March 15, 2004
Metro Louisville Air Pollution Control
District Board
Mr. Jonathan L. Trout, Secretary-Treasurer
850 Barret Ave.
Louisville, KY 40204-1745
RE:
Sierra Club Comments on Four Proposed Board Agreements
Dear Mr. Trout:
What follows are the comments by the
Greater Louisville Group of the Sierra Club (GLSC) on the proposed Board
Agreements with American Synthetic Rubber Company, LLC (ASRC); Rohm and Haas
Company (Rohm and Haas); Zeon Chemicals LP (Zeon); and DuPont Dow Elastomers LLC
(Dupont Dow). The mission of the Sierra
Club includes protection and restoration of the quality of the natural and
human environment. The GLSC consists of
approximately 1,700 members throughout a fifteen-county region, including
Jefferson, Oldham, Bullitt, Shelby, and Trimble Counties.
Our comments are provided below in
relative order of importance, not in the order that they necessarily appear in
any or all agreements. In summary, the
GLSC submits these nine comments on the proposed agreements, with specific
wording changes that follow this summary:
1:
Add additional WHEREAS’ that more fully explain the context of
these agreements.
2:
ASRC’s agreement lacks specific and measurable commitments to
1,3-butadiene
emission reductions. A comprehensive Flare Minimization and
Reduction Study, for which there is industry precedents, should be added.
3:
Add the applicable NESHAPs leak detection and repair regulatory
compliance
citation to the Rohm and Haas
agreement.
4:
Remove the clause in “Effect on Permits” by which the District is
contracting away in
perpetuity its government authority to
incorporate some or all of the agreement
provisions in individual permits without the agreement of the company.
5:
The “Legal Effect of the Agreement” clause regarding prohibitions on
third-party use
of the agreements is vague and could pose inadvertent obligations on the
part of
the District.
6:
The District fails to acknowledge and reserve to itself its right to
enforce the
provisions of the agreements in the
“Reservation of Rights and Legal Remedies” section.
7:
The “Unavoidable Delay” section fails to address company obligations to
re-institute
performance of the agreement once the
delaying event is over and also fails to address company obligations if performance is prevented in its
entirety.
8:
In “Verification and Reporting,” both a registered professional
engineer
and a “responsible official” (as defined
in the District rules) should be required to
certify the quarterly reports required under each agreement.
9:
A comprehensive local air toxics regulatory program is warranted.
______________________________________________________________________
Like any contract, the WHEREAS preamble
in each of the four agreements is important to the public’s understanding of
the scope of and intent behind the terms and conditions of each document. The GLSC submits that the preamble of each
falls far short of providing the overall context for the West Louisville Air
Toxics Study and the reason why each of these voluntary agreements are before
the Board for action—which is specifically that a human health risk
assessment concluded that unacceptable human health risks exist from emissions
of 1,3-butadiene and chloroprene, among other air toxics. Therefore, the GLSC proposes the following
additions to the preamble, identified below in underlined, bolded
text, for inclusion in each agreement (as tailored to each company):
WHEREAS, the Louisville Metro Air Pollution Control
District (the District), the United States Environmental Protection Agency (EPA),
the Commonwealth of Kentucky (Kentucky), and representatives of
industry have worked with the West Jefferson County Community Task Force to
monitor air quality in the West Louisville area through the West Louisville Air
Toxics Study (WLATS) and to evaluate the risk to human health from
exposure to airborne concentrations of air toxics through a WLATS Risk
Assessment (Oct. 2003); and
WHEREAS, 1,3-butadiene is one of the chemicals
evaluated in the WLATS and WLATS Risk Assessment; and
WHEREAS, the WLATS Risk Assessment concluded that
airborne concentrations of 1,3-butadiene exceeded a 1 x10-6 lifetime cancer
risk threshold of the EPA and Kentucky ; and
WHEREAS, the WLATS Risk Management Plan, Part I
(April 2003), identified options, including voluntary measures, for reducing
risks to human health to below target levels; and
WHEREAS, (name of company) reported 1,3-butadiene
emissions of (insert lbs.) in 2000; and
WHEREAS, in conjunction with these efforts, (name
of company) has agreed to implement voluntary measures pertaining to emissions
of 1,3-butadiene at its Louisville facility;
[NOW, THEREFORE…not
reproduced here.]
________________________________________________________________________
The majority of the GLSC’s comments on
company-specific agreement provisions apply to ASRC. This is because ASRC is the largest stationary source emitter
of 1,3-butadiene in the Metro area, but also because of our concerns and
questions about its Title V permit application and draft Title V permit upon
which we submitted extensive comments to the District on January 9, 2001. We intend to review and comment on the next
draft ASRC Title V permit when it is issued.
By and large, ASRC’s proposed projects are
not likely to result in specific, measurable, and achievable emission
reductions of 1,3-butadiene. The
proposed projects demonstrate scant thought or effort toward meaningful,
demonstrable reductions of emissions and unacceptable human health risks in
Louisville. The GLSC submits that the
plant should commit to a Flare Minimization and Reduction Study
in this agreement, as outlined below.
The largest source of 1,3-butadiene
emissions at ASRC’s Louisville facility is the plant’s flare, which ASRC
commits to “review and study” for possible efficiency improvements, though not
necessarily implement any improvements.
This provision inherently assumes that the flare should continue to
be the primary air pollution control device for the majority of the plant’s
routine process vent sources of butadiene emissions, a point which the GLSC
questions. We submit that a true
commitment to the community to reduce emissions of this carcinogenic pollutant
by ASRC—the region’s largest emitter of 1,3-butadiene—would be to commit to
undertaking a comprehensive Flare Minimization and Reduction Study that
would evaluate all of the following:
·
Flare efficiency
improvements;
· Reduction and/or elimination of routine process vent streams to
the flare; and
·
Minimization of emergency,
maintenance, or upset flaring.
A Flare Minimization and Reduction
Study has been accomplished at other industry facilities in response to
community concerns. Attachment A to
these comments is a detailed Nov. 2000 report on a Source Reduction Project
undertaken by Equistar and Lyondell in Channelview, Texas to respond to
community concerns about 1,3-butadiene emissions, among other air toxics. In response to concerns about routine and
non-routine flaring of air toxics, these two companies implemented a program to
remove some routine process vent streams to the flare (by recycling streams
internally; reducing the butadiene concentration in sources that are flared;
and installing more effective butadiene destruction devices at the process
source, such as catalytic converters, rather than flaring) as well as upset or
maintenance flaring (by minimizing the generation of off-spec product that was
flared; using instrumented procedures during unit shutdowns).
In addition to the inadequacy of the
provisions relating to the flare, the rest of the “projects” in ASRC’s
agreement appear meaningless. Subsection
b., relating to modification of two of the plant’s production lines, entirely
depends on market conditions to achieve possible emission reductions—only if
there is possibly a demand for styrene-butadiene rubber (SBR). Subsection d. is almost laughable: ASRC will visit and consult with its
competitors in the U.S. and around the world, presumably with few concerns
about protecting proprietary or confidential business information on anyone’s
part, to determine better ways to use or destroy 1,3-butadiene.
________________________________________________________________________
Rohm and Haas has been subject to the leak
detection and repair (LDAR) requirements of the hazardous organics
NESHAPs. In its proposed agreement, the
company’s voluntary project is to implement a different compliance option for
LDAR than it has followed in the past.
The commitment would be to actually monitor fugitive emissions from
equipment in hazardous organics service rather than pressure test affected
equipment, its past practice. The GLSC
proposes that the agreement incorporate a regulatory reference to instrument
monitoring for LDAR compliance and to also strike the language that allows the
District to approve returning to pressure testing in the future. The GLSC’s proposed revisions to the
“Project Description” section in the Rohm and Haas agreement are identified
below in bolded strikethroughs and underlined, bolded text:
“Project
Description
Rohm and Haas commits to implement an
enhanced Leak Detection and Repair (LDAR) program for its 1,3-butadiene
operations. As of the date of approval
of this Agreement by the District and the Board, Rohm and Haas commits to
discontinue use of a pressure test under 40 CFR 63.178(b) and to use the
LDAR monitoring and response provisions of 40 CFR 63.178(c) instead. as
an alternative to an instrument program for LDAR for 1,3-butadiene, unless use
of a pressure test is approved in the future by the District. “
__________________________________________________________________
Comment 4: Effect on Permits
(applicable to all four)
The GLSC strongly objects to the clause in
each agreement in Section 3. or Section 4. (Effect on Permits) by which the
District impermissibly contracts away its governmental authority in perpetuity
to impose all or some of the provisions of the agreement as permit conditions without
the agreement of the permittee.
Federal and Kentucky law authorizes the District to incorporate
additional or more stringent conditions in permits on its own initiative, or in
response to public comments or comments of the U.S. EPA, as warranted to
protect human health and the environment, regardless of whether the permittee
agrees. The GLSC’s proposed revisions
to the “Effect on Permits” section in each agreement are identified below in bolded
strikethroughs and underlined, bolded text:
“Effect
on Permits
Nothing
in this Agreement affects, limits or waives any permitting requirement
to which (name of company) is subject. , and this Agreement shall not form the
basis of a permit condition unless agreed to by ASRC and the District or
required by federal or state law or District regulations. If any of the measures that (name of
company) has undertaken or will undertake in accordance with this Agreement are
subject to any permit requirement under federal or state law or District
regulations, such measures shall remain subject to such permitting
requirements.”
Each agreement already reserves to the
District under the “Reservation of Rights and Legal Remedies” sections, the
ability to “seek further action” through “other means,” such as local District
regulation; thus, the complete strikethrough of the remainder of the clause
above.
_____________________________________________________________________
Comment 5: Legal Effect of the Agreement (applicable to all four)
Each agreement contains a clause, under
“Legal Effect of the Agreement,” which provides, in part, that:
“…Nothing
in this Agreement shall create or vest in any persons or entities
not
a party to the Agreement any right
to use this Agreement or any statement
contained
herein for any purpose,…(emphasis
added)”
The intent and enforceability of the
emphasized clause are unclear and questionable. For example, what is the effect of the clause on the West
Jefferson County Community Task Force’s inclusion of these agreements under the
“voluntary action” category of its draft WLATS Risk Management Plan Tracking
Table? Does it inadvertently put the
District in the position of being obligated to enforce the clause, even
possibly against the Task Force? It
would be cleaner to strike this entire paragraph from each agreement.
________________________________________________________________________
This section expressly reserves every
right of the District’s to seek further action from each company except for
violations of the agreement! The
GLSC’s proposed revisions to the “Reservation of Rights and Legal Remedies”
section in each agreement are identified below in underlined, bolded text:
“…The District expressly reserves its
right to seek further action through administrative orders or other means at
any time and to take any other action it deems necessary, including the right
to order all necessary remedial measures and assess penalties for proven
violations of applicable laws, regulations, or this Agreement and
(name of company) reserves its defenses thereto….”
________________________________________________________________________
This section would excuse each company’s
failure to perform under the Agreement for “unavoidable delay.” While the GLSC does not conceptually object
to a force majeure section, this “unavoidable delay” section is drafted
too loosely. First, the section
excuses performance not only for unavoidable delay but also when the company is
entirely prevented from performance, though that language is not carried
through the entire section and each company’s corresponding obligations. Importantly, the section does not require
that the company ever re-initiate performance of the agreement when the
“unavoidable delay” is over or that alternative measures for emission reduction
be evaluated if performance of the specific project is entirely prevented. The GLSC’s proposed revisions to the
“Unavoidable Delay” section in each agreement are identified below in bolded
strikethroughs and underlined, bolded text:
“Unavoidable Delay or Prevention of Performance
If (name of
company) performance of its obligations under this Agreement is delayed or
prevented by any event arising from causes beyond (company’s) control,
(company) will inform the District in writing within seven days after it
becomes aware of any such event. The
written notification to the District shall include: (1) the reason for the
delay or prevention of performance;
(2) the anticipated duration; (3) all actions taken to prevent or minimize the delay
or prevention of performance;
and (4) an explanation of why the delay or prevention of performance was unavoidable; (5) the steps (company) will take to ensure
that the performance of its obligations under this Agreement will be
re-instituted as early as practicable after cessation of the event causing the
unavoidable delay; and (6) in the event of prevention of performance, a
schedule for proposing an alternative voluntary project(s) pertaining to
emissions of (name pollutant).”
______________________________________________________________________
Each of the four agreements provides for
quarterly reporting on the progress of implementation of the voluntary measure
or measures. With respect to who
certifies the submitted reports, the GLSC proposes the following revisions
identified below in bolded strikethroughs and underlined, bolded text:
“…The reports shall be certified by a
professional engineer licensed in the Commonwealth of Kentucky or other and responsible
official, as defined by District Reg. 2.16, section 3.5.11, at
the facility.”
The concept of a “responsible official,”
for purposes of the Clean Air Act, is well-established and should not be left
undefined in these voluntary agreements.
Further, it is not unreasonable to ask that both a registered
professional engineer (which does not even need to be “independent,” and could
be an employee of the company) and a “responsible official” certify
implementation of measures designed to reduce demonstrated human health risks
in our community.
_______________________________________________________________________
Comment 9: Need for Comprehensive Local Regulatory Program on Air Toxics
In closing, the insufficiencies in the
agreements, as well as the absence of any demonstrable voluntary effort at
emission reduction for the 16 other pollutants that exceeded target risk
levels, demonstrates the strong need for a local comprehensive air toxic
program.
Sincerely,
Greater
Louisville Group of the Sierra Club
Joan S. Lindop Leslie Barras
Co-Chair Co-Chair
and Conservation Chair
Attachment A: Source Reduction Project, Report on Phase I, Nov. 14, 2000,
Equistar
and Lyondell, Channelview, TX
cc:
Lane Boldman, Chair, Cumberland Chapter of the Sierra Club
Kay Prince, USEPA, Air, Pesticides, and Toxic Substances, Atlanta
Cynthia Peurifoy, USEPA, Office of Environmental Justice, Atlanta
John Lyons, KDAQ
Arnita Gadson, West Jefferson County Community Task Force