COMMENTS OF GASP ON PROPOSED REISSUANCE OF MAJOR SOURCE OPERATING PERMIT NO. 4-07-0355-03 TO WALTER COKE, INC

COMMENTS OF GASP

ON PROPOSED REISSUANCE OF

MAJOR SOURCE OPERATING PERMIT NO. 4-07-0355-03

TO WALTER COKE, INC.

Submitted June 16, 2014

EXECUTIVE SUMMARY

Walter Coke, Inc. owns and operates the Walter Coke facility in Birmingham, Alabama. It has applied for renewal of a major source operating permit from the Jefferson CountyDepartment 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. p. 1.

No person shall permit or cause air pollution by the discharge of any air contaminants forwhich no ambient air quality standards have been set. Walter 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. pp. 26-27.

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. p. 27.

Walter Coke emits a number of carcinogens. Among these are Benzene, Naphthalene,and Arsenic. Walter Coke has failed to demonstrate in its application that the quantity andduration of these and other carcinogens in the outdoor atmosphere will not tend to be injurious tohuman health. Accordingly, the Health Officer must deny the Walter Coke permit. TheJefferson County Board of Health has declared that the incremental cancer risk from exposure toany individual carcinogen shall not exceed 1 in 100,000. GASP suggests that the incrementalcumulative cancer risk from exposure to all carcinogens combined not exceed 5 in 100,000. Airmonitoring results collected near Walter Coke suggest that these limits will be exceeded nearWalter Coke. pp. 28-34.

Walter Coke also emits odors and particulate matter. Walter Coke has failed todemonstrate that the quantity and duration of these air contaminants in the outdoor atmospherewill not tend to be injurious to human health, welfare or property and will not interfere with theenjoyment of life or property. Accordingly, the Health Officer must deny the Walter Cokepermit. It is common knowledge that odors and particulate matter are interfering with nearbyresidents enjoyment of life and property. pp. 34-40.

Walter Coke has not shown that every article, machine, equipment, or other contrivancethat may cause the emission of air contaminants, is designed, controlled or equipped with airpollution control equipment capable of preventing violations. Indeed, semi-annual compliancereports submitted to the Jefferson County Department of Health show repeated violations. Accordingly, the Health Officer must deny the Walter Coke permit. pp. 40-41.

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Draft Permit No. 4-07-0355-03 contains multiple conditions that reference control offugitive dust and visible emissions in compliance with Part 6.2 of the Jefferson County AirPollution Control Rules and Regulations. This regulation, and the permit conditions derivedtherefrom, are nearly identical to a rule adopted by the Alabama Department of EnvironmentalManagement. The latter rule has been declared unconstitutionally vague and restrictive. Therefore, the Health Officer must revise all permit conditions based on control of fugitive dustand visible emissions in compliance with Part 6.2 to ensure the prevention of fugitive dust andvisible emissions in a constitutional manner. pp. 41-42.

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. pp. 42-43.

The total quantity of emissions of Benzene and other air toxics from the Walter Cokefacility have not been measured. Total emissions have only been estimated by Walter Coke. Estimated emissions are unreliable. The Health Officer should require that Walter Coke usedifferential absorption light detection and ranging technology (DIAL) to measure Walter Cokesactual Benzene (and perhaps other hazardous air pollutant) emissions prior to issuance of thepermit. pp. 43-44.

The emissions from Walter Coke will adversely and disproportionately impactcommunities that are comprised of 85.1% African-Americans. The granting of the permit toWalter Coke will violate U.S. Environmental Protection Agency regulations promulgated toimplement the Civil Rights Act of 1964. pp. 45-46.

The JCDH provided Walter Cokes Title V permit application to GASP with allemissions data and signatories redacted. This redaction is not permissible under applicable law. The Health Officer should withhold issuance Permit No. 4-07-0355-03 until after the emissionsdata and signatories have been disclosed and a second public comment period and hearing areprovided. p. 46.

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TABLE OF CONTENTS

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

II. Walter Cokes Emissions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

III. Risk-Screening Environmental Indicators Model (2010) . . . . . . . . . . . . . . . . . . . . . . . . 12

IV. National-Scale Air Toxics Assessment (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

V. Ambient Toxic Air Pollutant Monitoring and Cancer Risk (June 2005-August 2006 & July 2011-June 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

VI. Prohibition of Air Pollution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

A. Walter Coke failed to demonstrate that emissions of individual carcinogenswill not tend to be injurious to human health. . . . . . . . . . . . . . . . . . . . . . . . . . . 28

B. Walter Coke failed to demonstrate that emissions of multiple carcinogenswill not tend to be injurious to human health . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

C. Walter Coke failed to demonstrate that emissions of odors will not tendto be injurious to human health or interfere with the enjoyment of lifeor property .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

D. Walter Coke failed to demonstrate that emissions of particulates willnot tend to be injurious to welfare or property or interfere with theenjoyment of life or property. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

VII. Walter Coke Failed to Demonstrate that Air Pollution Controls are Adequateto Prevent Violations .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

VIII. Draft Permit Conditions Implementing Part 6.2 are Unconstitutionaland Unenforceable . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

IX. Restrictions in Draft General Permit Condition 45 are not authorizedby Regulation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

X. Use of Differential Absorption Light Detection and Ranging Technologyis Necessary to Quantify Walter Coke Emissions .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

XI. Issuance of Major Source Operating Permit No. 4-07-0355-03 will violateEPA Regulations under Civil Rights Act of 1964 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45

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XII. JCDH Failed to Disclose Emission and Other Non-Trade Secret Informationin Application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

XIII. Conclusions .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47

APPENDICES

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

Appendix B Moore v. Walter Coke, Inc., No. 2:11-cv-01391 (N.D. Ala. filed April 25, 2011) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . B-1

Appendix C Morrison v. Drummond Company, Inc., et al., No. 01-CV-2013-905019 (Jefferson County Cir. Ct. filed Dec. 19, 2013) . . . . . . . . . . . . . . . . . . . C-1

Appendix D Toxic City: Birminghams Dirty Secret . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . D

Appendix E Semi-annual Compliance Reports (Jul. 2009-Dec. 2013) . . . . . . . . . . . . . . . . . E-1

Appendix F GASP Public Records Request (Apr. 22, 2014) . . . . . . . . . . . . . . . . . . . . . . . . . F-1

Appendix G Walter Cokes Redacted Application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . G-1

Appendix H GASP Public Records Request (May 12, 2014) . . . . . . . . . . . . . . . . . . . . . . . . H-1

LIST OF FIGURES

Figure 1 Walter Coke - Surrounding Communities, and Nearby Industries . . . . . . . . . . . . 2

Figure 2 Walter Coke Polycyclic Aromatic Compound Emissions . . . . . . . . . . . . . . . . . . 9

Figure 3 Walter Coke Benzene Emissions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Figure 4 Walter Coke Naphthalene Emissions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Figure 5 Walter Coke Stack and Fugitive Emissions of PolycyclicAromatic Compounds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Figure 6 Walter Coke Stack and Fugitive Emissions of Benzene .. . . . . . . . . . . . . . . . . . 11

Figure 7 Walter Coke Stack and Fugitive Emissions of Naphthalene . . . . . . . . . . . . . . . 12

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Figure 8 Summary of RSEI Model Results . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Figure 9 Comparison of RSEI Risk Scores for Walter Coke and Others . . . . . . . . . . . . . 14

Figure 10 Comparative Risk Scores for Fourteen Highest Risk ToxicAir Polluters in Jefferson County, AL (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Figure 11 RESI Model Facility Risk Score Drivers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Figure 12 Average Air Toxic Cancer Risks by Geographic Area . . . . . . . . . . . . . . . . . . . . 18

Figure 13 Cancer Risk from Air Toxics in Jefferson County Census Tracts . . . . . . . . . . . 19

Figure 14 Walter Coke and Surrounding Air Toxics Cancer Risk . . . . . . . . . . . . . . . . . . . 20

Figure 15 Location of Toxic Air Pollutant Monitors in Relation to Walter Coke .. . . . . . . 21

Figure 16 Cancer Risk Drivers at Shuttlesworth Monitor (JCDH) . . . . . . . . . . . . . . . . . . . 23

Figure 17 Cancer Risk Drivers at Shuttlesworth Monitor (EPA) . . . . . . . . . . . . . . . . . . . . 24

LIST OF TABLES

Table 1 Universe of Constituents of Coke Oven Emissions . . . . . . . . . . . . . . . . . . . . . . . 4

Table 2 Walter Coke Emission Sources . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Table 3 Toxic/Hazardous Air Pollutant Emissions from Walter Coke . . . . . . . . . . . . . . . 8

Table 4 National Ambient Air Quality Standard Pollutant Emissionsfrom Walter Coke . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Table 5 Other Air Pollutant Emissions from Walter Coke . . . . . . . . . . . . . . . . . . . . . . . . 8

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

Table 7 Chronic Exposure Cancer Risk at Shuttlesworth Monitor . . . . . . . . . . . . . . . . . 25

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I. Overview

The Walter Coke facility began operation in 1919 and has been in operation ever since.The facility, owned by Walter Coke, Inc. since 2009, is located at 3500 F.L. Shuttlesworth Drive1in Birmingham, Alabama approximately 1.6 miles west-northwest of the Birmingham-Shuttlesworth International Airport. Surrounding Walter Coke are the residential communities ofFairmont, Collegeville, and Harriman Park. Figure 1. About 7,900 people live within one mileof the site, including about 970 children, about 1600 women of child-bearing age, and about1,000 adults aged 65 or older.2

The Walter Coke facility is a coke by-products manufacturing facility and a utilitiesproduction facility. The facility includes three coke oven batteries comprised of 120 coke ovens.3The utilities production facility includes three steam generators.4

II. Walter Cokes Emissions

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

Emissions from the coke ovens include PM, SOx, NOx, VOCs,CO and numerous organic compounds, including polycyclicorganic matter (POM). PM is emitted from raw coal unloading,storage, and handling; mixing, crushing, and screening; 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 organic compounds are emitted from cokeoven leaks, coke pushing, and coke quenching. Sulfur dioxide,

U.S. Department of Health and Human Services - Agency for Toxic Substances and1Disease Registry, Health Consultation - Assessment of Soil Exposures in Communities Adjacentto the Walter Coke, Inc. Site at 2, available at http://www.atsdr.cdc.gov/hac/pha/WalterCokeInc/WalterCokeIncHC%28Final%2908012013_508.pdf; Walter Energy, Inc.|WLT,http://walterenergy.com/operationscenter/coke/coke-history.html.

U.S. Department of Health and Human Services - Agency for Toxic Substances and2Disease Registry, supra note 1.

Jefferson County Department of Health, Title V Operating Permit Evaluation (Feb 24,32014) at 1, available at http://www.jcdh.org/eh/anr/anr12.aspx?NoticeId=71&Type=2

Id. at 2, 6.4

1

ATSDR Health Consultation: Community Soil Exposures, WCI Site, Birmingham, AL Final Release

Figure 1. Location of Walter Coke facility, surrounding communities and selected nearby industries.

3

FIG

URE

1 2

nitrogen oxides, and carbon monoxide are also emitted from coke oven leaks. Organic compounds soluble in benzene (BSO) are the major constituents of thePM emissions and are also included as VOCs. Among the hazardous airpollutants (HAPs) included in the VOCs are benzene, toluene, xylenes, cyanidecompounds, naphthalene, phenol, and POM, all of which are contained in cokeoven gas. Emissions from the byproduct plant are primarily benzene and otherlight aromatics, POMs, cyanides, phenols, and light oils. Substantial emissionsalso result from ancillary operations such as boilers, wastewater treatment,cooling towers, and roads.

Jefferson County Department of Health, Title V Operating Permit Evaluation (Feb. 24, 2014) at4, available at http://www.jcdh.org/eh/anr/anr12.aspx?NoticeId=71&Type=2 (accessed May 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 65, 68, 71. Walter Coke operates the sources ofair contaminant emissions identified in Table 2.

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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 2Walter Coke Emission Sources6

EmissionsUnit No. Source Description

OperatingSchedule Air Contaminants

001 Coke By-Products RecoveryPlant with Gas Blanketing,

8,760 hours/year Visible Emissions (VE)Fugitive Emissions (FE)Volatile Organic Compounds (VOCs)-BenzeneBenzene

009 Coke Battery No. 5 - Cokingand Charging

24 hours/day7 days/week52 weeks/year

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







016 Underfire Stack of CokingBatteries Nos. 3 and 4


Visible Emissions (VE)Particulate Matter (PM)

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

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

017 Underfire Stack of CokingBattery No. 5



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. 4-607-0355-03 (Feb. 24, 2014), available at http://www.jcdh.org/eh/anr/anr12.aspx?NoticeId=70&Type=2 and http://www.jcdh.org/eh/anr/anr12.aspx?NoticeId=71&Type=2 (accessed May 6, 2014).

5

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 North Coke QuenchingTower


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

021 Coke Pushing Operations ofCoking Batteries Nos. 3, 4and 5



029 Coke Pushing Operations ofCoking Batteries Nos. 3, 4and 5



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

031 Steam Generator No. 3 24 hours/day7 days/week52 weeks/year



032 Steam Generator No. 4 24 hours/day7 days/week52 weeks/year



034 Primary Crushers with WetSuppression



035 Wheel Wash 24 hours/day7 days/week52 weeks/year


036 Emergency Generators-5 (2Diesel and 3 Natural Gas)

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

Two sources of emissions estimates have been made available to GASP. The first is thefacility emissions data included in EPAs Toxics Release Inventory (1987-2012 data). The8second source is facility emissions data made public by the Jefferson County Department ofHealth (2011- 2013 data). All data have been provided by Walter Coke and almost all of the9data are the result of calculated estimates rather than measurements. The emissions data forWalter Coke for 2011, 2012, and 2013 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=35207SLSSN35003 (accessedMay 6, 2014).

Jefferson County Department of Health, Annual Emissions - Walter Coke, Inc. (2011-92013).

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TABLE 3Toxic/Hazardous Air Pollutant Emissions from Walter Coke

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

TABLE 5Other Air Pollutant Emissions from Walter Coke

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Walter Cokes ten-year history of Polycyclic Aromatic Compound emissions, Benzeneemissions, and Naphthalene emissions are shown in Figures 2, 3, and 4, respectively. The trendlines (red, straight lines) for these historical emissions do not indicate a significant decliningtrend.

FIGURE 2Walter Coke Polycyclic Aromatic Compound Emissions

Source: U.S. EPA, Toxics Release Inventory

FIGURE 3Walter Coke Benzene Emissions


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FIGURE 4Walter Coke Naphthalene Emissions


It is noteworthy that fugitive emissions account for the majority of emissions from the10Walter 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 5Walter Coke Stack and Fugitive Emissions

of Polycyclic Aromatic CompoundsSource: U.S. EPA, Toxics Release Inventory

FIGURE 6Walter Coke Stack and Fugitive Emissions of Benzene


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FIGURE 7Walter Coke Stack and Fugitive Emissions of Naphthalene


III. Risk-Screening Environmental Indicators Model (2010)

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

12

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 WalterCoke using the RSEI model and compared the results to the risk scores of other facilities in thesame industry category, other facilities in Jefferson County, other facilities in Alabama, and otherfacilities in the United States. The results, shown in Figure 9, suggest that Walter Coke poses asignificantly higher health risk than other facilities.

U.S. Environmental Protection Agency, Users 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. at 18-19.14

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FIGURE 9Comparison of RSEI Risk Scores for Walter Coke 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 Walter Coke exceeded the health risk posedby every other facilitys toxic air emissions, except those of ABC Coke.

U.S. Environmental Protection Agency, TRI Search Results|Envirofacts,15http://oaspub.epa.gov/enviro/rsei.html?facid=35207SLSSN35003 (accessed Mar. 3, 2014). Therisk 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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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 Walter Cokeduring 2010 that present the greatest heath risk. Figure 11 shows that, in the RSEI model, threetoxic chemicals (or chemical groups) accounted for 99.4% of the total health risk to exposedpopulations from Walter 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.

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FIGURE 11RSEI Model Facility Risk Score Drivers for Walter Coke (2010)

IV. National-Scale Air Toxics Assessment (2005)

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

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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.

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.

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

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 Walter Coke is located has a cancerrisk from air toxics that is 171% higher than the Alabama average and 81% higher than theJefferson County average. Figure 12.

FIGURE 12Average 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 13shows gradations of cancer risk in Jefferson County estimated from the 2005 National-Scale AirToxics Assessment (the darker the gradation, the higher the cancer risk).

18

FIGURE 13Cancer Risk from Air Toxics in Jefferson County Census Tracts

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

Figure 14 shows Walter Coke and the surrounding Census Tracts and indicates the U.S.Environmental Protection Agencys estimate of the cancer risk in the Census Tract where WalterCoke is located. That risk is 133 in a million (1.33E-04). The Census Tract adjacent to thesouthern property line of Walter Coke (Collegeville) has an estimated cancer risk of 142 in amillion (1.42E-04).

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FIGURE 14Walter Coke and Surrounding Air Toxics Cancer Risk

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

V. Ambient Toxic Air Pollutant Monitoring and Cancer Risk (June 2005-August 2006 & July 2011-June 2012)

The Jefferson County Department of Health and U.S. Environmental Protection Agencyhave, for limited periods of time, operated monitors to measure toxic air pollutants in the ambientair near Walter Coke. Figure 15. The monitor nearest to and most impacted by Walter Coke isthe Shuttlesworth Monitor located across Shuttlesworth Drive from Walter Coke. 17

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.

20

FIGURE 15Location of Toxic Air Pollutant Monitors in Relation to Walter Coke18

Accordingly, the monitoring performed by the Jefferson County Department of Health and theU.S. Environmental Protection Agency at the Shuttlesworth Monitor provide insight into the19ambient air quality and health risk nearest the Walter Coke facility.

Monitor locations are from Jefferson County Department of Health, Birmingham Air18Toxics 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 note17. 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.

Jefferson County Department of Health, supra note 18; U.S. Environmental Protection19Agency - Region 4, supra note 17.

21

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 16 and Table 7.20

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 Toxics20Study and Figure 16 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.

22

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 17 and Table 7.

FIGURE 16

23

FIGURE 17

24

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 Pollution21

Jefferson County Air Pollution Control Rules and Regulations, Paragraph 18.2.8(a)22states 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 proposed21issuance of Major Source Operating Permit No. 4-07-0355-03 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 and22Regulations, available at http://www.jcdh.org/misc/ViewBLOB.aspx?BLOBId=287.

26

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).23

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 Walter Coke. No ambient air qualitystandards have been set for these air contaminants under Jefferson County Air Pollution ControlRules and Regulations, Section 1.7.1. 24

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).

It does not appear that Walter Coke made any attempt to show in its application that its23emissions comply with Jefferson County Air Pollution Control Rules and Regulations, Part 1.13. Walter Cokes emissions of toxic pollutants and particulates and resulting harms to residents ofCollegeville, Harriman Park and Fairmont have been the subject of multiple lawsuits. E.g.,Moore v. Walter Coke, Inc., No. 2:11-cv-01391 (N.D. Ala. filed April 25, 2011) (class action forproperty contamination/damage) (Appendix B); Morrison v. Drummond Company, Inc., et al.,No. 01-CV-2013-905019 (Jefferson County Cir. Ct. filed Dec. 19, 2013) (personal injury fromexposure to toxic pollutants) (Appendix C).

See U.S. Environmental Protection Agency, National Ambient Air Quality Standards,24available at http://www.epa.gov/air/criteria.html (accessed Mar. 3, 2014).

27

A. Failure to demonstrate that emissions of individual carcinogens will not tendto be injurious to human health

The permit application submitted to the Jefferson County Department of Health makes noshowing that the individual carcinogens emitted by Walter Coke will comply with JeffersonCounty Air Pollution Control Rules and Regulations, Part 1.13, i.e., will not tend to be injuriousto human health. In the absence of any showing by Walter Coke that it may be expected to25operate 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). 26

Not only did Walter 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 exist in the ambient air near the Walter Coke facility because of

Moreover, the analysis of the permit application by the Jefferson County Department25of Health demonstrates that the Department did not consider whether Walter 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 (Feb. 24, 2014),available at http://www.jcdh.org/eh/anr/anr12.aspx?NoticeId=71&Type=2 (accessed Mar. 6,2014).

Of course, [t]he Health Officer may issue an Operating Permit subject to conditions26which 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).

28

Walter Cokes emissions. Thus, Walter Coke has permitted or caused air pollution by thedischarge of individual air contaminants for which no ambient air quality standards have been setin violation of the prohibition in Part 1.13.

If Walter 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:

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.

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.

29

B. Failure to demonstrate that emissions of multiple carcinogens will not tend tobe injurious to human health

The permit application submitted to the Jefferson County Department of Health makes noshowing that the multiple carcinogens emitted by Walter Coke will comply with JeffersonCounty Air Pollution Control Rules and Regulations, Part 1.13, i.e., will not tend to be injuriousto human health. In the absence of any showing by Walter Coke that it may be expected to28operate 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). 29

Not only did Walter 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. Thus, Walter Coke has permitted or caused air pollution by the dischargeof multiple air contaminants for which no ambient air quality standards have been set in violationof 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, an30unnamed 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 31

See supra note 25.28


The Board of Health has, however, declared that no source shall be eligible for a30variance 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 to311.6610 (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),

(continued...)

30

Air 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:

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 32

(...continued)31several 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.

In the 1970 Clean Air Act, Pub. L. No. 91-604, 84 Stat. 1676, the Administrator of32EPA 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 each

(continued...)

31

(...continued)32particular 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).

In National Emission Standards for Coke Oven Batteries, 70 Fed. Reg. 19992 (2005), theEPA 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 our

(continued...)

32

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 cancerrisk 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 for33addressing 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(March 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 111.03 (2000) located in northeastern Jefferson County, as reported in the U.S.Environmental Protection Agencys National-Scale Air Toxics Assessment (2005). The people34

(...continued)32Residual 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.

More stringent standards adopted under State authority are permissible under the Clean33Air Act. 42 U.S.C 7412(d)(7), 7412(l)(1), 7416.

Census Tract 111.03 (2000) has been divided into Census Tracts 111.10 and 111.1134(continued...)

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surrounding Walter Coke deserve the same freedom from air toxics and cancer that others in theCounty and State enjoy.

C. Failure to demonstrate that emission of odors will not tend to be injurious tohuman health or interfere with the enjoyment of life or property

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 Walter Coke will comply with Jefferson County AirPollution Control Rules and Regulations, Part 1.13 (prohibition against causing airpollution). In the absence of Walter Cokes demonstration that it may be expected to operate35without emitting or without causing to be emitted air contaminants (i.e., odors which tend to beinjurious to human health or interfere with the enjoyment of life or property) in violation ofJefferson County Air Pollution Control Rules and Regulations, Part 1.13, the Jefferson CountyDepartment of Health must deny the permit. Jefferson County Air Pollution Control Rules andRegulations, Paragraph 18.2.8(a).36

(...continued)34(2010).


Of course, [t]he Health Officer may issue an Operating Permit subject to conditions36which 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. Theauthority of the Health Officer to impose permit conditions does not negate the obligation of theHealth Officer to deny a permit if the applicant does not show that its facility may be expected tooperate without emitting or without causing to be emitted air contaminants in violation of Part1.13 (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,

(continued...)

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

Testimony of Mary Jean Lamay before the Jefferson County Department of Health, PublicHearing for a Permit Renewal for Walter Coke Manufacturing (May 20, 2014) at 14:

If I'm on the front porch and they have got that plant fired up, I can smell it.

Testimony of Edward Maddox before the Jefferson County Department of Health, PublicHearing for a Permit Renewal for Walter Coke Manufacturing (May 20, 2014 ) at 41 :

Sometimes you can travel that road, and the scent is so bad, you have to roll yourwindows up. You just can't stand it. It gives you a headache.

Statement by Marva Ingram, Cleaner air for Birmingham?, Weld for Birmingham (June 11,2014) (Ingram said that the air on her property smelled like rotten eggs at times).

D. Failure to demonstrate that emissions of particulates will not tend to beinjurious to welfare or property or interfere with the enjoyment of life orproperty

Walter Coke estimates that it emitted into the air more than 537 tons of Total SuspendedParticulates in 2012. Table 5. Total Suspended Particulates (including particulate matter largerthan 10 microns) are air contaminants for which no ambient air quality standards have been setunder Jefferson County Air Pollution Control 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 Walter Coke will comply with Jefferson County Air Pollution ControlRules and Regulations, Part 1.13 (prohibition against causing air pollution). In the absence of37Walter 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 Pollution

(...continued)36Paragraph 18.2.4 (The Health Officer may issue an Operating Permit with revised conditionsupon receipt of a new application, if the applicant demonstrates that the article, machine,equipment, or other contrivance can operate within the standards of Paragraph 18.2.8(a) of thisPart under the revised conditions.) (emphasis added).


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Control 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).38

Not only did Walter 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 Walter Coke is injurious to the welfare and property of nearby residents andinterferes with their enjoyment of life and property. See e.g.:

Testimony of Mary Jean Lamay before the Jefferson County Department of Health, PublicHearing for a Permit Renewal for Walter Coke Manufacturing (May 20, 2014) at 14:

I have lived in Norwood for five years, and the first thing I would like to say isfrom the moment I arrived, I knew there was a coke plant very near by. There isonly 14 coke plants left in the United States. We have two of them just under amile and a half from my house. On a daily basis, I have cleaned soot up frominside my house and outside my house. We have all done it. It's so bad at myhouse in Norwood a mile and a half away that generally when I get throughdusting, especially on the front porch, I have to throw those rags away. And if Idon't go jump in the shower after I have been dusting, I will not be breathing at100 percent that next night or that next day. So it definitely affects.

Testimony of Thurman Thomas before the Jefferson County Department of Health, PublicHearing for a Permit Renewal for Walter Coke Manufacturing (May 20, 2014) at 20-21:

When I was a child growing up, that dust would be on everything. Black dustwould settle on the porches, on the cars, on the windows, the doors. You open the


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house -- we had no air-conditioning. Open the windows, the dust would be on allthe furniture, on the flooring. Later in life, when I was able to buy an automobile,it was a white '56 Chevy. I had to wash it every day because the dust that wouldsit on it, if you allowed it to stay, it would rust the paint. So that was metal, andthere was pollutants in the air. I have lung problems now as a result of that.

Testimony of Lorraine Barker before the Jefferson County Department of Health, Public Hearingfor a Permit Renewal for Walter Coke Manufacturing (May 20, 2014) at 23-24:

I have Hardy panel siding on my house. I have a -- had a brand new deck, justpainted my porch a year and a half ago, a mocha color. It is black now. I have white rocks, gray rocks, in the front of my yard.

We have just bought a brand new car. It will be two years coming up inSeptember. I was washing the windows in the car today. I just couldn't just spraythe window wash on it. I had to literally wipe it, wash it, over and over, becausethat fine little -- and the health department said emission. I say it's dirt. There'ssomething in it. It's like little fine little grains of dirt, and it sticks.

My rocks now are black. They are not gray anymore. Even the trees in myyard, before the summer is over, the leaves turn black.

Testimony of Elvie Hill before the Jefferson County Department of Health, Public Hearing for aPermit Renewal for Walter Coke Manufacturing (May 20, 2014) at 25-26:

[W]here I live and I go outside in the morning, I clean my porch. I wash -- I havewhite furniture on my porch. I wash it and sweep the porch out to go back laterand sit on it. Once I go back, it's full of all this little black soot and stuff again.

We painted our house on the inside. We can't open our windows becauseyou open your windows because you want some cool air. It has to be paintedagain because all this soot -- I clean it and dust every day. But all this little sootand stuff, it's not white any more. It is embedded into the paint. So now youhave to repaint. You want to sit on your deck and maybe eat a meal, drink a cupof coffee. You have to cover it up because this little granular stuff that falls, itgets all in your food and everything. So we are -- like Ms. Barker said, the trees. Right now the rain has washed all the soot and whatever it is , the little coal stuff,off of it. But they are so black. Even my flowers, you can't even tell what -- theywere green, you know.

Testimony of Jefferica Poindexter before the Jefferson County Department of Health, PublicHearing for a Permit Renewal for Walter Coke Manufacturing (May 20, 2014) at 28:

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I have lived in Collegeville with my grandparents over the years, moved them toNorwood. And in Norwood we had black soot on the back of our house. And nomatter how many times we paint it, the soot always came back.

Testimony of Edward Maddox before the Jefferson County Department of Health, PublicHearing for a Permit Renewal for Walter Coke Manufacturing (May 20, 2014) at 39-41:

I live at 914 53rd Street North. I was raised in Harrimon Park, and I can relate towhat you stated, Mr. Hill. My father, the soot, the dust, my father would call that-- he called it cinders. He had a '62 Chevrolet Impala. He had to get up in themorning and wash that car. If he didn't, it would turn yellow. My mom wouldhang clothes on the clothes line sometimes. She would have to take them off and wash the clothes again because of those cinders.

* * *

I went to a funeral Saturday on Shuttlesworth. You could not see through thewindows in that house because of the cloudiness in the windows because of that plant. And this house was sitting on Shuttlesworth Road, right down from themonitor you spoke of.

Testimony of Wanda King before the Jefferson County Department of Health, Public Hearingfor a Permit Renewal for Walter Coke Manufacturing (May 20, 2014) at 41-45:

I came to Collegeville at age six. I have lived there and raised two children there,married, had two kids. I had one that was diagnosed with asthma, and he had it sobad until I could not let him go out at all. I had to keep the windows shut. Backthen they told us the only thing that was good was to use soap, which was Dialsoap, and water. And you could imagine what Dial soap and water do to woodfurniture. I had to wash his room and keep it sealed and use the soap to clean thefurniture to keep the soot out.

Also I had a daughter who was diagnosed with chronic sinuses, and theytold me that they knew that hay fever did not exist normally in Alabama. But ifthey didn't know any better, they would have sworn she had hay fever. Then lateron, she was diagnosed with a pseudotumor in her right eye, and they said thatcame from her eyes being open to stuff just blowing in. And I would constantlyhave to keep washing her eyes because she would always rub them. And littlekids, they don't wash their hands. They just eat stuff and rub and touch things. And the soot was terrible because when morning hit, it was cloudy, and it wasblack stuff all over the clothes. We washed clothes and hang them on the line. We had to take them down and rewash them as was said earlier.

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Then on top of that, we didn't know any longer. We grew food,vegetables, right there in the projects. And guess what we did? We ate it, notknowing any better. And it was just amazing, you know, that we sat and ate thatstuff. And they knew it was a problem, and no one never saw fit to tell us "hey,y'all are poisoning yourself" because they are allowing this to happen to us. AndI'm angry about it. I'm mad. I'm mad about it.

And then on top of that, I watched my father suffer for six months withlymph nodes cancer. And I never could imagine my dad would have lymph nodescancer. It was all behind his nose and behind his eye socket where he breathed inthis stuff. I'm mad. I'm mad about this. And I think something needs to be donetoday. I don't think it needs to wait. I know that it has been going on too long.

Testimony of Ernestine Moorer before the Jefferson County Department of Health, PublicHearing for a Permit Renewal for Walter Coke Manufacturing (May 20, 2014) at 56-57:

I had to leave three years ago because it was killing me. But the main thing, thereason I know it was terrible because one morning I got up and went on my frontporch. And the porch, we had to get the house with the high power washer andwash down several times. The stuff was so strong, it was getting in the house,seeping in the house. Okay. When I looked at the trees and the trees -- the leaveson the trees was dirty, the spirit of God told me get up and get out. It's time tomove. If I hadn't, I would have been dead and gone.

Testimony of Charles Parker before the Jefferson County Department of Health, Public Hearingfor a Permit Renewal for Walter Coke Manufacturing (May 20, 2014) at 76-77:

I have been living in College Hill for 70 years in deception and soot and pollution. I remember as a child, I used to have to sweep the porch twice a day because ofthe soot and the pollution and things on the porch. Mother would wash theclothes at least twice from the soot, where it would collect the soot and stuff likethis.

Statement by Bobby Hogan, Toxic City: Birminghams Dirty Secret at 5:56 (Soot covering hisand his neighbors porches, houses, vinyl siding. He rinses his bricks off once a week and can seethe soot washing off the house. He can see the soot in his tub when he takes a bath.) (AppendixD)

Statement by Vivian Starks, Toxic City: Birminghams Dirty Secret at 6:16 (Large piles of blacksoot are visible. When the wind blows, you can see the soot blowing around the neighborhood.)(Appendix D)

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Statement of Charles R. Barber Jr., Cleaner air for Birmingham?, Weld for Birmingham (June11, 2014) (I remember growing up as a child, sweeping the soot off the porch, and then youcome back later, and you have to sweep it off again. He described building a deck back in 2000and not being able to keep it clean from the soot. Ive tried cleaning it off several times, pressurewashing it, even putting Thompsons WaterSeal on it. Still, the soot comes back.)

VII. Walter Coke Failed to Demonstrate that Air Pollution Controls are Adequateto Prevent Violations

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

The Health Officer shall deny an Operating Permit if the applicant doesnot show that every article, machine, equipment, or other contrivance, the use of which may cause the issuance of air contaminants, is so designed, controlled, orequipped with such air pollution control equipment, that it is expected to operatewithout emitting or without causing to be emitted air contaminants in violation ofthese rules and regulations.

Walter Coke has not shown that every article, machine, equipment, or other contrivance that maycause the emission of air contaminants, is designed, controlled or equipped with air pollutioncontrol equipment capable of preventing violations of the Jefferson County Air Pollution ControlRules and Regulations. Indeed, semi-annual compliance reports submitted to the JeffersonCounty Department of Health for the period from July 2009 through December 2013 show thatarticles, machines, equipment or other contrivances operated by Walter Coke are not designed,controlled or equipped with adequate air pollution control equipment to operate without emittingor causing to be emitted air contaminants in violation of the Jefferson County Air PollutionControl Rules and Regulations. Appendix E. In the absence of Walter Cokes demonstration39that it has implemented air pollution controls adequate to prevent violations, the Health Officer

Moreover, the analysis of the permit application by the Jefferson County Department39of Health demonstrates that the Department did not consider whether Walter Coke demonstratedthat its air pollution controls are adequate to achieve compliance with the Jefferson County AirPollution Control Rules and Moreover, the analysis of the permit application by the JeffersonCounty Department of Health demonstrates that the Department did not consider whether WalterCoke demonstrated compliance with the Jefferson County Air Pollution Control Rules andRegulations. See Jefferson County Department of Health, Title V Operating Permit Evaluation(Feb. 24, 2014), available at http://www.jcdh.org/eh/anr/anr12.aspx?NoticeId=71&Type=2(accessed Mar. 6, 2014).

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must deny the permit. Jefferson County Air Pollution Control Rules and Regulations, Paragraph18.2.8(a).40

VIII. Draft Permit Conditions Implementing Part 6.2 are Unconstitutional andUnenforceable41

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 many conditions of Draft Major Source Operating Permit No. 4-07-0355-03. Both the regulation and permit conditions are unconstitutional and unenforceable.42


GASP submits that the arguments made in this part demonstrate that the proposed41issuance of Major Source Operating Permit No. 4-07-0355-03 fails to adequately establishpractically enforceable emissions limitations for the facility, as required by 40 C.F.R. 70.6(a).

All permit provisions citing Jefferson County Air Pollution Control Rules and42Regulations, Part 6.2 and fugitive emissions or visible emissions.

41

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 revise allpermit conditions based on Jefferson County Air Pollution Control Rules and Regulations, Part6.2 to accomplish control of fugitive dust emissions without language that is vague orunreasonably restrictive. Alternatively, the Department should include an additional condition inDraft Major Source Operating Permit No. 4-07-0355-03 that will effectively control fugitive andvisible dust emissions without being constitutionally offensive.

IX. 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. 4-07-0355-03provides:

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 as

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defined in Part 1.3). Second, General Permit Condition 45 requires that the Departmentdetermine 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.

X. Use of Differential Absorption Light Detection and Ranging Technologyis Necessary to Quantify Walter Coke Emissions

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

Standard application form an

Documents

COMMENTS OF GASP ON PROPOSED REISSUANCE OF MAJOR SOURCE OPERATING PERMIT NO. 4-07-0355-03 TO WALTER COKE, INC