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Environmental Issues of Interest Last fall I was pleased to join the Flexible Pavements of Ohio team to provide counseling on environmental issues of interest and concern to the organization. I hope to be proactive in my approach when dealing with environmental issues for Flexible Pavements and its member companies. By getting in front of issues, I will work with the compa- nies to engage the Ohio Environmental Protection Agency (EPA) early in the regulatory process. By engaging in the process early, we will attempt to shape regulations which impact the asphalt industry in a manner which allows the industry to meet its obligations to its cus- tomers in a timely, efficient and environmentally compliant manner. As Ohio EPA and the U.S. EPA continue to impose more restrictive reg- ulations on the asphalt industry, it will be critical to the industry to have a voice in the rulemaking process. Recycled/Used Oil Recently, Cliff Ursich and I met with Ohio EPA Director Chris Korleski to discuss the issue of recycled/used oil. As many of you know, Ohio EPA has begun taking enforcement actions against asphalt plants which could well have the impact of making it difficult, if not impossible, to use recycled/used oil to produce asphalt. We met with the director to express the industry’s concern that the standard for determining whether a “significant” concentration of hazardous substances was present in the fuel for purposes of determining whether the fuel overcame the presumption that it was hazardous. Both Ohio EPA and U.S. EPA have consistently stated previously that a concentration below 100 parts-per-million (ppm) was not a signifi- cant concentration of hazardous substances. In recent enforcement actions, Ohio EPA has moved from this bright line approach, making it very difficult for companies to know whether they meet the standard. In a positive move, Director Korleski expressed his continued support for the use of used oil as a fuel source for asphalt plants. However, he indicated that U.S. EPA and Ohio EPA were concerned that the suppliers were not providing enough documenta- tion of the concentrations to satisfy the regulatory agencies. This may result in additional sampling and analysis, and record keeping requirements on the part of the asphalt industry. We will continue to work with the Ohio EPA to try to reach a solution that is workable for the industry and provides the documentation that the regulatory agencies need. NOx RACT Rules On Dec. 22, 2007, Ohio EPA finalized the nitrogen oxide (NOx) reasonably available control technique (RACT) rules applicable to “boilers, gas turbines or internal combustion engines.” The primary purpose of these rules is to meet the eight-hour ozone standard in Northeast Ohio. However, the rules have a statewide applicability. The rules apply to any “stationary source” in Ashtabula, Cuyahoga, Geauga, Lake, Lorain, Medina, Portage and Summit counties with a potential to emit more than 100 tons per year of NOx, and any new or modified “stationary source” anywhere else in the state with the poten- tial to emit more than 100 tons per year. Your facility is exempt from the regulations if its potential to emit is less than 25 tons per year; or it is operating under a valid permit which limits NOx emissions to less than 25 tons per year; or it is subject to Best Achievable Control Technology (BACT) or Lowest Achievable Emission Rate (LAER) stan- dards. Plants subject to the new standards must certify compliance by April 20, 2008, unless you plan to complete RACT study. O A Chris Jones is Senior Counsel in the Columbus office of Calfee Halter & Griswold LLP, counseling clients on environmental compliance issues, brownfield redevelopment and environmental enforcement matters. He provides clients with practical solutions to their environmental compliance problems. Chris served as director of the Ohio Environmental Protection Agency from January 1999 to January 2005, and prior to that was Chief of the Environmental Enforcement Section of the Ohio Attorney General’s Office. Christopher Jones Attorney at Law cjones@calfee.com 614.621.7004 Phone 614.621.0010 Fax Calfee, Halter & Griswold LLP 1100 Fifth Third Center 21 East State Street Columbus, OH 43215-4243 12 Winter 2008 Ohio Asphalt

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