KRC has reviewed the proposed regulations, and appreciates the effort that has been made to improve on earlier drafts of the regulations. The current proposal is clearer and less ambiguous than the earlier draft and has been improved in organization. It is apparent that the Cabinet has attempted to respond to comments received, and we do not doubt the good faith that animates the proposed program.
Unfortunately, KRC cannot endorse the proposed regulatory package, because we believe it is underprotective of human health and the environment. KRC believes that there remain a number of fundamental policy issues that would benefit from collaborative dialogue among the stakeholders before being embodied in regulation. For the reasons that I will briefly outline, KRC recommends that the regulatory package be withdrawn and that stakeholder meetings be scheduled in order to more thoroughly explore the policy issues and to achieve, if possible, consensus on the approach, methodologies, and desired outcomes in the regulations. Our concerns, briefly stated, follow. More detailed written comments will be submitted before the July 2 deadline.
Our first concern is the exemption of those sources that are subject to EPA MACT standards. Given that the motivation identified by Secretary Wilcher was that EPA had made very limited progress in the development of regulations to protect the public health from the residual risk posed by ambient levels of hazardous air pollutants after compliance with MACT standards[,] and given that for the few MACT-regulated source categories that have had EPA residual risk analyses, the EPA has tolerated levels of ambient exposure that are substantially higher than what we as a Commonwealth have identified as the appropriate goal, exempting all MACT sources from the regulation largely defeats the purpose of any state-lead air toxics program by removing the largest sources of air toxics from meaningful front-end review. The second concern is related to the first, and that is elimination of 401 KAR 63:020. For many years, that regulation has been the backstop for air pollution control, assuring during both permitting and operation of sources that sources do not emit potentially hazardous matter or toxic substances that may be harmful to the health and welfare of humans, animals, and plants. The elimination of this 28-year regulation leaves a significant gap in protection of public health and the environment.
State law demands that the Cabinet fix standards to prevent and control air pollution. Air pollution is defined as the presence of one or more air contaminants in sufficient quantities and of such characteristics and duration as is or threatens to be injurious to human, plant, or animal life or to property, or which unreasonably interferes with the comfortable enjoyment of life or property[.]
The proposed regulatory package explains the basis for the rules as being establishment of an air toxics program to address threatens to public health and the environment from air toxics substances, yet the standards and analyses in the rules are entirely focused on cancer and non-cancer impacts on humans, and do not address nor protect against harmful effects on plants, animals, or the environment. Elimination of 63:020 makes this package a significant step backwards in environmental protection, and removes also the backstop protection of public health.
The proposed safety net program does not adequately replace 63:020, both because it is limited to case-by-case action based on excess cancer risk and noncancer risk to humans and does not address protection of plant and animal life, but also because the burden is shifted from the source to the agency by requiring that the Cabinet have information that the sources air toxics emissions may result in excess risk. Decades of failed efforts to regulate air toxics under such an approach at the federal level reflects that the burden should not be on the agency, but on the source that is proposing to utilize the publics air for waste dispersal and disposal. The precautionary principle is nowhere more appropriate than when addressing the human and environmental impacts of long-term low-dose exposure to tens of thousands of chemicals and chemical compounds for which toxicological data is limited or non-existent.
There are a number of other areas of concern the lack of constraints on Cabinet discretion to accept alternative models and values, the use of a formaldehyde value that is underprotective of the public and is inconsistent with IRIS and has not been subject to rigorous peer-review, the lack of consideration of additive risk of exposure to multiple carcinogens from the same or multiple sources, the inadequacy of public input opportunities. In the interest of time we will address those concerns in writing.
In conclusion, theres an old adage that if the agency has both the regulated and the intended beneficiaries of regulations upset over a decision, it must be the right one.
Sometimes that is the case. But sometimes, it is simply that the agency proposal has not thoroughly vetted policy issues that need to be resolved in order to make a workable and meaningful program. In this case, KRC believes it is the latter, and we would respectfully urge the agency to step back from the process, withdraw the regulatory package, and engage in a stakeholder process that follows up on the conceptual discussions of the former workgroups by inviting specific comments on improving the proposed package to better incorporate and implement the state mandate of protecting human health and the environment from emissions of air toxics.