As argued in the May 18, 2005 comments, the proposed SIP revision submitted by the Commonwealth of Kentucky, which seeks EPA approval to substitute emissions reductions to be theoretically achieved through revisions to one state regulation 401 KAR 59:185 (New Solvent Metal Cleaning Equipment) and adoption of another state regulation, 401 KAR 59:760 (Commercial Motor Vehicle and Mobile Equipment Refinishing Operations), for the loss of these emission reductions attributable to the operation of the I/M program, cannot lawfully be approved for several independent and sufficient reasons: first, because EPA regulations provide clearly that inspection and maintenance programs which are part of the maintenance plan’s applicable requirements for an area in attainment with the 1-hour ozone standard at the time that the area is designated as nonattainment for the 8-hour standard, must be continued until the area attains the 8-hour standard; second, because noninterference with Section 110(l) cannot be demonstrated absent an attainment demonstration for the 8-hour standard showing that attainment can be achieved without this control measure; and third, because even if the SIP could be modified to substitute equivalent, surplus, quantifiable, permanent and enforceable emissions reductions and to shift the I/M program to the contingency category, the amendment to 401 KAR 59:185 and the adoption of 401 KAR 59:760 fail to meet those thresholds and are not compensatory reductions sufficient to offset the lost reductions.
The May 18, 2005 letter, which is incorporated herein by reference as if fully set out below, addressed the first two issues. This letter addresses the third issue, which is the failure of the proposed SIP revision to demonstrate that the amendment to 401 KAR 59:185 and the adoption of 401 KAR 59:760 meet the thresholds of being equivalent, surplus, quantifiable, permanent and enforceable compensatory reductions sufficient to offset the lost reductions.
Assuming That The May 11, 2004 Interpretation Is Permissible and 40 CFR 51.905(a)(2) Does Not Preclude Elimination of The Program At This Time, The Proposed SIP Revision Falls Short of Providing Equivalent, Surplus, Quantifiable, Permanent And Enforceable Emissions Reductions To Offset The Loss Of The I/M Reductions
Assuming, for the sake of argument, that the EPA interpretations of Section 110(l) and 40 CFR 51.905(a)(2) are permissible and that in the absence of the attainment demonstration for the 8-hour standard, control measures for the 1-hour ozone maintenance plan such as the I/M program can be lawfully shifted to the contingency category and other reductions substituted as the Commonwealth is proposing with its SIP revision request, the state submittal fails to provide contemporaneous, equivalent, surplus, quantifiable and enforceable emissions reductions to offset those lost in the event of shutdown of the I/M program.
A. The Commonwealth Has Not Demonstrated That Proposed Reductions Due To 401 KAR 59:185 Are Surplus, Quantifiable, Contemporaneous Or Enforceable
The Division for Air Quality proposes to rely on recently-adopted 401 KAR 59:185 establishing a vapor pressure limit for solvents used in cold cleaning degreasing operations in the three counties, to generate .71 tpsd of VOC reductions to offset much of what would be lost from terminating the I/M program.
The use of these proposed reductions is questionable for a number of reasons.
1. The Cabinet's assumption that implementing a cold cleaning degreasing regulation will yield 1.34 tons per day of reductions in the three northern Kentucky counties is without factual basis in that particular regulated community. Use of extrapolated emissions factors is no surrogate for hard data, particularly in light of testimony that the anticipate compliance has in fact already been achieved to some extent prior to adoption of the rule.
2. The Cabinet apparently has not developed an inventory of suppliers or a list of sources that are users of these solvents who would be affected by the regulation, and has not demonstrated how it intends to enforce the new obligations, and where the manpower will come from. The Cabinet lacks supporting documentation concerning the number of "sources" overall that will be affected; the number of gallons of solvent(s) used in the processes of those sources, and which sources may already have installed the storage, use and recovery procedures that would be required by the regulation?
3. The proposed reductions from the current form of the regulation are not surplus. 401 KAR 59:185 is, to the best that commenter can determine, a part of the current SIP, having been approved on June 23, 1994. (59 F.R. 32343). As a current control measure that is part of the SIP, such emissions reductions as may have been achieved by the past application of the regulation when the area was nonattainment and those yet being achieved cannot be considered new or surplus. Only such reductions are can be demonstrated to be surplus, enforceable, quantifiable and permanent from the amendments to the regulation (if any) would be available.
4. The Commonwealth has failed to demonstrate that the proposed amendments to the existing regulation will yield quantifiable, enforceable and permanent reductions.
The emissions factors used to project current emissions from cold solvent degreasing are not grounded in actual use data, but appear to have been based on generalized per-capita estimates. There has been no inventory provided to the public for review, of facilities that are actually currently using solvent-based degreasing processes, whether those facilities are operating at higher vapor pressures, nor of facilities selling such solvents for use by facilities in the area. The actual usage and emissions from solvent-based degreasing has not been assessed, and the applicability of historic emissions data has not been validated.
What is missing from the documentation developed by the agency is any detail on the number of sources, the number of gallons of cold solvent used in the processes for the sources, and which sources are currently using the storage, use, and recovery procedures required by the regulation, and how long those procedures have been in use.
The state has relied on an emission reduction rate of 67% based on the rate applied in the rulemakings approved for Illinois, Indiana and Maryland’s’ cold degreasing regulations. EPA has incorporated that figure by reference without including into the docket for review any of the supporting documentation justifying the choice of emissions factor. There is evidence that the same factor may not be appropriate for Kentucky’s regulation, since the underlying regulatory obligations may differ from other states. Maryland’s regulation appears to prohibit sales of solvents with vapor pressures higher than 1 mm Hg in all sizes, yet Kentucky prohibits only sales of such solvents in units larger than 5 gallons. Prior to assigning an emissions factor derived from another regulatory program approval, the scope of coverage and thresholds must be compared, and the underlying data to support the choice of emissions factor, must be disclosed.
The proposed amendments lack enforceability as well. The Cabinet has not adopted a permitting or licensing process for area sources emitting VOCs from cold solvent degreasing processes by which to determine compliance of users with the vapor pressure and workplace limits. No indication has been provided of the number, location, size and type of degreasing equipment and processes used by actual facilities within the affected counties, nor of the manpower needed to conduct compliance inspections of the facilities to determine whether the new vapor pressure limits will be met. Absent the most rudimentary information concerning solvent sales and usage, the proposed amendments are not enforceable, and actual emissions reductions are not quantifiable. The proposed restrictions and reporting obligations on solvent vendors is likewise problematic absent a demonstration of how such users (located both within and outside the affected area) will be identified, how reporting and vapor limits compliance will be monitored, and how limits will be enforced as a practical matter.
Finally, assuming that the Commonwealth provides documentation of actual reductions that will be achieved, an inventory or sources and vendors, and mechanisms to monitor and enforce compliance in order to yield real, quantifiable and permanent reductions, the proposed regulation amendment provides that compliance with the new vapor pressure limits will not be required until December 15, 2007 for sources that become subject to the regulation. The SIP Amendment provides no offsetting reductions for those lost by terminating the I/M program at the end of 2004 and until the enhanced regulation becomes enforceable.
In short, the quantifiable, enforceable emissions reductions of the I/M program are proposed to be replaced by a regulatory measure that assumes the current level of emissions based on generalized per-capita assumptions rather than a genuine inventory, and proposes new regulatory limits on an as-yet unidentified regulated population of vendors and users with no proposed strategy for enforcement and monitoring of the new limits.
EPA, in its August 31, 2004 letter, provided no comments concerning the adoption of this regulation or whether the proposed reductions would be considered acceptable to offset in part the loss of the VET program, and whether the reductions would satisfy Section 110(l). KRC assumes EPA will provide such comments during the formal federal review process, since it will be obligated to respond to these and other comments in determining whether to approve the state submittal. 5 U.S.C. 553.
B. The Adoption Of 401 KAR 59:760 Does Not Satisfy The States’ Obligation To Provide Offsetting Reductions That Are Quantifiable, Enforceable, Contemporaneous And Permanent.
The proposed regulation, 401 KAR 59:760, according to the Cabinet’s description, will “require the use of high transfer-efficiency spray guns for auto body refinishing operations.
The regulation will apply, by its terms, to “new and existing commercial motor vehicle and mobile equipment refinishing operations in Boone, Campbell and Kenton Counties.” The regulation requires that, after February 1, 2005, a person applying a finish to mobile equipment shall use one of 9 enumerated methods of applying finishes to mobile equipment, or any other method demonstrated to be equivalent in emissions reductions to HVLP or electrostatic spray application methods.
By February 28, 2005, sources “subject to this regulation” shall submit documentation to substantiate that “high efficiency transfer application techniques of coatings are in use at their facility.”
The problems with utilizing this regulation as a substitute for the known, quantifiable, enforceable and permanent reductions achieved through the continuation of the VET program, are many.
Initially, the estimates of projected baseline emissions are derived not from empirical data from Northern Kentucky sources, but instead from 1998 rulemaking based on a 1994 memo. From a baseline of .96 tons per summer day, a number grounded in pure conjecture, the state proposes an estimated 35% reduction and arrives at a figure of .27 tpsd reduction attributable to the adoption of the rule.
It is apparent from the Regulatory Impact Analysis that the agency does not know the level of current compliance within the regulated population with the high transfer efficiency application requirements, since in answering how the businesses will be impacted, the agency answered “[t]hose that must purchase new spray guns will quickly recoup their investment by reducing material consumption by as much as 60%.” The answer presumes that some, at least, already use application equipment that would meet the regulation. Depending on the extent to which the newly-regulated population already has achieved these reductions, the claim that adoption of this standard will result in new, contemporaneous, offsetting reductions for the end of the VET program may be largely illusory.
Absent an inventory of affected facilities and the current regulatory and emissions status of those facilities, the proposal to substitute this regulation for the known reductions achieved in the VET program falls short of the mark. The agency has failed to demonstrate that adoption of the regulation will result in real, contemporaneous reductions comparable in impact to those lost from termination of the program.
Additionally, the proposed regulation lacks enforceability. The Cabinet has not adopted a permitting or licensing process for area sources emitting VOCs from commercial motor vehicle and mobile equipment refinishing operations, nor has the agency provided a meaningful explanation of the manpower needed to conduct compliance inspections of the facilities to determine whether the new requirements will be met. Absent the most rudimentary information concerning the number of affected facilities and their emissions profile and regulatory status, the proposed amendments are not enforceable, and actual emissions reductions are not quantifiable.
The Commonwealth has failed to provide documentation of actual reductions that will be achieved, an inventory of affected sources, and the mechanisms that will be used to monitor and enforce compliance in order to yield real, quantifiable and permanent reductions. The “equivalent” reductions must represent “actual new emissions reductions achieved in a contemporaneous time frame to the time the existing SIP measure is terminated[,]” and it is unclear whether any new reductions will in fact be achieved.
What evidence there is in the administrative record of this rulemaking indicates that the reductions claimed are largely not there, since they had already been achieved previous to the adoption of the rule (in some case, many years before).
The “Automotive Paint Study” prepared by Marketing Research Services, Inc. and dated May, 2005, MRSI# 05-9743-054, which has been submitted into the record of the rulemaking, indicated that 89% of the 38 sources (34 of 38) use a high transfer efficiency paint spray gun, and that 98% of the sources had been using the high efficiency transfer guns for over a year, so that the reductions cannot be claimed as “contemporaneous.” That study is incorporated herein by reference as if fully set forth below.
Given that compliance has already been achieved by 89% of the randomly sampled sources and that the reductions were achieved greater than 1 year before adoption of the regulation and submittal of the SIP, the reductions cannot be relied upon to offset the anticipated loss of I/M reductions.
Testimony given at the public hearing on the state regulation further underscores, anecdotally, that the spray coating measures proposed by the state to theoretically offset the lost VET reductions, have already been adopted by the newly-regulated sector, and thus are part of the baseline that cannot be used as new or “contemporaneous” reductions. Several auto shops testified that the high pressure systems were already standard industry practice.
When asked on April 1, 2005 whether the Division had developed a list of sources that will be impacted by the spray coating and the cold degreaser regulations, and also whether the Cabinet has surveyed those sources in order to develop an emissions inventory and to determine how many of those sources had already adopted controls that would satisfy the new regulations, the Division Director responded that:
[W]e do have a list of auto body shops. As for a list for the degreasers and as stated in the SOC for 401 KAR 59:185, we maintain a database of permitted and registered sources. We conducted an oral telephone survey of the auto body shops; however, we could not have confirmed its accuracy or the status of compliance of sources at the time given the regulations were not fully implemented. Emissions inventory development was not a consideration of the survey. Again, as stated in the SOC for 401 KAR 59:185 and our response to comments on the SIP revision, emissions from both categories of sources were estimated using EPA approved calculations and emission factors.
April 1, 2005 E-mail from John Lyons, Director, DAQ.
In the face of testimony indicating that the regulated community was already using the proposed emissions reductions technologies and practices proposed by the agency, so that the anticipated new reductions would not be achieved in fact by adoption of the regulatory measures, the state has chosen instead to use theoretical emissions factors. The approach of looking to other communities outside of the state that have adopted such measures, and then extrapolating from that dataset the anticipated reductions here without validating the data through an actual inventory of the emissions profiles and compliance status of the sources in the Northern Kentucky region, is an exercise in fiction reminiscent of the story of the man who loses his keys in the dark field at night, and when questioned by a passerby as to why he was looking for them hundreds of yards away under a streetlight, responded that the light was better there. Unless the state is required to consider the actual community to be regulated, particularly in the face of testimony in the record that the anticipated reductions have already been achieved, the assertion that the adoption of this regulation will offset the real, documented losses from non-testing of vehicles, cannot be relied upon and the proposed revision cannot be approved.
The letters submitted to the administrative record, and the compliance filings, also indicate that whatever reductions are achievable by installation of HVLP sprayers have already been largely achieved in the three counties prior to adoption of the regulation. In response to an April 25, 2005 open records request which requested:
1. A list of individual sources, by name and location (if possible) that have been identified by the Division as coming under regulation under 401 KAR 59:185 or 401 KAR 59:760 within the northern Kentucky counties of Boone, Kenton, and Campbell, and the method by which the sources were identified,
2. For any individual sources listed in response to question 1, any information in the possession of the Cabinet indicating whether that source has already installed technologies or workplace practices that would meet the requirements of 401 KAR 59:185 or 401 KAR 59:760, and when that technology or workplace practice was installed or adopted,
The agency has provided certain documents described as
[A] list of sources we compiled of businesses who may have requirements under this regulation, a list of sources who have responded back to us and submitted their compliance certifications, and a copy of the certifications we have received from the businesses. This list was compiled using several business, telephone and industry directories for the NKY area.
May 18, 2005 E-mail from Lona Brewer, DAQ.
A review of the 401 KAR 59:760 Compliance Forms disclosed by the agency reflects that the training for many of the HVLP spray gun operators (and presumably the adoption of the HVLP technology at the facility, else why would the individuals have been trained) occurred in many cases years before adoption of the regulation and before the date of termination of the I/M program.
Robke Ford, 10 guns, 2 operators trained in 1987 and 2001
Yipes Stripes, 1 gun, 1 operator trained in 1991
Boone Collision LLC, 3 guns, 1 operator trained in 2000
Tom Gill Chevrolet, 10 HVLP guns, 7 operators, 5 trained in 2002-03, 2 in January 2005
Fort Mitchell Garage, 8 HVLP guns, 6 operators, all trained in 2003 or before
Performance Body Repair, 6 HVLP guns, 6 operators all trained in 2004 or before
Crones Inc., 6 HVLP, 2 Rollers, 3 operators trained in 2002
Campbell Country Auto Body, 12 HVLP, 6 operators trained in 2005
Champion Collision and Paint, 5 HVLP, 4 operators trained January 2005
Fasig Company, 2 HVLP guns, 2 operators trained February 2005
Foreign Auto Salvage, 4 HVLP guns, 3 operators trained February 2005
Ed Krift Body Shop, 5 HVLP guns, 4 operators trained in 1998 – 2001
C&L Auto Body, 6 HVLP guns, 3 operators, training date unclear
Turfway Auto and Collision, all employees trained, date unclear
Urb’s Garage, 8 HVLP guns, 3 operators trained in 1999-2000
Clarkville Service Center, 5 HVLP guns, 4 operators trained in 2003-4
Lee Harke Auto Body, Unlimited Body and Frame, and Tri State Color, letters indicating compliance, dates unclear for installation of HVLP or training.
Brossart Bros. Auto Repair, 4 HVLP guns, 6 operators, purchase of guns and training in January, 2005
Kenny’s Collision Center, 6 operators, date of training and installation of guns unclear
Littleton’s Paint and Body, Inc., 5 HVLP guns in use for 5 years, training in 2000
P&R Auto Repair, 4 HVLP guns, 5 operators trained in 2000
Airport Ford, 8 HVLP guns, 2 operators trained in March 2004
Scooter’s Body Shop, 2 guns, no information listed on training
Florence Buick GMC, 6 HVLP guns, 3 operators, 2 trained in 1998, one in May 2004
Walther Auto Body, 4 HVLP guns, 1 operator, training date unlisted
Kerry Collision Center, 8 HVLP guns, all employees trained, date unclear for installation of equipment and training
Additionally, there are several Certificates provided for individuals but the employment locations of the listed individuals is not provided on the certificates.
Of those reporting, it is apparent that only a handful of companies indicated that training for employees occurred in 2005 rather than earlier years. Unfortunately, the forms used by the state for compliance notification did not indicate when the facility began using HVLP spray guns, so that it is impossible to determine whether the facilities that trained personnel in 2005 had installed the guns in previous years, or whether the training and the HVLP guns were both new as of 2005. Without that information the state cannot identify which emissions reductions attributable to either installation of the HVLP guns or to formal training fall within a 1-year window to be considered “contemporaneous.”
Several of the facilities indicated in letters that they had been using HVLP spray equipment for many years prior to the filing of the compliance certification (for example, American Auto Body Shops had been using the equipment for 8 years; Fort Mitchell Garage for 6 years). According to the written statement of Ron Stamm of the Fort Mitchell Garage, “we have been using this [HVLP] equipment for a number of years, use it in accordance with the manufacturers’ recommendations, and have every intention of continuing to use it. It is my understanding that most, if not all, professional paint shop in their region use this equipment, because it more economical than the previous generation of spray gun technology.” Similar letters were submitted by Lee Hanke of Performance Auto, P&R Auto Repair, Rick’s Auto Body and Frame, and Walther Auto Body Repair.
Based on the testimony, the compliance forms, and the MRSI Study, it is apparent that the assumed baseline emissions and the assumed reductions are not accurate, and cannot be used to calculate either the baseline or reductions to be achieved through installation of the equipment.
The agency may argue that even if the guns were already in place, which appears to be the case, that the workplace practice and training certification will enhance the emissions reductions. Even if that were the case, the agency would still fall short, since the letters of a number of shop owners reflect that they have been using the equipment in a manner consistent with manufacturer’s recommendations and were trained at the time of installation. For the agency to credit any reductions to adoption of the HVLP regulation, it must exclude from the inventory of 71 facilities and include in the baseline those reductions already achieved by all those who had installed HVLP and trained more than a year prior to the date of ending the I/M program, and must discount appropriately any claimed reductions from facilities with equipment but without certified training. A separate emission factors must be calculated for the reductions, if any, attributable to formal training. The baseline, after accounting for all those who had already installed HVLP, will be much lower than that assumed, and the reductions, which can be attributed only to those who install controls and train in response to the new mandate, will likely be much lower as well, given the high degree of use of HVLP within the industry before adoption of the regulatory “mandate.”
In closing, KRC recognizes that the existing I/M program has vocal opponents, as well as many quiet supporters who understand that notwithstanding the minor annoyance of having one’s car periodically tested, achieving healthful air quality requires reductions from on-road mobile sources as well as other sources of ozone pollutant precursors, and that vehicle maintenance monitored through I/M programs is part of the emission control equation.
The wisdom of eliminating I/M programs from the array of available controls is a matter to be debated in the arena of politics, public health and economic policy. Reductions in ozone pollution impose economic costs on sources, just as non-control imposes costs on the public in the form of increased illness and pollution-related death. Within legal limits, a community must decide whether the costs of non-maintenance of cars should be paid by small or large businesses, which is the result of the proposed strategy in the SIP amendment. Why the Northern Kentucky political leadership would want to terminate VET testing in the face of the 2004 PIRG study of ambient air data ranking Greater Cincinnati and the Northern Kentucky region as 11th worst in both ozone and fine particulate pollution according to the 2003 data, and why it is considered more appropriate to have the small businesses adopt new controls to offset the additional emissions that will result from lack of maintenance after termination of the I/M program, rather than to test the cars to assure proper maintenance, is a question best posed to those officials.
The legality of eliminating the current I/M program as a control measure, however, is a matter to which KRC will continue to address itself, since the ability of EPA to approve the proposed SIP revision depends in part on demonstrations of equivalency in pollution reductions achieved elsewhere and non-interference with achievement of health-based air quality goals. The Commonwealth’s submittal falls far short in both regards and cannot be approved as submitted.
Thank you for your consideration of these comments.
cc: John Lyons, DAQ, firstname.lastname@example.org