[Federal Register Volume 87, Number 189 (Friday, September 30, 2022)]
[Rules and Regulations]
[Pages 59311-59314]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-21234]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2022-0167; FRL-10150-02-R4]


Air Plan Approval; Kentucky; Boyd and Christian County Limited 
Maintenance Plans for the 1997 8-Hour Ozone NAAQS

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is approving state 
implementation plan (SIP) revisions submitted by the Commonwealth of 
Kentucky, through the Energy and Environment Cabinet (Cabinet), on 
March 29, 2021. The SIP revisions include the 1997 8-hour ozone 
National Ambient Air Quality Standards (NAAQS or standards) Limited 
Maintenance Plans (LMPs) for the Kentucky portion (hereinafter referred 
to as the Boyd County Area) of the Huntington-Ashland, WV-KY 1997 8-
hour ozone maintenance area (hereinafter referred to as the Huntington-
Ashland, WV-KY Area) and the Kentucky portion (hereinafter referred to 
as the Christian County Area) of the Clarksville-Hopkinsville, TN-KY 
1997 8-hour ozone maintenance area (hereinafter referred to as the 
Clarksville-Hopkinsville, TN-KY Area). EPA is approving Kentucky's LMPs 
for the Boyd County and Christian County Areas because they provide for 
the maintenance of the 1997 8-hour ozone NAAQS within these Areas 
through the end of the second 10-year portion of the maintenance 
period. The effect of this action would be to make certain commitments 
related to maintenance of the 1997 8-hour ozone NAAQS in the Boyd 
County and Christian County Areas federally enforceable as part of the 
Kentucky SIP.

DATES: This rule is effective October 31, 2022.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-R04-OAR-2022-0167. All documents in the docket are listed on 
the www.regulations.gov website. Although listed in the index, some 
information may not be publicly available, i.e., Confidential Business 
Information or other information whose disclosure is restricted by 
statute. Certain other material, such as copyrighted material, is not 
placed on the internet and will be publicly available only in hard copy 
form. Publicly available docket materials can either be retrieved 
electronically via www.regulations.gov or in hard copy at the Air 
Regulatory Management Section, Air Planning and Implementation Branch, 
Air and Radiation Division, U.S. Environmental Protection Agency, 
Region 4, 61 Forsyth Street SW, Atlanta, Georgia 30303-8960. EPA 
requests that if at all possible, you contact the person listed in the 
FOR FURTHER INFORMATION CONTACT section to schedule your inspection. 
The Regional Office's official hours of business are Monday through 
Friday 8:30 a.m. to 4:30 p.m., excluding Federal holidays.

FOR FURTHER INFORMATION CONTACT: Josue Ortiz Borrero, Air Regulatory 
Management Section, Air Planning and Implementation Branch, Air and 
Radiation Division, U.S. Environmental Protection Agency, Region 4, 61 
Forsyth Street SW, Atlanta, Georgia 30303-8960. The telephone number is 
(404) 562-8085. Mr. Ortiz Borrero can also be reached via electronic 
mail at [email protected].

SUPPLEMENTARY INFORMATION: 

I. Background

    In 1979, under section 109 of the CAA, EPA established primary and 
secondary NAAQS for ozone at 0.12 parts per million (ppm), averaged 
over a 1-hour period. See 44 FR 8202 (February 8, 1979). On July 18, 
1997, EPA revised the primary and secondary NAAQS for ozone to set the 
acceptable level of ozone in the ambient air at 0.08 ppm, averaged over 
an 8-hour period. See 62 FR 38856 (July 18, 1997).\1\ EPA set the 8-
hour ozone NAAQS based on scientific evidence demonstrating that ozone 
causes adverse health effects at lower concentrations and over longer 
periods of time than was understood when the pre-existing 1-hour ozone 
NAAQS was set. EPA determined that the 8-hour NAAQS would be more 
protective of human health, especially for children and adults who are 
active outdoors, and for individuals with a pre-existing respiratory 
disease, such as asthma.
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    \1\ In March 2008, EPA completed another review of the primary 
and secondary ozone NAAQS and tightened them further by lowering the 
level for both to 0.075 ppm. See 73 FR 16436 (March 27, 2008). 
Additionally, in October 2015, EPA completed another review of the 
primary and secondary ozone NAAQS and tightened them by lowering the 
level for both to 0.070 ppm. See 80 FR 65292 (October 26, 2015).
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    Following promulgation of a new or revised NAAQS, EPA is required 
by the CAA to designate areas throughout the nation as attaining or not 
attaining the NAAQS. On April 15, 2004, EPA designated the Huntington-
Ashland, WV-KY Area, which consists of Boyd County in Kentucky and 
Cabell County and Wayne County in West Virginia, and the Clarksville-
Hopkinsville, TN-

[[Page 59312]]

KY Area, which consists of Christian County in Kentucky and Montgomery 
County in Tennessee, as nonattainment for the 1997 8-hour ozone NAAQS. 
Those designations became effective on June 15, 2004. See 69 FR 23858 
(April 30, 2004).
    Similarly, on May 21, 2012, EPA designated areas as unclassifiable/
attainment or nonattainment for the 2008 8-hour ozone NAAQS. EPA 
designated the Boyd County and Christian County Areas as 
unclassifiable/attainment for the 2008 8-hour ozone NAAQS. These 
designations became effective on July 20, 2012. See 77 FR 30088 (May 
21, 2012). On November 16, 2017, areas were designated for the 2015 8-
hour ozone NAAQS. The Boyd County and Christian County Areas were again 
designated attainment/unclassifiable for the 2015 8-hour ozone NAAQS, 
with an effective date of January 16, 2018, for both areas. See 82 FR 
54232 (November 16, 2017).
    Pursuant to the CAA, a state may submit a request that EPA 
redesignate a nonattainment area that is attaining a NAAQS to 
attainment, and, if the area has met the criteria described in section 
107(d)(3)(E) of the CAA, EPA may approve the redesignation request.\2\ 
One of the criteria for redesignation is for the area to have an 
approved maintenance plan under CAA section 175A. The maintenance plan 
must demonstrate that the area will continue to maintain the NAAQS for 
the period extending ten years after redesignation, and it must contain 
such additional measures as necessary to ensure maintenance and such 
contingency provisions as necessary to assure that violations of the 
NAAQS will be promptly corrected. Eight years after the effective date 
of redesignation, the state must also submit a second maintenance plan 
to ensure ongoing maintenance of the NAAQS for an additional ten years 
pursuant to CAA section 175A(b) (i.e., ensuring maintenance for 20 
years after redesignation).
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    \2\ Section 107(d)(3)(E) of the CAA sets out the requirements 
for redesignating a nonattainment area to attainment. They include 
attainment of the NAAQS, full approval of the applicable SIP 
pursuant to CAA section 110(k), determination that improvement in 
air quality is a result of permanent and enforceable reductions in 
emissions, demonstration that the state has met all applicable 
section 110 and part D requirements, and a fully approved 
maintenance plan under CAA section 175A.
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    EPA has published long-standing guidance for states on developing 
maintenance plans. The Calcagni memo \3\ provides that states may 
generally demonstrate maintenance by either performing air quality 
modeling to show that the future mix of sources and emission rates will 
not cause a violation of the NAAQS or by showing that projected future 
emissions of a pollutant and its precursors will not exceed the level 
of emissions during a year when the area was attaining the NAAQS (i.e., 
attainment year inventory). See Calcagni memo at page 9. EPA clarified 
in three subsequent guidance memos that certain areas can meet the CAA 
section 175A requirement to provide for maintenance by showing that 
they are unlikely to violate the NAAQS in the future, using information 
such as the area design values \4\ when they are well below the 
standard and have been historically stable.\5\ EPA refers to a 
maintenance plan containing this streamlined demonstration as an LMP.
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    \3\ John Calcagni, Director, Air Quality Management Division, 
EPA Office of Air Quality Planning and Standards (OAQPS), 
``Procedures for Processing Requests to Redesignate Areas to 
Attainment,'' September 4, 1992 (Calcagni memo).
    \4\ The ozone design value for a monitoring site is the 3-year 
average of the annual fourth-highest daily maximum 8-hour average 
ozone concentrations. The design value for an ozone area is the 
highest design value of any monitoring site in the area.
    \5\ See ``Limited Maintenance Plan Option for Nonclassifiable 
Ozone Nonattainment Areas,'' from Sally L. Shaver, OAQPS, November 
16, 1994; ``Limited Maintenance Plan Option for Nonclassifiable CO 
Nonattainment Areas,'' from Joseph Paisie, OAQPS, October 6, 1995; 
and ``Limited Maintenance Plan Option for Moderate PM10 
Nonattainment Areas,'' from Lydia Wegman, OAQPS, August 9, 2001.
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    EPA has interpreted CAA section 175A as permitting the LMP option 
because section 175A of the Act does not define how areas may 
demonstrate maintenance, and in EPA's experience implementing the 
various NAAQS, areas that qualify for an LMP and have approved LMPs 
have rarely, if ever, experienced subsequent violations of the NAAQS. 
As noted in the LMP guidance memoranda, states seeking a LMP must still 
submit the other maintenance plan elements outlined in the Calcagni 
memo, including an attainment emissions inventory, provisions for the 
continued operation of the ambient air quality monitoring network, 
verification of continued attainment, and a contingency plan in the 
event of a future violation of the NAAQS. Moreover, a state seeking a 
LMP must still submit its section 175A maintenance plan as a revision 
to its SIP, with all attendant notice and comment procedures. While the 
LMP guidance memoranda were originally written with respect to certain 
NAAQS,\6\ EPA has extended the LMP interpretation of section 175A to 
other NAAQS and pollutants not specifically covered by the previous 
guidance memos.\7\
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    \6\ The prior memos addressed: unclassifiable areas under the 1-
hour ozone NAAQS, nonattainment areas for the PM10 
(particulate matter with an aerodynamic diameter less than 10 
microns) NAAQS, and nonattainment for the carbon monoxide (CO) 
NAAQS.
    \7\ See, e.g., 79 FR 41900 (July 18, 2014) (approval of the 
second ten-year LMP for the Grant County 1971 SO2 
maintenance area).
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    In this case, EPA is approving Kentucky's LMPs because the 
Commonwealth has made a showing, consistent with EPA's prior LMP 
guidance, that ozone concentrations in the Huntington-Ashland, WV-KY 
and Clarksville-Hopkinsville, TN-KY Areas are well below the 1997 8-
hour ozone NAAQS and have been historically stable and that the 
Commonwealth has met the other maintenance plan requirements. The 
Cabinet submitted the LMPs for the Boyd County and Christian County 
Areas to fulfill the CAA's second maintenance plan requirement.
    On May 20, 2005, and September 29, 2006, the Cabinet submitted 
requests to EPA to redesignate the Christian County and Boyd County 
Areas, respectively, to attainment for the 1997 8-hour ozone NAAQS. 
Those submittals included plans, for inclusion in the Kentucky SIP, to 
provide for maintenance of the 1997 8-hour ozone NAAQS in the 
Clarksville-Hopkinsville, TN-KY Area through 2016 and in the 
Huntington-Ashland, WV-TN Area through 2018. EPA approved the Boyd 
County and the Christian County Areas' Maintenance Plans and the 
Commonwealth's requests to redesignate these Areas to attainment for 
the 1997 8-hour ozone NAAQS, effective September 4, 2007, and February 
24, 2006, respectively. See 72 FR 43172 (August 3, 2007) and 71 FR 4047 
(January 25, 2006), respectively. Kentucky's March 29, 2021, submittal 
contains the second 10-year maintenance plans for the 20-year 
maintenance period of the 1997 8-hour ozone NAAQS to ensure continued 
maintenance for the Clarksville-Hopkinsville, TN-KY and Huntington-
Ashland, WV-TN Areas.
    Section 175A(b) of the CAA requires states to submit a revision to 
the first maintenance plan eight years after redesignation to provide 
for maintenance of the NAAQS for ten additional years following the end 
of the first 10-year period. However, EPA's final implementation rule 
for the 2008 8-hour ozone NAAQS revoked the 1997 8-hour ozone NAAQS and 
stated that one consequence of revocation was that areas that had been 
redesignated to attainment (i.e., maintenance areas) for

[[Page 59313]]

the 1997 NAAQS no longer needed to submit second 10-year maintenance 
plans under CAA section 175A(b). See 80 FR 12264, 12315 (March 6, 
2015).
    In South Coast Air Quality Management District v. EPA, the United 
States Court of Appeals for the District of Columbia Circuit (D.C. 
Circuit) vacated the EPA's interpretation that, because of the 
revocation of the 1997 8-hour ozone NAAQS, second maintenance plans 
were not required for ``orphan maintenance areas,'' i.e., areas that 
had been redesignated to attainment for the 1997 8-hour ozone NAAQS 
maintenance areas and were designated attainment for the 2008 ozone 
NAAQS. South Coast, 882 F.3d 1138 (D.C. Cir. 2018). Thus, states with 
these ``orphan maintenance areas'' under the 1997 8-hour ozone NAAQS 
must submit maintenance plans for the second maintenance period. 
Accordingly, on March 29, 2021, Kentucky submitted second maintenance 
plans for the Boyd County and Christian County Areas that show that the 
Areas are expected to remain in attainment of the 1997 8-hour ozone 
NAAQS through 2027 and 2026, respectively.
    In recognition of the continuing record of air quality monitoring 
data showing ambient 8-hour ozone concentrations well below the 1997 8-
hour ozone NAAQS in the Huntington-Ashland, WV-KY and Clarksville-
Hopkinsville, TN-KY Areas, the Cabinet chose the LMP option for the 
development of second 1997 8-hour ozone NAAQS maintenance plans. On 
March 29, 2021, the Cabinet adopted the second 10-year 1997 8-hour 
ozone maintenance plans and also submitted the Boyd County and the 
Christian County Areas' LMPs to EPA as revisions to the Kentucky SIP.
    In a notice of proposed rulemaking (NPRM), published on August 24, 
2022 (87 FR 51933), EPA proposed to approve Kentucky's LMP because the 
State made a showing, consistent with EPA's prior LMP guidance, that 
the Area's ozone concentrations are well below the 1997 8-hour ozone 
NAAQS and have been historically stable and that it met the other 
maintenance plan requirements. The details of Kentucky's submission and 
the rationale for EPA's action are explained in the NPRM. Comments on 
the August 24, 2022, NPRM were due on or before September 14, 2022. EPA 
did not receive any comments on the August 24, 2022, NPRM.

II. Final Action

    EPA is approving the Boyd County and Christian County Areas' LMPs 
for the 1997 8-hour ozone NAAQS, submitted by the Cabinet on March 29, 
2021, as revisions to the Kentucky SIP. EPA is approving the Boyd 
County and Christian County Areas' LMPs because they include an 
acceptable update of the various elements of the 1997 8-hour ozone 
NAAQS Maintenance Plan approved by EPA for the first 10-year period 
(including emissions inventory, assurance of adequate monitoring and 
verification of continued attainment, and contingency provisions), and 
essentially carry forward all of the control measures and contingency 
provisions relied upon in the earlier plans.
    EPA also finds that the Boyd County and Christian County Areas 
qualify for the LMP option and that the Boyd County and Christian 
County Areas' LMPs adequately demonstrate maintenance of the 1997 8-
hour ozone NAAQS through documentation of monitoring data showing 
maximum 1997 8-hour ozone levels well below the NAAQS and continuation 
of existing control measures. EPA believes that the Boyd County and 
Christian County Areas' 1997 8-Hour Ozone LMPs are sufficient to 
provide for maintenance of the 1997 8-hour ozone NAAQS in the 
Huntington-Ashland, WV-KY and Clarksville-Hopkinsville, TN-KY Areas, 
respectively, over the second 10-year maintenance period, through 2027 
and 2026, respectively, and thereby satisfy the requirements for such a 
plan under CAA section 175A(b).

III. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the Act and applicable 
Federal regulations. See 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. This action merely 
approves state law as meeting Federal requirements and does not impose 
additional requirements beyond those imposed by state law. For that 
reason, this action:
     Is not a significant regulatory action subject to review 
by the Office of Management and Budget under Executive Orders 12866 (58 
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    The SIP is not approved to apply on any Indian reservation land or 
in any other area where EPA or an Indian tribe has demonstrated that a 
tribe has jurisdiction. In those areas of Indian country, the rule does 
not have tribal implications as specified by Executive Order 13175 (65 
FR 67249, November 9, 2000), nor will it impose substantial direct 
costs on tribal governments or preempt tribal law.
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this action and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).
    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by November 29, 2022. Filing a petition for 
reconsideration by the Administrator of this final rule does not

[[Page 59314]]

affect the finality of this action for the purposes of judicial review 
nor does it extend the time within which a petition for judicial review 
may be filed, and shall not postpone the effectiveness of such rule or 
action. This action may not be challenged later in proceedings to 
enforce its requirements. See section 307(b)(2).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Nitrogen oxides, Ozone, 
Reporting and recordkeeping requirements, Volatile organic compounds.

    Dated: September 23, 2022.
Daniel Blackman,
Regional Administrator, Region 4.

    For the reasons stated in the preamble, EPA amends 40 CFR part 52 
as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

0
1. The authority citation for part 52 continues to read as follows:

    Authority: 42 U.S.C. 7401 et seq.

Subpart S--Kentucky

0
2. In Sec.  52.920(e), amend the table by adding at the end of the 
table entries for ``1997 8-Hour Ozone Second 10-Year Limited 
Maintenance Plan for the Kentucky portion of the Huntington-Ashland, 
WV-KY Maintenance Area'' and ``1997 8-Hour Ozone Second 10-Year Limited 
Maintenance Plan for the Kentucky portion of the Clarksville-
Hopkinsville, TN-KY Maintenance Area'' to read as follows:


Sec.  52.920  Identification of plan.

* * * * *
    (e) * * *

                                 EPA-Approved Kentucky Non-Regulatory Provisions
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                                       Applicable           State
   Name of non-regulatory SIP        geographic or     submittal date/  EPA approval date       Explanations
            provision             nonattainment  area  effective date
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                                                  * * * * * * *
1997 8-Hour Ozone Second 10-Year  Boyd County........       3/29/2021  9/30/2022, [Insert  .....................
 Limited Maintenance Plan for                                           citation of
 the Kentucky portion of the                                            publication].
 Huntington-Ashland, WV-KY
 Maintenance Area.
1997 8-Hour Ozone Second 10-Year  Christian County...       3/29/2021  9/30/2022, [Insert  .....................
 Limited Maintenance Plan for                                           citation of
 the Kentucky portion of the                                            publication].
 Clarksville-Hopkinsville, TN-KY
 Maintenance Area.
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[FR Doc. 2022-21234 Filed 9-29-22; 8:45 am]
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