[Federal Register Volume 89, Number 107 (Monday, June 3, 2024)]
[Rules and Regulations]
[Pages 47468-47470]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-12028]


=======================================================================
-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2023-0253; FRL-11850-02-R4]


Air Plan Approval; KY; Updates to Attainment Status Designations

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

-----------------------------------------------------------------------

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, as of June 9, 
2022, the geographical boundary description and attainment status 
designation for the Henderson-Webster SO2 nonattainment area 
for the 2010 primary SO2 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 approving Kentucky's SIP revision pursuant to the Clean Air Act (CAA 
or Act).

DATES: This rule is effective July 3, 2024.

ADDRESSES: EPA has established a docket for this action under Docket 
Identification No. EPA-R04-OAR-2023-0253. All documents in the docket 
are listed on the 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 are 
available either electronically through 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. 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 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\ 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).\2\ 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 
amendment to 401 KAR 51:010 also includes replacing 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.
---------------------------------------------------------------------------

    \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.
    \2\ 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.
---------------------------------------------------------------------------

    Through a notice of proposed rulemaking (NPRM), published on April 
11, 2024 (89 FR 25555), EPA proposed to approve the November 29, 2022, 
revision which amends the attainment status designations for the 
Henderson-Webster SO2 nonattainment area for the 2010 
primary SO2 NAAQS. EPA's rationale for approving the changes 
is described in the April 11, 2024, NPRM. Comments on the April 11, 
2024, NPRM were due on or before May 13, 2024. EPA received two 
comments on the April 11, 2024, NPRM that are not

[[Page 47469]]

relevant to this action. The comments are available in the docket for 
this action.

II. Incorporation by Reference

    In this document, EPA is finalizing regulatory text that includes 
incorporation by reference. In accordance with requirements of 1 CFR 
51.5, and as discussed in Section I of this preamble, EPA is finalizing 
the incorporation by reference of Kentucky regulation 401 KAR 51:010, 
Attainment status designations, State effective June 9, 2022, which was 
revised to be consistent with Federal attainment status designation 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). Therefore, these materials have been approved by EPA for 
inclusion in the State implementation plan, have been incorporated by 
reference by EPA into that plan, are fully Federally enforceable under 
sections 110 and 113 of the CAA as of the effective date of the final 
rulemaking of EPA's approval, and will be incorporated by reference in 
the next update to the SIP compilation.\3\
---------------------------------------------------------------------------

    \3\ See 62 FR 27968 (May 22, 1997).
---------------------------------------------------------------------------

III. Final Action

    EPA is finalizing approval of Kentucky's November 29, 2022, SIP 
revision, which 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. This 
revision also includes minor language changes in 401 KAR 51:010. EPA is 
approving these changes because they are consistent with the CAA and 
its implementing regulations.

IV. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the CAA 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. Accordingly, 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 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 CAA.
    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 action. Due to the nature of 
the action being taken here, this 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 action, and there 
is no information in the record inconsistent with the stated goal of 
E.O. 12898 of achieving EJ for people of color, low-income populations, 
and Indigenous peoples.
    This action is subject to the Congressional Review Act, and EPA 
will submit a rule report to each House of the Congress and to the 
Comptroller General of the United States. This action is not a ``major 
rule'' as defined by 5 U.S.C. 804(2).
    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by August 2, 2024. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not 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 dioxide, Ozone, 
Particulate matter, Reporting and recordkeeping requirements, Sulfur 
oxides.

    Dated: May 28, 2024.
Jeaneanne Gettle,
Acting Regional Administrator, Region 4.

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

[[Page 47470]]

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(c), amend Table 1 under the center heading ``Chapter 
51 Attainment and Maintenance of the National Ambient Air Quality 
Standards'' by revising the entry for ``401 KAR 51:010'' to read as 
follows:


Sec.  52.920  Identification of plan.

* * * * *
    (c) * * *

                      Table 1 to Paragraph (c)--EPA-Approved Kentucky Laws and Regulations
----------------------------------------------------------------------------------------------------------------
                                                            State
         State citation              Title/subject     effective date   EPA approval date       Explanation
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
               Chapter 51 Attainment and Maintenance of the National Ambient Air Quality Standards
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
401 KAR 51:010..................  Attainment status          6/9/2022  6/3/2024,.........  .....................
                                   designations.                       [Insert first page
                                                                        of Federal
                                                                        Register
                                                                        citation].
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

* * * * *
[FR Doc. 2024-12028 Filed 5-31-24; 8:45 am]
BILLING CODE 6560-50-P