Rule2023-28496
Air Plan Approval; Oklahoma; Revisions to Air Pollution Control Rules
Primary source
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Published
December 28, 2023
Effective
January 29, 2024
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 to the EPA by the State of Oklahoma designee ("the State") on January 30, 2023. The SIP revisions being approved address amendments to subchapters regarding Control of Emission of Volatile Organic Compounds (VOCs) and Emission of Volatile Organic Compounds (VOCs) in Nonattainment Areas and Former Nonattainment Areas.
Full Text
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<title>Federal Register, Volume 88 Issue 248 (Thursday, December 28, 2023)</title>
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[Federal Register Volume 88, Number 248 (Thursday, December 28, 2023)]
[Rules and Regulations]
[Pages 89589-89593]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-28496]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R06-OAR-2023-0090; FRL-11014-02-R6]
Air Plan Approval; Oklahoma; Revisions to Air Pollution Control
Rules
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 to the EPA by
the State of Oklahoma designee (``the State'') on January 30, 2023. The
SIP revisions being approved address amendments to subchapters
regarding Control of Emission of Volatile Organic Compounds (VOCs) and
Emission of Volatile Organic Compounds (VOCs) in Nonattainment Areas
and Former Nonattainment Areas.
DATES: This rule is effective on January 29, 2024.
ADDRESSES: The EPA has established a docket for this action under
Docket ID EPA-R06-OAR-2023-0090. 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: Mr. Emad Shahin, EPA Region 6 Office,
Infrastructure and Ozone Section, 214-665-6717, <a href="/cdn-cgi/l/email-protection#4d3e252c2524236328202c290d283d2c632a223b"><span class="__cf_email__" data-cfemail="e6958e878e8f88c8838b8782a6839687c8818990">[email protected]</span></a>.
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 June
13, 2023, proposal (88 FR 38433).\1\ In that document we proposed to
approve a portion of the revisions to the Oklahoma SIP submitted on
January 30, 2023. Our June 2023 proposal addressed only the portion of
the submittal that referred to the Oklahoma Administrative Code (OAC)
Title 252, Chapter 100 (denoted OAC 252:100), Subchapters 37, and 39.
The remainder of the submitted revisions were addressed in a separate
rulemaking action.\2\
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\1\ Henceforth referred to as our ``June 2023'' proposal.
\2\ The submitted revisions also address amendments to
Subchapter 2, and Appendix Q, Incorporation by Reference, and
Subchapter 8, Permits for Part 70 Sources and Major New Source
Review (NSR) Sources, in the Oklahoma Administrative Code Title 252,
Chapter 100, Oklahoma Department of Environmental Quality. More
information about the EPA addressing these other sections may be
found in the text of the June 2023 proposed action.
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The revisions addressed in our June 2023 proposal add clarity and
consistency to the Oklahoma SIP. The revisions do not relax the current
SIP rules and are consistent with applicable Federal regulations.
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. More detail on these revisions is provided in
the docket for this action.
Our June 2023 proposal provided a detailed description of the
revisions and the rationale for the EPA's proposed actions, together
with a discussion of the opportunity to comment. The public comment
period for our June 2023 proposal was extended to August 14, 2023, to
allow additional time for stakeholders to review and comment on the
proposal.
We received comments from the Muscogee (Creek) Nation, the
Chickasaw Nation, and two anonymous comments. One anonymous comment
supported the extension of the comment period and the other was
supportive of this action generally. Below are our responses to
comments from the Muscogee (Creek) Nation and the Chickasaw Nation.
II. Response to Comments
Comment: During Tribal Consultation, the Muscogee (Creek) Nation
asked for more information regarding the number of compressor station
facilities within the Muscogee Reservation.
Response: Region 6 was able to obtain the number of natural gas
compressor stations within the Muscogee (Creek) Nation Reservation from
the ODEQ emission inventory database. There are 79 compressor stations
in the counties that make up the reservation.
Comment: Commenter stated concern about the number of compressor
stations (and therefore the amount of loading at relevant condensate
tanks) on Muscogee (Creek) Reservation land, the amount of VOC's, and
the effects that the VOC's may have on Muscogee citizens' health and
the environment.
Response: EPA agrees that VOC emissions can be harmful to human
health and the environment but notes that this action will not result
in any increase in emissions of VOCs. EPA has found this revision
complies with Clean Air Act Requirements. EPA is required to approve
SIP revisions that comply with all applicable requirements.
This action merely clarifies ODEQ's long standing interpretation
that the provisions of Subchapter 37 do not apply to loading operations
at condensate tanks at compressor stations. As this is just a
clarification, there is no change to how these facilities are regulated
in practice and there is no increase in emissions of VOC's. This type
of loading, however, remains regulated under separate provisions
specific to compressor station operations.
A loading facility has the main purpose of loading/unloading VOC's
in relatively large quantities using specialized equipment. Although
condensate loading operations occur at compressor stations, that is not
its main purpose. The transfer of condensate and produced water from
atmospheric storage tanks into individual tanker trucks at a compressor
station is a different type of operation both in scale and in the
equipment used than is the case in, for example, the bulk transfer of
gasoline at a pipeline terminal/bulk gasoline distribution system.
Condensate loading operations at compressor stations were not meant to
be covered by 252:100-37-16 as they do not have the physical equipment
(loading arm and pump) to conduct this type of loading and have much
lower throughput and emissions. The loading of condensate from natural
gas compressor station is regulated under other ODEQ rules such as
252:100-37-15(b) for submerged fill or a vapor recovery system which
applies to most condensate tanks at compressor stations since a typical
tank is about 400 barrels (16,800 gallons). Also, natural gas
compressor stations are subject to federal New Source Performance
Standards (NSPS) such as Subpart OOOO.
[[Page 89590]]
Comment: Commenter stated concern that incineration of petroleum
solvents as in dry cleaning filters is not an acceptable process in
Indian Country and that the incineration of petroleum solvents creates
Hazardous Air Pollutants that cause health and environmental justice
issues. The commenter also stated that the outdated compliance schedule
should be replaced with an updated one.
Response: Based on its air quality inspections in Tulsa County, the
ODEQ is not aware of any facilities that incinerate dry cleaning
filters as referenced in this subchapter. In addition, the revision
only clarifies that if a facility were to incinerate the filters, it
can only be allowed if permitted by the appropriate regulatory entity.
It is important to note that this section of the ODEQ rules does not
set requirements that must be met to obtain a permit for incineration
only that there be the appropriate permit which would be the case even
if this provision was not included in the SIP. As such, the revision
does not impact compliance with the Clean Air Act and therefore, EPA
must approve the revision.
The revision also removes the outdated compliance schedule of
October 1, 1986. There is no need to replace this schedule as there is
not a grace period for facilities to get into compliance; existing
facilities should be complying already, and new facilities would need
to begin operations in compliance with this subchapter.
Comment: The commenter stated that there appears to be no
environmental justice issue, but the Muscogee (Creek) Nation would like
to see the EJ report and the reporting decision on the subject matter.
Response: Please see ``EJ Considerations'' document, Doc. ID 0005
in the docket for this action for review of Environmental Justice
information related to this action.
Comment: In their comment, the Chickasaw Nation provides some
background on SAFETEA and the McGirt v. Oklahoma litigation. This
includes the most current status that while EPA proposed the withdrawal
and reconsideration of the October 1, 2020, decision to grant Oklahoma
authorization to administer EPA approved environmental programs in
Indian Country, the October 2020 decision remains in effect until EPA
takes final action. The Chickasaw Nation comments that the EPA's action
on the Oklahoma SIP is premature and the agency should first resolve
the issue of the withdrawal before proceeding with new regulatory
actions under SAFETEA. The commenter recommends that no new actions
that impact Indian country should be taken until a final decision is
made on the October 2020 approval. The Chickasaw Nation also comments
regarding the importance of EPA's federal trust obligations to Indian
tribes including government-to-government consultations and asks that
EPA be more proactive in its fulfillment of federal trust
responsibilities.
Response: As stated in our June 2023 proposal, and by the
commenter, the State retains its authority to administer authorized
programs in certain areas of Indian country pursuant to the October 1,
2020, approval under SAFETEA while EPA undergoes its reconsideration of
that decision. The State's authority includes the implementation the
SIP in areas of Indian country included in the October 2020 approval
and in non-reservation areas of Indian country pursuant to ODEQ v EPA.
As also noted in the June 2023 proposal, EPA may make further changes
to this final approval of Oklahoma's program to reflect the outcome of
the proposed withdrawal and reconsideration of the October 1, 2020,
SAFETEA approval. EPA notes that the litigation involving the October
2020 decision is currently being held in abeyance pending the outcome
of EPA's reconsideration. EPA takes seriously its general federal trust
responsibility to tribes. By example, EPA has engaged with and offered
consultation to all affected Oklahoma tribes on this matter. EPA
intends to continue its engagement with tribes on relevant matters,
including on actions related to approvals in Oklahoma and with regards
to SAFETEA.
III. Final Action
We are approving portions of a SIP revision submitted to the EPA by
the State of Oklahoma on January 30, 2023. Specifically, we are
approving the revisions to OAC 252:100, Subchapters 37 (Control of
Emission of Volatile Organic Compounds (VOCs), and 39 (Emission of
Volatile Organic Compounds (VOCs) in Nonattainment Areas and Former
Nonattainment Areas). We are approving these revisions in accordance
with section 110 of the Act.
IV. 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 Section III of
this preamble, Final Action. The revised regulations address VOC
emissions. 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 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.
V. Impact on Areas of Indian Country
As stated in the proposed action, on October 1, 2020, the EPA
approved Oklahoma's request to administer all the State's EPA-approved
environmental regulatory programs, including the Oklahoma SIP, in the
requested areas of Indian country pursuant to 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'').\3\
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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 Document ID No. XXXXX
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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''). 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).
As explained earlier in this action, the EPA is approving revisions
to portions of the Oklahoma SIP that were submitted by the State of
Oklahoma on January 24, 2023. More specifically, we are approving a
revision providing clarification to OAC 252:100-37-16 of Subchapter 37,
Control of Emission of Volatile Organic Compounds (VOCs)
[[Page 89591]]
and amending language and correcting approval process for OAC 252:100-
39-45 of Subchapter 39, Emission of Volatile Organic Compounds (VOCs)
in Nonattainment Areas and Former Nonattainment Areas, in the Oklahoma
Administrative Code Title 252, Chapter 100, Oklahoma Department of
Environmental Quality. Consistent with the D.C. Circuit's decision in
ODEQ v. EPA and with EPA's October 1, 2020, SAFETEA approval, 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, SAFETEA
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 expects to engage
in further discussions with tribal governments and the State of
Oklahoma as part of this review. EPA notes that the SAFETEA 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. Although EPA is approving these revisions
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 proposed withdrawal and reconsideration of the
October 1, 2020, SAFETEA approval.
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VI. Environmental Justice Considerations
As stated in our June 2023 proposal and posted in the docket for
this action, EPA reviewed demographic data, which provides an
assessment of individual demographic groups of the populations living
within Oklahoma. 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 (38.5 percent versus 43.1 percent). Within
people of color, the percent of the population that is Black or African
American alone is less than the national average (7.8 percent versus
13.6 percent) and the percent of the population that is American
Indian/Alaska Native is greater than the national average (9.7 percent
versus 1.3 percent). The percent of the population that is two or more
races is greater than the national average (6.6 percent versus 2.9
percent). The percent of people living in poverty in Oklahoma is
greater than the national average (15.6 percent versus 11.6 percent).
This final action approves new rules into the Oklahoma SIP that are
anticipated to add clarification and consistency to the SIP and will
generally be neutral or contribute to reduced environmental and health
impacts on all populations in Oklahoma, including indigenous people,
people of color, and low-income populations. 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. EPA offered consultation on
our proposed rulemaking to tribal governments that may be affected by
this action.\5\ We received one request for tribal consultation from
the Muscogee Nation and provided such on August 10, 2023.
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\5\ See invitation for consultation, dated June 8, 2023, in the
docket for this action.
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VII. Statutory and Executive Order Reviews
Under the Clean Air Act, 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 Clean Air Act.
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, 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).
In addition, the SIP is not approved to apply on any Indian
reservation land or in any other area where EPA or an Indian tribe has
demonstrated that a tribe has jurisdiction. In those areas of Indian
country, the rule does not have tribal implications and will not impose
substantial direct costs on tribal governments or preempt tribal law as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
Consistent with the EPA Policy on Consultation and Coordination with
Indian Tribes (May 4, 2011), the EPA offered consultation (by letter
dated June 8, 2023) on our proposed rulemaking to tribal governments
that may be affected by this action. We received a request for formal
tribal consultation from the Muscogee Nation and provided consultation
on August 10, 2023.
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.
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
[[Page 89592]]
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 Oklahoma Department of Environmental Quality did not evaluate
EJ considerations as part of its SIP submittal; the CAA and applicable
implementing regulations neither prohibit nor require such an
evaluation. EPA performed an EJ analysis, as is described earlier 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 EJ for people of color, low-income populations,
and Indigenous peoples.
This action is subject to the Congressional Review Act, and EPA
will submit a rule report to each House of the Congress and to the
Comptroller General of the United States. 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 February 26, 2024. 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, Ozone, Volatile organic compounds.
Dated: December 19, 2023.
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, the table in paragraph (c) titled ``EPA Approved
Oklahoma Regulations'' is amended by revising entries for 252:100-37-16
and 252:100-39-45 to read as follows:
Sec. 52.1920 Identification of plan
* * * * *
(c) * * *
EPA Approved Oklahoma Regulations
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State
State citation Title/subject effective date EPA approval date Explanation
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* * * * * * *
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CHAPTER 100 (OAC 252:100). AIR POLLUTION CONTROL
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Subchapter 37. Control of Emission of Volatile Organic Compounds (VOC)
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PART 5. Control of VOCs in Coating Operations
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* * * * * * *
252:100-37-16.................... Loading of VOCs.... 9/15/2020 12/28/2023, [Insert ...................
Federal Register
citation].
* * * * * * *
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Subchapter 39. Emission of Volatile Organic Compounds (VOCs) in Nonattainment Areas and Former Nonattainment
Areas
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* * * * * * *
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PART 7. Specific Operations
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* * * * * * *
252:100-39-45.................... Petroleum (solvent) 9/15/2020 12/28/2023. [Insert ...................
dry cleaning. Federal Register
citation].
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[FR Doc. 2023-28496 Filed 12-27-23; 8:45 am]
BILLING CODE 6560-50-P
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