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Rule2024-04103

Air Plan Approval; Oklahoma; Updates to the State Implementation Plan Incorporation by Reference Provisions

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Published

March 1, 2024

Effective

April 1, 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 Oklahoma State Implementation Plan (SIP) submitted by the State of Oklahoma designee on December 17, 2021, and January 20, 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 89 Issue 42 (Friday, March 1, 2024)</title>
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[Federal Register Volume 89, Number 42 (Friday, March 1, 2024)]
[Rules and Regulations]
[Pages 15031-15034]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-04103]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2022-0279; FRL-10675-02-R6]

Air Plan Approval; Oklahoma; Updates to the State Implementation
Plan Incorporation by Reference Provisions

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
Oklahoma State Implementation Plan (SIP) submitted by the State of
Oklahoma designee on December 17, 2021, and January 20, 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: This rule is effective April 1, 2024.

ADDRESSES: The EPA has established a docket for this action under
Docket ID No. EPA-R06-OAR-2022-0279. 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: Adina Wiley, EPA Region 6 Office, Air
Permits Section, 214-665-2115, <a href="/cdn-cgi/l/email-protection#2057494c45590e4144494e41604550410e474f56"><span class="__cf_email__" data-cfemail="32455b5e574b1c53565b5c53725742531c555d44">[email&#160;protected]</span></a>. Please call or
email the contact listed above if you need alternative access to
material indexed but not provided in the docket.

[[Page 15032]]

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 March
6, 2023, proposal (88 FR 13755). In that document we proposed to
approve revisions to the Oklahoma SIP that update the incorporation by
reference dates for Federal requirements. We received one comment on
our proposed action, addressed below.

II. Response to Comments

The commentor asserts that there is a potential inconsistency with
the portions of our proposed rulemaking discussing the Impact on Areas
of Indian Country and Environmental Justice Considerations. We address
the comment below in two parts.
Comment: In section III of our proposal (``Impact on Areas of
Indian Country'') we said, ``As requested by Oklahoma, the EPA's
approval under SAFETEA \1\ 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).'' The commentor cites the
definition of ``Indian country'' in Title 18, ``(a) all land within the
limits of any Indian reservation under the jurisdiction of the United
States Government, notwithstanding the issuance of any patent, and,
including rights-of-way running through the reservation, (b) all
dependent Indian communities within the borders of the United States
whether within the original or subsequently acquired territory thereof,
and whether within or without the limits of a state, and (c) all Indian
allotments, the Indian titles to which have not been extinguished,
including rights-of-way running through the same.'' The commentor
offers their interpretation of this definition, stating that ``this
statute states that all Indian reservations and areas allocated for the
Native American community are reserved for that community and under
that community's jurisdiction'' and ties this interpretation to our
proposed action, arguing that ``[t]he problem that arises in the
proposed statute, is that it leaves the issue of air quality as a
responsibility of Indian Country.''
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\1\ 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'')
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Response: Section III of our proposed rulemaking, Impact on Areas
of Indian Country, provides the regulatory history of Oklahoma's
request and the EPA's approval to administer the State's environmental
regulatory programs in certain areas of Indian Country pursuant to
SAFETEA. The EPA's October 1, 2020, approval of the Oklahoma SAFETEA
request gives the State--not the Tribes--the authority to administer
the Oklahoma SIP within certain areas of Indian country. The State of
Oklahoma is responsible for protecting air quality in these areas.
Comment: The commentor states their concern that ``despite Indian
Country having authority over their land, they aren't given a
sufficient amount of resources to combat poor air quality, leaving them
to their own defenses. Subsequently, leaving Tribes to deal with poor
air quality and not giving them a chance to improve it. A general
recommendation I offer is to (a) add clarity to the cities, and Tribes,
that are excluded from Indian Country and will implement this statute,
(b) instead of trying to take control of Indian Country or leaving the
complete authority to Indian Country, work with the Tribes and create
statutes with their opinions and ideas in mind and have a shared
statute that everyone benefits from.''
Response: As a result of the EPA's SAFETEA approval, the State of
Oklahoma is responsible for protecting air quality in certain areas of
Indian Country and concerns about resources allocated to Tribes for
this purpose are not relevant to this rulemaking. The EPA notes,
however, that several Tribal governments within the State of Oklahoma
have Tribal air programs that are supported and encouraged by the EPA.

III. Impact on Areas of Indian Country

Following the U.S. Supreme Court decision in McGirt v Oklahoma, 140
S. Ct. 2452 (2020), the Governor of the State of Oklahoma requested
approval under Section 10211(a) of the Safe, Accountable, Flexible,
Efficient Transportation Equity Act of 2005: A Legacy for Users, Public
Law 109-59, 119 Stat. 1144, 1937 (August 10, 2005) (``SAFETEA''), to
administer in certain areas of Indian country (as defined at 18 U.S.C.
1151) the State's environmental regulatory programs that were
previously approved by the EPA for areas outside of Indian country. The
State's request excluded certain areas of Indian country further
described below. In addition, the State only sought approval to the
extent that such approval is necessary for the State to administer a
program in light of Oklahoma Dept. of Environmental Quality v. EPA, 740
F.3d 185 (D.C. Cir. 2014).\2\
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\2\ In ODEQ v. EPA, the D.C. Circuit held that under the CAA, a
state has the authority to implement a SIP in non-reservation areas
of Indian country in the state, where there has been no
demonstration of Tribal jurisdiction. Under the D.C. Circuit's
decision, the CAA does not provide authority to states to implement
SIPs in Indian reservations. ODEQ did not, however, substantively
address the separate authority in Indian country provided
specifically to Oklahoma under SAFETEA. That separate authority was
not invoked until the State submitted its request under SAFETEA, and
was not approved until EPA's decision, described in this section, on
October 1, 2020.
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On October 1, 2020, the EPA approved Oklahoma's SAFETEA request to
administer all the State's EPA-approved environmental regulatory
programs, including the Oklahoma SIP, in the requested areas of Indian
country. As requested by Oklahoma, the EPA's approval under SAFETEA
does not include Indian country lands, including rights-of-way running
through the same, that: (1) qualify as Indian allotments, the Indian
titles to which have not been extinguished, under 18 U.S.C. 1151(c);
(2) are held in trust by the United States on behalf of an individual
Indian or Tribe; or (3) are owned in fee by a Tribe, if the Tribe (a)
acquired that fee title to such land, or an area that included such
land, in accordance with a treaty with the United States to which such
Tribe was a party, and (b) never allotted the land to a member or
citizen of the Tribe (collectively ``excluded Indian country lands'').
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.\3\ The approval also provided that future
revisions or amendments to Oklahoma's approved environmental regulatory
programs would extend to the covered areas of Indian country (without
any further need for additional requests under SAFETEA).
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\3\ EPA's prior approvals relating to Oklahoma's SIP frequently
noted that the SIP was not approved to apply in areas of Indian
country (consistent with the D.C. Circuit's decision in ODEQ v. EPA)
located in the state. See, e.g., 85 FR 20178, 20180 (April 10,
2020). Such prior expressed limitations are superseded by the EPA's
approval of Oklahoma's SAFETEA request.
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The EPA is approving 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,

[[Page 15033]]

SAFETEA approval, our approval of these SIP revisions will apply to all
Indian country within the State of Oklahoma, other than the excluded
Indian country lands, as described above. Because--per the State's
request under SAFETEA--EPA's October 1, 2020, approval does not
displace any SIP authority previously exercised by the State under the
CAA as interpreted in ODEQ v. EPA, the SIP will also apply to any
Indian allotments or dependent Indian communities located outside of an
Indian reservation over which there has been no demonstration of Tribal
authority.\4\
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\4\ In accordance with Executive Order 13990, EPA is currently
reviewing our October 1, 2020 SAFETEA approval and 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 addresses the scope of the state's
program with respect to Indian country. 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 SAFETEA review.
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IV. Final Action

We are approving under section 110 of the CAA, the December 17,
2021, and January 20, 2023, revisions to the Oklahoma SIP to update the
incorporation by reference dates for Federal requirements. These
revisions were developed in accordance with the CAA and the EPA's
regulations, policy, and guidance for SIP development.
The EPA is approving 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 approves 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 Consideration

The EPA reviewed demographic data and provided the results in our
March 6, 2023, proposal. See 88 FR 13755, 13756-13757.

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 of the
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 IV of this
preamble, Final Action. 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.

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 Clean Air Act
and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a).
Thus, in reviewing SIP submissions, 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 14094 (88 FR 21879, April 11, 2023);
<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 subject to Executive Order 13045 (62 FR 19885,
April 23, 1997) because it approves a state program;
<bullet> Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001); and
<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 Clean Air Act.
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 state 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

[[Page 15034]]

goal of E.O. 12898 of achieving environmental justice for people of
color, low-income populations, and Indigenous peoples.
This final 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 to certain
areas of Indian country as discussed in the preamble, and therefore has
tribal implications as specified in E.O. 13175 (65 FR 67249, November
9, 2000). However, this action will neither impose substantial direct
compliance costs on federally recognized Tribal governments, nor
preempt Tribal law. This action will not impose substantial direct
compliance costs on federally recognized Tribal governments because no
actions will be required of Tribal governments. This action will also
not preempt Tribal law as no Oklahoma tribe implements a regulatory
program under the CAA, and thus does not have applicable or related
Tribal laws. Consistent with the EPA Policy on Consultation and
Coordination with Indian Tribes (May 4, 2011), the EPA has engaged with
Tribal governments that may be affected by this action and provided
information about this action.
This action is subject to the Congressional Review Act, and the 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 CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by April 30, 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, Carbon monoxide,
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen
dioxide, Ozone, Particulate matter, Reporting and recordkeeping
requirements, Sulfur oxides, Volatile organic compounds.

Dated: February 22, 2024.
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), the table titled ``EPA Approved
Oklahoma Regulations'' is amended by revising the entries for
``252:100-2-3'' and ``252:100, Appendix Q'' to read as follows:

Sec. 52.1920 Identification of plan.

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(c) * * *

EPA Approved Oklahoma Regulations
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State
State citation Title/subject effective date EPA approval date Explanation
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Chapter 100 (OAC 252:100). AIR POLLUTION CONTROL
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Subchapter 2. Incorporation by Reference
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252:100-2-3...................... Incorporation by 9/15/2022 3/1/2024, [Insert
reference. Federal Register
citation].

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Appendices for OAC 252: Chapter 100
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* * * * * * *
252:100, Appendix Q.............. Incorporation by 9/15/2022 3/21/2024, [Insert
reference. Federal Register
citation].

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[FR Doc. 2024-04103 Filed 2-29-24; 8:45 am]
BILLING CODE 6560-50-P

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