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Kentucky Resources Council, PO Box 1070, Frankfort, KY 40602 Phone [502] 875-2428

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

State Air NESHAP Regulations Amended To Address Enforceability Concern  Posted: August 24, 2007

July 2, 2007

Gerry Ennis
Environmental Technologist III
Division for Air Quality
803 Schenkel Lane
Frankfort, Kentucky 40601
gerry.ennis@ky.gov

Re: Proposed Amendments to Air Quality Regulations
401 KAR 57:002, 58:025, 60:005, 60:670 and 63:002

Dear Gerry:

These comments are submitted on behalf of the Board and membership of the Kentucky Resources Council, Inc, a non-profit environmental advocacy organization providing legal and strategic assistance without charge to low-income individual, community organizations and local governments on a range of environmental health and environmental justice matters.

KRC has reviewed the proposed amendments to the above-referenced regulations, and is concerned that as a matter of law, the change from the description of the regulatory action from one of “incorporation by reference” to “establishes” is inaccurate and could compromise the agency’s ability to enforce the standards.

The NESHAPs referenced in the regulations were not “established” by the Cabinet’s action. They were promulgated by EPA, and are required to be adopted by state regulation for states wishing to manage the federal NESHAP program. This much is clear from 40 CFR 51.230 “Requirements for all plans,” which provides in relevant part that: Each plan must show that the State has legal authority to carry out the plan, including authority to: (a) Adopt emission standards and limitations and any other measures necessary for attainment and maintenance of national standards. (b) Enforce applicable laws, regulations, and standards, and seek injunctive relief. Id. (Emphasis added).

In order to assure that there is no ambiguity in the regulation and that the requirements of the federal regulations are directly enforceable by Kentucky for all covered sources, the word “establishes” should be replaced with “adopts.”

Thank you in advance for your consideration of this concern.

Cordially,
Tom FitzGerald
Director

cc: Kay Prince, USEPA Region IV


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