Posted: June 16, 2011

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Wednesday, June 15, 2011

Dr. Robert Powell, Chair
Metro Louisville Air Pollution Control District
850 Barret Avenue
Louisville, Kentucky 40204

Re: Amendments to STAR Program Regulations
1.02v12, 5.00v1, 5.01v7, 5.11v4, 5.12v4, 5.20v3, 5.21v6, and 5.22v3

Dear Dr. Powell and Board Members:

My comments are presented on behalf of the Kentucky Resources Council, Inc., a nonprofit environmental advocacy organization providing legal and technical assistance without charge to low-income individuals and community groups on a range of environmental and energy-related issues. KRC?s membership includes individuals who are directly affected by the emissions of air toxics in the Metro Louisville airshed, and who have a direct and significant interest in the full implementation of the STAR program.

KRC appreciates the efforts of this Board and the staff to administer and implement a program that has been identified by the General Accounting Office as a model program addressing air toxics and proposing a combination of technology- and risk-based strategies to reduce emissions of and exposure to airborne hazardous compounds.

As we look to the review of proposed amendments to the STAR program, we are mindful both that in the implementation of any regulatory program, there are changes that will be made along the way that reduce regulatory burdens where there is no commensurate health benefit, and that there is no inherent right on the part of any industry or commercial facility to utilize the public’s air to disperse and dispose of waste emissions.

KRC has reviewed the proposed regulations, and has provided comments on the proposed changes, many of which have been incorporated into the regulation before you. KRC appreciates those revisions, and incorporates here the comments previously submitted. Respectfully, we ask the Board to direct that further changes be made on the points I will outline now:

Regulation 5.01 General Provisions (Standards for Toxic Air Contaminants and Hazardous Air Pollutants)

KRC is concerned that the revision to the regulation deletes the general duty to control hazardous air pollutants as well as toxic air contaminants. KRC suggests reinstating the duty with respect to HAPs as well:

"The owner or operator of a process or process equipment from which a toxic air contaminant or hazardous air pollutant is or may be emitted shall provide the utmost care and consideration to prevent the potential harmful effects of the emissions resulting from the process or process equipment. A person shall not allow any process or process equipment to emit a toxic air contaminant or hazardous air pollutant in a quantity or duration as to be harmful to the health and welfare of humans, animals, and plants."

The APCD has acknowledged that the reach of this general duty is intended to be coterminous with the general duty provision of 401 KAR 63:020, and in response to informal comments, argued that:

“A HAP is defined in Regulation 1.02 as “any air pollutant listed in Regulation 5.14 Hazardous Air Pollutants and Source Categories pursuant to the Act §112(b).” HAPs are a subset of TACs, which are defined in proposed Regulation 5.00 as “any air contaminant for which there is no national ambient air quality standard and that is, or may become, harmful to public health or the environment when present in sufficient quantities and duration in the ambient air.” As a result, the general duty continues to apply to HAPs.”

Respectfully, it is not at all clear that HAPs are a subset of TACs, since they are neither referenced in the definition specifically, nor is the definition of HAPs in Section 1.02 incorporated into new definitional section for the STAR program. In order to avoid any ambiguity in the coverage of the program, KRC recommends that the above-proposed revision reinstating specific reference to HAPs be incorporated into the final regulation, since TACs are defined as substances that because of duration and quantity may become harmful, while HAPs were defined as substances which because of duration or quantity could become so.

Regulation 5.20 Methodology for Determining the Benchmark Ambient Concentration of a Toxic Air Contaminant

KRC is very concerned with the open-ended language of Section 2.3, which allows this Board to propose, through a rulemaking, that “[n]otwithstanding any provision of section 2.1, that a TAC is not a carcinogen for the purposes of determining the BACc.” Respectfully, this Board does not have the expertise nor resources to gainsay determinations by the IARC, ATSDR, or other identified sources, as to the carcinogenicity of the over 70,000 chemicals on the market. If the Board desires to maintain such an authority, it must be bounded by some objective standards for delisting compounds that have been identified by those sources as being carcinogenic.

Regulation 5.21 Environmental Acceptability for Toxic Air Contaminants

KRC believes that the exemption of emissions of carcinogens in proposed 2.1.1 and 2.5 as “de minimis” should be reevaluated in light of the acknowledgment within the scientific community that there is no known “safe” exposure level for carcinogens. The staff declined to do so, and I would again recommend that the Board direct a reevaluation of the characterization of emissions of any carcinogen as being of no consequence.

KRC recommended that the use of “or” in Section 3.1 be changed to “and” in order to clarify that a stationary source must conform to both sets of goals rather than one or the other. The staff appears to have misunderstood the comments, which was intended only to assure that the applicant be required to demonstrate compliance with both the applicable individual and cumulative risk levels.

New Section 4 allows “environmental acceptability” to be demonstrated using an emission standard, uncontrolled potential to emit, and a list of “alternative measures” including actual emissions, limited emissions, controlled PTE and throughput or production rate. KRC sought clarification as to how these various measures must be used to make the demonstration.

“Environmental acceptability” is defined as an ambient concentration (including an averaging time frame) for individual and multiple TACs that are less than or equal to the EA goals. It was unclear how the District intended for the various alternative measures to be utilized by the applicant in order to make the environmental acceptability demonstration, since, without more, there is no direct correlation between some of the measures and the concentration of toxic air emissions in the ambient air. KRC had suggested that if the District was proposing that environmental acceptability, once demonstrated using actual emissions data and proper modeling, could be incorporated into the permit as an enforceable standard through the use of one of those measures, that should be clarified.

KRC could find no response by the staff to this comment in the Response To Comment document.

KRC had questioned the basis for removing the current requirements that construction permits for new or modified processes and process equipment, and operating permits for existing P/PE, demonstrate compliance with EA goals for Category 3 and 4 TACs or, with approval from the District, instead provide a demonstration of compliance with the general duty obligation of Section 5.01. As proposed in the current draft regulation, the applicant could elect to either provide a demonstration of compliance with the EA goals or with the general duty under 5.01. KRC appreciates the inclusion of an opportunity for public comment on any proposal to use the general duty clause, but remains of the belief that opening the door to wider avoidance of making the EA demonstration will increase agency workload rather than lessen it.

Section 5.01 provides a general duty on an “owner or operator of a process or process equipment from which a toxic air contaminant is or may be emitted” to “provide the utmost care and consideration to prevent the potential harmful effects of the emissions resulting from the process or process equipment.” In addition to the utmost care and consideration standard, the duty includes a prohibitory duty: “A person shall not allow any process or process equipment to emit a toxic air contaminant in a quantity or duration as to be harmful to the health and welfare of humans, animals, and plants.”

The STAR program was developed to give more specific meaning and substance to these duties, by translating the narrative standards of “no harm” and “utmost care” into a blended risk and technology-based program that is now nationally-recognized. Allowing a P/PE to avoid having to make the EA demonstration for Category 3 and 4 TACs by making a “demonstration” under 5.01, could potentially result in more rather than less workload for both the source and the District, since there is no identified or approved generalized methodology under Section 5.01. As elsewhere noted by the District, 5.01 acts as a backstop for those instances where a contaminant is not covered under the STAR or other programs, or where despite application of the regulations to a contaminant, the particular circumstances warrant additional controls on the duration or quantity of toxic emissions. KRC recommends retaining the existing language requiring agency approval prior to use of an alternative demonstration of compliance under 5.01, or simply eliminating the option.

KRC requests that the Board direct the staff to revisit the justification for the factors in Section 3.6. KRC continues to object to the use of multipliers for carcinogenic and noncarcinogenic risks for industrial property and public roadways, and question the scientific bases for the multipliers. The use of different exposure assumptions on and off the facility property to lower emission control obligations is inappropriate as a matter of public policy, since the cumulative exposure to an individual who works at a facility emitting TACs and lives in a surrounding residential area may exceed the assumed levels and durations of exposure. Allowing a source to utilize discounting factors on the workplace, roadways and other industrial properties fails to fully protect such workers while in the workplace, and the motoring public who may traverse local roads and live in adjacent residential areas. KRC recommends elimination of the adjustment factors.

Regulation 5.22 Procedures for Determining the Maximum Ambient Concentration of a Toxic Air Contaminant

It is unclear in Section 1.2 both what length of time should be used to determine the “average emission rate” for intermittent emissions, and, perhaps more fundamentally, why the average rate of such emissions is appropriate for use in determining the maximum ambient concentration. It would seem that allowing the averaging of actual emissions would yield a measurement that is potentially significantly lower than the maximum ambient concentration, particularly where if the source is allowed to include periods where the emissions rate is zero due to the intermittent nature of the release.

The staff response was that:

"any measure that is used to demonstrate the environmental acceptability of an emission, including intermittent emissions, is established as a new emission standard and incorporated into the permit for the process or process equipment. This is true whether based on potential or actual emissions."

Respectfully, that response doesn’t answer our concern with allowing averaging of emissions masking risks posed by maximum ambient concentrations.

Thanks in advance for your consideration of these comments.

Cordially,

Tom FitzGerald
Director