Air Plan Approval; KY; Updates to Attainment Status Designations
| Published date | 11 April 2024 |
| Record Number | 2024-07702 |
| Citation | 89 FR 25555 |
| Court | Environmental Protection Agency |
| Section | Proposed rules |
25555
Federal Register / Vol. 89, No. 71 / Thursday, April 11, 2024 / Proposed Rules
1
See 86 FR 16055. This round of designations for
the 2010 1-hour SO
2
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 SO
2
designations at https://
www.epa.gov/sulfur-dioxide-designations.
2
See 40 CFR 81.318 for designations for
Kentucky.
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.
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 (SO
2
) 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 ortizborrero.josue@epa.gov.
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 SO
2
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 (O
3
), fine particulate
matter (PM
2.5
), lead (Pb), carbon
monoxide (CO), nitrogen dioxide (NO
2
),
SO
2,
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 SO
2
NAAQS as determined
by EPA in SO
2
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.
A. NAAQS Review and Designations
Sections 108 and 109 of the CAA
require EPA to set NAAQS for the
criteria air pollutants: O
3
, PM, CO, Pb,
SO
2
, and NO
2
, 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.
B. SO
2
NAAQS Designations
On June 2, 2010, EPA revised the
primary SO
2
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 SO
2
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 SO
2
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 SO
2
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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3
EPA completed the first round of SO
2
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 SO
2
designations on monitored SO
2
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.
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 SO
2
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).
2013) based on air quality monitoring
data available at the time.
34
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 SO
2
NAAQS. This
designation was effective on April 30,
2021
6
and codified at 40 CFR 81.318.
II. Analysis of the Kentucky Submittal
Kentucky’s November 29, 2022,
submission updates the attainment
status designation for the 2010 SO
2
NAAQS at section 9 of Regulation 401
KAR 51:010 to include an entry for the
Henderson-Webster, KY SO
2
nonattainment area, which was
designated by EPA in Round 4 SO
2
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 SO
2
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 SO
2
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 SO
2
nonattainment area for the
2010 primary SO
2
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]
BILLING CODE 6560–50–P
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