Comments needed, act up!

Kennecott is seeking a change to the SIP (State Implementation Plan) to emit 32% more pollutants in a SIP that is set to be disapproved by the EPA. Comment deadline 3/3. An Intent to approve is also pending. Comment deadline 3/8.

Please comments to: P. E Cheryl Heying <cheying@utah.gov>, and cc any or all of the following key contacts on this issue:

Gary Herbert <gherbert@utah.gov>; Ted Wilson <Tedwilson@utah.gov>; Spencer Eccles <speccles@utah.gov>; blockhart@utah.gov; David Litvack <dlitvack@utah.gov>; bdaw@utah.gov; Roger Barrus <rogerbarrus@utah.gov>; UTSenate <waddoups@utahsenate.org>; Ross Romero <rromero@utahsenate.org>; kvantassell@utahsenate.org; Peter Carroon <PeterMCorroon@slco.org>; Ralph Becker <ralph.becker@slcgov.com>; Ernie Wessman <eewessman@integrity.com>; P. E Cheryl Heying <cheying@utah.gov>; “toddrbingham@gmail.com” <toddrbingham@gmail.com>; mining@xmission.com; Andrew Gruber <agruber@wfrc.org>; Alan Matheson <amatheson@envisionutah.org>; John Njord <jnjord@utah.gov>; boardoftrustees@rideuta.com; Catherine Roberts <Roberts.Catherine@epamail.epa.gov>

Use all or any part of this letter I sent to the DEQ/DAQ:

RE: Potential Litigation and potential threats to Utah’s economy emanating from questionable DAQ actions regarding Rio Tinto/Kennecott (RT/K)

Dear Amanda:

The pending actions advanced by the UT DAQ violate the UT DAQ’s stated mission, the public trust, and its “commitment” to science and pollution prevention. The discussion below makes a case for violation of UT DAQ’s mission setting it on a course of entangling legal problems, and setting up threats to Utah’s economy.

UT DAQ Mission The mission of the Department of Environmental Quality is to safeguard human health and quality of life by protecting and enhancing the environment.

Vision A quality environment will be achieved through:

  • Careful, open, and fair consideration of the concern of all Utahns;
  • Excellence in science, communications, and operations;
  • Timely, effective, and consistent response to all customers; and,
  • Actively promoting pollution prevention

BACKGROUND: Rio Tinto is restricted from mining more than 197MM tons of material per year by a current condition of the State Implementation Plan (SIP) for Salt Lake County.  Rio Tinto is proposing that the State DAQ modify the SIP to allow for an increase in material mined to 260 MM tons of material per year – a 32% increase in mining operations.

Salt Lake County currently does not attain to the clean air standards for PM10.   The SIP, then, is prepared by the State of Utah to demonstrate to the EPA a reasonable plan for re-gaining attainment status, as this is required by Federal law.   The SIP is a federally-enforceable document, and must be approved by the EPA.  Once a SIP is approved, rulemaking by the State is completed so that air planning, compliance, and permitting efforts support the goals of the SIP.  The SIP, then, is the cornerstone of building an effective plan for PM10 emissions so that the air quality of the County improves and eventually meets the federal clean air standards.

LACK OF PROMOTING POLLUTION PREVENTION: There are concerns with the quality of the current PM10 SIP as written by the State Division of Air Quality (DAQ) and submitted to EPA for federal approval:

1.      Despite the existence of the plan, Salt Lake County has encountered “excursion events” where monitoring has indicated that the County’s air exceeded the PM10 standard several times over the past several years.  This indicates that the SIP as currently developed is not protective;

2.      The EPA has not yet approved the Salt Lake County PM10 SIP; and,

3.      EPA, in December of 2009, published their intent to disapprove almost all portions of the Utah SIP.[1] EPA will act on this recommendation by December of 2011.

LACK OF COMMITMENT TO SCIENCE: Despite a troubled SIP whose planning does not appear to be moving Salt Lake County closer to clean air standards for PM10 as required by federal law, and which has been proposed for disapproval by the EPA (who provides primacy authority for Clean Air Act enforcement to the State of Utah),  the DAQ has proposed to allow a change to the SIP where Rio Tinto will be able to increase their production from 197MM tons to 260MM tons per year, increasing PM10 emissions  by 2,035 tons per year, according to their own documents.  Additionally, this PM10 (and PM2.5) number offered by Kennecott is based on a student thesis noted with many statements by the author that much more needs to be done to verify this study. The actual tonnage of PM 10 may be closer to 6,000 tons per year.

It is my understanding that the UT DAQ makes a source permit on “worst case” numbers. The student master’s level thesis states a “worst case scenario” with winds of 30 mph. First of all winds greater than 30mph are regularly seen across the Oquirrhs. At a minimum, remembering the worst case may be winds of 50-80 mph, this would lead to an increase from 33% of PM10, making it out of the pit. In a more realistic worst case scenario perhaps 50% of PM10 would be released out of the pit but a new study with real field data needs to be conducted before any of these considerations are moved on.

The UT DAQ was called on by the EPA re: fugitive dust emissions before when RT/K asked for a production increase. In a letter from the EPA to the UT DAQ dated June 30, 1999 EPA (RE: ITA DAQE-357-99) stated:

“We are aware of the argument expressed by your staff that most PM10 emissions never leave the Bingham Pit Mine. While we believe this may be true for some or most of the ore hauling which occurs entirely in the pit we do not believe this is true for the projected emission increase in this permit action. …most of the allowed increase in truck hauling will be for waste rock, not ore, which is hauled out of the pit…We would not expect fugitive PM10 emissions from that hauling to remain mostly in the pit” To Ursula Trueman UT DAQ Exec. Sec. from Richard R. Long, EPA Director, Air and Radiation Program

LACK OF THE FAIR CONSIDERATIONS OF ALL UTAHNS: Herein a contradiction is observed:  How can the DAQ, in spite of a faulty SIP which has been proposed for disapproval, propose to allow an additional 2,035 tons or much more of PM10 into the airshed, which already does not meet clean air attainment standards?

Additionally, concurrent with their SIP Modification Proposal Submittal (December, 2010), Rio Tinto also submitted a Notice of Intent (NOI) to change their current air permit (Approval Order, or “AO”) to allow for an increase of material mined to 260 MM tons per year.  Since the SIP provides the foundation for PM10 air permitting in Salt Lake County, the SIP change must first be approved.  Once the SIP is changed, only then would a permit change, based on the newly revised SIP, be considered.

A public hearing has been scheduled for 3:30 PM on February 22nd, for the public to make comments on the proposed SIP modification.   However, a second public hearing has been scheduled at 6:30 PM on the same day to take comments on a new AO already written for Rio Tinto (called an “Intent to Approve”, or ITA document), based on the concurrent NOI submitted  on the same day in December , 2010, which presumes a new operating limitation of 260MM tons.

This action is concerning, because the SIP must first be changed prior to any permits being issued based on the SIP changes.  The very fact that the DAQ has allocated engineering resources and time to review, author, and “intend to approve” a completely modified AO, which is based on SIP changes which have not been made, nor have even received public comments on the change, is troublesome.  This indicates that the DAQ presumes that the change will be made, and has already prepared the first permit based on the change.  This points to the underlying assumption that the DAQ (and by reference, the Air Quality Board) are already planning on changing the SIP, DESPITE not yet having received any public comments, and DESPITE EPA’s expressed concerns regarding the SIP.

DAQ’s response may be that they are simply preparing for an eventuality of a SIP change occurring.  However, their actions already contradict this argument; why would an agency who has publicly gone on record as being “strapped for  resources and FTE’s”  assign those very critical existing resources to completing a very extensive permit process which may not even be approved due to an overriding SIP condition which disallows it?   The DAQ may already have reached a conclusion to approve the SIP, and the permit based upon the change.

This is presumptive, and makes a mockery of the public process, required by law, in which the members of the public can voice their opinions on the proposed SIP change.   In fact, their action may be illegal, in that they have already decided the outcome of the Board vote prior to the Board even meeting to vote on this issue.  This violates public trust in the Agency, and may violate terms of due process for public hearings on the issue, which are required by State Air Rules.

LACK OF CONSISTENT RESPONSE TO ALL CUSTOMERS: Finally, there are many industries along the Wasatch Front who have been waiting over one or two years for permit approvals.  That an action this large, involving thousands of tons of additional emissions into an airshed which already does not meet clean air standards, can be addressed in under two months, with permits already written based on a rule change which has not even yet occurred, much less publicly discussed, is incredibly disingenuous and violates every principle of service to the public as well as to industry. At a WFRC air quality committee meeting last year a participant noted that “Kennecott is dominating the airshed” and “we’ll never be in compliance”.

DAQ ACTIONS INVITES LEGAL PROBLEMS: In addition, by violating due process, the DAQ may be exposing the State of Utah to legal action which will cost the State additional monies and resources to address.  It is not certain if the DAQ recognizes this potential liability that they have created by asking for public comment on a permit they intend to approve which by law can’t even be submitted until after the overarching rule (the SIP) is changed, IF it is changed.

This action is a blatant example of favoritism to a single industry,  over the voice of the public, and at the expense of other industries, who’s permits have been in process longer, and were inevitably delayed so as to “fast track” this permit.

IMPACTS TO UTAH’S ECONOMY: Other segments of Utah’s economy are impacted by these maneuvers. Transportation funds may be denied if the airshed is perennially out of attainment. The Governor’s projections for growth alone may keep the air shed out of attainment without any other segment’s growth.

The DAQ needs to cease this process immediately. It also needs to temporarily end the review of any RT/K permits that emits PM 10 until the SIP is addressed by the EPA which is required by a ruling to occur December 1, 2011. Then and only then will the UT DAQ redeem itself in the eyes of the public and may wholly remove itself from potential litigation.

These maneuvers also move Utah closer to loss of primacy with the EPA vis-à-vis The Clean Air Act.


[1] Federal Register / Vol. 74, No. 229, Tuesday, December 1, 2009.

Public Comment Period Listings:


http://www.deq.utah.gov/PUblic_Participation/comments.hm

PLEASE EMAIL ME FOR SUGGESTED COMMENTS

Drive Less: Driving less doesn’t mean you have to stay home. Try any of these ways to get to where you want to go:

  1. Carpool
  2. Use mass transit:
  1. Walk
  2. Ride a bike
  3. Telecommute
  4. Do your business by phone or over the Internet
  5. Walk to lunch
  6. Pack a lunch and eat in
  7. Postpone errands that can wait, if it’s a high pollution day
  8. Combine your errands into one trip.
  9. Park in a central place and walk as much as you can.

Drive Smarter: Driving smarter keeps pollution at a minimum and reduces traffic congestion

  1. Drive your newest (or least polluting) car
  2. (Know before you go – Check Utah  CommuterLink and choose your route to avoid traffic tie-ups and other delays
  3. Work a flexible schedule–commute during non-peak driving times
  4. Keep your vehicle well tuned
  • Replace your vehicle’s air filter on a regular basis
  • Keep your tires properly inflated
  • Check fluids regularly
  1. Wait to gas up until early evening hours. Don’t top off your tank
  2. Limit your car’s idling time to a couple of minutes. Warm it up by driving it
  3. Avoid drive-through lanes
  4. Accelerate gradually
  5. Obey the speed limit-better yet drive just below. By driving over 55mph, you car will need 10-25% more fuel to drive the same distance adding 10-25% more pollutants for speeds over that.
  6. Use cruise control on the highway
  7. When you buy a new car. Look for one that is fuel-efficient and low polluting-or consider a zero polluting electric car

At Home: Lawnmowers and other lawn equipment contribute to pollution

  1. Buy less toxic or nontoxic materials.
  2. Avoid consumer spray products.
  3. Properly dispose of all hazardous household materials.
  4. Make your own cleaning products
  5. Use water-based instead of oil-based paints
  6. 32. Keep all solvents and paints in airtight containers
  7. Conserve energy
  8. Use a push mower
  9. Rake and/or sweep, rather than blow, leaves and other yard wastes
  10. Keep your small motors well-tuned and use them only on low pollution days
  11. Use a non-charcoal barbecue
  12. Maintain your air conditioner or swamp cooler

At Work:

  1. Work a flex schedule
  2. Telecommute one day a week
  3. If you are an employer, implement a rideshare program for your employees
  4. Keep your fleet vehicles well maintained
  5. Take advantage of tax options – buy alternative fueled vehicles
  6. Purchase fuel – efficient vehicles
  7. Conserve energy
  8. Purchase Energy Star products or other energy efficient appliances, home electronics, and lighting
  9. Buy less toxic or non-toxic materials
  10. Wait to paint on low pollution days
  11. Keep all solvents and paints in air tight containers
  12. Adopt pollution prevention methods. They will not only prevent air pollution but will also result in savings for your company

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