, District Court enters summary judgment for DTE, and finds

USEPA must show actual emissions increase in order to commence enforcement

• On appeal, 6th Circuit Court of Appeals holds USEPA need not show

increase in actual emissions to enforce...Remands...

• In DTE II, District Court basically ignores Court of Appeals, enters

summary judgment for DTE again.

• On appeal, 6th Circuit holds USEPA is allowed to review basis for

demand growth exclusion claim and emissions projections without need for actual increase in emissions

• December 2017 Memo states USEPA will no longer

enforce based on projections absent “clear error”

HAAK LAW LLC

Environmental, Health & Safety Legal and Consulting Services William H. Haak Tel: 216.772.3532 whh@haaklawllc.com

The End of “Once-In, Always In”

• USEPA announced January 25, 2018
• Reversed ”reviled” 1995 USEPA guidance which stated:
• If HAP major on MACT compliance date (“Once-In”)...
• Forever subject to that MACT absent shutdown (“Always-In”)...
• Touted by previous USEPAs as critical to anti-backsliding
• For example: 11 TPY less 99% control efficiency = 0.11 TPY
• Synthetic minor limit to avoid MACT = 9.99 TPY
• Too little, too late as MACT damage has been done?
• What types of regulated entities could benefit now?
• What about Chevron here?

HAAK LAW LLC

Environmental, Health & Safety Legal and Consulting Services William H. Haak Tel: 216.772.3532 whh@haaklawllc.com

Brief Update on Cooperative Federalism

HAAK LAW LLC

Environmental, Health & Safety Legal and Consulting Services William H. Haak Tel: 216.772.3532 whh@haaklawllc.com

Cooperative Federalism (Continued)

HAAK LAW LLC

Environmental, Health & Safety Legal and Consulting Services William H. Haak Tel: 216.772.3532 whh@haaklawllc.com

Questions?

HAAK LAW LLC

Environmental, Health & Safety Legal and Consulting Services William H. Haak Tel: 216.772.3532 whh@haaklawllc.com