Proposed Rule2021-23035
Air Plan Approval; Oklahoma; Updates to the General SIP and Incorporation by Reference Provisions
Primary source
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Published
October 27, 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 identified portions of two revisions to the Oklahoma State Implementation Plan (SIP) submitted by the State of Oklahoma designee on May 15, 2020, and February 9, 2021. This action addresses the revisions submitted to the Oklahoma SIP pertaining to the general SIP definitions and the incorporation by reference of Federal requirements under Oklahoma Administrative Code (OAC).
Full Text
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<title>Federal Register, Volume 86 Issue 205 (Wednesday, October 27, 2021)</title>
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[Federal Register Volume 86, Number 205 (Wednesday, October 27, 2021)]
[Proposed Rules]
[Pages 59333-59336]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-23035]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R06-OAR-2021-0621; FRL-9085-01-R6]
Air Plan Approval; Oklahoma; Updates to the General SIP and
Incorporation by Reference Provisions
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: Pursuant to the Federal Clean Air Act (CAA or the Act), the
Environmental Protection Agency (EPA) is proposing to approve
identified portions of two revisions to the Oklahoma State
Implementation Plan (SIP) submitted by the State of Oklahoma designee
on May 15, 2020, and February 9, 2021. This action addresses the
revisions submitted to the Oklahoma SIP pertaining to the general SIP
definitions and the incorporation by reference of Federal requirements
under Oklahoma Administrative Code (OAC).
DATES: Written comments must be received on or before November 26,
2021.
ADDRESSES: Submit your comments, identified by Docket No. EPA-R06-OAR-
2021-0621, at <a href="https://www.regulations.gov">https://www.regulations.gov</a> or via email to
[[Page 59334]]
<a href="/cdn-cgi/l/email-protection#d3a4babfb6aafdb2b7babdb293b6a3b2fdb4bca5"><span class="__cf_email__" data-cfemail="c9bea0a5acb0e7a8ada0a7a889acb9a8e7aea6bf">[email protected]</span></a>. Follow the online instructions for submitting
comments. Once submitted, comments 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 Adina Wiley, (214) 665-
2115, <a href="/cdn-cgi/l/email-protection#9fe8f6f3fae6b1fefbf6f1fedffaeffeb1f8f0e9"><span class="__cf_email__" data-cfemail="37405e5b524e1956535e59567752475619505841">[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: Ms. Adina Wiley, EPA Region 6 Office,
Air Permits Section, 214-665-2115, <a href="/cdn-cgi/l/email-protection#295e40454c5007484d404748694c5948074e465f"><span class="__cf_email__" data-cfemail="65120c09001c4b04010c0b04250015044b020a13">[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
Section 110 of the Act requires states to develop air pollution
regulations and control strategies to ensure that air quality meets the
EPA's National Ambient Air Quality Standards (NAAQS). These ambient
standards are established under section 109 of the Act and they
currently address six criteria pollutants: Carbon monoxide, nitrogen
dioxide, ozone, lead, particulate matter, and sulfur dioxide. The
state's air regulations are contained in its SIP, which is basically a
clean air plan. Each state is responsible for developing SIPs to
demonstrate how the NAAQS will be achieved, maintained, and enforced.
The SIP must be submitted to the EPA for approval, and any changes a
state makes to the approved SIP also must be submitted to the EPA for
approval.
On December May 15, 2020, Mr. Kenneth Wagner, Secretary of Energy
and Environment, submitted revisions to the Oklahoma SIP that included
the annual SIP updates for 2019. The submittal included revisions to
OAC 252:100, Subchapter 2 and Appendix Q to update the incorporation by
reference of Federal requirements, which will be addressed in this
proposal. The submittal also included revisions to OAC 252:100,
Subchapter 39, to revise the regulations for control of volatile
organic compounds (VOCs) in nonattainment areas and former
nonattainment areas. The EPA has determined that the May 15, 2020,
submitted revisions to OAC 252:100, Subchapter 39 will be addressed in
a separate rulemaking.\1\
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\1\ The EPA's action on the revisions to OAC 252:100, Subchapter
39 can be found at <a href="http://www.regulations.gov">www.regulations.gov</a>, Docket No. EPA-R06-OAR-2020-
0437.
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On February 9, 2021, Mr. Wagner, Secretary of Energy and
Environment, submitted revisions to the Oklahoma SIP that included the
annual SIP updates for 2020. The submittal included revisions to OAC
252:100, Subchapter 1 to update the definitions for the Oklahoma SIP
and revisions to OAC 252:100, Subchapter 2 and Appendix Q to update the
incorporation by reference of Federal requirements. This proposal will
address the submitted revisions to OAC 252:100-1-3, Subchapter 2 and
Appendix Q. We have determined that the revisions to the statutory
definitions at OAC 252:100-1-2 should be reviewed in a separate action.
The submittal also included revisions to OAC 252:100, Subchapter 13, to
revise the open burning regulations; Subchapters, 37, 39, and Appendix
N to revise the regulations for control of VOC emissions in
nonattainment areas and former nonattainment areas from aerospace
industries coating operations; and revisions to Subchapters 39-49 to
revise the regulations for the control of VOC emissions in
nonattainment areas and former nonattainment areas from manufacturing
of fiberglass reinforced plastic products. The EPA has determined that
the February 9, 2021, submitted revisions to OAC 252:100, Subchapters
13, 37, 39-49, and Appendix N will be addressed in a separate
rulemaking action.
II. The EPA's Evaluation
The accompanying Technical Support Document for this action
includes a detailed analysis of the submitted revisions to the Oklahoma
SIP which are the subject of this proposed rulemaking. Our analysis
indicates that the May 15, 2020, and the February 9, 2021, SIP
revisions addressed in this proposed rulemaking action were developed
in accordance with the CAA and the State provided reasonable notice and
public hearing.
Updates to the Oklahoma SIP Definitions
The general SIP provisions of OAC 252:100, Subchapter 1,
incorporate statutory definitions at OAC 252:100-1-2 and general
definitions at OAC 252:100-1-3. On February 9, 2021, the ODEQ submitted
revisions to OAC 252:100-1-2 and OAC 252:100-1-3 adopted on June 25,
2020, effective September 15, 2020. The EPA is only addressing the
submitted revisions to OAC 252:100-1-3 at this time.
The revisions to OAC 252:100-1-3, update the definitions used
throughout the Oklahoma SIP. The revisions to the definitions of ``Best
available control technology'' and ``responsible official'' and the new
definition for ``Title V permit'' are consistent with the underlying
federal requirements.
Updates to the Oklahoma SIP Incorporation by Reference Provisions
The ODEQ submitted revisions on May 15, 2020 and February 9, 2021,
to update the Incorporation by Reference provisions found in the
Oklahoma SIP. These revisions ensure the Oklahoma SIP maintains
consistency with current federal requirements.
On May 15, 2020, the ODEQ submitted revisions to OAC 252:100-2-3
and Appendix Q that were adopted on May 28, 2019 and effective
September 15, 2019. These revisions updated the incorporation by
reference date in the opening paragraph of OAC 252:100-2-3 and revoked
and replaced the previous version of OAC 252, Chapter 100, Appendix Q.
On February 9, 2021, the ODEQ submitted another set of revisions to
OAC 252:100-2-3 and Appendix Q that were adopted on June 25, 2020, and
effective September 15, 2020. The February 9, 2021, revisions updated
the opening paragraph of OAC 252:100-2-3 to include the current
incorporation
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by reference date and revoked and replaced the prior version of
Appendix Q that was submitted on May 15, 2020.
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, 119 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).\2\
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\2\ 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.
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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.\3\ 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).
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\3\ 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.
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The EPA is proposing to approve revisions to the general
definitions used in the Oklahoma SIP as well as updates to the
incorporation by reference provisions to maintain consistency with
federal requirements, which will apply statewide in Oklahoma.
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 the State of Oklahoma, 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.\4\
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\4\ 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 252:100-1-3, 2-3, and Appendix Q 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.
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IV. Proposed Action
We are proposing to approve under section 110 of the CAA, revisions
to the Oklahoma SIP that update the definitions relied on throughout
the SIP and update the incorporation by reference dates for Federal
requirements. We have determined that the revisions submitted on May
15, 2020, and February 9, 2021, were developed in accordance with the
CAA and EPA's regulations, policy, and guidance for SIP development.
The EPA proposes approval of the following revisions to the
Oklahoma SIP adopted on May 28, 2019, effective September 15, 2019, and
submitted to the EPA on May 15, 2020:
<bullet> Revisions to OAC 252:100-2-3, Incorporation by Reference,
<bullet> Repeal of OAC 252:100, Appendix Q, and
<bullet> Adoption of new OAC 252:100, Appendix Q.
The EPA proposes approval of the following revisions to the
Oklahoma SIP adopted on June 25, 2020, effective September 15, 2020,
and submitted to the EPA on February 9, 2021:
<bullet> Revisions to OAC 252:100-1-3, Definitions,
<bullet> Revisions to OAC 252:100-2-3, Incorporation by Reference,
<bullet> Repeal of OAC 252:100, Appendix Q, and
<bullet> Adoption of new OAC 252:100, Appendix Q.
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
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Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR
3821, January 21, 2011);
<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 update
the definitions relied on throughout the SIP and update the
incorporation by reference dates for Federal requirements as discussed
more fully elsewhere in this document will apply, if finalized as
proposed, to certain areas of Indian country 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, Carbon monoxide,
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen
dioxide, Ozone, Particulate matter, Reporting and recordkeeping
requirements, Sulfur oxides, Volatile organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: October 15, 2021.
David Gray,
Acting Regional Administrator, Region 6.
[FR Doc. 2021-23035 Filed 10-26-21; 8:45 am]
BILLING CODE 6560-50-P
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