State Withdraws Weak Air Toxics Regulations

The regulations had been criticized both by regulated industries and environmental organizations. KRC had recommended withdrawal of the regulatory proposal because it was underprotective of public health and the environment in many areas, including:

• Exemption of those sources that are subject to EPA MACT standards from regulation despite elevated residual health and environmental risks;
• Elimination of 401 KAR 63:020 and replacement with a program that did not address nor protect against harmful effects on plants, animals, or the environment, and which also shifted the burden from the source to the agency by requiring that the Cabinet “have information” that the source’s air toxics emissions may result in excess risk before it could take action to require further controls.
• The lack of constraints on Cabinet discretion to accept alternative methodologies, models, and values that were neither EPA-approved nor subject to rigorous peer-review;
• The use of a formaldehyde exposure level that is less protective than that contained in EPA’s IRIS database;
• Lack of attention to additive risk of exposure to multiple carcinogens from the same or multiple sources;
• Lack of public input opportunities at all meaningful points in the regulatory process;
• A flawed “safety-net” program that shifted the burden to the agency to demonstrate harm before acting rather than on the source to demonstrate an absence of harm in proposed emissions;

and other technical and policy concerns.

The final regulations that were filed with the Legislative Research Commission both failed to respond adequately to KRC's concerns and failed to make meaningful improvements, and actually further weakened the proposed program by allowing, as a defense to the application of controls through the safety net, consideration of EPA's residual risk standards. EPA residual risk evaluations for coke oven emissions allow risk levels 300 times the target risks deemed appropriate in Kentucky, and for cancer-causing benzene, 180 times Kentucky's target goals.

KRC supports withdrawal of the regulations, and further expects that the Division for Air Quality will begin again to properly administer the existing air toxics standard of 401 KAR 63:020 a standard that the current administration has failed to properly apply in order to set standards sufficient to protect public health and the environment.