[Federal Register Volume 64, Number 215 (Monday, November 8, 1999)]
[Rules and Regulations]
[Pages 60683-60687]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-29069]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[OK-3-1-5201a; FRL-6470-4]
Approval and Promulgation of Implementation, Plans Oklahoma;
Visibility Protection
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: The EPA is taking direct final action approving a revision to
the Oklahoma State Implementation Plan (SIP) involving the Oklahoma
Visibility Protection Plan for the Federal Class I area. This action
approves the general plan revisions and the long-term strategy and
removes the disapproval of the Oklahoma SIP and resultant Federal
Implementation Plan (FIP) for failure to meet the Federal requirements.
This action does not apply to areas of ``Indian Country'' over which
the State of Oklahoma has not demonstrated authority.
DATES: This rule is effective on January 7, 2000, without further
notice, unless EPA receives adverse comment by December 8, 1999. If EPA
receives such comment, EPA will publish a timely withdrawal in the
Federal Register informing the public that this rule will not take
effect.
ADDRESSES: Written comments on this action should be addressed to Mr.
Thomas H. Diggs, Chief, Air Planning Section (6PD-L), at the EPA Region
6 Office listed below. Copies of documents relevant to this action are
available for public inspection during normal business hours at the
following locations. Anyone wanting to examine these documents should
make an appointment with the appropriate office at least two working
days in advance.
Environmental Protection Agency, Region 6, Air Planning Section
(6PD-L), 1445 Ross Avenue, Dallas, Texas 75202-2733.
Oklahoma Department of Environmental Quality, Air Quality Division,
707 North Robinson, P.O. Box 1677, Oklahoma City, Oklahoma 73101-1677.
Documents which are incorporated by reference are available for
public inspection at the Air and Radiation Docket and Information
Center, Environmental Protection Agency, 401 M Street, SW., Washington,
DC 20460.
FOR FURTHER INFORMATION CONTACT: Bill Deese of the EPA Region 6 Air
Planning Section at (214) 665-7253.
SUPPLEMENTARY INFORMATION: Throughout this document wherever ``we,''
``us,'' and ``our'' is used, we mean EPA.
I. What Is the Purpose of This Action?
This action approves the Oklahoma Visibility Protection Plan
submitted by the Governor of Oklahoma on June 18, 1990, as a revision
to the Oklahoma SIP. This plan includes revisions to sections 1.4.4(b),
1.4.4(f), and 1.4.4(g) of the Prevention of Significant Deterioration
(PSD) rules in the Oklahoma Air Quality Control Regulations. This
action removes the EPA disapproval of the Oklahoma visibility plan and
resultant FIPs published in the Federal Register on June 24, 1986 (51
FR 22937), and November 24, 1987 (52 FR 45137), and codified in 40 CFR
52.1933.
II. Why Is EPA Taking This Action?
Section 169A of the Federal Clean Air Act (the Act) requires
visibility protection for mandatory Class I Federal areas where EPA has
determined that visibility is an important value. Mandatory Class I
Federal areas are defined as certain national parks, wilderness areas,
and international parks, as described in section 162(a) of the Act.
Mandatory Class I Federal areas in each State are listed in 40 CFR part
81, subpart D--Identification of Mandatory Class I Federal Areas Where
Visibility is an Important Value.
Section 169A of the Act specifically required EPA to promulgate
regulations requiring certain states to amend their SIPs to provide for
visibility protection. These regulations have been promulgated in 40
CFR part 51, subpart P, Visibility Protection. See 45 FR 80089,
December 2, 1980.
III. Does Oklahoma Have Any Federal Class I Areas?
Oklahoma has one mandatory Class I area. It is the Wichita
Mountains National Wildlife Refuge in Comanche County near Fort Sill
Military Reservation.
IV. What Is Meant by Part I and Part II Visibility SIPs?
In December 1982, the Environmental Defense Fund (EDF) filed suit
in the U.S. District Court for the Northern District of California
alleging that EPA had failed to perform a nondiscretionary duty under
section 110 of the Act to promulgate visibility SIPs. A negotiated
settlement agreement between EPA and EDF required EPA to promulgate
visibility SIPs on a specific schedule. We were required to promulgate
FIPs for visibility in States where SIPs were deficient with respect to
the visibility regulations. Specifically, the first part of the
agreement required us to propose and promulgate FIPs which cover the
visibility monitoring and new source review (NSR) provisions under 40
CFR 51.305 and 51.307, respectively. These requirements became known as
the Part I Visibility SIP requirements. However the settlement allowed
a State an opportunity to avoid Federal promulgation if it submitted an
approvable part I SIP by May 6, 1985. Oklahoma was one of the States
listed as having an inadequate NSR and monitoring plan for visibility
protection.
The second part of the settlement agreement required EPA to
determine the adequacy of the SIPs to meet the remaining provisions of
the visibility regulations and to propose and promulgate FIPs for
states with deficient
[[Page 60684]]
SIPs. These remaining provisions cover the general plan provisions
including visibility implementation control strategy (40 CFR 51.302)
and long-term strategies (section 51.306). These provisions became
known as the part II visibility SIP requirements. However, the
settlement agreement allowed a State an opportunity to avoid Federal
promulgation if it submitted an approvable part II visibility SIP by
August 31, 1987. Oklahoma was one of the States listed as having an
inadequate part II visibility protection SIP.
For more information on details of the provisions of the settlement
agreement, see EPA's announcement of the agreement at 49 FR 20647 (May
16, 1984).
V. Why Did EPA Disapprove the Oklahoma Visibility SIP?
On October 23, 1984 (49 FR 42670), we proposed to disapprove the
SIPs of 34 states, including Oklahoma, for failure to meet the
visibility monitoring and visibility NSR requirements and proposed to
incorporate Federal visibility regulations into the State plans.
On July 12, 1985, to avoid the national disapproval action, the
Governor of Oklahoma submitted to us the Oklahoma Visibility Protection
Plan (1985 Plan). On April 7, 1986 (51 FR 13029), we proposed to
disapprove the 1985 Plan because it did not include an approvable part
I visibility monitoring strategy required in 40 CFR 51.305 and the plan
did not include an approvable NSR portion required in 40 CFR 51.307.
The 1985 Plan incorporated existing Oklahoma Air Pollution Control
Regulation, section 1.4.4(f)(7), Post-construction Monitoring, stating
that the permit application would be reviewed for compliance with all
current and applicable Oklahoma Air Pollution Control Regulations.
However, the State failed to adopt additional regulations to meet the
requirements in 40 CFR 51.307, Visibility NSR. A review of the existing
Oklahoma section 1.4.4(g), Source Impacting Class I Areas, did not meet
these NSR requirements.
On June 24, 1986 (51 FR 22937), we published a final disapproval of
the Oklahoma Visibility Protection Plan submitted on June 12, 1985, and
promulgated a FIP. The disapproval and the FIP promulgation, codified
at 40 CFR 52.1933(a) and (b), incorporated into the Oklahoma SIP the
Federal requirements in 40 CFR 52.26, Visibility monitoring strategy;
Sec. 52.27, Protection of visibility from sources in attainment areas;
and Sec. 52.28, Protection of visibility from sources in nonattainment
areas.
On March 12, 1987 (52 FR 7802), EPA proposed to disapprove the SIPs
of States (including Oklahoma) which failed to comply with the
provisions of 40 CFR 51.302 and 51.306. The EPA was required by the EDF
settlement agreement to promulgate visibility SIPs on a specific
schedule. For States (including Oklahoma) which failed to submit a part
II visibility protection SIP by August 31, 1987, EPA was required to
promulgate a part II FIP. These FIPs were promulgated in the Federal
Register on November 24, 1987 (52 FR 45137). The disapproval of the
Oklahoma SIP and the FIP promulgation, codified in 40 CFR 52.1933(c),
incorporated into the Oklahoma SIP the requirements of 40 CFR 52.29,
Visibility long-term strategy.
VI. Review of the 1990 Oklahoma Visibility Plan
On June 18, 1990, the Governor of Oklahoma submitted to EPA a
revised Oklahoma visibility protection plan to meet the part I and part
II requirements of 40 CFR part 51, subpart P, Visibility Protection.
The plan, entitled ``Visibility Protection Plan'' (1990 Plan), was
developed by the Air Quality Service of the Oklahoma State Department
of Health.
The EPA has reviewed the State's submittal and developed an
evaluation report entitled ``Evaluation Report for the Oklahoma
Visibility Protection Plan.''
The text of the 1990 Plan is similar to the text of the 1985 Plan.
The major difference in the plans is that the 1990 Plan includes
section 1.4.4(b) and revised sections 1.4.4(f) and 1.4.4(g) of the PSD
regulations in Oklahoma Air Quality Control Regulations. The revisions
to sections 1.4.4(f) and 1.4.4(g) are as amended by the Oklahoma State
Department of Health on July 9, 1987, effective August 10, 1987.
All definitions in section 1.4.4(b), Definitions, in the June 18,
1990, submittal have already been approved by EPA or have been
superceded by revisions submitted after June 18, 1990.
Section 1.4.4(f), Air Quality Impact Evaluation, was revised to
include visibility impact evaluation requirements and gives the
Commissioner authority to require monitoring of visibility in any
Federal Class I area near the proposed new stationary source or major
modification.
Section 1.4.4(g), Sources Impacting Class I Areas, was revised to
require the Commissioner to notify the Federal Land Manager (FLM) of
the receipt of any analysis of the anticipated impacts on visibility in
any Federal Class I area, and include a complete copy of the permit
application of any proposed new major stationary source or major
modification that may effect visibility in any Federal Class I area.
The Commissioner is required to consider any timely analysis performed
by the FLM that he receives. Where the Commissioner finds that such an
analysis does not demonstrate to the satisfaction of the State that an
adverse impact will result in the Federal Class I area, the
Commissioner will, in the notice of public hearing on the permit
application, either explain his decision or give notice as to where the
explanation can be obtained. The revisions also added to section
1.4.4(g) the definitions of ``Adverse impact on visibility,'' ``Natural
conditions,'' ``Visibility impairment,'' ``Federal land manager,'' and
``Installation.''
As stated above, the Wichita Mountains National Wildlife Refuge in
Comanche County near Fort Sill Military Reservation is the only
mandatory Class I area in Oklahoma. The refuge is managed by the U.S.
Fish and Wildlife Service. The 1990 Plan commits the State to
visibility protection within the refuge boundary consistent with the
Act and EPA's regulatory requirements. In addition, the SIP is to be
reviewed every three years consistent with the requirements of 40 CFR
51.306(c) and revised as necessary. The strategy which the State plan
adopted includes a determination that there is no existing visibility
impairment in the one mandatory Class I Federal area in Oklahoma that
is reasonably attributable to specific sources. Currently, there are no
integral vistas in Oklahoma.
States do not have jurisdiction over ``Indian Country'' (as defined
in 18 U.S.C. 1151, and referenced in 40 CFR 51.1(i)) unless
specifically granted by Congress. Since the State of Oklahoma has not
submitted a demonstration of authority over ``Indian Country,'' we are
limiting our approval to those areas that do not constitute Indian
Country. For a more detailed discussion of Tribal authority under the
Act, see 59 FR 43956 (August 25, 1994) and 63 FR 7254 (February 12,
1998).
Based on our review, we find that the approval of sections 1.4.4(f)
and 1.4.4(g) will result in the Oklahoma SIP regulations meeting all of
the Federal NSR requirements of 40 CFR part 51, subpart P, Visibility
Protection. Section 8, Visibility Monitoring Program, of the 1990 Plan,
provides that the Oklahoma State Department of Health will monitor the
background visibility conditions in the mandatory Class I Federal area
by monthly review of local airport visibility data as collected by the
[[Page 60685]]
National Weather Service in Lawton, Oklahoma, airport located 22 miles
southeast of the Wichita Mountains Wilderness and the Fort Sill
Military Reservation airport located 19 miles southeast of the
Wilderness in almost flat terrain. The airport visibility data should
be representative of the conditions in the Class I area. The 1990 Plan
includes an emission inventory of sources within 55 kilometers radius
from the Wichita Mountains Refuge. The Oklahoma State Department of
Health determined that there are no existing sources with a 55
kilometer radius from the Refuge with emissions that would
significantly impact upon the Federal Class I area.
The Department will consider any available visibility data for use
in making its decisions. The Department will coordinate with the FLM in
conducting any monitoring of visibility in the mandatory Federal Class
I area.
Our review also finds that the State of Oklahoma has satisfied the
visibility general plan requirements of 40 CFR 51.302 and 51.306. These
are the part II requirements for visibility long-term strategy and for
implementation control strategies. The FLM has been afforded the
opportunity to identify visibility impairment and to recommend elements
for inclusion in the long-term strategy. The State has accorded the FLM
opportunities to participate and comment on its visibility SIP
revision. Comments by the FLM were submitted to the State during the
State's public notice period, and they were considered by the State and
incorporated where applicable. The State has committed in the SIP to
consult continually with the FLM on the review and implementation of
the visibility program.
The 1990 Plan contains the following provisions of the part II
Visibility Protection Plan requirements:
(1) A determination that there is no existing visibility impairment
that is reasonably attributable to specific sources,
(2) A discussion of the SIP elements and how each element of the
plan relates to the national goal, and
(3) A long-term (10-15 years) strategy.
Since no existing reasonably attributable impairment has been
identified, all elements of the plan are intended to prevent future
impairment of visibility. If existing reasonably attributable
impairment is later identified, the State will revise its plan to
remedy the impairment. The part II revision consists of a narrative
only, no regulatory revisions. Currently, there are no integral vistas
in Oklahoma.
The Oklahoma visibility long-term strategy section included the
following:
(1) Coordination with the FLM;
(2) Consideration of the six required factors for a long-term
strategy;
(3) A provision for the review of the impact of new sources, and
discussion of current visibility monitoring efforts; and
(4) Provisions for periodic review (i.e., every three years) of the
plan, which review must include consultation with the FLM and a report
to the public and to EPA on progress toward the national goal.
VII. Final Action
We are approving the Oklahoma ``Visibility Protection Plan''
submitted by the Governor on June 18, 1990. We are approving revisions
to sections 1.4.4(f) and 1.4.4(g) of the Oklahoma Air Pollution Control
Regulations in the Oklahoma SIP submitted with the plan. We are
removing and reserving 40 CFR 52.1933, Visibility Protection, because
the Oklahoma SIP meets the requirements of section 169A of the Act and
EPA's regulatory requirements.
The EPA is publishing this rule without prior proposal because we
view this as a noncontroversial amendment and anticipate no adverse
comments. However, in the ``Proposed Rules'' section of today's Federal
Register publication, we are publishing a separate document that will
serve as the proposal to approve the SIP revision if adverse comments
are received. This rule will be effective on January 7, 2000, without
further notice unless we receive adverse comment by December 8, 1999.
If EPA receives adverse comments, we will publish a timely withdrawal
in the Federal Register informing the public that the rule will not
take effect. We will address all public comments in a subsequent final
rule based on the proposed rule. We will not institute a second comment
period on this action. Any parties interested in commenting must do so
at this time.
VIII. Administrative Requirements
A. Executive Order (E.O.) 12866
The Office of Management and Budget (OMB) has exempted this
regulatory action from E.O. 12866, entitled ``Regulatory Planning and
Review.''
B. Executive Orders on Federalism
Under E.O. 12875, EPA may not issue a regulation that is not
required by statute and that creates a mandate upon a State, local or
tribal government, unless the Federal government provides the funds
necessary to pay the direct compliance costs incurred by those
governments, or EPA consults with those governments. If EPA complies by
consulting, E.O. 12875 requires EPA to provide to the OMB a description
of the extent of EPA's prior consultation with representatives of
affected State, local and tribal governments, the nature of their
concerns, copies of any written communications from the governments,
and a statement supporting the need to issue the regulation. In
addition, E.O. 12875 requires EPA to develop an effective process
permitting elected officials and other representatives of State, local
and tribal governments ``to provide meaningful and timely input in the
development of regulatory proposals containing significant unfunded
mandates.''
Today's rule does not create a mandate on State, local, or tribal
governments. The rule does not impose any enforceable rules on any of
these entities. This action does not create any new requirements but
simply approves requirements that the State is already imposing.
Accordingly, the requirements of section 1(a) of E.O. 12875 do not
apply to this rule.
On August 4, 1999, President Clinton issued a new E.O. on
federalism, E.O. 13132 (64 FR 43255, August 10, 1999), which will take
effect on November 2, 1999. In the interim, the current E.O. 12612 (52
FR 41685, October 30, 1987), on federalism still applies. This rule
will not have a substantial direct effect on States, on the
relationship between the national government and the States, or on the
distribution of power and responsibilities among the various levels of
government, as specified in E.O. 12612. The rule affects only one
State, and does not alter the relationship or the distribution of power
and responsibilities established in the Act.
C. Executive Order 13045
Executive Order 13045, entitled ``Protection of Children from
Environmental Health Risks and Safety Risks'' (62 FR 19885, April 23,
1997), applies to any rule that: (1) Is determined to be ``economically
significant'' as defined under E.O. 12866, and (2) concerns an
environmental health or safety risk that EPA has reason to believe may
have a disproportionate effect on children. If the regulatory action
meets both criteria, the Agency must evaluate the environmental health
or safety effects of the planned rule on children, and explain why the
planned regulation is preferable to other potentially effective and
reasonably feasible alternatives considered by the Agency.
The EPA interprets E.O. 13045 as applying only to those regulatory
actions that are based on health or safety risks, such that the
analysis required
[[Page 60686]]
under section 5-501 of the Order has the potential to influence the
regulation. This final rule is not subject to E.O. 13045 because it
approves a State program.
D. Executive Order 13084
Under E.O. 13084, EPA may not issue a regulation that is not
required by statute, that significantly or uniquely affects the
communities of Indian tribal governments, and that imposes substantial
direct compliance costs on those communities, unless the Federal
government provides the funds necessary to pay the direct compliance
costs incurred by the tribal governments, or EPA consults with those
governments. If EPA complies by consulting, E.O. 13084 requires EPA to
provide to the OMB, in a separately identified section of the preamble
to the rule, a description of the extent of EPA's prior consultation
with representatives of affected tribal governments, a summary of the
nature of their concerns, and a statement supporting the need to issue
the regulation. In addition, E.O. 13084 requires EPA to develop an
effective process permitting elected officials and other
representatives of Indian tribal governments ``to provide meaningful
and timely input in the development of regulatory policies on matters
that significantly or uniquely affect their communities.''
Today's rule does not significantly or uniquely affect the
communities of Indian tribal governments. This action does not involve
or impose any requirements that affect Indian tribes. Accordingly, the
requirements of section 3(b) of E.O. 13084 do not apply to this rule.
E. Regulatory Flexibility Act
The Regulatory Flexibility Act, 5 U.S.C. 600 et seq., generally
requires an agency to conduct a regulatory flexibility analysis of any
rule subject to notice and comment rulemaking requirements unless the
agency certifies that the rule will not have a significant economic
impact on a substantial number of small entities. Small entities
include small businesses, small not-for-profit enterprises, and small
governmental jurisdictions. This final rule will not have a significant
impact on a substantial number of small entities because SIP approvals
under section 110 and subchapter I, part D of the Act do not create any
new requirements but simply approve requirements that the State is
already imposing. Therefore, because the Federal SIP approval does not
create any new requirements, I certify that this action will not have a
significant economic impact on a substantial number of small entities.
Moreover, due to the nature of the Federal-State relationship under the
Act, preparation of a flexibility analysis would constitute Federal
inquiry into the economic reasonableness of state action. The Act
forbids EPA to base its actions concerning SIPs on such grounds. See
Union Electric Co. v. U.S. EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C.
7410(a)(2).
F. Unfunded Mandates
Under section 202 of the Unfunded Mandates Reform Act of 1995,
signed into law on March 22, 1995, EPA must prepare a budgetary impact
statement to accompany any proposed or final rule that includes a
Federal mandate that may result in estimated annual costs to State,
local, or tribal governments in the aggregate; or to private sector, of
$100 million or more. Under section 205, EPA must select the most cost-
effective and least burdensome alternative that achieves the objectives
of the rule and is consistent with statutory requirements. Section 203
requires EPA to establish a plan for informing and advising any small
governments that may be significantly or uniquely impacted by the rule.
The EPA has determined that the approval action promulgated does
not include a Federal mandate that may result in estimated annual costs
of $100 million or more to either State, local, or tribal governments
in the aggregate, or to the private sector. This Federal action
approves pre-existing requirements under State or local law, and
imposes no new requirements. Accordingly, no additional costs to State,
local, or tribal governments, or to the private sector, result from
this action.
G. Submission to Congress and the Comptroller General
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. The EPA will submit a report containing this rule and
other required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule can
not take effect until 60 days after it is published in the Federal
Register. This action is not a ``major'' rule as defined by 5 U.S.C.
804(2). This rule will be effective January 7, 2000.
H. Petitions for Judicial Review
Under section 307(b)(1) of the Act, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by January 7, 2000. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of this rule 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
oxides, Ozone, Particulate matter, Reporting and recordkeeping
requirements, Sulfur oxides, Volatile organic compounds.
Dated: October 27, 1999.
Myron O. Knudson,
Acting Regional Administrator, Region 6.
Part 52, chapter I, title 40 of the Code of Federal Regulations is
amended as follows:
PART 52--[AMENDED]
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart SS--Oklahoma
2. Section 52.1920 is amended by adding paragraph (c)(49) to read
as follows:
Sec. 52.1920 Identification of plan.
* * * * *
(c) * * *
(49) Oklahoma visibility protection plan submitted by the Governor
of Oklahoma on June 18, 1990.
(i) Incorporation by reference. Oklahoma Air Pollution Control
Regulations, Sections 1.4.4(f)(2), 1.4.4(f)(7), 1.4.4(f)(11), and
1.4.4(g), as amended by the Oklahoma State Department of Health on July
9, 1987, effective August 10, 1987.
(ii) Additional information. ``Oklahoma Visibility Protection
Plan,'' submitted by the Governor of Oklahoma on June 18, 1990.
2. Section 52.1933 is removed and reserved.
[[Page 60687]]
Sec. 52.1933 [Reserved]
[FR Doc. 99-29069 Filed 11-5-99; 8:45 am]
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