JEFFERSON COUNTY DEPARTMENT OF HEALTH

Public Comments
on Lehigh Hanson
Cement South LLC
Draft Title V Permit
& JCDH Responses
Comment Period October 11, 2020 through November 10, 2020

Draft Permit 4-07-0290-06

11-17-2020
Lehigh Hanson Cement South LLC Draft Title V Permit (2020) Page 1
Comment/Response Document

Gasp Comments
Response to Comments on Draft Permit No. 4-07-0290-06 from Gasp dated November
10, 2020
The full text of comments submitted by the Gasp is not reproduced within this document. It is available
from JCDH on request. Gasp’s comments on the draft permit, Statement of Basis, and application are
addressed in this document. Any changes made to the (draft) permit in response to a comment will be
identified specifically in the response. The Statement of Basis will not be revised at this time.

I. The permit must incorporate enforcement orders. (page 2)

JCDH is not aware of any consent decrees, court judgements, administrative orders or other
enforcement orders which have been issued against Lehigh Hanson Cement South LLC (“Lehigh”) at the
time of this draft permit which are not properly addressed in the permit. Additionally, on the cover page
of the (draft) permit, the first sentence below the emission unit listing reads:

This Permit is issued pursuant to and is conditioned upon the compliance with the
provisions of the Jefferson County Board of Health Air Pollution Control Rules and
Regulations, the applicable requirements of the Clean Air Act implementation plan for
Alabama approved or promulgated by the United States Environmental Protection
Agency (EPA) through rulemaking under title I of the Clean Air Act (identified in 40
CFR 52, Subpart B) and other applicable requirements as defined in section 18.1.1(e)
of the Jefferson County Board of Health Rules and Regulations, Section 18 of the
Alabama Air Pollution Control Act of 1971, Act No. 769 (Regular Session, 1971),
Section 22-28-16 of the Alabama Air Pollution Control Act as amended, Orders of the
Jefferson County Board of Health, Orders of the Director of the Alabama Department
of Environmental Management (ADEM), and any applicable local, state or federal
Court Order.

JCDH will incorporate any future applicable requirements as necessary and consistent with Part 18.13 of
the Rules and Regulations for permit modifications or amendments.

II. JCDH Has Not Demonstrated Lehigh Cement Is Entitled to a Permit Shield. (beginning on
page 2)
Gasp contends that Lehigh is not in compliance based on “records produced by JCDH pursuant to a
records request submitted by Gasp, over the past five JCDH conducted only a handful of onsite
inspections.”

It is unclear why Gasp does not reference all of the inspections that were produced in their file request.
JCDH received Gasp’s file request on 10/13/20 and met Gasp in person on 10/20/20 to give Gasp the
electronic files per their request. Those files contain the aforementioned inspections along with Full
Compliance Evaluations (FCE) for 2018, 2019 and 2020 as shown in a screenshot of the thumb drive,
produced and returned to JCDH, below:
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Comment/Response Document

It is unclear what Gasp’s expectation of how often an inspection should occur however EPA
requires at a minimum once every two years for a Title V source. JCDH began doing yearly Full
Compliance Evaluations in 2016. JCDH produced those inspections along with other records in a
timely manner and performed all searches to locate the requested material. The FCE reports
note the compliance status of the facility at the time of the inspection. The 2019 FCE notes that
no deviations were found during the compliance evaluation. The most recent 2020 JCDH report
notes compliance as well. JCDH is unclear as to what more Gasp needs clarification on with
regards to compliance. As Gasp states, the SOB does not discuss any non-compliance issues
because Lehigh is in compliance as noted in the inspection reports. Finally, JCDH will send by
email the 2018, 2019 and 2020 FCE reports to Gasp to ensure they are received.
The first 2 full paragraphs of page 3 of the Statement of Basis read:

The current Title V renewal application was submitted on November 14, 2019, during
the submittal window (November 17, 2018 to November 17, 2019) needed to secure
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Comment/Response Document
an "application shield." The facility can legally operate under the current permit until
a new permit is issued consistent with 18.12.2 of the Rules and Regulations.

Section 18.4.5 reads:

Complete application. Unless the Department notifies the permit applicant in writing
that the application is not complete, the application is considered complete 60 days
after receipt by the Department. If, while processing the application, the Department
finds that more information is needed to evaluate the application, the applicant must
submit such information by a reasonable deadline(s) as set by a written request(s)
from the Department.

A complete application is one that includes sufficient information needed to evaluate the application.
Our Title V program requires the Department to notify the applicant if the application is incomplete. It is
the Department’s responsibility to ask for more information if needed, but such a request was not
needed in this instance. The Statement of Basis did not leave out pertinent facts or events regarding the
application submittal.

The Department was aware that the draft permit was put out for comment after the expiration date on
Lehigh’s existing permit. Not penalizing the facility for the Department’s failure to issue a renewal
permit before the expiration date despite the facility’s submission of a timely application is not
equivalent to shielding the applicant from violations of the existing permit. The Department does not
understand how Gasp can reasonably construe either an “application shield” or a “permit shield”
(discussed below) in this manner.

General Condition 43 of the draft permit reads:

Permit Shield and List of Non-Applicable Regulations 18.10

Compliance with the conditions of the permit shall be deemed compliance with any
applicable requirements included and specifically identified in the permit as of the date of
permit issuance. All provisions within the General Conditions are applicable requirements
unless otherwise noted. The Department has determined that the following requirements are
not applicable to the source for the reasons listed:
A. The PM emission limits of 40 CFR 60, Subpart F no longer apply to the permittee’s
affected sources that have demonstrated compliance with the more stringent emission
limits of 40 CFR 63, Subpart LLL.
B. 40 CFR 60, Subpart OOO does not apply to the permittee because the potentially affected
equipment was constructed prior to August 31, 1983.
C. 40 CFR 60, Subpart IIII does not apply because the emergency engine was constructed
prior to July 11, 2005.
This shield does not allow the permittee to violate any requirement that might be triggered by
construction, reconstruction or modification of any equipment subject to applicable
regulations.
The permit shield is clearly limited to “applicable requirements included and specifically identified in the
permit.” It does not cover any applicable requirement that the Department may have omitted. It does
not cover any applicable requirements promulgated after the date of permit issuance. The permit shield
does not alter or affect the liability of an owner or operator of a source for any violation of applicable
requirements prior to or at the time of permit issuance (Paragraph 18.10.3(b) of the Rules and
Regulations). The permit shield is not a statement about whether a facility is in compliance or not.
Lehigh Hanson Cement South LLC Draft Title V Permit (2020) Page 4
Comment/Response Document
As an example of how a permit shield might be used by a permittee, consider the following. If the
Department were to approve an alternative monitoring method for an emission limit included in an
NSPS that is not included in the underlying applicable requirement but it was later determined that
JCDH did not have the authority to approve the alternative monitoring method, the permittee would be
shielded from enforcement regarding the failure to conduct monitoring by the NSPS-required method if
they complied fully with the (erroneous) alternative monitoring method as stated in the permit. After
discovery of the error, the permittee would be required to correct the situation promptly, either by
obtaining approval from EPA for the alternative monitoring method or switching to the monitoring
method required by the regulation. The Department would revise the permit to include an appropriate
monitoring method and could thereafter enforce the correct requirement.

III. The Compliance Certifications submitted by Lehigh Cement lack specificity, accountability and call
into question the facility’s compliance status. (beginning on page 4)
The Department stands behind our previous statement regarding overall facility compliance. The
Department does not interpret the language cited by Gasp to require a facility-wide compliance
statement as part of the annual Title V certification. The Clean Air Act Advisory Committee's Title V Task
Force recommendations discuss the level of detail that should be included in an annual Title V
compliance certification. They are non-binding guidance (see the last paragraph of the first page of the
cited memorandum). The recommendations do not allow the permittee to submit an overall compliance
statement in place of addressing every permit condition which confers a duty on the permittee. The
recommendations also do not require the permittee to submit an overall compliance statement in
addition to addressing each permit condition.

The Part 71 Annual Compliance Certification form (A-COMP or EPA Form 5900-04), available on
November 12, 2020 at https://www.epa.gov/title-v-operating-permits/annual-compliance-certification-
comp, requires each federally-issued Title V permit term to be addressed but does not require an overall
compliance statement. (OMB No. 2060-0336, Expires 11/30/2022)
Gasp also discusses their questions regarding Lehigh’s compliance here. Gasp somehow failed to receive
the Full Compliance Evaluation reports for 2018, 2019 and 2020, which might have answered their
questions. The Department has evaluated Lehigh’s annual compliance certifications and the renewal
application, and has found them to be sufficient without asking for additional information.

III. Certain General Conditions are missing from or misstated in the Draft Permit, which
violates federal requirements and thus must be revised. (page 7)
A. The Draft Permit does not contain a condition for a claim of confidential information. (beginning on
page 7)
See General Condition 25 on page 16 of the draft permit.

B. There is no condition requiring Lehigh Cement to comply with the terms and conditions of the permit.
(on page 8)
General Condition 6 has been revised as follows:
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Comment/Response Document
70.6(a)(6)(i)
Noncompliance
18.5.6
The permittee shall comply with all terms and conditions of the permit. Noncompliance with
any term or condition of a permit will constitute a violation of the Act and the Rules and
Regulations and may result in enforcement action; including but not limited to, permit
termination, revocation and reissuance, or modification; or denial of a permit renewal
application.
C. General Condition 6 is insufficient and must be rewritten. (beginning on page 8)
See the changes at Section B above, and see General Condition 24.

D. As written, General Condition 45.B is incomplete and thus must be revised. (on page 9)
Revised as below:

Submission of Reports and Notifications 18.7.5

…
B. Title V Annual Compliance Certification: A compliance certification with terms and
conditions contained in the permit, including emissions limitations, standards and work
practices, covering the period from original permit issuance October 23 to October 22 of
the following year, shall be submitted by November 22 each calendar year. The permittee
shall provide a means for monitoring the compliance of its air pollution sources with the
emissions limitation, standards and work practices listed or referenced within this permit.
The compliance certification shall include the following:
1. The identification of each term or condition of this permit that is being certified;
2. The emission unit or units to which the term or condition applies;
3. The compliance status;
4. Whether compliance has been continuous or intermittent;
5. The method(s) used for determining the compliance status of the source, currently and
over the reporting period consistent with the Rules and Regulations; and
6. Such other facts as the Department may require to determine the compliance status of
the source, including but not limited to identifying each deviation that occurred.
…
E. General Condition 34 does not meet federal requirements and must be revised.
General Condition 34 has been revised to read as follows:
18.11.2
Emergency Provision
18.7.1
A. An "emergency" means any situation arising from sudden and reasonably unforeseeable events
beyond the control of the source, including acts of God, which situation requires immediate
corrective action to restore normal operation, and that causes the source to exceed a technology-
based emissions limitation under the Operating Permit, due to unavoidable increases in
emissions attributable to the emergency. An emergency shall not include noncompliance to the
extent caused by improperly designed equipment, lack of preventative maintenance, careless or
improper operation, or operator error.
B. Exceedances of emission limits during emergencies (as defined above) at a facility may be
exempted from being violations provided that:
1. The permittee demonstrates that the event qualifies as an emergency as defined above;
2. The permittee can identify the cause(s) of the emergency;
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Comment/Response Document

3. At the time of the emergency, the permitted facility was being properly operated;
4. During the period of the emergency the permittee took all reasonable steps to minimize
levels of emissions that exceeded the emission standards, or other requirements in the
permit;
5. The permittee submitted notice of the emergency to the Health Department within 2
working days of the time when emission limitations were exceeded due to the emergency.
Such notice shall include those deviations attributable to upset conditions as defined in the
permit, the probable cause of said deviations, and any corrective actions or preventive
measures that were taken;
6. The permittee submitted a written documentation of what was reported in the notice of the
emergency to the Department within 5 working days of the emergency with a certification
signed by a responsible official consistent with Section 18.4.9 of the regulations; and
7. The permittee immediately documented the emergency exceedance in an "Emergency
Log", which shall be maintained for 5 years in a form suitable for inspection upon request
by a representative of the Department.

This provision is in addition to any emergency or upset provision contained in any applicable
requirement. The permittee has the burden of proof to assert and establish that excess emissions
were attributable to an emergency in any enforcement proceeding.

F. There is no condition for records of required monitoring. (beginning on page 10)

The requested language has been added to General Condition 44 as follows:
1.9.1
General Recordkeeping Requirements
18.7.1
The permittee shall keep records of facility-wide operations, activities and materials which 70.6(a)(3)(C)
have the potential to release pollutants into the atmosphere in sufficient detail to show
compliance with permit conditions and to allow the annual calculation of emissions of
regulated pollutants and HAP from each point and fugitive source and activity at the facility.
In addition to the records required in the conditions specific to each emission unit, the
permittee shall maintain records of the following:
A. All reports and notifications submitted to comply with this permit;
B. Results of all required performance testing, monitoring and sampling;
C. Available EDS, SDS and/or other manufacturer supplied contents information relating to
the VOC and HAP contents of materials used at the facility;
D. For air filtration devices required by this permit, the date of filter replacement and the
characteristics of the replacement filter materials;
E. All spills or other mishaps of VOC/HAP materials. The record shall include the date,
time, and quantity (gallons or pounds) of VOC/HAP materials spilled, recovered and the
amount that evaporated to the atmosphere; and
F. Records of required monitoring, including (as a minimum):
1. The date, place as defined in the permit, and time of sampling or measurements;
2. The date(s) analyses were performed;
3. The company or entity that performed the analyses;
4. The analytical techniques or methods used;
5. The results of such analyses; and
6. The operating conditions as existing at the time of sampling or measurement.
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Comment/Response Document
IV. Conclusion (on page 12)
JCDH has made minor revisions to the draft permit. None of these revisions is significant enough to
require that the draft permit be subject to another public comment period.