[Federal Register Volume 89, Number 71 (Thursday, April 11, 2024)]
[Proposed Rules]
[Pages 25555-25557]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-07702]
[[Page 25555]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R04-OAR-2023-0253; FRL-11850-01-R4]
Air Plan Approval; KY; Updates to Attainment Status Designations
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The Commonwealth of Kentucky, through the Kentucky Energy and
Environment Cabinet (Cabinet), Kentucky Division for Air Quality
(KDAQ), submitted a revision to the Kentucky State Implementation Plan
(SIP) on November 29, 2022. The SIP revision updates the geographical
boundary description and attainment status designation for the
Henderson-Webster nonattainment area for the 2010 Sulfur Dioxide
(SO2) primary National Ambient Air Quality Standards
(NAAQS). The update is being made to conform Kentucky's attainment
status tables with the federal attainment status designations made for
this area. The SIP revision also includes minor language changes in the
attainment status designations provisions. EPA is proposing to approve
Kentucky's SIP revision pursuant to the Clean Air Act (CAA or Act).
DATES: Comments must be received on or before May 13, 2024.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2023-0253 at http://www.regulations.gov. Follow the online
instructions for submitting comments. Once submitted, comments cannot
be edited or removed from Regulations.gov. EPA may publish any comment
received to its public docket. Do not submit electronically any
information you consider to be Confidential Business Information (CBI)
or other information whose disclosure is restricted by statute.
Multimedia submissions (audio, video, etc.) must be accompanied by a
written comment. The written comment is considered the official comment
and should include discussion of all points you wish to make. EPA will
generally not consider comments or comment contents located outside of
the primary submission (i.e., on the web, cloud, or other file sharing
system). For additional submission methods, the full EPA public comment
policy, information about CBI or multimedia submissions, and general
guidance on making effective comments, please visit http://www.epa.gov/dockets/commenting-epa-dockets.
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. Mr. Ortiz can be
reached via phone number (404) 562-8085 or via electronic mail at
[email protected].
SUPPLEMENTARY INFORMATION:
I. Background
On November 29, 2022, the Cabinet submitted a SIP revision
containing changes to 401 Kentucky Administrative Regulation (KAR)
51:010--Attainment status designations, State effective June 9, 2022,
to be consistent with the SO2 designation status codified by
EPA at title 40 CFR part 81, subpart C as designated pursuant to
section 107 of the CAA. Regulation 401 KAR 51:010 ``establishes the
designation status of all areas of the Commonwealth of Kentucky with
regard to attainment of the'' NAAQS. Specifically, the regulation
compiles the designation status for the entire Commonwealth for the
following NAAQS: ozone (O3), fine particulate matter
(PM2.5), lead (Pb), carbon monoxide (CO), nitrogen dioxide
(NO2), SO2, and Total Suspended Particles (TSP)
in a tabular format that identifies the area and the legal geographical
boundary description consistent with the designation status codified at
40 CFR part 81. Specifically, Kentucky's SIP submission adds the
attainment status and the legal geographical boundary description for
the Henderson-Webster nonattainment area for the 2010 SO2
NAAQS as determined by EPA in SO2 designations effective on
April 14, 2021.\1\ This update is being made to ensure Kentucky's
attainment designation tables are consistent with those codified at 40
CFR 81.318 for the Commonwealth. Kentucky's proposed amendment to 401
KAR 51:010 also includes minor language changes as described below in
Section II. The SIP submittal amending the Kentucky regulation to
incorporate these changes can be found in the docket at
www.regulations.gov and is summarized below.
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\1\ See 86 FR 16055. This round of designations for the 2010 1-
hour SO2 NAAQS was signed on December 21, 2020 (86 FR
16055 (March 26, 2021)) and April 8, 2021 (86 FR 19576 (April 14,
2021)). These designations were signed by former EPA Administrator
Andrew Wheeler on December 21, 2020, pursuant to a court-ordered
deadline of December 31, 2020. For administrative purposes only, and
in compliance with requirements of the Office of the Federal
Register, former Acting Administrator Jane Nishida re-signed the
same action on March 10, 2021, for publication in the Federal
Register. EPA and state documents and public comments related to
these final designations are in the docket at regulations.gov with
Docket ID No. EPA-HQ-OAR-2020-0037 and at EPA's website for
SO2 designations at https://www.epa.gov/sulfur-dioxide-designations.
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A. NAAQS Review and Designations
Sections 108 and 109 of the CAA require EPA to set NAAQS for the
criteria air pollutants: O3, PM, CO, Pb, SO2, and
NO2, and to undertake periodic review of these standards.
After EPA sets a new NAAQS or revises an existing standard, the CAA
requires EPA to determine if areas of the country meet the new standard
and to designate areas as either nonattainment, attainment, or
unclassifiable. Such designations inform the state's planning and
implementation of requirements to achieve and maintain the NAAQS for
each area within that state.
Section 107(d) of the CAA governs the process for these area
designations. Under this process, states and tribes submit
recommendations to EPA as to whether an area is attaining the NAAQS for
criteria air pollutants. EPA then considers these recommendations as
part of its obligation to promulgate the area designations and
boundaries for the new or revised NAAQS. EPA codifies its designations
for areas within each state in 40 CFR part 81.\2\ Under section 107(d)
of the CAA, a designation for an area remains in effect until
redesignated by EPA.
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\2\ See 40 CFR 81.318 for designations for Kentucky.
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B. SO2 NAAQS Designations
On June 2, 2010, EPA revised the primary SO2 NAAQS to
provide requisite protection of public health with an adequate margin
of safety. See 75 FR 35520 (June 22, 2010). Specifically, EPA
established a new 1-hour daily maximum SO2 standard at a
level of 75 parts per billion (ppb), codified at 40 CFR 50.17. The CAA
requires EPA to complete the designations process within two years of
promulgating a new or revised standard or June 2012 for the 1-hour
SO2 NAAQS. If the Administrator has insufficient information
to make these designations by that deadline, the EPA has the authority
to extend the deadline for completing designations by up to one year.
On July 27, 2012, EPA extended the deadline for area designations for
the 2010 primary SO2 standard from June 2012 by one year to
June 2013 due to having insufficient information to make initial area
designations in two years (77 FR 46295, August 3, 2012). With this
extension, EPA completed initial designations on July 25, 2013 (78 FR
47191, August 5,
[[Page 25556]]
2013) based on air quality monitoring data available at the
time.3 4
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\3\ EPA completed the first round of SO2 designations
on July 25, 2013, designating 29 areas in 16 states as nonattainment
(78 FR 47191, August 5, 2013). EPA based this first round of
SO2 designations on monitored SO2
concentrations from Federal Reference Method and Federal Equivalent
Method monitors that were sited and operated in accordance with 40
CFR parts 50 and 58.
\4\ Following the initial August 5, 2013, designations, three
lawsuits were filed against EPA in different U.S. District Courts,
alleging the agency had failed to perform a nondiscretionary duty
under the CAA by not designating all portions of the country by the
June 2, 2013, deadline. In an effort intended to resolve the
litigation in one of those cases, EPA and the plaintiffs--Sierra
Club, and the Natural Resources Defense Council--filed a proposed
consent decree with the U.S. District Court for the Northern
District of California. On March 2, 2015, the court entered the
consent decree and issued an enforceable order for EPA to complete
the area designations by three specific deadlines according to the
court-ordered schedule.
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EPA completed the remaining area designations in three specific
``rounds'' of designations: July 2, 2016 (``Round 2''), December 31,
2017 (``Round 3''), and December 31, 2020 (``Round 4''). EPA designated
the Henderson-Webster area \5\ in Round 4 as nonattainment for the 2010
primary SO2 NAAQS. This designation was effective on April
30, 2021 \6\ and codified at 40 CFR 81.318.
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\5\ The nonattainment area is comprised of Henderson County
(partial) and Webster County (partial) and was designated
nonattainment based on the 2017-2019, 3-year design value at the
Sebree ambient air quality monitor (AQS ID: 21-101-1011). See EPA,
Technical Support Document: Chapter 3 Intended Round 4 Area
Designations for the 2010 1-Hour SO2 Primary National
Ambient Air Quality Standard for Kentucky, available at https://www.epa.gov/sites/default/files/2020-08/documents/03-ky-rd4_intended_so2_designations_tsd.pdf.
\6\ See 86 FR 19576 (April 14, 2021).
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II. Analysis of the Kentucky Submittal
Kentucky's November 29, 2022, submission updates the attainment
status designation for the 2010 SO2 NAAQS at section 9 of
Regulation 401 KAR 51:010 to include an entry for the Henderson-
Webster, KY SO2 nonattainment area, which was designated by
EPA in Round 4 SO2 designations. The SIP submission also
provides minor language changes. Specifically, the SIP revision amends
the table in paragraph (2) of section 9 of 401 KAR 51:010 to reflect
the nonattainment designation status and geographic boundaries for the
Henderson-Webster area for the 2010 primary SO2 NAAQS.
Additionally, the text ``Henderson County (part) Census Block Groups
211010207013, 211010207014, 211010207024 and 211010208004'' was removed
from the bottom section of the table, and the designated status of the
area in the table was changed from ``Attainment/Unclassifiable'' to
``Nonattainment''. Lastly, footnote 2, ``(2) Excluding Webster and the
remainder of Henderson County'' was removed because the table is now
amended to include a specific designation for the Henderson-Webster
area.
Kentucky's SIP revision also provides minor language changes to 401
KAR 51:010. The revision replaces the text ``designates the status''
with the phrase ``establishes the designation status'' in reference to
the purpose of the rule. In section 2, paragraph (1), the phrase
``shall be as listed'' replaces ``is listed'' in reference to the NAAQS
listed in sections 4 through 10 of 401 KAR 51:010. Subparagraph 3 is
revised by replacing ``defines'' with ``delineates'' in the sentence
``A road, junction, or intersection of two (2) or more roads as used in
Section 7 of this administrative regulation that defines a
nonattainment boundary for an area that is a portion of a county
designated as nonattainment for ozone for any classification except
marginal, shall include as nonattainment an area extending 750 feet
from the center of the road, junction, or intersection.'' Also,
Kentucky removed the reference to section 7 in that sentence because
section 7 specifies that it applies to ozone nonattainment areas.
EPA is proposing to approve the November 29, 2022, submission which
amends paragraph (2) of section 9 in 401 KAR 51:010 to include the
nonattainment designation status for the Henderson-Webster area for the
2010 primary SO2 NAAQS and make the other changes described
above. EPA has reviewed these changes and is proposing to find that
they are consistent with the CAA and its implementing regulations.
III. Incorporation by Reference
In this rule, EPA is proposing to include in a final EPA rule
regulatory text that includes incorporation by reference. In accordance
with requirements of 1 CFR 51.5, and as discussed in sections I and II
of this preamble, EPA is proposing to incorporate by reference Kentucky
Regulation 401 KAR 51:010, Attainment status designations, state
effective on June 9, 2022, which was revised to be consistent with the
federal attainment status designations for the areas within the
Commonwealth. EPA has made, and will continue to make, these materials
generally available through www.regulations.gov and at the EPA Region 4
office (please contact the person identified in the FOR FURTHER
INFORMATION CONTACT section of this preamble for more information).
IV. Proposed Action
EPA is proposing to approve Kentucky's November 29, 2022, SIP
revision described above, which among other things, updates regulation
401 KAR 51:010 to amend the attainment status designation for the
Henderson-Webster SO2 nonattainment area for the 2010
primary SO2 NAAQS in accordance with the designations
codified in 40 CFR 81.318. EPA is proposing to approve these changes
because they are consistent with the CAA and its implementing
regulations.
V. Statutory and Executive Order Reviews
Under the Clean Air Act, the Administrator is required to approve a
SIP submission that complies with the provisions of the Clean Air Act
and applicable Federal regulations. 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 Clean Air Act.
Accordingly, this proposed action merely proposes to approve state law
as meeting Federal requirements and does not impose additional
requirements beyond those imposed by state law. For that reason, this
proposed 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 14094 (88 FR 21879, April 11, 2023);
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 subject to Executive Order 13045 (62 FR 19885,
April 23, 1997) because it approves a state program;
Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001); and
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 Clean Air Act.
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In addition, 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 and will not impose
substantial direct costs on tribal governments or preempt tribal law as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
Executive Order 12898 (Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations, 59 FR 7629,
February 16, 1994) directs Federal agencies to identify and address
``disproportionately high and adverse human health or environmental
effects'' of their actions on minority populations and low-income
populations to the greatest extent practicable and permitted by law.
EPA defines environmental justice (EJ) as ``the fair treatment and
meaningful involvement of all people regardless of race, color,
national origin, or income with respect to the development,
implementation, and enforcement of environmental laws, regulations, and
policies.'' EPA further defines the term fair treatment to mean that
``no group of people should bear a disproportionate burden of
environmental harms and risks, including those resulting from the
negative environmental consequences of industrial, governmental, and
commercial operations or programs and policies.''
The Cabinet did not evaluate EJ considerations as part of its SIP
submittal; the CAA and applicable implementing regulations neither
prohibit nor require such an evaluation. EPA did not perform an EJ
analysis and did not consider EJ in this proposed action. Due to the
nature of the action being proposed here, this proposed action is
expected to have a neutral to positive impact on the air quality of the
affected area. Consideration of EJ is not required as part of this
proposed action, and there is no information in the record inconsistent
with the stated goal of E.O. 12898 of achieving environmental justice
for people of color, low-income populations, and Indigenous peoples.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Nitrogen dioxide, Ozone,
Particulate matter, Reporting and recordkeeping requirements, Sulfur
oxides.
Authority: 42 U.S.C. 7401 et seq.
Dated: April 5, 2024.
Jeaneanne Gettle,
Acting Regional Administrator, Region 4.
[FR Doc. 2024-07702 Filed 4-10-24; 8:45 am]
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