Blue Ridge Environmental Defense League
BREDL Clean Air


BREDL comments before NC EMC on the proposed rule changes under 15A NCAC 2D .0506, 2Q .0306, 2D .1109, and 2Q .0526. (amendments to:  Particulate Emissions, Rules for asphalt plants, Public participation rules, Volatile Organic Compound Rules, Permitting Rules, 112j Case-by-Case MACT Rules and others)

BLUE RIDGE ENVIRONMENTAL DEFENSE LEAGUE ~ PO Box 88 Glendale Springs, North Carolina 28629 ~ Phone (336) 982-2691 ~ Fax (336) 982-2954 ~

August 20, 2002

Environmental Management Commission Public Hearings, Raleigh, NC
Dan Besse, Hearing Officer

Comments of Louis Zeller on the proposed rule changes under

15A NCAC 2D .0506, 2Q .0306, 2D .1109, and 2Q .0526

First Hearing

Particulates from Hot Mix Asphalt Plants 15A NCAC 2D .0506

The proposed rule would alter the method of determining emission limits by limiting particulate emissions to those which "are discharged from any stack or chimney into the atmosphere" (section a). Major components of particulates emissions from asphalt plants, both TSP and PM-10, are not discharged from a stack or chimney but escape from conveyors, silos, trucks, and gravel piles. These emissions are conventionally referred to as "fugitive," a term which is stricken by the proposed rule section (c). Section .0506(c) would further limit the consideration of fugitive emissions in a new "scavenger" dust control system by removing language which states that the operator shall "reduce to a minimum the emission of particulate matter from any point other than the stack outlet" (emphasis added). We oppose the changes in EMC rules which would reduce or eliminate control of air pollutants from any source.

We support the elimination of the 40-percent opacity limit and the requirement of a 20-percent opacity limits for all plants as proposed in .0506(e).

Permits Requiring Public Participation 15A NCAC 2Q .0306

We oppose the proposed rule changes which eliminate whole sections of public participation requirements for state regulation of volatile organic compounds and for federal Clean Air Act Title V permitting. The draft rule strikes out section (a)(5) for the permitting of synthetic minors, i.e., "physical or operational limitation on the capacity of a source…to avoid the applicability of rules in…2Q. 0500" (avoidance of Title V) making them no longer subject to public hearing, public comment, or public notice. Synthetic minors include manufactured wood plants, some electric generation plants, and most asphalt plants.

Also, the proposed rule makes failure by the operator of a facility to adhere to permit requirements for public participation no longer grounds for "(1) enforcement action; (2) permit termination, revocation and re-issuance, or modification; or (3) denial of permit renewal applications."

Second Hearing

Case-by-case MACT 15A NCAC 2D .1109

The proposed rules substitute general source classifications for specific emission definitions which would reduce the Director’s ability to apply MACT to individual emission units or specific groups of emission sources within a facility. The proposed rule would eliminate "emission point" and "emission unit" and add "affected source." Presently, an emission point is "any part or activity of a facility that emits…hazardous air pollutants." An emission unit is one or more emission points "which the Director determines is the appropriate entity for making a MACT determination…." Under the proposed rule these two definitions are eliminated and replaced by "affected source" which is defined as a "collection of equipment, activities, or both within a single contiguous area and under common control that is in a section 112(c) source category…for which the Administrator has failed to promulgate an emission standard by the section 112(j) deadline, and that is addressed by an applicable MACT emission limitation…."

The change would be both more restrictive of the application of MACT and less effective for the application of MACT to a single point source.

What’s more, there is no definition of affected source in 40CFR63 Part B. But Section 63.55 alone refers to "emission unit" and "emission point" a total of ten times. The two terms are vital to the meaning, consequence and implementation of the federal standards applicable to maximum achievable control technologies. The subsequent section of the code of federal regulations states:

63.56 Requirements for case-by-case determination of equivalent emission limitations after promulgation of a subsequent MACT standard. (a) If the Administrator promulgates an emission standard that is applicable to one or more emission units within a major source before the date a permit application under this paragraph is approved, the permit shall contain the promulgated standard rather than the emission limitation determined under 63.52, and the owner or operator shall comply with the promulgated standard by the compliance date in the promulgated standard. [40CFR63.56] (emphasis added)

The term "in the United States" is excised by the draft rule. With regard to average emission limitations for the top 12% performing facilities, does this signify that in the determination of MACT DAQ will include sources in Mexico or limit it to facilities only in North Carolina?

Section (e) of the draft rule for New Facilities removes the requirement that new hazardous air pollutant sources apply MACT "before beginning construction and operation."

We oppose the above changes in EMC rules.

Case-by-case MACT Procedures 15A NCAC 2Q .0526

We oppose the proposed changes in EMC rules which weaken MACT emission limitations with the wording change: at least as stringent as to equivalent to. Moreover, it is redundant to define the 112(j) MACT "equivalent emission limitation" as an emission limitation "equivalent to the MACT standard…."

We plan to submit further remarks before the close of the September 3 comment deadline.

BLUE RIDGE ENVIRONMENTAL DEFENSE LEAGUE ~ PO Box 88 Glendale Springs, North Carolina 28629 ~ Phone (336) 982-2691 ~ Fax (336) 982-2954 ~

September 3, 2002

Dan Besse, Hearing Officer
NC Environmental Management Commission
1641 MSC
Raleigh, NC 27699-1641

Re: Comments on the proposed rule changes under 15A NCAC 2Q .0306, 2D .0521,
and 2D .1109

Dear Mr. Besse:

Thank you for this opportunity to comment on proposed rules changes. As Executive Director of the Blue Ridge Environmental Defense League, I write on behalf of the BREDL Board of Directors and our more than 40 community-based chapters in the western piedmont and eastern North Carolina.

Permits Requiring Public Participation 15A NCAC 2Q .0306

All of BREDL adamantly opposes the elimination of public participation rights under the Clean Air Act for public notification, opportunity to submit written comments, and opportunity to request public hearings for synthetic minors. It is important to understand that synthetic minor designation is an option under the federal Clean Air Act, which broadly guarantees public notification and comment rights. Further, it is vital that the NC EMC understand that synthetic minors are pollution sources which are capable of producing more than 100 tons per year of criteria air pollutants. North Carolina facilities can avoid Title V air permitting as synthetic minors by limiting their production totals, their hours of operation, or by other permit stipulations. By definition, synthetic minors are potentially major pollution sources.

Communities across North Carolina, their elected representatives in the NC General Assembly, their boards of county commissioners, and their town councils have requested public hearings for synthetic minors such as asphalt plants. These elected representatives have spoken at public hearings. Turnout for synthetic minor public hearings have been large. In Boone more than 500 people turned out for a public hearing on a synthetic minor permit. In Rutherford County more than 50 people turned out three days before Christmas for such a hearing.

The public participation from North Carolinians on asphalt plant permits, pollution, and regulation contributed significantly to the US EPA’s revision of the AP-42 asphalt plant emission factors in December 2000. North Carolina residents joined with people from ten other states to limit asphalt plant emissions of benzene, formaldehyde, cadmium, and arsenic. At public hearings in North Carolina on synthetic minor asphalt plant permits, the issue of toxic pollution through fugitive emission was presented to hearing officers. The record of these public comments influenced national decision making on controls of fugitive emissions from these plants.

North Carolina’s permit engineers and the overworked NC DAQ staff have no time to conduct adequate investigations of the track records of permit applicants. At public hearings and in written comments, potential facility neighbors investigated and reported on Maymead Materials illegal use of contaminated oil as a fuel source at their plant in Tennessee. Further, they revealed in public commentary the state’s enforcement actions against Maymead by the Commonwealth of Virginia. This example has been repeated in scores of public hearings and comments on synthetic minors across the state. In at least one case, this information lead to a permit denial. In other cases, regional inspectors and enforcement personnel increased their inspection regimens for companies with bad track records.

Because synthetic minor pollution is big pollution, adjacent landowners, nearby site neighbors, and elected officials must have full public participation rights and opportunities. I urge the NC EMC to deny any rule change which would result in elimination or minimization of public participation on any air permit. The NC DAQ and/or our organization can provide more details about hearing turnout numbers, broad based written comments, and general public concerns about these pollution sources.

Certainly, no budget crunch for the Department can justify limiting public participation while industry representatives and permit applicants have unlimited access.

Control of Visible Emissions 15A NCAC 2D .0521

Our staff, chapter leaders, and members see much of the proposed rule changes as rollbacks for communities and pollution source neighbors. Although we applaud the change from 40% to 20% opacity for a handful of asphalt plants, we believe that the allowance of ten six-minute periods of violation in 24 hours will lead to excess pollution and unenforceable regulations. We oppose industry recommendations for replacing "24 hours" with a "day"; rolling rather than block averaging is essential to limit pollution.

The allowance of ten six-minute violations of 20% opacity in 24 hours is completely unenforceable without continuous opacity monitors (COMs). Obviously, smoke reading cannot be conducted at night, and state inspections are infrequent. All facilities which are subject to any state opacity standards included in this new regulation must be equipped with COMs. Otherwise, assurance of compliance is an impossibility.

Case-by-case MACT 15A NCAC 2D .1109

In November 1997 people across North Carolina commented on the state Toxic Air Pollutant (TAP) rules versus the federal Maximum Achievable Control Standards (MACT). They overwhelmingly favored the health-based TAP program. I hereby request that that hearing’s testimony be added to the record for the current proposed rule changes. On behalf of the Blue Ridge Environmental Defense League Board of Directors and our chapters, I request that the EMC remove the exemption from the Toxic Air Pollutant rules for all combustion sources and industrial boilers. To my knowledge, the NC DAQ has performed no computer modeling to determine whether these combustion sources can meet the toxic pollutant limits at their property boundaries.

In 1998 the NC DAQ claimed that this exemption would mean that these facilities would come under the TAP program sooner rather than later if the state and the EMC waited until the federal MACT was implemented. This argument made no sense at the time, and we believe that the EMC must revisit the combustion source exemption in conjunction with consideration of the state MACT.

Respectfully submitted,

Janet Marsh Zeller, Executive Director

DAQ2D+2QcommentsJMZ 20aug02

Cc: Thom Allen

BLUE RIDGE ENVIRONMENTAL DEFENSE LEAGUE ~ PO Box 88 Glendale Springs, North Carolina 28629 ~ Phone (336) 982-2691 ~ Fax (336) 982-2954 ~

September 3, 2002

Dan Besse, Hearing Officer
NC Environmental Management Commission
1641 MSC
Raleigh, NC 27699-1641

Re: Additional comments on the proposed rule changes under 15A NCAC 2D .1109

Dear Mr. Besse:

On behalf of the Blue Rideg Environmental Defense League, I write to augment my oral and written comments of August 20, 2002 regarding case-by-case MACT.

MACT Floor

As you know, Section 112(j) of the Clean Air Act (40 CFR 63.52-63.53) requires major pollution sources with the potential to emit 10 tons per year of a single hazardous air pollutant or a total of 25 tpy of all HAPs. If a MACT standard was not published for a source by May 15, 2002, the operator must have submitted a Part 1 MACT Hammer notification. The second half of the application is due by May 15, 2004 and must contain the technical information the states need to complete the case-by-case MACT determination for each source. A fundamental provision of Section 112(j) is the determination of the best performing 12% facilities of a given industrial type which establishes the "MACT floor."

We oppose the proposed change in the definition of MACT floor. Striking out the term "in the United States" [2D .1109(c)(7) located on page 3, lines 3 and 13 of the proposed rule] would cause a fundamental shift in the meaning of the term which establishes minimum requirement for all MACTs. The best performing 12% of existing sources should include all the facilities in the United States. If the pool of sources considered in each MACT includes all facilities, the MACT will continue to be a national standard as envisioned in the Clean Air Act and Amendments. The proposed rule would allow the NC DAQ to limit consideration of the best performing 12% to sources in, for example, EPA Region IV.

BREDL’s experience with MACT during our Clean Air Act Section 505 petition regarding the permit for Cardinal FG in Mooresville, NC revealed that different EPA regions indeed have different interpretations in these matters, interpretations which lead to differences in permittable major emission sources standards among the regions. The company originally sought a location in Virginia for its flat glass plant but withdrew the permit application and came to North Carolina. We think the differences concerning EPA Regions III and IV may played a part in the move. Also, EPA Region V had made some decisions with regard to glass plants in Wisconsin which ultimately were significant in reducing emission levels here. We would be pleased to provide you and other Commission members with further documentation of this case.

New Facilities

We oppose the proposed change which would allow new facilities to be constructed and operated before applying MACT [2D .1109(e) located on page 5, line 9 and 10 of the proposed rule]. The Clean Air Act Amendments of 1990 revised Section 112 of the Clean Air Act for National Emission Standards for Hazardous Air Pollutants. Prior to the Amendments, control standards for HAPs were based on adverse health effects. In 1990, the focus shifted to a technology-based approach. Allowing a new facility to be constructed before applying MACT would eliminate the possibility of determining its technology, undermining the MACT standard.

An emission source’s potential to emit determines if it is a major source. Until the facility holds a permit that includes conditions to limit hazardous air pollutants, the facility’s potential to emit is unrestricted. Section (e) of the draft rule for New Facilities removes the requirement that new hazardous air pollutant sources apply MACT "before beginning construction and operation." This would be contrary to the letter and the intent of the Clean Air Act.

Thank you for considering these comments.

Respectfully submitted,

Louis Zeller