In its place, and fully fifteen months after the unlawful termination of the program, EPA proposes to approve a SIP revision that patently and transparently fails to satisfy the applicable requirements of the Clean Air Act, including Section 110(l). The EPA cannot lawfully approve the SIP revision for several independent and adequate reasons. First, until the District has developed and submitted the compliance strategy for the 8-hour ozone standard and demonstrated that the more robust and stringent standard can be met utilizing other measures and without the I/M program, the agency cannot rationally find that the elimination of the measure will not interfere with attainment and maintenance of the 8-hour standard. The same is equally true for the Districts current noncompliance with the fine particulate standard, since the I/M program also contributed to reductions in the emissions of fine particulates.
Additionally, even assuming arguendo that the elimination of a demonstrated and proven strategy for moderating emissions of ozone precursors from mobile sources could be demonstrated not to interfere with attainment of the more rigorous ozone and PM standards, the LMAPCD has failed to provide real, additional, measurable and enforceable reductions to offset those lost due to the VET program termination, and as a result approximately 2 tons each of VOCs and NOx will be present in the summer air each day than would have been present had the I/M program been continued. The LMAPCD cannot utilize the NOx credits from the downward adjustment of the permit limits for the Kosmos Cement Company (CEMEX) facility. According to discussions with that company, the modifications were made to the facility in order to address NOx spikes that were occurring. The reductions would have occurred regardless of whether they were memorialized in the Board Order and regardless of the termination of the vehicle testing program, and thus are properly considered part of the background conditions rather than as additional reductions that would offset those lost to the VET program termination. The claiming of credit for those reductions, and lowering of the former permit limits (which after the controls were upgraded would never have been approached by the facility even at full production) is an exercise in Enron-style accounting. The people of this community, and in particular the 100,000 or more people who suffer from respiratory diseases that the District has previously acknowledged would suffer from the termination of the VET program, deserve better than to have the District claim credits for reductions that would have occurred anyway, and phantom emissions reductions. They deserve real, measurable, additional reductions of ozone precursors to offset those additional tons of ozone precursors that will be in the urban airshed each summer day due to the unlawful actions of the District. By this letter, and for the reasons stated herein, KRC respectfully requests that EPA Region IV reject the proposed revision unless and until the 8-hour and fine particulate strategies are submitted demonstrating non-interference, and until a plan for real, additional, compensating reductions is submitted.
Specific comments follow.
1. The time frame in which the reductions must be viewed as contemporaneous for purposes of substituting other measures in a maintenance plan, must be the date of lawful cessation of the I/M Program on approval by EPA.
As the agency is well aware, unless and until the Environmental Protection Agency approves an amendment to the State Implementation Plan to remove the vehicle testing program as an approved pollution reduction measure, the approved SIP, including the vehicle testing program, must under law continue to be maintained and enforced as a matter of federal law. Sweat v. Hull, 200 F.Supp. 2d 1162 (D. Ariz. 2001); Clean Air Council v. Mallory, 226 F.Supp.2d 705 (E.D. Pa. 2002); Kentucky Resources Council v. US EPA, 304 F.Supp.2d 920, 930 (WD Ky. 2004).
Had the LMAPCD followed federal law, the I/M program would still be in effect and still be producing the emissions reductions that were lost due to the unlawful termination. For purposes of determining whether the proposed replacement reductions are contemporaneous, which the agency has previously acknowledged is an essential requirement for substitution of one control measure in a maintenance plan for an approved measure, the date of approval of the termination of the existing control measure by EPA, and not the date of unlawful cessation of the program (November 1, 2003) must be utilized. To do otherwise would reward the LMAPCD for its unlawful action and to fail to properly account for the period of time during which those emissions that would have been controlled, have not been due to the illegal action.
Utilizing the appropriate timeframe, the attempted reliance on the reductions achieved by Kosmos due to plant equipment installation, is not contemporaneous. As your agency noted in rejecting the attempted reliance by the Commonwealth of Kentucky on the date of permanent closure of a source at the Newport Steel facility, it is the date of actual achievement of the reductions, not the date that the reductions were memorialized in a letter (or in this case, in a Board Order), that must be used to determine whether the reductions are contemporaneous.
2. Until the LMAPCD Develops Compliance Strategies For the 8-Hour Ozone and Fine Particulate Standards, LMAPCD Cannot Demonstrate and EPA Cannot Rationally Find That Elimination of A Proven Mobile Source Strategy Will Not Interfere With Attainment and Maintenance Within The Meaning of Section 110(l).
In order to amend the current State Implementation Plan (SIP) to eliminate the I/M program as a maintenance control measure, the agency must demonstrate to EPA that the elimination of the measure will be offset by other comparable reductions in emissions resulting in equal or better clean air benefit, as will be discussed below, and also that the elimination of the measure will not interfere with progress towards attainment of the new 8-hour ozone standard, for which the Metro Louisville region has been designated as nonattainment. The amendment fails to satisfy both obligations. The proposed termination of the current I/M program will result in the emission of an additional 2 tons per summer day of volatile organic compounds (VOCs) and 2 tons per summer day (tpsd) of Oxides of Nitrogen (NOx), as well as tons of Carbon Monoxide (CO) per summer day in year 2005, requiring that the measures be identified to compensate for these lost reductions in that year in throughout the maintenance period.
Additionally, Section 110(l) of the Clean Air Act prohibits approval by the Administrator of any SIP revision that would interfere with any applicable requirement concerning attainment and reasonable further progress (as defined in section 7501 of this title), or any other applicable requirement of this chapter. EPA has notified the Commonwealth of Kentucky, in the context of the belated amendment to the Jefferson County ozone SIP, that both the 1-hour ozone standard and the 8-hour ozone standard, and the fine PM standard, are applicable requirements.
Section 110(l) is intended to prevent backsliding in progress towards maintaining or achieving attainment of healthful air quality standards.
If the only applicable standard were the 1-hour ozone standard, in order for alternative reductions to be substituted for those obtained through a control measure in an approved SIP, those substituted reductions would need to be equivalent emissions reductions, both locally and regionally[.] Letter of March 19, 2004 from Beverly Bannister, Director, Air Pesticides and Toxics Management Division, Region IV EPA to Director, Louisville Metro Air Pollution Control District, p. 1. Equivalent reductions must be surplus, quantifiable, enforceable and permanent [,] and the revised set of controls must be shown to result in equivalent or better air quality benefits.
The 8-hour standard for ozone, and the fine particulate standard, both of which are applicable requirements, complicates the required demonstration by the state and complicates approval of elimination of any current control measure by EPA. Since the attainment demonstrations required of nonattainment areas (including Metro Louisville) have not yet been submitted, LMAPCD has not yet identified those additional reductions (if any) that will need to be achieved in order to demonstrate attainment of the more stringent 8-hour standard in the required timeframe.
EPA indicated in a May 11, 2004 letter to the Metro Louisville Air Pollution Control District that a strict interpretation of Section 110(l) would delay any approval of changes to SIP control measures since 110(l) would allow EPA to approve a SIP revision removing a SIP requirement only after determining through development of appropriate demonstrations that it would not interfere with applicable requirements concerning attainment and reasonable further progress. Since that attainment demonstration was not yet made, EPA indicated a belief that such a strict interpretation is [not] necessary or appropriate and that
[p]rior to the time that attainment demonstrations are due for the new standards, EPA believes it is appropriate to interpret 110(l) to allow substituting equivalent emissions reductions for a control measure in the SIP. EPA believes that it would be defensible to interpret the statute as allowing such a substitution, so long as actual emissions in the air are not increased. We believe that this would represent noninterference with the obligation to demonstrate attainment of the new standards in the period prior to submission of the attainment plan. Our Office of General Counsel advises that in order to defend this interpretation, the equivalent reductions would have to represent actual new emissions reductions achieved in a contemporaneous time frame to the time the existing SIP measure is terminated, in order to preserve the status quo level of emissions in the air. Thus, an area could not claim as substitute emissions reductions those reductions that had already occurred and achieved actual reductions in the air at a time not contemporaneous with the termination of the existing SIP control measure.
The May 11, 2004 letter continued, in language that is particularly relevant to the proposed use by Metro Louisville of the reductions achieved by the installation of the new equipment:
Although we cannot give you a firm definition of contemporaneous for this purpose, we believe a rule of reason would apply.
Finally, the May 11, 2004 letter disallowed the use of those control measures that were being installed by sources pursuant to Federal requirements as part of a Federal control measure:
Additionally, a State cannot claim a promulgated Federal control measure for equivalent reductions. These Federal control measures will occur in any event without any state action. Thus, such reductions would not provide equivalent new excess reductions to substitute for termination of an existing State program. Furthermore, without an approved attainment demonstration,it is not known what measures the area needs in order to attain the new NAAQS.
EPA has acknowledged that a strict (or one might say the only plain) reading of Section 110(l) would prohibit approval of a proposed SIP revision to remove a maintenance measure adopted to maintain the 1-hour ozone SIP, until that LMAPCD had undertaken the attainment demonstration for the 8-hour ozone standard and demonstrated that the elimination of the measure would not result in interference with reasonable further progress towards attainment of the standard.
KRC believes this strict interpretation is the only interpretation consistent with the plain language and intent of the Act, and that removal of an approved and implemented control measure controlling both precursors of ozone and particulates, at a time when it is not known what additional reductions will be needed to attain the 8-hour ozone and fine particulates standard in the Jefferson County airshed, is of questionable legality. Until EPA completes the guidance on what constitutes interference (guidance which the May 12, 2004 memo from Tom Helms to Air Program Managers indicated is under development), it is difficult to understand how the EPA could defend an ad-hoc finding of non-interference.
Approval by EPA of the I/M program obligation prior to LMAPCD adopting an attainment strategy for the 8-hour standard is unwise as well. What the District is proposing is to ratify, without offsetting reductions, the elimination from the array of measures available to meet the new standard, an effective control measure, without knowing what additional reductions may be needed and what control measures are available and at what cost.
There are a limited number of available tools for reducing ozone precursors from the affected airshed. Prior to removing the I/M program from the array of available control measures, the attainment demonstration for the new standards should first be developed and the I/M program be shown to be truly surplus to those measures (either in place or to be adopted) needed to meet and maintain the new 8-hour and fine particulate standards.
A plain reading of Section 110(l) requires that the LMAPCD first determine whether the I/M program will be necessary for achievement of the 8-hour ozone standard prior to approval of removal of the measure from the current SIP. The designation of the Metro Louisville region under the 8-hour ozone standard and the fine particulate designation has now occurred. The new standards are applicable requirements under federal law.
3. Even Assuming That The May 11, 2004 Interpretation Is Permissible And Is Not In Violation Of 5 U.S.C. 553 As A Substantive Rule Never Published, The Proposed Substitution of Kosmos Reductions Falls Short Of Providing Equivalent, Surplus, Quantifiable, Permanent And Enforceable Emissions Reductions To Offset The Loss of The I/M Reductions
Assuming, for the sake of argument that the EPA interpretation of Section 110(l) is a permissible one and that in the absence of the attainment demonstration for the 8-hour standard, control measures for the 1-hour ozone maintenance plan can be removed and other reductions substituted without first knowing what will be the compliance strategy for the new applicable standards, the LMAPCD submittal fails to provide equivalent, surplus, quantifiable and enforceable emissions reductions to offset those lost in the event of shutdown of the I/M program.
As mentioned previously, to change an accepted control strategy in the SIP, there must be a demonstration of how air quality will be affected both locally and in applicable downwind area for the applicable criteria pollutants. The proposal must demonstrate that the revised strategy or set of controls will result in equivalent or better air quality benefits. The submission fails to do so:
(A) because the reductions are not contemporaneous, having occurred substantially earlier in time that the date (in the future) of the lawful termination of the I/M obligation if and when the SIP revision is approved (see argument above);
(B) because the District has failed to demonstrate, through appropriate modeling and analysis, that reductions of NOx from tall stack emissions controls would yield the same or better air quality benefit in ozone formation reduction as from ground-level exhaust emissions of both VOCs and NOx;
(C) because the emissions reductions occasioned by the installation of the controls at Kosmos resulted in permanent controls precluding emission at levels contained in the former permit even under full operating conditions, so that the elimination of the increment of allowable emissions from the former, generous permit limits to the actual potential emissions, is a phantom paper reduction rather than a real reduction. The emissions reductions were achieved as a compliance measure by the company and cannot be claimed to be surplus emissions reductions which occurred for the specific purpose of offsetting reductions lost from termination, years later, of the I/M program.
In closing, the proposal to approve the SIP revision is in violation of EPAs obligations under Section 110(l), and EPAs duty to assure that changes in control measures in approve SIP plans are offset by contemporaneous, real, enforceable, offsetting reductions yielding comparable reductions in ozone formation. The legality of eliminating the current I/M program as a control measure is dependent on demonstrations of equivalency in pollution reductions that have not been made and non-interference with achievement of health-based air quality goals through adoption of effective compliance strategies notwithstanding the proposal to remove I/M programs from the array of tools available. The LMAPCD submittal falls short in both regards and cannot lawfully be approved as submitted. Thank you for your consideration of these comments.
Tom FitzGerald Director