These comments are submitted for consideration by your agency on behalf of the Kentucky Resources Council, Inc., in response to the publication of proposed 401 KAR 50:017 and 50:045 in the April 2005 Kentucky Administrative Register.
KRC has reviewed the proposed amendments to 401 KAR 50:045, and has several concerns regarding the conditions under which the agency proposes to allow case-by-case variances and exceptions to the general obligation to conduct performance tests.
1. Requests for Use of Alternative Methods For Performance Tests Or To Grant Waivers Should be Subject to Public Review and Comments
Proposed revisions to Section 4(2) and (3) allow the Cabinet (and EPA, in the case of performance tests required by 40 CFR Part 63, or the Cabinet alone, in the case of performance tests required by state regulation but not by EPA rules), to approve the use of alternative methods to demonstrate compliance, “minor” changes in test methods, and waiving the requirement for performance testing altogether where the affected source demonstrates that the facility is in compliance with the applicable standard or where the Cabinet grants a hardship or physical plant limitation waiver.
The allowance of any of these changes from performance test protocol should be subject to public review, particularly in those cases of state-lead permits where EPA is not involved. For Title V permits where public notice and opportunity to comment is provided, the notice should indicate those circumstances in which the affected facility has requested a variance or alteration from accepted performance testing protocols or is proposing an “alternative method.” For state-lead permits, there is a legitimate expectation on the part of the public that affected facilities will be required to demonstrate through performance testing that they in fact will meet applicable standards, yet the language is extremely broad in allowing the agency to waive performance testing entirely if the cabinet is “satisfied” that the facility will meet the applicable standards. If the cabinet intends to allow an applicant to use other information, data or testing to demonstrate compliance, the quality and type of information should be identified in order that the determination on a matter so critical is not left to subjective judgment with no external standard.
With respect to “physical test limitations,” the proposal appears to allow the waiver of any performance testing simply because the standard test method might be unworkable due to physical plant limitations. The burden properly rests on the applicant to demonstrate that the applicable limits can be achieved, and if the standard method cannot be used, some method of demonstrating compliance tailored to the constraints of the facility must be required rather than granting a blanket waiver from performance testing.
2. The “Extreme Economic Burden” Exemption Is Inappropriate
The removal of the current regulatory language lacing the burden on the source to demonstrate “economic burden,” and the inclusion of explicit cost-benefit language defining “extreme economic burden” as a cost-benefit test between the “serious hardship” of meeting compliance standards and the “equal or greater benefit to the public and environment” is extremely troublesome.
Initially, alleged economic burden is not a defense to engaging in performance testing. The Congress and EPA, and the state by adopting a regulatory program under the Clean Air Act, have already factored economic costs into the standard-setting process, differentiating RACT, BACT and MACT standards in part on the economic costs to sources to achieve standards.
The proposed language appears to provide an economic hardship variance from achieving the substantive emissions standards rather than the performance testing itself, which is hopefully is just an inartful use of “compliance “ rather than “performance test” standards rather than an overbroad programmatic variance.
Further, even with respect to the performance tests, the costs of demonstrating compliance can be achieved through the use of performance tests cannot properly be waived entirely, leaving a source emitting with no demonstration that it can and is achieving the standards. In the circumstance in which compliance with a particular method imposes substantial costs, alternative methods must be employed. Use of a cost-benefit test is uniquely inappropriate, since the issue is not whether the standard itself is appropriate (in which case, use of cost-benefit has been specifically rejected by Congress and upheld by the Supreme Court) but whether and how the affected facility should demonstrate performance.
3. The Waiver Of Performance Test Condition Requirements Is Overbroad
In Section 5(1), the Cabinet provides itself with the unbridled discretion to waive, on a “case-by-case basis” and without standards or limitations, the requirement that a performance test be conducted “under normal conditions that are representative of a source’s operations and create the highest rate of emissions.”
KRC requests that the Cabinet justify waiving this requirement in any circumstance, and that the agency explain (a) how it will determine the performance of a facility’s pollution control equipment in the absence of such test conditions and (b) the criteria that it intends to use to determine when to waive the requirement that the test replicate normal conditions and highest emissions rates.
Thank you in advance for your consideration of these comments.