Management System Needed To Track MSD's Air Permit Compliance Obligations

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Jonathan L. Trout, Secretary-Treasurer
Metro Air Pollution Control Board
850 Barrett Avenue
Louisville, KY 40204-1745

Re: Agreed Board Order No. 06-05, Incident No. 04162

Dear Mr. Trout:

I am writing to express KRC's concerns regarding the disposition of Violation 01774, issued June 2, 2006 to the Metropolitan Sewer District. While I understand that, because this letter is being sent after the close of the public comment period, it will not be considered by the Air Pollution Control District Board at their next meeting in determining whether to accept the recommendation of District staff concerning approval of Agreed Board Order 06-05, I would request that this letter be made a part of the file regarding that violation and Incident 04162.

The essence of administrative enforcement is the punishment for past actions that constitute violations of the standards incorporated into regulations for which there is any element of intent or neglect, and the imposition of measures sufficient to detect and prevent recurrence of such behavior. In the case of Incident 041262, KRC believes that Agreed Board Order 06-05 falls far short of meeting those objectives.

Initially, it should be recognized that the violations that led to the subject Agreed Board Order (AO) were not trivial or insubstantial. For example, the failure to conduct a stack test to establish an operating temperature for the fume incinerator, as required by Permit No. 299-01, may have resulted in routine release of emissions created by incomplete combustion. Coupled with the failure over nine semi-annual periods to test those stack emissions for SO2, the public has been deprived of the assurances that the unit has been properly operated.

Likewise, the serial failures to test the caustic scrubber influent for several toxic air pollutants for ten quarters reflects a systemic failure of the agency to track and monitor its compliance with permit conditions, and likewise raises a question of how well the District tracks permit conditions for monitoring and stack testing that are imposed on permittees. Imposition of monitoring and testing conditions, which provide for practical enforceability of permit limits and establish measurable operating parameters consistent with proper performance, mean little if compliance with them is not timely demanded.

These serial violations, which make impossible a determination of whether additional pollution and risk to public and occupational health have been created, were wholly preventable. Neglect over several reporting periods of basic permitting obligations is inexcusable.

The Agreed Order addresses the specific past violations by requiring post-hoc testing and imposing a modest fine, but fails to obligate the permittee to undertake measures to address what appear to be systemic management failures that allowed the significant noncompliances to exist over such a lengthy period of time without detection or correction. A public agency charged with enforcing local, state and federal environmental regulations should be a model of compliance, and any such entity holding multiple permits covering complex operations must have an effective environmental management system (EMS) to prevent such basic oversights, unnecessary pollution and avoidable damage to equipment.

Fines levied against a public agency, particularly where they are disproportionately small relative to the significance of the noncompliance, do not effectively deter the agency’s institutional behavior, since they are passed along to the consumers who exert no direct control over the actions of either the Board or staff of the agency. KRC believes that the APCD should have included in the Agreed Order the following additional requirements:

1. A system-wide independent audit of MSD’s compliance with each of its air pollution permits;

2. Adoption by MSD of a comprehensive EMS—based on the structure of any one of the appropriate nationally-recognized programs— for all facilities at which it holds air permits; and

3. Periodic reporting of the results of both above efforts to APCD and the public.

Thank you in advance for your inclusion of this letter in the Incident file.


Tom FitzGerald

cc: Beverly Wheatley, Chair, MSD
Bud Schardein, Executive Director, MSD

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By Kentucky Resources Council on 10/02/2006 5:32 PM
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