Kentucky Air LawApril 27, 2018 – Newsletters
Kentucky Submits Comments on Proposed Clean Power Plan Repeal
By letter dated January 12, 2018, the Energy and Environment Cabinet, on behalf of the Commonwealth of Kentucky, submitted comments supporting EPA’s proposal to repeal the Clean Power Plan (CPP) rules for existing sources finalized during the Obama administration. The Cabinet was active throughout the CPP promulgation process expressing both legal and technical concerns during comment periods on EPA’s proposed rules. In support of repeal, the Cabinet commented the final CPP went beyond EPA’s statutory authority by expanding emission limitations beyond individual sources to limits based on the level of emission reduction each state was capable of achieving across its power sector, contrary to the plain language of Clean Air Act (CAA) Section 111(d). The Cabinet further commented the CPP treatment of modified and reconstructed sources as existing sources ignored the statutory treatment of those sources as new, rather than existing, sources.
Kentucky commented the standards of performance set by the rule were unreasonable and ignored the historical approach to rulemaking under CAA Section 111 by setting final standards for existing sources in Kentucky that are more stringent than for new sources. Further, Kentucky commented the final rule bore no resemblance to the proposed rule and placed more stringent standards on Kentucky in an arbitrary and capricious manner. Thus, Kentucky was not provided the opportunity to comment on what became the final rule. In fact, Kentucky commented, the final rule “eerily” included the elements from a 2013 environmental group study that analysis revealed would have shuttered all coal-fired generation in Kentucky by 2025. “Congress never intended for EPA to establish unreasonable standards of performance for the purpose of shutting down particular sources or industries.” The Cabinet raised concerns regarding contradictions between the proposed and final rule regarding assessment of the standards and also raised concerns regarding EPA’s Regulatory Impact Analysis, given the rule’s impact on Kentucky.
On February 1, 2018, EPA provided notice in the Federal Register that it would hold three public listening sessions, the last in March, and that the public comment period for the proposed repeal would be reopened through April 26, 2018. As of April 12, the federal rulemaking website reported a total of 567,025 comments received by EPA. We will continue to monitor and report on CPP repeal developments. The full Cabinet comments can be read here.
Kentucky Regulatory Amendments
On March 13, 2018, the Division for Air Quality submitted regulations to incorporate the federal Cross-State Air Pollution Rules (CSAPR) as published by EPA on July 1, 2017. 401 KAR 51:240 will incorporate by reference 40 CFR 97.401 through 97.435, Subpart AAAAA for Kentucky sources subject to the NOX annual trading program. 401 KAR 51:250 will incorporate by reference 40 CFR 97.801 through 97.835, Subpart EEEEE for Kentucky sources subject to the NOX ozone season group two trading program. 401 KAR 51:260 will incorporate by reference 40 CFR 97.601 through 97.635, Subpart CCCCC for Kentucky sources subject to the SO2 group 1 trading program. the public comment period closed April 30, 2018. Once the regulations are effective, the Division will submit a request to EPA for inclusion into the State Implementation Plan.
On April 18, 2018, EPA published a proposed rule to approve Kentucky’s February 28, 2018 draft State Implementation Plan (SIP) submission pertaining to the “good neighbor” provision of the Clean Air Act for the 2008 eight hour ozone National Ambient Air Quality Standard (NAAQS). The Kentucky submission demonstrates no additional emission reductions are necessary to satisfy the good neighbor provisions beyond the requirements of the Cross-State Air Pollution Rule. The comment period for the proposed rule ends on May 18, 2018.