Comment Log Display

This comment pertains to the revision of paragraph one of section
93102.4 to eliminate the phrase "except for those facilities that
only operate enclosed hexavalent chromium plating tank" (sic). With
this change, the rule rejects the final candidate for BACT even
though no analysis was done or shown to the public to support the
decision. 

The California Air Resources Board (CARB) is required to follow the
California Health and Safety Code. This is what the health and
safety code has to say about CARB's authority to regulate. CARB is
to:

"reduce emissions to the lowest level achievable through
application of best available control technology or a more
effective control method, unless the state board or a district
board determines, based on an assessment of risk, that an
alternative level of emission reduction is adequate or necessary to
prevent an endangerment of public health"

CARB has not proposed a more effective control method in this
regulation. CARB has proposed a ban. Labelled a "phaseout", it is
an elimination of the industry. It is a ban. A ban is not a control
method. A phase out is not a control method. CARB did not analyze
existing or potential BACT. CARB did not propose a BACT. The
elimination of enclosed hexavalent control tanks as a compliance
option is the last straw. Enclosed hexavalent chrome plating tanks
were potentially a BACT. But now, with their elimination, without
analysis, CARB will be completely in violation of the California
Health and Safety Code. 

A careful reading of the health and safety passage above reveals
the law does offer CARB the option of performing a risk assessment
to establish the necessity of an alternative to BACT, but CARB did
not perform a compliant risk analysis. To assess and compare risks
in a compliant fashion, CARB would have had to analyze BACT and
BACT alternatives. CARB would have had to select one of those
alternatives and then analyze the incremental risk that alternative
would have created. CARB did not do that. CARB created a risk
analysis that was based on an arbitrary emissions limit that CARB
set. That emissions limit was one half the previous limit. There is
no presentation of any analysis or conclusion explaining why
exactly one half the previous emission limit was chosen. There is
no analysis explaining why zero, a ban, is a necessity considering
the emission levels that currently available BACT options present.
The table below points this out. 
	                                                Emission
Level	Comment
2007 ATCM Limit             	         0.0015000	This is the
existing rule
2023 ATCM Limit (This Rule)	         0.0007500	This is CARBs
proposed limit
Hard HEPA (Av Repair Sol)	         0.0000230	32 times BELOW this
ATCM proposed limit
Hard with Covers (Merlin Tanks) 	  0.0000041	183 times BELOW this
ATCM proposed limit

The Aviation Repair Solutions, Inc. source test shown in the table
was a "Non-Detect" for hex chrome. It reflects the emission rate at
the detection limit under a very heavy plating amp hour load. It
was a zero emission which only shows as a non-zero emission rate
because of CARB rules about detection limits. The emission rate
shown in the table for enclosed hooded tanks is even lower and was
also very likely a non-detect for hex chrome. CARB failed to
evaluate these two zero emission control technologies (HEPA and
Enclosed Tanks) as BACT.

CARB does not reveal any discussion of BACT in the rule making
record as is required by law. There is no identification of a BACT.
There is no analysis of any BACT emission rate or of any candidate
BACT emission rates. The emission inventory shows emission rates by
type of emitter and in some cases averages them but it does not
show a rate for candidate BACTs. (But since the enclosed tank -
Merlin statistic is alone on the table, we can see its' rate). For
hard chrome, CARB appears to have taken an average of all hard
chrome tests (0.0005588). But, since that is an average of tests
applying to a set of different control technologies, it is invalid
to have been used in replacement for the legal BACT requirement. 

 The Health Risk Assessment (Appendix F) did not analyze risk
relative to any BACT. Rather, it analyzed the risk associated with
the completely arbitrary 0.00075 proposed emission limit. An
emission limit is not a BACT. Analyzing the risk of a limit is not
the same as analyzing the risk of a control technology.  The
proposed rule materials provide no analysis or supporting rationale
why the halving of the current limit to 0.00075 is or is not
related to any BACT or to any particular level of public health. It
is just a number that is half the previous number. One wonders why
CARB took 2 or 3 years to produce the rule. We can see from the
table above that had CARB selected a BACT for analysis (either HEPA
or Merlin tank) they could have performed the risk assessment with
values of 0.000023 or 0.0000041 but they did not. CARB provided no
rationale why they performed a risk analysis that assumed emission
levels would be 0.00075 when we can clearly see that much lower
emission rates are possible with current BACT alternatives. CARB
used a value for the risk analysis that is 32 to 183 times higher
than what these two potential BACTs can achieve. They created a
strawman. They created a strawman number that, when analyzed as a
risk proxy would fail and show potential harm to the public. The
tables CARB constructed to show potential emission risks are not
constructed with BACT, they are constructed with the strawman
emission level. 213 in a million, communicated by CARB staff to the
board, to the media, and to the public is a false risk.  

The emission model(s) in Appendix F use the strawman emission
level, they do not use BACT. As shown by the table above, the BACT
from enclosed hexavalent chrome plating tanks is 183 times better
than CARB'S "PIDOMA" number. CARB's allegation about 213 in a
million cancer risks from large facilities are not based on the
HEPA systems those facilities are already required to use and are
in use, rather they are based on the false strawman. How cynical,
how deceptive, how misleading to the public is this? How damaging
is this to the regulated industry? An industry which has spent
millions of dollars buying the BACT devices that this governmental
agency did not even analyze before declaring them insufficient.

CARB (in this rule) and the SC AQMD (currently) require facilities
to conduct source tests of HEPA systems (BACT). The test results
must be submitted to the regulator (air district) for regulatory
review. South Coast facilities have done this for more than a
decade. So, there is a rich set of data from which CARB could have
conducted the legally required analysis of BACT. That data exists
at SC AQMD (at least) and likely at several other regulators as
well. CARB did not review or analyze that data. CARB proves this in
the FSOR. CARB admits asking for the air districts to provide data
and explains that data was not provided by the districts. Industry
was not notified of this but industry is paying the price for the
governmental dysfunction. The fact that one or two districts may
have failed to be in on the conspiracy and a few results were
provided (fourteen out of 110 facilities) adds a little color to
the story but it is still a story of incompetence at best and
malevolence at worst. There is no BACT analysis because of
governmental dysfunction. 

It is even more damning to consider that industry has paid millions
of dollars to implement control technologies that are capable of
producing zero measured emissions and can achieve "Non-Detect"
under heavy load conditions and yet CARB did not analyze them. CARB
did this even though the owners of that equipment are required by
existing regulations to source test them and turn the data over to
the air districts. CARB didn't use the data turned over to the air
districts. Even more confounding is that CARB, IN THIS VERY RULE
PROPOSAL, is requiring industry to increase the frequency of source
testing by a factor of 2.5 and to continue turning the data over to
the air districts. For what reason? So that CARB will again, not
use the data to determine if their own rule is effective? CARB may
have unlimited resources with which to pay people to sit around and
not perform analyses but industry does not have the ability to
waste money. These source tests cost at least $15,000 each
considering lost production time and test fees. It is astounding. 

I have made public comment from the beginning of public comment (my
only opportunity to provide input) about the deficiency of the CARB
"emission inventory" and pointed to the lack of correct BACT source
test information. CARB staff has ignored me and took this to board
vote with full knowledge of this deficiency and lack of compliance
with law. I pointed out to CARB that I had provided them with
source test information about Aviation Repair Solutions, Inc., two
years ago and that it had not been used. CARB's response to my
comments and to my provision of source test data in the FSOR is
damning. In Master Response 13 CARB states: "industry was not
forthcoming in providing source test data that could be verified".
This is not a statement about industry providing data, it is a
statement about CARB's inability to verify based on not being able
to work with SC AQMD! This CARB response could even be viewed by
the public as CARB stating industry had lied about data! One could
imply that the data I provided was somehow not valid (verifiable)
when in fact, it was the government that failed to call another
branch and request verification. CARB was to lazy to pick up a
phone and call SC AQMD! There is no restriction on our source test
data that prevents AQMD from verifying the summary number or a
non-detect! Yet, CARB hides behind this lamest of excuses. In
Master Response 11 CARB states: "This included information about
actual throughput and source test data. To date, staff have not
received any verifiable sources test data from members of industry.
Staff has received purported source test results from specific
facility owners, but that information was summary in nature, and
when staff requested the source test reports that would allow us to
verify the values, those reports were not provided." They go on to
state in Master Response 11: CARB staff also requested source test
data from the Districts. In response to that request, CARB staff
received verifiable source test data from the Districts for 14
facilities. Since that was the data that was available at the time
of staff's analysis, that is what was used in determining the
source tested emission factors." 

That last quoted segment in Master Response 11 is proof that CARB
cared more about an expedient result than a correct result -
"available at the time of staff's analysis". Let's also note that
the staff analysis referred to here must have occurred prior to the
publishing of the initial proposed rule and prior to any of the
public comment periods. We know that because we see the use of only
the 14 facilities right from the beginning. No adjustment was made
as more data became available (if it did) and no  adjustment was
made as a result of public comments even though public comment were
calling the deficiency to CARB's attention. Truly pathetic behavior
by CARB and by CARB attorneys who should have been doing internal
verifications to assure that CARB was putting truth out to the
public.

Even with the 14 collected source results that the districts did
turn over, CARB did not make a presentation of BACT alternatives,
or results, or selection of a single BACT emission level from which
a relevant risk assessment could be made.

The risk assessment presented in appendix F shows the risks the
public would face from an agency that does not follow the law and
analyze BACT and set emission levels using BACT. 

How can a risk assessment with a falsely inflated strawman baseline
and which features no analysis of risks from BACT be used to prove
necessity? The law is clear. The law requires necessity be shown if
CARB is to deviate from a BACT approach.  

Today the public is breathing 99 times more hex chrome emissions in
California than produced by the metal finishing industry. We are
only 1% of emissions. After this lengthy, costly, two to three year
effort, in which there was virtually no two-way involvement and
communication between the CARB and industry, the competence of
which is described above, CARB will eliminate 1% of emissions in
the State. The other 99% will remain. Chair Randolph and Vice Chair
Sandra Berg asked staff about this in one of the CARB meetings.
Randolph asked, "is it true that metal finishing is only 1%" and
Berg asked "what are we doing about the refineries?".  Staff
answered that the 1% was consistent with CARB data and that CARB
had imposed plenty of other requirements on the refineries. (Note:
there is no ban of refineries due to hex chrome).  So, I will ask
the question, what is the BACT that CARB has apparently found to be
acceptable for the refineries, the cement plants, the welders, the
forges, etc.?  These emitters (99% of the hex chrome emitters in
the state) are not banned but the same toxin is being emitted.
There is no consistency in CARBs behavior. 

The State of California needs roads, bridges, buildings, rail, and
aircraft, all of which may require some emission of hexavalent
chromium.

There may be a staffer/manager/board member at CARB who tries to
remove this comment and claim that it is out-of-scope to the issue
of "enclosed chrome plating tanks" from which it is derived. That
staffer/manager/board member is the very one who should be removed
if CARB wants to resume being a data and science-based regulator.
Data and science-based people don't find excuses for not collecting
appropriate data for analysis. Data and science-based people do not
avoid analysis. They are not afraid of analysis. Data and
science-based people do not construct strawman baselines from which
false progress can be claimed and false risks assessed. Data and
science-based people do not construct elaborate ruses filled with
half-truths (data could not be verified) to fool the public. Data
and science-based people do not find ways to remove comments like
this from public comment because they are not afraid of analysis. 
This comment is in scope because it questions the removal of a BACT
alternative without analysis and in light of a risk assessment that
did not consider BACT and in light of nearly a hundred times more
emissions of the same toxic in the state by entities who have
lesser controls than we do.

Ignorance is one thing. The willful continuation of ignorance
(avoiding data collection and analysis) has other names. Willful
continuation of ignorance in violation of law takes things to a
whole other level. 

It is past the time to do your lawful duty CARB.