Rule2026-01772
Air Plan Approval and Air Quality Designation; KY; Redesignation of the Kentucky Portion of the Louisville, KY-IN 2015 8-Hour Ozone Nonattainment Area to Attainment
Primary source
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Published
January 29, 2026
Effective
March 2, 2026
Issuing agencies
Environmental Protection Agency
Abstract
The Environmental Protection Agency (EPA) is denying the request to redesignate the Kentucky portion of the Louisville, Kentucky-Indiana, 2015 8-hour ozone nonattainment area (hereinafter referred to as the "Louisville, KY-IN Area" or "Area") to attainment for the 2015 8-hour ozone National Ambient Air Quality Standards (NAAQS or standards). EPA is taking no action at this time on Kentucky's maintenance plan, including the regional motor vehicle emission budgets for nitrogen oxides (NO<INF>X</INF>) and volatile organic compounds (VOC) for the years of 2019 and 2035, submitted with Kentucky's redesignation request for the Louisville, KY-IN Area. The redesignation request and the maintenance plan state implementation plan (SIP) revision were submitted by the Commonwealth of Kentucky, through the Kentucky Energy and Environment Cabinet (Cabinet), Division for Air Quality (KDAQ), on September 6, 2022.
Full Text
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<title>Federal Register, Volume 91 Issue 19 (Thursday, January 29, 2026)</title>
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[Federal Register Volume 91, Number 19 (Thursday, January 29, 2026)]
[Rules and Regulations]
[Pages 3838-3844]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2026-01772]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 81
[EPA-R04-OAR-2022-0789; FRL-10888-02-R4]
Air Plan Approval and Air Quality Designation; KY; Redesignation
of the Kentucky Portion of the Louisville, KY-IN 2015 8-Hour Ozone
Nonattainment Area to Attainment
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final determination.
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SUMMARY: The Environmental Protection Agency (EPA) is denying the
request to redesignate the Kentucky portion of the Louisville,
Kentucky-Indiana, 2015 8-hour ozone nonattainment area (hereinafter
referred to as the ``Louisville, KY-IN Area'' or ``Area'') to
attainment for the 2015 8-hour ozone National Ambient Air Quality
Standards (NAAQS or standards). EPA is taking no action at this time on
Kentucky's maintenance plan, including the regional motor vehicle
emission budgets for nitrogen oxides (NO<INF>X</INF>) and volatile
organic compounds (VOC) for the years of 2019 and 2035, submitted with
Kentucky's redesignation request for the Louisville, KY-IN Area. The
redesignation request and the maintenance plan state implementation
plan (SIP) revision were submitted by the Commonwealth of Kentucky,
through the Kentucky Energy and Environment Cabinet (Cabinet), Division
for Air Quality (KDAQ), on September 6, 2022.
DATES: This rule is effective March 2, 2026.
ADDRESSES: EPA has established a docket for this action under Docket
Identification No. EPA-R04-OAR-2022-0789. All documents in the docket
are listed on the <a href="http://regulations.gov">regulations.gov</a> 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 <a href="http://www.regulations.gov">www.regulations.gov</a> 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: Simone Jarvis, Air Regulatory
Management Section, Air Planning and Implementation Branch, Air and
Radiation Division, Region 4, U.S. Environmental Protection Agency, 61
Forsyth Street SW, Atlanta, Georgia 30303-8960. The telephone number is
(404) 562-8393. Ms. Jarvis can also be reached via electronic mail at
<a href="/cdn-cgi/l/email-protection#4b012a393d22386518222624252e0b2e3b2a652c243d"><span class="__cf_email__" data-cfemail="1b517a696d72683548727674757e5b7e6b7a357c746d">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
[[Page 3839]]
I. Background
On October 1, 2015, EPA revised both the primary and secondary
NAAQS for ozone to a level of 0.070 parts per million (ppm). See 80 FR
65292, October 26, 2015. For ozone, an area may be considered to be
attaining the 2015 8-hour ozone NAAQS if it meets those standards, as
determined in accordance with 40 CFR 50.19 and Appendix U of 40 CFR
part 50, based on three complete, consecutive calendar years of
quality-assured air quality monitoring data. To attain the 2015 8-hour
ozone NAAQS, the 3-year average of the annual fourth-highest daily
maximum 8-hour average ozone concentrations measured at each monitor
within an area must not exceed 0.070 ppm. Based on the data handling
and reporting convention described in 40 CFR part 50, Appendix U, the
2015 8-hour ozone NAAQS are attained if the design value (DV) is 0.070
ppm or below. The data must be collected and quality-assured in
accordance with 40 CFR part 58 and recorded in EPA's Air Quality System
(AQS).
As part of the designations process for the 2015 8-hour ozone
NAAQS, the Louisville, KY-IN Area (Clark and Floyd Counties in Indiana,
and Bullitt, Jefferson, and Oldham Counties in Kentucky) was designated
as a Marginal ozone nonattainment area, effective August 3, 2018. See
83 FR 25776, June 4, 2018. Areas that were designated as Marginal ozone
nonattainment areas were required to attain the 2015 8-hour ozone NAAQS
no later than August 3, 2021, based on 2018-2020 monitoring data. The
Louisville, KY-IN Area was reclassified by operation of law from
Marginal to Moderate nonattainment on October 7, 2022, following EPA's
finding of failure to attain by the Marginal area attainment date. See
87 FR 60897, and 40 CFR 81.318. 2015 ozone Moderate areas are to attain
the 8-hour ozone NAAQS as expeditiously as practicable, but no later
than August 3, 2024, six years after the effective date of the initial
nonattainment designations. See 40 CFR 51.1303.
On February 21, 2022, the Indiana Department of Environmental
Management (IDEM) submitted a redesignation request and maintenance
plan for the 2015 8-hour ozone NAAQS for Clark and Floyd Counties in
the Indiana portion of the Louisville, KY-IN Area. On May 18, 2022, EPA
proposed to approve the request to redesignate the Indiana portion of
the Area. See 87 FR 30129. On July 5, 2022, EPA finalized approval of
the redesignation request and maintenance plan for the Indiana portion
of the Louisville, KY-IN Area. See 87 FR 39750.
On September 6, 2022, KDAQ submitted a redesignation request and
maintenance plan for the Kentucky portion of the Louisville, KY-IN
Area. On April 18, 2023, EPA proposed to approve KDAQ's redesignation
request and maintenance plan SIP revision based, in part, on complete,
quality-assured, and certified 2019-2021 DVs for each monitor in the
Louisville, KY-IN Area. See 88 FR 23598, April 18, 2023. These DVs are
equal to or less than the level of the 2015 8-hour ozone NAAQS and were
the most current DVs at the time of proposal.
II. Violation of the NAAQS for Ozone in the Louisville, KY-IN Area
Although data indicated an attaining DV at the time of the proposed
approval, the Area preliminarily violated the 2015 8-hour ozone
standards in June 2023. Through a NPRM published on January 3, 2025,
EPA withdrew its proposed approval of KDAQ's redesignation request and
proposed instead to deny the request because the Area did not meet the
first statutory criterion for redesignation to attainment. See 90 FR
294. At the time of the proposed denial, the certified DV for 2021-2023
for the Area was 0.072 ppm, which exceeded the standard of 0.070
ppm.\1\
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\1\ Final air quality DVs for all criteria pollutants, including
ozone, are available at <a href="https://www.epa.gov/air-trends/air-quality-design-values">https://www.epa.gov/air-trends/air-quality-design-values</a>. These DVs are calculated in accordance with 40 CFR
part 50.
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After the close of the comment period for the proposed denial, the
Louisville Metro Air Pollution Control District (LMAPCD) submitted an
Exceptional Events (EE) demonstration for nine days in 2023 at the
Cannons Lane monitor, believed to have been influenced by the 2023
Canadian Wildfires. However, the EE demonstration did not have
regulatory significance for this action because concurrence on all nine
days would not affect the relevant analysis. Since the proposed denial,
EPA received certified 2024 monitoring data indicating a 2022-2024 DV
of 0.074 ppm for the Area. The data shows that even with EE concurrence
on all nine days, the 2022-2024 DV would still exceed the NAAQS. Thus,
notwithstanding the EE demonstration, the Louisville, KY-IN Area does
not meet the first statutory criterion for redesignation to attainment
of the 2015 8-hour ozone NAAQS.
In this final rule, EPA is finalizing the denial of the KDAQ's
September 6, 2022, request to redesignate the Kentucky portion of the
Louisville, KY-IN, nonattainment area to attainment for the 2015 8-hour
ozone NAAQS. Comments on the NPRM were due on or before February 3,
2025. EPA received five adverse comments and one supportive comment on
the NPRM.
III. Response to Comments
EPA received adverse comments from the Greater Louisville Inc., the
Metro Chamber of Commerce; the Commonwealth of Kentucky, Office of the
Attorney General; LMAPCD; KDAQ; and the public, (collectively, the
``commenters'') as well as a set of supportive comments from Kentucky
Resources Council, Inc. and Sierra Club.\2\ All comments received are
available in the docket for this action. In this section of this
document, EPA has summarized and grouped, for clarity and ease of
discussion, the significant adverse comments and responded to them.
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\2\ As mentioned above, EPA initially proposed approving KDAQ's
redesignation request on April 18, 2023. In response to that
proposal, EPA received several adverse comments. As explained in the
January 3, 2025, NPRM, those comments are moot because EPA withdrew
its proposed approval, and EPA has determined that it is therefore
unnecessary to respond to them.
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Comment 1: Several commenters argue that CAA section
107(d)(3)(E)(i)'s requirement that a nonattainment area ``has
attained'' the NAAQS does not require that the area continue to attain
the NAAQS after submission of a redesignation request. One commenter
asserts that because KDAQ's redesignation request was based on data
from 2019 to 2021, EPA's action ``must be based on monitoring data from
that period or snapshot, not subsequent years.'' Another commenter also
argues that EPA's decision should ``have been based on 2019-2021
monitoring data which demonstrated attainment.'' EPA received comments
asserting that the 2019 to 2021 monitoring data demonstrates that the
Area meets the 2015 ozone NAAQS and that relying on DVs beyond these
years is both impermissible and prohibits a fair and equitable
assessment of Kentucky's redesignation request. Commenters argue that
EPA's approach is ``inconsistent with the established process for
evaluating redesignation requests, contrary to the statute governing
these requests, and undermines the objective of fairly assessing the
air quality status during the specified 3-year period.''
In the January 3, 2025 NPRM, EPA cited two cases where courts have
agreed with EPA that CAA section 107(d)(3)(E)(i) requires continuing
attainment until redesignation--Southwestern Pennsylvania Growth
[[Page 3840]]
Alliance v. Browner, 121 F.3d 106 (3d Cir. 1997) (hereinafter Browner)
and Commonwealth of Kentucky v. EPA, No. 96-4274, 1998 U.S. App. LEXIS
21686 (6th Cir. 1998) (hereinafter Kentucky 1998). Commenters argue
that those decisions are invalid because they ``relied on Chevron[\3\]
deference,'' and Chevron was overruled by Loper Bright Enterprises v.
Raimondo, 603 U.S. 369 (2024) (hereinafter Loper Bright). Thus, EPA
received comment contending that EPA's interpretation of CAA section
107(d)(3)(E)(i) warrants judicial reexamination.
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\3\ Chevron, U.S.A., Inc. v. Natural Resources Defense Council,
Inc., 467 U.S. 837 (1984).
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Response 1: EPA has historically interpreted CAA section
107(d)(3)(E)(i) to require continued attainment until EPA's final
action redesignating a nonattainment area and did not propose a
different or additional interpretation in the NPRM. See 90 FR at 295,
January 3, 2025. Applying that interpretation to the particular facts
and circumstances of the Kentucky portion of the Louisville KY-IN area,
EPA is denying the reclassification request for lack of continued
attainment and to satisfy a consent decree obligation to take final
action by January 20, 2026.\4\ This final action should not be
construed as taking a definitive view on the cases cited and arguments
presented by commenters beyond the Agency's decision, for purposes of
this action, to apply the historical interpretation described at
proposal.
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\4\ See Commonwealth of Kentucky v. EPA, No. 3:24-CV-600-CHB
(W.D. Ky.).
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Comment 2: Commenters contend that, even if CAA section
107(d)(3)(E)(i) requires continued attainment, that requirement ends
when the 18-month timeframe established by section 107(d)(3)(D)
expires. Commenters note that section 107(d)(3)(D) provides that EPA
``shall'' approve or deny a redesignation request within ``18 months of
receipt of a complete State redesignation submittal.'' These commenters
argue that this provision should be interpreted as preventing EPA from
considering any information that became available more than 18 months
after receipt of a complete state redesignation submittal. Because
KDAQ's redesignation request was submitted on September 6, 2022, these
commenters argue that EPA should not be allowed to consider any data
that became available after March 6, 2024. One commenter asserts that
CAA Section 107(d)(3) ``does not give EPA the authority to reverse a
redesignation based on post-deadline data.''
In support of this argument, commenters assert that EPA improperly
relies on Browner and Kentucky 1998, mentioned above. One commenter
notes that that the petitioners in Browner failed to raise the 18-month
deadline argument during the rulemaking process, and thus the argument
was forfeited. This commenter asserts that Kentucky 1998 ``adds
little'' because it is unpublished, and EPA did not miss any deadline
to act in that case. The commenters argue that if EPA is allowed to
consider data that became available after the 18-month timeframe, then
``there is no consequence'' for EPA not acting. One commenter contends
that EPA's interpretation of section 107(d)(3)(E)(i) allows it to
``move the goal post'' because areas must continue to attain the NAAQS
after the 18-month timeframe. The commenter asserts that states cannot
know ``what data the [EPA] will consider in acting on a redesignation
request,'' if EPA is allowed to consider data after the 18-month
timeframe established by section 107(d)(3)(D).
The commenters argue that a court will enforce the mandatory
section 107(d)(3)(D) deadline following legal challenge by preventing
EPA from considering certain data. They point to a concurring opinion
in Kentucky v. EPA, 123 F.4th 447 (6th Cir. 2024) (Kentucky 2024) to
argue that the Administrative Procedure Act (``APA'') authorizes a
court to prevent an agency from ``using data generated after its
deadline to act.'' See 123 F.4th at 474 (Murphy, J., concurring). The
commenter notes that APA section 706(2)(A) allows a court to set aside
an agency action that is ``not in accordance with the law.'' The
commenter argues the use of the word ``shall'' in CAA section
107(d)(3)(D) suggests that EPA lacks discretion to miss the 18-month
deadline to approve or deny a redesignation request. The commenter then
contends that consideration of post-deadline ``monitoring data is not
in accordance with the law'' because EPA did not finalize an action
``on Kentucky's redesignation request within the timeframe established
by Section 107(d)(3)(D).'' The commenter further argues that EPA's
failure to abide by the statutory deadline had a ``substantial
influence'' on the outcome of the request because it allowed EPA to
consider post-deadline monitoring data.
Response 2: As discussed in Response 1, EPA has historically
interpreted CAA section 107(d)(3)(E)(i) to require continued attainment
until EPA's final action redesignating a nonattainment area and did not
propose a different or additional interpretation in the NPRM. Applying
that interpretation to the particular facts and circumstances here, EPA
is denying the reclassification request for lack of continued
attainment and to satisfy a consent decree obligation to take final
action by January 20, 2026. This final action should not be construed
as taking a definitive view on the cases cited and arguments presented
by commenters, including with respect to potential legal implications
of the 18-month statutory deadline, beyond the Agency's decision, for
purposes of this action, to apply the historical interpretation
described at proposal.
Comment 3: Commenters state that EPA ``delayed'' processing KDAQ's
redesignation request, with one commenter asserting that this ``delay
is the sole reason the Kentucky portion of the [Area] is not designated
attainment.'' EPA received a comment asserting that EPA's ``delay in
making a final decision on Kentucky's redesignation request short-
circuits the statutory process.'' Commenters argue that their
interpretation of CAA section 107(d)(3)(E)(i) that would prevent EPA
from considering data after the 18-month deadline is best because it
would prevent EPA from engaging in ``unreasonable delay.'' If EPA's
interpretation is accepted, commenters contend that the CAA section
107(d)(3)(D) deadline would be ``wholly nullifie[d]'' and
``toothless.'' They claim that EPA's interpretation ``indicates there
is no consequence'' for delay and allows the Administrator to wait
``until data becomes available that allows him to deny the
[redesignation] request.''
Response 3: EPA disagrees that ``delay'' on the Agency's part is
the ``sole reason'' why the Kentucky portion of the Area is not being
designated as attainment. Rather, EPA is denying the reclassification
request for lack of continued attainment and to satisfy a consent
decree obligation to take final action by January 20, 2026. As
discussed in Responses 1 and 2, EPA is relying on its historical
interpretation of CAA section 107(d)(3)(E)(i) and did not propose a
different or additional interpretation in the NPRM. EPA notes that the
Agency provided support to KDAQ during the preparation of the
redesignation request and associated maintenance plan and encouraged
the Commonwealth to submit the request and plan as soon as possible.
EPA also assisted LMAPCD by providing resources to aid in preparing its
EE demonstration. The Agency stands ready to engage further with KDAQ,
LMAPCD, and the Commonwealth to support efforts to bring the Kentucky
portion of the Area into attainment status.
[[Page 3841]]
Comment 4: Many of the commenters argue that the data available to
EPA within CAA section 107(d)(3)(D)'s 18-month timeframe was attaining
the NAAQS. One commenter notes that 2023 monitoring data was not
certified until after expiration of the 18-month deadline and that
EPA's redesignation guidance states that air monitoring data should be
``collected and quality-assured in accordance with 40 CFR 58.'' \5\
This commenter then cites 40 CFR 58.15, containing annual air
monitoring data certification requirements, and argues that 2023
monitoring data was not ``quality assured in accordance with 40 CFR
58'' until May 1, 2024, when KDAQ submitted its annual certification
letter. Another commenter similarly argues that during the 18-month
statutory review period, ``only the 2019-2021 and 2020-2022 design
values met the necessary regulatory criteria in 40 CFR part 50.''
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\5\ Citing to Procedures for Processing Requests to Redesignate
Areas to Attainment, Memorandum from John Calcagni, Director, Air
Quality Management Division, September 4, 1992 (Calcagni
Memorandum).
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Response 4: EPA has previously considered preliminary monitoring
data in assessing whether an area should be redesignated, including
when EPA initially proposed approving KDAQ's present redesignation
request. See 88 FR 23598, 23601, April 18, 2023 (``Preliminary 2022
ozone monitoring data currently indicates attaining 2022 design values
for the Louisville, KY-IN Area.''). Here, the information available to
EPA on March 6, 2024, at least raised questions whether the Area was
attaining the 2015 ozone NAAQS. EPA did not propose a different
understanding of applicable law and regulations in the NPRM. Under
these facts and circumstances, and as noted in Responses 1, 2, and 3,
EPA is applying its historical interpretation of CAA section
107(d)(3)(E)(i) to the particular facts and circumstances here by
denying the reclassification request for lack of continued attainment
and to satisfy a consent decree obligation to take final action by
January 20, 2026.
Comment 5: EPA received comments noting that LMAPCD was completing
an EE demonstration during the comment period for the NPRM to account
for monitoring data impacted by the 2023 Canadian Wildfires. A
commenter argues that use of 2023 monitoring data is ``improper''
because the data was ``incomplete'' until LMAPCD submitted the EE
demonstration. Another commenter contends that the appropriate
``contingency measure'' for the 2023 exceedances is the submittal of an
EE demonstration. Commenters assert that at the ``direction of EPA, air
agencies were advised to submit'' EE demonstrations to account for the
2023 Canadian Wildfires. EPA received comment asserting that EPA
advised states that it would develop a tool to assist with the
development of EE demonstrations--the Expedited Modeling of Burn Events
Results (EMBER)--that was not released until December 2024. A commenter
suggests that LMAPCD's EE demonstration was ``delayed while waiting for
EPA to release EMBER.''
EPA received comment stating that EPA must ``acknowledge the
Canadian Wildfires'' and that EPA would act ``arbitrarily'' if it
denied KDAQ's redesignation request without considering the EE
demonstration. A commenter asserts that the EE demonstration ``will
demonstrate that the Louisville Area continues to attain the ozone
standard''. LMAPCD's comment acknowledges the 2024 ozone exceedances
and asserts, without further explanation, that it ``is evaluating the
cause of those exceedances.'' Finally, LMAPCD notes that a coal-fired
boiler (Mill Creek Unit 1) was scheduled to shut down on December 31,
2024.
Response 5: To be excluded from the complete, certified 2023
monitoring data, LMAPCD had to submit an EE demonstration showing ``to
the Administrator's satisfaction that [an exceptional] event caused a
specific air pollution concentration at a particular air quality
monitoring location.'' 40 CFR 50.14(a)(1) (ii); see also 40 CFR part 50
App'x U, section 1(b) (``Whether to exclude or retain the data affected
by exceptional events is determined by the requirements under
Sec. Sec. 50.1, 50.14 and 51.930.''). LMAPCD submitted the EE
demonstration on June 11, 2025. LMAPCD's EE demonstration does not have
regulatory significance for this action \6\ because even if EPA were to
concur on all nine days in the EE demonstration, the Area's complete
certified 2022-2024 DV would be 0.073 ppm, and the preliminary 2023-
2025 DV would be 0.072 ppm. Thus, even if EPA were to concur on all
nine days in the EE demonstration, the Agency cannot redesignate the
Kentucky portion of the Area to attainment based on current data under
the historical interpretation referenced above in Responses 1, 2, 3,
and 4.
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\6\ On August 12, 2025, EPA concurred on six of the nine days in
the EE demonstration. Exclusion of those EE days from the monitoring
data would reduce the 2021-2023 DV to 0.070 ppm. As such, the EE
demonstration has regulatory significance for purposes of
determining whether the Area attained the 2015 ozone NAAQS as of the
applicable August 3, 2024, Moderate attainment date.
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Comment 6: One commenter notes that CAA section 107(d)(3)(E)(i)
requires a determination that ``the area'' has attained the NAAQS. The
commenter contrasts this language with the language in CAA section
107(d)(3)(D) and (E) referring to an area ``or portion thereof.'' Thus,
the commenter contends that EPA ``must determine that an entire area
has attained the relevant NAAQS, even if [a] redesignation request is
only for a portion of the area.'' Because EPA Region 5 approved the
redesignation of the Indiana portion of the Area, the commenter argues
that EPA has ``determined that the entire Louisville Area has attained
the 2015 8-hour ozone NAAQS.'' Based on this assertion, the commenter
argues that KDAQ does not need to meet the ``requirement of Section
107(d)(3)(E)(i)'' to support its redesignation request.
Response 6: For EPA to redesignate a portion of a multistate area
from nonattainment to attainment, all the requirements of CAA section
107(d)(3)(E) must be met. As noted above in Responses 1, 2, 3, 4, and
5, EPA is relying on its historical interpretation of CAA section
107(d)(3)(E)(i) for purposes of this final action and did not propose
an additional or different interpretation in the NPRM, including with
respect to the interpretation of ``area'' and the potential impact of
the Indiana portion of the Area. Therefore, EPA is denying the
reclassification request for lack of continued attainment and to
satisfy a consent decree obligation to take final action by January 20,
2026.
Comment 7: EPA received comments asserting that CAA section
301(a)(2)(A) requires EPA regions to process requests ``with similar
diligence and timeliness'' and in a consistent ``timeframe'' while
noting that the section requires the Administrator to ``promulgate
regulations'' to ``assure fairness and uniformity in the criteria,
procedures, and policies applied by the various regions in implementing
and enforcing the [CAA].'' Commenters argue that Region 4's failure to
act in a timeframe consistent with Region 5's handling of IDEM's
request did not assure fairness and uniformity because Region 4 would
have approved KDAQ's redesignation request based on 2019-2021 data had
it followed Region 5's timeframe. EPA received comment asserting that
the ``primary difference between the two redesignation requests'' is
that IDEM's request was ``timely reviewed,'' but Region 4 ``delayed
making a final decision'' on KDAQ's request.
[[Page 3842]]
A commenter asserts that CAA section 301(a)(2)(A) prohibits EPA
regions from taking ``separate actions on a multi-state nonattainment
area'' because doing so results in contradictory regulations, delayed
action, and a lack of accountability and ``introduces unnecessary
complexity and inefficiency in the regulatory process.'' The commenter
further asserts that EPA ``arbitrarily withdr[ew] the first attainment
determination'' which generates additional work and wastes taxpayer
dollars. Another commenter contends that EPA cannot explain ``how
differently the two requests for redesignation requests were processed
by Region [4] and Region [5].'' A third commenter asserts that the CAA
prohibits EPA from ``ignor[ing] statutory deadlines depending on which
of its offices processes a request.'' Finally, commenters contend that
``inconsistent determinations by EPA'' or failing to act in a
``uniform'' timeframe are ``arbitrary and capricious.''
Response 7: CAA section 301(a)(2) requires the EPA Administrator to
promulgate regulations establishing general applicable procedures and
policies to, among other things, assure fairness and uniformity in the
criteria, procedures, and policies applied by the various regions in
implementing and enforcing the CAA. See 42 U.S.C. 7601(a)(2)(A). EPA
complied with this section by promulgating regional consistency
regulations under 40 CFR part 56, including a regulation stating that
it is EPA policy to ``[a]ssure fair and uniform application by all
Regional Offices of the criteria, procedures, and policies employed in
implementing and enforcing the [CAA].'' 40 CFR 56.3(a). As it relates
to KDAQ's redesignation request, Region 4 is applying the same
redesignation ``criteria, procedures, and policies'' that Region 5, and
all other regions, follow. The different outcomes between KDAQ's
request and IDEM's request is the result of EPA's application of its
historical interpretation of CAA section 107(d)(3)(E)(i) to the
particular facts and circumstances here.
Comment 8: One commenter asserts that it is ``facially
inconsistent'' for the Kentucky portion of the Area to be designated
nonattainment when the Indiana portion is designated attainment. This
commenter also argues that it is ``unlawful'' for EPA to determine that
the Kentucky portion of the Area is nonattainment ``based on the same
monitoring data'' that Indiana submitted in support of its
redesignation request. The commenter further contends that multistate
nonattainment areas have historically ``been treated as a single air
quality management zone, with consistent actions applied across both
states.'' According to this commenter, the Louisville Area is the only
multistate area that currently that has different attainment
designations. The commenter argues that having a multistate area with
differing attainment designations will undermine regional planning
efforts and contends that ``past and current practices'' dictate that
the Louisville Area be designated ``as a single unit.'' One commenter
argues that Browner and Kentucky 1998 are inapplicable because they did
not involve ``a situation where the EPA's denial of a redesignation
request results in a single air quality control region being split into
two different attainment designations.''
EPA received comment asserting that differing attainment
designations will result in the Kentucky portion of the Area facing
stricter emissions regulations than the Indiana portion. Commenters
contend this creates an economic disadvantage for businesses and the
public in Kentucky. Commenters further argue that differing attainment
designations will result in an unfair distribution of the regulatory
burden when Kentucky and Indiana should be working together and sharing
responsibility for ensuring clean air. They claim that a uniform
designation for the Area is the only way to create a predictable
regulatory structure and prevent economic imbalances.
Response 8: Each state must submit its own redesignation request
for the portion of a multistate area within its borders, and EPA must
assess those requests under the factors set out in CAA section
107(d)(3)(E). EPA is not denying KDAQ's redesignation request ``based
on the same monitoring data'' that IDEM submitted in support of its
request. EPA approved IDEM's redesignation request on July 5, 2022,
because the Area's DV demonstrated attainment of the NAAQS. With
respect to KDAQ's request, the facts and circumstances presented a
different record. As discussed above, EPA is basing this decision on
its historical interpretation of CAA section 107(d)(3)(E)(i) and did
not propose a different or additional interpretation in the NPRM. EPA
is denying the reclassification request for lack of continued
attainment and to satisfy a consent decree obligation to take final
action by January 20, 2026.
Comment 9: Several commenters argue that the contingency measures
in the proposed maintenance plan KDAQ submitted along with its
redesignation request would adequately correct the NAAQS violation that
has occurred. A commenter asserts that EPA relies on a ``semantic
argument'' in proposing to deny KDAQ's redesignation request, and that
EPA's actions render the contingency measures in a maintenance plan
``superfluous.'' EPA received a comment asserting that EPA's
``inability to act on Kentucky's redesignation request'' will ``result
in a penalty for the Kentucky portion of the Louisville Area.'' Another
commenter claims that if the Area is ``designated a nonattainment area
as proposed by EPA,'' Kentucky will face ``sanctions'' and be required
to impose regulations that are more stringent than those in the
proposed maintenance plan. This commenter states that EPA could still
consider the monitored ozone exceedances and that ``it may be
appropriate for EPA to require Kentucky to determine if additional
measures are necessary to maintain attainment.'' Commenters assert that
the contingency measures in the maintenance plan would be less
burdensome than the statutory requirements for a nonattainment area. A
commenter argues that the ``harms'' of nonattainment area requirements
``can be avoided if EPA simply adopts the best reading of the [CAA].''
EPA received comment contending that EPA ``acknowledged the
redesignation request was approvable in a prior proposed action'' and
that EPA ``could easily approve the redesignation request and allow the
contingency measures to be implemented.'' A commenter asserts that EPA
would undermine the CAA by not ``allowing the safeguards in the SIP to
play out'' and that states have no incentive to ``prepare contingency
measures'' if EPA does not allow them to use those measures ``to
account for fluctuating design values.'' This commenter claims that the
Louisville situation is ``likely to become the norm'' because ``the
NAAQS continue to become more stringent.'' The commenter further argues
that EPA should show ``faith in the [CAA] and faith in state and local
air agencies to implement contengency [sic] measures effectively.''
Response 9: The Kentucky portion of the Area has been designated
nonattainment since August 3, 2018. See 83 FR 25776, June 4, 2018. EPA
is denying a redesignation to attainment because it concludes on these
facts and circumstances that, under the Agency's historical
interpretation of CAA section 107(d)(3)(E)(i), KDAQ's request does not
meet the statutory requirements. See 42 U.S.C. 7407(d)(3)(E). CAA
section 175A provides that nonattainment requirements ``shall continue
in force and effect'' for ``any area designated as
[[Page 3843]]
a nonattainment area'' until that ``area is redesignated as
attainment.'' 42 U.S.C. 7505a(c).
An area cannot be redesignated unless a state prepares and submits
``a maintenance plan for the area'' as a SIP revision, the maintenance
plan includes contingency measures, and EPA approves that plan. 42
U.S.C. 7407(d)(3)(E)(iv), 7505a(a), (d). However, that does not mean an
area can be redesignated without meeting the other requirements of CAA
section 107(d)(3)(E). The fact that KDAQ's proposed maintenance plan
has contingency measures is not relevant to the question whether the
Area has attained the NAAQS.
Comment 10: EPA received comments noting that the design of the CAA
requires ``cooperative federalism'' with EPA working together with
state and local agencies as co-regulators protecting human health and
the environment. Commenters point out that EPA approved IDEM's request
and argue that EPA would waste limited government resources by denying
the KDAQ redesignation request. EPA received a comment asserting that
EPA's ``inaction'' goes against the CAA's goal of cooperative
federalism. Commenters assert that approving the redesignation request
``upholds EPA's end of the [cooperative federalism] bargain.''
Response 10: EPA works closely with state and local agencies under
the CAA's cooperative federalism framework. EPA worked with LMAPCD,
KDAQ, IDEM and other regional partners on the redesignation requests
for the Area. Part of the CAA's cooperative federalism structure allows
each state to submit its own redesignation request for areas (or
portions of areas) with the state. See 42 U.S.C. 7407(d)(3)(D). For the
reasons stated above, EPA is applying its historical interpretation of
CAA section 107(d)(3)(E)(i) to the particular facts and circumstances
presented here to deny the reclassification request for lack of
continued attainment and to satisfy a consent decree obligation to take
final action by January 20, 2026. This decision does not take away from
the Commonwealth's considerable discretion in other respects under the
statute to implement the NAAQS, and EPA is committed to further
engagement with all relevant parties to further the CAA's cooperative
federalism framework.
III. Final Action
EPA is denying KDAQ's September 6, 2022 redesignation request
because the Area has not met the first redesignation criterion. See 42
U.S.C. 7407(d)(3)(E)(i). EPA is not taking action on KDAQ's
accompanying maintenance plan SIP revision to fulfill the other
redesignation criteria, given its denial of the request based on air
quality data.
IV. Statutory and Executive Order Reviews
Additional information about these statutes and Executive Orders
can be found at <a href="https://www.epa.gov/laws-regulations/laws-and-executive-orders">https://www.epa.gov/laws-regulations/laws-and-executive-orders</a>.
A. Executive Order 12866: Regulatory Planning and Review
This action is not a significant regulatory action as defined in
Executive Order 12866 and was therefore not subject to a requirement
for Executive Order 12866 review.
B. Executive Order 14192: Unleashing Prosperity Through Deregulation
This action is not subject to Executive Order 14192 because this
action is not significant under Executive Order 12866.
C. Paperwork Reduction Act (PRA)
This action does not impose an information collection burden under
the PRA because it does not contain any information collection
activities.
D. Regulatory Flexibility Act (RFA)
I certify that this action will not have a significant economic
impact on a substantial number of small entities under the RFA (5
U.S.C. 601 et seq.). This action will not impose any requirements on
small entities because it merely denies a redesignation request as not
meeting federal requirements.
E. Unfunded Mandates Reform Act (UMRA)
This action does not contain an unfunded mandate as described in
UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect
small governments. The action imposes no enforceable duty on any state,
local or tribal governments or the private sector.
F. Executive Order 13132: Federalism
This action does not have federalism implications. It will not have
substantial direct effects on the states, on the relationship between
the national government and the states, or on the distribution of power
and responsibilities among the various levels of government.
G. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This action does not have tribal implications, as specified in
Executive Order 13175, because 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 and will not
impose substantial direct costs on tribal governments or preempt tribal
law. Thus, Executive Order 13175 does not apply to this action.
H. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
EPA interprets Executive Order 13045 as applying only to those
regulatory actions that concern environmental health or safety risks
that EPA has reason to believe may disproportionately affect children,
per the definition of ``covered regulatory action'' in section 2-202 of
the Executive Order. Therefore, this action is not subject to Executive
Order 13045 because it merely denies a redesignation request as not
meeting federal requirements. Furthermore, EPA's Policy on Children's
Health does not apply to this action.
I. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
This action is not subject to Executive Order 13211 because it is
not a significant regulatory action under Executive Order 12866.
J. National Technology Transfer and Advancement Act (NTTAA)
This action does not involve technical standards.
K. Congressional Review Act (CRA)
This action is subject to the CRA, 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).
[[Page 3844]]
L. Petitions for Judicial Review
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 March 30, 2026. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of this rule 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 81
Environmental protection, Air pollution control, National parks,
Wilderness areas.
Authority: 42 U.S.C. 7401 et seq.
Dated: January 20, 2026.
Kevin McOmber,
Regional Administrator, Region 4.
[FR Doc. 2026-01772 Filed 1-28-26; 8:45 am]
BILLING CODE 6560-50-P
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</html>Indexed from Federal Register on January 29, 2026.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.