Rule2022-16043
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 29, 2022
Effective
August 29, 2022
Issuing agencies
Environmental Protection Agency
Abstract
Pursuant to the Federal Clean Air Act (CAA or the Act), the Environmental Protection Agency (EPA) is approving 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) Title 252 Chapter 100 Subchapter 39, 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
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<title>Federal Register, Volume 87 Issue 145 (Friday, July 29, 2022)</title>
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[Federal Register Volume 87, Number 145 (Friday, July 29, 2022)]
[Rules and Regulations]
[Pages 45654-45657]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-16043]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R06-OAR-2020-0437; FRL-8698-02-R6]
Air Plan Approval; Oklahoma; Volatile Organic Compound Emissions
in Nonattainment Areas and Former Nonattainment Areas
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: Pursuant to the Federal Clean Air Act (CAA or the Act), the
Environmental Protection Agency (EPA) is approving 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) Title 252 Chapter 100 Subchapter 39, 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: This rule is effective on August 29, 2022.
ADDRESSES: The EPA has established a docket for this action under
Docket ID No. EPA-R06-OAR-2020-0437. All documents in the docket are
listed on the <a href="https://www.regulations.gov">https://www.regulations.gov</a> website. Although listed in
the index, some information is not publicly available, e.g.,
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. Publicly available docket
materials are available electronically through <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
FOR FURTHER INFORMATION CONTACT: Clovis Steib, EPA Region 6 Office,
Infrastructure and Ozone Section, 214-665-7566, <a href="/cdn-cgi/l/email-protection#bfcccbdad6dd91dcd3d0c9d6ccffdacfde91d8d0c9"><span class="__cf_email__" data-cfemail="037077666a612d606f6c756a70436673622d646c75">[email protected]</span></a>.
Out of an abundance of caution for members of the public and our staff,
the EPA Region 6 office may be closed to the public to reduce the risk
of transmitting COVID-19. 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 ``we,'' ``us,'' and
``our'' means the EPA.
I. Background
The background for this action is discussed in detail in our July
22, 2021, proposal (86 FR 38627). In that document we proposed to
approve revisions to the SIP for Oklahoma submitted by the State of
Oklahoma with a letter dated May 7, 2020. Specifically, the action
addressed revisions to OAC Title 252 Chapter 100 Subchapter 39,
Sections 4, 16, 40, and 41. The revisions corrected errors and made
these sections of the Oklahoma SIP consistent with EPA's rules. The two
areas in Oklahoma affected by this action are Tulsa County and Oklahoma
County.
We received comments on our proposal from one commenter. Our
response to the comments follows.
II. Response to Comments
Comment: One commenter stated that it is important for citizens to
stay informed and be kept up to date on Federal government revisions
and regulations, such as this proposed approval action on the Oklahoma
SIP.
Response: Public comment is just one part of an extensive
rulemaking process. It is an invaluable gateway to plug in to the
regulatory process because it is required of all agencies, across
statutes, for any new regulation. Under the Administrative Procedures
Act (1946), Federal agencies like the EPA, are required to request
comments on new regulation proposals by all members of the public. We
thank the commenter for their interest and taking the time to submit
their response; as well as encouraging their fellow citizens to engage
in the public comment process. No changes to the proposal were made in
response to the comment.
III. Impact on Areas of Indian Country
As stated in the proposed action, 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 outside of
Indian country.\1\ 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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\1\ A copy of the Governor's July 22, 2020, request can be found
in the docket for this rulemaking on the <a href="https://www.regulations.gov">https://www.regulations.gov</a>
website. See Docket ID No. EPA-R06-OAR-2020-0437.
\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 of the State's EPA-approved environmental regulatory
programs, including the Oklahoma SIP, in the requested areas of Indian
country.\3\ 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'').
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\3\ A copy of EPA's October 1, 2020, approval can be found in
the docket for this rulemaking on the <a href="https://www.regulations.gov">https://www.regulations.gov</a>
website. See Docket ID No. EPA-R06-OAR-2020-0437.
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EPA's approval under SAFETEA expressly provided that to the extent
EPA's prior approvals of Oklahoma's environmental programs excluded
[[Page 45655]]
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.\4\ 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).\5\
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\4\ 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.
\5\ On December 22, 2021, the EPA proposed to withdraw and
reconsider the October 1, 2020, SAFETEA approval. See <a href="https://www.epa.gov/ok/proposed-withdrawal-and-reconsideration-and-supporting-information">https://www.epa.gov/ok/proposed-withdrawal-and-reconsideration-and-supporting-information</a>. The EPA expects to have further discussions
with tribal governments and the State of Oklahoma as part of this
reconsideration. The EPA also notes that the October 1, 2020,
approval is the subject of a pending challenge in federal court.
Pawnee Nation of Oklahoma v. Regan, No. 20-9635 (10th Cir.). The EPA
may make further changes to the approval of Oklahoma's program to
reflect the outcome of the proposed withdrawal and reconsideration
of the October 1, 2020, SAFETEA approval.
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As explained above, the EPA is approving revisions to the SIP for
Oklahoma submitted by the State of Oklahoma with a letter dated May 7,
2020. Specifically, the action addressed revisions to OAC Title 252
Chapter 100 Subchapter 39, Sections 4, 16, 40, and 41. The revisions
corrected errors and made these sections of the Oklahoma SIP consistent
with EPA's rules. Consistent with the D.C. Circuit's decision in ODEQ
v. EPA and with EPA's October 1, 2020, SAFETEA approval, this portion
of the SIP applies in certain areas of Indian country. Under EPA's
October 1, 2020 SAFETEA approval, the SIP revisions approved in this
rulemaking action 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
approved SIP revisions for Oklahoma County and Tulsa County 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.
IV. Environmental Justice Considerations
Executive Order 12898 (Federal Actions to Address Environmental
Justice in Minority Populations and Low-Income Populations, 59 FR 7629,
Feb. 16, 1994) directs Federal agencies to identify and address
``disproportionately high and adverse human health or environmental
effects'' of their actions on minority populations and low-income
populations to the greatest extent practicable and permitted by law.
The EPA defines environmental justice (EJ) as ``the fair treatment and
meaningful involvement of all people regardless of race, color,
national origin, or income with respect to the development,
implementation, and enforcement of environmental laws, regulations, and
policies.'' \6\ The EPA further defines the term fair treatment to mean
that ``no group of people should bear a disproportionate burden of
environmental harms and risks, including those resulting from the
negative environmental consequences of industrial, governmental, and
commercial operations or programs and policies.'' \7\ EPA is providing
additional analysis of environmental justice associated with this
action. We are doing so for the purpose of providing information to the
public, not as a basis of our final action.
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\6\ See <a href="https://www.epa.gov/environmentaljustice/learn-about-environmental-justice">https://www.epa.gov/environmentaljustice/learn-about-environmental-justice</a>.
\7\ <a href="https://www.epa.gov/environmentaljustice/learn-about-environmental-justice">https://www.epa.gov/environmentaljustice/learn-about-environmental-justice</a>.
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EPA reviewed demographic data, which provides an assessment of
individual demographic groups of the populations living within the
affected Oklahoma and Tulsa counties area.\8\ The EPA then compared the
data to the national average for each of the demographic groups.\9\ The
results of the demographic analysis indicate that, for populations
within Tulsa and Oklahoma counties, the percent people of color
(persons who reported their race as a category other than white alone
(not Hispanic or Latino)) is slightly less than the national average
for Tulsa County; and slightly more than the national average for
Oklahoma County (38 and 44 percent, respectively versus 40 percent).
Within people of color, the percent of the population that is Black or
African American alone is below the national average for Tulsa County
and above the national average for Oklahoma County (10.8 and 15.8
percent, respectively versus 13.4 percent), and the percent of the
population that is American Indian/Alaska Native is higher than the
national average for both Tulsa and Oklahoma counties (6.9 and 4.4
percent, respectively versus 1.3 percent). The percent of the
population that is ``two or more races'' is higher than the national
average for both Tulsa and Oklahoma counties (6.2 and 5.4 percent,
respectively versus 2.8 percent). The percent of people living below
the poverty level in Tulsa and Oklahoma counties is higher than the
national average (12.8 and 15.2 percent, respectively versus 11.4
percent). The percent of people over 25 with a high school diploma in
Tulsa and Oklahoma counties is similar to the national average (89.9
and 88 percent, respectively versus 88.5 percent), as is the percent
with a ``bachelor's degree or higher'' (32 and 33.1 percent,
respectively versus 32.9 percent).
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\8\ See the United States Census Bureau's QuickFacts on Oklahoma
at <a href="https://www.census.gov/quickfacts/fact/table/OK,US/PST045221">https://www.census.gov/quickfacts/fact/table/OK,US/PST045221</a>.
\9\ See the United States Census Bureau's QuickFacts on Oklahoma
at <a href="https://www.census.gov/quickfacts/fact/table/OK,US/PST045221">https://www.census.gov/quickfacts/fact/table/OK,US/PST045221</a>.
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The SIP revisions do not appear to have a disproportionately high
or adverse human health or environmental effects on communities with EJ
concerns as the changes to the Oklahoma SIP will result in updates and
clarifications an also further restrict the use of cutback asphalt.
Since the use of cutback asphalt is prohibited for a longer period of
time each year communities throughout the affected counties will
realize benefits.
V. Final Action
We are approving 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 7,
2020 (Submittal). The submittal covers Oklahoma's 2019 regulatory
update. This action is being taken under section 110 of the Act.
VI. Incorporation by Reference
In this rule, the EPA is finalizing regulatory text that includes
incorporation by reference. In accordance with requirements of 1 CFR
51.5, the EPA is finalizing the incorporation by reference the
revisions to the Oklahoma regulations, as described in the Final Action
section above. The EPA has made, and will continue to make, these
materials generally available through <a href="http://www.regulations.gov">www.regulations.gov</a> (please
contact the person identified in the FOR FURTHER
[[Page 45656]]
INFORMATION CONTACT section of this preamble for more information).
Therefore, these materials have been approved by EPA for inclusion in
the SIP, have been incorporated by reference by EPA into that plan, are
fully federally enforceable under sections 110 and 113 of the CAA as of
the effective date of the final rulemaking of EPA's approval, and will
be incorporated in the next update to the SIP compilation.
VII. 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 approves 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> 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 approval of revisions to the Oklahoma SIP will apply 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 offered consultation to tribal governments that may be
affected by this action. EPA received no comments or requests for
consultation from tribal governments.
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this action and
other required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2).
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by September 27, 2022. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this action 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 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Reporting and recordkeeping
requirements, Volatile organic compounds.
Dated: July 20, 2022.
Earthea Nance,
Regional Administrator, Region 6.
For the reasons stated in the preamble, the Environmental
Protection Agency amends 40 CFR part 52 as follows:
PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart LL--Oklahoma
0
2. In Sec. 52.1920 in paragraph (c) amend the table ``EPA APPROVED
OKLAHOMA REGULATIONS'' by revising the entries for ``252:100-39-4,''
``252:100-39-16,'' ``252:100-39-40,'' and ``252:100-39-41'' to read as
follows.
* * * * *
(c) * * *
[[Page 45657]]
EPA Approved Oklahoma Regulations
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State
State citation Title/subject effective EPA approval date Explanation
date
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OKLAHOMA ADMINISTRATIVE CODE, TITLE 252. DEPARTMENT OF ENVIRONMENTAL QUALITY
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CHAPTER 100 (OAC 252:100). AIR POLLUTION CONTROL
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Subchapter 39. Emission of Organic Materials in Nonattainment Areas
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Part 1. General Provisions
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252:100-39-4............... Exemptions........ 9/15/2019 7/29/2022,
[Insert Federal
Register
citation].
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Part 3. Petroleum Refinery Operations
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* * * * * * *
252:100-39-16.............. Petroleum refinery 9/15/2019 7/29/2022,
process unit [Insert Federal
turnaround. Register
citation].
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Part 7. Specific Operations
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252:100-39-40.............. Cutback asphalt 9/15/2019 7/29/2022,
(paving). [Insert Federal
Register
citation].
252:100-39-41.............. Storage, loading 9/15/2019 7/29/2022,
and transport/ [Insert Federal
delivery of VOCs. Register
citation].
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[FR Doc. 2022-16043 Filed 7-28-22; 8:45 am]
BILLING CODE 6560-50-P
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