COMMENTS OF GASP ON PROPOSED REISSUANCE OF MAJOR SOURCE OPERATING PERMIT NO. 4-07-0001-03 TO ABC COKE, A DIVISION OF DRUMMOND COMPANY, INC.

COMMENTS OF GASP

ON PROPOSED REISSUANCE OF

MAJOR SOURCE OPERATING PERMIT NO. 4-07-0001-03

TO ABC COKE, A DIVISION OF DRUMMOND COMPANY, INC.

Submitted April 18, 2014

EXECUTIVE SUMMARY

Drummond Company, Inc. owns and operates the ABC Coke facility in Tarrant,Alabama. It has applied for renewal of a major source operating permit from the JeffersonCounty Department of Health. The permit, and decision to issue the permit, must conform to theJefferson County Air Pollution Control Rules and Regulations, as well as certain other federalrequirements.

No person shall permit or cause air pollution by the discharge of any air contaminants forwhich no ambient air quality standards have been set. ABC Coke is required to demonstrate inits permit application that it will comply with this requirement. If it fails to make thisdemonstration, the Health Officer is required to deny the permit.

Air pollution is defined as the presence in the outdoor atmosphere of one or more aircontaminants in such quantities and duration as are, or tend to be, injurious to human health orwelfare, animal or plant life, or property, or would interfere with the enjoyment of life orproperty throughout the County and in such territories of the County as shall be affectedthereby. An air contaminant is defined as any solid, liquid, or gaseous matter, any odor, orany combination thereof, from whatever source.

ABC Coke emits a number of carcinogens. Among these are Benzene, Naphthalene, andArsenic. ABC Coke has failed to demonstrate in its application that the quantity and duration ofthese and other carcinogens in the outdoor atmosphere will not tend to be injurious to humanhealth. Accordingly, the Health Officer must deny the ABC Coke permit. The Jefferson CountyBoard of Health has declared that the incremental cancer risk from exposure to any individualcarcinogen shall not exceed 1 in 100,000. GASP suggests that the incremental cumulative cancerrisk from exposure to all carcinogens combined not exceed 5 in 100,000. Air monitoring resultscollected 1.5 miles away (near Walter Coke), suggest that these limits will be exceeded nearABC Coke.

ABC Coke also emits odors and particulate matter. ABC Coke has failed to demonstratethat the quantity and duration of these air contaminants in the outdoor atmosphere will not tendto be injurious to human health, welfare or property and will not interfere with the enjoyment oflife or property. Accordingly, the Health Officer must deny the ABC Coke permit. It is commonknowledge that odors and particulate matter are interfering with nearby residents enjoyment oflife and property.

The emissions from ABC Coke will adversely and disproportionately impact acommunity that is composed of 66% African-Americans. The granting of the permit to ABCCoke will violate U.S. Environmental Protection Agency regulations promulgated to implementthe Civil Rights Act of 1964.

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Draft General Permit Condition 14 pertaining to control of fugitive dust from ABC Cokeis based on a Board of Health regulation nearly identical to a rule adopted by the AlabamaDepartment of Environmental Management. The latter rule has been declared unconstitutionallyvague and restrictive. Therefore, the Health Officer must revise General Permit Condition 14 toensure the prevention of fugitive dust emissions in a constitutional manner.

Draft General Permit Condition 45 (Abatement of Obnoxious Odors) establishesunnecessary limits on the Health Officers power to abate unlawful odors. Specifically, thecondition requires that odors be characterized as obnoxious by a Department inspector and thatthe Health Officer determine whether odor abatement measures are technically andeconomically feasible for the company to implement. None of these limitations are present inBoard of Health regulations. General Permit Condition 45 should be revised so that it conformsto the requirements of Board of Health regulations.

The quantity of emissions of Benzene and other air toxics by ABC Coke have not beenmeasured. Emissions have only been estimated by ABC Coke. Estimated emissions areunreliable. Ambient concentrations of air toxics have not been measured near the ABC Cokefacility. The Health Officer should require that ABC Coke use differential absorption lightdetection and ranging technology (DIAL) to measure ABC Cokes actual Benzene (and perhapsother hazardous air pollutant) emissions prior to issuance of the permit.

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TABLE OF CONTENTS

I. Overview .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

II. ABC Coke Emissions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

III. Risk-Screening Environmental Indicators Model Results . . . . . . . . . . . . . . . . . . . . . . . 11

IV. National-Scale Air Toxics Assessment Results . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

V. Ambient Toxic Air Pollutant Monitoring and Cancer Risk Results . . . . . . . . . . . . . . . . 20

VI. Prohibition of Air Pollution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

A. Cancer Risk from Exposure to Individual Air Toxic Emissions from ABC Coke .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

B. Cumulative Cancer Risk from Exposure to MultipleAir Toxics Emissions from ABC Coke . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

C. Odor Emissions from ABC Coke . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

D. Particulate Emissions from ABC Coke .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

VII. Draft General Permit Condition 14 is Unconstitutional and Unenforceable . . . . . . . . . 39

VIII. Restrictions in Draft Permit Condition 45 are not authorized by Regulation . . . . . . . . . 40

IX. Differential Absorption Light Detection and Ranging Technology . . . . . . . . . . . . . . . . 41

X. Issuance of Major Source Operating Permit No. 4-07-0001-03will violate EPA Regulations under Civil Rights Act of 1964 . . . . . . . . . . . . . . . . . . . . 43

XI. Conclusions .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44

Appendix A Health Effects of Selected Air Toxics .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-1

Appendix B Mamie L. Williams v. Drummond Company, Inc. . . . . . . . . . . . . . . . . . . . . . . . B-1

Appendix C EJView Census 2010 Summary Report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . C-1

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LIST OF FIGURES

Figure 1: Drummond Co. Inc., ABC Coke Division and NeighboringResidential Area . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Figure 2: Drummond Co, Inc, ABC Coke Div Polycyclic AromaticCompound Emissions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Figure 3: Drummond Co, Inc, ABC Coke Div Benzene Emissions .. . . . . . . . . . . . . . . . . . 8

Figure 4: Drummond Co, Inc, ABC Coke Div Naphthalene Emissions . . . . . . . . . . . . . . . 9

Figure 5: Stack and Fugitive Emissions of Polycyclic Aromatic Compounds .. . . . . . . . . 10

Figure 6: Stack and Fugitive Emissions of Benzene . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Figure 7: Stack and Fugitive Emissions of Naphthalene . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Figure 8: Summary of RSEI Model Results . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Figure 9: Comparison of RSEI Risk Scores for Drummond Co Inc, ABC Coke Division and Others . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Figure 10: Comparative Risk Scores for Fourteen Highest Risk ToxicAir Polluters in Jefferson County, AL (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Figure 11: Comparison of Walter Coke and ABC Coke RSEI Hazard Scores. . . . . . . . . . . 15

Figure 12: Comparison of Walter Coke and ABC Coke RSEI Risk Scores .. . . . . . . . . . . . 15

Figure 13: RESI Model Facility Risk Score Drivers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Figure 14: Average Air Toxic Cancer Risks by Geographic Area . . . . . . . . . . . . . . . . . . . . 18

Figure 15: Cancer Risk from Air Toxics in Jefferson County Census Tracts . . . . . . . . . . . 19

Figure 16: ABC Coke and Surrounding Air Toxics Cancer Risk .. . . . . . . . . . . . . . . . . . . . 20

Figure 17: Location of Toxic Air Pollutant Monitors in Relation to ABC Coke . . . . . . . . . 21

Figure 18: Comparison of Walter Coke and ABC Coke Emissions ofPolycyclic Aromatic Compounds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

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Figure 19: Comparison of Walter Coke and ABC Coke Emissions of Benzene . . . . . . . . . 23

Figure 20: Comparison of Walter Coke and ABC Coke Emissions of Naphthalene . . . . . . 23

Figure 21: Cancer Risk Drivers at Shuttlesworth Monitor (JCDH) . . . . . . . . . . . . . . . . . . . 25

Figure 22: Cancer Risk Drivers at Shuttlesworth Monitor (EPA) . . . . . . . . . . . . . . . . . . . . 26

Figure 23: Census Tract 109 Cancer Risk with 1.0 Mile RadiusCircle Around ABC Coke . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45

Figure 24: Census Block Groups Near ABC Coke . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45

LIST OF TABLES

Table 1: Universe of Constituents of Coke Oven Emissions . . . . . . . . . . . . . . . . . . . . . . . 3

Table 2: ABC Coke Emission Sources . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Table 3: Toxic/Hazardous Air Pollutant Emissions from ABC Coke .. . . . . . . . . . . . . . . . 7

Table 4: National Ambient Air Quality Standard Pollutant Emissionsfrom ABC Coke . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Table 5: Other Air Pollutant Emissions from ABC Coke .. . . . . . . . . . . . . . . . . . . . . . . . . 7

Table 6: Chemicals Included in the Toxic Release Inventory PolycyclicAromatic Compounds Category.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Table 7: Chronic Exposure Cancer Risk at Shuttlesworth Monitor . . . . . . . . . . . . . . . . . 27

Table 8: Census Block Group Data .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

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I. Overview

The ABC Coke facility was constructed in 1918 and has been in operation ever since. Thefacility has been owned by Drummond Company, Inc. since 1985. It is located at Alabama1Street and Huntsville Avenue in Tarrant, Alabama approximately 1.9 miles northwest of theBirmingham-Shuttlesworth International Airport. Between ABC Coke and the Airport lies adensely populated residential area outlined in red in Figure 1.

FIGURE 1Drummond Co. Inc., ABC Coke Division and Neighboring Residential Area

Historical Map Works, Residential Genealogy, available at1http://www.historicmapworks.com/Buildings/index.php?state=AL&city=Tarrant%20City&id=633 (accessed Mar. 6, 2014).

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The ABC Coke facility produces coke and coke by-products that are sold or used in thecoking process. ABC Coke is the largest merchant producer of foundry coke in the United2States. The facility includes 132 coke ovens with an annual capacity of 730,000 tons of saleablecoke. In 2012, ABC Coke produced 731,611 tons of coke. The utilities production facility3consists primarily of three boilers that burn primarily coke oven gas. 4

II. ABC Coke Emissions

ABC Cokes emissions are described by the Jefferson County Department of Health asfollows:

Emissions from the coke ovens include PM, SOx, NOx, VOCs, CO, andnumerous organic compounds, including polycyclic organic matter (POM). POMis emitted from raw coal unloading, storage, and handling; mixing, crushing, andscreening; blending; charging; leaks from doors, lids, and offtakes during coking;soaking, pushing coke from the oven; hot coke quenching; combustions stacks;and coke crushing, sizing, screening, handling, and storage. Volatile organiccompounds are emitted from coke oven leaks, coke pushing, and coke quenching. Sulfur dioxide, nitrogen oxides, and carbon monoxide are also emitted from cokeoven leaks. Organic compounds soluble in benzene (BSO) are the majorconstituents of the PM emissions and are also included as VOCs. Among thehazardous air pollutants (HAPs) included in the VOCs are benzene, toluene,xylenes, cyanide compounds, naphthalene, phenol, and POM, all of which arecontained in coke oven gas. Emissions from the byproduct plant are primarilybenzene and other light aromatics, POMs, cyanides, phenols, and light oils.

Jefferson County Department of Health, Title V Operating Permit Evaluation (Nov. 7, 2013) at4, available at http://www.jcdh.org/eh/anr/anr12.aspx?NoticeId=61&Type=2 (accessed Mar. 6,2014). See also Table 1. Air contaminants emitted from the operation of the boilers includeParticulate Matter (PM), Carbon Monoxide (CO), Sulfur Oxides (SOx), Nitrogen Oxides (NOx),and Volatile Organic Compounds (VOCs). Id at 5. ABC Coke operates the sources of aircontaminant emissions identified in Table 2.

Jefferson County Department of Health, Title V Operating Permit Evaluation (Nov. 7,22013) at 1, available at http://www.jcdh.org/eh/anr/anr12.aspx?NoticeId=61&Type=2 (accessedMar. 6, 2014).

Drummond Co., Inc., ABC Coke, available at 3 http://www.drummondco.com/our-products/abc-coke/ (accessed Feb. 23, 2014).

Jefferson County Department of Health, supra note 2, at 5.4

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TABLE 1Universe of Constituents of Coke Oven Emissions5

U.S. Environmental Protection Agency, Risk Assessment Document for Coke Oven5MACT Residual Risk, Table A-1 (Dec. 22, 2003), available at http://www.epa.gov/ttn/atw/coke/coke_rra.pdf.

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TABLE 2ABC Coke Emission Sources6

EmissionsUnit No. Source Description

OperatingSchedule Air Contaminants

001 Boiler No. 9 - 174MMBTU/Hr Nebraska(Fuel: Primarily Coke OvenGas)

24 hours/day7 days/week52 weeks/year

Visible Emissions (VE)Particulate Matter (PM)

2Sulfur Dioxide (SO )Carbon Monoxide (CO)Volatile Organic Compounds (VOCs)

002 Coke Oven Battery No. 6 -Coking and Charging (29Ovens)


Visible Emissions (VE)Coke Battery EmissionsParticulate EmissionsVolatile Organic Compounds (VOCs)Hazardous Air Pollutants (HAPs)







005 Coke By-Products RecoveryPlant with Gas Blanketing

8,760 hours/year Visible Emissions (VE)Fugitive EmissionsBenzene (VOC)Benzene (HAP)Benzene (VHAP)

007 Underfire Stack No. 4associated with Coke OvenBatteries Nos. 5 and 6



10Particulate Matter (PM )2Sulfur Dioxide (SO )

Nitrogen Oxides (NOx)Carbon Monoxide (CO)Volatile Organic Compounds (VOCs)

Jefferson County Department of Health, Draft Major Source Operating Permit No. 4-607-0001-03 (Feb. 5, 2014), available at http://www.jcdh.org/eh/anr/anr12.aspx?NoticeId=61&Type=2 and http://www.jcdh.org/eh/anr/anr12.aspx?NoticeId=66&Type=2(accessed Mar. 3, 2014).

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008 Underfire Stack No. 1associated with Coke OvenBattery No. 1



10Particulate Matter (PM )2Sulfur Dioxide (SO )

Nitrogen Oxides (NOx)Carbon Monoxide (CO)Volatile Organic Compounds (VOCs)

018 South Coke QuenchingTower


Visible Emissions (VE)Particulate Matter (PM)Total Dissolved Solids (TDS) or Sum ofConcentration of Benzene,Benzo(a)pyrene and Naphthalene

019 Boiler No. 8 - 204MMBTU/Hr Babcock &Wilcox (Fuel: PrimarilyCoke Oven Gas)




020 Boiler No. 7 - 204MMBTU/Hr Babcock &Wilcox (Fuel: PrimarilyCoke Oven Gas)




024 North Coke QuenchingTower


Visible Emissions (VE)Particulate Matter (PM)Total Dissolved Solids (TDS) or Sum ofConcentration of Benzene,Benzo(a)pyrene and Naphthalene

031 Flare (Fuel: Coke Oven Gas) 24 hours/day7 days/week52 weeks/year

Visible Emissions (VE)

032 Coke Pushing Operations ofCoke Battery Nos. 1, 5 and 6



034 Ammonium SulfateManufacturing



035 Emergency Generator No. 1 -Caterpillar 644 Hp

Emergency Use Visible Emissions (VE)

036 Emergency Generator No. 2 -Caterpillar 805 Hp

Emergency Use Visible Emissions (VE)

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Coke-oven emissions are defined as the benzene-soluble fraction of total particulatematter generated during coke production. These emissions are complex mixtures of dusts,vapors, and gases that typically include PAHs, formaldehyde, acrolein, aliphatic aldehydes,ammonia, carbon monoxide, nitrogen oxides, phenol, cadmium, arsenic, and mercury. More than60 organic compounds, including more than 40 PAHs, have been identified in air samplescollected at coke plants. Coke-oven gas includes hydrogen, methane, ethane, carbon monoxide,carbon dioxide, ethylene, propylene, butylene, acetylene, hydrogen sulfide, ammonia, oxygen,and nitrogen. Coke-oven gas tar includes pyridine, tar acids, naphthalene, creosote oil, andcoal-tar pitch.7

Three sources of emission estimates have been made available to GASP. The first is thefacility emissions data included in EPAs Toxics Release Inventory (1987-2012). The second is8facility emissions data made public by the Jefferson County Department of Health on its website(2011- 2012). The third is a Facility Emissions Inventory (2011) made available to GASP by9the Jefferson County Department of Health. All data have been provided by ABC Coke andalmost all of the data are the result of calculated estimates rather than measurements. Theemissions data for ABC Coke for 2011 and 2012 are summarized in Tables 3, 4 and 5.

National Toxicology Program, Department of Health and Human Services, Report on7Carcinogens, Twelfth Edition (2011), Coke Oven Emissions, available athttp://ntp.niehs.nih.gov/ntp/roc/twelfth/profiles/CokeOvenEmissions.pdf

U.S. Environmental Protection Agency, TRI Search Results|Envirofacts, available at8http://oaspub.epa.gov/enviro/tris_control_v2.tris_print?tris_id=35217BCCKDRAILR (accessedMar. 3, 2014).

Jefferson County Department of Health, EHS - Air Facilities Emissions, available at9http://www.jcdh.org/EH/AnR/AnR05.aspx?Nbr=3111 (accessed Mar. 3, 2014) (2012 data).

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TABLE 3Toxic/Hazardous Air Pollutant Emissions from ABC Coke

TABLE 4National Ambient Air Quality Standard Pollutant Emissions from ABC Coke

TABLE 5Other Air Pollutant Emissions from ABC Coke

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ABC Cokes ten-year history of Polycyclic Aromatic Compound emissions, Benzeneemissions, and Naphthalene emissions are shown in Figures 2, 3, and 4, respectively. Thishistory does not indicate a declining trend.

FIGURE 2

FIGURE 3

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FIGURE 4

It is noteworthy that fugitive emissions account for the majority of emissions from the10ABC Coke facility. Figures 5, 6, and 7. This is significant because it means that additionalcontrols on stack emissions may not be sufficient to achieve acceptable cancer risk levels in theneighboring community. It also means that monitoring of stack emissions alone will not besufficient to characterize facility emissions.

Fugitive air emissions are all releases to air that are not released through a confined air10stream. Fugitive emissions include equipment leaks, evaporative losses from surfaceimpoundments and spills, and releases from building ventilation systems.

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FIGURE 5

FIGURE 6

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FIGURE 7

III. Risk-Screening Environmental Indicators Model Results

The Risk-Screening Environmental Indicators (RSEI) model is a computer-basedscreening tool developed by the U.S. Environmental Protection Agency that analyzes factors thatmay result in chronic human health risks. The RSEI model uses information from the Toxics11Release Inventory (TRI), a publicly available database of information on toxic chemical releasesand other waste management activities from industrial and federal facilities arrayed by facility,zip code, county, industry, and many other variables. Once again, the releases documented in12TRI are often based on calculated estimates provided by industry rather than actualmeasurements.

The RSEI model considers the following information: the amount of chemical released,the toxicity of the chemical, its fate and transport through the environment, the route and extentof human exposure, and the number of people affected. This information is used to createnumerical values that can be added and compared in limitless ways to assess the relative risk of

U.S. Environmental Protection Agency, Risk-Screening Environmental Indicators11(RSEI), Basic Information, available at http://www.epa.gov/opptintr/rsei/pubs/basic_information.html (accessed Mar. 3, 2014)

Id.12

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chemicals, facilities, regions, industries, or many other factors. The three primary scores13produced by the RSEI model are the pounds score, the hazard score, and the risk score.

A pounds score can be calculated that includes only the pounds of releasesreported to TRI.

A hazard score can be calculated by multiplying the pounds released by thechemical-specific toxicity weight for the exposure route (oral or inhalation)associated with the release. No exposure modeling or population estimates areinvolved in calculating a hazard score. A hazard score is a unitless measure that isnot independently meaningful, but is a hazard-related estimate that can becompared to other estimates calculated using the same methods.

A risk score may be calculated by multiplying the toxicity, surrogate dose, andpopulation components. The surrogate dose is determined throughpathway-specific modeling of the fate and transport of the chemical through theenvironment. A risk score is a unitless measure that is not independentlymeaningful, but is a risk-related estimate that can be compared to other estimatescalculated using the same methods.14

These three scores are summarized by the U.S. Environmental Protection Agency in Figure 8.

FIGURE 8Summary of RSEI Model Results

The U.S. Environmental Protection Agency has determined the risk score for ABC Cokeusing the RSEI model and compared the results to the risk scores of other facilities in the sameindustry category, other facilities in Jefferson County, other facilities in Alabama, and otherfacilities in the United States. The results, shown in Figure 9, suggest that ABC Coke poses asignificantly higher health risk than other facilities.

U.S. Environmental Protection Agency, User's Manual for RSEI Version 2.3.2 [1996 -132011 TRI Data] (July 2013) at 5, available at http://www.epa.gov/opptintr/rsei/pubs/rsei_users_manual_v2.3.2.pdf (accessed Mar. 3, 2014).

Id. at18-19.14

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FIGURE 9Comparison of RSEI Risk Scores for

Drummond Co Inc, ABC Coke Division and Others15

The RSEI model was also used to compare the health risk posed by all facilities emittingtoxic air pollutants in Jefferson County during 2010. The results, depicted in Figure 10, suggestthat the health risk posed by toxic air emissions from ABC Coke exceeded the health risk posedby every other facilitys toxic air emissions, including those of Walter Coke, Inc.

The RSEI model was further used to compare the toxic emissions from ABC Coke andWalter Coke, Inc. Figure 11 shows that the hazard score of toxic air emissions (pounds released toxicity weight) from ABC Coke exceeded that of Walter Coke for all but one year during theperiod 2006 - 2010. Figure 12 shows that the risk score of toxic air emissions (pounds released toxicity weight population exposed) from ABC Coke exceeded that of Walter Coke during

U.S. Environmental Protection Agency, TRI Search Results|Envirofacts,15http://oaspub.epa.gov/enviro/rsei.html?facid=35217BCCKDRAILR (accessed Mar. 3, 2014). The risk scores include all toxic releases, including those to water. However, 99.99% of the riskscore in 2010 was due to releases to the air.

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all but one year for the same period. The conclusion drawn from Figures 10, 11 and 12 is that,according to the RSEI model, the toxic air emissions from ABC Coke are the most threatening tohuman health.

FIGURE 10Comparative Risk Scores for Fourteen Highest Risk Toxic Air Polluters in Jefferson County, AL (2010)16

Finally, the RSEI model was used to identify the toxic chemicals emitted by ABC Cokeduring 2010 that present the greatest heath risk. Figure 13 shows that, in the RSEI model, threetoxic chemicals (or chemical groups) accounted for 99.5% of the total health risk to exposedpopulations from ABC Coke emissions. These are Polyclyclic Aromatic Compounds, Benzene,and Naphthalene. Polycyclic Aromatic Compounds include those chemicals identified in Table6 (including Benzo(a)anthracene, Benzo(a)pyrene, Benzo(b)fluoranthene, Benzo(k)fluoranthene,Dibenz(a,h)anthracene, and Indeno(1,2,3-cd)pyrene).

Data from U.S. Environmental Protection Agency, Risk-Screening Environmental16Indicators Model, Version 2.3.2 (July 2013), available at http://www.epa.gov/opptintr/rsei/(accessed Mar. 3, 2014). Results include fugitive and stack emissions of toxic air pollutantsonly.

14

FIGURE 11

FIGURE 12

Comparison of Walter Coke andABC Coke RSEI Hazard Scores

Comparison of Walter Coke andABC Coke RSEI Risk Scores

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FIGURE 13

IV. National-Scale Air Toxics Assessment Results

In 2011, EPA released the results of its 2005 National-Scale Air ToxicsAssessment (NATA) of air toxic emissions. The purpose of NATA is to identifyand prioritize air toxics, emission source type, and locations that are of greatestpotential concern in terms of contributing to population risk. EPA uses the resultsof these assessments in many ways, including:

To work with communities in designing their own local-scale assessments, To set priorities for improving data in emissions inventories, and To help direct priorities for expanding and improving the network of air

toxics monitoring.

* * *

The assessment includes four steps that focus on the 2005 emissions year:

1. Compiling a national emissions inventory of air toxics emissions fromoutdoor sources

2. Estimating ambient and exposure concentrations of air toxics across theUnited States

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2Table 1-1

Chemicals Included in the EPCRA Section 313 PAC Categorya

Chemical Name CAS Number Sources (1)

Benzo(a)anthracene 56-55-3 Product of incomplete combustion (PIC); fossilfuels (FF)

Benzo(a)phenanthrene (chrysene) 218-01-9 PIC; FF; coke plant exhaust

Benzo(a)pyrene 50-32-8 PIC; FF; coal tar; municipal incinerator emissions

Benzo(b)fluoranthene 205-99-2 PIC; FF

Benzo(j)fluoranthene 205-82-3 PIC; FF; coal tar

Benzo(k)fluoranthene 207-08-9 PIC; FF; coal tar

Benzo(j,k)fluorene (fluoranthene) 206-44-0 PIC; FF; coal tar

Benzo(r,s,t)pentaphene 189-55-9 PIC; FF; coal tar

Dibenz(a,h)acridine 226-36-8 PIC (particularly coal burning processes)

Dibenz(a,j)acridine 224-42-0 PIC (particularly coal burning processes)

Dibenzo(a,h)anthracene 53-70-3 PIC; FF; coal tar; gasoline engine exhaust tar

Dibenzo(a,e)fluoranthene 5385-75-1 PIC

Dibenzo(a,e)pyrene 192-65-4 PIC; FF

Dibenzo(a,h)pyrene 189-64-0 PIC; FF; coal tar

Dibenzo(a,l)pyrene 191-30-0 PIC; coal gasification

7H-Dibenzo(c,g)carbazole 194-59-2 Coal burning processes; coal tar and coaldistillates

7,12-Dimethylbenz(a)anthracene 57-97-6 Produced in small quantities as a researchchemical, not formed during combustion

Indeno(1,2,3-cd)pyrene 193-39-5 PIC; FF; coal tar

3-Methylcholanthrene 56-49-5 Produced in small quantities as a researchchemical, not formed during combustion

5-Methylchrysene 3697-24-3 PIC

1-Nitropyrene 5522-43-0 Diesel and gasoline engines; coal fired energyconversion plants; aluminum smelter stack gases

1 Reference: Aronson, D., and Howard, P.H. Sources of Individual PAHs Listed in the PBT Chemical Pool, January2000.a In addition to the PAC chemical category, the list of EPCRA Section 313 chemicals includes benzo (g,h,i) perylene(a polycyclic aromatic compound). The reporting threshold for the PAC category is 100 lb/yr and the reportingthreshold for benzo (g,h,i) perylene is 10 lb/yr.

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TABLE 6 Chemicals Included in the Toxics Release Inventory

Polycyclic Aromatic Compounds Category

Source: United States Environmental Protection Agency, Office of Environmental Information, Emergency Planning and Community Right-to-Know Act Section 313: Guidance for Reporting Toxic Chemicals: Polycyclic Aromatic Compounds Category, EPA 260-B-01-03, Washington, DC, August 2001.

3. Estimating population exposures across the United States4. Characterizing potential public health risk due to inhalation of air toxics

including both cancer and noncancer effects

U.S. Environmental Protection Agency, NATA|National-Scale Air Toxics Assessment, availableat http://www.epa.gov/ttn/atw/nata2005/ (accessed Mar. 13, 2014). Once again, the air toxicsemissions that are compiled in the inventory are provided by industries.

The National-Scale Air Toxics Assessment shows that the cancer risk from air toxics inJefferson County is higher than the average cancer risk in Alabama and the United States. Indeed, Jefferson County has the highest cancer risk from air toxics among all counties inAlabama. More to the point however, the census tract where ABC Coke is located has a cancerrisk from air toxics that is 54% higher than the Alabama average and 27% higher than theJefferson County average. Figure 14.

FIGURE 14Average Air Toxic Cancer Risks by Geographic Area

Source: U.S. Environmental Protection Agency, National-Scale Air Toxics Assessment (2005)

The U.S. Environmental Protection Agency has also provided data for use with GoogleEarth to visualize the geographic areas impacted by air toxics. U.S. Environmental ProtectionAgency, 2005 Assessment Results|2005 National-Scale Air Toxics Assessment, available athttp://www.epa.gov/ttn/atw/nata2005/tables.html#int (accessed Mar. 13, 2014). Figure 15shows gradations of cancer risk in Jefferson County estimated from the 2005 National-Scale AirToxics Assessment (the darker the gradation, the higher the cancer risk).

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FIGURE 15Cancer Risk from Air Toxics in Jefferson County Census Tracts

Source: National-Scale Air Toxics Assessment (EPA, 2005)

Figure 16 shows ABC Coke and the surrounding Census Tracts and indicates the U.S.Environmental Protection Agencys estimate of the cancer risk in the Census Tract where ABCCoke is located. That risk is 106 in a million (1.06E-04).

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FIGURE 16ABC Coke and Surrounding Air Toxics Cancer Risk

Source: National-Scale Air Toxics Assessment (EPA, 2005)

V. Ambient Toxic Air Pollutant Monitoring and Cancer Risk Results

Although the Jefferson County Department of Health and U.S. Environmental ProtectionAgency have, for limited periods of time, operated monitors to measure toxic air pollutants in theambient air, none of these monitors have been located in close proximity to ABC Coke. Figure17. The nearest monitor to ABC Coke is the Shuttlesworth Monitor located acrossShuttlesworth Drive from Walter Coke and approximately 1.5 miles south-southwest of ABCCoke. Thus, these agencies have failed to obtain definitive measurements of air toxics17concentrations in residential neighborhoods near ABC Coke.18

In each case, the assumption is made that the air quality data at the monitoring17location is representative of exposures within some distance from the monitor (e.g., at theneighborhood level). * * * If the monitoring sites were unrepresentative of any location beyondwhere they were sited, the monitoring data may over- or underestimate the true health impacts atthe unmonitored locations. U.S. Environmental Protection Agency - Region 4, NorthBirmingham Air Toxics Risk Assessment (Mar. 2013) at 36, available at http://www.epa.gov/region4/air/airtoxic/North-Birmingham-Air-Toxics-Risk-Assessment-final-03282013.pdf (accessed Mar. 3, 2014). The risk and hazard assessment assumes that the sampling data aresufficient to draw conclusions regarding the populations that are localized near the monitorsplacement. Id.

Nor have these agencies produced any air quality modeling for toxic pollutants being18(continued...)

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FIGURE 17Location of Toxic Air Pollutant Monitors in Relation to ABC Coke19

Nevertheless, we know from data submitted to the U.S. Environmental ProtectionAgencys Toxics Release Inventory that ABC Cokes emissions of Polycyclic AromaticCompounds, Benzene, and Naphthalene are at least as great as, if not more than, the emissions ofWalter Coke. Figures 18, 19, and 20. We also know from the EPAs Risk-ScreeningEnvironmental Indicators (RSEI) model that the ABC Coke facility presents a somewhat higherrisk to nearby populations than the Walter Coke facility. See Figures 9 and 12. Based on these

(...continued)18emitted by ABC Coke.

Monitor locations are from Jefferson County Department of Health, Birmingham Air19Toxics Study (Feb. 2009), available at http://www.jcdh.org/misc/ViewBLOB.aspx?BLOBId=182(accessed Mar. 3, 2014), and U.S. Environmental Protection Agency - Region 4, supra note 17. Source locations are from U.S. Environmental Protection Agency, Facility Registry Service,http://www.epa.gov/enviro/html/fii/fii_query_java.html, adjusted to aerial photography.

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facts, it is probable that the ambient air impacts of ABC Coke are similar to the ambient airimpacts of Walter Coke, if not worse. Accordingly, the ambient air quality and health riskassessments prepared by the Jefferson County Department of Health and the U.S. EnvironmentalProtection Agency for the Shuttlesworth Monitor area provide insight into the probable ambient20air quality and health risk near the ABC Coke facility.

FIGURE 18

Jefferson County Department of Health, supra note 19; U.S. Environmental Protection20Agency - Region 4, supra note 17.

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FIGURE 19

FIGURE 20

23

The Birmingham Air Toxics Study was prepared by the Jefferson County Department ofHealth based on samples collected from July 15, 2005 to June 26, 2006. The Department offeredthe following conclusions about data collected at the Shuttlesworth Monitor:

For the Shuttlesworth monitor, there were eleven potential risk drivers for chroniccancer risk: 1,3-butadiene, acetaldehyde, arsenic, benzene, benzo(a)pyrene,beryllium, carbon tetrachloride, hexavalent chromium, naphthalene,p-dichlorobenzene and tetrachloroethylene. The cumulative chronic cancer riskfor COPCs at Shuttlesworth was calculated to be 1.6610 , which equates to an-4increased likelihood of 166 additional cases of cancer per one million chronicexposures and exceeds the 110 threshold for a risk driver. This is the only-4instance in which such a threshold is exceeded for any exposure in this study. Ofthis overall risk, the largest contributor was benzene, with a risk of 6.4010 ,-5accounting for 34% of total risk and which is the highest cancer risk valueobtained for any single pollutant at a single monitoring location.

There were eight potential risk drivers for chronic non-cancer exposure hazard atShuttlesworth: 1,3-butadiene, acetaldehyde, acetonitrile, acrolein, arsenic,benzene, manganese and naphthalene. The highest hazard quotient was 119.8 foracrolein, which was detected in 61% of the samples. The second highest hazardquotient was manganese, at 3.74, which was detected in 100% of the samples.

Birmingham Air Toxics Study at 31. The cancer risk drivers identified in this study for theShuttlesworth Monitor site are shown in Figure 21 and Table 7.21

The North Birmingham Air Toxics Risk Assessment was prepared by the U.S.Environmental Protection Agency based on samples collected from June 2011 to August 2012. The Agency offered the following conclusions about the data collected at the ShuttlesworthMonitor:

The Shuttlesworth Station site had a total cancer risk of 110 . The risk drivers-4were benzene (37%), naphthalene (26%), arsenic (11%), 1,3-butadiene (5%),carbon tetrachloride (4%), 1,2-dichloroethane (4%) and benzo(a)pyrene (3%). Benzene had the highest risk (410 ) followed by naphthalene and arsenic (310-5 -5and 110 , respectively). These three risk drivers contributed 74% of the total-5risk. Each of the remaining four risk drivers accounted for 5% or less each of thetotal risk. Five other COPCs (p-dichlorobenzene, hexavalent chromium,ethylbenzene, cadmium and dibenz(a,h)anthracene) had risk values of or above110 . -6

Differences between the risk driver percentages reported in the Birmingham Air Toxics21Study and Figure 21 and Table 7 are the result of unexplained errors and omissions in theJefferson County Department of Healths calculation of risks. See e.g., Table 7 notes.

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Id. at 28.

At the Shuttlesworth Station site, the 95UCL HI was 1. Manganese (0.5),naphthalene (0.3), arsenic (0.2), benzene (0.2), 1,3-Butadiene (0.1), and cadmium(0.1) had HQs of 0.1 or above.

Id. at 29. The cancer risk drivers identified in this study for the Shuttlesworth Monitor site areshown in Figure 22 and Table 7.

FIGURE 21

25

FIGURE 22

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TABLE 7Chronic Exposure Cancer Risk at Shuttlesworth Monitor

ChemicalJun 2011- Aug 2012 (EPA) Jul 2005- Jun 2006 (JCDH)

Risk Percent Risk Percent

Benzene 4.00E-05 37.22% 6.23E-05 40.03%

Naphthalene 2.81E-05 26.14% 1.94E-05 12.46%

Arsenic 1.16E-05 10.79% 3.49E-05 22.42%

1,3-Butadiene 5.22E-06 4.86% 7.35E-06 4.72%

Carbon Tetrachloride 4.42E-06 4.11% 9.82E-06 6.31%

1,2-Dichloroethane 4.11E-06 3.82%

Benzo(a)pyrene 3.65E-06 3.40% 3.29E-06 2.11%

p-Dichlorobenzene 3.06E-06 2.85% 5.30E-06 3.41%

Acetaldehyde 3.56E-06 2.29%

Hexavalent Chromium 1.54E-06 1.43% 6.63E-07 0.43%

Ethylbenzene 1.46E-06 1.36% 2.81E-06* 1.81%

Cadmium 1.20E-06 1.12% 7.93E-07 0.51%

Dibenz(a,h)anthracene 1.20E-06 1.12% 7.35E-07 0.47%

Tetrachloroethylene 6.40E-08 0.06% 1.77E-06 1.14%

Beryllium 7.85E-08 0.07% 1.02E-06 0.66%

Benzo(a)anthracene 7.60E-07 0.71% 5.01E-07 0.32%

Benzo(b)fluoranthene 5.57E-07 0.52% 5.02E-07 0.32%

Indeno(1,2,3-cd)pyrene 1.88E-07 0.17% 3.03E-07 0.19%

Benzo(k)fluoranthene 1.68E-07 0.16% 3.97E-07 0.26%

Chrysene 6.09E-08 0.06% 6.68E-08 0.04%

Dichloromethane 4.57E-08 0.04% 5.91E-09** 0.00%

Methyl tert-Butyl Ether 1.42E-07 0.09%

Formaldehyde 2.26E-08 0.01%

CUMULATIVE CANCER RISK 1.07E-04 100% 1.56E-04*** 100%

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Table 7 notes:

* JCDH did not calculate cancer risk for Ethylbenzene. Risk calculation based on 95% UCL= 1.233 g/m3(determined by JCDH) and Inhalation Unit Risk = 0.0000025 (1/g/m ) (determined by U.S. EPA).3

** JCDH did not calculate cancer risk for Dichloromethane. Risk calculation based on 95% UCL= 0.3475 g/m3(determined by JCDH) and Inhalation Unit Risk = 0.000000017 (1/g/m ) (determined by U.S. EPA).3

*** Jefferson County Department of Health reports the cumulative risk at the Shuttlesworth Monitor site to be1.66E-04. Birmingham Air Toxics Study (February 2009) at 1, 31, and 44, available at http://www.jcdh.org/misc/ViewBLOB.aspx?BLOBId=182. However, the cancer risk values assigned to chemicals in Table D-4 of theBATS add up to 1.53E-04.

Table 7 demonstrates that a number of individual air toxics create a cancer risk(probability) exceeding 1 in 100,000, including Benzene, Naphthalene, and Arsenic. Many moreindividual air toxics create a cancer risk exceeding 1 in 1,000,000, including all the risk driversidentified by the Jefferson County Department of Health and U.S. Environmental ProtectionAgency. Table 7 also demonstrates that the cumulative cancer risk from exposure to all the airtoxics listed exceeds 1 in 10,000. The potential health effects of exposure to various air toxicsare described in Appendix A.

VI. Prohibition of Air Pollution22

Jefferson County Air Pollution Control Rules and Regulations, Paragraph 18.2.8(a)23states that [t]he Health Officer shall deny an Operating Permit if the applicant does not showthat every article, machine, equipment, or other contrivance, the use of which may cause the

GASP submits that the arguments made in this part demonstrate that the proposed22issuance of Major Source Operating Permit No. 4-07-0001-03 is not in compliance with therequirements of the approved Alabama State Implementation Plan (SIP), 40 C.F.R. 52.50-52.69, available at http://www.epa.gov/region4/air/sips/al/. The corresponding SIP provisionsare as follows:

Jefferson County AirPollution Control Rulesand Regulations Alabama SIP Subject18.2.8(a) 335-3-14-.03(1)(a) Duty to deny permit 1.13 335-3-1-.08 Prohibition against air pollution1.3 335-3-1-.02(1)(e) Definition of air pollution1.3 335-3-1-.02(1)(d) Definition of air contaminant1.3 335-3-1-.02(1)(ss) Definition of odor

Jefferson County Board of Health, Jefferson County Air Pollution Control Rules and23Regulations, available at http://www.jcdh.org/misc/ViewBLOB.aspx?BLOBId=287.

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issuance of air contaminants, is so designed, controlled, or equipped with such air pollutioncontrol equipment, that it is expected to operate without emitting or without causing to beemitted air contaminants in violation of these rules and regulations. (Emphasis added).

Jefferson County Air Pollution Control Rules and Regulations, Part 1.13 provides:

No person shall permit or cause air pollution, as defined in Part 1.3 of thisChapter by the discharge of any air contaminants for which no ambient air qualitystandards have been set under Section 1.7.l.

(Emphasis added).24

An air contaminant is any solid, liquid, or gaseous matter, any odor, or anycombination thereof, from whatever source. Jefferson County Air Pollution Control Rules andRegulations, Part 1.3. Polycyclic Aromatic Compounds, Benzene, Naphthalene, Arsenic, Odor,and Total Suspended Particulates (including particulate matter greater than 10 microns) areamong the many air contaminants emitted into the air by ABC Coke. No ambient air qualitystandards have been set for these air contaminants under Jefferson County Air Pollution ControlRules and Regulations, Section 1.7.1. 25

Air pollution means the presence in the outdoor atmosphere of one or more aircontaminants in such quantities and duration as are, or tend to be, injurious to human health orwelfare, animal or plant life, or property, or would interfere with the enjoyment of life orproperty throughout the County and in such territories of the County as shall be affectedthereby. Jefferson County Air Pollution Control Rules and Regulations, Part 1.3. (Emphasisadded).

A. Cancer Risk from Exposure to Individual Air Toxic Emissions from ABCCoke

The permit application submitted to the Jefferson County Department of Health makes noshowing that the individual carcinogens emitted by ABC Coke will comply with JeffersonCounty Air Pollution Control Rules and Regulations, Part 1.13, i.e., will not tend to be injurious

It does not appear that ABC Coke made any attempt to show in its application that its24emissions comply with Jefferson County Air Pollution Control Rules and Regulations, Part 1.13. ABC Cokes emissions of toxic pollutants, noxious odors, and particulates and resulting harms toresidents of Tarrant has been the subject of multiple lawsuits. E.g., Mamie L. Williams v.Drummond Company, Inc., No. CV-2008-02070 (Jefferson County Circuit Court, filed June 25,2008) (Appendix B).

See U.S. Environmental Protection Agency, National Ambient Air Quality Standards,25available at http://www.epa.gov/air/criteria.html (accessed Mar. 3, 2014).

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to human health. In the absence of any showing by ABC Coke that it may be expected to26operate without emitting or without causing to be emitted air contaminants (i.e., carcinogenswhich tend to be injurious to human health) in violation of Jefferson County Air PollutionControl Rules and Regulations, Part 1.13 (prohibition against causing air pollution), theJefferson County Department of Health must deny the permit. Jefferson County Air PollutionControl Rules and Regulations, Paragraph 18.2.8(a).

Not only did ABC Coke fail to make the required showing, the available evidencesuggests that it cannot make the required showing. Table 7 demonstrates that a number ofindividual carcinogens were present in the outdoor atmosphere at the Shuttlesworth Monitor site(during July 2005-June 2006 and June 2011-August 2012) in such quantities and for suchduration as tend to increase the probability (in excess of 1 in 100,000) of each person exposedover a lifetime contracting cancer. These carcinogens include Benzene, Naphthalene, andArsenic. These carcinogens are likely to exist in the ambient air near the ABC Coke facilitybecause of ABC Cokes emissions. Thus, it is probable that ABC Coke has permitted or causedair pollution by the discharge of individual air contaminants for which no ambient air qualitystandards have been set in violation of the prohibition in Part 1.13.

If ABC Coke were to seek a variance from the prohibition against air pollution inJefferson County Air Pollution Control Rules and Regulations, Part 1.13, it would have to do sounder Jefferson County Air Pollution Control Rules and Regulations, Section 3.1.2. Thatsection, however, mandates as follows:

Moreover, the analysis of the permit application by the Jefferson County Department26of Health demonstrates that the Department did not consider whether ABC Coke demonstratedcompliance with Jefferson County Air Pollution Control Rules and Regulations, Part 1.13. See Jefferson County Department of Health, Title V Operating Permit Evaluation (Nov. 7, 2013),available at http://www.jcdh.org/eh/anr/anr12.aspx?NoticeId=66&Type=2 (accessed Mar. 6,2014). Of course, [t]he Health Officer may issue an Operating Permit subject to conditionswhich will bring the operation of any article, machine, equipment, or other contrivance within thestandards of Paragraph 18.2.8(a) of this Part in which case the conditions shall be specified inwriting. Jefferson County Air Pollution Control Rules and Regulations, Section 18.2.4. However, the proposed permit does not establish emission limitations on the specific aircontaminants that are causing cancer risks to be elevated. Moreover, the authority of the HealthOfficer to impose permit conditions does not negate the obligation of the Health Officer to deny apermit if the applicant does not show that its facility may be expected to operate without emittingor without causing to be emitted air contaminants in violation of Part 1.13 (emphasis added). Jefferson County Air Pollution Control Rules and Regulations, Paragraph 18.2.8(a). See also,Jefferson County Air Pollution Control Rules and Regulations, Paragraph 18.2.4 (The HealthOfficer may issue an Operating Permit with revised conditions upon receipt of a new application,if the applicant demonstrates that the article, machine, equipment, or other contrivance canoperate within the standards of Paragraph 18.2.8(a) of this Part under the revised conditions.)(emphasis added).

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A variance will not be considered for approval under any circumstances ifemissions from the source for which the variance is petitioned can be shown bycomputer modeling or ambient monitoring to cause outside the facility propertyline any of the following:

* * *

(c) If the toxic emission is a carcinogen, an amount equal to or greater than that which would result in an individual having more than one (1) in one hundredthousand (100,000) chance of developing cancer over a lifetime (70 years) ofexposure to that amount.

Thus, the Board of Health has mandated that cancer risks for individual air toxics shall notexceed 1 in 100,000 outside a facility property line.

Despite this limitation on the maximum permissible cancer risk, an unnamedadministrative official(s) in the Jefferson County Department of Health, Environmental HealthServices Air and Radiation Protection Division, determined that it is acceptable for thepopulation near the Shuttlesworth Monitor and elsewhere to bear a cancer risk from chronicexposure to Benzene, Naphthalene and Arsenic greater than 110 (1 in 100,000). It would be-5 27incongruous for the Health Officer to determine that cancer risks higher than 1 in 100,000 arepermissible under Jefferson County Air Pollution Control Rules and Regulations, Part 1.13 whenthe Board of Health has declared those same cancer risks impermissible under Jefferson CountyAir Pollution Control Rules and Regulations, Section 3.1.2.

B. Cumulative Cancer Risk from Exposure to Multiple Air Toxics Emissionsfrom ABC Coke

The permit application submitted to the Jefferson County Department of Health makes noshowing that the multiple carcinogens emitted by ABC Coke will comply with Jefferson CountyAir Pollution Control Rules and Regulations, Part 1.13, i.e., will not tend to be injurious tohuman health. In the absence of any showing by ABC Coke that it may be expected to operate28without emitting or without causing to be emitted air contaminants (i.e., carcinogens which tendto be injurious to human health) in violation of Jefferson County Air Pollution Control Rules andRegulations, Part 1.13 (prohibition against causing air pollution), the Jefferson County

Jefferson County Department of Health, supra note 19 at 50-51. The unnamed27official(s) declared that cancer risks greater than 110 (1 in 1,000,000) but less than 110 are-6 -4deserving of no mitigation because of inherent uncertainties in the risk assessment methodology. Id. The identified uncertainties, however, are common to all risk assessments and could just aswell suggest that risks may actually be higher than stated.

See supra note 26.28

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Department of Health must deny the permit. Jefferson County Air Pollution Control Rules andRegulations, Paragraph 18.2.8(a).

Not only did ABC Coke fail to make the required showing, the available evidencesuggests that it cannot make the required showing. Table 7 demonstrates that multiplecarcinogens were present in the outdoor atmosphere at the Shuttlesworth Monitor site (duringJuly 2005-June 2006 and June 2011-August 2012) in such quantities and for such duration astend to increase the probability (in excess of 1 in 10,000) of each person exposed over a lifetimecontracting cancer. Similar air pollution is likely to exist near the ABC Coke facility becauseof ABC Cokes emissions. Thus, it is probable that ABC Coke has permitted or caused airpollution by the discharge of multiple air contaminants for which no ambient air qualitystandards have been set in violation of the prohibition in Part 1.13

No statute or rule prescribes what cancer risk level from exposure to multiple aircontaminants is deemed acceptable. Nor has the Jefferson County Board of Health endorsedan acceptable cancer risk level from exposure to multiple toxic air pollutants. However, an29unnamed administrative official(s) in the Jefferson County Department of Health, EnvironmentalHealth Services Air and Radiation Protection Division, has determined that it is acceptable forpopulations near the Shuttlesworth Monitor and elsewhere to bear a cumulative cancer risk fromchronic exposure to multiple air toxics equal to or less than 110 (1 in 10,000). Birmingham-4 30Air Toxics Study at 51. This maximum acceptable risk is based on a U.S. EnvironmentalProtection Agency interpretation of the phrase ample margin of safety in subsection (f) ofSection 112 of the Clean Air Act, 42 U.S.C. 7412(f). That interpretation states:

The Board of Health has, however, declared that no source shall be eligible for a29variance if the toxic emission for which a variance is sought causes a cancer risk level of morethan one in one-hundred thousand (1 in 100,000) outside the facility property line. JeffersonCounty Air Pollution Control Rules and Regulations, Paragraph 3.1.2(c).

The unnamed administrative official(s) declared that a cumulative cancer risk equal to301.6610 (166 in 1,000,000) at the Shuttlesworth Monitor site is deserving of no mitigation-4because (1) subsequent to the monitoring time period of this study (July 2005-June 2006),several plants around this site have installed pollution control equipment and have implementedwork practice standards (2006 and 2007) . . . resulting in direct reductions in air toxics emissionsand concentrations and (2) the Department will continue to ensure compliance and enforcement.Birmingham Air Toxics Study at 52. When the U.S. Environmental Protection Agency conductedits air toxics monitoring program between June 2011 and August 2012, the cancer risk forBenzene at the Shuttlesworth Monitor site was 36% lower, but not below 4.010 (4 in-5100,000); the cancer risk for Naphthalene was 47% higher - almost 3.010 (3 in 100,000); and-5the cancer risk for Arsenic was 67% lower but not below 1.010 (1 in 100,000). The-5cumulative cancer risk at the Shuttlesworth Monitor, although it declined, remained at 1.0710-4(1.07 in 10,000). North Birmingham Air Toxics Risk Assessment at 80.

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In protecting public health with an ample margin of safety, EPA strives to providemaximum feasible protection against risks to health from HAPs by (1) protectingthe greatest number of persons possible to an individual lifetime risk level nohigher than 110 (one in one million) and (2) limiting to no higher than-6approximately 110 (one in ten thousand) the estimated risk that a person living-4near a source would have if exposed to the maximum pollutant concentrations for70 years.

U.S. Environmental Protection Agency, Risk Assessment and Modeling - Air Toxics RiskAssessment Reference Library, Volume 1 - Technical Resource Manual, Part V - Risk-BasedDecisionmaking (April 2004) at 27-5 to 27-6, available at http://www.epa.gov/ttn/fera/data/risk/vol_1/chapter_27.pdf (accessed Mar. 4, 2014). This statement of acceptable risk is not 31

In the 1970 Clean Air Act, Pub. L. No. 91-604, 84 Stat. 1676, the Administrator of31EPA was required to prepare a list of hazardous air pollutants and to promulgate emissionstandards for each category or subcategory of sources at the level which in his judgmentprovides ample margin of safety to protect public health from such hazardous air pollutant. InNational Emission Standard for Hazardous Air Pollutants (NESHAP): Benzene Emissions fromMaleic Anhydride Plants, Ethylbenzene/Stryene Plants, Benzene Storage Vessels, BenzeneEquipment Leaks, and Coke By-Product Recovery Plants, 54 Fed. Reg. 38044 (1989), EPA setforth its interpretation of ample margin of safety, as that term was used in the 1970 Clean AirAct. It said that the ample margin of safety was met if as many people as possible faced excesslifetime cancer risks no greater than one-in-one million, and that no person faced a risk greaterthan 100-in-one million (one-in-ten thousand). EPA also said that ample margin of safetyallowed consideration of all health information . . . as well as other relevant factors includingcosts and economic impacts, technological feasibility, and other factors relevant to eachparticular decision. 54 Fed. Reg. at 38045.

Because EPAs progress in regulating hazardous air pollutants under the 1970 Clean AirAct provisions was slow, in the 1990 Clean Air Act Amendments, Pub. L. 101-549, 104 Stat.2399, 2531, Congress directed EPA first, to promulgate emission standards for hazardous airpollutants based on maximum achievable control technology (MACT), 42 U.S.C. 7412(d),and then, to promulgate emission standards in order to provide an ample margin of safety toprotect public health if emission standards based on MACT do not reduce lifetime excess cancerrisks to the individual most exposed to emissions from a source . . . to less than one in onemillion. 42 U.S.C. 7412(f)(2)(A). Congress also expressly ratified the EPAs interpretationof ample margin of safety in National Emission Standard for Hazardous Air Pollutants(NESHAP): Benzene Emissions from Maleic Anhydride Plants, Ethylbenzene/Stryene Plants,Benzene Storage Vessels, Benzene Equipment Leaks, and Coke By-Product Recovery Plants, 54Fed. Reg. 38044 (1989). 42 U.S.C. 7412(f)(2)(B). See Natural Resources Defense Council v.Environmental Protection Agency, 529 F.3d 1077 (D.C. Cir. 2008).

(continued...)

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binding on the Department. In fact, the U.S. Environmental Protection Agency readily admitsthat notwithstanding its view of acceptable risk under the Clean Air Act, th[e] level of cancer

(...continued)31In National Emission Standards for Coke Oven Batteries, 70 Fed. Reg. 19992 (2005), the

EPA explained:

Section 112(f)(2)(A) does indeed require us to promulgate standards if thelifetime excess cancer risk to the individual most exposed to emissions from asource in a category or subcategory is greater than 1 in a million. It does notestablish what the level of the standard might be. See A Legislative History ofthe Clean Air Act Amendments of 1990, page 1789 (Conference Report), statingthat [s]ection 112(f) contains a trigger for standards for non-threshold pollutants.* * * Rather, the level of the standard is to provide an ample margin of safetyto protect public health. Ample margin of safety is to be interpreted under thetwo-step formulation established by the Benzene NESHAP and CAA section112(f)(2)(B).

Under that formulation, there is no single risk level establishing whatconstitutes an ample margin of safety (69 FR 48348). Rather, the BenzeneNESHAP approach codified in section 112(f)(2) is deliberately flexible, requiringconsideration of a range of factors (among them estimates of quantitative risk,incidence, and numbers of exposed persons within various risk ranges; scientificuncertainties; and weight of evidence) when determining acceptability of risk (thefirst step in the ample margin of safety determination) (54 FR 38045). Determination of ample margin of safety, the second step of the process, requiresfurther consideration of these factors, plus consideration of technical feasibility,cost, economic impact, and other factors (54 FR 38046). As we stated in ourResidual Risk Report to Congress issued under CAA section 112(f)(1), we donot consider the 1 in a million individual additional cancer risk level as a brightline mandated level of protection for establishing residual risk standards, butrather as a trigger point to evaluate whether additional reductions are necessary to provide an ample margin of safety to protect public health. This interpretation issupported by the interpretive language in the preamble to the Benzene NESHAP,which was incorporated by Congress in section 112(f)(2)(B).

Id., 70 Fed. Reg. at 19995.

The EPAs determination of acceptable cancer risk levels is based on statutorylanguage applicable only to EPA and only to the promulgation of regulations limiting emissionsfor categories and subcategories of sources of hazardous air pollutants. 42 U.S.C. 7412(f). That statutory language has no application to the Jefferson County Department of Health and noapplication to permit proceedings undertaken by the Jefferson County Department of Health.

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risk that is of concern is a matter of personal and community judgment . . .. North BirminghamAir Toxics Risk Assessment at 40.

Several states and localities have made the judgment that greater protection from toxic airpollutants is appropriate. These State and local programs have focused on three methods for32addressing air toxic emissions: (1) ambient air levels; (2) control technology standards; and (3)risk assessment. U.S. Environmental Protection Agency, Residual Risk Report to Congress(Mar. 1999) at 14, available at http://www.epa.gov/ttn/oarpg/t3/reports/ risk_rep.pdf. Seee.g.,United States Government Accountability Office, Clean Air Act - EPA Should Improve theManagement of Its Air Toxics Program, Appendix III: Profiles of State and Local Air ToxicsPrograms (June 2006), available at http://www.gao.gov/assets/260/250607.pdf; AlabamaDepartment of Environmental Management, National Air Toxics Survey (Feb. 26, 2009).

GASP suggests that the maximum acceptable cancer risk from chronic exposure tomultiple air contaminants should be 5.0 10 (5 in 100,000). This cancer risk level-5approximates the average State-wide cancer risk level and the average cancer risk level in CensusTract 011103 located in northeastern Jefferson County, as reported in the U.S. EnvironmentalProtection Agencys National-Scale Air Toxics Assessment (2005). The people surroundingABC Coke deserve the same freedom from air toxics and cancer that others in the County andState enjoy.

C. Odor Emissions from ABC Coke

An air contaminant includes . . . any odor . . .from whatever source. JeffersonCounty Air Pollution Control Rules and Regulations, Part 1.3. Odor is defined as follows:

Odor shall mean smells or aromas which are unpleasant to persons, or whichtend to lessen human food and water intake, interfere with sleep, upset appetite,produce irritation of the upper respiratory tract, or cause symptoms of nausea, orwhich by their inherent chemical or physical nature, or method of processing, are,or may be, detrimental or dangerous to health. Odor and smell are usedinterchangeable therein.

Jefferson County Air Pollution Control Rules and Regulations, Part 1.3.

The permit application submitted to the Jefferson County Department of Health makes noshowing that the odor emissions from ABC Coke will comply with Jefferson County AirPollution Control Rules and Regulations, Part 1.13 (prohibition against causing air pollution). In the absence of ABC Cokes demonstration that it may be expected to operate without emittingor without causing to be emitted air contaminants (i.e., odors which tend to be injurious to human

More stringent standards adopted under State authority are permissible under the Clean32Air Act. 42 U.S.C 7412(d)(7), 7412(l)(1), 7416.

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health or interfere with the enjoyment of life or property) in violation of Jefferson County AirPollution Control Rules and Regulations, Part 1.13, the Jefferson County Department of Healthmust deny the permit. Jefferson County Air Pollution Control Rules and Regulations, Paragraph18.2.8(a).33

Not only did ABC Coke fail to make the required showing, the available evidencesuggests that it cannot make the required showing. See e.g.:

Unnamed person reports strong smell of moth balls in the air when ABC Cokereleases white gas exhaust, Jefferson County Department of Health ComplaintInvestigation Report No. 17023 (Jan. 6, 2009);

Unnamed person reports that odor smells horrible - like rotten eggs - in front ofthe ABC Coke facility, Jefferson County Department of Health ComplaintInvestigation Report No. 42147 (Feb. 15, 2014);

Unnamed person, a life-long Tarrant resident, reports on March 24, 2014 that hesuffers from nausea when he smells odors from ABC Coke - forwarded by GASPto Jefferson County Department of Health (April 4, 2014);

Cynthia Rosgen, a Tarrant resident, expresses concern about the strange odorscoming from ABC Coke - forwarded by GASP to Jefferson County Departmentof Health (April 4, 2014);

Lathia Banks, who works in Tarrant, expresses concern about the noxious odorsfrom ABC Coke, including a burnt toast smell - forwarded by GASP to JeffersonCounty Department of Health (April 4, 2014);

Eddie and Joyce Holloway, residents of Tarrant, report on March 28, 2014 thatthey turn off their heat and air conditioning at night to avoid the odors that comeinto their home from ABC Coke. Their grandaughter doesnt want to go outsidedue to the odors they routinely smell;

Nelson Brooke, reports that he frequently smells the stench that comes from ABCCoke that is very distinct. He notices more at night time and first thing in themorning. He stated that the complaints he has previously filed with the JeffersonCounty Department of Health about ABC Coke do not appear in the DepartmentsABC Coke file. Testimony of Nelson Brooke, Transcript of Public Hearing onABC Coke Permit Reissuance (April 14, 2014).


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D. Particulate Emissions from ABC Coke

ABC Coke estimates that it emitted into the air more than 483 tons of Total SuspendedParticulates in 2012. Table 5. The previous years estimate was more than 541 tons. TotalSuspended Particulates (including particulate matter larger than 10 microns) are air contaminantsfor which no ambient air quality standards have been set under Jefferson County Air PollutionControl Rules and Regulations, Section 1.7.l.

The permit application submitted to the Jefferson County Department of Health makes noshowing that the Total Suspended Particulates (including particulate matter larger than 10microns) emitted from ABC Coke will comply with Jefferson County Air Pollution ControlRules and Regulations, Part 1.13 (prohibition against causing air pollution). In the absence ofABC Cokes demonstration that it may be expected to operate without emitting or withoutcausing to be emitted air contaminants (i.e., Total Suspended Particulates, including particulatematter larger than 10 microns, that tends to be injurious to welfare, or property, or wouldinterfere with the enjoyment of life or property) in violation of Jefferson County Air PollutionControl Rules and Regulations, Part 1.13, the Jefferson County Department of Health must denythe permit. Jefferson County Air Pollution Control Rules and Regulations, Paragraph 18.2.8(a).34

Not only did ABC Coke fail to make the required showing, the available evidencesuggests that it cannot make the required showing. It is commonly known that particulate matteremissions can be injurious to welfare and property and interfere with enjoyment of life andproperty.

Ambient particles can cause soiling of man-made surfaces. Soiling generally isconsidered an optical effect. Soiling changes the reflectance from opaquematerials and reduces the transmission of light through transparent materials.Soiling can represent a significant detrimental effect, requiring increasedfrequency of cleaning of glass windows and concrete structures, washing andrepainting of structures, and, in some cases, reduces the useful life of the object.Particles, especially carbon, may also help catalyze chemical reactions that resultin the deterioration of materials . . ..

U.S. Environmental Protection Agency, Integrated Science Assessment for Particulate Matter(Dec. 2009) at 9-194, available at http://cfpub.epa.gov/ncea/cfm/recordisplay.cfm?deid=216546(accessed April 6, 2014). More importantly, the available evidence indicates that particulatematter emitted from ABC Coke is injurious to the welfare and property of nearby residents andinterferes with their enjoyment of life and property. See e.g.:

Unnamed person reported on March 26, 2014 that soot is in her home - forwardedby GASP to Jefferson County Department of Health (April 4, 2014);


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Charline Todd reported on March 25, 2014 that soot comes into her apartment -forwarded by GASP to Jefferson County Department of Health (April 4, 2014);

Eddie Holloway, a resident of Tarrant, reported on March 28, 2014 that black sootroutinely ends up on the floors that he cleans a lot - forwarded by GASP toJefferson County Department of Health (April 4, 2014);

Cynthia Rosgen, a resident of Tarrant, reported that when she walks around herapartment in white socks, by the end of the day they turn black and that she isconcerned about the soot coming from ABC Coke - forwarded by GASP toJefferson County Department of Health (April 4, 2014);

Kenyyata Wallace, a resident of Tarrant, reported that her house is frequentlycovered in black soot from ABC Coke. - forwarded by GASP to Jefferson CountyDepartment of Health (April 4, 2014);

LaJune White reports that black particles collect all over the windows of her homeand You cant open your windows or sit on your deck because of all thepollutants. Fox News - WBRC, Tarrant citizens concerned about pollution fromcoke plant, available at http://www.myfoxal.com/story/25126936/tarrant-citizens?utm_co;

Bobby Hogan reported soot on our porches and the sides of our houses. ToxicCity: Birminghams Dirty Secret (Documentary Trailer), available athttp://vimeo.com/ 80386013;

Dorothy Davis reports that dust from the ABC Coke plant will smother you todeath at night and has coated all over her house; you cant keep it washed off - bythe time you wash it off it just comes back. Dorothy Davis, excerpt from ToxicCity: Birminghams Dirty Secret, available at http://youtu.be/4sewauGh-Iw;

Margaret Curtis reports that [soot] is coming through the vents and everything. Either way you go, youre inhaling it. Something needs to be done about it. Testimony of Margaret Curtis, Transcript of Public Hearing on ABC Coke PermitReissuance (April 14, 2014);

Gail Carr, a resident of Presbyterian Manor, reports that she frequently sees sootthat covers the walls. The walls were so bad they had to be repainted. Testimonyof Gail Carr, Transcript of Public Hearing on ABC Coke Permit Reissuance(April 14, 2014);

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Emily Harris, a resident of Presbyterian Manor, reports that soot is frequently allover her apartment. Testimony of Emily Harris, Transcript of Public Hearing onABC Coke Permit Reissuance (April 14, 2014);

Mr. Knoll, a resident of Presbyterian Manor, reports that a when he makes Kool-Aid the pitcher of water ends up with black particles in it, so he no longer makesKool-Aid. When he runs his hand over his window sill, it is covered with blacksoot. Testimony of Mr. Knoll, Transcript of Public Hearing on ABC Coke PermitReissuance (April 14, 2014);

VII. Draft General Permit Condition 14 is Unconstitutional and Unenforceable35

Jefferson County Air Pollution Control Rules and Regulations, Part 6.2 provides:

6.2 Fugitive Dust.

6.2.1 No person shall cause, suffer, allow, or permit any materials to be handled,transported, or stored; or a building, its appurtenances, or a road to be used,constructed, altered, repaired or demolished without taking reasonable precautions to prevent particulate matter from becoming airborne. Such reasonable precautions shall include, but not be limited to, the following: (a) Use, where possible, of water or chemicals for control of dust in the

demolition of existing buildings or structures, construction operations, thegrading of roads or the clearing of land;

(b) Application of asphalt, oil, water, or suitable chemicals on dirt roads, materials stock piles, and other surfaces which create airborne dustproblems; and

(c) Installation and use of hoods, fans, and fabric filters (or other suitablecontrol devices) to enclose and vent the handling of dust materials. Adequate containment methods shall be employed during sandblasting orother similar operations.

6.2.2 Visible Emissions Restrictions Beyond Lot Line. No person shall cause or permit the discharge of visible fugitive dust emissions beyond the lot line of theproperty on which the emissions originate.

This regulation is the basis for most of General Permit Condition 14 of Draft Major SourceOperating Permit No. 4-07-0001-03. Both the regulation and permit condition areunconstitutional and unenforceable.

GASP submits that the arguments made in this part demonstrate that the proposed35issuance of Major Source Operating Permit No. 4-07-0001-03 fails to adequately establishpractically enforceable emissions limitations for the facility, as required by 40 C.F.R. 70.6(a).

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In Ross Neely Express, Inc. v. Alabama Department of Environmental Management, 437So.2d 82 (Ala. 1983), the Alabama Supreme Court struck down a nearly identical State rulegoverning fugitive dust. The Court held that the requirement to take reasonable precautions toprevent particulate matter from becoming airborne was unconstitutionally vague and theprohibition against causing the discharge of visible fugitive dust emissions beyond the lot linewas unreasonably and unconstitutionally restrictive.

Accordingly, it is necessary that the Jefferson County Department of Health reviseGeneral Permit Condition 14 to accomplish control of fugitive dust emissions without languagethat is vague or unreasonably restrictive. Alternatively, the Department should include anadditional condition in Draft Major Source Operating Permit No. 4-07-0001-03 that willeffectively control fugitive dust emissions without being constitutionally offensive.

VIII. Restrictions in Draft Permit Condition 45 are not authorized by Regulation

Jefferson County Air Pollution Control Rules and Regulations, Section 6.2.3 provides:

6.2.3 When dust, fumes, gases, mist, odorous matter, vapors, or anycombination thereof escape from a building or equipment in such a manner andamount as to cause a nuisance or to violate any rule or regulation, the HealthOfficer may order that the building or equipment in which processing, handlingand storage are done be tightly closed and ventilated in such a way that all air andgases and air or gas-borne material leaving the building or equipment are treatedby removal or destruction of air contaminants before discharge to the open air.

General Permit Condition 45 in Draft Major Source Operating Permit No. 4-07-0001-03provides:

Abatement of Obnoxious Odors

This Operating Permit is issued with the condition that, should obnoxious odorsarising from the plant operations be verified by Department inspectors, measuresto abate the odorous emissions shall be taken upon a determination by thisDepartment that these measures are technically and economically feasible.

The language of this permit condition impermissibly imposes additional restrictions onimplementation of Jefferson County Air Pollution Control Rules and Regulations, Section 6.2.3. First, General Permit Condition 45 requires that odors be obnoxious and be verified by aDepartment inspector before the Health Officer may order abatement of the odors. There is nosupport for these restrictions in Section 6.2.3. Odors need not be characterized as obnoxiousby a Department inspector to violate Section 6.2.3. They must either cause a nuisance or violatea rule or regulation such as Part 1.13 (prohibition against air pollution, including odors asdefined in Part 1.3). Second, General Permit Condition 45 requires that the Department

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determine that odor abatement measures be technically and economically feasible before theyare required to be implemented. There is no support for this restriction in Section 6.2.3. Pursuant to Section 6.2.3, the Health Officer may order the abatement of odors that cause anuisance or violate a regulation without making a prior determination of technical or economicfeasibility. The restrictions included in General Permit Condition 45 make implementation ofSection 6.2.3 more burdensome and less likely to be used to protect the public from unlawfulodors. Accordingly, General Permit Condition 45 should be revised to mirror Section 6.2.3.

IX. Differential Absorption Light Detection and Ranging Technology

Jefferson County Air Pollution Control Rules and Regulations, Section 18.4.8 provides:

Standard application form and required information. The following informationshall be included in an application by a source for a permit under this Chapter: * * *(c) The following emissions-related information:

(3) Emissions rates of all pollutants in tons per year (tpy) and in suchterms as are necessary to establish compliance consistent with the applicable standard reference test method, or alternative methodapproved by the Health Officer;

In response to this requirement, ABC Coke submitted an application containing Attachment I -2012 Emission Inventory; and Attachment II - Potential Emission Inventory. These emissioninventories estimate the emission rates of criteria and hazardous air pollutants, includingBenzene. E.g., Attachment I, Summary of 2012 Emissions (actual) at pp. 11-1 to 11-3; andAttachment II, Table 11-1: Summary of 2012 [sic] Emissions (potential) at pp. 11-1 to 11-3. These emission rate estimates are almost entirely based on calculated estimates, notmeasurements.

After a joint U.S. Environmental Protection Agency and New York Department ofEnvironmental Conservation inspection of the Tonawanda Coke facility in Tonawanda, NewYork, the EPA issued an Emission Test Letter to Tonawanda Coke Corporation on July 6, 2009pursuant to Section 114 of the Clean Air Act requiring that the company submit emission testprotocols for fugitive Benzene emission testing (DIAL test) and facility stack emission testing(stack tests) within 30 days. The Letter included a requirement to use EPA Other Test Method10 (OTM-10), differential absorption light detection and ranging technology (DIAL), to measurethe mass emission rate of Benzene from each process area listed. Subsequently, the EPA issuedan administrative order to the company on January 7, 2010 pursuant to Section 113(a) of theClean Air Act directing the company to submit the Benzene testing protocol. U.S.Environmental Protection Agency, Compliance Order CAA-02-2010-1001 (Jan. 7, 2010),available at http://www.epa.gov/region2/capp/TCC/TCC_AO_1_%20CAA-02-2010-1001.pdf(accessed Mar. 28, 2014). As a result of the DIAL testing, it was determined that the facility wasemitting 90.8 tons/year of Benzene, rather than the 10 tons/year claimed by a company official.

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Tonawanda News, Tona Coke grossly underestimated benzene levels (Sep. 30, 2010), availableat http://www.tonawanda-news.com/local/x996174448/ Tona-Coke-grossly-underestimated-benzene-levels (accessed Mar. 28, 2014). The company and the facilitys environmentalmanager were indicted, tried, and convicted on various environmental crimes. TonawandaNews, Tonawanda Coke Found Guilty (Mar. 28, 2013), available athttp://www.tonawanda-news.com/local/x1916521195/TONAWANDA-COKE-FOUND-GUILTY(accessed Mar. 28, 2014).

Jefferson County Air Pollution Control Rules and Regulations, Paragraph 18.2.8(c)provides:

Before an Operating Permit is granted, the Health Officer may require theapplicant to provide and maintain such facilities as are necessary for sampling andtesting purposes in order to secure information that will disclose the nature,extent, quantity or degree of air contaminants discharged into the atmospherefrom the article, machine, equipment, or other contrivance described in theOperating Permit. In the event of such a requirement, the Health Officer shallnotify the applicant in writing of the required size, number, and location of thesampling platform; the access to the sampling platform; and the utilities foroperating the sampling and testing equipment. The Health Officer may also require the applicant to install, use, and maintain such monitoring equipment ormethods, including enhanced monitoring methods prescribed under Section504(b) or Section 114(a)(3); sample such emissions in accordance with suchmethods, at such locations, intervals, and procedures as may be specified; andprovide such information as the Health Officer may require.

The Health Officer can, and should, require that ABC Coke conduct DIAL testing of its Benzeneemissions and perhaps other high risk hazardous air pollutants such as VOCs. It is highly likelythat measured Benzene emissions will be significantly greater than estimated emissions. SeeEnvironmental Integrity Project, EPA Emission Factors vs. Actual Measurement: Summary ofRecent DIAL/PFTIR Studies, available at http://www.environmentalintegrity.org/news_reports/documents/SummaryofDIALANDPFTIRStudies.pdf (accessed Mar. 28, 2014);U.S. Environmental Protection Agency, National Enforcement Initiative: Cutting Hazardous AirPollutants, available at http://www2.epa.gov/enforcement/national-enforcement-initiative-cutting-hazardous-air-pollutants (Recent monitoring shows that facilities typically emit moreHAP emissions than they actually report). If ABC Cokes Benzene emissions are significantlygreater than have been reported, an investigation should be undertaken to ascertain whetherrequired emission controls and practices are being effectively implemented. The residents ofTarrant, who have been burdened with the toxic emissions from ABC Coke for generations,deserve no less.

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X. Issuance of Major Source Operating Permit No. 4-07-0001-03 will violateEPA Regulations under Civil Rights Act of 1964

The Jefferson County Department of Health is a recipient of financial assistance from theU.S. Environmental Protection Agency. As such, the Department is obliged to comply with 4036C.F.R. 7.35(b), which provides:

A recipient [of EPA financial assistance] shall not use criteria or methods ofadministering its program which have the effect of subjecting individuals todiscrimination because of their race, color, national origin, or sex, or have theeffect of defeating or substantially impairing accomplishment of the objectives ofthe program with respect to individuals of a particular race, color, national origin,or sex.

Even, [f]acially-neutral policies or practices that result in discriminatory effects violate EPAsTitle VI regulations unless it is shown that they are justified and that there is no lessdiscriminatory alternative. U.S. Environmental Protection Agency, Interim Guidance forInvestigating Title VI Administrative Complaints Challenging Permits (Feb. 5, 1998) at 2,available at http://www.enviro-lawyer.com/Interim_Guidance.pdf; U.S. EnvironmentalProtection Agency, Draft Title VI Guidance for EPA Assistance Recipients Administering Environmental Permitting Programs (Draft Recipient Guidance) and Draft Revised Guidance forInvestigating Title VI Administrative Complaints Challenging Permits (Draft Revised Investigation Guidance), D. Summary of Key Stakeholder Issues Concerning EPA Title VIGuidance, 65 Fed. Reg. 39650, 39688 (2000).

Effective January 23, 2013, the U.S. Environmental Protection Agency has included thefollowing condition in financial assistance awards:

In accepting this assistance agreement, the recipient acknowledges it has anaffirmative obligation to implement effective Title VI compliance programs andensure that its actions do not involve discriminatory treatment and do not havediscriminatory effects even when facially neutral. The recipient must be preparedto demonstrate to EPA that such compliance programs exist and are beingimplemented or to otherwise demonstrate how it is meeting its Title VIobligations.

U.S. Environmental Protection Agency, Civil Rights Obligations (Jan. 23, 2013), available athttp://www.epa.gov/civilrights/docs/pdf/terms_and_conditions.pdf (emphasis added). It does not

The Jefferson County Department of Health receives grant funding from the U.S.36Environmental Protection Agency.

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appear that the Jefferson County Department of Health is implementing any kind of Title VIcompliance program.37

The issuance of Major Source Operating Permit No. 4-07-0001-03 by the JeffersonCounty Department of Health will authorize ABC Coke to emit numerous carcinogenic airtoxics, offensive odors, and particulate matter into a nearby community. The 2005 National-Scale Air Toxics Assessment indicates that cancer risks in Census Tract 109 are 106 in a million(1.06E-04). Figure 23. This compares to an average risk of 73.5 in a million (7.35E-05) inJefferson County and 49 in a million (4.90E-05) in the State of Alabama. There are an estimated4,064 persons residing within 1.0 mile of ABC Coke. Sixty-six percent of these persons areclassified as Black. See U.S. Environmental Protection Agency, EJView Census 2010Summary Report (Appendix C). For all census block groups shown in Figure 24, the averagepercent Black or African-American Alone is 66.7%. Table 8. Thus, the issuance of MajorSource Operating Permit No. 4-07-0001-03 will have a disproportionate and discriminatoryeffect on a class protected under Title VI of the Civil Rights Act of 1964.

XI. Conclusions

Based on the foregoing, GASP submits as follows:

(1) The Health Officer should deny ABC Cokes application for issuance of MajorSource Operating Permit No. 4-07-0001-03 because ABC Coke has failed to demonstrate that itsemissions of Benzene, Naphthalene and Arsenic will not result in a cancer risk level that exceeds1.0E-05 (1 in 100,000) for each individual carcinogen and will not cause air pollution inviolation of Jefferson County Air Pollution Control Rules and Regulations, Part 1.13;

(2) The Health Officer should deny ABC Cokes application for issuance of MajorSource Operating Permit No. 4-07-0001-03 because ABC Coke has failed to demonstrate that itsemission of multiple carcinogens will not result in a cumulative cancer risk level that exceeds5.0E-05 (5 in 100,000) and will not cause air pollution in violation of Jefferson County AirPollution Control Rules and Regulations, Part 1.13;

In U.S. Environmental Protection Agency, Jefferson County Department of Health37Title V and New Source Review Program Review (Dec. 23, 2005), available athttp://www.epa.gov/region4/air/permits/programevaluations/JeffersonCoAL_FinalReport.pdf(accessed April 2, 2014), EPA finds:

JCHD does not have an Environmental Justice (EJ) Policy. Currently, JCHD doesnot consider EJ issues during the issuance of a permit. Demographics, cumulativeeffects and pre-existing burdens are not routinely evaluated as part of thepermitting process.

Id. at 6.

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FIGURE 23Census Tract 109 Cancer Risk with 1.0 Mile Radius Circle Around ABC Coke

FIGURE 24Census Block Groups Near ABC Coke

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TABLE 8Census Block Group Data

Tract.Block Group 4.01 4.03 4.04

Total Population 619 788 476

Black or African-AmericanAlone 561 90.06% 703 89.2% 427 89.7%


Total Population 615 526 596

Black or African-American Alone 380 61.8% 254 48.3% 320 53.7%


Total Population 1,050 711 684

Black or African-AmericanAlone 679 64.7% 372 52.3% 427 62.4%

Tract.Block Group 109.07 TOTAL (All SelectedBlock Groups)

Total Population 807 6,872

Black or African-Ameri

COMMENTS OF GASP ON PROPOSED REISSUANCE OF MAJOR SOURCE OPERATING PERMIT NO. 4-07-0001-03 TO ABC COKE, A DIVISION OF DRUMMOND COMPANY, INC.

Documents

abc coke permit

abc coke facility

permit application

walter coke

health officer

abc cokeis

cause air pollution

human health orwelfare