KRC?s specific concerns with the proposed Title V permit are these:
1. The permit fails to adequately address and control emissions of mercury in order to assure protection of public health.
As the agency is well aware, emissions of mercury vapors present a real and avoidable health risk. According to the Agency for Toxic Substances and Disease Registry, [t]he nervous system is very sensitive to all forms of mercury. Methylmercury and metallic mercury vapors are more harmful than other forms, because more mercury in these forms reaches the brain. Exposure to high levels of metallic, inorganic, or organic mercury can permanently damage the brain, kidneys, and developing fetus. Effects on brain functioning may result in irritability, shyness, tremors, changes in vision or hearing, and memory problems. Short-term exposure to high levels of metallic mercury vapors may cause effects including lung damage, nausea, vomiting, diarrhea, increases in blood pressure or heart rate, skin rashes, and eye irritation. Very young children are more sensitive to mercury than adults. Mercury in the mother's body passes to the fetus and may accumulate there. It can also pass to a nursing infant through breast milk. . . . Mercury's harmful effects that may be passed from the mother to the fetus include brain damage, mental retardation, incoordination, blindness, seizures, and inability to speak. Children poisoned by mercury may develop problems of their nervous and digestive systems, and kidney damage.
Mercury is, unquestionably a potentially hazardous matter or toxic substance within the meaning of 401 KAR 63:020 in that it is matter that may be harmful to the health and welfare of humans, animals and plants[.]
Against this background, the Title V permit is wanting in several critical respects in the control of mercury emissions, and should be modified in order to provide for improved characterization of risk associated with the plant emissions, and to require better testing and monitoring of actual emissions.
In the absence of directly-applicable emissions limits for this type of mercury emission source, KRC understands that the Cabinet is proposing to incorporate a limit previously established under 401 KAR 63:020 and continued under 63:021. KRC respectfully requests that the agency reevaluate the sufficiency of the limit and conduct stack testing for mercury within 30 days of issuance of the permit.
The proposed mercury limit should be evaluated for sufficiency
(a) by reviewing the most recent health data concerning adverse neurological response to the most sensitive subpopulations;
(b) by requiring that the permittee speciate the mercury emissions in order to determine what percent of the vaporous emissions from the sources are metallic mercury, and what percentage are inorganic salts and whta fraction are organomercurials such as monomethylmercury;
(c) by requiring the permittee to model the fate and transport of those mercury emissions in order to determine whether the existing and proposed mercury emissions are protective enough to avoid constituting potentially hazardous matter or toxic substances in such quantities or duration as to be harmful to the health and welfare of humans, animals and plants; and
(d) by considering in the modeling the most sensitive receptors the historically-black Simmons Elementary School which is located less than 0.4 miles from the stack and within a few hundred years of the plant boundary; the new high school, soccer complex and athletic fields, and a nearby daycare center.
The proposal to set the limits on emission of mercury at the value derived from former 401 KAR 63:022 is unsupportable in science and in law. The former regulation has been acknowledged by the agency to have been grossly inadequate to protect public health, since the limits were derived through application of an arbitrary 1/42 fraction of the Threshold Limit Values (TLVs), and inappropriately credited stack height in determining compliance with the regulation. The TLVs were developed by the ACGIH, who specifically cautioned that the threshold limit values were workplace standards that should not be utilized to establish ambient concentrations.
Rather than utilizing the arbitrary limit grounded in 63:022, since there is no therapeutic level of exposure to mercury, the agency should instead derive and establish as the emissions standard a value equivalent to no additional risk for combined neurological and other hazards associated with mercury, and then require the applicant to install any additional carbon or other filtration or capture equipment necessary to avoid additional risks to the public and environment. Since according to the statement of basis there exist several technologies that are 90-98% efficient, the applicant should be required to justify why two or more of these technologies cannot be employed in tandem to eliminate entirely emissions of mercury.
B. Stack Testing
According to agency files, the last stack test for mercury emissions from the carbon adsorption control device was in late 2000, and there have been no reports of stack testing conducted since that time. The proposed permit required testing only every five years so that, absent changes to the draft permit, the next stack testing will not occur until the end of this permit cycle in 2011. This failure to require contemporaneous, speciated stack testing to support the issuance of this permit, in light of the close proximity of the facility to numerous sensitive receptors where pre-school and school-aged children are located for much of the day, is a glaring error that should be corrected, since the failure to require such testing means that the performance of the adsorption unit will not have been tested for 11 years by the time the permit next requires, and the efficiency of any pollution control device over that span of time will likely decline. Annual testing and speciation of the data should be required.
C. Pollution Control Device Maintenance
The routine maintenance of the carbon media is essential to effective control of the mercury vapors. Under the proposed permit, the permittee is required to maintain and replace the bed annually as per the manufacturers recommendation. This imprecise limit makes difficult a compliance determination by the inspector, and should be replaced with specific enforceable conditions in the permit that state the manufacturers recommendations so that compliance with those recommendations can be readily ascertained and is not subject to later dispute. Additionally, it is unclear what recommendations are intended to be incorporate those written recommendations that accompanied the equipment, or other later recommendations? Incorporating the specific maintenance and other recommendations as binding conditions would eliminate sources of later dispute.
D. Averaging Period for Emissions Limits Should Be Tightened
The permit purports to establish the mercury limit as an hourly limit, yet allows averaging of the calculated emissions over a 12 month period, resulting in the ability of the source to routinely exceed the hourly limit for a several months before the average for the year would be over the limit. Given the persistent, bioaccumulative, toxic nature of mercury emissions, the hourly emissions cap should be established as a maximum never to be exceeded, and any exceedance of the hourly limit for any hour should be deemed a violation.
E. Compliance With Title VI of the Civil Rights Act
Title VI of the Civil Rights Act provides that:
No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.
According to EPAs Interim Guidance on implementation of Title VI, discrimination can occur from policies and practices that are neutral on their face, but have the effect of discriminating. Facially-neutral policies or practices that result in discriminatory effects violate EPA's Title VI regulations unless it is shown that they are justified and that there is no less discriminatory alternative." Title VI, through EPAs guidance, has application to delegated state programs where EPA funds any of the programs or activities of those state agencies, and has direct applicability to the issuance of the Title V permit in this case.
Simmons Elementary School, one of the historic black elementary schools constructed in 1899 and desegregated after the 1954 Supreme Court decision, is located a few hundred yards from the plant boundary. In order to avoid disparate impacts and to assure compliance with both Title VI of the Civil Rights Act and 401 KAR 63:020, after stack testing is conducted within 30 days of issuance of the permit, mercury modeling should be re-run using Simmons Elementary and the nearby day care center, high school and athletic fields as receptors in order to determine the concentration of all species of mercury emissions at each of those points. Additionally, the modeling should be confirmed with appropriate canister testing of those sites to determine the airborne concentration of various mercury compounds for comparison to the stack emissions.
The agency has broad authority, and the applicant a clear duty, to demonstrate compliance with 401 KAR 63:020. In the absence of these additional conditions, the permit fails to meet the requirements of 401 KAR 63:020 and cannot be lawfully issued or defended.
Thank you in advance for your consideration of these matters.