Ukeily comments on the Proposed Approval of the Cincinnati, Ohio 1997 PM2.5 Annual Standard Redesignation

From: "rukeiley" rukeiley@igc.org To: Douglas Aburano/R5/USEPA/US@EPA Date: 10/19/2011 12:57 PM Subject: adverse comments on No. EPA-R05-OAR-2011-0106 (Indiana) or EPA-R05-OAR- 2011-0017 (Ohio) Dear Mr. Aburano: I am writing to comment on EPA’s proposal to re-designate the Ohio and Indiana portion of the Cincinnati 1997 PM2.5 NAAQS nonattainment area. EPA cannot approve this proposal for the following reasons: 1) EPA has failed to conduct an adequate analysis under Clean Air Act Section 110(l) on what effect redesignation will have on the 2006 24 hour PM2.5 NAAQS, the 1-hour NOx NAAQS, the 1-hour SO2 NAAQS and the 2008 75 parts per billion ozone NAAQS. 2) EPA has not established that any of the emission reductions did not come from the NOx SIP Call, CAIR and CSAPR. Emission reductions pursuant to these programs are not permanent and enforceable because these programs are cap and trade programs. Any source which reduced its actual emissions pursuant to one of these programs could at any time in the future chose to increase their emissions by purchasing emission credits. This problem is worsened by EPA’s recent proposal to all increased trading under CSAPR until 2014. 3) Ohio and Indiana do not have fully approved adequate SIPs. In particular: The Ohio SIP contains general provisions governing malfunctions and scheduled maintenance. Ohio Admin. Code 3745-15-06, available at http://yosemite.epa.gov/r5/r5ard.nsf/SIPs%20View%20By%20State%20Main%20View! OpenVi ew&Start=1&Count=30&Expand=5.5.6#5.5.6. Generally, air pollution control equipment must be kept in operation whenever the source is operating. Id. 3745-15-06(A)(2). However, “[t]he director shall authorize the shutdown of air pollution control equipment if, in his judgment, the situation justifies continued operation of the sources.” Id. 3745-15-06(A)(3). The malfunction provision contains an express enforcement discretion approach to excess emissions, stating that “[t]he director shall take appropriate action …” under certain listed circumstances. Id. 3745-15-06(C). The SIP also contains several source category and pollutant specific exemptions. The regulations limiting emissions from portland cement kilns contain an automatic exemption during periods of SSM. Id. 3745-14-11(D). There are also exemptions from the visible particulate matter limits during malfunctions. Id. 3745-17-07(A)(3)(c); see also id. 3745-17-07 (B)(11)(f) (similar exemption for fugitive dust). The SIP contains exemptions for HMIWI during startup, shutdown and malfunction. Id. 3745-75-02(E), (J), 3745-75-03(I), 3745-75-04(K), (L). Foregoing provisions available at http://yosemite.epa.gov/r5/r5ard.nsf/SIPs%20View%20By% 20State%20Main%20View!OpenVi ew&Start=1&Count=30&Collapse=5.5#5.5. Analysis The effect of the director’s authorization of scheduled maintenance under rule 3745- 15-06(A)(3) is not clear. One plausible interpretation of the rule would excuse any excess emissions during the time that the director had authorized operation without air pollution control equipment. This interpretation is contrary to the enforcement scheme of the Act because it allows a decision by the state to preclude EPA and citizen enforcement. 1999 Memorandum at 3; Approval and Disapproval and Promulgation of Colorado Affirmative Defense Provisions for Startup and Shutdown, 71 Fed. Reg. 8958, 8959-60 (Feb. 22, 2006). In addition, the director’s decision to authorize shutdown of air pollution control equipment during scheduled maintenance is inconsistent with EPA policy, which considers excess emissions during scheduled maintenance violations unless “a source can demonstrate that such emissions could [not] have been avoided through better scheduling for maintenance or through better operation and maintenance practices.” 1983 Memorandum, Attachment at 3. The Ohio regulation does not have similar considerations. The exemptions of Ohio Admin. Code 3745-14-11(D), 3745-17-07(A)(3)(c), 3745-17-07(B)(11) (f), 3745-75-02(E), (J), 3745-75-03(I) and 3745-75-04(K), (L) violate the fundamental requirement that all excess emissions be considered violations and interfere with EPA and citizen enforcement. Remedy Ohio should clarify that the authorization to shut down air pollution control equipment in Ohio Admin. Code 3745-15-06(A)(3) does not exempt the source from compliance with emission limits and standards and further amend the rule to include the conditions on excess emissions during scheduled maintenance in the 1983 Memorandum at 3. The exemptions of Ohio Admin. Code 3745-14-11(D), 3745-17-07(A)(3)(c), 3745-17-07(B) (11)(f), 3745-75-02(E), (J), 3745-75-03(I) and 3745-75-04(K), (L) should be removed entirely. SIP Provisions The Indiana SIP provides an exemption for malfunctions: Emissions temporarily exceeding the standards which are due to malfunctions of facilities or emission control equipment shall not be considered a violation of the rules provided the source demonstrates that: (1) All reasonable measures were taken to correct, as expeditiously as practicable, the conditions causing the emissions to exceed the allowable limits, including the use of off-shift and over-time labor, if necessary. (2) All possible steps were taken to minimize the impact of the excessive emissions on ambient air quality which may include but not be limited to curtailment of operation and/or shutdown of the facility. (3) Malfunctions have not exceeded five percent (5%), as a guideline, of the normal operational time of the facility. (4) The malfunction is not due to the negligence of the operator. 326 Ind. Admin. Code 1-6-4(a) (emphasis added), available at http://yosemite.epa.gov/r5/r5ard.nsf/977585e33633852b862575750057311a/beee251aa8d85a dc8 625756e007ae14f!OpenDocument. The Indiana SIP contains several other pollutant and source category specific SSM provisions. Id. 5-1-3 (alternative opacity limits during startup, shutdown, when removing ashes or blowing tubes); id. 10-3-1 (exempting specific boilers from compliance during SSM). Available at http://yosemite.epa.gov/r5/r5ard.nsf/SIPs%20View%20By%20State%20Main% 20View!OpenVi ew&Start=1&Count=30&Expand=2#2. Sierra Club SSM Petition to EPA Page 37 of 80 Analysis The Indiana SSM provision is inconsistent with the CAA and EPA policy because the provision states that excess emissions are not violations, contrary to the fundamental requirement that all excess emissions be considered violations. 1982 Memorandum at 1; 1999 Memorandum at 1 & Attachment at 1-2. In any case, the regulation is ambiguous because it lacks any procedural specifications. Depending on to whom the demonstration is made, the regulation could be interpreted as either a qualified exemption or an affirmative defense. One interpretation of this section is that the source must make a showing to the State, which would then decide to consider the excess emissions not a violation. Indiana’s SSM provision seems to confuse an enforcement discretion approach with the affirmative defense approach. See , e.g. , Approval and Disapproval and Promulgation of Colorado Affirmative Defense Provisions for Startup and Shutdown, 71 Fed. Reg. 8958, 8960 n.3 (Feb. 22, 2006). The provision is framed in terms susceptible to interpretation as an affirmative defense, but uses the criteria similar to those that are supposed to guide a state’s enforcement discretion. Compare 326 Ind. Admin. Code 1-6-4(a) with 1982 Memorandum, Attachment at 2. Regardless of the original intent, the Indiana SSM provision is fatally ambiguous. It could be interpreted to preclude EPA and citizen enforcement and shield sources from injunctive relief. Remedy Indiana should remove 326 Ind. Admin. Code 1-6-4 from its SIP. Alternatively, if the provision is to be retained, it must be revised to clearly comply with the CAA and EPA guidance. The provision must stipulate that all excess emissions are violations and preserve the authority of EPA and citizens to enforce the SIP standards and limitations. Until these problems are addressed, any emission reductions are not due to “permanent and enforceable reductions in emissions resulting from implementation of applicable implementation plan and Federal air pollutant control regulations and other permanent and enforceable reductions;” and the state has not met “all requirements applicable to the area under section 7410 of this title and part D of this subchapter.” CAA 107(d)(3)(E). Furthermore, the maintenance plan is not approvable until these problems are fixed. Respectfully submitted, Robert Ukeiley Law Office of Robert Ukeiley 435R Chestnut Street, Ste. 1 Berea, KY 40403 (859) 986-5402