Proposed Rule2023-02293
Air Plan Approval; Oklahoma; Revisions to Air Pollution Control Rules
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
February 3, 2023
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 on February 9, 2021. The submitted revisions address Open Burning, Control of Emission of Volatile Organic Compounds (VOC), and Specialty Coatings VOC Content Limits.
Full Text
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<title>Federal Register, Volume 88 Issue 23 (Friday, February 3, 2023)</title>
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[Federal Register Volume 88, Number 23 (Friday, February 3, 2023)]
[Proposed Rules]
[Pages 7384-7388]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-02293]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R06-OAR-2021-0214; FRL-9407-01-R6]
Air Plan Approval; Oklahoma; Revisions to Air Pollution Control
Rules
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 revisions
to the State Implementation Plan (SIP) for Oklahoma submitted by the
State of Oklahoma on February 9, 2021. The submitted revisions address
Open Burning, Control of Emission of Volatile Organic Compounds (VOC),
and Specialty Coatings VOC Content Limits.
DATES: Written comments must be received on or before March 6, 2023.
[[Page 7385]]
ADDRESSES: Submit your comments, identified by Docket No. EPA-R6-OAR-
2021-0214, at <a href="https://www.regulations.gov">https://www.regulations.gov</a> or via email to
<a href="/cdn-cgi/l/email-protection#9eedf6fff6f7f0b0fbf3fffadefbeeffb0f9f1e8"><span class="__cf_email__" data-cfemail="1f6c777e777671317a727e7b5f7a6f7e31787069">[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 Mr. Emad Shahin, 214-665-
6717, <a href="/cdn-cgi/l/email-protection#ed9e858c858483c388808c89ad889d8cc38a829b"><span class="__cf_email__" data-cfemail="295a4148414047074c44484d694c5948074e465f">[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: For information on the revisions
addressing emissions of VOC, please contact Mr. Emad Shahin, EPA Region
6 Office, Infrastructure and Ozone Section, 214-665-6717,
<a href="/cdn-cgi/l/email-protection#2e5d464f464740004b434f4a6e4b5e4f00494158"><span class="__cf_email__" data-cfemail="f4879c959c9d9ada91999590b4918495da939b82">[email protected]</span></a>. For information on the revisions addressing open
burning, please contact Ms. Carrie Paige, Region 6 Office,
Infrastructure and Ozone Section, 214-665-6521, <a href="/cdn-cgi/l/email-protection#6f1f0e06080a410c0e1d1d060a2f0a1f0e41080019"><span class="__cf_email__" data-cfemail="eb9b8a828c8ec5888a9999828eab8e9b8ac58c849d">[email protected]</span></a>.
Out of an abundance of caution for members of the public and staff, the
EPA Region 6 office may be closed to the public to reduce the risk of
transmitting COVID-19. The EPA encourages the public to submit comments
via <a href="https://www.regulations.gov">https://www.regulations.gov</a>. 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,'' or
``our'' means 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 CAA section 109 and currently address
six criteria pollutants: carbon monoxide, nitrogen dioxide, ozone,
lead, particulate matter (PM), and sulfur dioxide. A 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 EPA for approval and any changes a state makes to the
approved SIP also must be submitted to the EPA for approval.
The Secretary of Energy and Environment for the State of Oklahoma
(``the State'') submitted revisions of the Oklahoma SIP to the EPA on
February 9, 2021, which was supplemented on April 30, 2021.\1\ The
revisions address Subchapters 1, 2, 13, 37, and 39, and Appendices N
and Q in the Oklahoma Administrative Code (OAC) Title 252, Chapter 100.
In this action, we are proposing to approve the revisions to OAC Title
252 Chapter 100 Subchapters 13 (Open Burning), 37 (Control of Emission
of Volatile Organic Compounds (VOCs), 39 (Emission of Volatile Organic
Compounds (VOCs) in Nonattainment Areas and Former Nonattainment
Areas), and Appendix N (Specialty Coatings VOC Content Limits). We
approved the revisions to Subchapters 1, 2, and Appendix Q in a
separate rulemaking action.\2\
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\1\ The cover letters for these submittals were dated February
2, 2021, and April 29, 2021, and are in the docket for this
rulemaking action.
\2\ See 87 FR 50263 (August 16, 2022).
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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 precludes the EPA from approving 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.
The submitted revisions were promulgated in compliance with the
Oklahoma Administrative Procedures Act and published in the Oklahoma
Register, the official state publication for rulemaking actions. These
revisions are posted in the docket for this action.
II. The EPA's Evaluation
A. Subchapter 13 (Open Burning)
Subchapter 13 (denoted OAC 252:100-13) imposes requirements for
controlling open burning of refuse, and other combustible materials. A
detailed description of the submitted revisions and our evaluation is
provided in the Technical Support Document (TSD), posted in the docket
for this action. A summary of the submitted revisions follows.
1. Revisions to OAC 252:100-13-2 (Definitions) add ``Clean wood
waste'' to the entry for ``Wood waste''. The revisions also replace the
terms ``Ozone Watch'' and ``Particulate Matter Watch'' with ``Ozone
Alert'' and ``Particulate Matter Alert'' to be consistent with terms
used by cities in Oklahoma.
2. Revisions to OAC 252:100-13-5 (Open burning prohibited) add a
reference to new section 252:100-13-8.1 (Transported material) and
moves one sentence addressing transported material to new section
252:100-13-8.1.
3. Revisions to OAC 252:100-13-7 (Allowed open burning) add
requirements to remove materials containing asbestos, asphalt, and lead
in structures used for fire training. The revisions also require that
fires set for land clearing operations use an air curtain incinerator
(ACI) in areas that are or have been designated as nonattainment or in
a metropolitan statistical area (MSA) with a population greater than
900,000 people. The revisions also add ``Certain medical marijuana
plant refuse'' that are consistent with the Oklahoma Statutes at
Section 428 (Title 63). These revisions strengthen the current SIP
rules and are consistent with Federal regulations at 40 CFR 60 for ACI,
and at 40 CFR 61.145, which addresses the National Emission Standards
for Hazardous Air Pollutants (NESHAP) for asbestos-containing
materials.
4. Revisions to 252:100-13-8 (Use of air curtain incinerators)
strengthen the current SIP by requiring the use of an ACI in areas that
are or have been designated as nonattainment, or in a MSA with a
population greater than 900,000 people; and limiting the materials that
can be accepted for burning in such ACIs.
5. Revisions to 252:100-13-8.1 (Transported material)--this entire
section is new to the SIP and strengthens the SIP by identifying what,
where, and how materials are allowed to be transported for open
burning.
6. Revisions to 252:100-13-9 (General conditions and requirements
allowed for open burning) replace ``An Ozone or PM Watch'' with ``An
Ozone or PM
[[Page 7386]]
Alert'' and strengthen the SIP by requiring ``at least 500 feet from
any occupied structure. . . .'' for open burning of waste generated
from commercial operations.
The submitted revisions to 252:100-13 add clarity, consistency, and
stringency to the open burning rules. The revisions do not relax the
current SIP rules and are consistent with Federal regulations at 40 CFR
60 and 40 CFR 61. Therefore, and consistent with CAA section 110(l), we
do not expect these revisions to interfere with any applicable
requirement concerning attainment and reasonable further progress or
any other applicable requirement of the Act. We are proposing to
approve these revisions.
B. Subchapters 37 and 39
In an earlier submitted SIP revision, the State revised the name of
Subchapter 37 from ``Control of Emission of Organic Materials'' to
``Control of Emission of Volatile Organic Compounds (VOC)'' and revised
the name of Subchapter 39 from ``Emission of Organic Materials in
Nonattainment Areas'' to ``Emission of Volatile Organic Compounds
(VOCs) in Nonattainment Areas and Former Nonattainment Areas.''
However, we inadvertently left these changes out of the amendatory
table in our direct final action at 73 FR 79400 (December 29, 2008).
These name changes will be made in the amendatory table in the final
action.
In this action, we are also proposing to approve revisions to OAC
252:100, Subchapters 37 and 39 (OAC 252:100-37 and 252:100-39) and
Appendix N. The submitted revisions are available in the docket for
this action. The State's February 9, 2021, submittal is amending the
following sections:
1. 252:100-37-27 to add a new section 27, Control of emission of
VOCs from aerospace industries coatings operations, for new and
existing aerospace vehicle and component coating operations at
aerospace manufacturing, rework and/or repair facilities statewide.
2. 252:100-39-47 to update the language of section 47 to include
changes to the 40 CFR part 63, subpart GG, Aerospace NESHAP, clarify
regulatory language and make minor clerical corrections.
3. 252:100-39 is amended by revoking section 49, Manufacturing of
reinforced plastic products.
4. 252:100-39, a new Appendix N, Specialty Coatings VOC Content
Limits, is added to the SIP to provide restrictions on the VOC content
of coatings used in the aerospace industry. Appendix N list of coatings
and VOC content matches Table 1 of the National Emission Standards for
Hazardous Air Pollutants (NESHAP) 40 CFR 63 Subpart GG and specifies
its intended use for compliance with sections 252:100-37-27 and
252:100-39-47.
More complete information on the proposed changes, including minor
typographical and citation changes is available in the TSD prepared in
conjunction with this rulemaking action. Below is a summary of the
revision-by-revision discussion:
OAC 252:100-37-27 is amended to add a new section controlling
emissions of VOCs from aerospace industries coatings operations
statewide. The section applies to new and existing aerospace vehicle
and component coating operations at aerospace manufacturing, rework
and/or repair facilities. Examining the new section indicates that the
submitted revision not only would reference certain limits specified in
the aerospace NESHAP, 40 CFR 63 Subpart GG, but will also strengthen
the SIP by requiring control of VOC emissions from aerospace industry
throughout the State of Oklahoma. Therefore, we are proposing to
approve the submitted revisions to Subchapter 37, Section 27.
OAC 252:100-39-47 is amended to update the language of section 47
to incorporate changes to the 40 CFR part 63, Subpart GG, Aerospace
NESHAP, clarify regulatory language and make minor clerical
corrections. Examination of the revisions indicates that the submitted
revision to Subchapter 39-47 is proper and provides additional clarity.
Thus, we find that the requirements of section 110(l) of the Act are
satisfied. Therefore, we are proposing to approve the submitted
revision to Subchapter 39, Section 47.
OAC 252:100-39 is amended by revoking section 49, manufacturing of
fiberglass reinforced plastic products. Section 49 was implemented in
1989 to provide VOC reductions in Tulsa County, and since EPA finalized
the NESHAP for new and existing reinforced plastic composites
production facilities, codified at 40 CFR 63 Subpart WWWW (Subpart
WWWW) in 2003, the duality of applying section 49 and Subpart WWWW to
the same source is no longer practical. The provisions of Subpart WWWW
are incorporated by reference into the state's rules under OAC 252:100-
2-3. Subpart WWWW provides equal or greater VOC reductions to section
49 and is applicable to sites statewide.
OAC 252:100-39, A new Appendix N, Specialty Coatings VOC Content
Limits, lists the VOC content limits allowed for use in the State at
affected facilities. These limits are needed to provide for effective
compliance with sections OAC 252:100-37-27 and OAC 252:100-39-47. We
find that the new Appendix N restricts VOC content by matching the VOC
limits specified in Table 1-Specialty Coatings-HAP and VOC Content
Limits, as set forth in the aerospace NESHAP 40 CFR part 63, subpart
GG. Because the addition of Appendix N adds new requirements, we would
not expect an increase in emissions and therefore no interference with
any applicable requirement concerning attainment and reasonable further
progress (as defined in the CAA section 171), or any other applicable
requirement of the CAA.
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).\3\
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\3\ 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
[[Page 7387]]
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.\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).
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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.
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As explained earlier in this action, the EPA is proposing to
approve revisions to the Oklahoma SIP that will apply state-wide and
therefore have tribal implications as specified in Executive Order
(E.O.) 13175. 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 Oklahoma, other than the excluded Indian country lands,
as described earlier. 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.\5\
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\5\ 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 Subchapters 13,
37, and 39 and Appendix N 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. Environmental Justice Considerations
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 minority populations and low-income
populations to the greatest extent practicable and permitted by law.
The EPA defines environmental justice 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.'' 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.'' \6\ The EPA is
providing additional analysis of environmental justice associated with
this action for the purpose of providing information to the public.\7\
The EPA found, based on the EJScreen analyses, that this proposed
action will not have disproportionately high or adverse human health or
environmental effects on communities with EJ concerns. The revisions
strengthen the SIP by reducing air quality impacts from specific
operations statewide and thus, benefit the public. For example, as
described earlier in this action, the removal of specific materials
from structures used for fire training and the use of the ACI are
controls that improve air quality. The submitted revisions do not relax
provisions in the approved SIP and are consistent with Federal rules,
including, but not limited to 40 CFR 60, 40 CFR 61, and 40 CFR 63.
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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\ Our analysis is provided in the docket for this rulemaking
action.
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V. Proposed Action
We are proposing to approve revisions to the Oklahoma SIP,
submitted to us on February 9, 2021. Specifically, we are proposing to
approve revisions to OAC 252:100, Subchapters 13, 37, and 39, and
Appendix N. We are proposing to approve these revisions in accordance
with section 110 of the Act.
VI. 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 SIP regulations, as described in
Section II of this proposed action. 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 persons identified in the FOR
FURTHER INFORMATION CONTACT section of this preamble for more
information).
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 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> 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);
[[Page 7388]]
<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 will apply,
if finalized as proposed, to certain areas of Indian country throughout
Oklahoma 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, Ozone, Particulate matter,
Reporting and recordkeeping requirements, Volatile organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: January 30, 2023.
Earthea Nance,
Regional Administrator, Region 6.
[FR Doc. 2023-02293 Filed 2-2-23; 8:45 am]
BILLING CODE 6560-50-P
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