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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

Deletion of state air toxics regulation from Kentucky's Clean Air Act SIP opposed  Posted: November 30, 2007

November 29, 2007

Sean Lakeman
Regulatory Development Section
Air Planning Branch
Air, Pesticides & Toxics Mgt. Division
USEPA Region 4
61 Forsyth St. SW
Atlanta, GA 30303-8960
(404) 562-9043
lakeman.sean@epa.gov

Re: 72 Federal Register 61087
Approval and Promulgation of Implementations Plans Kentucky: Approval of Revisions to the State Implementation Plan

Dear Mr. Lakeman:

These comments are submitted on behalf of the Board and membership of the Kentucky Resources Council, Inc., and on behalf of those individual whom the Council represents regarding air quality matters within the Commonwealth of Kentucky. KRC is a non-profit environmental advocacy organization providing legal, strategic and technical assistance to low-income individuals, community groups and local governments concerning air, land and water pollution, energy and utility policy, and land use and development matters. KRC and its membership, and clients, including but not limited to individuals residing in Fulton and Hickman Counties who currently have on appeal to the Franklin Circuit Court a case involving the proper interpretation and application of 401 KAR 63:020, are and will be adversely affected and aggrieved by the proposed removal of this regulation from the Kentucky State Implementation Plan.

The removal of 401 KAR 63:020 from the Kentucky State Implementation Plan appears to be grounded in a misunderstanding by EPA or a misstatement by the Commonwealth of the scope of that regulation. 401 KAR 63:020 is not limited in scope to antimony, bismuth, lead, silica, tin and compounds of such materials, as indicated in 72 FR 61088, but is instead a narrative backstop regulation broadly applicable to any matter emitted in such quantity or such duration as to be potentially hazardous.

The regulation, by its very terms, is applicable to the six criteria pollutants in those instances where the emission of those pollutants is not otherwise addressed by regulation, such as instances where such emissions of particulates, SO2, NOx, ozone or CO come from a source which is classified as “minor” but has significant localized impacts. “Potentially hazardous matter or toxic substances” means matter which may be harmful to the health and welfare of humans, animals, and plants, including, but not limited to, antimony, arsenic, bismuth, lead, silica, tin, and compounds of such materials.

The regulation has been utilized in many instances during the years that it has been contained with the approved SIP, as a risk-based screening tool for a number of potentially toxic air emissions, and has been the authority under which the state has both required modeling of pollutants and imposed permit conditions for such emissions, including volatile organic compounds that are both potential air toxics and are criteria pollutant ozone precursors. Additionally, in those instances where emissions approved under permits are found to cause or potentially cause such impacts, the regulation has been utilized to require further reductions beyond those categorically applicable to emissions, including criteria pollutant emissions.

EPA should be aware that the Kentucky Division for Air Quality had previously proposed to repeal this regulation and to replace it with a “safety net” regulation addressing toxic air emissions, but that proposal has been withdrawn.

Removal of the regulation from the state SIP would in fact remove one regulatory tool that the Commonwealth has and has utilized to control criteria pollutants, and is not authorized under Section 110(k)(6). 401 KAR 63:020 is related to attainment and maintenance of the SIP since it has been the regulatory mechanism for requiring reductions of emission of criteria pollutants. EPA should withdraw the proposed rule, and should request of the Commonwealth documentation of all instances in which emission or operating conditions or limits have been imposed, and in which an applicant has accepted limits to avoid imposition of conditions, arising from the application of 401 KAR 63:020. If such application has, as KRC believes it has, resulted in control of criteria pollutants from major or area sources, then unless the Commonwealth submits a formal SIP revision providing offsetting reductions and demonstrates that removal of this regulation will not result in or interfere with continued maintenance and achievement of such reductions, the removal of 401 KAR 63:020 is inappropriate and cannot be undertaken by EPA.

Thank you for allowing these comments to be transmitted slightly out of time. The comments are endorsed by the Cumberland Chapter of the Sierra Club, as indicated by Ms. Bennett.

Cordially,
Tom FitzGerald
Director


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