Environment

The former director of Louisville’s Air Pollution Control District says she believes Metro government should be regulating diesel pollution from a lot owned by pork producer JBS Swift. Lauren Anderson said this week she thinks there’s a valid legal argument to be made for the regulation, but her former agency disagrees.

Swift uses the lot on Cabel Street as a holding area for trucks. There are also refrigerated trailers parked onsite, keeping meat cold before it’s picked up and transported elsewhere. Those run on diesel and are operating 24/7.

The Louisville Metro Board of Zoning Adjustment is currently considering whether to grant a conditional use permit to allow Swift to keep using the site for its trucks, which it has been doing since 2006. But a potential separate issue is what jurisdiction — if any — the Louisville Metro Air Pollution Control District has over the activities at the lot.

Both the APCD and Swift contend the city doesn’t have permitting authority under the federal Clean Air Act. Trucks and trailers count as “mobile sources,” and they’re regulated by the federal government at the time they’re manufactured.

Anderson was the APCD’s director from August 2008 to October 2013, and before that spent five years serving as the Assistant County Attorney representing the District. She thinks there is at least a legal argument to be made for Metro government to take inventory of the Cabel Street lot’s emissions and include them in the permit for Swift’s nearby plant. She testified before BOZA earlier this week.

Federal regulations for non-road engines specifically exclude engines that remain at one location for more than 12 consecutive months. And the law seems to include swapping out one engine for another, like Swift does at Cabel Street:

“Any engine (or engines) that replaces an engine at a location and that is intended to perform the same or similar function as the engine replaced will be included in calculating the consecutive time period.”

“In other words, you can’t get around these requirements, or you should not be able to get around the requirements to quantify your emissions and control them simply by, instead of having something permanent, have things that move around,” Anderson said during her testimony.

No one is clear about how many trailers are usually operating at the lot. An expert who modeled air pollution for Swift used an estimate of 21 refrigerated trailers in his model. Plant manager John Cliff told the Board of Zoning Adjustment that at any time, 25 to 30 might be in operation. A Google Earth view of the lot presented by the Butchertown Neighborhood Association shows 42 trailers in the front — or “active” — part of the lot. And Anderson said when she visited the property during the end of her time as Air Pollution Control District director, she counted 75.

Air Pollution Control District spokesman Tom Nord said the agency has reviewed the Clean Air Act and concluded any local regulation of the Cabel Street lot likely wouldn’t hold up in court.

Anderson said the district’s resistance to further examining whether Swift’s emissions should be inventoried is merely the latest in a pattern of ineffective environmental enforcement against the company.

Swift also has 27 outstanding Notices of Violation for air pollution issues at its plant, dating back to 2011. Anderson said when she left the agency in 2013, the District was on the verge of taking Swift to a rare administrative hearing because it seemed a settlement was unlikely. Nearly two years later, more violations have been issued, but the APCD hasn’t either initiated an administrative hearing or reached a settlement to force Swift to pay a penalty.

Anderson retired in 2013, after a state audit found flaws in the APCD’s air monitoring program. In an interview with WFPL, she questioned the efficacy of the current enforcement actions against Swift, which has operated in Butchertown for decades.

“Obviously the public can’t count on the Air Pollution Control District protecting them if the Air Pollution Control District is doing nothing but issuing them pieces of paper and not following up,” Anderson said. “The Air Pollution Control District apparently has not pushed the issue of trying to get Swift to at least quantify the emissions from Cabel Street, nor has the District moved to actually enforce the notices of violations for the plant that it’s issued.”

Nord said negotiations with Swift over the outstanding violations are ongoing.

“We’re still talking to them, trying to come up with a plan that will reduce the odors and give some relief to the people in that neighborhood,” Nord said. “It’s a fluid situation. We use that tool [administrative hearings] very rarely.”

For now, the next step will probably be a decision on Swift’s Conditional Use Permit for the Cabel Street lot. BOZA has scheduled another hearing on the permit for Oct. 19.

 

*A previous version of this article stated that Anderson resigned from the Air Pollution Control District. She retired.