TRANSCRIPT OF PROCEEDINGS

HERITAGE REPORTING CORPORATION

Official Reporters

1220 L Street, N.W., Suite 600

Washington, D.C. 20005-4018

(202) 628-4888

contracts@hrccourtreporters.com

In the Matter of: )

 )

HEARING TO TAKE COMMENT ON )

EPA'S PROPOSED RULEMAKING )

ENTITLED, "STATE )

IMPLEMENTATION PLANS: )

RESPONSE TO PETITION FOR ) Docket No. EPA-HQ-OAR

RULEMAKING; FINDINGS OF ) 2012-0322

SUBSTANTIAL INADEQUACY; AND )

SIP CALLS TO AMEND PROVISIONS )

APPLYING TO EXCESS EMISSIONS )

DURING PERIODS OF STARTUP, )

SHUTDOWN, AND MALFUNCTION )

Pages: 1 through 76

Place: Washington, D.C.

Date: March 12, 2013
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IN THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

In the Matter of: )

 )

HEARING TO TAKE COMMENT ON )

EPA'S PROPOSED RULEMAKING )

ENTITLED, "STATE )

IMPLEMENTATION PLANS: )

RESPONSE TO PETITION FOR ) Docket No. EPA-HQ-OAR

RULEMAKING; FINDINGS OF ) 2012-0322

SUBSTANTIAL INADEQUACY; AND )

SIP CALLS TO AMEND PROVISIONS )

APPLYING TO EXCESS EMISSIONS )

DURING PERIODS OF STARTUP, )

SHUTDOWN, AND MALFUNCTION )

Room 1153

Ariel Rios Building EPA East

1200 Pennsylvania Avenue, N.W.

Washington, D.C.

Tuesday,

March 12, 2013

The parties met, pursuant to notice, at 9:09 a.m.

BEFORE: Joseph Dougherty, EPA, Office of Air

 Quality Planning and Standards

 Geoffrey Wilcox, EPA, Office of General

 Counsel

SPEAKERS:

ROBERT ALVEY, President, Board of Public Utilities, 

Kansas City, MO

ROBERT MANNING, Hopping Green & Sams, Tallahassee, FL, on 

behalf of Florida Electric Power Generating Group

MICHAEL DOWD, Director, Air Division, Virginia Department 

of Environmental Quality

STEPHANIE MADDIN, D.C. Office of Earthjustice
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SPEAKERS: (Cont'd)

JEFF HOLMSTEAD, Electric Reliability Coordinating Council

BRUCE BUCKHEIT, Fairfax, VA

LESLIE RITTS, National Environmental Development 

Association, Clean Air Project

MAXINE LIPELES, Washington University School of Law, 

Interdisciplinary Environmental Clinic

SPARSH KHANDESHI, Environmental Integrity Project

TAMARA EVANS, Sierra Club, Environmental Law program

TERRY MCGUIRE, Sierra Club

ALEX BOND, Director of Air Quality, National Mining 

Association
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1 P R O C E E D I N G S

2 (9:09 a.m.)

3 MR. DOUGHERTY: My name is Joseph Dougherty, 

4 and I'm representing EPA's Office of Air Quality 

5 Planning and Standards. I'll be chairing today's 

6 hearing. Joining me on this hearing panel is Geoffrey 

7 Wilcox, EPA's Office of General Counsel, in our air 

8 and Radiation Law office.

9 Thank you for attending this public hearing 

10 held by the U.S. Environmental Protection Agency. 

11 We're holding this hearing to take comment on EPA's 

12 proposed rulemaking entitled, "State Implementation 

13 Plans: Response to Petition for Rulemaking; Findings 

14 of Substantial Inadequacy; and SIP Calls to Amend 

15 Provisions Applying to Excess Emissions During Periods 

16 of Startup, Shutdown, and Malfunction."

17 This proposed rulemaking was signed on 

18 February 12, 2013, and posted on the internet the next 

19 day. The proposed rulemaking was published in the 

20 Federal Register on February 22, 2013, at page 12460.

21 We are here today to listen to your comments 

22 on EPA's proposed action. The purpose of this hearing 

23 is to listen to your comments, but not for Mr. Wilcox 

24 or me to expand upon, discuss, or debate the proposal. 

25 Today's hearing is one opportunity for the public to 
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1 comment on EPA's proposed rulemaking. You may also 

2 submit written comments. A four-page fact sheet of 

3 the proposal is available in the registration area and 

4 also online summarizing the proposal and includes 

5 detailed information for submitting written comments.

6 The EPA invites public comment on specific 

7 elements of the proposed rulemaking as well as on any 

8 other issues raised by the proposal. The rule would 

9 ensure that states have plans in place to require 

10 industrial facilities across the country to follow air 

11 pollution rules even during times when the facility is 

12 starting up and shutting down or when a malfunction 

13 occurs. Air pollution emitted during these periods of 

14 startup and shutdown or malfunction, periods that 

15 collectively are often referred to as SSM for short, 

16 may adversely affect the health of people nearby and 

17 may contribute to smog and other problems in 

18 communities that are further downwind.

19 As explained in our fact sheet, the proposed 

20 action responds to a petition for rulemaking that the 

21 Sierra Club filed with the EPA Administrator in 2011. 

22 The Petition included three interrelated requests 

23 concerning the treatment of excess emissions of air 

24 pollution that may occur when an industrial facility 

25 is starting up or shutting down or when a malfunction 
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1 occurs, specifically how those emissions are treated 

2 in state implementation plan provisions that the EPA 

3 approved in the past.

4 Along the lines of the Petition's three

5 requests, let me now summarize three main aspects of 

6 the proposed rulemaking. First, the EPA proposes to 

7 deny the request in the Petition that EPA prohibit 

8 affirmative defenses in SIPs. Rather, the EPA is 

9 revising its previous policy to continue to allow 

10 affirmative defenses in SIPs for states that choose to 

11 provide them, for excess emissions that occur when a 

12 facility is experiencing a malfunction, but not for 

13 excess emissions that occur when a facility is 

14 operating in a planned startup or shutdown mode.

15 An affirmative defense is allowable when 

16 well-managed facilities experience malfunctions due to 

17 circumstances beyond their control, and the 

18 affirmative defense would shield the facility from 

19 monetary penalties but not from the responsibility to 

20 take action to limit future problems.

21 Second, the EPA proposes to grant the 

22 Petitioner's claim for 36 of the 39 states identified 

23 in the Petition by proposing to determine that these 

24 36 states have approved SIPs that include one or more 

25 SSM provisions that are inconsistent with the Clean 
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1 Air Act.

2 The EPA is proposing a "SIP Call" for each 

3 of these 36 states. Under the SIP Calls, the EPA 

4 would direct the affected states to correct specific 

5 SIP provisions related to SSM. The 36 states are 

6 listed in the fact sheet that I mentioned earlier.

7 Related to the proposed SIP Calls, the EPA 

8 has in the same notice proposed to issue findings that 

9 SSM provisions in the SIPs of these 36 states do not 

10 meet the requirements of the Clean Air Act. As a 

11 matter of procedure, in accordance with the Clean Air 

12 Act, the EPA must make such "inadequacy" finding in 

13 order to call upon a state to revise and resubmit its 

14 plan.

15 According to our proposal, once the EPA 

16 makes its final finding of inadequacy, affected states 

17 would have 18 months within which to correct and 

18 submit their SIP provisions to the EPA.

19 Third, the EPA proposes to deny the request 

20 in the Petition that EPA discontinue reliance on 

21 interpretive letters from states to clarify any 

22 potential ambiguity in the state SIP submission.

23 Before we open the floor for testimony, 

24 allow me to explain how this hearing will operate and 

25 how to comment. Today we will be accepting oral 
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1 comments in our proposed rulemaking, and we will be 

2 preparing a written transcript of this hearing. The 

3 transcript will be available to the public as part of 

4 the official record for this rule, and EPA will 

5 consider both oral comments and written comments as we 

6 move forward in the rulemaking process.

7 As explained in the proposal notice at page 

8 12461, we are extending the comment period to 30 days 

9 beyond today's public hearing date, and so will accept 

10 written comments on the proposed rule until April 11, 

11 2013.

12 For those who will be providing oral 

13 comments today, I will call each scheduled speaker to 

14 the microphone, which is right there. When it is your 

15 turn to speak, please state your name and your 

16 affiliation. It will help the court reporter over 

17 there in preparing our transcript if you also spell 

18 your name. If you wish to speak but have not already 

19 registered to speak, either through the pre20 registration or today at the registration desk, please 

21 check in with our staff at the registration table 

22 located just outside the entrance to this room. 

23 That's Crystal outside.

24 We ask that you limit your testimony to not 

25 longer than five minutes. After you finish your 
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1 testimony, Mr. Wilcox or I may ask you clarifying 

2 questions to be sure that we and others in EPA 

3 understand your comments. If in addition to the 

4 transcript you would also like to put the full text of 

5 your written statements into the docket, please be 

6 sure to give a copy of any written comments to our 

7 staff at the registration table. We intend to stay 

8 until 6 p.m. this evening or one hour after the last 

9 registered speaker has spoken, whichever is later.

10 The lunch break is scheduled from 12:30 p.m. 

11 until 2 p.m. I would like to thank you all for 

12 participating today. And if I have a chance to call 

13 our first speaker, it's David Alvey.

14 MR. ALVEY: Good morning. I am David Alvey, 

15 A-L-V-E-Y. I'm the President of the Board of Public 

16 Utilities, Kansas City, Kansas. We appreciate this 

17 opportunity to present the Board of Public Utilities' 

18 views concerning the impact of EPA's proposal to issue 

19 a SIP call regarding Kansas regulation emissions 

20 during startup, shutdown, and malfunction, the effect 

21 it will have on BPU's efforts to comply with its 

22 obligations both to provide affordable, reliable 

23 electric service to its customers and to meet the 

24 several recent EPA rules limiting emissions by 

25 electric generating units.
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1 Just some basic facts about the Board of 

2 Public Utilities. We are a municipally owned, not3 for-profit utility. We are governed by an elected 

4 board. We are subject to the laws, the regulations, 

5 and Charter Ordinances of the Unified Government of 

6 Wyandotte County, Kansas City, Kansas. I and five 

7 other board members, together with our General 

8 Manager, Don Gray, who is present this morning, govern 

9 the day-to-day business and strategic business 

10 planning for the BPU.

11 The BPU operates water and electric 

12 utilities for the benefit of residents and businesses 

13 and industries in Wyandotte County and provides 

14 electricity for the operation of the public water 

15 supply for neighboring Johnson County, Kansas. The 

16 BPU also provides power to the City of Columbia, 

17 Missouri, and to the Kansas Municipal Electric 

18 Association for distribution.

19 In BPU's Wyandotte County service area, we 

20 have approximately 65,000 residential, commercial, and 

21 industrial electric BPU customers. Our larger 

22 customers include the Kansas Speedway, Hollywood 

23 Casino, and Schlitterbahn Vacation Village and Water 

24 Park, that makes up our village west area. It's the 

25 most popular tourist destination in Kansas.
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1 We also have several important industrial 

2 customers, General Motors, Certain Teed Corporation, 

3 Owens Corning, Procter & Gamble, Griffin Wheel, and 

4 the University of Kansas Medical Center. Nonetheless, 

5 Wyandotte County is one of the poorest counties in 

6 Kansas and by some statistics would be the poorest 

7 county in Kansas. More than 20 percent of our 

8 citizens live below the poverty level. Many of them 

9 are disabled. They live on fixed incomes.

10 We make sure our electric service is 

11 affordable for these and for all of our customers. 

12 That is our top priority. To that end, the BPU has 

13 managed its resources carefully to comply with 

14 applicable laws, including air quality laws and 

15 regulations, and to operate as a responsible utility 

16 that utilizes a mix of electric generation, including 

17 coal-fired units as well as renewables, wind, hydro, 

18 landfill gas, as well as energy efficiency programs.

19 The proposed rule would have its biggest 

20 impact on the BPU's operation of its three coal-fired 

21 electric generating units, two units at the Quindaro 

22 Station and one at the Nearman Station. These 

23 baseload units offer the most affordable electricity 

24 generation to our customers.

25 In addition to transmission constraints that 
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1 restrict BPU's ability to import electricity, one of 

2 the Quindaro units is for all practical purposes the 

3 only reliable source of electricity for about half of 

4 our residential customers, and that would be in the 

5 poorest area of the county.

6 All three units operate in compliance with 

7 the terms of their air permits and under the terms of 

8 the Kansas Clean Air Act State Implementation Plan. 

9 The Kansas SSM regulation at issue, Kansas 

10 Administrative Regulation ' 28-19-1, approved by the 

11 EPA in 1971, has been relied upon by the BPU since 

12 then to assure that BPU remains in compliance with 

13 applicable emissions requirements during times of 

14 startup, shutdown, and malfunction at its coal-fired 

15 units.

16 The Kansas SSM regulation is designed to 

17 cover very small periods of time in the range of .25 

18 to 1.5 percent when BPU's units are in operation. The 

19 amount of SSM emissions during these times does not 

20 jeopardize the air quality or the ability of the BPU 

21 to meet its emission obligations at other times. The 

22 Kansas SSM regulation, and as EPA's proposed rule 

23 recognizes, responds to this simple fact. Technology 

24 is imperfect.

25 Despite BPU's best efforts to maintain and 
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1 to operate our units within the financial limits of 

2 our not-for-profit charter and the political realities 

3 we face, emissions do vary. And the Kansas SSM offers 

4 a balance between assuring that the overall emissions 

5 limits are met and at the same time providing leeway 

6 for varying operating conditions. And this leeway 

7 assists the BPU in meeting its goal to provide 

8 reliable electricity that its customers can afford.

9 The Kansas SSM regulation offers protection 

10 against potential monetary penalties that could be 

11 incurred if some leeway is not allowed for the limits, 

12 as applied to BPU's current generation capability. As 

13 you are well aware, the size of the penalties can be 

14 multiplied very quickly into staggering amounts of 

15 money that would clearly cripple BPU significantly, if 

16 not fatally. And again, as a municipally-owned 

17 utility, should it cripple the BPU, it would also 

18 cripple our unified government.

19 While BPU understands that those penalties 

20 are intended to be an incentive to ensure compliance,

21 EPA's recent, more stringent emission limits places a 

22 tremendous compliance burden on BPU and other public 

23 power entities that given the legal and political 

24 realities we face simply cannot be speeded up 

25 regardless of the potential monetary penalties related 
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1 to violations.

2 To pick one example from the plethora of new 

3 Clean Air Act regulations that apply to electric 

4 generating units within which BPU must comply, we 

5 estimate that the controls necessary to meet the 

6 limits set by EPA's Mercury and Air Toxic Standards 

7 for the Nearman unit alone will cost $250 million. 

8 Obviously, it will cost even more to fund needed 

9 controls for our other units and for other EPA rules.

10 In today's economic and political climate, 

11 it has taken and will continue to take us considerable 

12 time to obtain all the approvals that we need from 

13 city, county, state, and federal governmental and 

14 regulatory bodies. There is no way around those 

15 realities. Making BPU subject to potential monetary 

16 penalties related to SSM events offers no realistic 

17 incentive for speeding this process. In fact, it 

18 would only make BPU's situation more difficult.

19 In sum, the bottom line is the BPU is making 

20 good faith efforts to comply with the regulation's 

21 requirements of the Clean Air Act. At the same time,

22 we have a specific responsibility to do so in a way 

23 that we can continue to sustain our county and our 

24 citizenry financially. And this additional burden 

25 would simply make that perhaps not possible.
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1 We don't need penalties to encourage us to 

2 make these changes. Thank you again for the 

3 opportunity to address this matter. If you have any 

4 questions, I'll be happy to answer them.

5 MR. DOUGHERTY: Thank you very much.

6 MR. ALVEY: Thank you.

7 MR. MANNING: Good morning. My name is 

8 Robert Manning. Excuse me. I'm with the law firm of 

9 Hopping Green & Sams in Tallahassee, Florida. I'm 

10 here today on behalf of the Environmental Committee of 

11 the Florida Electric Power Coordinating Group, also 

12 known as the FCG-EC. Thank you.

13 The FCG-EC is a nonprofit organization in 

14 the state of Florida that represents investor-owned 

15 utilities, electric cooperatives, and municipal 

16 utilities on environmental issues affecting the 

17 electric utility industry. The FCG-EC is very 

18 concerned about EPA's proposed SIP call relating to 

19 emissions during startup, shutdown, and malfunction. 

20 EPA's proposal has serious flaws and will have serious 

21 consequences if finalized as proposed.

22 Procedurally, EPA has not provided 

23 sufficient time to prepare comments in advance of this 

24 hearing today, and given the unique state-specific 

25 issues involved, the FCG-EC has requested that EPA 
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1 conduct hearings in each affected state or at a 

2 minimum in each EPA region.

3 Also, EPA is not providing sufficient time 

4 to develop meaningful comments on this proposal, and 

5 the FCG-EC has requested a 90-day extension of that 

6 public comment period until July 10, 2013. The FCG-EC 

7 is awaiting EPA's response. And I would like to ask 

8 at this time if EPA has a schedule for responding.

9 MR. WILCOX: It's been taken under 

10 advisement to evaluate anyone who's asked for an 

11 extension of time, and it will be evaluated.

12 MR. MANNING: Okay. Thank you. There are 

13 36 states directly affected by EPA's proposal, and no 

14 two state SSM rules are alike. Most of the provisions 

15 at issue were added to SIPs and approved by EPA 

16 decades ago. Florida's SSM rules, for example, were 

17 approved by EPA over 30 years ago. Notably, during 

18 this period, air emissions in Florida have decreased 

19 substantially, and there have been very few issues 

20 with attaining and maintaining the National Ambient 

21 Air Quality Standards.

22 The Clean Air Act authorizes EPA to issue a 

23 SIP call after it finds that a SIP is substantially 

24 inadequate. EPA's unsupported allegations do not meet 

25 this standard. EPA has declined to present any data 
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1 showing that any of the state rules are having a 

2 negative impact on the attainment or maintenance of 

3 National Ambient Air Quality Standards, nor any data 

4 that the rules are prohibiting or hindering 

5 enforcement.

6 In Florida, for example, we are not aware of 

7 any issue related to ambient standards and SSM rules, 

8 and EPA states in the proposal that Florida's rules 

9 are directly, "directly enforceable by the state, the 

10 EPA, [and] members of the public."

11 And I would also like to ask at this time --

12 I know that EPA did not provide any of that type of 

13 information, but does EPA have that information and it 

14 just doesn't feel that it needs to provide it, or --

15 MR. WILCOX: Well, I think we are interested 

16 in any data that you provide, Mr. Manning. We're 

17 certainly interested to see what you have. And this 

18 is something that the agency evaluates. As you know, 

19 we don't necessarily think it's necessary to establish 

20 those particular problems, but we are interested in 

21 what you have.

22 MR. MANNING: Great. Thank you. EPA has 

23 also declined to properly evaluate the substantial 

24 consequences of this proposal, which will involve 

25 revising 36 states' rules, including EPA's review and 
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1 approval of SIP provisions, revising every permit that 

2 contains the SSM rules at issue, which in Florida is 

3 every permit; developing reporting protocols for 

4 immediately advising permitting agencies, which will 

5 be a substantial increase in their workload; and the 

6 possibility of restricting operations, developing 

7 alternative SSM limits, reducing emissions, which is 

8 not even technically possible in many SSM situations, 

9 or reporting and annually certifying noncompliance 

10 regarding operations that are currently authorized.

11 In sum, there is no evidence of a problem 

12 here, and the consequences of EPA unraveling decades 

13 of history are severe. EPA's proposal contains 

14 serious flaws, and the FCG-EC requests that EPA 

15 reevaluate its action, develop additional data 

16 regarding its proposal, and provide additional time 

17 for the public to review and comment on such 

18 information.

19 Thank you for the opportunity to present our 

20 initial comments today.

21 MR. DOUGHERTY: Thank you.

22 MR. MANNING: Thanks.

23 MR. DOWD: Good morning. I am Michael Dowd, 

24 Director of the Air Division for the Virginia 

25 Department of Environmental Quality. Thank you for 
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1 the opportunity to provide oral comment on this 

2 proposed SIP call.

3 Virginia is one of the states affected by 

4 the proposed SIP call, which with respect to Virginia 

5 focuses exclusively on the alleged inadequacy of a 

6 single regulatory provision concerning malfunctioning 

7 facilities found at 9 Virginia Administrative Code 5-

8 20-180G.

9 Unfortunately, the proposed SIP call took 

10 that regulation out of context and failed to account 

11 for other provisions of Virginia's air pollution 

12 regulations that constrain DEQ's discretion with 

13 respect to malfunctions. EPA's proposed SIP call 

14 overlooked two significant Virginia regulatory 

15 provisions: 9 VAC 5-40-20E and 9 VAC 5-50-20E, which 

16 require owners to maintain and operate facilities and 

17 air pollution control equipment in a manner to 

18 minimize emissions at all times, including periods of 

19 malfunction. Both of these regulations are approved 

20 as part of the Virginia State Implementation Plan.

21 A related provision of Virginia's air 

22 pollution control regulations also ignored by EPA is 9 

23 VAC 5-20-180I, which requires facilities to operate in 

24 compliance with National Ambient Air Quality 

25 Standards. This provision allows DEQ to order a 
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1 facility to reduce operations or shut down if 

2 necessary in order to prevent a violation of a NAAQS. 

3 It does not exempt NAAQS exceedances caused by 

4 malfunctions.

5 Virginia's air pollution control regulations 

6 when read in their entirety do not give DEQ the 

7 discretion to allow a facility to operate in 

8 noncompliance with its emission limitations due to 

9 malfunction. In fact, Virginia facilities are under a 

10 continuing, federally enforceable obligation to 

11 minimize emissions at all times, including periods of 

12 malfunction.

13 Therefore, 9 VAC 5-20-180G simply does not 

14 present a bar to obtaining injunctive relief to remedy 

15 emission exceedances or NAAQS violations caused by 

16 malfunctions. Perhaps EPA's failure to consider the 

17 effect of these other regulations on 9 VAC 5-20-180G 

18 is understandable. After all, Virginia's air 

19 pollution control program is complicated.

20 However, the program was legally adopted by 

21 Virginia and approved by EPA in the SIP process in 

22 accordance with the Clean Air Act's mandate for a 

23 federal-state partnership.

24 Okay then. Virginia asks the following 

25 three things of EPA as it finalizes the SIP call. 
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1 First, have an open mind. EPA should carefully 

2 consider comments from affected states like Virginia. 

3 State air pollution control programs like Virginia's 

4 are complicated. EPA should recognize where it has 

5 overlooked or misinterpreted relevant provisions of a 

6 state air pollution control program and revise the 

7 final SIP call accordingly.

8 Second, EPA should respect the federal-state 

9 partnership created by the Clean Air Act. The Agency 

10 should not substitute its judgment for that of a state 

11 absent clear evidence that the state implementation 

12 plan violates the Clean Air Act and is not merely at 

13 odds with EPA guidance. EPA therefore should not 

14 focus on whether a single provision of the Virginia 

15 SIP adheres to the letter of unpromulgated guidance 

16 documents.

17 Instead, EPA should consider whether the 

18 Virginia SIP as a whole provides the state with 

19 effective tools to ensure that malfunctioning 

20 facilities are brought into compliance with their 

21 emission limitations as soon as possible. The current 

22 Virginia SIP does that.

23 Indeed, Virginia's approach is at least as 

24 protective of the environment as EPA's, if not more so 

25 because it focuses on the rapid resolution of 
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1 malfunctions without first resorting to enforcement. 

2 Initial resort to the enforcement process is not the 

3 appropriate way to resolve emission exceedances caused 

4 by malfunctions that are beyond the control of a 

5 facility. That approach is neither required by the 

6 Clean Air Act nor conducive to the prompt resolution 

7 of malfunction situations.

8 And third, EPA should not impose a one-size9 fits-all solution on states affected by this proposal. 

10 State air pollution control programs and state 

11 implementation plans are unique. Therefore, solutions 

12 to fix alleged deficiencies in individual SIPs should 

13 be custom-tailored to individual state programs.

14 Again, thank you for this opportunity to 

15 make this presentation. The Virginia DEQ will be 

16 submitting written comments on this proposal, and I 

17 have copies of my oral statement also available if 

18 you'd like those. We look forward to working with EPA 

19 to achieve a fair resolution of this matter. I'd be 

20 happy to answer any questions.

21 MR. WILCOX: Thank you, Mr. Dowd. And as 

22 you said, your comments that you have articulated, you 

23 have them?

24 MR. DOWD: Yes, sir. Yes, sir.

25 MR. WILCOX: Appreciate it. Thank you for 
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1 commenting.

2 MR. DOWD: You're welcome.

3 MR. DOUGHERTY: We have no one immediately 

4 scheduled next. We'll take a 10-minute break.

5 (Whereupon, a brief recess was taken.)

6 MR. DOUGHERTY: Back on the record. 

7 Stephanie Maddin.

8 MS. MADDIN: (Away from the microphone.)

9 MR. DOUGHERTY: I'm sorry? Yes. Right up 

10 there, please.

11 MS. MADDIN: And I have a couple of -- a 

12 copy for the person that's I guess doing the --

13 MR. DOUGHERTY: We can take that, that's 

14 fine. Thanks a lot.

15 MS. MADDIN: I can just go ahead? Okay. 

16 Good morning. My name is Stephanie Maddin. I'm 

17 legislative counsel at the D.C. office of 

18 Earthjustice. I will be reading testimony prepared by 

19 Paul Cort, the practice chair for our air practice 

20 group at Earthjustice. We're also going to be filing 

21 more robust technical comments, so this is just going 

22 to be a brief summary.

23 We welcome EPA's action to remove the 

24 numerous state exemptions that have excused pollution 

25 violations caused by startups, shutdowns, and 
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1 malfunctions. These loopholes undermine the public 

2 health and welfare guidelines and guarantees of the 

3 Clean Air Act. The Clean Air Act envisions a state4 federal partnership in ensuring that areas with 

5 unhealthy air quality clean up pollution, but this 

6 deference to states has been abused and used as an 

7 excuse to ignore practices that undermine the more 

8 basic goals and promises of the Act.

9 We agree with EPA that the Act compels EPA 

10 to remove SSM exemptions from state implementation 

11 plans. We disagree, however, with the proposed 

12 conclusion that some affirmative defenses can be 

13 retained where they are limited to a defense against 

14 penalties for unavoidable malfunctions. We will 

15 submit our legal comments in writing.

16 Today, I just want to focus on the reasons 

17 why EPA's decision to allow these affirmative defenses 

18 is bad policy. There can be no dispute that 

19 malfunctions injure public health and welfare. It 

20 does not matter that they are accidents or that they 

21 are unplanned. When those events result in spikes in 

22 pollution, the surrounding communities suffer and 

23 sometimes in horribly tragic ways.

24 As such, EPA policy should be to minimize 

25 these events. EPA acknowledges in the proposal that 
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1 "Removal of [the] monetary incentive to comply with 

2 the SIP reduces a source's incentive to design, 

3 operate, and maintain its facility to meet emission 

4 limitations at all times" (78 Fed Reg. at 12485). 

5 This incentive applies equally to malfunctions. 

6 Sources can be designed to be more or less failsafe. 

7 Even when accidents happen, the consequences can be 

8 more or less severe depending on the investments and 

9 the decisions that the source has made in anticipation 

10 of such upsets.

11 These decisions regarding -- are cost12 benefit calculations made by the sources, the costs of 

13 building in safety compared to the risks and costs of 

14 failure. Allowing states to waive penalties for 

15 malfunctions undermines the incentives to make sure 

16 accidents simply don't happen. So why would EPA allow 

17 such exemptions?

18 The theory seems to be one of fairness. But 

19 nothing prevents enforcement agencies or the courts 

20 from exercising such notions of fairness. EPA's 

21 approach short-circuits that case-specific analysis 

22 for no apparent reason other than to undermine the 

23 preventive incentives that penalties provide. EPA 

24 should abandon the proposed distinction between 

25 planned and unplanned events and remove all exemptions 
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1 and affirmative defenses from these SIPs.

2 Thank you, and that's the conclusion of my 

3 testimony.

4 MR. DOUGHERTY: Thank you. Thank you very 

5 much. Our next speaker isn't until 10:30, so we will 

6 break until then.

7 (Whereupon, a brief recess was taken.)

8 MR. DOUGHERTY: Let me call Jeff Holmstead.

9 MR. HOLMSTEAD: Well, thank you for giving 

10 me the chance to speak today. I'm a little behind 

11 schedule because I think the wrong address may have 

12 been on the -- so I went to the other building.

13 MR. DOUGHERTY: I apologize for that.

14 MR. HOLMSTEAD: No, no. I just -- you would 

15 think I would know where I was going. My name is Jeff 

16 Holmstead. I'm speaking this morning on behalf of the 

17 Electric Reliability Coordinating Council.

18 MR. DOUGHERTY: Just a second, Mr. 

19 Holmstead. Is the microphone turned on so that other 

20 people can hear? I'm sorry. I can barely hear myself 

21 over the rain.

22 MR. HOLMSTEAD: Yes.

23 (Pause.)

24 MR. HOLMSTEAD: All right. Can you hear me 

25 better now?
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1 MR. DOUGHERTY: That's better, okay. With 

2 all that rain, it was hard to hear.

3 MR. HOLMSTEAD: All right. No. I thought 

4 that was maybe something that Bruce Buckheit arranged 

5 to drown out my testimony. But as I think the two of 

6 you know, I've worked on Clean Air Act issues for 

7 almost 25 years as a member of the White House staff 

8 during the debate over the enactment and 

9 implementation of the 1990 amendments, then as an 

10 attorney in private practice, and also as the head of 

11 EPA's Air Office from 2001 to 2005.

12 As I've said many times, I have a great deal 

13 of respect for my former colleagues at EPA and do 

14 recognize that they do a great deal of important work 

15 to protect human health and the environment. The 

16 proposed SIP calls unfortunately do not fall into this 

17 category and in my view represent EPA at its worst.

18 As the result of private negotiations 

19 between EPA and a single environmental group, EPA now 

20 proposes to impose a very substantial burden on 36 

21 states by forcing them to change regulatory provisions 

22 that were previously approved by EPA and in most cases 

23 have worked quite well for many decades.

24 This is especially troubling in light of the 

25 fact that these SIP calls at least according to EPA 
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1 will have little or nothing to do to improve air 

2 quality or public health. As the proposal itself 

3 makes clear, EPA and states already have all the tools 

4 they need to regulate emissions that occur when a 

5 plant is starting up or shutting down. There's never 

6 been any question about EPA's ability to impose 

7 injunctive relief.

8 So the only purpose as far as I can see of 

9 the proposed SIP call is to make it easier for a 

10 handful of environmental advocacy groups to bring 

11 lawsuits seeking monetary penalties. If EPA finalizes 

12 these SIP calls as proposed, 36 states will be forced 

13 to use their limited resources to go through a long 

14 and cumbersome regulatory process that in the end will 

15 do nothing to improve public health or the environment 

16 but will enrich a small group of plaintiffs' lawyers. 

17 This strikes me as a silly waste of time and 

18 resources.

19 But it's not just a waste of time and 

20 resources. It also represents, I think, a fundamental 

21 shift in the balance that Congress struck in the Clean 

22 Air Act between states and EPA. Congress and a number 

23 of courts, including the Supreme Court, have made it 

24 clear that states do have broad discretion in terms of 

25 how they deal with sources of emissions within their 
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1 boundaries, and EPA cannot force a state to change its 

2 SIP unless the SIP is "substantially inadequate, one, 

3 to attain or maintain a national ambient air quality 

4 standard; or two, substantially inadequate to comply 

5 with certain specific enumerated requirements in 

6 section 110 of the Clean Air Act," unquote.

7 Now this proposal does not say that these 

8 provisions somehow make the SIP substantially 

9 inadequate to attain or maintain the NAAQS. Instead, 

10 EPA has apparently discovered a new requirement in 

11 section 110 that EPA is now announcing for the first 

12 time in the proposed SIP call. Apparently, the Clean 

13 Air Act makes it very clear that states must allow 

14 lawsuits to be brought to seek monetary penalties for 

15 emissions that occur during startup and shutdown even 

16 though state environmental officials believe that 

17 there is nothing that can be done to reduce these 

18 emissions.

19 This is puzzling to think that a 

20 disagreement over this issue has now made 36 state 

21 implementation plans substantially inadequate. In the 

22 proposed SIP calls, EPA finds fault with any SIP that 

23 provides state officials with any discretion in 

24 deciding whether monetary fines should be imposed for 

25 emissions that occur when a plant is starting up or 
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1 shutting down.

2 This actually is amazing to me, that EPA is 

3 critical of allowing even this little bit of amount of 

4 discretion for state officials when in recent years 

5 EPA has claimed enormous discretion for itself over a 

6 number of matters that are much more important in 

7 terms of protecting air quality. So EPA apparently 

8 can exercise enormous discretion where states can't 

9 even have this little bit of discretion.

10 Perhaps as troubling as the substance is the 

11 process by which the SIP calls were developed. They 

12 were issued, as I mentioned before, as a result of 

13 negotiations. EPA is very clear about that. And so 

14 apparently while there have been ongoing discussions 

15 between one environmental advocacy group and EPA 

16 officials now for over two years, the states who are 

17 now being told that they have 30 days to comment on 

18 this proposal have been left out of that process.

19 I think it is troubling that now after more 

20 than two years of apparent discussions between EPA and 

21 Sierra Club, the 36 states that are affected now have 

22 been told they have only 30 days to deal with this 

23 fundamental shift in the way the Clean Air Act works. 

24 So I just find it troubling that at a time when EPA 

25 has limited and diminishing resources, when states 
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1 have limited and diminishing resources, we're being 

2 told that people need to spend their time focusing on 

3 this as a nonissue that really only matters to a small 

4 group of people that like to bring lawsuits.

5 So, as you may have inferred from my 

6 comments, I'm not in favor of the proposal. I think 

7 at the very least EPA is going to be under some 

8 pressure to allow for additional time for comment 

9 beyond the 30 days. So, at the very least, I think 

10 that's something that states and companies who are 

11 affected by these changes deserve. So, if you have 

12 any questions, I'd be happy to answer.

13 MR. WILCOX: Mr. Holmstead, thank you very 

14 much for your testimony. We assume you'll be giving 

15 us more detailed written comments.

16 MR. HOLMSTEAD: Yes, we will be. Thank you.

17 MR. WILCOX: Great. Thank you very much.

18 MR. DOUGHERTY: Bruce Buckheit.

19 MR. BUCKHEIT: Good morning. Thank you for 

20 the opportunity to comment on EPA's proposed response 

21 to the petition filed by the Sierra Club requesting 

22 that EPA address a number of allegedly deficient 

23 startup, shutdown, and malfunction state 

24 implementation plans.

25 My name is Bruce Buckheit, and I reside in 
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1 Fairfax, Virginia. From 1984 until 2003, I served as 

2 the Senior Counsel in the Environmental Enforcement 

3 Section of the Justice Department prosecuting 

4 violations of the nation's environmental statutes, 

5 including the Clean Air Act.

6 Subsequently, I served as the Director of 

7 EPA's Air Enforcement Division. I coordinated 

8 headquarters and regional enforcement activities with 

9 state and local air program managers to advance the

10 efficacy and efficiency of both federal and state 

11 programs.

12 Since my retirement from federal service in 

13 2003, I have worked as a consultant in energy and 

14 environmental issues for a broad range of clients, 

15 including federal and state agencies, corporations, 

16 and NGOs. I also served a four-year term as a member 

17 of Virginia's Air Pollution Control Board, which under 

18 Virginia statutes oversees the Virginia DEQ and the 

19 implementation of Virginia's air program.

20 The remarks that I provide today are based 

21 on my years of experience in these matters and do not 

22 represent views of any organization other than myself. 

23 In other words, I'm speaking on behalf of myself. And 

24 I find that for not the first time in the past decade 

25 I disagree with my former colleague, Mr. Holmstead, as 
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1 to the appropriateness of addressing the deficiencies 

2 in the SIPs that the Sierra Club has identified.

3 The SIP provisions that the Sierra Club has 

4 identified are inconsistent with the Clean Air Act as 

5 a matter of law, and they're poor policy choices as a 

6 matter of policy. EPA's proposal to correct these 

7 deficient SIPs is long overdue and should be adopted 

8 without delay.

9 Prior to 1955, state and local governments 

10 were solely responsible for addressing the problem of 

11 air pollution and developing regulations to address 

12 excessive air pollution. In 1955, a federal presence 

13 was commenced with the Air Pollution Control Act of 

14 1955, which provided limited research and development 

15 capabilities but no broad oversight authority.

16 In the decades or so that followed, it was 

17 widely understood that state regulation by itself of 

18 air pollution failed. And so the 1970 Clean Air Act 

19 established a strong federal presence, defined 

20 specific targets and established obligations on the 

21 newly created EPA to maintain a level playing field 

22 among states and prevent the race to the bottom that 

23 had prevented or interfered with state efforts to 

24 address the problem in the first instance.

25 While section 101 of the Clean Air Act does 
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1 contain hortatory language suggesting that Clean Air 

2 Act protections are the primary responsibility of the 

3 states, the first listed purpose of the Clean Air Act 

4 is to protect and enhance the quality of the nation's 

5 air resources.

6 Importantly, the Clean Air Act does not 

7 merely encourage states to submit SIPs or say that 

8 they should submit SIPs. It says that they shall 

9 submit SIPs. While it's left to state and local 

10 authorities to determine the best mix of pollution 

11 controls and where and which sources should be 

12 controlled to meet defined budgets, it is not left to 

13 states to determine that compliance should be 

14 voluntary or should be based on encouragements.

15 Rather, the SIPs under the Clean Air Act 

16 must contain enforceable emission limitations 

17 sufficient to meet the Clean Air Act's requirements on 

18 a continuous basis. Further, the Clean Air Act 

19 mandates, that is to say, it requires that EPA review 

20 and approve each SIP. And the Clean Air Act states 

21 that EPA shall require, shall require -- it's not 

22 optional on EPA's part. EPA shall require a state to 

23 revise a SIP whenever it finds that that plant is 

24 substantially inadequate.

25 Thus, one good reason for EPA to make the 
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1 SIP corrections suggested by the Sierra Club petition 

2 is that as a law enforcement agency EPA should itself 

3 comply with the law as set out in the Clean Air Act.

4 At its core, the Sierra Club petition 

5 identifies a number of state SIP provisions that are 

6 identical to SIP provisions that EPA has determined to 

7 be inadequate and rejected. These broad startup, 

8 shutdown, malfunction, scheduled maintenance, and 

9 director discretion issues have been identified in 

10 several public policy determinations over the years 

11 and in a number of SIP disapprovals over the time.

12 While it can be argued that nothing in the 

13 Clean Air Act requires EPA to go back over the past 30 

14 years and root out and find all the errors that may 

15 have crept into the program, once this issue is put in 

16 front of it squarely by the Sierra Club petition, it's 

17 difficult to see how EPA could deny the petition 

18 without reversing 30 years of policy as set out by the 

19 Bennett and Herman memoranda.

20 EPA's written policy on excess emissions 

21 during startup and shutdown relies on the statutory 

22 requirement that sources must comply with emission 

23 limits at all times. EPA's policy does not require 

24 that sources comply with emission limitations that are 

25 technically infeasible. And so this whole proceeding 
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1 is not about attempting a game of gotcha where sources 

2 can be caught up with emission limitations that they 

3 can't meet but rather in an effort to provide more 

4 accurate and technically sound emission limitations so 

5 that these broad-based exemptions don't result in a 

6 broad category of emissions that simply aren't 

7 captured by the program.

8 For example, oftentimes NAAQS control 

9 devices in particular require that the operating unit 

10 be up to a certain temperature before you start 

11 injecting ammonia, and so it is reasonable to provide 

12 specific startup provisions for that kind of an 

13 operation. But there's nothing in the technology of, 

14 for instance, a fabric filter that would require that 

15 kind of exemption based on temperature.

16 A broad-based exemption that just covers 

17 startup periods exempts both of these technologies, 

18 and obviously the latter technology, there's no need 

19 for that. Similarly, when permitting authorities pay 

20 attention to startup issues, you see provisions such 

21 that, for example, coal-fired sources must start up on 

22 natural gas, or oil-fired units are not -- oil is not 

23 allowed to be fired because it would clog an ESP, for 

24 instance. And those kind of technical limitations are 

25 what we're talking about addressing, specifically 
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1 through better permitting.

2 Perhaps the most important reason to correct 

3 the deficient SIPs is that it's good policy. 

4 Obtaining optimum emission reductions from already5 installed pollution control devices is highly 

6 efficient. Correcting the SIPs, as suggested by the 

7 Sierra Club, also provides a level playing field with 

8 those states that have complied with the Clean Air Act 

9 and are currently disadvantaged in that race to the 

10 bottom when competing for new industry in the states 

11 that have the deficient SIPs.

12 Here it should be understood that where 

13 pollution controls that achieve a 90 to 99 percent or 

14 better control efficiency, bypassing those controls 

15 could substantially increase emissions. For example, 

16 bypassing a PM control device with a control 

17 efficiency of 99.8 increases the emission factor by --

18 increases the emission rate by a factor of 500 over 

19 uncontrolled and the modeled emission rates.

20 Thus, bypassing that fabric filter or ESP 

21 for just 1.5 hours a month doubles the annual PM 

22 emissions from the unit, and at 500 times the normal 

23 emission rate, such emission rates can threaten short24 term national ambient air quality standards as well.

25 Startup and shutdown policies should also 
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1 reflect the fact that startup times for large coal2 fired units can approach or exceed 24 hours, that 

3 simple cycle turbines can go through several shorter 

4 startup and shutdown cycles each day, and that batch 

5 processing operations at synthetic chemical 

6 manufacturing facilities can spend the majority of 

7 their time in startup and shutdown modes.

8 Under broadly structured startup and 

9 shutdown provisions, these emissions are not reliably 

10 tracked or accounted for in the SIP demonstration 

11 modeling, and that is a key point. It is not that one 

12 should expect a control technology to operate at 100 

13 percent effectiveness at all times. It's that you 

14 understand when they can't operate at full capacity, 

15 and you account for those excess emissions in the SIP

16 demonstration process.

17 Those emissions are real. They show up in 

18 the air we breathe and in the monitoring that 

19 ultimately demonstrates whether or not the SIP has 

20 been achieved. Eliminating the broad exemption for 

21 startup and shutdown will not lead to the imposition 

22 of infeasible obligations but simply focus the 

23 attention of permitting authorities and lead to a set 

24 of requirements that is tailored to the particular 

25 technology that is in place.
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1 It should be noted that a number of states 

2 have for several decades enforced SIPs that do not 

3 contain an exemption for startup and shutdown 

4 operations, and I'm unaware of any significant 

5 difficulty that those SIPs have presented either for 

6 the permitting authorities or for the states -- for 

7 the sources located in those states.

8 Now EPA has proposed to alter the existing 

9 policy to provide for the imposition of civil 

10 penalties for failure to comply with emission 

11 limitations during startup and shutdown. This is 

12 entirely appropriate since such limitations will 

13 reflect the performance and operating practices that 

14 are expected during startup and shutdown given the 

15 limitations of the technology.

16 Thus, for instance, where a source has a 

17 permit that instructs it only to fire natural gas 

18 until a certain operating temperature is reached, if 

19 that source violates that restriction, it's like any 

20 other restriction in the permit and should be treated 

21 no differently. I mean, the key here is to tailor the 

22 operating limitation to what the technology can do.

23 There was a pitched battle in the '70s over 

24 whether compliance was to be continuous or 

25 intermittent. This was a highly visible confrontation 
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1 that TVA led the charge on, and it went on for some 

2 time. It was a highly visible activity. For this 

3 reason, the inclusion of the continuous compliance 

4 language in section 110 is not to be dismissed 

5 lightly.

6 As with startups and shutdown, any 

7 malfunction event that leads to a bypass of a 

8 pollution control device or operation of a process 

9 unit without a functioning control device can result 

10 in dramatically increased emissions that threaten both 

11 long- and short-term max limits.

12 The Sierra Club petition identifies a number 

13 of SIPs that are clearly deficient. Some extreme 

14 examples include one state that exempts emissions from 

15 failure of any component at a facility, irrespective 

16 of whether the source had attempted to minimize 

17 emissions, and another where emissions are exempted so 

18 long as they are infrequent or brief. These are 

19 subjective terms that cannot be reliably enforced.

20 One SIP limits malfunction excuses to 15 

21 percent of the operating time of the unit, implicitly 

22 authorizing exempted emissions many times the 

23 permitted limits of facilities in that state. Such 

24 releases can also pose substantial threats to the 

25 public health beyond the NAAQS through uncontrolled 
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1 releases of benzene, chromium, and other hazardous air 

2 pollutants that are otherwise captured by the 

3 pollution controls required under the SIP.

4 A weakness experience with uncontrolled 

5 flaring in refinery enforcement initiative of a decade 

6 ago shows that with proper attention by management the 

7 frequency of malfunction events can be substantially 

8 reduced. Emission during malfunction events should 

9 not be exempt but should be covered so that it is 

10 clear to permitting agencies and sources that 

11 preventive agency programs can be developed and 

12 required where appropriate.

13 The penalty issue during the time of 

14 malfunction is a little more complicated issue. EPA 

15 has proposed to retain its current policy for penalty 

16 assessments that occur as a result of malfunction 

17 events. On its face, this exemption is neither lawful 

18 nor necessary because if emissions are in fact covered 

19 by a SIP, then section 113 is pretty clear that 

20 exceedances of the SIP limit are subject to 

21 enforcement action, including penalties.

22 Additionally, it doesn't seem appropriate to 

23 instruct an Article III judge in penalty issues where 

24 Congress does not. And yet it seems foolish to 

25 suggest that a source should be subject to penalties 
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1 for an occurrence that is entirely beyond its control, 

2 and at least one court has endorsed EPA's approach.

3 In many federal programs, this issue is 

4 addressed by way of grants of enforcement discretion 

5 where EPA in effect authorizes the use of 

6 noncompliance gasoline during or after a blizzard or 

7 additional hours of operation has occurred.

8 MR. DOUGHERTY: I'm sorry, Mr. Buckheit. We 

9 are required to keep public statements to about a 10-

10 minute minimum.

11 MR. BUCKHEIT: Okay.

12 MR. DOUGHERTY: We will accept any written 

13 comments you have, though, at any length.

14 MR. BUCKHEIT: Thank you. I will submit the 

15 rest of my comments for the record.

16 MR. DOUGHERTY: Thank you, Mr. Buckheit, for 

17 your comments. And any other speaker who had more 

18 extended comments who'd like to pass forward now --

19 Mr. Buckheit was our last registered speaker of the 

20 morning, so anyone else feel free to step forward.

21 MR. WILCOX: Mr. Dowd, would you have more 

22 that you would want to say since you're with us? Do 

23 you want to add to your comments since you're still 

24 with us? Okay.

25 (Whereupon, a luncheon recess was taken.)

26
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1 A F T E R N O O N S E S S I O N

2 (2:00 p.m.)

3 MR. DOUGHERTY: Good afternoon. My name is 

4 Joseph Dougherty, and I'm representing the EPA's 

5 Office of Air Quality Planning and Standards. Joining 

6 me on the panel is Geoff Wilcox, representing the 

7 Office of General Counsel.

8 I'll run through the introduction more 

9 briefly than this morning. Thank you all for 

10 attending this public hearing held by the U.S. EPA. 

11 We're holding this hearing to take comment on EPA's 

12 proposed rulemaking entitled, "State Implementation 

13 Plans: Response to Petition for Rulemaking; Findings 

14 of Substantial Inadequacy; and SIP Calls to Amend 

15 Provisions Applying to Excess Emissions During Periods 

16 of Startup, Shutdown, and Malfunction."

17 This proposed rulemaking concerns the 

18 treatment of excess emissions of air pollution that 

19 may occur when an industrial facility is starting up 

20 or shutting down or when a malfunction occurs, 

21 specifically, how those emissions are treated in state 

22 implementation plan provisions. Air pollution emitted 

23 during these periods of startup, shutdown, or 

24 malfunction may adversely affect the health of people 

25 nearby and may contribute to smog and other problems 
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1 in communities that are further downwind. The 

2 proposed rulemaking was published in the Federal 

3 Register on February 22, 2013, at page 12460.

4 At today's hearing, we're accepting oral 

5 comments on the EPA's proposed rulemaking, and we'll 

6 be preparing a written transcript of this hearing. 

7 The transcript will be available to the public as part 

8 of the official record of this rule, and EPA will 

9 consider both oral comments and written comments as we 

10 move forward in the rulemaking process.

11 We're accepting written comments on the 

12 proposed rule until April 11, 2013. We have a fact 

13 sheet available in the registration area that 

14 summarizes our proposed action. It includes detailed 

15 information for submitting written comments. If you 

16 wish to speak but have not already registered to do 

17 so, please check in with our staff at the registration 

18 table located just outside the entrance to this room.

19 We intend to stay until either 6 p.m. this 

20 evening or one hour after the last registered speaker 

21 has spoken, whichever is later.

22 Again, thank you for participating in our 

23 public hearing today. I'll now reopen the floor for 

24 oral testimony. We ask that you limit your testimony 

25 to no longer than five [sic] minutes. We have a 
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1 little light up here that helps you out. It goes 

2 green, then yellow, then red. And first is Leslie 

3 Ritts.

4 MS. RITTS: Five minutes? I thought it was 

5 10. We'll just get through it.

6 MR. DOUGHERTY: We will cut you off promptly 

7 in time just in general.

8 MS. RITTS: Thank you. I'm here 

9 representing the National Environmental Development 

10 Association's Clean Air Act Project. We're a 

11 multisector manufacturing coalition, and we've been 

12 around since 1979. Our goal is to offer a balanced 

13 perspective on protecting the environment while giving 

14 appropriate attention to issues that manufacturers 

15 face in the global economy.

16 We appreciate the opportunity to testify on 

17 the proposed findings of SIP inadequacies and the SIP 

18 call to amend state provisions to exclude from 

19 violations excess emissions during SSMs. I will refer 

20 to startup, shutdown, and malfunctions as SSMs, as I'm 

21 sure many of the speakers have already.

22 We also appreciate the opportunity to 

23 comment on the availability of the affirmative defense 

24 if excess emissions occur during at least 

25 malfunctions, which petitioners seek to have 
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1 rescinded. NEDA/CAP's members own and operate plants 

2 throughout the country and thus are subject to the SIP 

3 requirements as well as national emission standards 

4 and requirements and are directly affected by both 

5 regulatory and legal issues in this rulemaking 

6 package.

7 The subject of this rulemaking and the 

8 Petition for Rulemaking filed by citizen groups 

9 addresses the startup, shutdown, and malfunction of 

10 plant process equipment. EPA's SSM policy has been an 

11 issue of concern to our members since 1982-83 when 

12 Assistant Administrator Kathleen Bennett issued 

13 guidance documents to regional EPA offices and the 

14 states regarding emission violations during SSMs.

15 At this time, our members have been -- since 

16 that time, NEDA's members have been in lengthy 

17 discussions with Agency officials regarding 

18 significant concerns that plants have during startup 

19 and shutdown of process equipment and also the 

20 emission consequences of malfunctions when process 

21 equipment malfunctions make it critical to vent to 

22 atmosphere in order to prevent harm to employees and 

23 process equipment.

24 We've been particularly proactive in 

25 reducing emissions from flaring frequently associated 
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1 with certain types of SSM events and in designing SSM 

2 plants and O&M procedures for process equipment to 

3 prevent excess emissions. Beyond reducing the need 

4 for flaring, it should be noted that when new 

5 industrial processes are designed or modified, 

6 rigorous evaluations are undertaken by the companies 

7 to identify potential issues and risks that can occur 

8 during startup and shutdown and to design and maintain 

9 equipment to minimize those risks.

10 In 1999, NEDA/CAP challenged EPA's excess 

11 emissions policy in the D.C. Circuit as an unlawful 

12 rulemaking because of the policy's significant legal 

13 and operational consequences to our members. That 

14 litigation led to an agreement that EPA would apply 

15 the 1999 guidance policy prospectively but not 

16 retroactively to state and local air pollution 

17 requirements that the Agency already had approved in 

18 prior SIP actions.

19 Our other concern was that the policy 

20 impermissibly interfered with state discretion to 

21 decide its own SIP strategy, including how each state 

22 established technology-based standards and limits on 

23 EPA's authority and, excuse me, their SIP strategies, 

24 including how each one established technology-based 

25 emission standards and limitations, and that EPA's 
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1 authority was limited to thereafter approving or 

2 disapproving such strategies absent evidence of NAAQS 

3 violations, in which case other procedures for 

4 redesignation in new SIP planning figured in.

5 Even with the notice and opportunity EPA is 

6 now providing for comments on these SIPs and SIP 

7 calls, without evidence that SSM exclusions violate a 

8 NAAQS, we believe EPA's proposed action is 

9 inconsistent with the Clean Air Act, its legal 

10 structure, and its federalist underpinnings.

11 The February 2013 proposed findings of SIP 

12 deficiency and associated SIP calls are of even 

13 greater concern to NEDA/CAP because of their effect on 

14 startups and shutdowns for process equipment. The 

15 proposed rule would require states to remove general 

16 exclusions for startups and shutdowns because EPA 

17 argues those SIP emission limits are continuous 

18 operating requirements even though when states adopted 

19 the measures they were not intended to be continuous 

20 operating requirements.

21 Like the federal NSPS, such emission limits 

22 were set historically for normal representative 

23 operations and thus excluded emissions, including 

24 excess emissions, during equipment startup and 

25 shutdown. While most equipment is not turned on any 
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1 longer by lighting a fire in a fire box, process 

2 equipment also is generally not started by flipping on 

3 a switch.

4 Most equipment has to be evaluated and 

5 warmed up before it is used, and purging the equipment 

6 of dust and other fine particles or VOCs left from 

7 reactions or to prevent contamination to the equipment 

8 from other processes when the equipment is campaigned 

9 for other products prevents fires and potential 

10 explosions that can be dangerous. Add to the fact 

11 that few plants in the U.S. run three shifts a day and

12 they shut down to conserve raw material resources and 

13 energy, it's also critical for EPA and the public to 

14 be aware of these facts in the context of this 

15 proposed action.

16 We'd like to call EPA's attention to the 

17 fact that the NSPS shutdown provisions highlight that 

18 operations during periods of SSM shall not constitute 

19 representative conditions for the purpose of 

20 performance tests, nor shall emissions in excess of 

21 the level of the applicable emission limit during 

22 periods of SSM be considered a violation of the 

23 applicable emission limit unless otherwise specified.

24 Removal of excess emission exclusions for 

25 startup, shutdown provisions in the SIPs necessarily 
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1 makes the standards tighter and violates the Clean Air 

2 Act's provisions by disallowing state discretion for 

3 them to design their own SIP strategies.

4 As NEDA/CAP will detail in our written 

5 comments, many NSPS and MACT requirements now include 

6 detailed SU/SD procedures following the Court's 

7 decision vacating the general MACT SSM provisions in 

8 Sierra Club v. EPA. NEDA was a party in that case.

9 For instance, in the gas turbine NSPS, the 

10 standards exclude emissions during SU/SD from the 

11 standards for important technical reasons. Many 

12 turbines use steam injection and SCR technologies to 

13 reduce NOx emissions. So during the startup of a 

14 diffusion flame stationary combustion turbine at a 

15 cogeneration facility, which generates steam for use 

16 at the facility as well for steam injection in the 

17 turbine engine itself, it takes time for the hot air 

18 to start from the turbine to generate steam necessary 

19 for NOx emission reduction in the turbine.

20 In addition, it takes time for exit 

21 temperatures of the hot air in the SCR ductwork to 

22 stabilize to the proper temperature necessary for 

23 effective SCR/NOx reduction. There is no way for this 

24 type of system or many similar systems to meet the NOx 

25 emissions limits during startup or shutdown.
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1 Let me cruise forward, and you can read some 

2 of the testimony yourself. We think it's extremely 

3 troubling that EPA has given little thought to the 

4 resources that the state and local agencies will need 

5 to direct to the SIP provision process if the proposed 

6 actions are finalized.

7 In the aftermath of Sierra Club v. EPA, 

8 vacating the general MACT provisions, the Agency and 

9 DOJ combed through all the MACTs that had been issued 

10 identifying first whether the NESHAPs relied on the 

11 general MACT SSM exclusion by incorporating 40 C.F.R. 

12 63.6(e) by reference, then reviewing the specific 

13 provisions of either -- of other NESHAPs, excuse me, 

14 that did not incorporate the SSM exclusion by 

15 reference.

16 Then the Agency reopened most of the latter 

17 MACTS for industries on which the Agency relied on the 

18 63.6 exclusion, and with industry consultation, 

19 emissions testing, and other resources, modified those 

20 standards for which emissions increases were valid to 

21 expect during startup and shutdown.

22 States don't have the resources to rectify 

23 emission standards which were adopted and approved by 

24 EPA historically to graft onto those standards the 

25 existing startup and shutdown provisions. And this 
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1 notice doesn't even hint that this is what a state 

2 will be required to do to allow most industries to 

3 continue to operate their equipment so as not to be in 

4 violation of a RACT or other technology-based 

5 requirement.

6 The proposed action also doesn't consider 

7 the impact or the cost of removing SSM SIP exclusions 

8 from existing operating permits. The rulemaking 

9 mentions only state requirements adopted under 40 

10 C.F.R. 70.6(g) applicable to emergencies, not to these 

11 types of malfunctions. The rule does not consider the 

12 fact that Congress intended that the Title V operating 

13 permits mirror Clean Air Act requirements, including 

14 those in the SIPs.

15 Removal of the existing air pollution 

16 control standards adopted and implemented by the 

17 states in the federal operating permits will pose 

18 additional significant compliance and operational 

19 difficulties and administrative costs, largely because 

20 those requirements are found in the general 

21 provisions.

22 We're going to -- would you like me to stop?

23 MR. DOUGHERTY: I'm sorry. I do have to cut 

24 you off. I'm sorry.

25 MS. RITTS: Okay. I thought I had 10 
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1 minutes, so I apologize. We want to definitely 

2 support the affirmative defenses.

3 MR. DOUGHERTY: We will definitely accept 

4 all written comments and your full comments at this 

5 time.

6 MS. RITTS: We'll submit full written 

7 comments, especially on the affirmative defenses, but 

8 I appreciate the opportunity to get up here and tell 

9 you how exercised we are about this rulemaking.

10 MR. DOUGHERTY: Thank you very much for your 

11 comments.

12 MS. RITTS: Thanks very much.

13 MR. DOUGHERTY: Maxine Lipeles.

14 MS. LIPELES: Good afternoon. Thank you for 

15 the opportunity to testify. My name is Maxine 

16 Lipeles. I'm the Co-Director of the Interdisciplinary 

17 Environmental Clinic at Washington University School 

18 of Law. We prepared the petition on behalf of the 

19 Sierra Club that EPA is responding to in the proposed 

20 rule, and we've had some direct experience in 

21 particular on behalf of another client, the American 

22 Bottom Conservancy, with a large steel facility in 

23 Illinois subject to the Illinois SSM provisions, which 

24 are proposed to be -- or the petition proposes to 

25 grant.
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1 And what I'd like to do for today is to 

2 focus on that as kind of a case study of why this 

3 proposed rule is so important to communities across 

4 the country that are breathing these essentially 

5 exempted excess emissions. So what I'd like to do 

6 first is just give you a little bit of an overview of 

7 the U.S. Steel facility in Granite City and just give

8 you a little bit of information about the 

9 environmental justice context, and then I'm going to 

10 go through some pictures. And a lot of my testimony 

11 is going to be the pictures, and we'll submit some 

12 written comments as well. And then I want to focus at 

13 the end on the Illinois SIP provisions and how they 

14 key into this.

15 So the U.S. Steel Granite City Works 

16 facility is a very large iron and steel manufacturing 

17 plant. It's in Granite City, Illinois, which is part 

18 of the actually St. Louis metropolitan region. It's 

19 on the eastern side of the Mississippi River, just a 

20 few miles from the city of St. Louis. It's a large 

21 industrial facility, as I said. It dates back to the 

22 1890s, and it's surrounded by residences, schools, 

23 parks. A hospital is right there. There are homes 

24 right up against the plant on a couple of places. 

25 It's adjacent to a large state park. And I'll show 
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1 you pictures of all this. And it's the principal 

2 source of the region being nonattainment for fine 

3 particulate matter, including under the revised 

4 standard for PM 2.5.

5 Here's some environmental justice 

6 statistics. About 100,000 people live within five 

7 miles of the plant. A little over half of those are 

8 minority groups. Twenty-three point six percent live 

9 below the poverty line, which those numbers are quite 

10 a bit lower than the county as a whole. So this shows 

11 you the area right around the plant is 

12 disproportionately minority and low income.

13 There are five schools within one mile of 

14 the plant. Ninety-five percent of the kids in those 

15 schools are of minority background; 81 percent qualify 

16 for free or reduced lunch. There's a preschool 

17 directly across the street from the coke plant, which 

18 is a high-emissions unit. And there's an elementary 

19 school just a few blocks from the plant. And I'm 

20 going to show you a few pictures.

21 I've got first a couple of Google Earths to 

22 just show you this in perspective. So you can see the 

23 heavy industrial in the middle, and then above a 

24 little bit to the left, above a little bit to the 

25 right, and below you can see these are all sort of all 
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1 residential areas. It's a large complex, so it needed 

2 two Google Earth shots to be able for you to see it.

3 This is a map which has an overlay of 

4 schools. The red flags are schools within proximity. 

5 That sort of brown area is actually only part of the 

6 plant because part of it is even below that. The 

7 green is state park. You can see what's Horseshoe 

8 Lake that used to be part of the Mississippi River. 

9 It's an oxbow lake. And the land in the middle of it 

10 is Horseshoe Lake State Park. About 350,000 people 

11 use that state park each year. Many people fish in 

12 the lake, and many people eat and rely on the fish 

13 that they catch from that lake.

14 There's also some local parks and 

15 playgrounds that are shown in lighter green, and the 

16 blue trapezoid is the hospital right next to the 

17 plant. This shot was taken at the end of a 

18 residential street, so this is just to give you the 

19 perspective of how close people live to the 

20 manufacturing facility. There are houses to the 

21 right, to the right and to the left as you're taking 

22 this picture.

23 Now I've got a series of 10 pictures that 

24 are going to show apparent malfunction events at the 

25 facility, taken at different times by people that live 
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1 nearby there. All these are taken from public places, 

2 so the public is exposed to these sorts of emissions.

3 Okay, which leads us to the Illinois SIP. 

4 The Illinois SIP has a provision that says you can't 

5 operate during malfunction or breakdown, or you can't 

6 operate during startup in violation of your limits 

7 unless you have advance permission in your operating 

8 permit. And so the SIP then sets up a provision where 

9 they basically invite permit applicants to submit a 

10 request for advance permission to violate their 

11 limits. And that's just quoting from the statute up 

12 there, permission to continue to operate during 

13 malfunction or breakdown, and other language there 

14 that shows when it will be at malfunction or breakdown 

15 and will cause violations. And then for startups, it 

16 just directly says violate, advance permission to 

17 violate standards or limitations during startup.

18 And then a companion provision says if the 

19 Agency grants permission to operate during malfunction 

20 or breakdown or to violate limitations, that then 

21 constitutes a prima facie defense to an enforcement 

22 action.

23 So it's a pretty nice setup if you're the 

24 facility. In your permit application, you say we're 

25 going to have some trouble at some times. We're going 
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1 to do our best, but we'd like advance permission to 

2 violate the limits when we need to. And in the 

3 permit, you have that language. And here's some 

4 language from the U.S. Steel's Title V permit. 

5 "Permittee is authorized to continue operation in 

6 excess of applicable state standards in the event of a 

7 malfunction or breakdown." That's written into the 

8 permit in reliance on those SIP provisions.

9 Similarly, "Permittee is authorized to 

10 violate the applicable standards during startup." We 

11 have raised these issues with two successive Title V 

12 petitions asking the EPA Administrator to object to 

13 the permit on various grounds, including but not 

14 limited to the SSM. Both times the EPA Administrator 

15 in January 2011 and in December 2012 granted at least 

16 in part the petition to object, both times including 

17 the SSM language in there. And in neither time has 

18 the Agency changed one word of the permit or that 

19 language that's printed above there. The only thing 

20 that's changed is the company gave some more 

21 information, basically saying these are the situations 

22 where we might have malfunctions or breakdowns.

23 But you can't know in advance what's going 

24 to actually cause it, and you can't know in advance 

25 what you're going to do in response to a malfunction 
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1 or a breakdown. So you can't know that it's going to 

2 meet the strict requirements that EPA has set forth, 

3 whether it's going to be an affirmative defense or 

4 this thing called a prima facie defense, which seems 

5 to even go beyond an affirmative defense, or even 

6 enforcement discretion.

7 In any event, this is one real-world example 

8 where you have a community that can't move away from 

9 this facility, that has to breathe in these excess 

10 emissions on a regular basis, and incredibly weak SIP 

11 provisions. So we very much support your effort to 

12 require the state to upgrade their SIP to meet the 

13 minimum requirements of the Clean Air Act.

14 Thank you, and I'm sorry if I exceeded my 

15 time.

16 MR. DOUGHERTY: No. Thank you very much.

17 MR. WILCOX: Thank you for coming in person 

18 and testifying.

19 MS. LIPELES: Pardon?

20 MR. WILCOX: Thank you for coming in person.

21 MS. LIPELES: Oh, my pleasure. And I'll try 

22 to remove this without interfering with the next 

23 people.

24 MR. DOUGHERTY: Sparsh Khandeshi.

25 MR. KHANDESHI: Good afternoon. My name is 
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1 Sparsh Khandeshi, and I'm an attorney with the 

2 Environmental Integrity Project. Our organization 

3 believes that enforcement of environmental laws is an 

4 essential and often neglected component within the 

5 framework we set up for protecting the environment. 

6 It is from this point of view that I'm providing 

7 comments today.

8 First, I'd like to start by thanking the EPA 

9 for providing this public hearing and affording us the 

10 opportunity to enter this testimony. EPA's proposal 

11 to prohibit the startup, shutdown and maintenance 

12 exemption from state implementation plans is a welcome 

13 step forward. Furthermore, EPA's commitment to 

14 ensuring that the affirmative defense is not an 

15 exemption from federally approved emission limits but 

16 instead a narrowly tailored shield for situations 

17 where there are excess emissions that are wholly 

18 outside the facility's control -- and the shield only 

19 protects the facility from monetary liabilities -- is 

20 a welcome and much needed clarification.

21 EPA's response to the Sierra Club's petition 

22 correctly concluded that exemptions from startup, 

23 shutdown, and maintenance violate the Clean Air Act. 

24 In evaluating state responses to EPA's SIP call, any 

25 changes that seek to weaken a federally approved SIP 
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1 limit must comply with the Clean Air Act SIP provision 

2 requirements, which include an opportunity for notice 

3 and comment.

4 We are especially concerned about this 

5 because of our experience with Clean Air Act 

6 permitting in Texas where the state has incorporated 

7 startup, shutdown, and malfunction emission limits 

8 into permits that are weaker than the federally 

9 approved SIP emissions limits without going through an 

10 adequate notice and comment process.

11 Also, EPA must devise a strategy to ensure 

12 that SIP emission limits that are expressed in terms 

13 of throughput are enforceable during periods of 

14 maintenance or other inactivity. For example, many 

15 boilers can have significant PM emissions during 

16 maintenance activities, but because these boilers have 

17 emission limits that are conveyed in terms of a firing 

18 rate, for example, pounds per MMBTU, enforcement 

19 becomes difficult.

20 Nevertheless, emissions during these periods 

21 in many cases are many times greater than the 

22 emissions during normal operation in terms of pounds 

23 released per hour. Unchecked, these emissions 

24 threaten the achievement of ambient air quality 

25 standards.
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1 With regards to the affirmative defense for 

2 malfunctions, EPA must ensure that it is the narrow 

3 exception that EPA asserts. In part, this will 

4 require thorough documentation of malfunction events 

5 that is submitted to state agencies and made publicly 

6 available on the internet. Without this, vigilant 

7 state and federal oversight would be impossible.

8 Last year's June 14 accident at the Exxon9 Mobil Baton Rouge facility is a prime example of this. 

10 While Exxon-Mobil eventually disclosed that this 

11 spill released 20,000 pounds of benzene, this 

12 information only came to light after the community and 

13 the Louisiana Bucket Brigade repeatedly requested LDQ 

14 and EPA conduct a full investigation.

15 Communities shouldn't bear this 

16 responsibility. Instead, state implementation plans 

17 must require a full and accurate disclosure that can 

18 be reviewed by the state, federal agencies as well as 

19 the public. In addition to accurate reporting, state 

20 and federal agencies need to take enforcement 

21 seriously. Data from Texas illustrates the pitfalls 

22 of combining an affirmative defense and weak 

23 enforcement.

24 For example, over the past four years, four 

25 facilities, the Keystone Gas Plant, the Mallet CO2
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1 Recovery Plant, Exxon-Mobil's Beaumont refinery, and 

2 the Goldsmith Plant have consistently been among the 

3 top 10 sources of excess emissions. Together, these 

4 four facilities release nearly 7,000 tons of emissions 

5 per year on average, which in sum total accounts for 

6 nearly 25 percent of all reported excess emissions in 

7 Texas between 2009 and 2012.

8 So there are a few very bad actors, and we 

9 shouldn't allow them to hide behind the affirmative 

10 defense just using it as a veil to disguise inadequate 

11 maintenance and poor operating practices. Thank you.

12 MR. DOUGHERTY: Thank you.

13 MR. WILCOX: Will you be submitting more 

14 written comments?

15 MR. KHANDESHI: Yes.

16 MR. WILCOX: Okay. Thank you.

17 MR. DOUGHERTY: Tamara Evans.

18 MS. EVANS: My name is Tamara Evans. I'm 

19 here on behalf of the environmental law program at 

20 Sierra Club. I'm here to express strong support for 

21 EPA's proposed rule. This rule will help achieve the 

22 clear intent of Congress and the Clean Air Act.

23 The central purpose of the Clean Air Act is 

24 to protect human health. Ambient air quality 

25 standards are the heart of the Clean Air Act. Air 
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1 quality standards are set at levels to protect public 

2 health and welfare, including protection of the most 

3 sensitive populations, such as asthmatics, children, 

4 and the elderly. State plans must include emissions 

5 limitations to ensure attainment of the ambient air 

6 quality standards. Illegal loopholes in state plans 

7 allow facilities to emit pollution at levels that 

8 cause the pollution in the air to far exceed ambient 

9 air quality standards. This is contrary to the 

10 fundamental purpose of the Clean Air Act.

11 To help encourage industry to comply with 

12 air quality standards, the Act allows EPA as well as 

13 citizens to bring enforcement actions against 

14 facilities that violate emissions limitations. EPA 

15 and citizen enforcement actions have always been an 

16 important part of achieving the goals of the Clean Air 

17 Act.

18 However, many states give polluters a free 

19 pass from these enforcement actions in the form of 

20 automatic exemptions as well as affirmative defenses 

21 for violations. For example, the Florida State 

22 Implementation Plan contains automatic exemptions for 

23 excess emissions from startup, shutdown, and 

24 malfunction events.

25 The state rules actually permit excess 
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1 emissions. This is contrary to the fundamental 

2 requirement that all excess emissions be considered

3 violations. Many states have affirmative defense 

4 provisions that allow facilities to avoid any 

5 penalties for violation of their permit limits. These 

6 provisions are inconsistent with the Clean Air Act 

7 because they limit a court's ability to assess 

8 penalties for violations of the Act under section 

9 113(e)(1).

10 EPA's proposed rule will help close these 

11 loopholes that interfere with the enforcement 

12 mechanisms of the Clean Air Act. If EPA does not act 

13 to close these loopholes, the objectives of the Clean 

14 Air Act will not be achieved. Minimum ambient air 

15 quality standards will never reliably be met, and 

16 people will continue to be subjected to unsafe levels 

17 of air pollution. Thank you.

18 MR. DOUGHERTY: Thank you very much.

19 Terry McGuire.

20 MR. MCGUIRE: Good afternoon. My name is 

21 Terry McGuire, and I'm a Washington representative 

22 with the Sierra Club. And I want to thank you for the 

23 opportunity to provide comment on this action, which 

24 I'm here to strongly support. Upsets are a serious 

25 problem at many facilities around the country, 
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1 including large refineries, chemical plants, and coal2 fired power plants. These events result in an 

3 exceptional burst of pollution over a short period of 

4 time that is often many times above the legal limits.

5 Because these facilities are frequently 

6 located in low-income communities of color, this 

7 action by EPA will improve the lives of people that 

8 live in some of the most disadvantaged neighborhoods 

9 in our country. So today I want to add a human face 

10 to this issue and share with you a few stories from 

11 people that Sierra Club has been in touch with that 

12 will benefit from this rule. While they could not be 

13 here in person, they wanted their stories heard, and 

14 they have given us permission to relay their 

15 experiences.

16 Sherry Griswold lives in Detroit, Michigan, 

17 near the Marathon Petroleum Corporation complex. In 

18 fact, her home is only 700 feet away from this 

19 enormous facility. For the last five years, Sherry 

20 tells us that she has been tormented by relentless 

21 flaring from this facility, usually about three times 

22 a night. When these events occur, 20-foot flames 

23 erupt from the flares and are accompanied by a loud 

24 howling noise.

25 Sherry says these events happen with such 
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1 force that they have shaken loose her ceiling tiles, 

2 and once, while she was in her backyard, a flaring 

3 literally knocked her to the ground. Perhaps most 

4 disturbingly, Sherry tells us that when she is outside 

5 for an extended period of time, her skin sometimes 

6 becomes coated with a fine layer of soot.

7 Sadly, because of the frightening nature of 

8 these events and a concern for her family's health, 

9 Sherry no longer has her children or grandchildren 

10 over to stay the night.

11 Halfway across the country, in Birmingham, 

12 Alabama, Charlie Powell and his neighbors have been 

13 plagued by a long history of excessive pollution 

14 events from the Walter Coke facility, a plant that has 

15 been spewing toxic pollution into the neighboring 

16 community for over 100 years.

17 For more than 40 years, Charlie and his wife 

18 lived close to Walter Coke. During this time, Charlie 

19 saw firsthand the damaging effects of air pollution on 

20 his family and neighbors and as a result was compelled 

21 to organize with a local community group called PANIC, 

22 People Against Neighborhood Industrial Contamination, 

23 where he is now the president of that group.

24 PANIC aims to raise public awareness about 

25 the health impacts of air pollution from the Walter 
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1 Coke facility on the neighboring communities, and 

2 unfortunately there is no shortage of examples. While 

3 living in the area, Charlie developed sleep apnea and 

4 respiratory problems that led to a need for a 

5 respirator by his bed when he slept. His wife has 

6 battled cancer, and his aunt, Eunice Webb, also in the 

7 neighborhood, has developed asthma since moving to the 

8 area about 20 years ago.

9 Of Eunice's family that lives in the area, 

10 one grandchild that lives with her has developed 

11 asthma, one sister has battled cancer, another sister 

12 and her mother have suffered heart attacks, and sadly 

13 Eunice lost her husband to cancer. Eunice tells us 

14 that she knows of others in the neighborhood also 

15 suffering from ailments like cancer. She says that in 

16 the summer months the air is so bad that she cannot 

17 even go outside because the pollution exacerbates her 

18 asthma and it can be hard for her to breathe.

19 Eunice told us that she would like to follow 

20 the lead of many of her neighbors and move away when 

21 she is able to do so. Another neighbor to the Walter 

22 Coke facility is Bobby Hogan, who has lived in the 

23 area for more than 60 years. Bobby constantly suffers 

24 from respiratory ailments and has had varying 

25 diagnoses from his doctor, ranging from bronchitis to 
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1 asthma to a chronic cough. Bobby's parents also live 

2 nearby and were lost to lung cancer despite neither 

3 being smokers.

4 Bobby tells us that he knows of too many in 

5 his community that are sick and dying. A property 

6 owner with four additional properties near his home, 

7 Bobby has been unable to rent these out because, in 

8 his words, no one wants to move into his community. 

9 He said the air pollution can be so bad that he 

10 literally has to spray the soot off his back porch 

11 sometimes as much as twice a week. He worries about 

12 going outside to perform everyday tasks like mowing 

13 his lawn for fear of exacerbating his asthma.

14 Bobby also hopes to move one day further 

15 away from this facility but right now simply cannot 

16 afford to do so.

17 These stories are just a few examples of the 

18 hardships that so many who live beside industrial 

19 facilities are experiencing. We plan to submit 

20 additional written comments from some of these people 

21 and others from around the country by the comment 

22 deadline.

23 In closing, I would like to thank you for 

24 the opportunity to share these stories and submit 

25 documents in support of this rule. We know, because 
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1 doctors, scientists, and nurses tell us that many 

2 common air pollutants like smog and soot are a 

3 pervasive public health problem that 

4 disproportionately affects the most vulnerable members 

5 of society: young children, the elderly, those with 

6 pre-existing medical issues, and lower income 

7 communities.

8 Air pollution can exacerbate asthma and 

9 cause respiratory ailments, increase the risk of heart 

10 attacks and harm to in utero babies, and even lead to 

11 cancer and premature death. Fortunately, reductions 

12 in air pollution can result in immediate and 

13 measurable public health benefits, and EPA has the 

14 power and authority to act.

15 Polluters may claim that malfunction events 

16 are unavoidable, yet companies who care about how 

17 their plants are impacting their neighbors have shown 

18 that industry can do better. Many upset emissions are 

19 in fact avoidable with better management practices and 

20 improved technologies.

21 We commend the EPA for acting because this 

22 rule will help curb harmful pollution from planned 

23 startup and shutdown events by closing state loopholes 

24 on affirmative defenses to enforcement actions. While 

25 we would still urge EPA to go further with the rule, 
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1 as we requested in our petition, this action will go a 

2 long way toward addressing this longstanding problem 

3 and will make a real difference for families living 

4 near these facilities, like I shared with you today. 

5 Thank you.

6 MR. DOUGHERTY: Thank you very much.

7 Alex Bond.

8 MR. BOND: Good afternoon. I'm Alex Bond. 

9 I'm the Director of Air Quality at the National Mining 

10 Association. NMA represents the producers of most of 

11 America's coal, metals, industrial, and agricultural 

12 minerals, as well as all of the companies that happen 

13 to support those activities.

14 EPA's proposed SIP call revising the state 

15 standards during SSM -- thank you for letting me 

16 comment on the SSM SIP call. While NMA is still 

17 reviewing the rule to try to correctly gauge its 

18 potential impacts, my comments today highlight not 

19 only impacts on mining operations from EPA's proposal 

20 but also the need for EPA to extend the comment period 

21 in this instance to ensure robust public comment and 

22 truly understand the national impacts of the proposed 

23 rule.

24 Further, EPA should realize that its 

25 proposal seems to ignore the significant difficulties 
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1 in running pollution equipment during SSM periods, 

2 unnecessarily limits or eliminates using an 

3 affirmative defense, and should thus grant great 

4 deference to states upon submittal of SIP provisions 

5 should EPA move forward.

6 NMA would further like to note that EPA's 

7 proposed rule marks a significant re-interpretation of 

8 longstanding policy, and it is our belief that such a 

9 sudden change of the status quo will have significant 

10 operational impacts on a wide variety of sources both 

11 within and without the mining industry.

12 I have provided a set of draft testimony for 

13 you or paper testimony. I'd like to sort of deviate 

14 from that in these comments and focus just on five 

15 main points. First, we would really appreciate more 

16 time to comment on the proposed rule. We think the 

17 30-day and with this -- I guess it's around a 42-day 

18 comment window -- is a little bit short. We're trying 

19 to grasp exactly what the impacts are going to be 

20 across our operations.

21 We have operations in the East Coast, which 

22 mainly mine coal and some uranium. There is also a 

23 significant Western Coast, West Coast, and mountain 

24 area portion of NMA's membership, and we're trying to 

25 get our hands around not only the coal utilization 
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1 aspect of the rule but also how it will impact mining 

2 operations across the spectrum, so more time to 

3 comment so we can get feedback from our members to see 

4 exactly how the proposal will impact operations would 

5 be greatly appreciated. And we think it's necessary 

6 for such a -- for a SIP call for 36 states, having 

7 such a short comment window is a little brief, and we 

8 would appreciate if EPA would act on our letter asking 

9 for a 60-day comment window extension or at least a 

10 60-day comment period in total. So we would 

11 appreciate that.

12 Second, we also believe that this SIP call 

13 comes at a time that it will have a -- it's a huge 

14 effort by the Agency and also by the states, and it 

15 comes at a time that there will be large impacts on 

16 sources that are trying to comply with other rules. 

17 And on top of that, it comes at a time of budgetary 

18 uncertainty where having states go through and commit 

19 to a long form rulemaking, which might end up 

20 revising, and we're not sure yet -- which might end up 

21 revising so many standards and emissions limits for so 

22 many sources is a giant undertaking, and we'd ask the 

23 Agency to at least sort of step back if possible and 

24 reevaluate exactly what those impacts will be on a 

25 large variety of sources both within and without the 
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1 mining industry.

2 Third, I think I mentioned this already, but 

3 running pollution controls during startup, shutdown, 

4 and malfunction periods is very difficult. I mean, 

5 first of all, a malfunction is by definition not 

6 expected, and it's very difficult to run pollution 

7 controls. That's why it's called a malfunction. But 

8 during startup and shutdown, if you, for instance, are 

9 running a baghouse on an EGU and you -- during startup 

10 periods, you'll shred the baghouse so it won't really 

11 be useful for the rest of the time, thus defeating the 

12 purpose of having a pollution control device on an 

13 EGU.

14 That's just one example. We'd like to have 

15 more time to be able to evaluate what the other real16 world implications of having emission limits during 

17 SSM periods might be.

18 Further, we support having an affirmative 

19 defense in the rule. We know that EPA has asked for 

20 -- is proposing only a limited affirmative defense for 

21 periods of malfunction. However, we think that might 

22 not be appropriate for all 36 states. Should those 

23 states want to keep them, especially if they are in 

24 attainment of the standards or in attainment areas, 

25 having or eliminating an affirmative defense seems to 
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1 be somewhat duplicative in the sense that if a SSM 

2 event or an upset emission event happens to occur but 

3 does not cause nonattainment, we don't really see the 

4 point of limiting an affirmative defense in that 

5 regard. And further, if it does cause nonattainment, 

6 a state is already obligated to submit a SIP revision 

7 to correct the problem.

8 And finally, if EPA does go forward, we 

9 would urge -- you know, under the bedrock of how the 

10 Clean Air Act has operated for so long, seeing as 

11 states and EPA are coregulators under the Act, that 

12 bedrock of cooperative federalism will be absolutely 

13 essential should EPA try to move forward. And we 

14 would urge you to provide great deference to states, 

15 knowing that EPA does a phenomenal job with a lot of 

16 its rules.

17 We would just like to stress that when you 

18 come down to it, certain states are better at 

19 understanding the sources within those states, and if 

20 they feel that things are appropriate in their SIP 

21 provisions, we'd ask you to provide great deference to 

22 those states.

23 So we will be submitting extensive comments, 

24 I'm sure, and we look forward to working with the 

25 Agency on this one. Thank you.
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1 MR. DOUGHERTY: Thank you very much. Mr. 

2 Bond was our last registered speaker, so we'll be 

3 taking a 20-minute break.

4 (Whereupon, at 2:41 p.m., the hearing in the 

5 above-entitled matter was concluded.)

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76

Heritage Reporting Corporation

(202) 628-4888

CERTIFICATE

DOCKET NO.: EPA-HQ-OAR-2012-0322

CASE TITLE: Hearing to take comment on EPA's 

 proposed rulemaking entitled, "State

 Implementation Plans: Response to 

 Petition for Rulemaking; Findings of

 Substantial Inadequacy; and SIP Calls

 to Amend Provisions Applying to Excess

 Emissions During Periods of Startup,

 Shutdown, and Malfunction."

HEARING DATE: March 12, 2013

LOCATION: Washington, D.C.

I certify that the foregoing is a true and 

correct transcript made to the best of our ability 

from a copy of the official electronic digital 

recording provided by the United States Environmental 

Protection Agency in the above-entitled matter.

Date: March 12, 2013

 

Gabriel Gheorghiu

Heritage Reporting Corporation

Suite 600

1220 L Street, N.W.

Washington, D.C. 20005-4018