Comments and Testimonies

Clean Air Council Comments to EPA's Direct Final Rule
to Approve Allegheny County's State Operating Permit Program
Docket No.: PA138-4098

July 28, 2003

Clean Air Council is a non-profit citizen's organization dedicated to protecting the public's right to breathe clean air. The Council has members throughout Pennsylvania, including Allegheny County. Responses to these comments should be addressed to Joseph Otis Minott, Esq. and Michael Fiorentino, Esq., Clean Air Council, 135 S. 19th Street, #300, Philadelphia, Pa. 19103.

EPA is proposing to approve a SIP revision containing Allegheny County Health Department's (ACHD) Federally Enforceable State Operating Permit Program by direct final rule. The program will pertain to sources regulated under both §110 and §112 of the Clean Air Act. The Council opposes EPA's proposal to approve Allegheny County's Program at this time. However, the Council would not oppose EPA issuing a conditional approval of Allegheny County's program. This would provide Allegheny County additional time to demonstrate to EPA, DEP and Allegheny County residents that it is willing and able to ensure full compliance with FESOP and Clean Air Act requirements.

In the Federal Register notice, EPA sets out five criteria which it states are applicable under §110:

1) submission of the program as a SIP revision;
2) which poses a legal obligation that permit holders must adhere to the terms of the permit;
3) that emission limitations, controls and other requirements in program permits be at least as stringent as the applicable requirements and the SIP would call for and that they may not be waived;
4) that all such permit limitations, controls and requirements be permanent, quantifiable and enforceable as a practical matter;
5) that EPA and the public be provided with timely notice of proposal and issuance of permits with opportunity for public comment.

In addition to these criteria, 40 CFR Part 70, which sets forth rules for the Title V program, contains 16 elements necessary for State program submittals and transition, see 40 CFR §70.4 (b). One of these elements is: "a statement that adequate personnel and funding have been made available to develop, administer, and enforce the program." 40 CFR §70.4(b)(8). That statement is required to include specified information. The requirements of §70.4(b) are binding on "partial programs" such as Allegheny County Health Department's by virtue of §70.4(c)(2). Many of the sources which will obtain FESOP's under the ACHD's program do so for the express purpose of avoiding a Title V permit. The Council therefore believes that a state or local program approval determination must also take into account the elements of §70.4. To do otherwise is to make an approval determination without consideration of vital factors such as whether the local agency is able to carry out the program, something which the paper-based affirmations of the five criteria may not provide.

In the alternative, if one presumes that program capabilities are countenanced in EPA's criteria, the Council then submits that criteria #4 in particular is not being met. Criteria #4 states: "that all such permit limitations, controls and requirements be permanent, quantifiable and enforceable as a practical matter." If an enforcement and compliance program is not performing at a satisfactory level, then it is not accurate to represent that permits are enforceable "as a practical matter." Consequently, approval could be denied on that basis.

Clean Air Council is fully aware of the many positive attributes of the Allegheny County Heath Department's Air Enforcement and Compliance program. The Council as a general rule supports delegating to cities such as Philadelphia and Pittsburgh enforcement authority for air quality regulatory implementation. Council opposition to approval of the FESOP program at this time is based on concern over the ability of the ACHD to carry out the regulatory tasks set forth therein.

This June, within the same calendar month that EPA promulgated the present Direct Final Rule, EPA Region III Office of Air Enforcement and Permits Review also published a final report entitled "Review of Allegheny County Health Department's Air Enforcement & Compliance Program." The final report reveals significant concerns regarding, inter alia: the level of enforcement; the quality of inspection reports; the adequacy of reporting to DEP and EPA; diminished access to legal staff for enforcement tasks; and organizational structure. From the report it is clear that a minimum of 33 industrial facilities in the County will be directly affected by EPA's determination to approve Allegheny's FESOP program. The Council believes EPA's final report and its findings must be reflected in the decisionmaking process for the FESOP program.

Adequate legal resources: The EPA report is particularly critical about the legal resources available to ACHD to ensure adequate enforcement. ACHD has a very large job. It is responsible for permitting, monitoring and enforcing air pollution laws for over 800 facilities. Neighborhoods being asked to host these facilities need to be able to rely on ACHD to ensure that these facilities are being properly operated. Lack of adequate legal resources over time leads to inadequate enforcement of air pollution laws and regulations. Lack of adequate enforcement resources also allows for some regulated sources to skirt emissions and/or operating requirements. Finally, lack of adequate legal resources forces the enforcement agency to agree to inadequate compliance actions or to forgo them altogether in order to conserve resources. Indeed, according to the report, senior ACHD management stated that the current legal support would not be adequate to address the enforcement workload if substantially more enforcement actions were taken by ACHD. That is hardly an attitude that is going to encourage engineers to forward enforcement actions. It is particularly important that in these times of budgetary deficits that EPA carefully monitor the resources that a delegated agency commits to its permit and enforcement program.

Enforcement issues: According to the EPA report, over FY1999, FY2000 and FY 2001, ACHD reported that the Department had undertaken only 3 enforcement actions. Indeed, the EPA states that they were unable to find additional records of enforcement activity during their on-site audit of the program. EPA need only compare the compliance rate found in DEP's own annual reports to those reported by ACHD to conclude that ACHD is not doing an adequate job of detecting violations and/or reporting the violations. If ACHD is not detecting environmental violations then community residents are at greater health risk. In fact, public concern over potential air emissions violations is on the rise. Public complaints received by ACHD were 913, 950, and 1276 respectively in the years 1999-2001. Not only does the disparity between enforcement action and public complaints potentially indicate an agency unwilling or unable to enforce its permits but also may suggest that ACHD does not treat public complaints with appropriate seriousness.

EPA, DEP and Public oversight issues: One of the issues that becomes clearly apparent in reading EPA's report is ACHD non-compliance with EPA reporting requirements. Indeed, ACHD acknowledges that they have not properly input data into the required compliance reporting databases. Fully complying with EPA reporting requirements is critical to EPA's and the public's ability to oversee ACHD's enforcement activities.

Inspection Reports: The EPA report also discusses inconsistencies in the way inspection reports were created and managed. In some instances, EPA found "no violation" was marked on an inspection report when the details of the report indicated that violations were, in fact, described by the inspector.

Organizational Structure: "As noted throughout this report, the current organization structure appears to be impeding the effectiveness of both the Permits and Compliance Programs." See EPA's report p. 64. Given this statement and the numerous specific examples cited in the report, the Council believes this is an additional factor that recommends the imposition of conditions on EPA's approval of the FESOP program.

Stack Tests: Because of the large number of stationary sources in Allegheny County to which no Continuous Emission Monitoring system is installed, ACHD observes and reviews the performance of a large number of stack tests on an annual basis. The EPA report indicates that contrary to its informed expectations, none of the tests performed resulted in the issuance of a violation notice.

In addition to the items discussed directly in these comments, the Council would also incorporate by reference the additional problem areas identified by EPA in the report. Allegheny County is home to a great deal of industry, and the air emissions in the county reflect that fact. Given the overall purpose of the FESOP program, it is essential that the sources in Allegheny County be subject to all requirements for compliance to the same degree as would be expected in neighboring counties under the authority of the DEP. Therefore, it seems inimical to the public interest to provide full approval to the program at this time.

In addition to an operating permit program for criteria pollutants, Allegheny County seeks authority to manage the operating permit program for hazardous air pollutant sources under §112(l) of the Clean Air Act.

The criteria for the §112(l) approval sought are that the program:: 1) contains adequate authority to assure compliance with any §112 standard or requirement; 2) provides for adequate resources; 3) provides for an expeditious schedule for assuring compliance with section §112 requirements; and 4) is otherwise likely to satisfy the objectives of the Act. See §112(l)(5).

ACHD seeks authority to issue FESOPs for HAPs as well, to limit the potential-to-emit through this tool and provide minor source status. At least two of the applicable criteria for EPA approval of the program for HAP purposes provide a challenge in these circumstances. Although EPA states in the direct final rule that adequate resources will flow from provisions for the collection of emissions fees from permittees, that conclusion seems questionable in light of EPA's own final report on ACHD's enforcement and compliance program. Second, §112(l)(5) also requires that the program is "otherwise likely to satisfy the objectives of the Act." The essential objective of the Clean Air Act is to ensure that citizen exposure to harmful air pollution be reduced to levels which do not adversely affect health. The dearth of enforcement, failure to identify violators, and failure to supply DEP and EPA with all necessary records from which to discern facility compliance, are all shortcomings that run contrary to the Act's essential objective. The discussion of problems throughout these comments also apply to this conclusion. Therefore, as all the criteria of §112(l)(5) are not met, it is not appropriate at this time to give full approval to ACHD for these additional responsibilities.

Rather than proceed with this Direct Final Rule, Clean Air Council urges EPA to impose conditions upon ACHD, that would provide for a twelve-month or longer period, as deemed appropriate by EPA, within which to demonstrate substantial improvement across a range of areas in ACHD's air enforcement and compliance program. Such a conditional approval of the FESOP program is a common sense action in light of the EPA's June report on these matters, and would surely produce benefits to the public health.

Clean Air Council appreciates the opportunity to submit comments on this important matter.