KRC’s specific concerns with the proposed permit are these:
1. The permit fails to adequately address and control emissions of mercury in order to assure protection of public health.
Any discussion of controlling releases of mercury into the atmosphere must begin by recognizing a few basics: first, there is no “right,” only a privilege to be granted under specified conditions, to use the public’s air to dispose of pollutants; second, that there is no level at which human exposure to mercury is considered “therapeutic” and the public health goal is to reduce reliance on mercury in manufacturing and to eliminate preventable releases of mercury into the ambient air.
As the agency is well aware, emissions of mercury vapors present a real and avoidable health risk. According to the Agency for Toxic Substances and Disease Registry, “[t]he nervous system is very sensitive to all forms of mercury. Methylmercury and metallic mercury vapors are more harmful than other forms, because more mercury in these forms reaches the brain. Exposure to high levels of metallic, inorganic, or organic mercury can permanently damage the brain, kidneys, and developing fetus. Effects on brain functioning may result in irritability, shyness, tremors, changes in vision or hearing, and memory problems. Short-term exposure to high levels of metallic mercury vapors may cause effects including lung damage, nausea, vomiting, diarrhea, increases in blood pressure or heart rate, skin rashes, and eye irritation. Very young children are more sensitive to mercury than adults. Mercury in the mother's body passes to the fetus and may accumulate there. It can also pass to a nursing infant through breast milk. . . . Mercury's harmful effects that may be passed from the mother to the fetus include brain damage, mental retardation, incoordination, blindness, seizures, and inability to speak. Children poisoned by mercury may develop problems of their nervous and digestive systems, and kidney damage.”
Mercury is, unquestionably a “potentially hazardous matter or toxic substance” within the meaning of 401 KAR 63:020 in that it is matter that “may be harmful to the health and welfare of humans, animals and plants[.]”
Against this background, the proposed revision to the air permit is lacking in several respects regarding the control of mercury emissions, and should be modified in order to provide for improved characterization of risk associated with the plant emissions, and to require better testing and monitoring of actual emissions.
Some of these comments relate both to the proposed Title V permit that is currently under development by the agency, and for which the comment period has closed, and the proposed addition of a new bulb-making line. This overlap is unavoidable since the agency has proposed to carry forward the plantwide standard for mercury emissions in measuring the adequacy of controls on this revision, and KRC believes that the plantwide standard may be inadequate to satisfy the requirements of 401 KAR 63:020 and to fully protect public health.
A. The Existing Plantwide Mercury Limit May Be Inadequate To Protect Public Health
The use by the Cabinet of a limit on mercury emissions that is based on the former state air toxics regulations should be reevaluated for sufficiency (a) by reviewing the most recent health data concerning adverse neurological response to the most sensitive subpopulations; (b) by requiring that the permittee speciate the mercury emissions in order to determine what percent of the vaporous emissions from the sources are metallic mercury, and what percentage are inorganic “salts” and organomercurials such as monomethylmercury; (c) by requiring the permittee to model the fate and transport of those mercury emissions in order to determine whether the existing and proposed mercury emissions are protective enough to avoid constituting “potentially hazardous matter or toxic substances in such quantities or duration as to be harmful to the health and welfare of humans, animals and plants;” and (d) by considering in the modeling the most sensitive receptors – the historically-black Simmons Elementary School which is located less than 0.4 miles from the stack and within a few hundred years of the plant boundary; the new high school, soccer complex and athletic fields, and a nearby daycare center. These recommendations are the same as were recommended for the Title V permit, and are reiterated here since the agency proposes to utilize the same plantwide limit as a yardstick against which to measure the significance of the emissions from the new bulb making line.
By way of further explanation, the use of mercury emission limits that are based on the value derived from former 401 KAR 63:022 is arbitrary, since the former regulation was not based on sound science. The former regulation has been acknowledged by the agency to have been inadequate to protect public health, since the limits were derived through application of an arbitrary 1/42 fraction of the Threshold Limit Values (TLVs), and inappropriately credited stack height in determining compliance with the regulation. The TLVs were developed by the ACGIH, who specifically cautioned that the threshold limit values were workplace standards that should not be utilized to establish ambient concentrations. Rather than utilizing the arbitrary limit grounded in 63:022, since there is no therapeutic level of exposure to mercury, the agency should instead derive and establish as the emissions standard a value equivalent to no additional risk for combined neurological and other hazards associated with mercury, and then require the applicant to install any additional carbon or other filtration or capture equipment necessary to avoid additional risks to the public and environment. Since according to the statement of basis there exist several technologies that are 90-98% efficient, the applicant should be required to justify why two or more of these technologies cannot be employed in tandem to eliminate entirely emissions of mercury from existing sources and from the new proposed emissions points.
B. Stack Testing
In comments on the proposed Title V permit, KRC recommended annual testing and speciation of the data should be required, in order to gauge the efficiency of capture of the carbon unit over time. Annual testing should be likewise be conducted for the emissions points associated with the new bulb line, within 30 days of issuance of the revision, and should be repeated annually thereafter, in order to validate the assumed capture efficiency and to measure effectiveness over time.
C. Pollution Control Device Maintenance
The routine maintenance of the carbon media is essential to effective control of the mercury vapors. The proposed permit should include specific enforceable conditions in the permit establishing the specific obligations of the source with respect to maintenance of the pollution control equipment.
D. Averaging Period for Emissions Limits Should Be Tightened
The permit limit for mercury should be clarified as an hourly limit not to be exceeded, rather than as an average of the calculated emissions over a 12 month period. Allowing annual averaging would potentially permit the source to routinely exceed the hourly limit for a several months before the average for the year would be over the limit. Given the persistent, bioaccumulative, toxic nature of mercury emissions, the hourly emissions cap should be established as a maximum never to be exceeded, and any exceedance of the hourly limit for any hour should be deemed a violation.
E. All Mercury Emissions From New Line Should Be Controlled
From a review of the March 12, 2006 submittal on Unit 44, the new bulb processing line, it is unclear whether all emissions of mercury from the new line are proposed to be captured and treated by the carbon unit.
The process description provided in the March 12, 2006 submittal indicates that the injection of mercury occurs in the sealing process and that the sealing exhaust will consist of preheating in order to facilitate air evacuation, 2 parallel barrels and one exhaust tube cutting unit and air scrubber. Table 4-1, which identifies pollutants of concern, indicates that for mercury, a control factor of 99.5% is assumed. Yet the numbers for the controlled emissions in pounds per hour and tons per year do not reflect that degree of capture of emissions when compared to the uncontrolled mercury emissions.
To the extent that the proposed new line does not completely capture emissions of mercury from various point(s) in the process where such emissions might occur, those points should all be scrubbed by a carbon unit. To the extent that the emissions are all proposed to be scrubbed, the permit should set a specific emissions limit for emissions from this new line based on the capture efficiency of 99.95% and include sampling to validate the assumed capture efficiency.
F. Compliance With Title VI of the Civil Rights Act
Title VI of the Civil Rights Act provides that:
No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.
According to EPA’s Interim Guidance on implementation of Title VI, discrimination can occur from “policies and practices that are neutral on their face, but have the effect of discriminating. Facially-neutral policies or practices that result in discriminatory effects violate EPA's Title VI regulations unless it is shown that they are justified and that there is no less discriminatory alternative." Title VI, through EPA’s guidance, has application to delegated state programs where EPA funds any of the programs or activities of those state agencies, and has direct applicability to the issuance of the Title V permit in this case.
Simmons Elementary School, one of the historic black elementary schools constructed in 1899 and desegregated after the 1954 Supreme Court decision, is located a few hundred yards from the plant boundary. In order to avoid disparate impacts and to assure compliance with both Title VI of the Civil Rights Act and 401 KAR 63:020, after stack testing is conducted within 30 days of issuance of the permit, mercury modeling should be re-run using Simmons Elementary and the nearby day care center, high school and athletic fields as receptors in order to determine the concentration of all species of mercury emissions at each of those points. Additionally, the modeling should be confirmed with appropriate canister testing of those sites to determine the airborne concentration of various mercury compounds for comparison to the stack emissions.
The agency has broad authority, and the applicant a clear duty, to demonstrate compliance with 401 KAR 63:020. In the absence of these additional conditions, the permit fails to meet the requirements of 401 KAR 63:020 and cannot be lawfully issued or defended.
Thank you in advance for your consideration of these matters.