Proposed Rule2023-04487
Air Plan Approval; Oklahoma; Updates to the State Implementation Plan Incorporation by Reference Provisions
Primary source
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Published
March 6, 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 Oklahoma State Implementation Plan (SIP) submitted by the State of Oklahoma designee on December 17, 2021, and January 30, 2023. This action addresses the submittal of revisions to the Oklahoma SIP to update the incorporation by reference provision of Federal requirements under Oklahoma Administrative Code (OAC).
Full Text
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<title>Federal Register, Volume 88 Issue 43 (Monday, March 6, 2023)</title>
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[Federal Register Volume 88, Number 43 (Monday, March 6, 2023)]
[Proposed Rules]
[Pages 13755-13758]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-04487]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R06-OAR-2022-0279; FRL-10675-01-R6]
Air Plan Approval; Oklahoma; Updates to the State Implementation
Plan 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 revisions
to the Oklahoma State Implementation Plan (SIP) submitted by the State
of Oklahoma designee on December 17, 2021, and January 30, 2023. This
action addresses the submittal of revisions to the Oklahoma SIP to
update the incorporation by reference provision of Federal requirements
under Oklahoma Administrative Code (OAC).
DATES: Written comments must be received on or before April 5, 2023.
ADDRESSES: Submit your comments, identified by Docket No. EPA-R06-OAR-
2022-0279, at <a href="https://www.regulations.gov">https://www.regulations.gov</a> or via email to
<a href="/cdn-cgi/l/email-protection#cdbaa4a1a8b4e3aca9a4a3ac8da8bdace3aaa2bb"><span class="__cf_email__" data-cfemail="65120c09001c4b04010c0b04250015044b020a13">[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#72051b1e170b5c13161b1c13321702135c151d04"><span class="__cf_email__" data-cfemail="e196888d8498cf8085888f80a1849180cf868e97">[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#6017090c05194e0104090e01200510014e070f16"><span class="__cf_email__" data-cfemail="394e50555c4017585d505758795c4958175e564f">[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. We encourage 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 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 17, 2021, Mr. Kenneth Wagner, Secretary of Energy and
Environment, submitted revisions to the Oklahoma SIP that included the
annual SIP updates for 2021. 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.
On January 30, 2023, Mr. Ken McQueen, Secretary of Energy and
Environment, submitted revisions to the Oklahoma SIP that included the
annual SIP updates for 2022. This 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,
Subchapters 8, 37 and 39 which will be addressed by EPA at a later date
and in separate rulemakings.
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 December 17, 2021 and January 30, 2023, SIP
revisions addressed in this proposed rulemaking action were developed
in accordance with the CAA and the State provided reasonable notice and
public hearing.
The ODEQ submitted revisions on December 17, 2021 and January 30,
2023, to update the Incorporation by Reference provisions found in the
Oklahoma SIP. In the December 17, 2021, submittal the ODEQ provided
amendments to OAC 252:100-2-3 and Appendix Q that were adopted on June
11, 2021, and effective September 15,
[[Page 13756]]
2021. The January 30, 2023, submittal included amendments to OAC
252:100-2-3 and Appendix Q that were adopted on June 21, 2022, and
effective September 15, 2022. These revisions ensure the Oklahoma SIP
maintains consistency with current Federal requirements by updating the
opening paragraph of OAC 252:100-2-3 to include the current
incorporation by reference date and revoking and replacing the prior
version of Appendix Q. Specifically, the ODEQ updated the incorporation
by reference requirements of:
<bullet> 40 CFR part 50, appendices B and J, to ensure the Oklahoma
SIP uses the current Federal reference methods for determining
compliance with the NAAQS,
<bullet> 40 CFR part 51, subpart A, table 1 to appendix A to use
current requirements in the Oklahoma emission inventory reporting
requirements,
<bullet> 40 CFR part 51, paragraph 51.100(s)(1) of subpart F, to
use the Federal definition of volatile organic compound,
<bullet> 40 CFR part 51, appendix P, to use Federal emission
monitoring requirements,
<bullet> 40 CFR part 51, appendix W, to use current Federal
guidance on air quality models, and
<bullet> 40 CFR part 98, table A-1 of subpart A, to use current
global warming potentials in the Oklahoma air permitting programs.
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).\1\
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\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.
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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'').
The 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).
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\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.
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The EPA is proposing to approve updates to the Oklahoma SIP
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 the
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.\3\
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\3\ In accordance with Executive Order 13990, EPA is currently
reviewing our October 1, 2020 SAFETEA approval and expects to engage
in further discussions with tribal governments and 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 252:100-2-3 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, the
December 17, 2021, and January 30, 2023, revisions to the Oklahoma SIP
to update the incorporation by reference dates for Federal
requirements. We have determined that these revisions were developed in
accordance with the CAA and the EPA's regulations, policy, and guidance
for SIP development.
The EPA proposes approval of the following revisions to the
Oklahoma SIP adopted on June 11, 2021, effective September 15, 2021,
and submitted to the EPA on December 17, 2021:
<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 21, 2022, effective September 15, 2022,
and submitted to the EPA on January 30, 2023:
<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. Environmental Justice Considerations
The EPA reviewed demographic data, which provides an assessment of
[[Page 13757]]
individual demographic groups of the populations living within
Oklahoma.\4\ The EPA then compared the data to the national average for
each of the demographic groups. The results of this analysis are being
provided for informational and transparency purposes. The results of
the demographic analysis indicate that, for populations within
Oklahoma, the percent people of color (persons who reported their race
as a category other than White alone (not Hispanic or Latino)) is less
than the national average (35 percent versus 40 percent). Within people
of color, the percent of the population that is Black or African
American alone is lower than the national average (7.8 percent versus
13.4 percent) and the percent of the population that is American
Indian/Alaska Native is significantly higher than the national average
(9.4 percent versus 1.3 percent). The percent of the population that is
two or more races is higher than the national averages (6.3 percent
versus 2.8 percent). The percent of persons in poverty in Oklahoma is
higher than the national average (14.3 percent versus 11.4 percent).
The percent of persons aged 25 years and older with a high school
diploma in Oklahoma is similar to the national average (88.6 percent
versus 88.5 percent), while the percent with a Bachelor's degree or
higher is below the national average (26.1 percent versus 32.9
percent).
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\4\ 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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This action proposes to approve revisions to the Oklahoma SIP to
update the incorporation by reference provisions to maintain
consistency with Federal requirements; thus, enabling the State of
Oklahoma to implement control strategies and permitting programs. We
expect that this action, if finalized, will generally achieve emissions
reductions and contribute to reduced environmental and health impacts
on all populations in Oklahoma, including people of color and low-
income populations. Further, there is no information in the record
indicating that this action is expected to have disproportionately high
or adverse human health or environmental effects on a particular group
of people.
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 regulations that update Oklahoma's
incorporation by reference of certain Federal regulations in 40 CFR
parts 50, 51, and 98 identified and discussed in Section II, The EPA's
Evaluation, and Section IV, Proposed Action, of this preamble. 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).
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);
<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).
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.
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.'' 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.''
The air agency did not evaluate environmental justice
considerations as part of its SIP submittal; the CAA and applicable
implementing regulations neither prohibit nor require such an
evaluation. The EPA performed an environmental justice analysis, as is
described above in the section titled, ``Environmental Justice
Considerations.'' The analysis was done for the purpose of providing
additional context and information about this rulemaking to the public,
not as a basis of the action. Due to the nature of the action being
taken here, this action is expected to have a neutral to positive
impact on the air quality of the affected area. In addition, there is
no information in the record upon which this decision is based
inconsistent with the stated goal of E.O. 12898 of achieving
environmental justice for people of color, low-income populations, and
Indigenous peoples.
This proposed approval of revisions to the Oklahoma SIP that 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,
[[Page 13758]]
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 engaged with
tribal governments that may be affected by this action and provided
information about 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: February 28, 2023.
Earthea Nance,
Regional Administrator, Region 6.
[FR Doc. 2023-04487 Filed 3-3-23; 8:45 am]
BILLING CODE 6560-50-P
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