Reason Rescues Small Business In Ohio Clean Air Dispute

Ohio AG Lauds Sixth Circuit Verdict Supporting Ohio EPA and Small Business

Ohio EPA’s right to exempt small businesses from over-zealous and outrageously burdonsome clean-air regs sought by Sierra club upheld.

Judgement of the CourtOhio Attorney General Mike DeWine praised the recent ruling from the U.S. Court of Appeals for the Sixth Circuit in Sierra Club v. Korleski, upholding Ohio’s Air Pollution Control Laws as they pertain to small businesses. In the ruling, the Circuit Court ruled in favor of Ohio EPA and remanded the case to district court with instructions to dismiss the complaint.

“I commend the Sixth Circuit for affirming Ohio law and efforts of Ohio EPA to ensure clean air,” Attorney General DeWine said. “This decision will allow Ohio to continue taking a reasonable approach to protecting air quality with regulations appropriate for businesses of all sizes.”

The Director of Ohio EPA  enforced the best available technology (BAT) requirement for several decades. The Director issued permits only after it was determined whether new or modified emissions sources employed the best available technology (BAT) to reduce emissions, regardless of whether it was reasonable or fiscally appropriate for firms to do so.

However, in 2006, the Ohio General Assembly, to its credit, passed legislation that allows the Director to issue permits to smaller emission sources—those producing less than 10 tons per year of emissions (“small emitters”)—without first determining whether those sources will use BAT. Ohio’s Governor R. Taft signed the new legislation and the Ohio EPA amended the Ohio Administrative Code to show the exemptions. These amendments took effect on December 1, 2006. Since then, the Director has issued permits to small emitters without determining whether those sources will use BAT.

The result is that Ohio no longer administers the BAT requirement against small emitters. Although they must still adhere to the basic requirements of the Clean Air Act, which remain quite rigorous, small businesses and “small emitters” are relieved of the more stringent and costly BAT rules which would demand that they invest grossly disproportionate sums to update to the lastest in pollution reduction technology, no matter how insignificant the gain to environmental safety. Not good enough for the Sierra Club. Overly stringent BAT rules must apply even to the smallest “Mom and Pop” business. Everyone must pay the price—even when the price is the final extermination of free enterprise and mass slaughter of jobs.

In May 2008, the Sierra Club filed a citizen suit against the Director of Ohio EPA in Federal District Court, alleging that Ohio EPA was circumventing the State Implementation Plan for the Clean Air Act established in 1972. The Sierra Club alleged that Ohio was required to force all businesses with emissions to use the more stringent BAT standard. The U.S. Court of Appeals for the Sixth Circuit dismissed the appeal — comparing the Sierra Club’s grounds for its complaint to vinegar… 

In the written Opinion of the majority, Circuit Court Judge Keithledge said, ” Courts no longer use balancing tests to hold that the federal government can “require” a State to administer a federal regulatory program, which is what we did in Highway Safety. … (“The Federal Government may not compel the States to enact or administer a federal regulatory program”). In summary, Highway Safety is a bottle of dubious vintage, whose contents turned to vinegar long ago, and which we need not consume here.”



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