These comments are submitted on behalf of the Board and membership of the Kentucky Resources Council, Inc, a non-profit environmental advocacy organization providing legal and strategic assistance without charge to low-income individual, community organizations and local governments on a range of environmental health and environmental justice matters.
KRC’s Director was one of the individuals who participated in the Statewide Air Toxics Workgroup, which was formed in August 2004 by then-Secretary Wilcher to respond to the Cabinet’s conclusion that “additional measures may be necessary to ensure protection of public health from the effects of ambient levels of toxic air pollutants.” KRC accepted the appointment to the workgroup and outlined three principles that we believed needed to be incorporated into any set of regulations:
First, recognition of the authority of air pollution control districts to craft strategies as needed to address local air toxics problems;
Second, that the program include accurate monitoring, appropriate limits consistent with the state policy of protecting human health and the environment as reflected in the de minimis risk levels adopted in the voluntary remediation regulations and reflected in KRS 224.01-400, and
Third, that real incentives be provided for reduction and avoidance of emissions of air toxics that individually or cumulatively pose elevated public health and environmental risks.
KRC has reviewed the proposed regulations, and genuinely appreciates the effort that has been made to improve on earlier drafts of the regulations. The current proposal is clearer and less ambiguous than the earlier draft and has been improved in organization. It is apparent that the Cabinet has attempted to respond to comments received, and we do not doubt the good faith that animates the proposed program.
Unfortunately, KRC cannot endorse the proposed regulatory package, because we believe it is in many respects underprotective of human health and the environment. KRC believes that there remain a number of fundamental policy issues that would benefit from collaborative dialogue among the stakeholders before being embodied in regulation. KRC recommends that the regulatory package be withdrawn and that stakeholder meetings be scheduled in order to more thoroughly explore the policy issues and to achieve, if possible, consensus on the approach, methodologies, and desired outcomes in the regulations. Our concerns follow, referenced by issue or regulation as appropriate.
Sources Should Not Be Exempt Due To MACT Standards
Our first concern is the exemption of those sources that are subject to EPA MACT standards. Given that the motivation identified by Secretary Wilcher was that EPA had made “very limited progress in the development of regulations to protect the public health from the residual risk posed by ambient levels of hazardous air pollutants after compliance with MACT standards[,]” and given that for the few MACT-regulated source categories that have had EPA residual risk analyses, the EPA has tolerated levels of ambient exposure that are substantially higher than what we as a Commonwealth have identified as the appropriate goal, exempting all MACT sources from the regulation largely defeats the purpose of any state-lead air toxics program by removing the largest sources of air toxics from meaningful front-end review.
63:020 Should Be Retained In Order to Assure Protection of Public Health and the Environment
The second concern is related to the first, and that is elimination of 401 KAR 63:020. For many years, that regulation has been the backstop for air pollution control, assuring during both permitting and operation of sources that sources do not emit potentially hazardous matter or toxic substances that may be harmful to the health and welfare of humans, animals, and plants. The elimination of this 28-year regulation leaves a significant gap in protection of public health and the environment.
State law demands that the Cabinet fix standards to “prevent and control air pollution.” “Air pollution” is defined as the presence of one or more air contaminants in sufficient quantities and of such characteristics and duration as “is or threatens to be injurious to human, plant, or animal life or to property, or which unreasonably interferes with the comfortable enjoyment of life or property[.]”
The proposed regulatory package explains the basis for the rules as being establishment of an “air toxics program to address threatens to public health and the environment from air toxics substances,” yet the standards and analyses in the rules are entirely focused on cancer and non-cancer impacts on humans, and do not address nor protect against harmful effects on plants, animals, or the environment. Elimination of 63:020 makes this package a significant step backwards in environmental protection, and removes also the backstop protection of public health.
The proposed safety net program does not adequately replace 63:020, both because it is limited to case-by-case action based on excess cancer risk and noncancer risk to humans and does not address protection of plant and animal life, but also because the burden is shifted from the source to the agency by requiring that the Cabinet “have information” that the source’s air toxics emissions may result in excess risk. Decades of failed efforts to regulate air toxics under such an approach at the federal level reflects that the burden should not be on the agency, but on the source that is proposing to utilize the public’s air for waste dispersal and disposal. The precautionary principle is nowhere more appropriate than when addressing the human and environmental impacts of long-term low-dose exposure to tens of thousands of chemicals and chemical compounds for which toxicological data is limited or non-existent. In 20 years, EPA regulated only 7 air toxics when standard obligated the agency to bear burden of demonstrating that pollutant could cause serious or irreversible illness or death.
The Proposed Regulations Are Not Protective Of Plant And Animal Life & The Environment
The preamble to the proposed regulation 401 KAR 64:001 indicates that the air toxics program is being adopted “to address threats top public health and the environment from air toxic substances[,]” yet the program itself lacks appropriate definitions and regulatory compliance endpoints related to the environment, and specifically, top plant and animal species. As noted above, KRS Chapter 224 demands that the Cabinet fix standards to “prevent and control air pollution[,]” which is defined as the presence of one or more air contaminants in sufficient quantities and of such characteristics and duration as “is or threatens to be injurious to human, plant, or animal life or to property, or which unreasonably interferes with the comfortable enjoyment of life or property[.]” Yet the program lacks regulatory requirements intended to be protective of plant or animal life, and instead is crafted solely to address human health risk.
In 401 KAR 64:001 Section 1(6), the definition of “air toxic pollutant” is limited to adverse chronic health effect in humans, and provides no endpoint for protection of plant or animal life or protection of property and the use of property.
Similarly, “hazard identification” is defined in 401 KAR 64:001 Section 1(23) only in human terms, since it is limited to adverse health effects from an “air toxic pollutant.”
Cabinet Discretion Should Be Bounded With Respect To Use of Alternative Models and Methods To Peer-Reviewed Methods, Numbers and Models That Have Been Approved By USEPA
The lack of constraints on Cabinet discretion to accept alternative methodologies, models, and values is of great concern to the Council. Where the regulations propose to allow use or approval of methods and models other than those specified in the regulation, the agency should bound that discretion by requiring the methods or models be EPA-approved and have been subject to rigorous peer-review.
For example, in 401 KAR 64:001 Section 1(5)(b), the “cabinet approved alternative” to using a method that is listed in the EPA “Guideline on Air Quality Models” provides unbounded discretion in the agency, and should be eliminated, or the available alternative should be constrained to one that is a peer-reviewed and published model accepted within the scientific community as being appropriate.
Similarly, the description of “alternative method” in 401 KAR 64:001 Section 1(8) allows the Cabinet to accept a sampling and analysis method that is not a reference or equivalent method but has been “demonstrated to the cabinet’s satisfaction to produce adequate results[.]” The acceptance of alternative methods should be bounded by a requirement that the method be demonstrated based on peer-reviewed analysis to be comparable, and must be accepted by EPA as being such. Allowing the use of alternative methods based on the Cabinet being “satisfied” with no objective standard for such satisfaction, is arbitrary on its face.
The definition of “risk assessment” in 401 KAR 64:001 Section 1(45) is better-bounded by requiring that the methodology be supported by peer-reviewed scientific data, but the requirement that it be “demonstrated to the satisfaction of the cabinet that the methodology is more appropriate” is a meaningless standard providing no guidance or boundaries on the acceptability of an alternative risk model. The methodology should be peer-reviewed and accepted by USEPA. The allowance of an alternative screening risk assessment in (46) should be similarly bounded by EPA-approval and be supported by peer-reviewed scientific data.
The allowance of values based “on information available to the cabinet reviewed and approved on a case-by-case basis” in 401 KAR 64:005 Section 4 should likewise be bounded to assure that the information is credible, by requiring that the value be acknowledged by EPA and be based on peer-reviewed science. Similarly, the use of “other credible sources” in Section 5(2)(d) should be bounded by requiring peer-review.
Likewise, in 64:010 Section 2(2), allowance of methods for estimating risk that are alternatives to the USEPA ATRA Library should be limited to those that are generally accepted within the scientific community, are peer-reviewed, and are accepted for use by EPA.
Finally, the allowance of “[a]nother method approved by the cabinet” in 64:030 should be bounded by requiring that the method be peer-reviewed and EPA-accepted.
The Formaldehyde Value Is Underprotective Of The Public – IRIS Value Should Instead Be Used
The Cabinet should use the formaldehyde value contained in IRIS rather than the proposed value in 401 KAR 64:005 Section 1(2). The proposed number is underprotective of the public and has not been subject to the same rigorous peer-review that attends IRIS values. To the extent that the Cabinet proposes to go forward with the less-protective value, KRC incorporates by reference as if fully set out below, the IRIS Summary for Formaldehyde, at http://www.epa.gov/iris/subst/0419.htm, and requests that the agency justify the use of a less-protective standard on the basis of comparable peer-reviewed toxicological data and analysis.
Additive Risk of Exposure To Multiple Carcinogens From The Same Or Multiple Sources Should Be Considered.
Additive risk of exposure to multiple carcinogens from the same or multiple sources should be considered. Also, in evaluating the risk of exposure to air toxics, all pathways of exposure should be evaluated, rather than just inhalation. Inhalation risk should be evaluated in conjunction with dermal exposure, and ingestion risk for chemicals that accumulate through the food web.
Public Input Opportunities Are Too Limited And Should Be Expanded
401 KAR 64:010 appears to limit the public opportunity for review and comment to permitting actions “involving a TAP-BACT demonstration.” The full array of permitting actions, and all matters to be decided in a permitting action, including but not limited to approvals of alternative models and methodologies for risk assessment, requests for exemption, and risk evaluations and the tiered risk assessment, should be subject to public notice and be available for public review.
There Is No Technical Justification for Using a Hazard Quotient Of 10
The use of a range of 1-10 for hazard quotient in making a TAP-BACT determination has no technical justification and should be eliminated. An HQ of 10 is not equivalent in noncarcinogens to 10 in a million for carcinogens.
The Cabinet’s Safety Net Program Is Flawed
The proposed safety net program in 64:030 is inadequate to protect public health and the environment for several reasons.
First, it is not an adequate replacement for 63:020 since it places the burden on the agency rather than the source to demonstrate that a source’s air toxics emissions may result in an excess lifetime cancer risk above 1 in 1 million or a noncancer hazard index above 1.0.
Second, the Cabinet constrains the information that the Cabinet can use to source-provided information, modeling or ambient monitoring; excluding other information that might demonstrate emissions above acceptable levels.
Third, the regulation does not protect animal or plant life, since it is keyed to “air toxics” which are defined in terms solely of human health. It is in this aspect narrower than 63:020 and narrower than the Cabinet’s charge under KRS Chapter 224 to prevent air pollution.
Additionally, the safety net appears to identify risks above 10 –6 and 1.o HI as being of public health concern, yet allows the source to take advantage of the same provisions of 401 KAR Chapter 64 that allow the source to apply TAP-BACT and to continue to emit at levels 100 times higher than 10 –6 risk.
Finally, the agency should require the source to conduct the risk assessment rather than spending taxpayer money to do so for the source. The shift in burden from 63:020, which properly imposes the obligation on both the source not emit in harmful quantities and durations, and the Cabinet to find that such emissions will not occur, to an approach that places the burden of both justifying application of the safety net and doing the modeling and risk evaluation on the Cabinet, is misguided. It should be remembered that this is the public’s air and that there is no right, no presumptive entitlement, to emission of air toxics.
The Exemption For Electric Utility Plants Is Unwarranted
The proposed exemption in 401 KAR 64:010 for electric utilities that have been delisted from 42 U.S.C. 7412(c) is inappropriate from a public health and environmental standpoint. A program designed to “address threats to public health and the environment from air toxic substances” cannot be effective unless it includes the full range of stationary and mobile sources of air toxics and requires screening those emissions for organic and inorganic substances of concern.
Coal-fired power plants are sources of significant quantities of metals, including cadmium, chromium, arsenic, and other substances of concern, such as radionuclides, and should be required to demonstrate that their emissions fall below de minimis concentrations in order to be exempted. In fact, a 2004 List of Major HAP Sources identified 41 existing or proposed electric utility plants among the major sources.
The use of the word “net” in the definition of “bioaccumulation” in 401 KAR 64:001 Section 1(10) should be changed to “total.” “Net” is used to refer to something that is less than total and from which something has been removed or subtracted.
In 401 KAR 64:001 Section 1(16) the allowance of an exemption as de minimize for “other inherently-clean fuels” is too vague, and should be eliminated or should be replaced by specific reference to the type or types of fuel emissions intended to be exempted.
The definition of “modification” creates a significant loophole allowing substitution of raw materials and fuels for one another that can be of significantly higher potential toxicity without review by the Cabinet provided that the “affected facility was designed to accommodate that alternative use.” For example, use of traditional fuels in a boiler could be replaced by solvent-derived fuels that have significantly higher potential to cause toxic intermediate combustion and incomplete combustion byproducts. 401 KAR 64:001 Section 1 (33)(b)4 should be eliminated.
Likewise, failing to consider increases in hours of operation and production rates as modifications is underprotective of public health and the environment, since such increases may trigger emissions that exceed the benchmarks. All such increases should be evaluated, and the failure to do so, when coupled with the MACT exemption, the utility exemption, and (b)4, makes the program extremely limited in scope and impact with respect to existing major sources of air toxics.
Finally, the exemption in (33)(b)6 that allows addition or use of systems or devices “the primary function of which is the reduction of air pollutants” is in need of revision. The installation of a device to control conventional or criteria pollutants, such as an SCR unit, may actually increase emissions of HAPs. The only time such an exemption should be allowed is if the system or device is intended for reduction of air pollutants and does not increase emission of any air toxics.
The definition of TAP-BACT in Section 1(59) should be modified to restrict the use of workplace standards and operational standards to those situations in which the emissions cannot be tested. The use of a workplace standard or operational standard results in the loss of a limit or measurable concentration standard, and eliminates the ability to measure and model the emissions.
Increasing stack heights in order to lower the level of concern by more widely dispersing the air toxic, is an inappropriate strategy, and should be eliminated from 64:010 Section 2. Allowing stack height increases to dilute emissions is particularly inappropriate where the air toxic of concern is persistent and/or bioaccumulative.
In utilizing the range of 10 –6 to 10 –4 as the range within which TAP-BACT is to be applied, KRC questions whether the Cabinet has evaluated how many of the sources will be allowed, after application of TAP-BACT, to continue to emit at levels in excess of one in one million risk, and whether the agency will require any further efforts to drive that risk lower or will simply accept the residual risk. Reducing the risks in excess of 10 –4 down to that level and then applying TAP-BACT establishes 100 in one million as a presumptive entitlement, without regard to demographic or land use factors. KRC believes that after application of TAP-BACT, any residual risk over 1 in 1 million should be approved only after a site-specific demonstration that despite the residual risk the emissions are protective of public health and the environment, and the adoption of a compliance plan to bring the risk number down over the course of the permit cycle. Diesel Particulates should be included in the air toxics of concern, since there are a number of actions that can and should be taken with respect to sources of diesel emissions, both from stationary sources, and from staging areas for trucking fleets.
The “voluntary acceptance” of conditions in order to avoid the applicability of 401 KAR 64:010 should be further constrained to provide that the source “voluntarily accepts enforceable conditions and limits to avoid the applicability of this administrative regulation[.]”
The basis for the estimate of the average annual emissions rates required in 64:010 Section 5 should be required to be disclosed.
In 64:020 Section 2(2)(a), it is unclear what a “generalized” worst-case assumption means.
The point of compliance should be specified, and should be at a minimum set at the property boundary of the facility, in order to fully protect off-site land uses. Additionally, the risk of workers on the workplace property outside of the facility should be evaluated in order to assure no excess risk is posed to workers from emissions.
In conclusion, there’s an old adage that if the agency has both the regulated and the intended beneficiaries of regulations upset over a decision, it must be the right one.
Sometimes that is the case. But sometimes, it is simply that the agency proposal has not thoroughly vetted policy issues that need to be resolved in order to make a workable and meaningful program. In this case, KRC believes it is the latter, and we would respectfully urge the agency to step back from the process, withdraw the regulatory package, and engage in a stakeholder process that follows up on the conceptual discussions of the former workgroups by inviting specific comments on improving the proposed package to better incorporate and implement the state mandate of protecting human health and the environment from emissions of air toxics.
Thank you in advance for your consideration of these comments.