1 

# Section 110(a) Infrastructure Requirements

Emission limits and other control measures: Section 110(a)(2)(A) of th e CAA requires SIPs to

include enforceable emission limits and other co ntrol measures, means or techniques, schedules or compliance and other related matters.

Kentucky Authority:

• Kentucky Revised Statute Chapter 224 S ection 10-100 (KRS 224.10-100) provides the Energy and Environment Cabinet the authority to administer all rules, regulations and orders promulgated under Chapter 224, and to provide for the prevention, abatement, and control of all water, la nd, and air pollution.

Chapter 50 General Administrative Procedures

.

• 401 KAR 50:010. Definitions for 401 KAR Chapter 50 . This administrative regulation defines the terms used in 401 KAR Chapter 50;

• 401 KAR 50:012. General application . This administrative regul ation provides guidelines by which all administrative regulations of 401 KAR Chapters 50 to 65, are to be understood;

• 401 KAR 50:015. Documents incorporated by reference . This administrative regulation provides for the incorporation by reference of documents referred to within these administrative regulations;

• 401 KAR 50:020. Air quality control regions . This administrative regulation provides for the designation and classification of air quality control regions;

• 401 KAR 50:025. Classification of counties . This administrative regulation provides for the classification of counties with respect to various pollutants;

• 401 KAR 50:040. Air quality models . This administrative regulation specifies general provisions for the use of air quality models;

• 401 KAR 50:042. Good engineering practice stack height . This administrative regulation defines good engineering practice stack height which shall be used in establishing emissions limitations;

• 401 KAR 50:045. Performance tests . This administrative regulation establishes requirements for performance tests;

• 401 KAR 50:047. Test procedures fo r capture efficiency . This administrative regulation provides capture efficiency test proc edures for volatile organic compounds;

• 401 KAR 50:050. Monitoring . This administrative regulation establishes requirements for stack gas monitoring, ambient air monitoring , and recording and reporting requirements as related to monitoring data;

• 401 KAR 50:055. General compliance requirements . This administrative regulation establishes requirements for compliance during shutdown and malfunctions; establishes requirements for demonstrating compliance with standards; establishes requirements for compliance when a source is relocated within the Commonwealth of Kentucky; and other general compliance requirements;

• 401 KAR 50:060. Enforcement . This administrative regulat ion provides for enforcement

of the terms and conditions of permits and compliance schedules;2 • 401 KAR 50:065. Conformity of general federal actions . The federal regulation incorporated by reference in this administ rative regulation provides for determining the conformity of general federal actions to the SIP. 40 CFR 51.850 to 51.860 require that the applicable federal agencies implement the c onformity determination in consultation with agencies of the Common wealth of Kentucky;

• 401 KAR 50:066. Conformity of transportation plans, programs, and projects . This administrative regulation adopts the Federal Tr ansportation Conformity Rules as codified in 40 C.F.R. Part 93 Subpart A and incorp orates a guidance document that establishes criteria and procedures for the interagency consultation process us ed in demonstrating conformity of federal transportation plans to the Kentucky State Implementation Plan.

Chapter 51 Attainment and Maintenance of the Na tional Ambient Air Quality Standards

• 401 KAR 51:001. Definitions for 401 KAR Chapter 51 . This administrative regulation defines the terms used in 401 KAR Chapter 51. The definitions contained in this administrative regulation are neither more st ringent nor otherwise different than the corresponding federal definitions;

• 401 KAR 51:005. Purpose and General Provisions . This administrative regulation establishes the general provisions as related to new sources with respect to the prevention of significant deterioration of air quality and construction of stationary sources impacting on nonattainment areas;

• 401 KAR 51:010. Attainment Status Designations . This administrative regulation designates the status of all areas of the Co mmonwealth of Kentucky with regard to

attainment of the ambien t air quality standards;

• 401 KAR 51:017. Prevention of significant deterioration of air quality . This administrative regulation applie s to the construction of any new major stationary source or any project at an existing major stationary source in an area designated as attainment or unclassifiable;

• 401 KAR 51:052. Review of new sources in or impacting upon nonattainment areas

. This administrative regulation establis hes requirements for the construction or modification of stationary sources within, or impacting upon, areas where the national ambient air quality standard s have not been attained;

• 401 KAR 51:150. NOx requirements for stationary internal combustion engines

. Pursuant to the federal NOx SIP Call, this administrative regulation provides for the regional control of NOx emissions by estab lishing requirements for large stationary internal combustion engines;

• 401 KAR 51:160. NOx requirements for large u tility and industrial boilers . This administrative regulation establishes requireme nts for the control of NOx emissions from large boilers and turbines used in power plan ts and other industrial applications, pursuant to the federal mandate published under the NOx SIP Call;

• 401 KAR 51:170. NOx requirements for cement kilns . This administrative regulation provides for the regional cont rol of NOx emissions from portland cement manufacturing plants pursuant to the federal ma ndate published under the NOx SIP Call;

• 401 KAR 51:180. NOx credits for early reduction and emergency . This administrative regulation provides for the distribution of NOx allowances from a compliance supplement pool allocated to Kentucky by th e U.S. EPA for sources that reduce NOx emissions before the compliance deadline of the federal mandate published under the3 NOx SIP Call. It also provides for setting asid e unused credits to assist sources that are unable to meet the compliance deadline;

• 401 KAR 51:190. Banking and trading NOx allowances . This administrative regulation incorporates by reference the federal regulat ion that establishes a program for banking and trading of emission allowances to re duce NOx emissions under the federal NOx SIP Call;

• 401 KAR 51:195. NOx opt-in provisions . The federal regulation incorporated by reference in this administrative regulation esta blishes provisions for individual sources to opt into the NOx Budget Trading Program;

• 401 KAR 51:210. CAIR NOx annual trading program . This administrative regulation establishes requirements for the control of NOx emissions from large boilers and turbines used in power plants, pursuant to the fe deral mandate published under the Clean Air Interstate Rule (CAIR), 40 C.F.R. 96.101 to 96.188;

• 401 KAR 51:220. CAIR NOx ozone season trading program . This administrative regulation establishes requirements for the c ontrol of NOx emissions from large boilers and turbines used in power plants and other industrial applications, pursuant to the federal mandate published under the Clean Air Inte rstate Rule (CAIR), 40 C.F.R. 96.301 to 96.388;

• 401 KAR 51:230. CAIR SO 2 trading program . This administrative regulation establishes the provisions of the CAIR SO 2 Trading Program as codifi ed at 40 C.F.R. 96.201 to 96.288 for applicable sources located in the Commonwealth of Kentucky.

Chapter 52 Permits, Registra tions, and Prohibitory Rules.

• 401 KAR 52:001. Definitions for 401 KAR Chapter 52 . This administrative regulation defines the terms used in 401 KAR Chapter 52;

• 401 KAR 52:020. Title V permits. This administrative regula tion establishes requirements

for air contaminant sources located in Kent ucky that are required to obtain a Title V permit;

• 401 KAR 52:030. Federally-enforceable permits for nonmajor sources. This administrative regulation establishes requireme nts for air contaminant sources located in Kentucky that accept emission limitations to avoid the New Source Review requirements

under Title I of the Clean Air Act or the Operating Permit Program requirements under Title V of the Clean Air Act;

• 401 KAR 52:040. State-Origin Permits . This administrative regulation establishes requirements for minor sources whose perm its are not required to be federally enforceable;

• 401 KAR 52:050. Permit application forms . This administrative regulation incorporates by reference the application forms used to permit air contaminant sources in Kentucky;

• 401 KAR 52:060. Acid rain permits . This administrative re gulation incorporates by reference the federal acid rain provisions as codified at 40 CFR Parts 72 to 78;

• 401 KAR 52:070. Registration of designated sources. This administrative regulation establishes the procedure for the registrati on of designated air contaminant sources in Kentucky;

• 401 KAR 52:090. Prohibitory rule for hot mix asphalt plants . This administrative regulation establishes production limits for hot mix asphalt plants, which keeps their4 emissions below the major source threshold and avoids the necessity of having to obtain a Title V or conditional major permit;

• 401 KAR 52:100. Public, affected st ate and U.S. EPA review . 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;

• 401 KAR 53:005. General provisions . This administrative regulation is to provide for the establishment of general provisions, definitions and time schedules as they pertain to this chapter;

• 401 KAR 53:010. Ambient air quality standards . This administrative regulation is to fix ambient air quality standards necessary for the protection of the public health, the general welfare, and the property a nd people in this Commonwealth.

Ambient air quality monitoring/data system: Section 110(a)(2)(B) of the CAA requires SIPs to include provisions to provide for establishment and operation of ambient air quality monitors, collecting and analyzing ambient ai r quality data, and presentation of these data available to EPA
upon request.

Kentucky Authority:

• KRS 224.10-100 (22) requires the installation, maintenance, and use of equipment, devices, or test and methodologi es to monitor the nature and amount of any substance emitted into the ambient air and to pr ovide the information to the cabinet;

• 401 KAR 50:050. Monitoring . This administrative regulation establishes requirements for stack gas monitoring, ambient air monitoring , and recording and reporting requirements as related to monitoring data;

• 401 KAR 51:017. Prevention of significant deterioration of air quality . This administrative regulation applie s to the construction of any new major stationary source or any project at an existing major stationary source in an area designated as attainment or unclassifiable;

• 401 KAR 51:052. Review of new sources in or impacting upon nonattainment areas

. This administrative regulation establis hes requirements for the construction or modification of stationary sources within, or impacting upon, areas where the national ambient air quality standard s have not been attained;

• 401 KAR 53:005. General provisions . This administrative regul ation is to provide for the establishment of general provisions, definitions and time schedules as they pertain to this chapter;

• 401 KAR 53:010. Ambient Air Quality Standards . This administrative regulation establishes ambient air quality standards neces sary for the protection of the public health, welfare, and property.

Program for enforcement of control measures: Section 110(a)(2)(C) of the CAA requires States to include a program that provides for en forcement of all SIP measures and the regulation

of construction of new or modified stationa ry sources to meet prevention of significant deterioration (PSD) and nonattainment new source review (NSR) requirements.5 Kentucky Authority:

• 401 KAR 50:060. Enforcement . This administrative regulat ion provides for enforcement of the terms and conditions of permits and compliance schedules;

• 401 KAR 51:017. Prevention of Significant Deteri oration of Air Quality. This administrative regulation applie s to the construction of any new major stationary source or any project at an existing major stationary source in an area designated as attainment or unclassifiable;

• 401 KAR 51:052. Review of new sources in or impacting upon nonattainment areas

. This administrative regulation establis hes requirements for the construction or modification of stationary sources within, or impacting upon, areas where the national ambient air quality standard s have not been attained;

• 401 KAR 51:001, 51:017 and 51:052. These regu lations were amended to adopt federal revisions to the lists of major sources re lating to PSD, NSR and Title V applicability, removed the existing requirements for clea n units and pollution c ontrol projects, and added nitrogen oxides as a precursor to ozone formation. These amendments became effective in Kentucky on February 5, 2010, were submitted to EPA on February 22, 2010, and were officially approved to the SIP in 75 FR 55988, on September 15, 2010;

• 401 KAR 51:001 and 52:001. These regulations were amended to include federal definition changes sign ificant to Kentucky’s permitting by establishing thresholds for the regulation and permitting of greenhouse gas emissions. These amendments became effective in Kentucky on January 3, 2011, we re submitted to EPA on December 13, 2010 and were officially approved to the SIP in 75 FR 81868, December 29, 2010;

• 401 KAR 51:001, 51:017 and 51:052. These regulati ons were amended to adopt revisions to the NSR/PSD programs consistent with the PM 2.5 NAAQS implementation. The Division filed the proposed administrative re gulation amendments with the Legislative Research Commission June 14, 2012 and EPA on June 19, 2012.

Interstate transport: Section 110(a)(2)(D) of the CAA re quires SIPs to include provisions prohibiting any source of other type of emi ssions activity in one st ate from contributing significantly to nonattainm ent of the NAAQS in another State. States are required to submit 110(a)(2)(D)(i) plans to demonstrate co mpliance with these provisions.

Kentucky Authority:

• Finding regarding section 110(a)(2)(D)(i) promulgated submitted on 12/10/07 for the

1997 8-hour ozone and PM 2.5 National Ambient Air Quality Standards;

• Kentucky submitted the 110(a)(1) plan on 12/7/07 for the 1997 8-hour ozone and PM 2.5 NAAQS;

• Kentucky’s regulations in response to the Clean Air Interstate Rule (CAIR) were approved 10/4/07 (72 FR 56623);

• The Final Regional Haze SIP was submitted to U.S. EPA on 6/25/08, and EPA published a limited approval and limited disapproval on March 30, 2012 effective April 30, 2012;

• The Final 8-Hour Ozone Attainment Demons tration for Boone, Campbell, and Kenton counties, Kentucky, was submitted to U.S. EPA on 12/07/07;

• The Final PM 2.5 Attainment Demonstration for Jefferson, Bullitt, Boone, Campbell, Kenton, Boyd, and a portion of Lawrence counties, Kentucky, was submitted to U.S. EPA on 12/03/08;6 • 401 KAR 51:010. Attainment Status Designations . This administrative regulation designates the status of all areas of the Co mmonwealth of Kentucky with regard to

attainment of the ambien t air quality standards;

• 401 KAR 51:017. Prevention of significant deterioration of air quality . This administrative regulation applie s to the construction of any new major stationary source or any project at an existing major stationary source in an area designated as attainment or unclassifiable;

• Regulation 401 KAR 51:052. Review of new sources in or impacting upon nonattainment

areas, Section 1 applies to a new major stationary source or project that is a major modification at an existing major source and locates in or impacts upon an area designated nonattainment under 42 U.S.C. 7407(d)(1)(A)(i);

• 401 KAR 52:100. Public, affected state, and U.S. EPA review Section 6 requires that public notice to permit actions shall be provided to affected states.

Adequate resources: Section 110(a)(2)(E) of the CAA requires states to provide for adequate personnel, funding and legal author ity under State law to carry out its SIP and related issues, and that the state complies with the requirement s state boards under section 7428, State Boards.

Kentucky Authority:

• KRS 224.10-100. Powers and Duties of the Cabinet , provides for authority under State law to carry out its SIP and related issues;

• KRS 224.10-100. Powers and Duties of the Cabinet , Section (11) provides for the authority to accept, receive, and administer grants or other fu nds or gifts from public and private agencies including the federal governme nt for the purpose of carrying out any of the functions of the cabinet;

• KRS 224.10-020, Departments within the cabinet – Offices and divisions within the departments – Appointments, describes who is authorized in the Commonwealth to approve Air permits and enforcemen t orders and appeals thereof;

• 401 KAR 50:038. Air Emissions Fee. This administrative regulation provides for the assessment of fees necessary to fund the state Title V permit program;

• KRS 11A.020. Public servant prohibited from ce rtain conduct—Exception—Disclosure of personal or private interest , requires adequate disclosure of any potential conflicts of interest;

• KRS 11A.030 Considerations in determination to absta in from action on official decision – Advisory opinion , proscribes guidelines for determin ing whether to abstain from action

on an official decision because of a possible conflict of interest;

• KRS 11A.040 Acts prohibited for public servant or officer – Exception.

Stationary source monitoring system: Section 110(a)(2)(F) of th e CAA requires States to establish a system to monitor emissions from sta tionary sources and to submit periodic emissions
reports.

Kentucky Authority:

• Chapter 50 General Administrative Procedures ;7 • 401 KAR 50:050 Monitoring , Section 1 Monitoring Record s and Reporting establishes the requirements for the instal lation, use, and maintenance of stack gas and ambient air monitoring equipment;

• 401 KAR 50:055 General Compliance Requirements , Section 1 Emission During Shut

Down Malfunction.

Emergency power: Section 110(a)(2)(G) of the CAA requires States to provide for authority to address activities causing imminent and substan tial endangerment to p ublic health, including contingency plans to implement the emerge ncy episode provisions in their SIPs.

Kentucky Authority:

• Chapter 55 Emergency Episodes

.

• 401 KAR 55:005. Significant Harm Criteria , Section 1 Purpose defines those levels of pollutant concentration which must be prevente d in order to avoid significant harm to the health of persons;

• 401 KAR 55:010. Episodic Criteria . The administrative regulat ion defines those levels of pollutant concentrations which justify th e proclamation of an air pollution alert, air pollution warning, an air pollution emergency;

• 401 KAR 55:015. Episode Declaration . This administrative re gulation provides for the curtailment or reduction of pr ocesses or operations which em it an air contaminant or an air contaminant precursor whose criteria has be en reached and are located in the affected areas for which an episode level has been declared;

• All of Kentucky is considered a Priority III Area, and therefore no emergency episode plan for PM 2.5 is required;

• An emergency episode was already included for the 1-hour ozone standard and would

suffice for the 8-hour ozone standard.

Future SIP revisions: Section 110(a)(2)(H) of the CAA require s States to have the authority to revise their SIPs in response to changes in the NAAQS, availa bility of improved methods for attaining the NAAQS, or in response to an EPA findi ng that the SIP is substantially inadequate.

Kentucky Authority:

• Chapter 53 Ambient Air Quality

.

• 401 KAR 53:005. General Provisions;

• 401 KAR 53:010. Ambient Air Quality Standards . This administrative regulation is to fix ambient air quality standards nece ssary for the protection of th e public health, the general welfare, and the property a nd people in this Commonwealth;

• 401 KAR 51:010. Attainment Status Designations . This administrative regulation contains provisions for the cabinet to revi ew applicable data and submit to U.S. EPA

revisions to the attainme nt-nonattainment list pursuan t to 42 U.S.C. 7407.

Consultation with government officials: Section 110(a)(2)(J) of the CAA requires States to provide a process for consultation with local governments and Federal Land Managers carrying out NAAQS implementation requirements pursuant to CAA Section 121 relati ng to consultation.8 Kentucky Authority:

• 401 KAR 50:055. General compliance requirements . This administrative regulation establishes requirements for compliance during shutdown and malfunctions; establishes requirements for demonstrating compliance with standards; establishes requirements for compliance when a source is relocated within the Commonwealth of Kentucky; and other general compliance requirements;

• 401 KAR 50:060. Enforcement . This administrative regulation provides for enforcement

of the terms and conditions of permits and compliance schedules;

• 401 KAR 50:065. Conformity of general federal actions . The federal regulation incorporated by reference in this administ rative regulation provides for determining the conformity of general federal actions to the State Implementation Plan (SIP). 40 CFR 51.850 to 51.860 require that the applicable fe deral agencies implement the conformity determination in consultation with agen cies of the Commonwealth of Kentucky;

• 401 KAR 50:060. Enforcement . This administrative regulation provides for enforcement of the terms and conditions of permits and compliance schedules;

• 401 KAR 50:066. Conformity of Transportation Plans, Programs, and Projects. This administrative regulation establishes criter ia and procedures for the interagency consultation process used in demonstrating c onformity of federal transportation plans to the SIP;

• 401 KAR 51:017. Prevention of Significant Deterioration of Air Quality. This administrative regulation applie s to the construction of any new major stationary source or any project at an existing major stationary source in an area designated as attainment or unclassifiable;

• 401 KAR 51:052. Review of new sources in or impacting upon nonattainment areas

. This administrative regulation establis hes requirements for the construction or modification of stationary sources within, or impacting upon, areas where the national ambient air quality standard s have not been attained;

• 401 KAR 51:001, 51:017 and 51:052. These regul ations were amended to adopt federal revisions to the lists of major sources re lating to PSD, NSR and Title V applicability, removed the existing requirements for clean units and pollution control projects, and added nitrogen oxides as a precursor to ozone formati on. These amendments became effective in Kentucky on February 5, 2010, were submitted to EPA on February 22, 2010, and were officially approved to the SIP in 75 FR 55988, on September 15, 2010;

• 401 KAR 51:001 and 52:001. These regulations were amended to include federal definition changes significant to Kentucky’s permitting by establishing thresholds for the regulation and permitting of greenhouse gas emissions. These amendments became effective in Kentucky on January 3, 2011, we re submitted to EPA on December 13, 2010 and were officially approved to the SIP in 75 FR 81868, December 29, 2010;

• 401 KAR 51:001, 51:017 and 51:052. These regulati ons were amended to adopt revisions to the NSR/PSD programs consistent with the PM 2.5 NAAQS implementation. The Division filed the proposed administrative re gulation amendments with the Legislative Research Commission June 14, 2012 and EPA on June 19, 2012;

• KAR 52:100. Public, Affected State, and U.S. EPA Review

. 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.9 Public notification: Section 110(a)(2)(J) of the CAA further requires States to notify the public if NAAQS are exceeded in an area and to enhance public awareness of meas ure that can be taken to prevent exceedances.

Kentucky Authority:

• 401 KAR 51:001. Definitions for 401 KAR Chapter 51 . This administrative regulation defines the terms used in 401 KAR Chapter 51. The definitions contained in this administrative regulation are neither more st ringent nor otherwise different than the corresponding federal definitions;

• 401 KAR 51:005. Purpose and General Provisions . This administrative regulation establishes the general provisions as related to new sources with respect to the prevention of significant deterioration of air quality and construction of stationary sources impacting on nonattainment areas;

• 401 KAR 51:010. Attainment Status Designations . This administrative regulation designates the status of all areas of the Co mmonwealth of Kentucky with regard to

attainment of the ambien t air quality standards;

• 401 KAR 51:017. Prevention of significant deterioration of air quality . This administrative regulation applie s to the construction of any new major stationary source or any project at an existing major stationary source in an area designated as attainment or unclassifiable;

• 401 KAR 51:052. Review of new sources in or impacting upon nonattainment areas

. This administrative regulation establis hes requirements for the construction or modification of stationary sources within, or impacting upon, areas where the national ambient air quality standard s have not been attained;

• 401 KAR 51:150. NOx requirements for stationary internal combustion engines

. Pursuant to the federal NOx SIP Call, this administrative regulation provides for the regional control of NOx emissions by estab lishing requirements for large stationary internal combustion engines;

• 401 KAR 51:160. NOx requirements for large u tility and industrial boilers . This administrative regulation establishes requireme nts for the control of NOx emissions from large boilers and turbines used in power plan ts and other industrial applications, pursuant to the federal mandate published under the NOx SIP Call;

• 401 KAR 51:170. NOx requirements for cement kilns . This administrative regulation provides for the regional cont rol of NOx emissions from portland cement manufacturing plants pursuant to the federal ma ndate published under the NOx SIP Call;

• 401 KAR 51:180. NOx credits for early reduction and emergency . This administrative regulation provides for the distribution of NOx allowances from a compliance supplement pool allocated to Kentucky by th e U.S. EPA for sources that reduce NOx emissions before the compliance deadline of the federal mandate published under the NOx SIP Call. It also provides for setting asid e unused credits to assist sources that are unable to meet the compliance deadline;

• 401 KAR 51:190. Banking and trading NOx allowances . This administrative regulation incorporates by reference the federal regulat ion that establishes a program for banking10 and trading of emission allowances to re duce NOx emissions under the federal NOx SIP Call;

• 401 KAR 51:195. NOx opt-in provisions . The federal regulation incorporated by reference in this administrative regulation esta blishes provisions for individual sources to opt into the NOx Budget Trading Program;

• 401 KAR 51:210. CAIR NOx annual trading program . This administrative regulation establishes requirements for the control of NOx emissions from large boilers and turbines used in power plants, pursuant to the fe deral mandate published under the Clean Air Interstate Rule (CAIR), 40 C.F.R. 96.101 to 96.188;

• 401 KAR 51:220. CAIR NOx ozone season trading program . This administrative regulation establishes requirements for the c ontrol of NOx emissions from large boilers and turbines used in power plants and other industrial applications, pursuant to the federal mandate published under the Clean Air Inte rstate Rule (CAIR), 40 C.F.R. 96.301 to 96.388;

• 401 KAR 51:230. CAIR SO 2 trading program . This administrative regulation establishes the provisions of the CAIR SO 2 Trading Program as codifi ed at 40 C.F.R. 96.201 to 96.288 for applicable sources located in the Commonwealth of Kentucky;

• 401 KAR 52:100. Public, Affected State, and U.S. EPA Review . 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.

PSD and visibility protection: Section 110(a)(2)(J) of the CAA al so requires States to meet applicable requirements of Part C relate d to PSD and visibili ty protection.

Kentucky Authority:

• 401 KAR 51:005. Purpose and General Provisions . This administrative regulation establishes the general provisions as related to new sources with respect to the prevention of significant deterioration of air quality and construction of stationary sources impacting on nonattainment areas;

• 401 KAR 51:010. Attainment Status Designations . This administrative regulation designates the status of all areas of the Co mmonwealth of Kentucky with regard to

attainment of the ambien t air quality standards;

• 401 KAR 51:017. Prevention of significant deterioration of air quality . This administrative regulation applie s to the construction of any new major stationary source or any project at an existing major stationary source in an area designated as attainment or unclassifiable;

• 401 KAR 51:052. Review of new sources in or impacting upon nonattainment areas

. This administrative regulation establis hes requirements for the construction or modification of stationary sources within, or impacting upon, areas where the national ambient air quality standard s have not been attained;

• 401 KAR 63:005. Open Burning. This administrative regulation establishes requirements for the control of open burning;

• 401 KAR 63:010. Fugitive Emissions . This administrative re gulation provides for the control of fugitive emissions.11 Air quality modeling/data: Section 110(a)(2)(K) of the CAA re quires that SIPs provide for performing air quality modeling so that effect s on air quality of emissions from NAAQS pollutants can be predicted and submission of such data to EPA can be made.

Kentucky Authority:

• 401 KAR 50:040. Air Quality Models . This administrative re gulation specifi es general provisions for the use of air quality models;

• 401 KAR 50:050. Monitoring

.

Permitting fees: Section 110(a)(2)(L) of the CAA requires SI Ps to require each major stationary source to pay permitting fees to cover the co sts of reviewing, approving, implementing, and enforcing a permit.

Kentucky Authority:

• 401 KAR 50:038. Air Emissions Fee . This administrative re gulation provides for the assessment of fees necessary to fund the state permit program.

Consultation/participation by affected local entities: Section 110(a)(2)(M) of the CAA requires States to provide for consultation and pa rticipation in SIP development by local political subdivision affected by the SIP.

Kentucky Authority:

• 401 KAR 50:066. Conformity of transportation plans, programs, and projects . This administrative regulation adopts the Federal Tr ansportation Conformity Rules as codified in 40 C.F.R. Part 93 Subpart A and incorp orates a guidance document that establishes criteria and procedures for the interagency consultation process us ed in demonstrating conformity of federal transportation plans to the Kentucky State Implementation Plan;

• 401 KAR 52:100. Public, Affected State, and U.S. EPA Review . 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;

• KRS Chapter 77. Air Pollution Control , provides for the creation of each county to development an air pollution control district.1 STATEMENT OF CONSIDERATION

RELATING TO SIP REVISI ON FOR THE STATE IMPLEMENTATION PLAN (SIP)
THAT DOCUMENTS THE CLEAN AIR ACT (CAA) REQUIREMENTS OF SECTION 110(A) INFRASTRUCTURE PROVISIONS ADDRESSING THE REQUIREMENTS FOR

THE 1997 AND 2006 PM 2.5, THE 2008 8-HOUR OZON E, AND THE 2008 LEAD NATIONAL AMBIENT AIR QUAL ITY STANDARDS (NAAQS).
Amended After Comments



# Energy and Environment Cabinet

Department for Environmental Protection

Division for Air Quality

A public comment period was open to receive co mments on the State Implementation Plan (SIP)

revision to document the Clean Ai r Act (CAA) requirements of Section 110(a) infrastructure
provisions addressing the National Ambient Air Quality Standards (NAAQS) requirements for

the 1997 and 2006 PM 2.5 , and the 2008 8-hour ozone and lead st andards. No request for a public
hearing was received therefore a previ ously scheduled hearing was cancelled.

The following individuals from the Kentucky Environmental and Public Protection Cabinet drafted responses to co mments received during th e public review period.

John Gowins, Environmental Control S upervisor, Division for Air Quality

Response to Comments for the proposed revision to the State Implementa tion Plan (SIP) to
address Clean Air Act Section 110 requiremen ts for the 1997 and 2006 PM 2.5, and the

2008 8-hour ozone and lead National Am bient Air Quality Standards (NAAQS).

1. Comment: KRS 11A.020(3) appears to describe the disclosure requirements applicable to public servants when they abstain from action on an official decision for which the Commonwealth has or may have a personal or private interest, but a provision actually requiring this abstention is not obvious. Pleas e provide clarification on whether there is a requirement in a different provision to addr ess this abstention, or if section 11A.020 is interpreted by the Commonwealth as th e basis for the abstention requirement. R. Scott Davis, U.S. EPA

Response: The Cabinet acknowledges this comment . After further discussions between counsel for the Cabinet and EPA, it was agreed that this requiremen t would be satisfied by the inclusion of KRS 11A.030 Considerations in determination to abstain from action on official decision – Advisory opinion, and KRS 11A.040 Acts prohibited for public servant or officer – Exception

.

2. Comment: Based on information provided in this prehearing submittal, it appears that 128(a)(1) is not applicable in the Commonweal th because there are no “boards or bodies”2 that approve CAA permits or enforcement or ders. Please clarify and/or confirm this point through a citati on to the provisions that descri be who is authorized in the Commonwealth to approve Air permits and en forcement orders and appeals thereof. R. Scott Davis, U.S. EPA

Response: The Cabinet acknowledges this comment. KRS 224.10-020, Departments within the cabinet – Offices and divisions within the departments – Appointments which provides the provisions th at describe who is au thorized in the Commonwealth to approve Air permits and enforcement orders and ap peals thereof has been included to be incorporated into the SIP.

3. Comment: Regarding reference to section 110(a )(2)(E)(i) on Page 6, EPA recommends the Commonwealth reference “110(a)(2)(E)” in its efforts to establish how the Commonwealth is addressing complia nce for the entire element. R. Scott Davis, U.S. EPA

Response: The Cabinet acknowledges this comment and the narrative has been changed as suggested.

4. Comment: Section 110(a)(2)(C) of the CAA establis hes that states are required to have SIP-approved prevention of significant dete rioration (PSD) programs for enforcement of control measures including re view of proposed new sources to implement the national ambient air quality standards (NAAQS). States were required to submit a SIP revision to EPA on May 16, 2011, to adopt the new source re view (NSR) requirements established in

the 2008 NSR PM 2.5 Implementation Rule. Additionally the PM 2.5 PSD Increment requirements established in the October 20, 2010, PSD Increment, Significant Impact Levels and Significant Monito ring Concentrations, are due to EPA July 20, 2012. In order to comply with 110(a)(2)(C) for the PM 2.5 NAAQS, states are re quired to approve

into its SIP the 2008 NSR PM 2.5 requirements. EPA recommends the Commonwealth clarify its intentions regarding meeti ng the SIP requirements of the 2008 NSR PM 2.5 Rule and compliance with 110( a)(2)(C) of the CAA. R. Scott Davis, U.S. EPA

Response: The Cabinet acknowledges this comm ent. The Division filed proposed
administrative regulation amendments with the Legislative Research Commission and EPA on June 14, 2012 to adopt revisions to the NSR program consistent with the PM 2.5 NAAQS implementation.

5. Comment: The cover letter states that the subm ittal is for the NAAQS requirements for

“PM 2.5 , 8-hour ozone, and lead.” EPA suggests the Commonwealth specify in the final SIP package cover letter, which NAAQS the in frastructure submittal is addressing (e.g.,

1997 and 2006 PM 2.5 and 2008 ozone and lead NAAQS). R. Scott Davis, U.S. EPA3 Response: The Cabinet acknowledges this comment. The cover letter has been changed to include the dates as suggested.

6. Comment: Kentucky’s compliance with section 110( a)(2)(G) states “All of Kentucky is considered a Priority III area, and ther efore no emergency episode plan for PM 2.5 is required.” It appears this statem ent was established based on the PM 2.5 NAAQS levels in the state during the time of the Commonwealth’s September 19, 2008, correspondence to EPA regarding Emergency Episode and may not reflect current PM 2.5 NAAQS levels in

the Commonwealth. Consistent with 40 CFR 51.153(a), EPA recommends the Commonwealth review the most recent three ye ars of air quality monitoring data for the

PM 2.5 NAAQS for the purposes of this submittal to ensure that no area in the

Commonwealth has exceeded the 24-hour PM 2.5 level of 140.4 micrograms per cubic meter (μg/m 3 ). EPA also recommends that the Commonwealth revise the statement at 110(a)(2)(G) as the following: “Based upon the most recent three ye ars of air quality data, no area of the Commonwealth has ex ceeded the 24-hour PM 2.5 level of 140.4 μg/m 3 . Therefore, based upon EPA’s Sept ember 25, 2009 PM 2.5 infrastructure guidance memorandum, no emergency episode plan for PM 2.5 is necessary at this time.” R. Scott Davis, U.S. EPA

Response: The Cabinet acknowledges this comment . The Cabinet reviewed the most recent three years of air quality monitoring data for the PM 2.5 NAAQS for the purposes of

the submittal and no area in the Commonwealth has exceeded the 24-hour PM 2.5 level of 140.4 micrograms per cubic meter (μg/m 3 ).

7. Comment: EPA suggests the following edits to the Interstate transport element (a) list 401 KAR 51:001 and 51:017 to address PSD; (b) specify approval of Regional Haze SIP; and (c) clarify the appropriate 8-hour ozone and PM 2.5 NAAQS regarding the attainment

demonstration reference. R. Scott Davis, U.S. EPA

Response: The Cabinet acknowledges this comment. The edits to the Interstate transport

element have been made.

8. Comment: Maryland finds Kentucky’s Infrastructure SIP, specifically the Clean Air Act Section 110(a)(2)(D), to be lacking the necessa ry control measures to effectively prohibit emissions that significantly c ontribute to nonattainment or in terfere with maintenance in Maryland for the 2008 8-hour ozone NAAQS. CSAPR identified Kentucky as a state that significantly contributes to Ma ryland’s ozone nonattainment problem. George (Tad) Aburn, Maryland

Response: The Cabinet does not agree. The ai r quality modeling to identify downwind nonattainment and maintenance receptors fo r CSPAR was performed using emissions inventories developed with a 2005 base year and for 2012 and 2014 projections. This modeling did not account for re ductions that have been ac hieved through implementation of the Clean Air Interstate Rule (CAIR). The following table shows that the actual

emissions of NO 2 and VOC in Kentucky have decreased by 39% and 17% respectively;4 yet the monitoring data for the Maryla nd monitor 24-025-1001 Hartford (Edgewood) shows that the design value for 2010 has d ecreased from the 2005 design value by only 3%. For 2011, the monitor design value ha s decreased by less than 1% of the 2005 design value. It is unlikely that Kentucky emissions are having a significant contribution to the nonattainment problem in Maryland if re ductions in emissions of these magnitudes

result in reductions of monitor de sign values of such small values.

Year KY NO 2 Percent KY VOC Percent Maryland dv ppb Percent

2005 203,959.70 48,835.72 99

2010 124,662.91 -39% 40,426.22 -17% 96 -3%

A review of the monitors located between Kentucky and Maryland was performed using the 2010 3-year design values. The design values for these monitors further indicate that whatever leads to the ozone problem in Maryland, it is likely due to localized sources.

Further, a 2011 Congested Corridors Report 1 identified 13 corridors in Washington D.C. and 5 corridors in Baltimore as highly conge sted, which contribute significantly to the nonattainment problem for Maryland.

An analysis of the ten highest monitored va lues for this site was performed using the NOAA hysplit back-trajectory model. The air column passed through Kentucky during

1 Texas Transportation Institute, The Texas A&M Univer sity System http://mobility.tamu.edu November 20115 only 8 of the 30 days reviewed. On the days of the highest readings for each year 2009- 2010-2011 at the Edgewood monitor the air column did not pass over Kentucky.

9. Comment: Kentucky’s Infrastructure SIP purports to comply with the interstate transport requirements of Section 110(a)(2)(D) thr ough the implementation of the NOx SIP Call

reductions and the Clean Air Interstate Ru le (CAIR), or its replacement, CSAPR. Maryland strongly believes that these measur es alone, even with the reinstatement of CSAPR, are insufficient to address transpor ted pollution with regard to the 2008 8-hour ozone NAAQS. In fact, CSAPR and CAIR we re designed only to address the 0.08 parts per million (ppm) 8-hour ozone NAAQS. Thes e federal measures do not eliminate significant contributions under th e 0.075 ppm 8-hour ozone NAAQS. George (Tad) Aburn, Maryland

Response: The Cabinet does not agree. See re sponse to comment 8 above. Further, given the unrecognized reductions accomplishe d by CAIR, coupled with those expected and in some cases already underway due to CSAPR and the Mercury Air Toxics rule (MATS) significant localized and downwi nd benefits are already being achieved.

10. Comment: Pursuant to the “good neighbor” provisi ons of Section 110 (a)(2)(D), States will need to develop and commit to implementa tion of regulations in their Infrastructure

SIPs to achieve VOC and NOx reductions from various emissions sources such that the State’s significant contribution to nonattain ment or interference with maintenance in

downwind states is eliminated. George (Tad) Aburn, Maryland

Response: The Cabinet does not agree. See response to comment 8 above.

11. Comment: From our preliminary modeling, a NOx budget from all sources sectors in Kentucky of 146,315 tons per year would satisfy the requirements for Section l10(a)(2)(D). George (Tad) Aburn, Maryland

Response: The Cabinet acknowledges this comment. See response to comment 8 above.

12. Comment: Maryland believes Kentucky and all stat es that have been demonstrated to significantly impact downwind receptors, wh ich include Maryland, should expeditiously implement control programs that address NOx and VOC emissions. George (Tad) Aburn, Maryland

Response: The Cabinet does not agree. As stated previously, measures under CAIR have been implemented and further emissions reductions expected to be implemented due to the CSAPR and MATS rules are underway 2

.

2 PSC Approves LG&E and KU Plan for Gas-fired Power Pl ants http://psc.ky.gov/agencies /psc/press/052012/0503_r01.PDF224.10

- 100 Powers and duties of cabinet.

In addition to any other powers and duties vested in it by law, the cabinet shall ha ve the authority, power, and duty to:

(1) Exercise general supervision of the administration and enforcement of this chapter, and all rules, regulations, and orders promulgated thereunder;

(2) Prepare and develop a comprehensive plan or plans related to the environment of the Commonwealth;

(3) Encourage industrial, commercial, residential, and community development which provides the best usage of land areas, maximizes environmental benefits, and

minimizes the effects of less desirable environmental cond itions;

(4) Develop and conduct a comprehensive program for the management of water, land, and air resources to assure their protection and balance utilization consistent with the environmental policy of the Commonwealth;

(5) Provide for the prevention, abatement, and control of all water, land, and air pollution, including but not limited to that related to particulates, pesticides, gases, dust, vapors, noise, radiation, odor, nutrients, heated liquid, or other contaminants;

(6) Provide for the control and regulation of surface coal mining and reclamation in a manner to accomplish the purposes of KRS Chapter 350;

(7) Secure necessary scientific, technical, administrative, and operational services, including laboratory facilities, by contract or otherwise;

(8) Collect and disseminate information and conduct educational and training programs relating to the protection of the environment;

(9) Appear and participate in proceedings before any federal regulatory agency involving or affecting the purposes of the cabinet;

(10) Enter and inspect any property or premises for the purpose of investigating either actual or suspected sources of pollution or contamination or for the purpose of ascertaining compliance or noncompliance with this chapter, or any regulation which may be promulgated thereunder;

(11) Conduct investigations and hold hearings and compel the attendance of witnesses and the production of accounts, books, and records by the issuance of subpoenas;

(12) Accept, receive, and administer grants or other funds or gifts from public and private agencies including the federal government for the purpose of carrying out any of the functions of the cabinet. The funds received by the cabinet shall be deposited in the State Treasury to the account of the cabinet;

(13) Request and receive the assistance of any state or municipal educational institution, experiment station, laboratory, or other agency when it is deemed necessary or beneficial by the cabinet in the performance of its duties;

(14) Advise, consu lt, and cooperate with other agencies of the Commonwealth, other states, the federal government, and interstate and interlocal agencies, and affected persons, groups, and industries;(15) Formulate guides for measuring presently unidentified environmental values and

relationships so they can be given appropriate consideration along with social, economic, and technical considerations in decision making;

(16) Monitor the environment to afford more effective and efficient control practices, to identify chang es and conditions in ecological systems, and to warn of emergency conditions;

(17) Adopt, modify, or repeal with the recommendation of the commission any standard, regulation, or plan specified in KRS 224.01

- 110 (5) and (6);

(18) Issue, after hearing, orders abating activities in violation of this chapter, or the provisions of this chapter, or the regulations promulgated pursuant thereto and requiring the adoption of the remedial measures the cabinet deems necessary;

(19) Issue, continue in effect, revok e, modify, suspend, or deny under such conditions as the cabinet may prescribe and require that applications be accompanied by plans, specifications, and other information the cabinet deems necessary for the following permits:

(a) Permits to discharge into any waters of the Commonwealth, and for the installation, alteration, expansion, or operation of any sewage system; however, the cabinet may refuse to issue the permits to any person, or any partnership, corporation, etc., of which the person owns more t han ten percent (10%) interest, who has improperly constructed, operated, or maintained a sewage system willfully, through negligence, or because of lack of proper knowledge or qualifications until the time that person demonstrates proper qualifications to the cabinet and provides the cabinet with a performance bond;

(b) Permits for the installation, alteration, or use of any machine, equipment, device, or other article that may cause or contribute to air pollution or is intended primarily to prevent or co ntrol the emission of air pollution; or

(c) Permits for the establishment or construction and the operation or maintenance of waste disposal sites and facilities;

(20) May establish, by regulation, a fee or schedule of fees for the cost of processing applications for permits authorized by this chapter, and for the cost of processing applications for exemptions or partial exemptions which may include but not be limited to the administrative costs of a hearing held as a result of the exemption application, except that applicants for existing or proposed publicly owned facilities shall be exempt from any charge, other than emissions fees assessed pursuant to

KRS 224.20

- 050, and that certain nonprofit organizations shall be charged lower fees to process water discharge permits under KRS 224.16

- 050(5);

(21) May require for persons discharging into the waters or onto the land of the Commonwealth, by regulation, order, or permit, technological levels of treatment and effluent limitations;

(22) Require, by regula tion, that any person engaged in any operation regulated pursuant to this chapter install, maintain, and use at such locations and intervals as the cabinet may prescribe any equipment, device, or test and the methodologies andprocedures for the use of the equipment, device, or test to monitor the nature and

amount of any substance emitted or discharged into the ambient air or waters or land of the Commonwealth and to provide any information concerning the monitoring to the cabinet in accordance with the pr ovisions of subsection (23) of this section;

(23) Require by regulation that any person engaged in any operation regulated pursuant to this chapter file with the cabinet reports containing information as to location, size, height, rate of emission or discharge, and composition of any substance discharged or emitted into the ambient air or into the waters or onto the land of the Commonwealth, and such other information the cabinet may require;

(24) Promulgate regulations, guidelines, and standards for wast e planning and management activities, approve waste management facilities, develop and publish a comprehensive statewide plan for nonhazardous waste management which shall contain but not be limited to the provisions set forth in KRS 224.43

- 345, and develop and publish a comprehensive statewide plan for hazardous waste management which shall contain but not be limited to the following:

(a) A description of current hazardous waste management practices and costs, including treatment and disposal, within the Commonwealth;

(b) An inventory and description of all existing facilities where hazardous waste is being generated, treated, recycled, stored, or disposed of, including an inventory of the deficiencies of present facilities in meeting current hazardous waste management needs and a statement of the ability of present hazardous waste management facilities to comply with state and federal laws relating to hazardous waste;

(c) A description of the sources of hazardous waste affecting the Commonwealth

includin g the types and quantities of hazardous waste currently being generated and a projection of such activities as can be expected to continue for not less than twenty (20) years into the future; and

(d) An identification and continuing evaluation of those locations within the Commonwealth which are naturally or may be engineered to be suitable for the establishment of hazardous waste management facilities, and an identification of those general characteristics, values, and attributes which would render a part icular location unsuitable, consistent with the policy of minimizing land disposal and encouraging the treatment and recycling of the

wastes.
The statewide waste management plans shall be developed consistent with state and federal laws relating to waste;

(25) Perform other acts necessary to carry out the duties and responsibilities described in this section;

(26) Preserve existing clean air resources while ensuring economic growth by issuing regulations, which shall be no more stringent than federal re quirements, setting maximum allowable increases from stationary sources over baseline concentrationsof air contaminants to prevent significant deterioration in areas meeting the state

and national ambient air quality standards;

(27) Promulgate regulations concerning the bonding provisions of subsection (19)(a) of this section, setting forth bonding requirements, including but not limited to requirements for the amount, duration, release, and forfeiture of the bonds. All

funds from the forfeiture of bonds required pursuant to this section shall be placed in the State Treasury and credited to a special trust and agency account which shall not lapse. The account shall be known as the "sewage treatment system rehabilitation fund" and all moneys placed in the fund shall be used for the elimination of nuisances and hazards created by sewage systems which were improperly built, operated, or maintained, and insofar as practicable be used to correct the problems at the same site for which the bond or other sureties were originally provided; and

(28) Promulgate administrative regulations not inconsistent with the provisions of law administered by the cabinet.

Effective: August 30, 2007

History: Amended 2007 (2d Extra. Sess.) Ky. Acts ch. 1, sec. 42, effective August 30,

2007.

-- Amended 1994 Ky. Acts ch. 162, sec. 3, effective July 15, 1994.

-- Amended 1990 Ky. Acts ch. 325, sec. 15, effective July 13, 1990; and ch. 412, sec. 1, effective July 13, 1990.

-- Amended 1986 Ky. Acts ch. 455, sec. 1, effective July 15, 19 86.

-- Amended 1984 Ky. Acts ch. 111, sec. 109, effective July 13, 1984.

-- Amended 1980 Ky. Acts ch. 264, sec. 2; and ch. 377, sec. 10, effective July 15, 1980.

-- Amended 1978 Ky. Acts ch. 113, sec. 3, effective June 17, 1978; and ch. 266, sec. 2, effective
June 17, 1978.

-- Amended 1974 Ky. Acts ch. 355, sec. 2, effective June 21, 1974.

-- Created 1972 (1st Extra. Sess.) Ky. Acts ch. 3, sec. 3, effective January 1, 1973.

Formerly codified as KRS 224.033

Legislative Research Commission Note (9/28/93). T he Division of Energy within the Department for Natural Resources of the Natural Resources and Environmental Protection Cabinet was made "responsible for subsections (28) and (29)" of this statute by 1990 Ky. Acts, ch. 325, sec. 14.

Legislative Research Commission Note (6/20/2005). 2005 Ky. Acts ch. 123, sec. 5,

codified at KRS 224.10

- 103, provides that the Division of Energy and all "personnel, functions, powers, and duties of the Division of Energy shall be transferred to the Tourism Development Cabinet. " The abolition of the Tourism Development Cabinet

and creation of the Commerce Cabinet under Executive Order 2004

- 729 were confirmed by 2005 Ky. Acts ch. 95, in which the Office of Energy Policy is established and statutory references to the "Division of Energy" are changed to the "Office of Energy Policy."224.10

- 020 Departments within the cabinet

-- Offices and divisions within the

departments

-- Appointments.

(1) There is established within the cabinet a Department for Natural Resources, a Department for Environmental Protection, and a Department for Energy Developme nt and Independence. Each department shall be headed by a commissioner appointed by the secretary with the approval of the Governor as required by KRS 12.050. The commissioners shall be directly responsible to the secretary and shall perform such functions , powers, and duties as provided by law and as the secretary may prescribe.

(2) There is established within the Department for Natural Resources a Division of Forestry, a Division of Conservation, a Division of Technical and Administrative Support, a Divis ion of Mine Reclamation and Enforcement, a Division of Mine Permits, a Division of Abandoned Mine Lands, a Division of Oil and Gas, and an Office of Mine Safety and Licensing. There shall be established within the Office of Mine Safety and Licensing a Divi sion of Safety Inspection and Licensing and a Division of Safety Analysis, Training, and Certification. The Kentucky Mining Board is attached to the Office of Mine Safety and Licensing for administrative purposes. Each division shall be headed by a directo r and each office shall be headed by an executive director. Directors and executive directors shall be appointed by the secretary with the approval of the Governor as required by KRS 12.050, except for the director of the Division of Conservation, who shal l be appointed in accordance with KRS 146.100. Both directors and executive directors shall be directly responsible to the commissioner and shall perform the functions, powers, and duties as provided by law and as prescribed by the secretary.

(3) There is established within the Department for Environmental Protection a Division of Water, a Division for Air Quality, a Division of Waste Management, a Division of Enforcement, a Division of Compliance Assistance, and a Division of Environmental Program Support. Each division shall be headed by a director appointed by the secretary with the approval of the Governor as required by KRS 12.050. Directors shall be directly responsible to the commissioner and shall perform the functions, powers, and duties as provided by law and as prescribed by the secretary.

(4) There is established within the Department for Energy Development and Independence a Division of Energy Efficiency and Conservation, a Division of Renewable Energy, a Division of Biofuels, a Division of Energ y Generation, Transmission and Distribution, a Division of Carbon Management, and a Division of Fossil Energy Development. Each division shall be headed by a director. Directors shall be appointed by the secretary with the approval of the Governor as requi red by KRS 12.050.

Effective: July 15, 2010

History: Amended 2010 Ky. Acts ch. 24, sec. 349, effective July 15, 2010.

-- Amended 2005 Ky. Acts ch. 123, sec. 21, effective June 20, 2005.

-- Amended 1996 Ky. Acts

ch. 360, sec. 1, effective July 15, 1996.

-- Amended 1990 Ky. Acts ch. 399, sec. 1, effective July 13, 1990.

-- Amended 1978 Ky. Acts ch. 155, sec. 122, effective June
17, 1978.

-- Amended 1976 Ky. Acts ch. 290, sec. 1, effective June 19, 1976.

--Created 1974 Ky. Acts ch. 74, Art. III, sec. 2, effec tive June 21, 1974.

Formerly codified as KRS 224.012.

Legislative Research Commission Note (6/20/2005). Although 2005 Ky. Acts ch. 123,

sec. 21, contains a reference to "Section 64 of this Act" (KRS 353.510) in subsection (2) of this statute, that referen ce has been codified as KRS 353.530 (2005 Ky. Acts

ch. 123, sec. 65) because a section was added to the introduced version of the bill in the Senate Committee Substitute, but the necessary adjustment to this internal

reference was not made. This manifest t ypographical or clerical error and has been corrected in codification under KRS 7.136(1)(h).11A.020 Public servant prohibited from certain conduct

-- Exception

-- Disclosure

of personal or private interest.

(1) No pub lic servant, by himself or through others, shall knowingly:

(a) Use or attempt to use his influence in any matter which involves a substantial conflict between his personal or private interest and his duties in the public interest;

(b) Use or attempt to use any means to influence a public agency in derogation of the state at large;

(c) Use his official position or office to obtain financial gain for himself or any members of the public servant's family; or

(d) Use or attempt to use his official position to secure or create privileges, exemptions, advantages, or treatment for himself or others in derogation of the public interest at large.

(2) If a public servant appears before a state agency, he shall avoid all conduct which might in any way lead members of the general public to conclude that he is using his official position to further his professional or private interest.

(3) When a public servant abstains from action on an official decision in which he has or may have a personal or private interest, he shall disclose that fact in writing to his superior, who shall cause the decision on these matters to be made by an impartial third party.

(4) The prohibitions imposed by subsection (1)(c) of this section shall not apply to Professional Golfers' Association class A members who teach golf lessons and receive a fee or lesson charge at golf courses owned and operated by the Kentucky Department of Parks. Instruction provided by an employee of the Commonwealth shall only be given while the employee is on his or her own personal time. The commissioner of the Department of Parks shall promulgate administrative regulations to establish guidelines for the process by which Professional Golfers' Association class A members are approved to teach golf lessons at Kentucky Department of Parks

- owned golf courses. The exception granted by this subsection is in recognition of the benefits that will accrue to the Kentucky Department of Parks due to increased participation at state

- owned golf courses.

Effective: July 15, 19 98

History: Amended 1998 Ky. Acts ch. 381, sec. 1, effective July 15, 1998.

-- Created 1992 Ky. Acts ch. 287, sec. 4, effective July 14, 1992.11A.030 Considerations in determination to abstain from action on official decision

-- Advisory opinion.

In determining wheth er to abstain from action on an official decision because of a possible conflict of interest, a public servant should consider the following guidelines:

(1) Whether a substantial threat to his independence of judgment has been created by his personal or private interest;

(2) The effect of his participation on public confidence in the integrity of the executive branch;

(3) Whether his participation is likely to have any significant effect on the disposition of the matter;

(4) The need for his particular contribution, such as special knowledge of the subject matter, to the effective functioning of the executive branch; or

(5) Whether the official decision will affect him in a manner differently from the public or will affect him as a member of a business, profession, occupation, or group to no greater extent generally than other members of such business, profession, occupation, or group. A public servant may request an advisory opinion from the

Executive Branch Ethics Commission in accordance with the comm ission's rules of procedure.

Effective: July 14, 1992

History: Created 1992 Ky. Acts ch. 287, sec. 5, effective July 14, 1992.11A.040 Acts prohibited for public servant or officer

-- Exception.

(1) A public servant, in order to further his own economi c interests, or those of any other person, shall not knowingly disclose or use confidential information acquired

in the course of his official duties.

(2) A public servant shall not knowingly receive, directly or indirectly, any interest or profit arising from the use or loan of public funds in his hands or to be raised through any state agency.

(3) A public servant shall not knowingly act as a representative or agent for the Commonwealth or any agency in the transaction of any business or regulatory

acti on with himself, or with any business in which he or a member of his family has any interest greater than five percent (5%) of the total value thereof.

(4) A public servant shall not knowingly himself or through any business in which he owns or controls an interest of more than five percent (5%), or by any other person for his use or benefit or on his account, undertake, execute, hold, bid on, negotiate, or enjoy, in whole or in part, any contract, agreement, lease, sale, or purchase made, entered into, aw arded, or granted by the agency by which he is employed or which he supervises, subject to the provisions of KRS 45A.340. This provision shall not apply to:

(a) A contract, purchase, or good faith negotiation made pursuant to KRS Chapter 416 relating to eminent domain; or

(b) Agreements which may directly or indirectly involve public funds disbursed through entitlement programs; or

(c) A public servant's spouse or child doing business with any state agency other than the agency by which the public servan t is employed or which he supervises; or

(d) Purchases from a state agency that are available on the same terms to the general public or that are made at public auction; or

(e) Sales of craft items to a state park by interim state employees designated as craftspersons under KRS 148.257.

(5) A public servant shall not knowingly accept compensation, other than that provided by law for public servants, for performance of his official duties without the prior approval of the commission.

(6) A former officer or public servant listed in KRS 11A.010(9)(a) to (g) shall not, within six (6) months of termination of his employment, knowingly by himself or through any business in which he owns or controls an interest of at least five percent (5%), or by any other person for his use or benefit or on his account, undertake, execute, hold, bid on, negotiate, or enjoy, in whole or in part, any contract, agreement, lease, sale, or purchase made, entered into, awarded, or granted by the agency by which he was employed. Thi s provision shall not apply to a contract, purchase, or good faith negotiation made under KRS Chapter 416 relating to eminent domain or to agreements that may directly or indirectly involve public funds disbursed through entitlement programs. This provision shall not apply to purchases from a state agency that are available on the same terms to the generalpublic or that are made at public auction. This provision shall not apply to former

officers of the Department of Public Advocacy whose continued represe ntation of clients is necessary in order to prevent an adverse effect on the client.

(7) A present or former officer or public servant listed in KRS 11A.010(9)(a) to (g) shall not, within six (6) months following termination of his office or employment, accept employment, compensation, or other economic benefit from any person or business that contracts or does business with, or is regulated by, the state in matters in which he was directly involved during the last thirty

- six (36) months of his

tenure. Thi s provision shall not prohibit an individual from returning to the same business, firm, occupation, or profession in which he was involved prior to taking office or beginning his term of employment, or for which he received, prior to his state employment, a professional degree or license, provided that, for a period of six (6) months, he personally refrains from working on any matter in which he was directly involved during the last thirty

- six (36) months of his tenure in state government. This subsection s hall not prohibit the performance of ministerial functions, including but not limited to filing tax returns, filing applications for permits or licenses, or filing incorporation papers, nor shall it prohibit the former officer or public servant from receiving public funds disbursed through entitlement

programs. (8) A former public servant shall not act as a lobbyist or lobbyist's principal in matters in which he was directly involved during the last thirty

- six (36) months of his tenure for a period of one (1) year after the latter of:

(a) The date of leaving office or termination of employment; or

(b) The date the term of office expires to which the public servant was elected.

(9) A former public servant shall not represent a person or business before a state agency in a matter in which the former public servant was directly involved during the last thirty

- six (36) months of his tenure, for a period of one (1) year after the

latter of:

(a) The date of leaving office or termination of employment; or

(b) The date the term of office expires to which the public servant was elected.

(10) Without the approval of his appointing authority, a public servant shall not accept outside employment from any person or business that does business with or is regulated by the state agency for which the public servant works or which he supervises, unless the outside employer's relationship with the state agency is limited to the receipt of entitlement funds.

(a) The appointing authority shall review administrative regulati ons established under KRS Chapter 11A when deciding whether to approve outside employment for a public servant.

(b) The appointing authority shall not approve outside employment for a public servant if the public servant is involved in decision

- making or recommendations concerning the person or business from which the public servant seeks outside employment or compensation.(c) The appointing authority, if applicable, shall file quarterly with the Executive Branch Ethics Commission a list of all employees who have been approved for outside employment along with the name of the outside employer of each.

(11) The prohibitions imposed by subsection (5) or (10) of this section shall not apply to Professional Golfers' Association class A members who teach golf lessons and receive a fee or lesson charge at golf courses owned and operated by the Kentucky Department of Parks. Instruction provided by an employee of the Commonwealth shall only be given while the employee is on his or her own personal time. The

commi ssioner of the Department of Parks shall promulgate administrative regulations to establish guidelines for the process by which Professional Golfers' Association class A members are approved to teach golf lessons at Kentucky Department of Parks

- owned golf courses. The exception granted by this subsection is in recognition of the benefits that will accrue to the Kentucky Department of Parks due to increased participation at state

- owned golf courses.

Effective: July 12, 2006

History: Amended 2006 Ky. Acts c h. 68, sec. 1, effective July 12, 2006.

-- Amended 2000 Ky. Acts ch. 417, sec. 4, effective December 1, 2000; and ch. 475, sec. 2, effective July 14, 2000.

-- Amended 1998 Ky. Acts ch. 381, sec. 2, effective July 15, 1998; ch. 429, sec. 2, effective July 15, 1998; ch. 430, sec. 1, effective July 15, 1998;

and ch. 602, sec. 2, effective July 15, 1998.

-- Amended 1996 Ky. Acts ch. 367,

sec. 1, effective July 15, 1996.

-- Amended 1994 Ky. Acts ch. 434, sec. 3, effective July 15, 1994.

– Created 1992 Ky. Acts c h. 287, sec. 6, effective July 14, 1992.

Legislative Research Commission Note (12/1/2000). The contingency on the effectiveness of this statute set by 2000 Ky. Acts ch. 417, sec. 18, was met, the voters of the Commonwealth having ratified at the general election on November 7, 2000, a constitutional amendment (see 2000 Ky. Acts ch. 399) abolishing the Railroad

Commission.

Legislative Research Commission Note (7/15/98). A reference to "KRS 11A.010(9)(a) to (i)" in the former subsection (6) of this statute (now subsection (7)) has been changed in codification to "KRS 11A.010(9)(a) to (h)" under KRS 7.136(1)(e) and (h). 1998 Ky. Acts ch. 429, sec. 1, eliminated the former paragraph (g) of KRS 11A.010(9) and renumbered the remaining subsections accordingly. Other actions within Acts Chapter 429 used the "(a) to (h)" range in new language and modified existing language to use the "(a) to (h)" range. It seems clear from context, and this has been confirmed by the drafter of the bill, that this change was intende d here as well but was inadvertently overlooked.