KRC Comments On Draft Revisions to Louisville's Air Toxics Program Posted: May 18, 2010
May 17, 2010
Ms. Lauren Anderson, Director
Metro Louisville Air Pollution Control District
850 Barret Avenue
Louisville, Kentucky 40204
Re: Amendments to STAR Program Regulations
Informal Review Draft Version (revised)
Dear Ms. Anderson:
These comments are submitted on behalf of the Kentucky Resources Council, Inc., a nonprofit environmental advocacy organization providing legal and technical assistance without charge to low-income individuals and community groups on a range of environmental and energy-related issues. KRC’s membership includes individuals who are directly affected by the emissions of air toxics in the Metro Louisville airshed, and who have a direct and significant interest in the full implementation of the STAR program.
KRC appreciates the hard work and dedication of the APCD staff in the implementation of the STAR program. KRC supports efforts to revise the regulations in order to address issues that have arisen in the implementation of the program, and to focus resources on meaningful reductions in emissions of air toxics from all source sectors. Specific comments follow, referenced by the applicable regulation number.
Regulation 1.02 Definitions
The District has proposed to delete the definitions of “cancer,” “carcinogen” and “chronic noncancer effect” since they are used solely in relation to the STAR program and will be incorporated into Regulation 5.00. Unless the terms is used elsewhere in the regulations, the District may want to also remove “acute noncancer effect” to Regulation 5.00.
Regulation 1.06 Stationary Source Self Monitoring, Emissions Inventory Development, And Reporting
It is unclear whether a substantive change to Regulation 1.06 is intended by the substitution of “stationary source” for the current “process or process equipment” language in Section 1.1 and Section 2. KRC is concerned that the substitution may have unintended negative consequences on the regulatory jurisdiction of the agency, however, since “process” is defined to include “an action or operation, or a series of actions or operations, from which the emission of an air contaminant may originate[,]” (emphasis added), where a “stationary source” is defined in 1.02 to mean “air pollutant-emitting activities”. The existing language should be reinstated in order to preserve the District’s ability to require monitoring and stack testing where the District has reason to believe that there may be an emission of an air contaminant or pollutant from a process or process equipment.
Additionally, reinstating the existing phrase is more consistent with the definition of “affected facility,” which is defined in terms of processes and process equipment. See 1.02 Section 1.3.
Sections 1 and 2 should be revised in order to make clear the obligation to maintain records of both stack testing and monitoring and ambient air monitoring. Records should be kept for at least a 7-year period, in order to allow the agency to review operational and performance data for a complete permit cycle.
Section 3.27 allows a source to propose an alternative method for calculating emissions. KRC believes that such a proposal should occur only in the context of a permit application or in a Board Order, so that the public may review and comment on the appropriateness and reliability of such an alternative method.
Regulation 5.00 Definitions
KRC supports the consolidation of the various STAR-related definitions into one section.
Section 1.22 should clarify that the BAC-NC is a hazard quotient of 1.0, rather than 1, in order to assure that a hazard quotient of between 1.1 and 1.9 is not used to determine the benchmark ambient concentration for noncancer effects.
The word “emissions” in Section 1.3 should be singular, in order to assure that T-BAT is achieved for each TAC.
KRC is concerned that the revision to the definition of “new or modified process or process equipment” may allow source modifications that result in TAC increases to go unreviewed, since it limits the obligation of a source to request a modification to those instances where the new or modified process or process equipment results in an increase in the amount of a TAC, or emission of a new TAC “to which an emission standard applies”. It is the District, and not the source, that should review the data and process modification information in order to determine whether the increased or new TAC emissions are subject to a standard either under Chapter 5 or another provision of the District regulations. As written, the provision would allow a source emitting an increased level of a TAC or a new TAC to avoid reporting based on a determination that the new or increased emission was not subject to an “emission standard.”
Regulation 5.01 General Provisions (Standards for Toxic Air Contaminants and Hazardous Air Pollutants)
KRC is concerned that the revision to the regulation deletes the general duty to control hazardous air pollutants as well as toxic air contaminants. KRC suggests reinstating the duty with respect to HAPs as well:
"The owner or operator of a process or process equipment from which a toxic air contaminant or hazardous air pollutant is or may be emitted shall provide the utmost care and consideration to prevent the potential harmful effects of the emissions resulting from the process or process equipment. A person shall not allow any process or process equipment to emit a toxic air contaminant or hazardous air pollutant in a quantity or duration as to be harmful to the health and welfare of humans, animals, and plants."
The APCD has acknowledged that the reach of this general duty is intended to be coterminous with the general duty provision of 401 KAR 63:020. The District might want to incorporate the concept of “potentially hazardous matter” into the duty, to allow the District the flexibility to require additional controls for emissions that are not inherently toxic or listed as “hazardous” but which become so because of the quantity or duration of the emissions.
Regulation 5.11 Standards of Performance for Existing Processes and Process Equipment Sources Emitting Toxic Air Pollutants
The phrasing of the new Section 1 is ambiguous with respect to whether the phrase “that were in existence before November 11, 1986” relates to “process or process equipment” or to “emissions of toxic air pollutants.” KRC suggests modifying the sentence to state
"This regulation controls emissions of toxic air pollutants from any process or process equipment that was in existence before November 11, 1986."
Regulation 5.12 Standards of Performance for New or Modified Processes or Process Equipment Emitting Toxic Air Pollutants
Repealing 5.11 and 5.12 prospectively and replacing limits for pre-2005 “existing” and “new” sources under those regulations with controls and emissions limits consistent with the STAR program benchmarks, closes an unfortunate chapter in the history of state and local efforts to control air toxics. The weakness of the standards set by the regulation, which were based on a wholly-arbitrary fraction of workplace threshold limit values (published by the ACGIH and never intended for use in setting ambient standards), and the allowance of increased stack heights in determining compliance with the standards, created an illusion of regulation of air toxics rather than a meaningful pollution control program.
The existence of the general duty obligation in Regulation 5.01 provides an important backstop against emission of toxic air contaminants for which no specific emission standard has been adopted, and KRC appreciates the District explanation in the PRIA that the general duty provision will be continue to be used as needed to address toxic air contaminant emissions of concern as those sources currently subject to the 5.11 or 5.12 TAP regulation make their demonstrations under the STAR program.
Regulation 5.20 Methodology for Determining the Benchmark Ambient Concentration of a Toxic Air Contaminant
KRC is concerned that the redrafted regulation potentially weakens the protections afforded the public concerning exposure to carcinogenic agents, in two ways:
First, the replacement of “shall” with “may” allows the District to decline to list an air contaminant as carcinogenic even where it has been identified as such by the IARC, NTP or ATSDR. The District should not have the discretion to avoid designating such contaminants as carcinogenic.
Second, the inclusion of the phrase “for the purposes of determining the BAC” in the regulation after “carcinogen,” creates confusion as to whether a carcinogen can be classified as non-carcinogenic for purposes of determining the BAC. A toxic air contaminant is considered as a “carcinogen” under the regulations if it is “an agent capable of inducing cancer,” which is in turn defined as “a disease of heritable, somatic mutations affecting cell growth and differentiation, characterized by an abnormal, uncontrolled growth of cells.” The carcinogenicity of an agent is not related to the establishment of a BAC, and the modifying clause should be removed in order not to confuse the process of identifying carcinogens, which follows established scientific protocol, and the application of the appropriate BAC based on the nature of the agent.
Section 2.3.2 should be revised to clarify that it is the “designating agency” that has reevaluated the designation and not the District.
Section 2.3.3 would allow the District to de-designate a TAC as a carcinogen, following an earlier District designation of a TAC as a carcinogen, based on “sufficient, credible information.” The District should clarify that the required information must be sufficient to overcome the earlier information on which the designation was made.
Section 2.3.4 appears to be broad enough in its scope to allow the District to de-classify an agent as a known, probable or possible carcinogen even where the IARC, NTP, or ATSDR has classified or designated it as such. Section 2.3.3 provides the District with the discretion needed to reevaluate District-lead designations, and 2.3.4 should be removed, since the District lacks the resources and expertise to gainsay a designation by those agencies.
Regulation 5.21 Environmental Acceptability for Toxic Air Contaminants
The PRIA indicates that the District plans to repeal and re-enact Regulation 5.21. KRC would encourage the District to amend the existing regulation rather than to repeal and reenact it, in order to assure that there is no regulatory gap and that the determination of which sources are “new” or “existing” remains keyed to the initial adoption of the regulation rather than to the proposed revamping of the content.
New Section 2.1 allows “environmental acceptability” to be demonstrated using an emission standard, uncontrolled potential to emit, and a list of “alternative measures” including actual emissions, limited emissions, controlled PTE and throughput or production rate. KRC seeks clarification as to how these various measures must be used to make the demonstration.
“Environmental acceptability” is defined as an ambient concentration (including an averaging time frame) for individual and multiple TACs that are less than or equal to the EA goals. It is unclear how the District intends for the various measure to be utilized by the applicant in order to make the demonstration, since, without more, there is no direct correlation between some of the measures and the concentration of emissions in the ambient air. If what the District proposes is that environmental acceptability, once demonstrated using actual emissions data and proper modeling, can be incorporated into the permit as an enforceable standards using one of those measures, that should be clarified. Using an “emission standard”, “throughput” or “production rate” information does not, however, provide necessary information to allow a determination of the actual emissions and, by derivation, the ambient concentration of the individual and multiple emissions at the point of compliance.
It is unclear why new Section 2.6 is included. It purports to define how a T-BAT determination is made, yet lacks the detail of existing 188.8.131.52 and 184.108.40.206.2, and also lacks the detailed explanation of the factors that are to be evaluated, contained in the definition of “T-BAT” in new 5.00. KRC recommends either removing the new 2.6 or revising it to provide all of the factors to be evaluated, as is currently found in the definition and 220.127.116.11 and 18.104.22.168.2.
KRC believes that the exemption of emissions of carcinogens as “de minimis” pursuant to Section 3.5 should be reevaluated in light of the acknowledgment within the scientific community that there is no known “safe” exposure level for carcinogens.
Section 4.1 makes discretionary the inclusion of permit conditions regulating the emissions of TACs from process or process equipment. KRC believes that each permit should contain such conditions, since it is only with the inclusion of such conditions that the achievement and maintenance of the EA goals becomes enforceable, and suggests that the language be changed to “shall be included in a permit.” The comma after permit should be changed to a period.
Section 4.3 references section 22.214.171.124, but it does not appear from the draft that there is such a section.
KRC recommends the revision of the language of Section 4.4 to provide a standard for when the District will determine to require emissions or parametric monitoring, to read:
"A permit for a new or modified process or process equipment at a Group 1 or 2 stationary source shall require a continuous or intermittent emissions or parametric monitoring system as needed to demonstrate continued compliance with the EA goals, records of which shall be maintained for five years and submitted to the District on request."
Similarly, Section 4.5 should be revised to provide that a permit shall contain conditions necessary to demonstrate the continued environmental acceptability of emissions. The phrase “and the exclusion of any de minimis emissions” should be removed or revised to be more clear in what conditions are contemplated relative to de minimis emissions. Section 4.5 should authorize conditions to be imposed to assure that excluded emissions remain de minimis.
KRC questions the basis for removing the current requirements from proposed 4.2.2 and 4.7.2 that construction permits for new or modified processes and process equipment, and operating permits for existing P/PE, demonstrate compliance with EA goals for Category 3 and 4 TACs or, with approval from the District, instead providing a demonstration of compliance with the general duty obligation of Section 5.01. Unless we are misreading the revision, all that a source will be required to provide for Category 3 and 4 TACs is a “demonstration” of compliance with the general duty under 5.01.
Section 5.01 provides a general duty on an “owner or operator of a process or process equipment from which a toxic air contaminant is or may be emitted” to “provide the utmost care and consideration to prevent the potential harmful effects of the emissions resulting from the process or process equipment.” In addition to the utmost care and consideration standard, the duty includes a prohibitory duty: “A person shall not allow any process or process equipment to emit a toxic air contaminant in a quantity or duration as to be harmful to the health and welfare of humans, animals, and plants.”
The STAR program was developed to give substance to these duties, by translating the narrative standards of “no harm” and “utmost care” into a blended risk and technology-based program. Allowing a P/PE to avoid having to make the EA demonstration for Category 3 and 4 TACs by making a “demonstration” under 5.01, could potentially result in more rather than less workload for both the source and the District, since there is no identified or approved methodology under Section 5.01. As elsewhere noted by the District, 5.01 acts as a backstop for those instances where a contaminant is not covered under the STAR or other programs, or where despite application of the regulations to a contaminant, the particular circumstances warrant additional controls on the duration or quantity of toxic emissions.
New 4.6 should be revised to provide that in addition to conditions regulating the emissions of TACs, the operating permit will also include such emissions or parametric monitoring and recordkeeping as is needed to demonstrate continued compliance with the applicable EA goals.
KRC questions whether the relocation of the EA equations to a separate section apart from new Section 5 makes the regulation more user-friendly. In order to use the new version and understand the various explanatory notes, constant flipping between Sections 5 and 9 is now required. KRC suggests that the District reconsider the new formatting and restore the explanatory notes and equations.
Section 5.25 excludes Category 3 and 4 TAC emissions that are approved pursuant to the general duty clause of Regulation 5.01 from meeting the EA goals of 5.2.2 and 5.2.3. As rewritten, all of the Category 3 and 4 TACs would be exempt from meeting the EA goals, since the revisions to 4.2.2 and 4.7.2 allow a demonstration of compliance with 5.01 in lieu of using the methodology of Regulation 5.21. For reasons stated above, KRC has concerns that such an exemption may both increase the agency workload and result in demonstrations of the absence of harm that are less robust and grounded in the most current health science.
KRC recognizes that as is the case with several of these comments, the language with which we have concern is existing language that is merely being reorganized and relocated. Notwithstanding, KRC has an obligation to request that the District, as part of this reevaluation, revisit these areas in which greater clarity and improved protection of the public is needed. KRC continues to object to the use of multipliers for carcinogenic and noncarcinogenic risks for industrial property and public roadways. KRC questions the scientific bases for the multipliers, and believes that the use of different exposure assumptions on and off the facility property to lower emission control obligations is inappropriate as a matter of public policy, since the cumulative exposure to an individual who works at a facility emitting TACs and living in a surrounding residential area may exceed the assumed levels and durations of exposure. Allowing a source to utilize discounting factors on the workplace, roadways and other industrial properties fails to fully protect such workers, and the motoring public who may traverse local roads and live in adjacent residential areas. KRC would recommend reevaluation of and elimination of the adjustment factors.
Section 6.1.2 should be revised to assure that the proposed plan and schedule shall comply with T-BAT by a date certain.
KRC requests that the District either define or, more preferably, remove the word “materially” where it appears modifying “contribute to the exceedance of an EA goal” in Sections 126.96.36.199.1 and 188.8.131.52. It is unclear how an exceedance of an EA goal can be considered immaterial, particularly with respect to substances for which there is no known “safe” or therapeutic level of exposure. Additionally, the “or” should be changed to “and when aggregated”, in order to assure that the process or process equipment individually and when aggregated, does not cause an exceedance of an EA goal. As written, it could allow the source to avoid T-BAT even where the aggregation of processes and process equipment would cause such an exceedance, simply by making the individual demonstration.
It is unclear why 184.108.40.206 requires that the applicant utilize the RACT/BACT/LAER Clearinghouse, among other readily available air pollution control information, yet 220.127.116.11 does not. The ready nature of the information in the Clearinghouse doesn’t vary depending on the level of risk, nor should the quality of the T-BAT demonstration.
Section 6.4 should be revised to insert, between “achieve” and “compliance” the word “greater”, in order to allow the District to require a revised T-BAT where the new equipment or control strategy would lower emissions of concern and bring the source closer to compliance with the EA goal; rather than the current language that allows the source to continue to emit at the higher levels because the new equipment or control strategy does not achieve complete compliance with EA goals.
KRC does not oppose deletion of the postcard notice and believes that the remaining avenues of public notice are sufficient.
Regulation 5.22 Procedures for Determining the Maximum Ambient Concentration of a Toxic Air Contaminant
In Section 5.1.1, on line 227, strike “Use of” and capitalize “The” to eliminate the redundancy.
Thanks in advance for your consideration of these comments.