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 agencys ability to enforce the standards.
The NESHAPs referenced in the regulations were not established by the Cabinets 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.
cc: Kay Prince, USEPA Region IV