p.1 

OAR Box 1781 

Prepped by Ollie Stewart 

Document Number: 

43) ll-J-10 

Docket Number: 

A-90-37 

Printed 10/29/2008 10:46:20 AM Sheet 43 of 142 
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EederaL Register // Vail 5E.I56. 112: /• Mondays Junes 11. 1890- / BMbtr. and- Regulations' 23547 

ENViRaNMEMTALPAOTECXION 

AGENCY 

40 CFR Part 52 

[KYMJ3T*FRt-3TSSy»TApproval and Ptamj/fgaObtVof 

ln.ptement&tl«>-PfeBat Wentucky^Statg' 

Regulation forPteventlba'of 

Slgnifltant Oeferforafldff amfcV&lWmy 

New Sovrc* ITeiirtii Or Attainment 

Aress> 

AGENCY: EayiimnnenlalaPiotectiaa 

Agency (EP^: 

ACTION: Nodcaof danfieatfci^. 

SUM14AKY: In-thifl-nntisy. KPAnJ9 

clarifying certain ialerpcetiv.*8ietenient» 

contained in theFedaml-Kepatar>notic*' 

approviiigjswaieaj.tfl.tha Kentucky 

State Implementation PIan.(S3P);under 

the QeajiAirAct.4atUJtaS-740tr?842a 

That action, rjuhdiafaed anSepteafees U 

1983 (54rER.3830Z^.we*«-fibainikr 

ap^rovina Kfflitucl^'B regpialieBdbfc 

prevention ofsigufuantrdsterioration 

(PSD), a vuiMrty/manitaring strategy^ 

and'regiTlatinnmfbe viutdlitjfnesw source 

review (NSR) kLattammfintareaaa-Tiepurpo»oftoaax'acDttB8:i9<to.'duif2 

interpretive bMiguj»ffi.f*>n*nm.wi.n'tH»» 

earlier notices.Toda^aaction-doeanot 

alter EPA-'srarjptovaLaltherSIF-cewaiom 

which were thesub^eLaftncetriier 

final action notice.,hut jfidoeifcanpeoedfi 

the intefrjretive.«tatement»:in that 

notice.. 

DATE-S:Tliixnntti^isefectiiw(tn»'Tl. 

1990-

¥, Til l E 1 V E 

LJU| UAN2 5I995 | 

£ EPA AIR DOCKET 

A0DRE8SST Copier of thfrdacumenty 

relevant to this actios are*ava?fla6Ie-fbr 

public inspection during nonnaf 

busineayhooa'att&efiUbwinyluuatltm: 

Environmental protection Agency, 

Region IV, Air FTOgrem* Branch, 34tr 

Courtland'Street NE., Atlanta, Georgia 

303BR 

FOR FURTHEaiNraRUATtQHCONT3kCTt 

For InffirmnKon regarding this notice OLC 

clarification, contactDamia Cnimpler.. 

EPAa.New Source-Review Section., 

Office of.Air Quality Planning and. 

Standards.(MQ-15)..Reaearch Triangle 

Pari^NbrtL Carolina 2Z711„teJephane-

(919) 54i-oazi,ns 629^0an»For. 

information jegardingtheSeptember. l„ 

1989, approval of Kentucky's regjdation. 

for PSD..coniact BUchardA,3chuUaatthe 

aboveRegian.IV addresser telephone* 

(404) 347-2864, FTS 257-2864.. 

suPM-EMorrBjry iiw-ORi«Ttoir 

Following a December 3T£ 1985. publfc 

hearinyin ccmf6nmly^wtt4?GFR 

51.102:{pT8v4.ra84y.4B-GFR 5K47, th* 

CommonwOTdtb ofXenftic&y's FfeturaT 

Resources and Environmental Cabinet' 

P^EPQ,adnnTaedJaBgnlailiOT.diange» 

involvimyESDian visibilityrand 

subrnfltectitliem taEPA onFebrnary-20; 

1988? iuc approval'aaimpieroent&ti an-' 

plan reraima. EPA.pxopo«Bdto^pprove 

the reytssBisan MurciiI7',-IB87 (S7FR; 

8311). The&nA acnonnoticwof 

Septemberi;i93ir(5*ER'363B7T; 

finalized: tbat approvat SpeaScafly,, 

EMfefwmd that Kentaeky-'s regulationsfor PSD (ImiudinaFatack: height» and! 

dispersion tednriqueef, \risftiiilty 

monitorirjg^and'viiibilitj new source 

rewewLin-attainnienllarefl.* are-adequate" 

to meettheretpriremenfMontafnetf Iir4© 

CFR 5rT6fl.5T.305; and ta.387T.aJ and-rd); 

res]je<^^VvSee 5*FR 3J-3Trt-TT. 

Tbe DisputedTLanguaga.in:EPAf& 

ApurosaLoi Kentucky's. SIP Revisions. 

The SeptemBerf, 1985R notice 

described EEft?* view oftfieTefatidnsfiip 

between ERA-and the-sta^tes-nnder-the 

Cleat-Air Act, and of ihe legal:effect of 

EPA's approval of SIP measures 

implementBiS'Vtmbus-TJrograms under 

thetA** See-5*FTT38307-08s EFA 

pofirted:onf that in adoptingthe-dean 

Air Act: Cbngretw-designatedEPA aa the 

agency piiiuarfly respomrible-fbr 

interpreting; the-Act tBtd'ovemeihg-ita 

implementation by the-states. EPA alsonoted that-it-'must apprarestete* 

programs thatmeetthe-requirementgof' 

40 GFRpartSl1. However, the AgencyalgQTefegetfto'th'e'verycomprex and 

dynafflioTiatum-of the Act's PSD1 

requirement* (including* tadc heights' 

and oHs^ereiorrftdiniquew), and'newsource reviewand visibilityprograans: 

4 -«?o-M 
"23538-

feflerai KBglBlOr / Vol. 55. NO. llZ / Monday, June ii., xaau f numa uuu ncguiuumia 

P.3 

Consequently, EPA noted, it would be 

administratively impracticable and 

legally unnecessary to include all 

statutory interpretations in the EPA 

regulations and the SIPs of the various 

states, or to amend the regulations and 

the SIPs everytime EPA interprets the 

statute or regulations or issues guidance 

regarding the proper implementation of 

the NSR program. Rather, EPA 

maintained that federal approval of 

these NSR-related regulations and 

narrative as part of the Kentucky SIP 

required the state to follow EPA's 

current and future interpretations of the 

Act's provisions and regulations, as well 

as EPA's operating policies and 

guidance, but only to the extent that 

such policies are intended to guide the 

implementation of approved state NSR 

programs. In making this assertion. EPA 

was careful to emphasize that as a 

matter of course any fundamental 

changes in the administration of NSR 

would have to be accomplished through 

amendments to the regulations in 40 

CFR part 51 and subsequent SIP 

revisions. 

EPA then explained the consequences 

of its approval of these portions of 

Kentucky's NSR programs in light of the 

Agency's views regarding the federalstate relationship under the Act EPA 

noted that it will continue to oversee 

implementation of this important 

program by reviewing and commenting 

upon proposed permits as appropriate. 

Specifically, EPA stated, it will comment 

upon proposed permits that do not 

implement the letter of the law, as well 

as EPA's statutory and regulatory 

interpretations and applicable guidance. 

If a final permit is issued which still 

does not reflect consideration of the 

relevant factors. EPA stated that it may 

view the permit as inadequate for 

purposes of implementing the 

requirements oi the Act and Kentucky's 

SIP, and may consider enforcement 

action under Sections 113 and 187 of the 

Act to address the permit deficiency. 

Kentucky's Letts ol November 17,1S89 

On November 17,1989, Mr. William C 

Eddins. Director. Diviaion of Air Quality, 

NREPC submitted a letter regarding the 

preamble language in the September 1, 

1989 notice discussed above. NREPC 

stated that an agreement by the state to 

comply with future guidelines and 

policies adopted by EPA would be a 

delegation of legislative power 

prohibited by the state constitution, and 

sought to clarify certain points regarding 

the September 1 Federal Register notice. 

In addition, NREPC stated that EPA 

should refrain from using policies and 

guidelines to implement substantive 

changes to regulatory and statutory 

requirements. 

Litigation Regarding the September 1, 

1989 Notice 

A company sought judicial review of 

the interpretive language in the 

September 1,1989, Federal Register 

notice. Westvaco Corp. v. EPA, No. 89-

3975 (6th Cir.). In its brief. Westvaco 

asserted, inter alia, that the interpretive 

language in question constituted an 

improper imposition of binding 

regulatory requirements without proper 

rulemaking procedures. 

EPA Clarification of Interpretive 

Language in the September X, 1889 

Notice 

NREPC and Westvaco apparentiy 

have misinterpreted both the purpose 

and effect of the language in question. In 

response to the concerns expressed by 

NREPC and Westvaco, EPA today 

clarifies that it did not intend to suggest 

that Kentucky is required to follow 

EPA's interpretations and guidance 

issued under the Clean Air Act in the 

sense that those pronouncements have 

independent status as enforceable 

provisions of the Kentucky SIP. such 

that mere failure to follow such 

pronouncements, standing alone, would 

constitute a violation of the Clean Air 

Act. Rather, as discussed below, EPA's 

intent was merely to place the state and 

the public at large an notice of EPA's 

longstanding views that the Agency 

must continue to oversee and enforce 

the NSR provisions of the Act following 

approval of a state program. A such, 

strictly speaking the language in 

question was neither part of nor a 

condition of EPA's approval of 

Kentucky's SIP, and it has no binding 

effect Rather than creating new rights 

or obligations, it advised the public of 

EPA's views regarding obligations that 

already exist by operation of the 

statutory scheme. 

The issuance of NSR permits and 

other actions by the state in the 

administration of the federal Qean Air 

Act must conform to the requirements of 

the Act and the SIP. See section 167 and 

113.42 U.S.C 7477 and 7413. In making 

judgments as to what constitutes 

compliance with the Act and regulations 

issued thereunder, EPA looks to (among 

other sources) its policy statements and 

interpretive rulings in effect at the time 

of EPA'8 action regarding those 

statutory and regulatory requirements. 

It follows that state actions 

implementing the federal Clean Air Act 

which do not conform to the Act may 

lead to potential enforcement action by 

EPA. However, in defending against 

such an enforcement action, a party is 

free to assert that EPA has not 

reasonably interpreted the underlying 

statutory and regulatory provisions. 

EPA's approval of a state NSR 

program or some portion of it does not 

divest the Agency of the duty to 

continue a vigorous oversight and 

enforcement role under sections 167 and 

113. For example, section 187 provides 

that EPA shall take whatever 

enforcement action may be necessary to 

prevent construction of a major 

stationary source that does not 

"conform to the requirements o r the 

PSD program. Thus, as to PSD, the 

purpose of the preamble language in the 

September 1 notice was to advise 

Kentucky and the public of EPA's view 

that approval of a Btate's PSD program 

does not bar EPA from deciding whether 

a state-issued PSD permit conforms to 

the Act's PSD requirements. 

Following SIP approval, then. EPA 

remains as the congressionally 

designated agency with primary 

responsibility to interpret the federal 

law under the Act and to base its 

enforcement actions on those 

interpretative rulings. If EPA determines 

that a state-issued permit does not 

conform to the Act's PSD requirements. 

EPA will decide whether to sue the state 

and/or die source for declaratory and 

injunctive relief. See United States v. 

Solar Turbines, Inc., No. 88-0924, 

(IMD-Pa.) (slip op. Nov. 28.1989). 

EPA acknowledges that states have 

the primary role in administering and 

enforcing the various components of the 

NSR program. For the most part the 

states have been successful in this 

effort and EPA's involvement in 

interpretative and enforcement issues is 

limited to only a small number of cases. 

Consequently, EPA's continuing 

oversight role under die Qean Air Act 

leaves Kentucky and other states with 

considerable discretion to implement the 

NSR program as they see fit First as 

noted in the September 1 notice. EPA 

may not institute fundamental changes 

in the requirements set forth in its own 

regulations or state implementation 

plans through interpretive rulings or 

policy statements. The creation of new 

rights or obligations can only be 

accomplished by revisions to the 

regulations in 40 CFR parts 51 and 52 

and by SIP revisions, in accordance with 

applicable rulemaking procedures. 

Second, EPA's interpretations often are 

intended in whole or in part to guide 

only EPA Regional Offices, and in such 

instances they have no implications 

whatsoever for a state's BriTn.nUtrat.nn 

of its program. 

In sum. states remain free to follow 

their own course, provided that state 
P.4 

Federal Register / Vol 55; No. 112. / Monday;. June H,. 199fl / Rules and! Regulations 2354S 

action: isrconsistaxtrwidxtlis letter and 

spirit of: the SIP; whenreadin: 

conjunction witkthaQeaaAk:Act taut 

EPA's:regnlations>EPA.believea thatthe 

language in qmstirmiit the Septemberl.. 

1989umticE; as darifiedhere,, accurately; 

describes the- legal relationship between: 

EPA and tiie Commonwealth of 

Kentucky with respect to the NSR 

program. 

Uhder5 U.SXZ. 805Tb), F certify that 

this notice will not have s significant 

economic impact on a substantial 

number of small enlitiesTfeOffice-of Management and:Budget 

has exempted this-role-from the 

requirements of section 3 ofExecutive 

Order 12291. 

List of Subjects.ia4a.CER.Part 52, 

Air pollution- control! 

Intergovernmental relations. 

Authority: 4ZHSC."T0I-7S4Z. 

Dated: May 31. IStn. 

F. Henry Hahkht. 

Acting AdaunistratDZx 

[FR Doc.9&-1343Z5ilai6-a-90; tw&am] 

Bttinct