The regular meeting of the Louisville Metro Air Pollution Control Board was called to order November 19, 2003, at 9:01 a.m. in the Board Room of the Air Pollution Control District, 850 Barret Avenue, Louisville, Kentucky, by the Chairman, Karen Cassidy. Lee Howard, Lewis Hammond, Barbara Sexton Smith, Sandra Withers, Nadir Al-Shami, and Carolyn Embry were present. A quorum was present.
The following Louisville Metro Air Pollution Control District (District) staff members were present: Art Williams, Jon Trout, Lauren Anderson, Jesse Goldsmith, Terri Phelps, Cynthia Lee, Arthur Chang, Eva Addison, Phyllis Fitzgerald, Diane Hazellief, Marty Layman, Bob Dorzback, Tom Pinto, TJ Jessie, Doug Spillman, Gary Flispart, and Irene Stephenson. Shannon Tivitt, Assistant Secretary, Cabinet for Community Development, was also present.
The following guests were present: Paige Mosser Theriac and Mike DeBusschere, Kentuckiana Engineering Company, Inc.; David Newman, Kentucky Motorcycle Association; Don Satterly, Kentucky Gasoline Dealers Association; Diana Turner, DuPont Dow Elastomers; Rich Robinson and Frank Kennedy, American Synthetic Rubber Company, LLC; Brad Dillon, Greenebaum Doll & McDonald; Sarah Scheetz, Louisville Gas and Electric Company; Tim Corrigan, Greater Louisville, Inc.; Robert Gioffre, Gordon-Darby; Bob Ehrler, Frost, Brown, Todd L.L.C.; Ray Pierce, Flowervale Lemont Pierce Neighborhood Association; Don Haynes, ERM; and Joan Lindop, Sierra Club.
Mr. Williams introduced Carolyn Embry, who was recently appointed to the Louisville Metro Air Pollution Control Board (Board). Ms. Embry is a previous Board member who has been active on air quality issues in the community for 25 years. She is the Director of Development/ Environmental Affairs for the American Lung Association of Kentucky. She was also a member, and Chair, of the State Implementation Plan Advisory Panel. Mr. Williams said that she brings to the Board a wealth of expertise and knowledge about respiratory health and air quality issues.
Mr. Williams also introduced and welcomed Shannon Tivitt, the Assistant Secretary of the Cabinet for Community Development. Ms. Tivitt attends the meetings of a number of other Boards on behalf of the Cabinet and will be attending Air Pollution Control Board meetings on a regular basis.
The minutes of the Regular Meeting of October 15, 2003, were approved and filed
Mr. Williams said that the Vehicle Emissions Testing (VET) Program was closed, pursuant to state law, at the end of the day on October 31st. There was a last-minute round of litigation initiated by the Kentucky Resources Council and an individual plaintiff, Sarah Lynn Cunningham, to stay the closure of the VET Program. There were hearings both in Frankfort Circuit Court and Jefferson Circuit Court, but each court ruled that it did not have jurisdiction in this matter. The same plaintiffs filed a citizen’s suit under the Clean Air Act in the United States District Court, Western District of Kentucky, against the United States Environmental Protection Agency (EPA, Mike Leavitt, Administrator), the Kentucky Natural Resources and Environmental Protection Cabinet (NREPC, Henry Clay List, Secretary), the District (Arthur Williams, Director), and the Board (Dr. Karen Cassidy). This action followed the 60-day notice of intent to file that Mr. Tom FitzGerald, Kentucky Resources Council, had previously sent indicating that he believed the closure of the VET Program prior to EPA approval was not consistent with federal law. A conference is scheduled for Thursday morning at 10:00 before Judge Hayburn.
On October 27, 2003, the EPA sent a letter to Mr. List, NREPC, indicating that it is the EPA’s intent to propose an action in the Federal Register disapproving the September 23, 2003, State Implementation Plan (SIP) revision submittal to remove the VET program from the active portion of the SIP. On October 28, 2003, the NREPC sent a letter to Mayor Abramson and Mr. Williams highlighting the EPA’s conclusion that the District must continue to implement the 1-hour ozone maintenance plan which includes operation of the VET program.
Mr. Williams noted that the final VET Report indicates that 1,000 additional vehicles were tested in October 2003 as compared to October 2002. The last week of the testing program was a very busy week as citizens came in for their regular testing and a number of people who had their vehicle’s registration revoked and wanted to get re-registered. There was an 8.2% failure rate for vehicles that underwent the loaded mode test. Additionally, 8.9% of the model year 1996 and newer vehicles that underwent the on-board diagnostics (OBD) test failed the OBD test but were not failed because the vehicles passed the less-stringent tailpipe test. [Note: the VET report incorrectly showed the 8.9% OBD test failure rate as 0.9%.] Thirty-five of the model year 1996 and newer vehicles failed both the OBD test and the tailpipe test.
Mr. Williams said that as a result of the VET Program closure, seven of the District’s fourteen employees who worked in the VET Program were immediately laid off. Three of the District’s VET employees moved to other positions within the District, two of them bumping filled positions. Four of the District’s VET employees will finish the remaining tasks to complete the closeout of the VET Program. This is expected to take two to four months. When this process is completed, two of these four employees will move into vacant positions in the District and two will bump former District VET employees. All in all, closure of the VET Program will result in eleven District employees losing employment.
Mr. Hammond asked what steps would be taken if the Judge rules in favor of the plaintiffs. Mr. Williams responded that if the Judge finds merit in their pleadings, it is uncertain what remedy the Judge might impose. Ms. Anderson added that there are many variables and options that the Judge could consider, but it is unlikely that he would reinstate an identical program at this time.
Mr. Williams said that the District has received the final two-volume Risk Assessment Report which is comprised of the main volume of the findings and analysis and the appendix which has the technical data that back up the findings. A committee of the West Jefferson County Community Task Force (Task Force) had reviewed the May draft report and submitted 240 comments on the draft to the consultants, Sciences International. Mr. Williams explained that health effects from chemicals are divided into two categories, cancer and non-cancer. The Task Force had adopted as its safe level the national approach of having a probability of one cancer occurrence out of one million people exposed to a carcinogen over a 70-year period. The national approach for non-cancer effects of a chemical is having a hazard quotient of 1.0 using a reference concentration for that chemical.
The report concludes that there were 17 chemicals with monitored concentrations during the April 2000 - April 2001 study that were at unacceptable levels. All 17 of these chemicals had a risk level greater than one in one million. The chemical 1,3-butadiene had both a cancer risk greater than one in one million and a hazard quotient greater than 1.0. Mr. Williams distributed a worksheet that he had developed that lists these 17 chemicals. This first-draft effort to rank order these chemicals will give the Task Force an opportunity to look at how these 17 chemicals compare to each other in terms of their relative risk. The chemicals were ranked according to their average risk detection levels, their highest risk detection levels, and the number of monitors showing an unacceptable risk.
The Task Force developed a risk management plan that outlines the steps to be taken if a chemical is monitored at an unacceptable level. The first phase is source identification, that is, determining the source of the emissions of that chemical. The next step is to analyze and prioritize the strategies and options that can be used to reduce the levels of that chemical. Based upon the data in the draft risk assessment report, the District had identified 1,3-butadiene as the chemical of greatest concern and the three companies that emit it. Mayor Abramson met with representatives of these companies to begin addressing their 1,3-butadiene emissions. All three companies committed to reduce their 1,3-butadiene emissions over the next 18 months to two years. The District will put these voluntary plans into a draft enforceable Board Order for Board consideration within the next month or two. Mr. Williams indicated that the Board Orders for these voluntary reductions would be a first step to address this problem, but additional reductions will be needed to reduce the 1,3-butadiene emissions to acceptable levels.
Mr. Williams indicated that the source of the emissions of some of the other chemicals will be more difficult to identify and, for some, even more difficult to reduce the ambient concentrations. For example, carbon tetrachloride was found at all 13 monitors at levels well above the one-in-one-million risk level. The levels monitored here are similar to levels found elsewhere in this country. Carbon tetrachloride is no longer used, but molecules of this chemical in the atmosphere remain unchanged for decades, so the concentrations resulting from emissions from many years ago will remain nearly unchanged for many years.
Mr. Williams said that during the regular two-week shut down of the American Synthetic Rubber plant, the University of Louisville monitor closest to this plant was operated every other day. Preliminary results show that the monitored concentrations of 1,3-butadiene during this two-week period were significantly less than the levels typically monitored.
Mr. Williams said that both Paul Wagner from EPA Region 4 and he made presentations yesterday evening to the West Jefferson County Community Task Force. Dr. Cassidy also attended the Task Force meeting. The EPA has proposed to undertake a range of activities over the next year in support of Louisville’s efforts to address air toxics issues. Some of the activities that Mr. Wagner announced include reviewing the compliance status of permits, reviewing emission reports, reviewing our risk management plan audits of the companies, engaging in facility inspections, examining accidental release records of the companies, providing technical assistance to the companies and to the District, helping the District model the emissions from these plants to better understand the contribution from individual companies to unacceptable concentrations, providing workshops for citizens regarding permitting and enforcement procedures, providing training for the regulated community on how to better comply with the laws, and helping the Task Force develop communication strategies.
Mr. Williams noted that in addition to the assistance that will be provided by the EPA, the Agency for Toxic Substances and Disease Registry (ATSDR) will review the risk assessment report.
Ms. Withers asked what time period is given to a company to come into compliance before penalties are assessed. Mr. Williams responded that if a company is found to be in violation of any law or permit condition, then a notice of violation is issued as soon as the violation is detected. If compliance cannot be achieved quickly, the District will draft a Board Order that would include a compliance plan and schedule for Board consideration. The length of time for the compliance schedule would depend on what changes are needed; the design, construction, and installation of major equipment would take longer than minor operational changes. Mr. Trout added that in the interim, the Board Order could require temporary measures to be employed. For example, the recent Rohm and Haas Board Order required two temporary control measures to be implemented until the regenerative thermal oxidizer was installed and placed into operation.
Ms. Embry commented that the Board has a tremendous challenge to bring these toxic levels down to safe levels and to develop and implement a plan to bring the Louisville area into compliance with the new 8-hour ozone and fine particulate matter standards. The assistance that the EPA is offering with communication strategies and getting messages out to the community and helping the community understand the issues needs to be elevated close to the top of the list. It is obvious from various news stories that there is a lot of misperception in the community about what the District does and the progress that has been made over the years to reduce air pollution. A report needs to be issued to the community to inform them what the pollution levels had been, where the pollution levels are now, and how many tons of emissions have been eliminated from our air over the last couple of decades. Ms. Embry requested that the District initiate a public information program to let the public know what our air pollution problems are, what has been done already to address them, and what needs to be done in the future.
Ms. Smith suggested that the District also make use of the resources from the industrial community and Greater Louisville, Inc., particularly for obtaining information regarding the actions taken by the industrial sector. Mr. Williams responded that it would take several months to gather this information. He agreed that it was a good idea to work with other professionals on communication strategies and with the companies to obtain accurate information.
Mr. Williams reported that Rebecca Stutsman, the District’s Public Information Specialist, has accepted a new position as a grant writer with the University of Louisville’s School of Medicine. She has made excellent contributions to the District’s education outreach and public information efforts during her six years with the District. Her last day with the District will be next Wednesday.
Mr. Williams also reported that Eric Brown, an Engineering Coordinator in the Engineering Section, has accepted a position with an automotive parts supplier in Bardstown. His last day with the District will be December 1st.
Mr. Williams noted that there was no exceedance of an ozone standard during the month of October. He said that the PM2.5 report shows that the monitored levels of fine particulates continue along their historical trends.
Mr. Williams said that, within the last month, the EPA proposed two additional alternatives for classifying 8-hour ozone nonattainment areas and whether the areas so classified would be subject to Subpart 1 or Subpart 2 implementation requirements. The notable change in these alternative schemes is that it appears more likely, based on what the EPA seemed to indicate as its preferred approach, that the Louisville 8-hour ozone nonattainment area would be classified as Moderate nonattainment rather than Marginal nonattainment, based upon the area’s 2001-2003 design value of 92 parts per billion. Under the initial proposal, an area with an 8-hour ozone design value of 92 parts per billion would more likely have been classified as Marginal nonattainment. Mr. Williams said that in an earlier report to the Board, he had concluded that, based upon the EPA’s initial proposal and a combination of the emission reduction measures implemented this summer and the favorable meteorology, the Louisville community had done just enough to avoid being classified as Moderate nonattainment. That may now not be the case.
Mr. Williams continued that the EPA has also not yet finalized its 8-hour ozone implementation requirements, thus it remains unknown as to what mandatory measures would need to be implemented if an area were to be classified Moderate nonattainment. The range of mandatory measures could include an inspection/maintenance (VET) program. The EPA had indicated throughout much of the summer and fall that the 8-hour ozone implementation plan would be finalized by the end of this year. However, because of this supplemental proposal, finalization would be delayed by another one to two months.
Mr. Williams said that the EPA still expects to make final 8-hour ozone area designations by April 2004. In July of this year, Governor Patton had recommended that the Kentucky portion of the Louisville 8-hour ozone nonattainment area consist of Jefferson County and, in a change from the previous 1-hour Louisville ozone area, all of Bullitt and Oldham Counties.
Mr. Williams said that Mayor Abramson, in a press conference held two weeks ago, discussed the toxics, ozone, and fine particulate air quality challenges that face Louisville. The Mayor announced that he would create an Air Quality Task Force which will be chaired by Bruce Traughber, Secretary of the Cabinet for Community Development. The first responsibility of the task force will be to work with local and state officials to create a new State Implementation Plan that outlines how the community will meet the new, more stringent federal air-quality standards. The task force will be composed of a broad cross-section of people with backgrounds in the fields of health, business, industry, environmental advocacy, and neighborhood involvement.
Mr. Williams said that Mayor Abramson hopes to appoint task force members within the next week or so. The District will report to the Board at the next meeting on the appointed task force members, the time table, and the goals and objectives for the task force. Mr. Williams said that Mayor Abramson envisions that the West Jefferson County Community Task Force will still play a primary role in developing strategies for addressing air toxics problems. Many of the strategies that are in the Risk Management Plan for air toxics are strategies that will come back to this Board for approval and implementation, particularly for the adoption of more stringent regulations.
Ms. Embry said that she believes that the creation of the Air Quality Task Force is a good idea but wants to be assured that the Board members will receive the same level of information as will be provided to the task force and will have an opportunity to be involved in discussing the issues. Mr. Williams said that he envisions a high level of interaction between the Board and the new task force, similar to the monthly interaction that occurred between the Board and the SIP Advisory Panel.
Mr. Williams noted that the EPA published final rules regarding the treatment of routine maintenance, repair, and replacement pursuant to the Prevention of Significant Deterioration and New Source Review regulations. The finalization of these rules may adversely affect some of the EPA’s pending enforcement cases against utilities in the country and the EPA may not take enforcement actions against other utilities. One of the enforcement actions that the EPA had under way was against Cinergy, which owns and operates the Gallagher Plant across the river in Indiana. The District is investigating and trying to determine whether the EPA is going to follow through on its action with Cinergy. There was a possibility that significant upgrades would have been made to the air pollution control equipment at the Gallagher Plant as a result of the EPA enforcement action. These reductions would have resulted in benefits to the Louisville air quality. If the EPA does not follow through with this enforcement action, then the District intends to examine the issue very closely to see if there are options that could be pursued to still achieve the same emission reductions.
The list of this month’s Lawn Care for Cleaner Air Award recipients was submitted for filing. A copy is attached to the original minutes.
Chair Cassidy noted that this month’s Lawn Care for Cleaner Air Awards Report has two pages of recipients and that a total of 547 awards have been presented. She further noted that there have been a total of 323 lawn mower rebates issued. Mr. Williams added that the District has been very pleased with the community’s very positive response to the rebate program. He said that substantial credit should be given to Phyllis Fitzgerald and Cynthia Lee and her staff for both the Lawn Care for Cleaner Air Program, which won a national award from the EPA earlier this year for its innovative nature, and for the rebate program.
The air quality monitoring reports were submitted for filing. A copy of each report is attached to the original minutes.
The VET report was submitted for filing. A copy is attached to the original minutes.
The APCD Enforcement Status 11/12/2003 report was submitted for filing. A copy is attached to the original minutes.
The meeting adjourned at 10:00 a.m.
_______/signed/_______
Karen Cassidy
Chair
_______/signed/_______
Jonathan L. Trout
Secretary-Treasurer