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PO Box 1070, Frankfort, KY 40602  Phone 502.875.2428, Fax 502.875.2845

KRC Comments On Credible Evidence Rule  Posted: January 30, 2006
Kentucky Resources Council, Inc.
Post Office Box 1070
Frankfort, Kentucky 40602
(502) 875-2428 phone
(502) 875-2845 fax
e-mail: fitzKRC@aol.com
www.kyrc.org

January 30, 2006

Chris Hall, Environmental Technologist I
Division for Air Quality
803 Schenkel Lane
Frankfort, Kentucky 40601

Re: Credible Evidence Rule, 401 KAR 50:057

Dear Chris:

These comments are submitted concerning the proposed regulation 401 KAR 50:057, incorporating the “credible evidence” rule finalized by EPA on February 24. 1997 into the State Implementation Plan.

In concept, KRC supports incorporation of provisions assuring that compliance and enforcement actions can be based on any credible evidence rather than solely on the basis of reference test methods. As the agency is aware, the Congress specifically adopted revisions to Section 113(e)(1) of the Clean Air Act in the 1990 Amendments to overrule the Kaiser Steel decision and to assure that the agency, as well as the source and the public, will be able to use any credible evidence “including evidence other than the applicable test method” in determining compliance.

KRC is concerned, however, that in certain areas the proposed regulation should be clarified in order to assure that it fully reflects the intent of Congress and the requirements of the Credible Evidence Rule, 62 Fed. Reg. 8313 (February 24, 1997).

Specific comments follow.

Section 1

The language of Section 1 is intended to incorporate provisions comparable to 40 CFR 52.33, which provides in relevant part that:

Sec. 52.33 Compliance certifications.

(a) For the purpose of submitting compliance certifications, nothing in this part or in a plan promulgated by the Administrator shall preclude the use, including the exclusive use, of any credible evidence or information, relevant to whether a source would have been in compliance with applicable requirements if the appropriate performance or compliance test had been performed.

The Kentucky proposal differs in that it does not include specific assurance that compliance certification can be based exclusively on the use of credible evidence or information, and also does not specifically refer to the regulations in the SIP, instead using a more generic “provision.” In order to assure that there is no question that this regulation is intended to fully incorporate the credible evidence rule into the SIP, KRC recommends that Section 1 be amended to read:

Section 1. Compliance Certification. For the purposes of submitting compliance certifications, no regulation contained in the State Implementation Plan and no other provision of the Plan shall preclude the use, including the exclusive use, of any credible evidence or information relevant to whether a source would have been in compliance with applicable requirements if the appropriate performance or compliance test had been performed.

Section 2

KRC suggests that, in order to more closely parallel the federal counterpart and to assure that the concept of use of credible evidence to prosecute and to defend allegations of noncompliance with standards, the proposed regulation be clarified to read:

For the purpose of submitting compliance certifications or establishing whether or not a person has violated or is in violation of any standard in this part, no regulation contained in the State Implementation Plan and no other provision of the Plan shall preclude the use, including the exclusive use, of any credible evidence or information, relevant to whether a source would have been in compliance with applicable requirements if the appropriate performance or compliance test or procedure had been performed.

Finally, KRC requests assurance from the Cabinet that the agency agrees that the state adoption of counterpart “credible evidence” regulations is intended to allow use of any credible evidence by sources and the public to assess a source’s compliance status and to respond to noncompliance, as intended by Congress and EPA. 62 Fed. Reg. 8315.

Thank you very much in advance for your consideration of these comments.

Cordially,
Tom FitzGerald
Director


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