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[Federal Register Volume 90, Number 2 (Friday, January 3, 2025)]
[Proposed Rules]
[Pages 294-297]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-31617]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 81

[EPA-R04-OAR-2022-0789; FRL-10888-03-R4]

Air Quality Designations; 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: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is withdrawing its 
proposed approval of 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 withdrawing its April 18, 2023, 
proposed approval and is now proposing to deny Kentucky's request to 
redesignate the Kentucky portion of the Area from nonattainment to 
attainment, based on the Area's violation of the NAAQS. EPA is taking 
no action at this time on Kentucky's maintenance plan, including the 
regional motor vehicle emission budgets for nitrogen oxides 
(NOX) 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 maintenance plan 
state implementation plan (SIP) revision were submitted by the 
Commonwealth of Kentucky, through the Kentucky Energy and Environment 
Cabinet (Cabinet), Division of Air Quality (DAQ), on September 6, 2022.

DATES: Comments must be received on or before February 3, 2025.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2022-0789 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 https://www.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Sarah LaRocca, Air Planning and 
Implementation Branch, Air and Radiation Division, U.S. Environmental 
Protection Agency, Region 4, 61 Forsyth Street SW, Atlanta, Georgia 
30303-8960. The telephone number is (404) 562-8994. Ms. Sarah LaRocca 
can also be reached via electronic mail at [email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    On September 6, 2022, Kentucky submitted a request to redesignate 
the Kentucky portion of the Louisville, KY-IN 2015 8-hour ozone 
nonattainment area from nonattainment to attainment. Accompanying 
Kentucky's request for redesignation under Clean Air Act (CAA or Act) 
section 107(d)(3)(D) was a SIP revision containing a maintenance plan 
for the Area, as is required by CAA sections 107(d)(3)(E)(iv) and 175A 
in order for EPA to redesignate an area from nonattainment to 
attainment. On April 18, 2023, EPA proposed to take the following 
separate but related actions addressing the September 6, 2022, 
submittal: (1) to approve Kentucky's plan for maintaining the 2015 
ozone NAAQS (maintenance plan), including the associated motor vehicle 
emissions budgets (budgets) for the Louisville, KY-IN Area, and 
incorporate the plan into the SIP, and (2) to redesignate the Kentucky 
portion of the Area to attainment for the 2015 8-hour ozone NAAQS. EPA 
also notified the public of the status of EPA's adequacy determination 
for the budgets for the Area. The Louisville, KY-IN Area is composed of 
Bullitt, Jefferson, and Oldham Counties in Kentucky, and Clark and 
Floyd Counties in Indiana. These proposed actions are summarized below 
and described in greater detail in the notice of proposed rulemaking 
(NPRM) published on April 18, 2023. See 88 FR 23598.

II. Criteria for Redesignation

    The CAA provides the requirements for redesignating a nonattainment 
area to attainment. Specifically, section 107(d)(3)(E) of the CAA 
prohibits the redesignation of such an area unless: (1) the EPA 
Administrator determines that the area has attained the applicable 
NAAQS; (2) the Administrator has fully approved the applicable 
implementation plan for the area under section 110(k); (3) the 
Administrator determines that the improvement in air quality is due to 
permanent and enforceable reductions in emissions resulting from 
implementation of the applicable SIP and applicable Federal air 
pollutant control regulations and other permanent and enforceable 
reductions; (4) the Administrator has fully approved a maintenance plan 
for the area as meeting the requirements of section 175A; and (5) the 
state containing such area has met all requirements applicable to the 
area for purposes of redesignation under section 110 and part D of the 
CAA.\1\
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    \1\ EPA provided guidance on redesignations in the General 
Preamble for the Implementation of title I of the CAA Amendments of 
1990 on April 16, 1992 (see 57 FR 13498) and supplemented that 
guidance on April 28, 1992 (see 57 FR 18070). EPA has provided 
further guidance on processing redesignation requests in the 
following documents: 1. ``Ozone and Carbon Monoxide Design Value 
Calculations,'' Memorandum from Bill Laxton, Director, Technical 
Support Division, June 18, 1990; 2. ``Maintenance Plans for 
Redesignation of Ozone and Carbon Monoxide Nonattainment Areas,'' 
Memorandum from G.T. Helms, Chief, Ozone/Carbon Monoxide Programs 
Branch, April 30, 1992; 3. ``Contingency Measures for Ozone and 
Carbon Monoxide (CO) Redesignations,'' Memorandum from G.T. Helms, 
Chief, Ozone/Carbon Monoxide Programs Branch, June 1, 1992; 4. 
``Procedures for Processing Requests to Redesignate Areas to 
Attainment,'' Memorandum from John Calcagni, Director, Air Quality 
Management Division, September 4, 1992 (hereinafter referred to as 
the ``Calcagni Memorandum''); 5. ``State Implementation Plan (SIP) 
Actions Submitted in Response to Clean Air Act (CAA) Deadlines,'' 
Memorandum from John Calcagni, Director, Air Quality Management 
Division, October 28, 1992; 6. ``Technical Support Documents (TSDs) 
for Redesignation of Ozone and Carbon Monoxide (CO) Nonattainment 
Areas,'' Memorandum from G.T. Helms, Chief, Ozone/Carbon Monoxide 
Programs Branch, August 17, 1993; 7. ``State Implementation Plan 
(SIP) Requirements for Areas Submitting Requests for Redesignation 
to Attainment of the Ozone and Carbon Monoxide (CO) National Ambient 
Air Quality Standards (NAAQS) On or After November 15, 1992,'' 
Memorandum from Michael H. Shapiro, Acting Assistant Administrator 
for Air and Radiation, September 17, 1993 (hereinafter referred to 
as the ``Shapiro Memorandum''); 8. ``Use of Actual Emissions in 
Maintenance Demonstrations for Ozone and CO Nonattainment Areas,'' 
Memorandum from D. Kent Berry, Acting Director, Air Quality 
Management Division, November 30, 1993; 9. ``Part D New Source 
Review (Part D NSR) Requirements for Areas Requesting Redesignation 
to Attainment,'' Memorandum from Mary D. Nichols, Assistant 
Administrator for Air and Radiation, October 14, 1994 (hereinafter 
referred to as the ``Nichols Memorandum''); and 10. ``Reasonable 
Further Progress, Attainment Demonstration, and Related Requirements 
for Ozone Nonattainment Areas Meeting the Ozone National Ambient Air 
Quality Standard,'' Memorandum from John S. Seitz, Director, Office 
of Air Quality Planning and Standards, May 10, 1995.

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[[Page 295]]

    Regarding the first criterion's requirement that the area ``has 
attained'' the relevant NAAQS, since the passage of the 1990 Amendments 
to the CAA, EPA has consistently read that provision to require 
continued attainment until EPA's action redesignating the area, and to 
prohibit redesignation where an area violates the standard during the 
pendency of the Agency's review of the state's request. See Calcagni 
Memorandum at 5 (``Regions should advise States of the practical 
planning consequences if EPA disapproves the redesignation request or 
if the request is invalidated because of violations recorded during the 
EPA's review.'') (emphasis added). The Agency's interpretation of that 
provision is supported by the Act's definition of attainment and 
nonattainment areas in CAA section 107(d)(1)(A), which defines a 
nonattainment area as ``any area that does not meet'' the NAAQS (CAA 
section 107(d)(1)(A)(i)) and an attainment area as ``any area that 
meets'' the NAAQS. The use of the present tense in CAA section 
107(d)(1)(A) is consistent with the use of the present perfect tense in 
CAA section 107(d)(3)(E)(i), which tasks EPA with determining that an 
area ``has attained'' the NAAQS, as opposed to attaining at some 
previous time (e.g., ``had attained) with subsequent violations. See 62 
FR 49154 (September 19, 1997) (laying out statutory analysis supporting 
EPA's interpretation of CAA section 107(d)(3)(E)(i) in denial of the 
Birmingham, AL 1-hour ozone redesignation request). EPA has applied 
this interpretation of the first attainment redesignation criterion in 
numerous redesignation actions.\2\
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    \2\ See, e.g., 59 FR 22757 (May 3, 1994) (denial of 
redesignation request for Richmond, VA); 62 FR 49154 (September 19, 
1997) (denial of redesignation request for Birmingham, AL); 61 FR 
19193 (May 1, 1996) (denial of redesignation request for Pittsburgh-
Beaver Valley, PA); 61 FR 50718 (September 27, 1996) (denial of 
redesignation request for the Kentucky portion of the Cincinnati-
Hamilton KY-OH area); 84 FR 16214 (April 18, 2019) (denial of 
redesignation request for the Wisconsin portion of the Chicago-
Naperville, IL-IN-WI area).
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    Courts have confirmed EPA's interpretation of the first criterion 
in cases with factually similar circumstances to those present here. In 
Southwestern Pennsylvania Growth Alliance v. Browner, although denying 
the petitioner's challenge based on their failure to preserve an issue 
for litigation, the Third Circuit laid out its agreement with EPA's 
reading of the provisions. See 121 F.3d 106 (3d Cir. 1997). Petitioners 
there argued that EPA was not permitted to consider violations that 
occurred after the submission of its redesignation request (and in that 
case, violations that occurred after EPA's 18-month statutory window to 
act on the state's request, per CAA section 107(d)(3)(D)). See id. at 
111. The Court, in an opinion authored by then Judge Alito, wrote, 
``[e]ven if we were to reach the merits of petitioner's argument, we 
would hold that 42 U.S.C. 7407(d)(3)(D) did not preclude the EPA from 
considering the summer 1995 exceedance data. The language of the 
provision that enumerates the redesignation criteria tends to support 
this result. Under 42 U.S.C. 7407(d)(3)(E)(i), the EPA Administrator 
`may not' promulgate a redesignation of a nonattainment area unless, 
among other things, `the Administrator determines that the area has 
attained the [NAAQS]. The use of the term `has attained' instead of 
`attained' may be interpreted as suggesting that the attainment must 
continue until the date of the redesignation.'' Id. at 113. The Court 
further stated that it did not agree with petitioners that the 
mandatory window established by the Act for EPA to approve or deny a 
state's redesignation request ``conclusively indicate[s] that Congress 
intended to prohibit the EPA from taking action after the expiration of 
the statutorily specified time period.'' Id. And finally, the Court 
signaled its agreement with the Agency that continued fulfillment of 
the first redesignation criterion is paramount to approving a state's 
request: ``Since 42 U.S.C. 7407(d)(3)(E)(i) prohibits the EPA from 
redesignating an area that is not in attainment of the NAAQS, the EPA 
correctly denied Pennsylvania's request for redesignation. . . . An 
area's failure to attain a NAAQS is the most fundamental criterion in 
its designation as a nonattainment area.'' Id. at 118 n.5.
    Similarly, the Sixth Circuit has interpreted the first 
redesignation criterion consistent with the Third Circuit and with EPA. 
In Commonwealth of Kentucky v. EPA, Kentucky argued that EPA should not 
have denied its request to redesignate its portion of the Cincinnati-
Northern Kentucky OH-KY nonattainment area to attainment based on a 
``single violation in July 1995'' when the area had measured clean data 
in ``the period specified in the redesignation request, i.e., 1992-
1994.'' No. 96-4274, 1998 U.S. App. LEXIS 21686, at 5-6 (6th Cir. Sept. 
2, 1998). Similar to the Petitioner's arguments in the Third Circuit 
case discussed above, Kentucky asserted that ``Congress could have been 
more clear if it had used the simple present tense (`attains') or the 
progressive present tense (`is attaining') to explicitly require 
continuing compliance.'' Id. at 9. But the Court, agreeing with EPA, 
held that ``Congress also could have been more clear if it had used the 
simple past tense (`attained') to require a noncontinuing compliance. 
Congress declined both of these options and simply used the present 
perfect tense (`has attained'). According to standard usage, the 
present perfect tense denotes past action with an abiding effect or 
continuing relevance. . . . Thus, the phrase `has attained,' as the 
Third Circuit concluded, requires `that the attainment must continue 
until the date of redesignation.' '' Id. (citation to Third Circuit 
decision omitted). The Sixth Circuit bolstered its reading of the first 
redesignation criterion by pointing to the Act's requirements regarding 
maintenance. Id. at 10.
    Significantly, in both cases where parties challenged EPA's 
interpretation that the first redesignation criterion requires 
continued attainment of the NAAQS through the Agency's final action 
redesignating the area, the reviewing courts, ``after applying all 
relevant interpretive tools, conclude[d]'' that EPA's reading was 
``best.'' See Loper Bright Enterprises v. Raimondo, 144 S. Ct. 2244, 
2266 (2024). The Third Circuit and the Sixth Circuit opinions 
interpreting CAA section 107(d)(3)(E)(i) only cited Chevron deference 
to the Agency as a backstop to their own examination of the text of the 
provision and conclusion about the best reading of the Act's first 
redesignation criterion. See SPGA v. Browner, 121 F.3d at 113; Kentucky 
v. EPA, 1998 U.S. App. LEXIS 21686, at 11. Those courts' findings that 
the CAA redesignation provision ``requires that the attainment must 
continue until the date of redesignation'' was made in the course of 
those courts ``do[ing] their ordinary job of interpreting statutes,'' 
``based on the traditional tools of statutory construction.'' See Loper 
Bright, 144 S. Ct. at 2267-68.

III. Kentucky's Redesignation Request and SIP Revision

    On April 18, 2023, EPA proposed to approve Kentucky's September 6, 
2022, redesignation request and its maintenance plan SIP revision 
based, in part, on complete, quality-assured, and certified 2019-2021 
design values for

[[Page 296]]

each monitor in the Louisville, KY-IN Area.\3\ These design values are 
equal to or less than the level of the 2015 8-hour ozone NAAQS and were 
the most current design values at the time of proposal. See 88 FR 
23598. Consistent with its longstanding interpretation of CAA section 
107(d)(3)(E)(i), EPA stated in the NPRM that the Agency would not take 
final action to approve the redesignation of the Kentucky portion of 
the Louisville, KY-IN Area if the three-year design value for the Area 
exceeded the NAAQS prior to EPA's finalization of the redesignation. 
See 88 FR at 23601. Although preliminary 2022 ozone monitoring data at 
the time of proposal indicated an attaining 2022 design value for the 
Louisville, KY-IN Area,\4\ the complete, quality-assured, and certified 
2021-2023 design value of 0.072 parts per million (ppm) exceeds the 
NAAQS as discussed below.
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    \3\ EPA's full rationale for its proposed approval actions was 
provided in the NPRM.
    \4\ On February 21, 2022, Indiana submitted a separate 
redesignation request and maintenance plan for its portion of the 
Louisville, KY-IN Area. On July 5, 2022, EPA approved the 
redesignation request and maintenance plan for the Indiana portion 
of the Louisville, KY-IN Area. See 87 FR 39750.
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IV. 2023 Violation of the NAAQS for Ozone in the Louisville, KY-IN Area

    For ozone, an area may be considered to be attaining the 2015 8-
hour ozone NAAQS if it meets that standard, 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 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).
    EPA reviewed complete, quality-assured, and certified ozone 
monitoring data from monitoring stations in the Louisville, KY-IN Area 
for the 2015 8-hour ozone NAAQS for 2021 through 2023, and the highest 
3-year design value \5\ for 2021-2023 for the Louisville, KY-IN Area is 
0.072 ppm, which exceeds the standard of 0.070 ppm.\6\ Further, 
preliminary 2024 monitoring data indicates a 2022-2024 design value of 
0.075 ppm for the Area. Therefore, the Louisville, KY-IN Area does not 
meet the first statutory criterion for redesignation to attainment of 
the 2015 8-hour ozone NAAQS found in section 107(d)(3)(E)(i) of the 
CAA.
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    \5\ The design value for an area is the highest 3-year average 
of the annual fourth-highest daily maximum 8-hour ozone 
concentration recorded at any monitor in the area.
    \6\ Final air quality design values for all criteria pollutants, 
including ozone, are available at https://www.epa.gov/air-trends/air-quality-design-values. These design values are calculated in 
accordance with 40 CFR part 50.
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V. Public Comments Received on EPA's April 18, 2023, Proposal

    EPA received three sets of adverse comments on the April 18, 2023, 
NPRM. Commenters asserted that the Louisville, KY-IN Area did not 
attain the 2015 ozone NAAQS with 2020-2022 data, expressed concern 
regarding ambient air ozone exceedances, and stated that the reduction 
in emissions in the Area were not permanent and enforceable. As EPA is 
withdrawing its proposed approval of the redesignation request, the 
comments on the earlier proposal are moot.

VI. Proposed Action

    EPA is withdrawing its April 18, 2023, proposed approval of 
Kentucky's request to redesignate the Kentucky portion of the 
Louisville, KY-IN 2015 8-hour ozone nonattainment area to attainment 
for the 2015 8-hour ozone NAAQS. For the reasons provided in this 
notice, EPA is proposing to deny Kentucky's September 6, 2022, 
redesignation request on the basis that the violations of the NAAQS 
experienced in the Area during the pendency of EPA's review of the 
request demonstrate that the Area has not met the first redesignation 
criterion. EPA is not proposing to take action on the Commonwealth's 
accompanying submissions to fulfill the other redesignation criteria, 
given its proposed denial of the request based on air quality data.

VII. Statutory and Executive Order Reviews

    Additional information about these statutes and Executive Orders 
can be found at https://www.epa.gov/laws-regulations/laws-and-executive-orders.

A. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 14094: Modernizing Regulatory Review

    This proposed action is not a significant regulatory action as 
defined in Executive Order 12866, as amended by Executive Order 14094, 
and is therefore not subject to a requirement for Executive Order 12866 
review.

B. Paperwork Reduction Act (PRA)

    This proposed action does not impose an information collection 
burden under the PRA because it does not contain any information 
collection activities.

C. Regulatory Flexibility Act (RFA)

    I certify that this proposed 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 proposed action will not impose any 
requirements on small entities because it merely proposes to deny a 
redesignation request as not meeting Federal requirements.

D. Unfunded Mandates Reform Act (UMRA)

    This proposed 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 proposed action imposes no 
enforceable duty on any state, local or tribal governments or the 
private sector.

E. Executive Order 13132: Federalism

    This proposed 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.

F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    This proposed action does not have tribal implications, as 
specified in Executive Order 13175, because the Area's 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 proposed action.

G. 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

[[Page 297]]

proposed action is not subject to Executive Order 13045 because it 
merely proposes to deny a redesignation request as not meeting Federal 
requirements. Furthermore, EPA's Policy on Children's Health does not 
apply to this proposed action.

H. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use

    This proposed action is not subject to Executive Order 13211 
because it is not a significant regulatory action under Executive Order 
12866.

I. National Technology Transfer and Advancement Act (NTTAA)

    This proposed action does not involve technical standards.

J. Executive Order 12898 and Executive Order 14096: Federal Actions To 
Address Environmental Justice in Minority Populations and Low-Income 
Populations and Revitalizing Our Nation's Commitment to Environmental 
Justice for All

    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 communities with EJ concerns to the 
greatest extent practicable and permitted by law. Executive Order 14096 
(Revitalizing Our Nation's Commitment to Environmental Justice for All, 
88 FR 25251, April 26, 2023) builds on and supplements E.O. 12898 and 
defines EJ as among other things, the ``just treatment and meaningful 
involvement of all people regardless of income, race, color, national 
origin, or Tribal affiliation, or disability in agency decision-making 
and other Federal activities that affect human health and the 
environment.''
    Neither the Cabinet nor the Louisville Metro Air Pollution Control 
District evaluated EJ considerations as part of the Cabinet's 
redesignation request; the CAA and applicable implementing regulations 
neither prohibit nor require an evaluation. EPA did not perform an EJ 
analysis and did not consider EJ in this proposed action. Consideration 
of EJ is not required as part of this proposed action, and there is no 
information in the record upon which this decision is based that is 
inconsistent with the stated goal of Executive Order 12898/14096 of 
achieving EJ for communities with EJ concerns.

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: December 23, 2024.
Jeaneanne Gettle,
Acting Regional Administrator, Region 4.
[FR Doc. 2024-31617 Filed 1-2-25; 8:45 am]
BILLING CODE 6560-50-P
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