Minutes
Regular Meeting
of the
Louisville Metro Air Pollution Control Board

April 20, 2005

The regular meeting of the Louisville Metro Air Pollution Control Board was called to order April 20, 2005, at 9:04 a.m.} in the Board Room of the Air Pollution Control District, 850 Barret Avenue, Louisville, Kentucky, by Vice-Chairman Lee Howard. Lewis Hammond, Barbara Sexton Smith, Dr. 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, Scott Wegenast, Terri Phelps, Mitzi Powell, Cynthia Lee, Ashley May Nash, Stacy Fritze, Eva Addison, Arthur Chang, Martha Gammons, Doug Spillman, Phyllis Fitzgerald, Chris Cunningham, Matt King, Jenny Rhodes, and Irene Stephenson.

The following guests were present: Paige Mosser Theriac, Theriac Environmental Consultants, Inc.; Dennis Conniff, Frost Brown Todd/Greater Louisville Inc. (GLI); Rich Robinson, American Synthetic Rubber Company; Mike DeBusschere, Kentuckiana Engineering Company; Tim Corrigan, GLI; Susan Logsdon, Caldwell Tanks; Jim Wade, Engelhard; Rachael Hamilton, Frost Brown Todd; Brad Dillon, Greenebaum Doll & McDonald; Mark Klan, Environmental Toxicology O.R.A.; Tim Duncan and Jonathan Tinsley, Rubbertown Emergency Action Education and Defense, Inc. (REACT); Clarence Dykstra, DuPont Dow Elastomers LLC; Corinne Greenberg, Linebach Funkhouser Inc. (LFI); Winnie Hepler, REACT and Justice Resource Center; Barbara Hall, Ford Kentucky Truck; Tom Herman, Zeon Chemicals; and Betty Herz, Lawn Care for Cleaner Air Award Recipient.

Public Recognitions

Mr. Williams recognized two new lawyers, Stacy Fritze and Ashley May Nash, who have passed the bar exam. They are employed by the County Attorney’s Office and will be working full time for the District on legal matters, primarily enforcement.

Approval of Minutes

The minutes of the March 16, 2005, Public Hearing and Regular Meeting were approved as distributed.

Public Comments

Mark Klan, toxicologist, said that he is working with GLI for its review of the STAR Regulations. He said that on April 7, the U.S. Environmental Protection Agency (EPA) released the new Guidelines for Carcinogen Risk Assessment and the Supplemental Guidance for Assessing Susceptibility from Early-Life Exposure to Carcinogens. These are very extensive documents that have been approximately 20 years in the making. These new documents bring up a lot of scientific and technical issues that directly impact the STAR Program regulations and the use of risk assessment within these regulations. He said that the EPA states that overly conservative assumptions when combined can lead to unrealistic estimates of risk. This means that when constructing estimates from a series of factors for example emissions, exposure, and unit risk estimates, not all factors should be set to values that maximize exposure, dose, or effect, since this will almost always lead to an estimate that is above the 99% confidence level and may be of limited use to decision makers. The STAR Program as proposed now uses those overly conservative estimates of risk, therefore the program may lead to a decision that is not based on a reasonable approach.

Winnie Hepler, REACT and Justice Resource Center, said that the public is eagerly awaiting the approval of the STAR Program. She hopes that the delay is for a good cause, that the comments are being reviewed very carefully, there is no backtracking in the regulations, and the public will soon have the program as promised. She said that any re-evaluation of the carcinogenic effects of risk assessment from the Bush Administration is highly suspect.

Dennis Conniff, GLI Air Toxics Task Force, said that Mark Klan had presented the comments that GLI wanted to present today. Mr. Conniff provided copies of the EPA’s updated cancer risk assessment guidelines for each member of the Board.

New Business

1. Agreed Board Order with Consolidated Container Company

   Ms. Phelps said that the District recommends that the Board adopt the Agreed Board Order with Consolidated Container Company as proposed.

   Ms. Smith asked for explanation on how we arrived at the $51,300 penalty amount. Ms. Phelps responded that the District applied the EPA’s asbestos penalty policy. The penalty amount is based on the amount of asbestos and is adjusted for the size of the violating company and the economic benefit obtained through non-compliance. In this case, the amount of asbestos was slightly over the threshold required for federal regulation, so the penalty amount was relatively small.

   Dr. Al-Shami asked how much asbestos there was and whether anyone other than the workers were exposed. Ms. Phelps responded that 300 linear feet of asbestos was removed, and the threshold for the federal regulation is 260 linear feet. The District does not know whether anyone else was exposed, but Kentucky OSHA has done an investigation. Because the asbestos removal occurred several months before the District was informed of it, most of the District’s information has come from the OSHA interviews. Dr. Al-Shami requested that the Board members receive a copy of the information from the OSHA report.

   Ms. Smith asked whether the District could go back and have a different penalty if the report reveals that a significant number of people were exposed to the asbestos. Ms. Phelps responded that the District could not. The District’s understanding is that this was a small renovation and it is likely that only a small number of employees were affected.

   Motion:	Mr. Hammond moved to adopt the Agreed Board Order with Consolidated Container Company, as recommended by the District. The motion passed unanimously.

Committee Reports

1. Air Quality Task Force, Health Effects Committee

   Mr. Trout said that the Air Quality Task Force (AQTF) has created two committees, one to look at modeling data for ozone, and the other to examine the health effects of ozone exposure. The health effects committee will consider the effects of ozone on public health at the federal standard and whether setting a goal to reach a level that is more stringent than the federal standard should be recommended to the AQTF for consideration. This was the initial meeting of the health effects committee; committee members were given documents relating to several studies of the health effects of ozone. These documents are available for public review. For each criteria pollutant, the EPA is required to assess every five years any new health information regarding that pollutant and determine whether the current national ambient air quality standard (NAAQS) is adequate or whether the NAAQS should be changed.

   The EPA has started this review process for the ozone standard. The EPA has called for the submittal of new information, and released the first external review draft of the Ozone Criteria Document. After public review of the first draft, the EPA will develop a second draft Ozone Criteria Document and draft Ozone Staff Paper and Health/Environmental Assessments which includes a recommendation for consideration by the EPA Administrator on appropriate changes to the NAAQS.

   The California Air Resources Board (CARB) has its own ambient standard for ozone and periodic review process. CARB is currently holding several public workshops to discuss the staff report on amendments to the ozone standard. The staff recommendation to amend the ozone standard is scheduled for consideration by the Air Resources Board on April 28. The District provided information on the California recommendation to the committee. The health effects committee will also review information on fine particulates.

Staff Reports

1. Director

   Mr. Williams said that the ozone season started March 1; so far there has been no ozone action day called or exceedance monitored.

   Mr. Williams announced that as part of the Derby Festival, the District is partnering with the Kentucky Division for Air Quality to host a hot air balloon on April 28 and 29 for the Balloon Glow. The hot air balloon will be identified as a Clean Air Balloon. On May 19, the Kentuckiana Air Education (KAIRE) Kickoff Event will take place in Jefferson Square Park from 11:30 a.m. to 1:30 p.m.. The Mayor is scheduled to participate. The Board members are invited to participate in the kickoff activities.

   Mr. Williams noted that the monthly monitored fine particle average last month was 14.3 µg/m³. The three-year average to date, for 2003, 2004, and the first three months of 2005, is 14.9 µg/m³. For six out of the last seven months, going back to September 2004, the monthly average is each higher than the from the previous year. The EPA is in the process of reviewing the standards for fine particles and ozone, as they are required to do. The Clean Air Scientific Advisory Committee (CASAC), one of the key advisory bodies to the EPA, has made an initial recommendation to the EPA that the fine particle standard should be revised downward. There are two fine particulate standards, an annual standard and a 24-hour standard. The CASAC has recommended that the 15 µg/m³ annual standard be lowered to 14 µg/m³. The CASAC has also recommended that the 65 µg/m³ 24-hour standard be lowered to a level in the range of 30 to 35 µg/m³.

   The Louisville area currently does not exceed the 65 µg/m³ 24-hour standard on any regular basis except the time period around the 4,sup>th of July during which pyrotechnic displays are likely responsible for the elevated fine particulate concentrations. Mr. Williams said that it is likely that the Louisville area would exceed this recommended lower 24-hour fine particulate standard; the average 24-hour concentrations are in the range of 45 µg/m³. If the EPA were to adopt the lower standard, the Louisville area would be required to develop an attainment plan to meet both the annual and 24-hour fine particulate standards. The EPA’s time line for action calls for any propose change to the fine particulate standards by the end of 2006. Mr. Williams noted that the last time the EPA revised the fine particulate standards, in 1997, litigation held up the effective date of the revised standards by five years.

   Mr. Williams indicated that the District is making steady progress on the review of comments and the development of responses to the STAR Program. The District’s goal is to convene the Board in three weeks to make a presentation on the responses and recommendations on any proposed revisions to the regulations. On April 7, the District received a letter of prior concurrence for the proposed STAR Program regulations from the Kentucky Division for Air Quality (DAQ). That letter indicated that the state continues to look at its own toxics program and, if the state standards change, the DAQ would rereview the STAR Program regulations to determine whether they are less stringent than the new state regulations.

   Mr. Williams said that both he and Ms. Embry were members of the state Air Toxics Work Group. The Kentucky Environmental and Public Protection Cabinet (Cabinet) has asked for additional comment by the end of this month on the one-in-one-million risk standard in general and specifically on the concept of a risk range between 1 and 100 per million. The Cabinet indicated that after feedback one these issues is received, the Cabinet will make a determination on what changes, if any, are appropriate and what implementation steps would be taken. Mr. Williams said that it doesn’t appear that there are any current plans to reconvene the State Air Toxics Work Group.

   Mr. Williams noted that within the next few days, the District plans to file its first formal administrative complaint against a company, alleging violation of certain District regulations. Being able to take this enforcement step has been several years in the making. In 1994, the Kentucky General Assembly authorized Air Pollution Control Districts to create an administrative hearing mechanism, much like that used by the state. The adoption of Regulation 1.19 by this Board established the formal structure for administrative hearings. The District has entered into an agreement with the State Attorney General’s Office to provide administrative hearing officers. With the District’s enhanced legal resources due to the additional legal staff, the District has identified an appropriate case for adjudication, one that the District has not been able to settle through the typical negotiation process.

   Mr. Williams explained that historically, there have been three primary ways to resolve alleged violations with individuals or companies. The District could make a referral to the EPA, which happens very rarely and only to the biggest of cases. The District could file in District or Circuit Court, which is a very difficult exercise because of the backlogs of the courts and the District’s own capabilities. The third method has been through agreed settlement, the method through which the District resolves the vast majority of alleged violations.

   Vice-Chairman Howard asked what abilities the District had in terms of using this mechanism to remedy the backlog. Mr. Williams responded that the District’s ability to either settle a case favorably or to proceed efficiently to an outcome has been increased considerably.

   Mr. Williams noted that on April 22, the 30-day period will expire for any appeals from the permits issued to Maverick Tube Company. The Board held a public hearing and subsequently the District issued the construction permits approximately 3 ½ weeks ago.

   Mr. Williams said that U.S. District Court in the District of Columbia ruled favorably on behalf of an ordinance adopted by the District of Columbia City Council several months ago that contained certain restrictions and prohibitions on the movement of hazardous cargo by rail through the District of Columbia. Both the federal government and the Coalition of Railroads challenged that local ordinance, contending, among other things, that it has violated the Interstate Commerce Clause. The court ruled that the ordinance was constitutional and didn’t violate the Interstate Commerce Clause. This is a case that has been watched carefully around the country by communities that are concerned about the safety of the movement of hazardous materials and chemicals through their community. Discussions have taken place locally for quite some time about this issue, and this decision will generate further discussion and attention. Mr. Williams said that it is believed that the railroad plaintiffs will appeal the decision, so the litigation is not over.

    

2. Lawn Care for Cleaner Air Awards

   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.

3. Air Quality Data

   The air quality monitoring reports were submitted for filing. A copy of each report is attached to the original minutes.

4. Enforcement Status

   The APCD Enforcement Status 04/13/2005  report was submitted for filing. A copy is attached to the original minutes.

5. Startup, Shutdown, Malfunction, and Emergency Report

   The Malfunctions, Emergencies, Startups and Shutdowns received 03/08/2005 through 04/11/2005  report was submitted for filing. A copy is attached to the original minutes.