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PO Box 1070, Frankfort, KY 40602  Phone 502.875.2428, Fax 502.875.2845

Council Expresses Concerns With Proposed Renewal of Air Permit to Organometallix Carrollton Facility  Posted: February 22, 2013


James Morse
Division for Air Quality
200 Fair Oaks Lane
Frankfort, Kentucky 40601

Re: Draft Title V Operating Permit Renewal
PMC Organometallix, Inc. (formerly Arkema, Inc)
Plant ID 21-041-00002
By email only James.Morse@ky.gov

Dear Mr. Morse:

These comments are submitted on of the Kentucky Resources Council, Inc., including members residing and working in Carrollton, Kentucky. After a review of the draft permit and applicable regulations, I offer these specific concerns regarding the proposed issuance of a renewal Title V Permit for the facility.

Confidentiality

The Council has concerns that relevant portions of the permit application do not appear to have been disclosed for public review and comment.

400 KAR 1:060 Section 1(4) defines confidential business information as “any record or other information relating to hazardous waste, which is not of public knowledge.…” 400 KAR 1:060 Section 2(2) states that the “text of the nonconfidential portion of the record or other information shall cross-reference the allegedly confidential portions where applicable, so as to permit identification.” 400 KAR 1:060 Section 2(3) states that claims of confidentiality “shall not be asserted for any record or other information relating to emission data.…”

In 40 CFR Part 70.4(b)(3), EPA required officials of Kentucky to affirm that the Kentucky Title V program include several provisions. Included in these provisions at 40 CFR Part 70.4(b)(3)(viii) is the statement that the “contents of a part 70 permit shall not be entitled to protection under section 115(c) of the Act.”
With these requirements in mind, the Council is concerned that some information that should be disclosed for public review in accordance with the applicable regulatory requirement, has not been.

On page 5 of the Statement of Basis, the Division states “[a]ny confidential business information such as throughputs, products and/or emission factors have been removed from the permit.” It does not appear that the described information is entitled to treatment as confidential information.

The information should not be deemed confidential for two reasons. First, most of the information is not related to hazardous waste, which according to the regulation, is a requirement. Under the broader confidentiality provisions in 40 CFR 2.201(c) and 40 CFR 2.208 (b and c), some of the described information should not be deemed confidential because the information is public knowledge due publication of the information in Title V permit V-04-044.

Throughput and emission factors should not be treated as confidential under 400 KAR 1:060 Section 2(3) because they are required to determine emissions, and are therefore emission data. Finally, the information cannot be deemed confidential because the Title V program specifically identifies information in Title V permits as not entitled to confidentiality.

The Council’s concern with disclosure affects a number of the permit application provisions. In Table 1.1 in the permit application, for some of the units, the confidentiality seems unwarranted (for example, how is the fuel entering each boiler confidential business information or trade secret?). Are the boilers using special forms of natural gas or oil? If the fuel supplied to the boiler is indeed so unique that it qualifies to be confidential business information or a trade secret, in accordance with 400 KAR 1:060 Section 2(2), the fuel identity could be obscured by using generic identification like Fuel A, B, or C with upper limits for potential pollutants provided to the public and cross-references to the actual fuel found in the confidential version of the application but total deletion does not satisfy the requirement of 400 CFR 1:060 Section 2(2).
Starting at Table 1.1 in the permit application, capacities are not provided. Capacities are necessary to calculate potential to emit, and given the regulatory requirement of 400 KAR 1:060 Section 2(3)), without conditional major or synthetic minor-like limits on processing rate, the capacity must be provided.

Starting with Table 1.2 in the permit application, emission factors that are necessary to calculate potential to emit are not disclosed. Given the regulatory requirement of 400 KAR 1:060 Section 2(3)), emission factors should be provided.

Portions of the permit application appear to have been treated as confidential or obscured in error, and in such a way that regulatory requirements have not been satisfied and relevant information has not been disclosed the public. Consequently, the public has been denied access to information to which they are entitled to view, contrary to 401 KAR 52:100 Section 8a and, because of this, the Division has not fulfilled public notice requirements. A new public notice, with a subsequent comment period, satisfying all of the requirements of 401 KAR 52:100 is needed once the necessary information is provided for public review.

Other Comments

EPA has provided guidance for permit writing under the Title V program, stressing the importance of writing permits that simply and clearly, with requirements precisely articulated, in order to encourage public confidence in the permitting process and in the permits themselves.

For example, in the May 10, 1991 Federal Register, in the proposed 40 CFR Part 70 rule document under Background and Purpose, EPA states “A primary benefit of the Title V permit program is that it will in general clarify which requirements apply to a source… In addition, regulations are often written to cover broad source categories and, therefore, it may be unclear which, and how, general regulations apply to a source. Similarly, applicable provisions are sometimes not explicit as to reporting requirements… The Title V permit program will enable the source, States, EPA, and the public to better understand the requirements to which the source is subject….”

In the May 10, 1991 Federal Register, in the proposed 40 CFR Part 70 rule document under the subheading of “J. Establish Certainty for Permitted Sources” under Implementation Principles, EPA states “A Title V permit should articulate a clear road map of source obligations to inspire confidence in the system.”

In the May 10, 1991 Federal Register, in the proposed 40 CFR Part 70 rule document under the subheading of “F. Section 70.6 – Permit Content” under Detailed Discussion of the Key Aspects of the Proposed Regulations, EPA states that they wish “to stress the importance of good permit writing to the enforceability of a permit. If permit provisions are not clearly written and carefully specified, compliance may well be thwarted….”

In the July 21, 1992 Federal Register, in the final 40 CFR Part 70 rule document under the subheading of “F. Section 70.6 – Permit Content” under Discussion of Regulatory Changes, EPA states that Title V “attempts to make the permit the comprehensive document for requirements applicable to the source.”

Under EPA’s website (www.epa.gov), if you search permit writing tips, the first hit is Title V Permit Writer’s Tips. Within this link is 10 other links. The first link is “Incorporating Applicable Requirements”. By clicking on this link, one can find information about the intended content and detail for Title V permits. Under “B. New Source Performance Standards (NSPS)”, the website details how to translate a NSPS into Title V permit conditions. Under “D. National Emission Standards for Hazardous Air Pollutants (NESHAP)/Maximum Achievable Control Technology (MACT) Standards”, the website cautions permit writers about incorporating by reference (IBR). The website states that “One of the goals of the Title V program was that both the source and the permitting authority would gain a better understanding of the specific requirements applicable to the source, which would lead to improved compliance. There is value to be gained by a source -- and the permit writer -- by studying the specific requirements of a MACT standard, culling out those requirements that apply to the source, and translating them in a logical fashion as Title V permit conditions… Some appropriate uses of IBR include:

• test methods
• inspection and maintenance plans
• calculation methods/equations needed to determine compliance…
When [incorporating by reference], the citation must be detailed enough so that there is no misinterpretation. Additionally, the website provides an example of a proper IBR and compares it to an improper IBR.

Under “D. National Emission Standards for Hazardous Air Pollutants (NESHAP)/Maximum Achievable Control Technology (MACT) Standards”, the website provides guidance for tailoring permits. The website states “For simplicity and precision, the Title V permit should include only the compliance option selected by the source….”
Under “Incorporating Applicable Requirements” (i.e. the first link) in the portion with the heading “D. National Emission Standards for Hazardous Air Pollutants (NESHAP)/Maximum Achievable Control Technology (MACT) Standards”, the website provides guidance for writing a “Statement of Basis”. The webpage states “The Statement of Basis should ‘tell the story’ of how the source is complying with the MACT. For example, the Statement of Basis should describe whether/why certain provisions are not applicable, the source's selected compliance option (if known), the results of the initial performance test (or when it will be conducted), and the monitoring requirements.” Under “Statement of Legal and Factual Basis” (i.e. the sixth link) additional details are provided.

In the June 13, 1989 Hunt/Seitz memorandum “Guidance on Limiting Potential to Emit in New Source Permitting” EPA provides legal precedent and guidance for restricting potential to emit. Additionally, in the document, enforceable as a practical matter is discussed and EPA explains how to properly limit potential to emit (in accordance with the legal opinion in Louisiana-Pacific). The document states that to “appropriately limit potential to emit… permits… must contain a production or operational limitation in addition to the emission limitation…. Production and operational limits must be stated as conditions that can be enforced independently of one another…. This is necessary for purposes of practical enforcement so that, if one of the conditions is found to be difficult to monitor for any reason, the other may still be enforced. When permits contain production or operational limits, they should also have recordkeeping requirements that allow a permitting agency to verify a source's compliance with its limits.”
Under EPA’s website (www.epa.gov), if you search permit writing tips, the first hit is Title V Permit Writer’s Tips. Within this link is 10 other links. The third link is “Potential to Emit (PTE) Limits”. By clicking on this link, one can find information about the intended content and detail for Title V permits.

In the July 21, 1992 Federal Register, in the final 40 CFR Part 70 rule document under the subheading of “F. Section 70.6 – Permit Content” under Discussion of Regulatory Changes, EPA states that “Section 70.6(a)(l)(i) requires that the permit reference the authority for each term and condition of the permit. Including in the permit legal citations to the provisions of the Act is critical in defining the scope of any permit shield, since the permit shield, if granted, extends to the provisions of the Act included in the permit. Including the legal citations in the permit will also ensure that the permittee, the permitting authority, EPA, and the public all have a common understanding of the applicable requirements included in the permit. This requirement is satisfied by citation to the State regulations or statutes which make up the SIP or implement a delegated program.”

In accordance with 502(b)(5)(C) of the Clean Air Act, EPA establishes a requirement that permitting authorities have the power to “incorporate emission limitations and other requirements” into renewal permits. Additionally, this is confirmed in the May 10, 1991 Federal Register. In the proposed 40 CFR Part 70 rule document under the “Permit Renewals” portion of the subheading of “G. Section 70.7 (and Section 70.6(d)) - Permit Issuance, Renewal, Reopenings, Operational Flexibility and Revisions” under Detailed Discussion of the Key Aspects of the Proposed Regulations, EPA states “Section 502(b)(5)(C) specifically requires that, upon renewal, all permits incorporate all applicable emission limitations and other requirements of the SIP.”

Under EPA’s website (www.epa.gov), if you search permit writing tips, the first hit is Title V Permit Writer’s Tips. Within this link is 10 other links. The second link is “Streamlining Applicable Requirements”. By clicking on this link, one can find information about utilizing one permit requirement to satisfy 2 or more applicable provisions. As part of the information provided, the proper way to cite the applicable provisions is also described (with examples given).

With these requirements and goals in mind, the Council believes that a number of the permit provisions need to be rewritten for clarity, enforceability, and to incorporate appropriate monitoring and limits.
1. Based on information in the Summary Form and the Statement of Basis, it appears that Emission Points 02 and 03 were previously subject to either fuel usage or emission limitations. However, the documents also state that the units are “no longer subject” to the limits. Based on AP-42 emission factors and conversions, boiler descriptions in the permit, and MSDS information for #2 fuel oil, potential to emit from the Emission Points seems to exceed 200 tons per year without the limits.

To explain further, a search for “sulfur content in fuel oil #2” turned up a MSDS generated by “Sprague” (in the MSDS the #2 fuel oil was described as having a sulfur content of up to 4%). In Chapter 1.3 of AP-42, #2 fuel oil emission factors are 142 x S lbs/1,000 gallons (where S = % of sulfur in the fuel oil) and with a conversion factor of 140 million Btu/1,000 gallons. With this information and the heat capacities (i.e. the rated capacities) of the boilers at page 2 of the draft permit (Emission Point 02 has a rated capacity of 25.1 million Btu and Emission Point 03 has a rated capacity of 33.5 million Btu), and assuming a PTE based on continuous operation of the boilers at their rated capacities for an entire year using the fuel, PTE is no less than 890,000 lbs/yr or 445 tons/yr (for Emission Point 02) and PTE is no less than 1,190,000 lbs/yr or 595 tons/yr (for Emission Point 03), where
PTE = (emission factor) x (rated capacity) x (potential hours of operation in a year)

PTE = (142 x 4.0 lbs/1,000 gal x 1,000 gal/140 million Btu) x
(25.1 and 33.5 million Btu/hr for Emission Points 02 and 03, respectively) x (24 hrs/day x 365 days/yr)
PTE = (142/35 lbs/million Btu) x (25.1 or 33.5 million Btu/hr, respectively) x (8760 hrs/yr)

From the content of 40 CFR 51:300 and the above PTE calculation, the draft permit may not accurately identify requirements that are applicable, including either applicable BART requirements on Emission Points 02 and 03 or incorporating limits to preclude BART.
In accordance with 401 KAR 52:100 Section 10(5)(b), if corrected, the required permit changes are significant and the public should get another opportunity to view and comment on such a permit.

2. 401 CFR 51:300 is relevant but it is currently listed as a non-applicable regulation on page 2 of the draft permit. Since 401 KAR 51:017 is not listed as a non-applicable regulation on page 2 (even though it is similarly precluded), it appears that 40 CFR 51:300 should not be under non-applicable regulation on page 2 of the draft permit.

3. On page 2 of the draft permit, Applicable Regulations are listed. However, it appears that the 40 CFR 63 Subpart A portion of 401 KAR 63:002 has been omitted. 40 CFR 63.11235 appears to indicate that 40 CFR 63 Subpart A is applicable.

4. In pages 2 through 6 of the draft permit, synthetic minor limitations are partially described for Emission Point 04. However, as is, the restriction is not practically enforceable. In accordance with EPA guidance, a defined emission limitation must be provided as part of practical enforceability of the synthetic minor limit. Additionally, the sulfur content limit of 0.5%, which may or may not be required by 40 CFR 60 Subpart Dc, in permit condition 2e is a necessary (i.e. required) provision for the synthetic minor limitation (i.e. due to synthetic minor practical enforceability, it is not optional or an alternative as the permit describes it). The permit needs revision to make the synthetic minor limitation practically enforceable.

5. On page 4 of the draft permit, permit condition 2e describes an emission limit and an alternative. Since the alternative is, by definition, not a requirement when opting to follow the described emission limit, the method for achieving the emission limit is unclear. PMC could achieve the limit by not operating the boiler, through changing the chemical reactions occurring within the boiler, or by utilizing some other unspecified methods. While the permit describes two compliance demonstration methods (use of natural gas and use of low sulfur fuel oils), the compliance demonstration methods are not requirements and, as with the option to not operate the boiler, the compliance demonstration methods are not necessarily all inclusive. Compliance demonstration methods are useful parts of the permit but they do not necessarily rise to the standards required for practical enforceability. The limitation is not practically enforceable and the permit needs revision to make the limit practically enforceable.

6. On page 4 of the draft permit, permit condition 2e describes an operating limitation (i.e. a requirement for maximum fuel sulfur content) and an alternative. Since the operating limit has an alternative, PMC, by definition, is not absolutely required to follow the operating limit. As such, the limitation is not practically enforceable and the permit needs revision to make the limit practically enforceable.

7. On page 3 of the draft permit, permit condition 1b has the term “this unit.” This term is unclear. Is it Emission Point 02, 03, 04, some combination of the Emission Points, or some sub-component of the one or more of the boilers? The regulatory requirements appear to require “this unit” be replaced with “each boiler” or some alternative clarification seems to be necessary.

8. On page 3 of the draft permit, permit condition 1b is need to be rewritten in order to define the requirements that apply to the source \simply, precisely, and clearly as possible. As noted above, there is a minimum clarity requirement and permit condition 1b does not appear to meet the minimum. The Council recommends replacement of permit condition 1b with the following 2 conditions.

" b. The permittee shall conduct an initial tune-up as specified in 40 CFR 63.11223(b)(1) through (7) by March 21, 2012. [40 CFR 63.11201(b), item 4 of Table 2 to 40 CFR 63 Subpart JJJJJJ, 40 CFR 63.11214(b), 40 CFR 63.11223(b), and 40 CFR 63.11196(a)(1)]
c. The permittee shall conduct biennial tune-ups
i. while burning the type of fuel or fuels that provided the majority of the heat input to the boiler over the twelve (12) months prior to the tune-up,
ii. no more than twenty-five (25) months after the previous tune-up, and
iii. as specified in 40 CFR 63.11223(b)(1) through (7).
[40 CFR 63.11201(b), item 4 of Table 2 to 40 CFR 63 Subpart JJJJJJ, and 40 CFR 63.11223(a) and (b)]”

These improvements make the permit more practically enforceable and also aid in the accomplishment of the goals of Title V permitting that are noted above. The specific tune-up provisions are actually requirements and are not just a part of the compliance demonstration, the compliance date is an actual requirement and not just a part of the compliance demonstration, the initial tune-up is separated from the biennials, the provision of 40 CFR 63.11223(a) is actually required (not just part of the regulatory citation), the regulatory citations are (in some instances) more specific and complete, the compliance dates are simpler to understand, and the paragraph (c) through (f) exclusions of 40 CFR 63.11223(b) are correctly eliminated.

9. On page 3 of the draft permit, permit condition 1c has the term “this unit.” This term is unclear. Is it Emission Point 02, 03, 04, some combination of the Emission Points, or some sub-component of the one or more of the boilers? The Council again recommends changing “this unit” to “these boilers.” Otherwise, alternative clarification seems to be necessary.

10. On page 3 of the draft permit, permit condition 1c is does not simply, precisely, and clearly as possible, define what requirements apply to a source. As discussed by EPA in their tips for permit writers, there is a minimum clarity requirement and permit condition 1c does not appear to meet the minimum. Additionally, as discussed in comment 10, compliance demonstration methods are not requirements unless done the way done in Compliance Demonstration Method iii. under permit condition 1c.

Among the concerns with condition 1c, the compliance date could be described much more clearly (i.e. by March 21, 2014), the specific applicable provision within Table 2 is not identified (i.e. item 16), the portion of 40 CFR 63.11237 that is applicable could be much more clearly defined (i.e. an 8-hour energy assessment described under “Energy assessment” in 40 CFR 63.11237 is required for items (1) to (4)), and several regulatory citations are missing (i.e. the total list of regulatory citations should be [40 CFR 63.11201(b), item 16 of Table 2 to 40 CFR 63 Subpart JJJJJJ, 40 CFR 63.11196(a)(3), and 40 CFR 63.11237]).

To make the permit easier to understand and less prone to misinterpretation, in accordance with the May 10, 1991 proposed rule and EPA’s Permit Writer’s Tips, references to Tables with multiple options should be written so that the reader is precisely directed to the portion of the Table that is relevant to the permit requirement. To make the permit easier to understand references to the definition portion of the regulation should be written so that the reader is precisely directed to the definition that is relevant to the permit requirement. Additionally, not all of the definition is relevant to the PMC boilers. See comment 13 for discussion of why the permit should eliminate extraneous information. For the reasons described above, it appears that permit condition 1c requires clarification.

11. On page 3 of the draft permit, permit condition 1d has the term “this unit.” This term is unclear. Is it Emission Point 02, 03, 04, some combination of the Emission Points, or some sub-component of the one or more of the boilers? If I have interpreted the regulatory requirements correctly, I recommend changing “this unit” to “each boiler.” Otherwise, alternative clarification seems to be necessary.

12. With the above described changes to permit conditions 1b, 1c, and 1d and the below described additions to recordkeeping and reporting requirements, the compliance demonstration methods for these requirements can be changed to “Compliance is demonstrated through recordkeeping and reporting.”

13. For permit conditions 2a, 2b, and 2c, it appears that the Division for Air Quality has filled in the gaps of the applicable regulations (for the purpose of compliance demonstration). For permit condition 2a, 401 KAR 61:015 Section 6(3) requires a more stringent recordkeeping requirement than identified in the compliance demonstration (i.e. daily measurement and recording of fuel usage). Because the recordkeeping connected to permit condition 2a is less stringent than required by regulation, the compliance demonstration must be changed and recordkeeping requirements of 401 KAR 61:015 Section 6(3) must be added to the permit.

14. For permit condition 2d, it appears that applicable requirements resulting from changes to 401 KAR 59:015 may not have been included. Prior to Aug. 9, 2007, Section 7 of 401 KAR 59:015 did not apply to any of the PMC boilers (i.e. it applied to boilers with capacity greater than 250 million BTU/hr). At the time of the initial Title V permit issuance, it appears that compliance demonstration for the opacity limitation of 401 KAR 59:015 was addressed through “gap-filling”. In accordance with EPA permit writing guidance, this was allowed, however, with changes to applicable regulations, the gap has shrunk. Now, 401 KAR 59:015 Section 7 requires Emission Points 03 and 04 to have COMS installed, calibrated, maintained, and operated (unless they burn only gaseous fuels). As discussed in the preamble to the proposed 40 CFR Part 70 Rule, with renewal of the Title V permit, the Division for Air Quality is required to incorporate applicable regulatory changes into the renewal permit. Consequently, it appears that requirements associated with permit condition 2d are less stringent than required by regulation and several additional requirements must be added to the permit. Gaps related to the specifics of installation, calibration, maintenance, and operation of each COMS will still need to be filled but, as is, the compliance demonstration for the opacity limit has not been revised to match the revised regulation.

15. On page 5 of the draft permit following Compliance Demonstration Method e is a paragraph addressing an “annual limit.” Currently, under the Emission Limitations, there are no annual limits. Therefore, the described paragraph seems extraneous.

16. On page 5 of the draft permit, permit condition 3 needs additional regulatory citations. As is, the testing requirement applies to Emission Points 02, 03, and 04 but only Emission Point 04 is subject to 40 CFR 60.44c. If the requirement is applicable to Emission Points 02 and 03, the regulatory basis would be compliance demonstration for 401 KAR 61:015 and 401 KAR 59:015, respectively. For clarity, the same requirement with a different basis could be two permit conditions (as handled in permit conditions 4b and 4c). However, addition of the described regulatory basis to 1 permit condition may also be an acceptable fix. For the described reasons, permit condition 3 should be revised.

17. On page 5 of the draft permit, permit condition 3 should be more specific. If I understand the compliance demonstration for permit condition 2e and 40 CFR 60.44c(a), (g), and (h) correctly, Emission Point 04, at most, only has to test in accordance with a portion of Method 19 (the fuel sampling and analysis procedures). By not specifying only the fuel sampling and analysis provisions within Method 19, the Division for Air Quality has provided PMC with support that the fuel combusted in Emission Point 04 can have a sulfur content above 0.50%. Permit condition 3 should be revised.

18. On page 5 of the draft permit, permit condition 3 seems to be applied too broadly. If Emission Point 04 is complying with 40 CFR 60.44c(h), the fuel sampling and analysis provisions of Method 19 are not applicable. To accurately depict the regulatory requirement and the proper permit requirements, language should be added to indicate that the testing is only applicable if on-site fuel sampling and analysis is utilized (i.e. it is not applicable if fuel supplier certification is utilized). For the described reasons, permit condition 3 appears to need revision.

19. On page 5 of the draft permit, permit condition 4a does not appear to satisfy the regulatory requirements for the same reasons as discussed above in comment 14.

20. On page 5 of the draft permit, permit condition 4a does not have any regulatory citation. Without a cited regulatory basis, Kentucky’s incorporation of 40 CFR 70.6(a)(1)(i) does not appear to be not satisfied.

21. On page 5 of the draft permit, permit condition 4b has a typographic error. In permit condition 4c, the requirement states “… Specific Recordkeeping Requirements (below).” For consistency, permit condition 4b should be written identically to convey identical content.

22. On page 5 of the draft permit, permit condition 4b has an incomplete regulatory citation. 40 CFR 46c(e) does not provide for fuel sampling. Therefore, as written, the regulatory basis is deficient. For this reason, permit condition 4b should be revised.

23. On page 5 of the draft permit, permit condition 4b is potentially incomplete. If 40 CFR 60.46c(d) is added to the regulatory basis, the condition is missing analysis provisions. Therefore, if the 40 CFR 60.46c(d) provisions are intended to be included, as is, the specified monitoring does not assure compliance with the applicable regulatory requirements. For this reason, permit condition 4b may need revision.

24. On page 5 of the draft permit, in permit condition 4b, where 40 CFR 60.48c(f) is incorporated by reference, extraneous compliance options appear to have been provided, since for the PMC boilers, 40 CFR 60.48c(f)(3 and 4) are irrelevant. Therefore, “40 CFR 60.48c(f)” should be changed to “40 CFR 60.48c(f)(1 or 2)”. For this reason, permit condition 4b appears to need revision.

25. On page 5 of the draft permit, permit condition 4b is missing a regulatory citation. Monitoring of sulfur content will be required in association with practical enforceability of synthetic minor limits. As discussed in Support Q, streamlining of multiple requirements is allowed but the applicable provisions should be cited when the streamlined requirement was placed in the permit. For this reason, permit condition 4b appears to need revision.

26. On page 5 of the draft permit, permit condition 4b is not very clear. At the end of the permit condition, “and Subsection 5, Specific Recordkeeping Requirements, below” is out of place. As far as I can tell, there are no monitoring requirements in the referenced location. Additionally, the monitoring requirement is probably more understandable and more grammatically correct without the identified words. For these reasons, permit condition 4b appears to need revision. If it is intended that compliance with Subsection 5 may demonstrate compliance with the monitoring requirement, that would be better conveyed as a compliance demonstration method.

27. On page 5 of the draft permit, permit condition 4c appears is unclear. At the end of the permit condition, “… or by fuel sampling in accordance with Subsection 5, Specific Recordkeeping Requirements (below)” is specified. Fuel sampling may be a monitoring option but fuel sampling in accordance with Subsection 5 is unclear. There are no monitoring requirements in Subsection 5 and, consequently, the statement doesn’t clearly convey a clear requirement.

28. On page 5 of the draft permit, permit condition 4c is unclear. It appears that monitoring of sulfur content in the fuel oil is intended to be identical to the 40 CFR 60 Subpart Dc monitoring described in permit condition 4b but permit condition 4c is not nearly as detailed as permit condition 4b. In order to make the intended purpose practically enforceable, the permit condition needs to be clarified. The Council recommends changing permit condition 4c to the following condition.

"c. Except that EP 03 may also utilize fuel supplier certification (which 40 CFR 60.42c(h)(2) may not allow), the permittee shall monitor the sulfur content of the fuel oil combusted in Emission Points 02 and 03 by methods identical to those described in permit condition 4b."

Note that AP-42 Chapter 1.3 identified fuel oil # 4 as “being either distillate oil or a mixture of distillate and residual oils”.

29. On page 5 of the draft permit, permit condition 4c does not have any regulatory citation. Without a cited regulatory basis, Kentucky’s incorporation of 40CFR 70.6(a)(1)(i) is not satisfied. Additionally, to be practically enforceable, if comment 6 results in sulfur content limitations that are associated with Emission Points 02 and 03, limits to preclude BART will require proper monitoring, recordkeeping, and reporting provisions. Therefore, monitoring of sulfur content may be required as a result of additional compliance considerations. As discussed above, streamlining of multiple requirements is allowed but, if limits to preclude BART are applicable, the draft permit does not properly cite all the requirements of the streamlined condition. For these reasons, it appears that permit condition 4c or any revised condition resulting from comments must have a regulatory citation. We recommend changing permit condition 4c to include one of the following:

"[401 KAR 61:015 Sections 6(2) and 6(6) and 401 KAR 59:015 Section 7(2)(e), respectively] or [401 KAR 61:015 Sections 6(2) and 6(6) and 401 KAR 59:015 Section 7(2)(e), respectively] plus [compliance demonstration for BART preclusion]"

30. On page 5 of the draft permit, a monitoring requirement is missing. The fuel consumption measurement requirement of 401 KAR 61:015 Section 6(3) will require monitoring. Additionally, a limit to preclude BART will probably require fuel consumption monitoring. For these reasons, an additional monitoring requirement or a streamlined monitoring requirement (with 2 regulatory citations) should be added to the permit.

31. On page 5 of the draft permit, monitoring requirements may be missing. The heat value and ash content requirement of 401 KAR 61:015 Section 6(3) may require monitoring. Additionally, measurements required of electrical generators described in 401 KAR 61:015 Section 6(3) may be applicable and, if so, monitoring will be required. For these reasons, additional monitoring requirements may need to be added to the permit.

32. On page 5 of the draft permit, a monitoring requirement appears to be missing. If complying with 40 CFR 60 Subpart Dc through fuel sampling and analysis, 40 CFR 60.48c(g)(1) requires recordkeeping of the amount of fuel combusted daily and, since monitoring of fuel consumption is a prerequisite to the described recordkeeping, monitoring of fuel combusted daily. Additionally, the synthetic minor limitation described for Emission Point 04 also requires fuel consumption monitoring. For these reasons, an additional streamlined monitoring requirement (with 2 regulatory citations) should be added to the permit.

33. On page 5 of the draft permit, a monitoring requirement appears to be missing. If complying with 40 CFR 60 Subpart Dc through fuel certification, 40 CFR 60.48c(g)(2) requires recordkeeping of the amount of fuel combusted monthly and, since monitoring of fuel consumption is a prerequisite to the described recordkeeping, monitoring of fuel combusted monthly. Additionally, the synthetic minor limitation described for Emission Point 04 also requires fuel consumption monitoring. For these reasons, an additional streamlined monitoring requirement (with 2 regulatory citations) should be added to the permit.

34. On page 5 of the draft permit, a monitoring requirement may be missing. While 401 KAR 59:015 and “gap-filling” for the regulation do not appear to need a monitoring requirement for fuel oil consumption by Emission Point 03, if Emission Point 03 requires a limit to preclude BART, a monthly fuel consumption monitoring requirement will probably be associated with the limit. For this reason, an additional monitoring requirement may be needed in the permit.

35. On page 5 of the draft permit, permit condition 5a is worded awkwardly. The recordkeeping requirement is probably more understandable and more grammatically correct if “it” is used instead of “them”. Alternatively, “this information” may be a superior substitution for “them” or “it”. “Average higher heating…” should be “Average higher heating value…”. Additionally, as written, sentence structure is awkward. For example, “Average sulfur content, percent by weight” should be “Average sulfur content, in percent by weight” or “Average sulfur content (percent by weight).” Permit condition 5a should be revised.

36. On page 5 of the draft permit, permit condition 5a does not have any regulatory citation. Without a cited regulatory basis, Kentucky’s incorporation of 40CFR 70.6(a)(1)(i) is not satisfied. The Division for Air Quality has previously disagreed with my statement in the previous sentence. Additionally, the 40 CFR 60 Subpart Dc references in permit condition 5a are not regulatory citations. Permit condition 5a or any revised condition resulting from other comments should have one or more regulatory citations.

37. On page 5 of the draft permit, permit condition 5a.i(4) should be rewritten for clarity. To simplify the requirement down to just the recordkeeping requirement, the sentence becomes “The permittee shall record, for fuel oil burned, fuel supplier certifications pursuant to ….” Since “pursuant to” is just another way of saying “in accordance with”, the permit states that “The permittee shall record, for fuel oil burned, fuel supplier certifications in accordance with 40 CFR 60.48c(f) or analysis in accordance with 40 CFR 60.46c(d).” The first problem with requirement is that 40 CFR 60.48c(f) includes inapplicable provisions. The second problem is that the permit does not address the recordkeeping described in 40 CFR 60.48c(e)(11). The third problem with the requirement is that 40 CFR 60.46c(d) does not have any recordkeeping provisions. If the simplified and substituted version of the sentence matches the true intention, except that the regulatory citation is inaccurate, “40 CFR 60.46c(d)” should be replaced by “40 CFR 60.48c(e)(2)”.

38. On page 5 of the draft permit, permit condition 5a.i(4), as written, probably does not apply to Emission Points 02 and 03. By adding “pursuant to…”, one can argue that the certifications or analyses done as part of requirements for Emission Points 02 and 03 are not addressed. To explain further, 40 CFR 60 Subpart Dc only applies to Emission Point 04. At a minimum, permit condition 5a.i(4) should be revised to read “Fuel supplier certifications and analyses described in permit conditions 4b and 4c.” Better yet, eliminate the need to reference 40 CFR 60 Subpart Dc (except to describe Method 19 fuel sampling and analysis provisions) in order to understand the permit requirements when fixing the permit condition.

39. On page 6 of the draft permit, permit condition 5b does not appear to have incorporated all applicable requirements. 40 CFR 60.48c(i), 40 CFR 63.11225(d), and 40 CFR 630.10(b) have recordkeeping provisions. While streamlining of multiple requirements is allowed but must incorporated all requirements. The Council recommends condition 5b be rewritten in this manner.

"b. To comply with all applicable record retention requirements, including the requirements of 40 CFR 60.48c(i), 40 CFR 63.11225(d), and 40 CFR 63.10(b),
i. records must be in a form suitable and readily available for expeditious review,
ii. the permittee shall retain records in accordance with condition 2 of permit Section F, and
iii. the permittee shall maintain the most recent 2 years of information on-site."

40. On page 6 of the draft permit, permit condition 5c describes a requirement with an “as applicable” qualifier. Use of “as applicable” does not accomplish intended goals of the Title V program. Exemplary of this is Permit condition 5c, which requires recordkeeping in accordance with 40 CFR 63.11225(c). As I looked at 40 CFR 63.11225(c), the first question I found myself asking was “What parts of 40 CFR 63.11225(c)(2)(ii) are applicable?”. I think that the boilers are using natural gas, fuel oil #2, and fuel oil #4 but some information for the boilers has been identified as confidential. As a result, it is uncertain if only the first sentence of 40 CFR 63.11225(c)(2)(ii) is applicable. By using “as applicable”, it is hard to determine exactly what regulatory requirements apply to the PMC boilers. The use of “as applicable” could create a compliance loophole.

41. Recordkeeping requirements are on pages 5 and 6 of the draft permit. However, it appears that a recordkeeping requirement has been omitted. Even in the absence of reporting, it appears that 40 CFR 63.11223(b)(6) is an applicable recordkeeping requirement that has not been included. It appears that an additional recordkeeping requirement should be added to page 6 of the permit.

In sum, it appears that the draft permit will require some significant changes. In accordance with 401 KAR 52:100 Section 10(5)(b), the public should be given another opportunity to view and comment on this permit once these changes and clarifications are addressed. The Council recommends withdrawal of the draft permit with a new draft permit can be public noticed and made available for public review after rewriting the permit.

Thank you in advance for your consideration of these concerns.

Cordially,

/s/

Tom FitzGerald
Director

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