[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]



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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,

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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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