401 KAR 52:100 - Public, affected state, and US EPA review
RELATES TO: KRS 224.10-100, 224.20-100, 224.20-110, 224.20-120, 40 C.F.R. Part 2, Part 51, Part 70, 42 U.S.C. 7410, 7661-7661f
NECESSITY, FUNCTION, AND CONFORMITY: KRS 224.10-100 authorizes the cabinet to promulgate administrative regulations for the prevention, abatement, and control of air pollution. This administrative regulation establishes the procedures used by the cabinet to provide for the review of federally enforceable permits by the public, affected states, and the U.S. EPA.
Section 1. Applicability. This administrative
regulation shall apply to the permit actions established in
401 KAR 52:020 and
401 KAR 52:030 that require public, affected state, and U.S.
EPA review.
Section 2. Public
Comment Period.
(1) For permit actions that
require public review, the cabinet shall:
(a)
Provide a minimum of thirty (30) days for public comment; and
(b) Prepare a response to the comments
received during the comment period.
(2) The comment period shall:
(a) Begin on the date the public notice is
posted on the cabinet's Web site at https://eec.ky.gov; and
(b) End thirty (30) days after the date the
public notice is posted on the cabinet's Web site at
https://eec.ky.gov.
(3) The cabinet shall consider:
(a) All written comments received during the
public comment period;
(b) Comments
received in alternate format to accommodate persons with disabilities;
and
(c) The permit applicant's
written response concerning the public comments, if received not later than ten
(10) days after the close of the public comment period.
(4) The cabinet shall keep a record of the
commentors and issues raised during the public comment period and shall make
this record available, upon request, to the public and the U.S. EPA.
Section 3. Public Hearing.
(1) A public hearing shall be held if the
cabinet determines that:
(a) On the basis of
written requests received, material issues have been raised concerning the
terms and conditions of the permit; or
(b) The permit action is of significant
interest to the public.
(2) A request for a public hearing shall not
require an extension of the public comment period. The cabinet may allow
additional time after the close of a public hearing for public hearing
participants to submit comments in writing.
(3) If a public hearing is held, the cabinet
shall:
(a) Provide public notice on the
cabinet's Web site at
https://eec.ky.gov, at least thirty (30) days prior to the scheduled
public hearing date; and
(b)
Designate a presiding officer, who shall be responsible for the scheduling and
orderly conduct of the public hearing.
(4) Any person may submit statements or data
during the public hearing concerning the permit action.
(5) The cabinet may:
(a) Set reasonable limits on the time allowed
for oral statements; and
(b)
Require that statements be submitted in writing.
(6) The cabinet shall:
(a) Consider all comments received at the
public hearing, including comments received in alternate format to accommodate
persons with disabilities;
(b) Keep
a record of the participants and issues raised at the public hearing and make
this record available, upon request, to the public and the U.S. EPA;
and
(c) Make available to the public
at a reasonable reproduction cost;
1. A
recording or written transcript of the public hearing; and
2. If requested, a written transcript in
large type or Braille.
Section 4. Public Notice.
(1) The cabinet shall provide public notice
of a public comment period and any scheduled public hearing on the cabinet's
Web site at https://eec.ky.gov. This
shall be the cabinet's consistent method of public notice.
(2) The cabinet may provide additional notice
to the public through other methods, including newspapers, newsletters, and
press releases.
Section
5. Information Included in Public Notice. The public notice shall
include:
(1) The contact name and address of
the Energy and Environment Cabinet, Department for Environmental Protection,
Division for Air Quality;
(2) The
name and address of the permit applicant and, if different, the name and
address of the facility;
(3) A
brief description of the business conducted at the facility and the activity
involved in the permit action;
(4)
A brief description of the comment procedures, including how to request a
public hearing;
(5) The date, time,
and place of the public hearing, if one (1) has been scheduled;
(6) The end date of the public comment
period;
(7) The end date of the
U.S. EPA's review period;
(8) A
reference to the dates of previous public notices relating to the
permit;
(9) A description of any
emission change involved in a permit revision;
(10) For permits subject to review under
401 KAR 51:017, the degree of increment consumption
expected to occur; and
(11) The
name, address, and telephone number where interested persons may obtain:
(a) Copies of the draft permit or permit
revision;
(b) Relevant supporting
material, including permit applications, permits, compliance plans, and
monitoring and compliance certification reports, except for confidential
business information pursuant to 40 C.F.R. Part 2 and
400 KAR 1:060; and
(c) Other materials available to the cabinet
that are relevant to the permit decision.
Section 6. Distribution of Public Notice.
Copies of the public notice shall be distributed as established in this
section.
(1) For permit actions subject to
review under
401
KAR 51:017 or
401
KAR 51:052, the public notice shall be sent to:
(a) The permit applicant;
(b) The administrator of the U.S. EPA,
through the appropriate regional office;
(c) Affected states;
(d) All persons on the mailing list
established in Section 7 of this administrative regulation; and
(e) The officials and agencies having
authority over the area where the source will be located, as follows:
1. Local air pollution control
agencies;
2. The chief executive of
the city and county;
3. Any
comprehensive regional land use planning agency; and
4. Federal land manager or Indian governing
body whose land may be affected by the emissions from the proposed source, as
established in
40 C.F.R.
51.165.
(2) For permit actions at a major source that
are not subject to review under
401
KAR 51:017 or
401
KAR 51:052, the public notice shall be sent to:
(a) The permit applicant;
(b) The administrator of the U.S. EPA,
through the appropriate regional office;
(c) Affected states; and
(d) All persons on the mailing list
established in Section 7 of this administrative regulation.
(3) For permit actions at a
synthetic minor or conditional major source, notice shall be sent to:
(a) The permit applicant;
(b) The administrator of the U.S. EPA,
through the appropriate regional office; and
(c) All persons on the mailing list
established in Section 7 of this administrative regulation.
Section 7. Mailing List.
(1) The cabinet shall compile and maintain a
mailing list of persons who request to be notified of permit actions.
(2) The cabinet shall:
(a) Notify the public of the opportunity to
be on the list on the cabinet's Web site at https://eec.ky.gov; and
(b) Delete from the list persons who fail to
respond to the cabinet's request to show continued interest in receiving
notice.
Section
8. Public Inspection of Documents.
(1) During the public comment period, the
cabinet shall make available for public inspection all information, except that
which is confidential, contained in the:
(a)
Permit application;
(b) Draft
permit; and
(c) Supporting
materials.
(2) The
information shall be made available at:
(a)
The Division for Air Quality, 300 Sower Boulevard, Frankfort, Kentucky 40601;
and
(b) The Division for Air
Quality Regional Office having jurisdiction over the source.
(3) The draft permit shall also be
posted, for the duration of the public comment period, on the cabinet's Web
site at https://eec.ky.gov.
Section 9. Affected States Review.
Except as established in subsection (3) of this section, for permit actions
that require affected state review, the cabinet shall provide the draft permit
or permit revision to affected states at the same time or before notice of the
permit action is provided to the general public.
(1) The cabinet may accept a recommendation
made by an affected state if the recommendation:
(a) Is received during the public comment
period established in Section 2 of this administrative regulation;
(b) Is applicable to the permit action;
and
(c) Does not conflict with the
requirements of Kentucky Revised Statutes or 401 KAR Chapters 50 through
65.
(2) If the cabinet
does not accept a recommendation made by an affected state, the cabinet shall
provide a written notice to the affected state and the U.S. EPA that:
(a) Gives the reason for not accepting the
recommendation; and
(b) Is
submitted to the state no later than the date the proposed permit is submitted
to the U.S. EPA.
(3) For
a minor permit revision at a major source, the cabinet shall:
(a) Provide notice to affected states with a
brief description of the requested revision within five (5) workdays after a
complete permit application is received; and
(b) After submittal of a proposed minor
permit revision to the U.S. EPA:
1. Notify the
affected state and the U.S. EPA if a recommendation is not accepted;
and
2. Provide the reason for not
accepting the recommendation.
Section 10. U.S. EPA Review.
(1) For permit actions that require U.S. EPA
review, the cabinet shall not issue a final permit, permit revision, or permit
renewal until the U.S. EPA:
(a) Has had an
opportunity to review and comment on the permit action and has not objected to
issuance of the permit within the forty-five (45) day period for an objection;
or
(b) Waives its right of
review.
(2) The cabinet
shall provide a statement that sets forth the legal and factual basis for the
draft permit conditions, including references to applicable statutory or
regulatory provisions, and shall send the statement to the U.S. EPA and to any
other person who requests it.
(3)
The cabinet shall provide the U.S. EPA with copies of the:
(a) Permit application, including
attachments;
(b) Other
permit-related information such as public comments, settlements, and decisions
from permit appeals;
(c) Proposed
permit or proposed permit revision; and
(d) Final permit or final permit
revision.
(4) With prior
U.S. EPA approval, the cabinet may submit a summary form and the relevant
portion of the permit application and compliance plan in lieu of the complete
application and compliance plan.
(5) With prior U.S. EPA approval, the cabinet
may submit the draft permit or permit revision in lieu of a proposed permit or
permit revision. For these submittals:
(a) The
cabinet shall provide the U.S. EPA with:
1.
The permit application, draft permit or permit revision, and supporting
information no later than the first day of the public comment period;
and
2. All timely submitted public
comments after the close of the public comment period;
(b) The draft permit shall become the final
permit or permit revision at the end of the U.S. EPA's forty-five (45) day
review, unless:
1. A substantial change is
made in the permit or permit revision following the public comment period;
or
2. The U.S. EPA files an
objection to the permit or permit revision.
(c) If a substantial change is made in the
draft permit or permit revision, the cabinet shall make appropriate revisions
and submit a proposed permit or permit revision to the U.S. EPA for another
forty-five (45) day review period.
(6) If the U.S. EPA objects to the issuance
of a permit or permit revision, the U.S. EPA shall:
(a) File a statement of objection, in
writing, within forty-five (45) days after receiving the permit or permit
revision and supporting information;
(b) Include in the statement the reasons for
the objection and a description of the permit changes needed to resolve the
objection; and
(c) Provide the
permit applicant with a copy of the filed objection.
(7) After an objection is filed, the cabinet
shall make the appropriate revisions and submit a new proposed permit or permit
revision to the U.S. EPA within ninety (90) days after the objection is
filed.
(8) If the cabinet does not
submit a revised proposed permit or permit revision within ninety (90) days
after an objection is filed, the U.S. EPA will issue or deny the
permit.
(9) If the U.S. EPA does
not object to the issuance of a permit, a citizen may petition the U.S. EPA to
file an objection.
(a) The U.S. EPA will file
the citizen objection if the petition is:
1.
Made within sixty (60) days following the end of the U.S. EPA's forty-five (45)
day review period; and
2. Based
only on objections raised with reasonable specificity during the public comment
period, unless:
a. The petitioner can
demonstrate that it was impractical to raise the objection within the public
comment period, or
b. The grounds
for objection arose after the end of the public comment period.
(b) If the U.S. EPA
objects to a permit action as a result of a petition filed, the cabinet shall
not issue the permit until the U.S. EPA objection has been resolved, except
that a petition for review does not stay the effectiveness of a permit or its
requirements if the permit was issued after the end of the forty-five (45) day
review period and prior to the U.S. EPA objection.
(c) If the cabinet issues a permit or permit
revision prior to receipt of a U.S. EPA objection:
1. The U.S. EPA will modify, terminate, or
revoke the permit consistent with the procedures in
40 C.F.R.
70.7(g)(4) and
(5);
2. The cabinet shall, upon receipt of the
U.S. EPA objection, issue a revised permit that satisfies the U.S. EPA
objection; and
3. The source shall
not be in violation for failing to submit a complete and timely
application.
(10) To the extent possible, all information
provided to the U.S. EPA shall be submitted in an electronic format that is
compatible with the U.S. EPA's national database management system.
(11) The cabinet shall keep records of all
information submitted to the U.S. EPA for a period of at least five (5)
years.
(12)
(a) If the cabinet is authorized by the
source to submit confidential information to the U.S. EPA, a claim of
confidentiality shall accompany the relevant information.
(b) If the cabinet is not authorized by the
source to submit confidential information to the U.S. EPA, the source shall
submit the confidential information directly to the U.S. EPA with a claim of
confidentiality.
Notes
STATUTORY AUTHORITY: KRS 224.10-100, 224.20-100, 224.20-110, 224.20-120, 42 U.S.C. 7410, 7661-7661f
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