Proposed Rule2021-15396
Air Plan Approval; Oklahoma; Volatile Organic Compound Emissions in Nonattainment Areas and Former Nonattainment Areas
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
July 22, 2021
Issuing agencies
Environmental Protection Agency
Abstract
Pursuant to the Federal Clean Air Act (CAA or the Act), the Environmental Protection Agency (EPA) is proposing to approve revisions to the State Implementation Plan (SIP) for Oklahoma submitted by the State of Oklahoma designee with a letter dated May 7, 2020. The submittal covers updates to the Oklahoma SIP, as contained in the state's 2019 annual SIP update. Specifically, this action addresses revisions to Oklahoma Administrative Code (OAC), Emission of Volatile Organic Compounds (VOCs) in Nonattainment Areas and Former Nonattainment Areas. There are two Oklahoma counties affected by this action: Tulsa County and Oklahoma County.
Full Text
<html>
<head>
<title>Federal Register, Volume 86 Issue 138 (Thursday, July 22, 2021)</title>
</head>
<body><pre>
[Federal Register Volume 86, Number 138 (Thursday, July 22, 2021)]
[Proposed Rules]
[Pages 38627-38630]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-15396]
=======================================================================
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R06-OAR-2020-0437; FRL-8698-01-R6]
Air Plan Approval; Oklahoma; Volatile Organic Compound Emissions
in Nonattainment Areas and Former Nonattainment Areas
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: Pursuant to the Federal Clean Air Act (CAA or the Act), the
Environmental Protection Agency (EPA) is proposing to approve revisions
to the State Implementation Plan (SIP) for Oklahoma submitted by the
State of Oklahoma designee with a letter dated May 7, 2020. The
submittal covers updates to the Oklahoma SIP, as contained in the
state's 2019 annual SIP update. Specifically, this action addresses
revisions to Oklahoma Administrative Code (OAC), Emission of Volatile
Organic Compounds (VOCs) in Nonattainment Areas and Former
Nonattainment Areas. There are two Oklahoma counties affected by this
action: Tulsa County and Oklahoma County.
DATES: Written comments must be received on or before August 23, 2021.
ADDRESSES: Submit your comments, identified by Docket No. EPA-R6-OAR-
2020-0437, at <a href="https://www.regulations.gov">https://www.regulations.gov</a> or via email to
<a href="/cdn-cgi/l/email-protection#b1d7c4d4c3c2c59fc2d9d4c3c3c8f1d4c1d09fd6dec7"><span class="__cf_email__" data-cfemail="640211011617104a170c0116161d240114054a030b12">[email protected]</span></a>. Follow the online instructions for submitting
comments. Once submitted, comments
[[Page 38628]]
cannot be edited or removed from <a href="http://Regulations.gov">Regulations.gov</a>. The 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. The 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, please contact
Ms. Sherry Fuerst, 214-665-6454, <a href="/cdn-cgi/l/email-protection#8bedfeeef9f8ffa5f8e3eef9f9f2cbeefbeaa5ece4fd"><span class="__cf_email__" data-cfemail="dbbdaebea9a8aff5a8b3bea9a9a29bbeabbaf5bcb4ad">[email protected]</span></a>. For the full
EPA public comment policy, information about CBI or multimedia
submissions, and general guidance on making effective comments, please
visit <a href="https://www.epa.gov/dockets/commenting-epa-dockets">https://www.epa.gov/dockets/commenting-epa-dockets</a>.
Docket: The index to the docket for this action is available
electronically at <a href="http://www.regulations.gov">www.regulations.gov</a>. While all documents in the
docket are listed in the index, some information may not be publicly
available due to docket file size restrictions or content (e.g., CBI).
FOR FURTHER INFORMATION CONTACT: Sherry Fuerst, EPA Region 6 Office,
Infrastructure and Ozone Section, 214-665-6454, <a href="/cdn-cgi/l/email-protection#ccaab9a9bebfb8e2bfa4a9bebeb58ca9bcade2aba3ba"><span class="__cf_email__" data-cfemail="620417071011164c110a0710101b220712034c050d14">[email protected]</span></a>.
Out of an abundance of caution for members of the public and our staff,
the EPA Region 6 office will be closed to the public to reduce the risk
of transmitting COVID-19. We encourage the public to submit comments
via <a href="https://www.regulations.gov">https://www.regulations.gov</a>, as there will be a delay in processing
mail and no courier or hand deliveries will be accepted. Please call or
email the contact listed above if you need alternative access to
material indexed but not provided in the docket.
SUPPLEMENTARY INFORMATION: Throughout this document wherever ``we,''
``us,'' or ``our'' is used, we mean the EPA.
I. Background
On May 7, 2020, the Secretary of Energy and Environment for the
State of Oklahoma submitted for EPA review and approval under section
110 of the CAA and 40 CFR part 51, revisions to the Oklahoma Air
Quality SIP. The revisions were included in the state's annual SIP
update for 2019 and consisted of revisions to Subchapters 2 and 39 and
Appendix Q in the OAC Title 252 Chapter 100, which became effective on
September 15, 2019. In this action, we note that we are only proposing
to approve revisions to OAC Title 252 Chapter 100 Subchapter 39 (OAC
252:100-39) Sections 4, 16, 40, and 41. We are not taking action on
Subchapter 2 and Appendix Q at this time. The EPA plans to propose
action on these provisions in a future rulemaking action.
The criteria used to evaluate these SIP revisions are found
primarily in section 110 of the Act. Section 110(l) requires that a SIP
revision submitted to the EPA be adopted after reasonable notice and
public hearing and also requires that the EPA not approve a SIP
revision if the revision would interfere with any applicable
requirement concerning attainment and reasonable further progress or
any other applicable requirement of the Act.
These rules were promulgated in compliance with the Oklahoma
Administrative Procedures Act and published in the Oklahoma Register,
the official state publication for rulemaking actions.
II. The EPA's Evaluation
In this action, we are proposing to approve revisions to OAC Title
252 Chapter 100 Subchapter 39 (OAC 252:100-39). Submittal documents for
Subchapter 39 are available in the docket for this action. ODEQ's May
7, 2020 submittal is amending the following sections:
1. 252:100-39-4 to remove an incorrect citation to a revoked state
rule;
2. 252:100-39-16 to update the timeframe listed as the non-oxidant
season, this revision is intended to ensure that the proper controls
are used during scheduled refinery unit turnarounds during Oklahoma's
current ozone season;
3. 252:100-39-40 to correct the dates of Oklahoma's non-oxidant
season, this revision is intended to ensure that cutback asphalt cannot
be used during Oklahoma's ozone season; and,
4. 252:100-39-41 to allow for the use of alternative testing
methods for leak inspections, to update references used for pressure
and vapor testing to incorporate the most recent EPA regulations, and
to update tank truck tag (OAC 252:100-39-41(e)(4)(A)(iv) and (v))
requirements to reflect current practices in Tulsa County.
More information on the proposed changes is available in the
Technical Support Document prepared in conjunction with this rulemaking
action. This is a is a revision by revision discussion:
OAC 252:100, Subchapter 39, Section 4 revision removes an incorrect
cross reference. The revision removes ``252:100-48'' from a list of
rules from which facilities are exempted because 252:100-48 has been
revoked. ODEQ provided notice of the proposed change, announced the
comment period from December 3, 2018 through January 9, 2019 and posted
a notice of public hearing in Volume 36, Number 6, page 44 of the
Oklahoma Register on December 3, 2018. The public hearing was held on
January 16, 2019, and no comments were received. The revision is
ministerial in nature. Examination of the record indicates that the
submitted revision to Subchapter 39, Section 4 is proper and provides
additional clarity. Thus, we find that the requirements of section
110(l) of the Act have been satisfied. Therefore, we are proposing to
approve the submitted revision to Subchapter 39, Section 4.
OAC 252:100, Subchapter 39, Section 16 revisions update the non-
oxidant season from November 1 through March 31 to December 1 through
the last day of February. This update is consistent 40 CFR part 58,
Appendix D, Table D-3 titled ``Ozone Monitoring Season by State''.
Scheduled refinery unit turnarounds may only be accomplished without
the controls specified in OAC 252:100-39-16(b)(1) and OAC 252:100-39-
16(b)(2) during non-oxidant seasons. ODEQ provided notice of the
proposed change, announced the comment period from December 3, 2018
through January 9, 2019 and notice of a public hearing in Volume 36,
Number 6, page 44 of the Oklahoma Register on December 3, 2018. The
public hearing was held on January 16, 2019, and no comments were
received. The environment will likely benefit from shortening the
duration of non-oxidant season from 5 months to 3 months (changing from
November 1 through March 31 to December 1 through the last day of
February). Examination of the record indicates that the submitted
revision to Subchapter 39, Section 16 is proper and the revisions will
strengthen the SIP by requiring control of emissions during turnarounds
during a time period consistent with the ozone season in Oklahoma.
Thus, we find that the Oklahoma SIP that the requirements of section
110(l) of the Act have been satisfied. Therefore, we are proposing to
approve the submitted revision to Subchapter 39, Section 16.
OAC 252:100, Subchapter 39, Section 40 revisions are to amend rules
regulating the use of cutback asphalt to correct the dates of
Oklahoma's non-oxidant season, which should be December 1 through the
last day of February. This purpose of this proposed
[[Page 38629]]
rule is to ensure that cutback asphalt cannot be used during Oklahoma's
ozone season. This revision is consistent with 40 CFR part 58, Appendix
D, Table D-3 titled ``Ozone Monitoring Season by State''. ODEQ provided
notice of the proposed change, announced the comment period from
September 4, 2018 through October 5, 2018, and notice of a public
hearing in Volume 35, Number 24, page 705 of the Oklahoma Register on
September 4, 2018. The public hearing was held on October 10, 2018, and
no comments were received. The environment will benefit by restricting
the time of year cutback asphalt can be used. Examination of the record
indicates that the submitted revision to Subchapter 39, Section 40 is
proper, the revisions will strengthen the SIP preventing emissions from
the application of cutback asphalt during the time of year when ozone
formation is most likely. Thus, we find that the Oklahoma SIP that the
requirements of section 110(l) of the Act have been satisfied.
Therefore, we are proposing to approve the submitted revision to
Subchapter 39, Section 40.
Several changes were made to OAC 252:100, Subchapter 39, Section
41. A typographical error was corrected in subsection 41(c)(5). In
subsection 41(d)(3), reference was made to a test method in an EPA
Control Technique Guideline (CTG) from 1978. This reference was changed
to reference the EPA Test Method 27 contained in 40 CFR part 60 as the
applicable procedure for the testing requirement for tank leak
tightness. Several modifications were made to subsection 41(e).
Subsection 41(e) applies to Tulsa County only. Subsections 41(e)(2)(B)
and (E) were modified by removing a thirty-year-old effective date that
is no longer necessary. Also, an alternative work practice for
monitoring equipment for leaks that is consistent with 40 CFR 60.18(g)
through 60.18(i) was added. The revision also states that leaks
detected by EPA Test Method 21 or by an alternative work practice shall
be repaired within 15 days. Revisions to subsection 41(e)(4)(A)(iv)
update the reference to the portion of the rule that specifies the
proper pressure testing which changed as a result of reorganizing the
section. As part of reorganizing the section, subsection
41(e)(4)(A)(vi) was moved to subsection 41(e)(4)(B)(i), and other
references in subsection 41(e)(4) were changed to align the references
with the reorganization. Subsection 41(e)(4)(B)(ii) was updated to
state that the vapor tightness test must be consistent with EPA Test
Method 27 and updated what is considered a passing test as defined by
EPA Test Method 27.
ODEQ provided notice of the proposed changes, announced the comment
period from September 4, 2018 through October 5, 2018, and hearing
schedule in Volume 35, Number 24, page 705 of the Oklahoma Register on
September 4, 2018. The public hearing was held on October 10, 2018, and
no comments were received. The revisions are ministerial in nature,
update references consistent with federal regulations or adopt use of
EPA Test Methods. Examination of the record indicates that the
submitted revision to Subchapter 39, Section 41 is proper and do not
relax the SIP. Thus, we find that the requirements of section 110(l) of
the Act have been satisfied. Therefore, we are proposing to approve the
submitted revision to Subchapter 39, Section 41.
III. Impact on Areas of Indian Country
Following the U.S. Supreme Court decision in McGirt v. Oklahoma,
140 S. Ct. 2452 (2020), the Governor of the State of Oklahoma requested
approval under Section 10211(a) of the Safe, Accountable, Flexible,
Efficient Transportation Equity Act of 2005: A Legacy for Users, Public
Law 109-59, 109 Stat. 1144, 1937 (August 10, 2005) (``SAFETEA''), to
administer in certain areas of Indian country (as defined at 18 U.S.C.
1151) the State's environmental regulatory programs that were
previously approved by the EPA for areas outside of Indian country. The
State's request excluded certain areas of Indian country further
described below. In addition, the State only sought approval to the
extent that such approval is necessary for the State to administer a
program in light of Oklahoma Dept. of Environmental Quality v. EPA, 740
F.3d 185 (D.C. Cir. 2014).\1\
---------------------------------------------------------------------------
\1\ In ODEQ v. EPA, the D.C. Circuit held that under the CAA, a
state has the authority to implement a SIP in non-reservation areas
of Indian country in the state, where there has been no
demonstration of tribal jurisdiction. Under the D.C. Circuit's
decision, the CAA does not provide authority to states to implement
SIPs in Indian reservations. ODEQ did not, however, substantively
address the separate authority in Indian country provided
specifically to Oklahoma under SAFETEA. That separate authority was
not invoked until the State submitted its request under SAFETEA, and
was not approved until EPA's decision, described in this section, on
October 1, 2020.
---------------------------------------------------------------------------
On October 1, 2020, the EPA approved Oklahoma's SAFETEA request to
administer all the State's EPA-approved environmental regulatory
programs, including the Oklahoma SIP, in the requested areas of Indian
country. As requested by Oklahoma, the EPA's approval under SAFETEA
does not include Indian country lands, including rights-of-way running
through the same, that: (1) Qualify as Indian allotments, the Indian
titles to which have not been extinguished, under 18 U.S.C. 1151(c);
(2) are held in trust by the United States on behalf of an individual
Indian or Tribe; or (3) are owned in fee by a Tribe, if the Tribe (a)
acquired that fee title to such land, or an area that included such
land, in accordance with a treaty with the United States to which such
Tribe was a party, and (b) never allotted the land to a member or
citizen of the Tribe (collectively ``excluded Indian country lands'').
EPA's approval under SAFETEA expressly provided that to the extent
EPA's prior approvals of Oklahoma's environmental programs excluded
Indian country, any such exclusions are superseded for the geographic
areas of Indian country covered by the EPA's approval of Oklahoma's
SAFETEA request.\2\ The approval also provided that future revisions or
amendments to Oklahoma's approved environmental regulatory programs
would extend to the covered areas of Indian country (without any
further need for additional requests under SAFETEA).
---------------------------------------------------------------------------
\2\ EPA's prior approvals relating to Oklahoma's SIP frequently
noted that the SIP was not approved to apply in areas of Indian
country (consistent with the D.C. Circuit's decision in ODEQ v. EPA)
located in the state. See, e.g., 85 FR 20178, 20180 (April 10,
2020). Such prior expressed limitations are superseded by the EPA's
approval of Oklahoma's SAFETEA request.
---------------------------------------------------------------------------
As explained above, the EPA is proposing to approve revisions to
the Oklahoma SIP that include revisions to OAC Title 252 Chapter 100
Subchapter 39 (OAC 252:100-39) Sections 4, 16, 40, and 41, which will
apply in Tulsa and Oklahoma Counties. Consistent with the D.C.
Circuit's decision in ODEQ v. EPA and with EPA's October 1, 2020
SAFETEA approval, if this approval is finalized as proposed, these SIP
revisions will apply to all Indian country within Tulsa and Oklahoma
Counties, other than the excluded Indian country lands, as described
above. Because--per the State's request under SAFETEA--EPA's October 1,
2020 approval does not displace any SIP authority previously exercised
by the State under the CAA as interpreted in ODEQ v. EPA, the SIP will
also apply to any Indian allotments or dependent Indian communities
located outside of an Indian reservation over which there has been no
demonstration of tribal authority.\3\
---------------------------------------------------------------------------
\3\ In accordance with Executive Order 13990, EPA is currently
reviewing our October 1, 2020 SAFETEA approval and is engaging in
further consultation with tribal governments and discussions with
the state of Oklahoma as part of this review. EPA also notes that
the October 1, 2020 approval is the subject of a pending challenge
in federal court. (Pawnee v. Regan, No. 20-9635 (10th Cir.)).
Pending completion of EPA's review, EPA is proceeding with this
proposed action in accordance with the October 1, 2020 approval.
EPA's final action on the approved revisions to the Oklahoma SIP
that include revisions to OAC Title 252 Chapter 100 Subchapter 39
(OAC 252:100-39) Sections 4, 16, 40, and 41 will address the scope
of the state's program with respect to Indian country, and may make
any appropriate adjustments, based on the status of our review at
that time. If EPA's final action on Oklahoma's SIP is taken before
our review of the SAFETEA approval is complete, EPA may make further
changes to the approval of Oklahoma's program to reflect the outcome
of the SAFETEA review.
---------------------------------------------------------------------------
[[Page 38630]]
IV. Proposed Action
In this action, we are proposing to approve revisions to OAC
252:100-39, Emission of VOCs in Nonattainment Areas and Former
Nonattainment Areas, in Section 4 (Exemptions), Section 16 (Petroleum
refinery process unit turnaround), Section 40 (Cutback asphalt), and
Section 41 (Storage, loading and transport/delivery of VOCs) as
submitted to us by a letter dated May 20, 2020 (Submittal). The
submittal covers Oklahoma's 2019 regulatory update. We are proposing to
approve these revisions in accordance with section 110 of the Act.
V. Incorporation by Reference
In this action, we are proposing to include in a final rule
regulatory text that includes incorporation by reference. In accordance
with the requirements of 1 CFR 51.5, we are proposing to incorporate by
reference revisions to the Oklahoma regulations, as described in the
Proposed Action section above. We have made, and will continue to make,
these documents generally available electronically through
<a href="http://www.regulations.gov">www.regulations.gov</a> (please contact the person identified in the FOR
FURTHER INFORMATION CONTACT section of this preamble for more
information).
VI. Statutory and Executive Order Reviews
Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the Act and applicable
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, the EPA's role is to approve state choices,
provided that they meet the criteria of the CAA. Accordingly, this
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 action:
<bullet> 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 13563 (76 FR 3821, January 21,
2011);
<bullet> Is not an Executive Order 13771 (82 FR 9339, February 2,
2017) regulatory action because SIP approvals are exempted under
Executive Order 12866;
<bullet> Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
<bullet> 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.);
<bullet> 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);
<bullet> Does not have federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
<bullet> Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
<bullet> Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
<bullet> 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; and
<bullet> Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
This proposal to approve revisions to the Oklahoma SIP that include
amendments to OAC Title 252 Chapter 100 Subchapter 39 (OAC 252:100-39)
Sections 4, 16, 40, and 41 will apply, if finalized as proposed, to
certain areas of Indian country in Tulsa and Oklahoma counties as
discussed in the preamble, and therefore has tribal implications as
specified in E.O. 13175 (65 FR 67249, November 9, 2000). However, this
action will neither impose substantial direct compliance costs on
federally recognized tribal governments, nor preempt tribal law. This
action will not impose substantial direct compliance costs on federally
recognized tribal governments because no actions will be required of
tribal governments. This action will also not preempt tribal law as no
Oklahoma tribe implements a regulatory program under the CAA, and thus
does not have applicable or related tribal laws. Consistent with the
EPA Policy on Consultation and Coordination with Indian Tribes (May 4,
2011), the EPA has offered consultation to tribal governments that may
be affected by this action.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Reporting and recordkeeping
requirements, Volatile organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: July 15, 2021.
David Gray,
Acting Regional Administrator, Region 6.
[FR Doc. 2021-15396 Filed 7-21-21; 8:45 am]
BILLING CODE 6560-50-P
</pre><script data-cfasync="false" src="/cdn-cgi/scripts/5c5dd728/cloudflare-static/email-decode.min.js"></script></body>
</html>Indexed from Federal Register on July 22, 2021.
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.