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KRC Comments On Proposed Changes to Louisville Air Toxics Program Regulations  Posted: February 1, 2011

January 31, 2011

Ms. Lauren Anderson, Esq., Director
Metro Louisville Air Pollution Control District
850 Barret Avenue
Louisville, Kentucky 40204

Ms. Rachel Hamilton, Esq.
Metro Louisville Air Pollution Control District
850 Barret Avenue
Louisville, Kentucky 40204

By email only to: airregs@louisvilleky.gov

Re: Amendments to STAR Program Regulations
1.02v12, 5.00v1, 5.01v7, 5.11v4, 5.12v4, 5.20v3, 5.21v6, and 5.22v3

Dear Mss. Anderson and Hamilton:

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 has reviewed the proposed regulations, and provides these specific comments, referenced by the applicable regulation number or topic as appropriate.

Regulation 1.02 Definition of “Stationary Source” and “Process or Process Equipment”

KRC had commented during the informal draft process on whether a substantive change to Regulation 1.06 was intended by the substitution of “stationary source” for the current “process or process equipment” language in Section 1.1 and Section 2. KRC expressed concern that the substitution might have unintended negative consequences on the regulatory jurisdiction of the agency, 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”. KRC recommended that 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.

In response, the District indicated in the November 17, 2010 Star Program Informal Comments Response that:

“The proposed amendment is intended to clarify, not change, the scope of the District’s existing authority to require monitoring, emissions inventory development, and reporting by stationary sources. As adopted, the necessity and function of Regulation 1.06 applies to “stationary sources.” “Stationary source” is broadly defined in Regulation 1.02 to mean “all of the air pollutant-emitting activities that are located on one or more contiguous or adjacent properties and are under the control of the same person or persons under common control….” This definition would encompass “process and process equipment.” However, to avoid confusion, the District will amend the definition of “stationary source” in Regulation 1.02 to include “all of the air pollutant-emitting activities, including all processes and process equipment, that are on one or more contiguous or adjacent ….”

While KRC appreciates the commitment to so modify the definition of “Stationary Source,” a review of Regulation 1.02v12 on the APCD website does not reflect the revision of that definition. KRC requests that such a change be made to eliminate the ambiguity.

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.

KRC appreciates the clarification in Section 1.22 that the BAC-NC is a hazard quotient of 1.0, rather than 1, 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.

KRC appreciates the revision of Section 1.3 to clarify that T-BAT is achieved for each TAC.

KRC had expressed concern 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”. KRC appreciates the District removal of that phrase.

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, and in response to informal comments, argued that:

“A HAP is defined in Regulation 1.02 as “any air pollutant listed in Regulation 5.14 Hazardous Air Pollutants and Source Categories pursuant to the Act §112(b).” HAPs are a subset of TACs, which are defined in proposed Regulation 5.00 as “any air contaminant for which there is no national ambient air quality standard and that is, or may become, harmful to public health or the environment when present in sufficient quantities and duration in the ambient air.” As a result, the general duty continues to apply to HAPs.”

Respectfully, it is not at all clear that HAPs are a subset of TACs, since they are neither referenced in the definition specifically, nor is the definition of HAPs in Section 1.02 incorporated into new definitional section for the STAR program. In order to avoid any ambiguity in the coverage of the program, KRC recommends that the above-proposed revision reinstating specific reference to HAPs be incorporated into the final regulation.

Regulation 5.11 Standards of Performance for Existing Processes and Process Equipment Sources Emitting Toxic Air Pollutants

KRC appreciates the clarification that the phrase “that were in existence before November 11, 1986” in the informal draft related to a “process or process equipment” rather than “emissions of toxic air pollutants.”

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.

In the most recent version of the proposed regulation, the agency proposes that for a Group 1 or 2 source, for a Category 1 or 2 contaminant, an emission standard established under this regulation remains in effect until the source demonstrates environmental acceptability of that TAC emission. “Emission standards for all other TAPs established pursuant to this regulation are repealed.”

KRC requests that the District identify any source for which an emission standard was established, which is now repealed pursuant to this regulatory amendment.

Regulation 5.20 Methodology for Determining the Benchmark Ambient Concentration of a Toxic Air Contaminant

KRC had expressed concern that the redrafted regulation potentially weakened the protections afforded the public concerning exposure to carcinogenic agents, in two ways:

First, the replacement of “shall” with “may” appeared to allow the District to decline to list an air contaminant as carcinogenic even where it had been identified as such by the IARC, NTP or ATSDR. KRC argued that the District should not have the discretion to avoid designating such contaminants as carcinogenic.

KRC appreciates the revision of the proposed regulation to reinstate the use of the phrase ”shall.”

KRC was also concerned that the inclusion of the phrase “for the purposes of determining the BAC” in the regulation after “carcinogen,” created confusion as to whether a carcinogen can be classified as non-carcinogenic for purposes of determining the BAC. KRC argued that 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.

KRC appreciates the clarification that this was not the intent of the regulatory change through the use of the modifier “BACc”.

KRC had expressed concern that Section 2.3.2 should be revised to clarify that it is the “designating agency” that has reevaluated the designation and not the District. KRC appreciates the revision providing that the District will make such changes only through a rulemaking.

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 again encourage the District to amend the existing regulation by deleting all text and replacing it with the new proposed text, rather than repealing and reenacting 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 restructuring and rewriting of the content.

KRC recommends clarifying the second sentence of Section 1 to read “This regulation does not apply to an exempt stationary source, as that term is defined in Regulation 5.00.

KRC believes that the exemption of emissions of carcinogens in proposed 2.1.1 and 2.5 as “de minimis” should be reevaluated in light of the acknowledgment within the scientific community that there is no known “safe” exposure level for carcinogens.

KRC recommends that the use of “or” in Section 3.1 be changed to “and” in order to clarify that a stationary source must conform to both sets of goals rather than one or the other.

New Section 4 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 sought 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 was unclear how the District intended for the various alternative measures to be utilized by the applicant in order to make the environmental acceptability demonstration, since, without more, there is no direct correlation between some of the measures and the concentration of toxic air emissions in the ambient air. KRC had suggested that if the District was proposing that environmental acceptability, once demonstrated using actual emissions data and proper modeling, could be incorporated into the permit as an enforceable standard through the use of one of those measures, that should be clarified.

KRC appreciates the clarification in Section 4.3 that “[a]n alternative measure that demonstrates EA shall be established as a new emission standard and incorporated in the permit for the process or process equipment.”

Section 5.2.3 is of concern as rewritten, since it appears to lessen the standard for documenting that the applicant has selected T-BAT. Formerly, the applicant was required to “document that the proposed emission standard reflects the maximum degree of TAC emission and risk reduction, as defined in section 1.1, and justify why any available method to achieve a higher degree of TAC emission and risk reduction was not chosen.” (Emphasis added).

The rewritten 5.2.3 requires only that the applicant “[j]ustify why another method that would achieve a greater reduction in TAC emissions or risk was not chosen.” As changed, it would seem that an applicant could simply select one other method and make the justification, when formerly, the applicant would have been required to review all available methods and to justify, based on the criteria in the definition of T-BAT, those available methods were not chosen. KRC recommends revising the language of 5.2.3 to state:

“Justify why any available method that could achieve a greater reduction in TAC emissions 229 or risk was not chosen.”

KRC supports the inclusion of language in new Section 5.10 providing that any resulting emission standard and approved plan and schedule for compliance with T-BAT will be incorporated into the permit for the affected process or process equipment.

KRC had questioned the basis for removing the current requirements 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 provide a demonstration of compliance with the general duty obligation of Section 5.01. As proposed in the current draft regulation, the applicant could elect to either provide a demonstration of compliance with the EA goals or with the general duty under 5.01. KRC appreciates the inclusion of an opportunity for public comment on any proposal to use the general duty clause, but remains of the belief that opening the door to wider avoidance of making the EA demonstration will increase agency workload rather than lessen it.

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 more specific meaning and substance to these duties, by translating the narrative standards of “no harm” and “utmost care” into a blended risk and technology-based program that is now nationally-recognized. 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 generalized 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. KRC recommends retaining the existing language requiring agency approval prior to use of an alternative demonstration of compliance under 5.01, or simply eliminating the option.

KRC requests that the District revisit the justification for the factors in Section 3.6. KRC continues to object to the use of multipliers for carcinogenic and noncarcinogenic risks for industrial property and public roadways, and question the scientific bases for the multipliers. 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 lives 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 while in the workplace, and the motoring public who may traverse local roads and live in adjacent residential areas. KRC recommends elimination of the adjustment factors.

Section 5.10 should be revised to assure that the proposed plan and schedule of compliance will include a date certain for compliance.

KRC appreciates the elimination of the qualifier “materially” from new proposed Section 6. It was unclear to KRC 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.

KRC recommends inclusion of the modifier “the” before “exceedance” in Sections 6.5.1, 6.5.2, 6.5.3, and 6.5.4 to read “significantly to the exceedance of the EA goal” so that there is no confusion that it is the significance of the source’s contribution, and not the significance of the exceedance, that is being evaluated.

KRC appreciates the inclusion of the word “greater” in Sections 5.12 and 5.13 with reference to requiring revised T-BAT demonstrations and compliance, 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 formerly proposed language that would have allowed 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

It is unclear in Section 1.2 both what length of time should be used to determine the “average emission rate” for intermittent emissions, and, perhaps more fundamentally, why the average rate of such emissions is appropriate for use in determining the maximum ambient concentration. It would seem that allowing the averaging of actual emissions would yield a measurement that is potentially significantly lower than the maximum ambient concentration, particularly where if the source is allowed to include periods where the emissions rate is zero due to the intermittent nature of the release.

Thanks in advance for your consideration of these comments, and for the extended comment period provided in order to assure that, to the best we can manage, the restructuring and clarifying changes in 5.21 did not inadvertently alter the intent and obligations created by the regulation.


Tom FitzGerald

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