[Federal Register Volume 66, Number 200 (Tuesday, October 16, 2001)]
[Proposed Rules]
[Pages 52562-52565]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-25740]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 70

[OK-FRL-7081-9]


Clean Air Act Full Approval of Operating Permits Program; 
Oklahoma

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed full approval.

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SUMMARY: The EPA proposes to fully approve the Operating Permit Program 
of the State of Oklahoma. Oklahoma's Operating Permit Program was 
submitted in response to the directive in the 1990 Clean Air Act (CAA) 
Amendments that States develop, and submit to EPA, programs for issuing 
operating permits to all major stationary sources and to certain other 
sources within the States' jurisdiction. The EPA granted interim 
approval to Oklahoma's Operating Permit Program on February 5, 1996 (61 
FR 4220). Oklahoma revised its program to satisfy the conditions of the 
interim approval and this action proposes approval of those revisions. 
Other program changes made by Oklahoma are also being proposed for 
approval as part of this action.

DATES: The EPA must receive your written comments on this proposed 
action no later than November 15, 2001.

ADDRESSES: Written comments on this action should be addressed to Ms. 
Jole Luehrs, Chief, Air Permits Section (6PD-R) at the EPA Region 6 
Office listed below. Copies of the State's submittal and other 
supporting documentation relevant to this action are available for 
inspection during normal business hours at the U.S. EPA, Region 6, Air 
Permitting Section (6PD-R), 1445 Ross Avenue, Suite 700, Dallas, Texas 
75202-2733, and the Oklahoma Department of Environmental Quality, 707 
North Robinson, Oklahoma City, Oklahoma 73102. Anyone wanting to 
examine these documents should make an appointment with the appropriate 
office at least two working days in advance.

FOR FURTHER INFORMATION CONTACT: Mary Stanton, Regional Title V Air 
Operating Permits Projects Manager, Air Permitting Section (6PD-R), 
Environmental Protection Agency, Region 6, 1445 Ross Avenue, Suite 700, 
Dallas, Texas 75202-2733, at (214) 665-8377.

SUPPLEMENTARY INFORMATION: This section provides additional information 
by addressing the following questions:

What is the Operating Permit Program?
What is being addressed in this document?
What are the program changes that EPA is proposing to approve?
What is involved in this proposed action?

What Is the Operating Permit Program?

    Title V of the CAA Amendments of 1990 required all States to 
develop Operating Permit Programs that met certain Federal criteria. In 
implementing the Operating Permit Programs, the permitting authorities 
require certain sources of air pollution to obtain permits that contain 
all applicable requirements under the CAA. The focus of the Operating 
Permit Program is to improve enforcement by issuing each source a 
permit that consolidates all of the applicable CAA requirements into a 
federally enforceable document. By consolidating all of the applicable 
requirements for a facility into a single document, the source, the 
public, and the regulators can more easily determine what CAA 
requirements apply and how compliance with those requirements is 
determined.
    Sources required to obtain an operating permit under this program 
include ``major'' sources of air pollution, as defined at 40 CFR 70.2, 
and certain other sources specified in the CAA or in EPA's implementing 
regulations. For example, all sources regulated under the acid rain 
program, regardless of size, must obtain operating permits. Examples of 
major sources include those that have the potential to emit 100 tons 
per year or more of volatile organic compounds (VOCs), carbon monoxide, 
lead, sulfur dioxide, nitrogen oxides, or particulate matter; those 
that emit 10 tons per year of any single hazardous air pollutant (HAP) 
(specifically listed under the CAA); or those that emit 25 tons per 
year or more of a combination of HAPs. In areas that are not meeting 
the National Ambient Air Quality Standards for ozone, carbon monoxide, 
or particulate matter, major sources are defined by the gravity of the 
nonattainment classification. For example, in ozone nonattainment areas 
classified as serious, major sources include those with the potential 
of emitting 50 tons per year or more of VOCs.

What Is Being Addressed in This Document?

    Where an Operating Permit Program substantially, but not fully met 
the criteria outlined in the implementing regulations codified at 40 
CFR part 70, EPA granted interim approval contingent on the State 
revising its program to correct the deficiencies. Because Oklahoma's 
Operating Permit Program substantially, but not fully met the 
requirements of part 70, EPA granted interim approval to the program in 
a rulemaking published on February 5, 1996 (61 FR 4220). The interim 
approval notice stipulated seven conditions that had to be met in order 
for Oklahoma's program to receive full approval. Oklahoma submitted 
revisions to its interim approved Operating Permit Program on July 27, 
1998. This document describes the changes that

[[Page 52563]]

have been made in Oklahoma's Operating Permit Program.

What Are the Program Changes That EPA Is Proposing To Approve?

    The interim approval notice stipulated seven conditions that had to 
be met in order for Oklahoma's program to receive full approval. These 
seven conditions are as follows: (1) Revise Subchapter 8 of the 
Oklahoma Administrative Code (OAC) to incorporate the new transition 
schedule included in the Governor's request for source category-limited 
interim approval; (2) revise definition of ``major source''; (3) revise 
definition of ``insignificant activities''; (4) revise permit content 
provisions; (5) revise judicial review provisions; (6) revise 
administrative amendments provisions; and (7) submit State 
Implementation Plan (SIP) revision for Subchapter 7 of the OAC 
consistent with Subchapter 8 of the OAC and 40 CFR part 70. 60 FR at 
4223. The State's July 27, 1998, submittal to EPA addressed these seven 
conditions. These items are discussed below.
    As part of its process for correcting the deficiencies, the State 
also revised its Operating Permit Program regulations to correct some 
typographical errors and to make some editorial changes including the 
renumbering of the regulations. The renumbering accounts for the 
difference in citations between the old regulations and the revised 
regulations. Oklahoma also moved some new source review (NSR) 
provisions from Subchapter 7 to Subchapter 8. In addition, Oklahoma 
changed some regulations EPA previously approved. Some of these changes 
did not comply with part 70. These items are also discussed below.
    The first condition for full approval of Oklahoma's Operating 
Permit Program was the requirement that the State revise Subchapter 8 
(OAC 252:100-8-7(a)(5)(A) and OAC 252:100-8-5(b)(2)) to reflect a 
transition schedule approval period for permitting certain sources 
during the interim period and then permitting all other sources during 
the first three years of full approval. 60 FR 13088, 13091 (March 10, 
1995); 61 FR at 4223. In response, the State deleted provisions of OAC 
252:100-7(a)(5)(A) and OAC 252:100-8-5(b)(2) and revised OAC 252:100-8-
4(b)(4) to reflect a transition schedule providing for permitting 
certain sources during the two year interim approval period and the 
permitting of all other sources during the first three years of full 
approval. This deficiency has been corrected.
    The second condition for full approval was that the language at OAC 
252:100-8-2 must be revised to clarify that for criteria pollutants, 
units cannot be considered separately at a facility when determining 
whether a source is major. 61 FR at 4223. Subsection D of OAC 252:100-
8-2's definition of ``major source'' did not allow aggregation of 
emissions for certain units at oil or gas exploration and pipeline 
compressor stations, contrary to EPA's definition of ``major source'' 
at 40 CFR 70.2. See 60 FR at 13091. In response, Oklahoma revised the 
definition of major source at OAC 252:100-8-2 to delete subsection D, 
which did not allow aggregation of emissions for certain units at oil 
or gas exploration and pipeline compressor stations. Therefore, this 
deficiency has been corrected.
    The third condition for full approval required a revision of the 
Insignificant Activities Provisions at OAC 252:100-8-3(e) to reflect an 
insignificant emissions level of one pound per hour of operation, based 
on potential to emit, or some other level as the State may demonstrate 
is insignificant with respect to applicable requirements. 61 FR at 
4223. In response, the State deleted the insignificant activities 
definition in OAC 252:100-8-3(e) and promulgated a revised 
insignificant activities definition in OAC 252:100-8-2. This definition 
defined insignificant activities as those on a list approved by the 
Administrator and contained in Appendix I of Subchapter 8, or whose 
actual calendar year emissions do not exceed certain limits.\1\ The 
definition also excludes any activity to which a Federal or State 
applicable requirement applies. The emission levels in the revised 
definition are consistent with the levels in other approved State 
Operating Permit Programs (i.e., Arkansas and Louisiana). However, in 
this action, EPA is not approving the list of insignificant activities 
contained in Appendix I. Thus, insignificant activities are limited to 
the emission limits in OAC 252:100-8-2. Therefore, this deficiency has 
been corrected.
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    \1\ These limits include 5 tons per year (tpy) of any one 
criteria pollutant, 2 tpy for any one hazardous air pollutant (HAP) 
or 5 tpy for an aggregate of two or more HAPs, or 20% of any 
threshold less than 10 tpy for any single HAP that EPA may establish 
by rule, or 0.6 tpy for any one category A substance, 1.2 tpy for 
any one category B substance, or 6 tpy for any one category C 
substance defined in OAC 252:100-41-40.
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    The fourth condition for full approval required Oklahoma to revise 
Subchapter 8 Permit Content Language at OAC 252:100-8-6(a) to delete 
the phrase, ``to the extent practicable.'' 61 FR at 4223. Permits 
issued by the state must include all applicable requirements. 60 FR at 
13092. The State revised 252:100-8-6(a) to delete the phrase ``to the 
extent practicable''. Therefore, this deficiency has been corrected.
    The fifth condition for full approval required Oklahoma to revise 
its Subchapter 8 Judicial Review Provisions. The EPA required the State 
to revise the language at OAC 252:100-8-7(j) to provide judicial review 
for comments made during public review and provide judicial review for 
all final permit actions. 60 FR at 4223. The regulations only provided 
standing for those who submitted ``written'' comments during public 
review, not those who made oral comments (e.g., at a public hearing). 
Id. at 4222. Oklahoma moved the Judicial Review provisions of OAC 
252:100-8-7(j) to OAC 252:100-8-7.5 and deleted the word ``written'' 
from this regulation. The current language provides judicial review for 
all comments made during the public comment period and for all final 
permit actions. Thus, this deficiency has also been corrected.
    The sixth condition for full approval required the State of 
Oklahoma to revise its Subchapter 8 Administrative Amendment 
Provisions. The EPA required the State to revise the language at OAC 
252:100-8-7(d) to delete the phrase ``or less'' from subpart (1)(c),\2\ 
and to define the term ``Enhanced NSR procedures'' consistent with part 
70. 60 FR at 4223. The EPA's rules at 40 CFR 70.7(d)(1)(iii) allow 
administrative amendments to be used to require more frequent 
monitoring at a facility, but not to make the monitoring requirements 
less stringent. The State's regulation did not define the term 
``Enhanced NSR procedures''. Furthermore, the NSR procedures in 
Subchapter 7 had not been submitted to EPA as a SIP revision. In 
response, the State moved the Administrative Amendment provisions from 
OAC 252:100-8-7(d) to OAC 252:100-8-7.2(a) and deleted the phrase ``or 
less'' from the regulatory language in 252:100-8-7.2(a)(1)(C)(E).
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    \2\ The FR notice (60 FR at 4223) incorrectly identified this 
citation as OAC 252:100-8-7(d)(1)(d).
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    The EPA also required the State to amend these regulations to 
define the term ``Enhanced New Source Review (NSR) procedures'' 
consistent with part 70. The regulations did not define or specify the 
NSR procedures mentioned and therefore required clarification. 61 FR at 
4223; 60 FR at 13091-92. 40 CFR 70.7(d)(1)(v) allows the incorporation 
``into the part 70 permit the requirements from preconstruction review 
permits authorized under an

[[Page 52564]]

EPA-approved program, provided that such a program meets procedural 
requirements substantially equivalent to the requirements of [40 CFR 
70.7 and 70.8] that would be applicable to the change if it were 
subject to review as a permit modification and compliance requirements 
substantially equivalent to those contained in Sec. 70.6.'' Rather than 
define the term ``enhanced NSR procedures'', the sentence containing 
the term was deleted from OAC 252:100-8-7.2(a)(1)(E) (formerly OAC 
252:100-8-7(d)(1)(E)). This change did not correct the sixth condition 
for full approval. However, as discussed below, the state has agreed to 
other steps to address this concern.
    The seventh, and final, condition for full approval was the 
submission of Subchapter 7 as a SIP Revision. EPA required the State of 
Oklahoma to revise Subchapter 7 to define enhanced NSR procedures 
consistent with Subchapter 8 and 40 CFR part 70. The EPA required that 
the revised regulation be submitted as a SIP revision within 18 months 
after interim approval was granted to ensure consistency between the 
SIP and Title V of the CAA for major sources. 61 FR at 4223. As stated 
above, the term ``enhanced NSR procedures'' was deleted from the 
regulation. The first sentence of OAC 252:100-8-7.2(a)(1)(E) (formerly 
OAC 252:100-8-7(d)(1)(E)) was changed from ``[i]ncorporates into the 
permit the requirements from preconstruction review permits issued by 
the DEQ under OAC 252:100-7'' to ``[i]ncorporates into the permit the 
requirements from preconstruction permits issued by the ODEQ under this 
Part.'' However, the State failed to show that program meets procedural 
requirements substantially equivalent to the requirements of [40 CFR 
70.7 and 70.8] that would be applicable to the change if it were 
subject to review as a permit modification and compliance requirements 
substantially equivalent to those contained in Sec. 70.6. The State 
also failed to submit Subchapter 7 to EPA as a SIP revision. Therefore, 
Oklahoma failed to correct the seventh condition for full approval.
    On June 12, 2001, EPA notified Oklahoma that it had four options to 
address the outstanding issues with the sixth and seventh conditions:

    1. EPA could approve the regulation without any additional 
changes provided Oklahoma includes provisions in the permit that 
meet the requirements of 40 CFR 70.7 and 70.8 (e.g., affected state 
review, EPA review, EPA petition);
    2. EPA could postpone full approval of Oklahoma's part 70 
program, until the state submits and EPA approves Subchapter 8, as a 
revision to their State Implementation Plan. This is provided that 
Subchapter 8 contains NSR provisions that address major sources and 
minor modifications to major sources, and that Subchapter 8 meets 
procedural requirements substantially equivalent to 40 CFR 70.7 and 
70.8 (e.g., affected state review, EPA review, EPA petition);
    3. Oklahoma can amend the regulation so that the language tracks 
the language in 40 CFR 70.7(1)(v); or
    4. Oklahoma can amend the regulation to delete the provision.

    By correspondence dated September 4, 2001, and September 19, 2001, 
Oklahoma agreed to implement Option 1. EPA and Oklahoma have agreed on 
the following language that Oklahoma will include in its permits to 
implement Option 1.
    1. The construction permit goes out for a 30 day public notice and 
comment using the procedures set forth in 40 Code of Federal 
Regulations (CFR) 70.7(h)(1). This public notice shall include notice 
to the public that this permit is subject to EPA review, EPA objection, 
and petition to EPA, as provided by 40 CFR 70.8; that the requirements 
of the construction permit will be incorporated into a Title V permit 
through the administrative amendment process; that the public will not 
receive another opportunity to provide comments when the requirements 
are incorporated into the Title V permit, and that EPA review, EPA 
objection, and petitions to EPA will not be available to the public 
when requirements from the preconstruction review permit are 
incorporated into the Title V permit.
    2. A copy of the construction permit application is sent to EPA, as 
provided by 40 CFR 70.8(a)(1).
    3. A copy of the draft construction permit is sent to any affected 
State, as provided by 40 CFR 70.8(b).
    4. A copy of the proposed construction permit is sent to EPA for a 
45 day review period as provided by 40 CFR 70.8(a) and (c).
    5. The DEQ complies with 40 CFR 70.8(c) upon the receipt within the 
45 day comment period of any EPA objection to the construction permit. 
The DEQ shall not issue the permit until EPA's objections are resolved 
to the satisfaction of EPA.
    6. The DEQ complies with 40 CFR 70.8(d).
    7. A copy of the final construction permit is sent to EPA as 
provided by 40 CFR 70.8(a).
    8. The DEQ shall not issue the proposed construction permit until 
any affected State and EPA have had an opportunity to review the 
proposed permit, as provided by these permit conditions.
    9. Any requirements of the construction permit may be reopened for 
cause after incorporation into the Title V permit by the administrative 
amendment process, by DEQ as provided in OAC 252:100-8-7.3(a), (b), and 
(c), and by EPA, as provided by 40 CFR 70.7(f) and (g).
    To the extent that these conditions are not followed, the Title V 
permit must go through the Title V review process.
    Therefore, Oklahoma has corrected the sixth and seventh conditions 
for full approval.
    Oklahoma made additional program changes after the interim approval 
became effective on March 6, 1996. The State revised its Operating 
Permits Program regulations to correct some typographical errors and to 
make some editorial changes including the renumbering of the 
regulations. Oklahoma also changed some regulations EPA previously 
approved. These regulations are discussed below. Oklahoma also moved 
some NSR provisions into Subchapter 8, and amended OAC 
252:002.Subchapter 15, ``Uniform Permitting Procedures.'' However, EPA 
is only proposing to approve Subchapter 8--Permits for Part 70 Sources, 
as it pertains to the Title V operating permits program. EPA is also 
proposing to approve OAC 252:2-15-41--Air Quality Applications--Tier 
II. It is not proposing to approve any provision of Subchapter 8 which 
relates to construction permits, or any other provision contained in 
the submittal which does not pertain to Title V. It is not proposing to 
approve Appendix J--Trivial Activities List, or OAC 252:2-15-41--Air 
Quality Applications--Tier I. It is also not proposing to approve any 
regulation as part of the SIP.
    Some of the changes Oklahoma made did not meet the requirements of 
part 70. These deficiencies involved public participation, Tier I air 
quality applications, definitions, permit content, administrative 
permit amendments, minor permit modification procedures, and permit 
review by EPA and affected States. These deficiencies were identified 
in a June 12, 2001 letter to Oklahoma.\3\ All but one of these 
deficiencies were minor. One major deficiency was discovered, OAC 
252:100-8-8(i)(5)(B). This provision allowed Oklahoma to disregard 
EPA's objection to a permit if it determined that it was inconsistent 
with state or federal law or regulations. This provision is prohibited 
by section 505(b)(3) of the CAA and 40 CFR

[[Page 52565]]

70.8(c). However, EPA has never objected to a CAA Title V permit in 
Oklahoma.\4\
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    \4\ These deficiencies will be addressed in a Notice of 
Deficiency published in the Federal Register at a later date.
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    Oklahoma has proposed revisions to OAC 252:100-8-8 which correct 
this deficiency. The Oklahoma Air Quality Council and the Oklahoma Air 
Quality Board have both approved the proposed revisions. Before this 
revision becomes effective its must be approved by the Governor. 
Oklahoma also needs to submit the revisions to EPA for approval. If EPA 
does not receive the revisions in a time frame that would allow full 
approval to become effective by December 1, 2001, then EPA would still 
grant Oklahoma full approval of its program (assuming that no relevant 
comments are received that would cause us not to approve the program). 
However, EPA would include the EPA Review Deficiency along with the 
other minor deficiencies identified in the June 12, 2001, letter in a 
Notice of Deficiency published in the Federal Register. Since this 
deficiency is not identified as an interim approval deficiency, it does 
not need to be corrected prior to the granting of full approval. Also, 
Oklahoma has agreed in writing not to issue a permit over EPA's 
objection.
    Therefore, based on the foregoing, EPA believes that since Oklahoma 
has corrected all of its interim approval deficiencies, and the new 
deficiencies are either minor or have been adequately addressed in the 
interim, these deficiencies are not a barrier to proposing full 
approval of Oklahoma's Operating Permits Program. However, a notice of 
deficiency will be issued to Oklahoma in the near future requiring 
Oklahoma to take action to correct these deficiencies.

What Is Involved in This Proposed Action?

    The State of Oklahoma has fulfilled the conditions of the interim 
approval granted on February 5, 1996 (61 FR 4220), so EPA is proposing 
full approval of the State's operating permit program. EPA is also 
proposing approval of certain other program changes made by the State 
since interim approval was granted.

Administrative Requirements

    Under Executive Order 12866, ``Regulatory Planning and Review'' (58 
FR 51735, October 4, 1993), this proposed action is not a ``significant 
regulatory action'' and therefore is not subject to review by the 
Office of Management and Budget. Under the Regulatory Flexibility Act 
(5 U.S.C. 601 et seq.) the Administrator certifies that this proposed 
rule will not have a significant economic impact on a substantial 
number of small entities because it merely approves state law as 
meeting federal requirements and imposes no additional requirements 
beyond those imposed by state law. This rule does not contain any 
unfunded mandates and does not significantly or uniquely affect small 
governments, as described in the Unfunded Mandates Reform Act of 1995 
(Public Law 104-4) because it proposes to approve pre-existing 
requirements under state law and does not impose any additional 
enforceable duties beyond that required by state law. This rule also 
does not have tribal implications because it will not have a 
substantial direct effect on one or more Indian tribes, on the 
relationship between the Federal Government and Indian tribes, or on 
the distribution of power and responsibilities between the Federal 
Government and Indian tribes, as specified by Executive Order 13175, 
``Consultation and Coordination with Indian Tribal Governments'' (65 FR 
67249, November 9, 2000). This rule also does not have Federalism 
implications because it will not have substantial direct effects on the 
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 Executive Order 13132, 
``Federalism'' (64 FR 43255, August 10, 1999). The rule merely proposes 
to approve existing requirements under state law, and does not alter 
the relationship or the distribution of power and responsibilities 
between the State and the Federal government established in the Clean 
Air Act. This proposed rule also is not subject to Executive Order 
13045, ``Protection of Children from Environmental Health Risks and 
Safety Risks'' (62 FR 19885, April 23, 1997) or Executive Order 13211, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001), because it 
is not a significantly regulatory action under Executive Order 12866. 
This action will not impose any collection of information subject to 
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., 
other than those previously approved and assigned OMB control number 
2060-0243. For additional information concerning these requirements, 
see 40 CFR part 70. An agency may not conduct or sponsor, and a person 
is not required to respond to, a collection of information unless it 
displays a currently valid OMB control number.
    In reviewing State operating permit programs submitted pursuant to 
title V of the Clean Air Act, EPA will approve State programs provided 
that they meet the requirements of the Clean Air Act and EPA's 
regulations codified at 40 CFR part 70. In this context, in the absence 
of a prior existing requirement for the State to use voluntary 
consensus standards (VCS), EPA has no authority to disapprove a State 
operating permit program for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews an operating 
permit program, to use VCS in place of a State program that otherwise 
satisfies the provisions of the Clean Air Act. Thus, the requirements 
of section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (15 U.S.C. 272 Note) do not apply.

List of Subjects in 40 CFR Part 70

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Intergovernmental relations, Operating permits, 
Reporting and recordkeeping requirements.

    Dated: October 2, 2001.
Lawrence E. Starfield,
Acting Deputy Regional Administrator, Region 6.
[FR Doc. 01-25740 Filed 10-15-01; 8:45 am]
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