[Federal Register Volume 81, Number 126 (Thursday, June 30, 2016)]
[Proposed Rules]
[Pages 42587-42597]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-15618]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2014-0221; FRL-9948-56-Region 6]


Approval and Promulgation of Implementation Plans; Oklahoma; 
Revisions to Major New Source Review Permitting

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve severable portions of revisions to the Oklahoma New Source 
Review (NSR) State Implementation Plan (SIP) submitted by the State of 
Oklahoma on June 24, 2010; July 16, 2010; December 27, 2010; February 
6, 2012; and January 18, 2013. These revisions update the Prevention of 
Significant Deterioration (PSD) and Nonattainment NSR (NNSR) permit 
programs to be consistent with federal permitting requirements and make 
general updates to the Oklahoma SIP to support major NSR permitting. We 
are proposing this action under section 110, parts C and D of the Clean 
Air Act (CAA).

DATES: Written comments must be received on or before August 1, 2016.

ADDRESSES: Submit your comments, identified by Docket No. EPA-R06-OAR-
2014-0221, at http://www.regulations.gov or via email to 
[email protected]. Follow the online instructions for submitting 
comments. Once submitted, comments cannot be edited or removed from 
Regulations.gov. The EPA may publish any comment received to its public 
docket. Do not submit electronically any information you consider to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Multimedia submissions (audio, 
video, etc.) must be accompanied by a written comment. The written 
comment is considered the official comment and should include 
discussion of all points you wish to make. The EPA will generally not 
consider comments or comment contents located outside of the primary 
submission (i.e. on the web, cloud, or other file sharing system). For 
additional submission methods, please contact Ms. Adina Wiley, (214) 
665-2115, [email protected]. For the full EPA public comment policy, 
information about CBI or multimedia submissions, and general guidance 
on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.
    Docket: The index to the docket for this action is available 
electronically at www.regulations.gov and in hard copy at the EPA 
Region 6, 1445 Ross Avenue, Suite 700, Dallas, Texas. While all 
documents in the docket are listed in the index, some information may 
be publicly available only at the hard copy location (e.g., copyrighted 
material), and some may not be publicly available at either location 
(e.g., CBI).

FOR FURTHER INFORMATION CONTACT: Ms. Adina Wiley, (214) 665-2115, 
[email protected]. To inspect the hard copy materials, please 
schedule an appointment with Ms. Adina Wiley or Mr. Bill Deese at 214-
665-7253.

SUPPLEMENTARY INFORMATION: Throughout this document wherever ``we,'' 
``us,'' or ``our'' is used, we mean the EPA.

I. Background

A. The CAA and SIPs

    The CAA at Section 110(a)(2)(C) requires states to develop and 
submit to the EPA for approval into the SIP, preconstruction review and 
permitting programs applicable to certain new and modified stationary 
sources of air pollutants for attainment/unclassifiable and 
nonattainment areas that cover both major and minor new sources and 
modifications, collectively referred to as the NSR SIP. The CAA NSR SIP 
program is composed of three separate programs: PSD, NNSR, and Minor 
NSR. PSD is established in part C of title I of the CAA and applies in 
areas that are designated as meeting the National Ambient Air Quality 
Standards (NAAQS), i.e., ``attainment areas,'' as well as areas 
designated as ``unclassifiable'' because there is insufficient 
information to determine if the area meets the NAAQS. The NNSR SIP 
program is established in part D of title I of the CAA and applies in 
areas

[[Page 42588]]

that are designated as not being in attainment of the NAAQS, i.e., 
``nonattainment areas.'' The Minor NSR SIP program addresses 
construction or modification activities that do not emit, or have the 
potential to emit, beyond certain major source/major modification 
thresholds and thus do not qualify as ``major'' and applies regardless 
of the designation of the area in which a source is located. Any 
submitted SIP revision must meet the applicable requirements for SIP 
elements in section 110 of the Act, and be consistent with all 
applicable statutory and regulatory requirements. The EPA regulations 
governing the criteria that states must satisfy for EPA approval of the 
NSR programs as part of the SIP are contained in 40 CFR Sections 
51.160-51.166. Regulations specific to NNSR are contained in 40 CFR 
51.165; PSD specific regulations are found in 40 CFR 51.166. The State 
of Oklahoma submitted revisions to the Oklahoma SIP related to its 
title I Major NSR permitting programs--PSD and NNSR. In addition to the 
specific revisions for Major NSR permitting, the State of Oklahoma also 
submitted revisions to the General Oklahoma SIP requirements that 
support major NSR permitting activities.

B. Overview of the Revisions to the General Provisions of the Oklahoma 
SIP

    On July 16, 2010, the State of Oklahoma submitted revisions to the 
General Provisions in the Oklahoma SIP that had been adopted by the 
State and became effective from 2003-2012. Revisions submitted to the 
EPA for review included updates to the definitions and units, 
abbreviations, and acronyms used throughout the Oklahoma SIP; 
provisions establishing the ability to incorporate by reference federal 
requirements; revisions to the PSD increments regulated under the 
Oklahoma SIP; and updates to the Emission Inventory provisions.

C. Overview of the Revisions to the Oklahoma Major Source Permitting 
Programs

    The State of Oklahoma submitted revisions to the Oklahoma PSD and 
NNSR Programs on June 24, 2010; July 16, 2010; February 6, 2012; and 
January 18, 2013. The revisions to the Oklahoma PSD and NNSR programs 
under review in this action have been submitted to address amendments 
that the EPA has made to the federal PSD and NNSR regulations as 
contained in the following final rules:
     NSR Reform Rule (67 FR 800186, December 31, 2002) and (68 
FR 63021, November 7, 2003);
     Implementation of the 8-hour Ozone (O3) NAAQS-
Phase 2; Final Rule to Implement Certain Aspects of the 1990 Amendments 
Relating to NSR and PSD as They Apply to Carbon Monoxide (CO), PM and 
O3 NAAQS (70 FR 71612, November 29, 2005);
     PSD and NNSR: Reasonable Possibility in Recordkeeping (72 
FR 72607, December 21, 2007);
     NSR PM2.5 Implementation Rule (73 FR 28321, May 
16, 2008);
     PSD for PM2.5--Increments, Significant Impact 
Levels (SILs) and Significant Monitoring Concentration (SMC) (75 FR 
64864, October 20, 2010);
     GHG Tailoring Rule (75 FR 31514, June 3, 2010) (specific 
to PSD permitting only);
     PSD and NNSR: Reconsideration of Inclusion of Fugitive 
Rule (76 FR 17548, March 30, 2011).

D. Revisions Not Covered in This Proposed Action

    Some severable provisions submitted by the State of Oklahoma on 
June 24, 2010; July 16, 2010; February 6, 2012; and January 18, 2013 
are not addressed in today's action. In some instances, the EPA has 
taken separate actions to propose or finalize a decision on these 
severable provisions. For the remaining provisions, the EPA has severed 
the submitted provisions from today's rulemaking and will address them 
at a later date. The Technical Support Document accompanying our 
rulemaking identifies the provisions that we are not evaluating or 
proposing in this action.

II. The EPA's Evaluation

A. Evaluation of the Revisions to the General Provisions of the 
Oklahoma SIP

    We have evaluated revisions to the General Provisions for the 
Oklahoma SIP submitted July 16, 2010; December 27, 2010; February 6, 
2012; and January 18, 2013. These revisions, if approved by the EPA, 
would update the Oklahoma SIP to be consistent with current Oklahoma 
regulations and support the PSD and NNSR permitting programs in 
Oklahoma. We find that all of the revisions summarized below are 
consistent with federal requirements for SIP development under 40 CFR 
part 51; accordingly, we propose to approve the submitted rules as part 
of the Oklahoma SIP.
     The revisions to OAC 252:100-1-1, Purpose, and OAC 
252:100-1-2, Definitions, effective June 12, 2003 and submitted on July 
16, 2010, update the terms, phrases, and statutory definitions used 
throughout the Oklahoma SIP.
     The revisions to the General Definitions at OAC 252:100-1-
3 effective on June 12, 2003; July 1, 2008; July 1, 2009; June 15, 
2006; July 1, 2011; and July 1, 2012.\1\ These revisions provide 
updates to maintain consistency with federal definitions in 40 CFR part 
51 and remove obsolete or duplicative definitions.
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    \1\ On January 18, 2013, Oklahoma submitted a revision to the 
definition of ``carbon dioxide equivalent'' at OAC 252:100-1-3, 
effective July 1, 2012. The EPA separately proposed disapproval of 
this provision on January 11, 2016. See 81 FR 1141.
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     New provisions at OAC 252:100-1-4 effective on June 12, 
2003; July 1, 2009; and July 1, 2011 that establish the units, 
abbreviations, and acronyms germane to the Oklahoma SIP.
     New provisions at OAC 252:100-2-1, 252:100-2-3, and 
Appendix Q effective July 1, 2012, to provide the authority to 
incorporate by reference (IBR) federal requirements and to specifically 
identify the requirements that are incorporated into the Oklahoma 
regulations and SIP. The EPA is only proposing to approve the IBR of 
the identified portions of 40 CFR parts 50 and 51. All remaining 
portions of Appendix Q as submitted July 16, 2010 and January 18, 2013, 
were returned to the ODEQ by letters dated March 4, 2016 and May 16, 
2016, respectively.
     Revisions to OAC 252:100-3-4 effective June 15, 2005 and 
July 1, 2011, to maintain consistency with federal requirements and 
adopt and implement the PSD PM2.5 increments promulgated by 
the EPA on October 20, 2010.
     New OAC 252:100, Appendix P--Regulated Air Pollutants, 
effective June 15, 2007, to identify the pollutants regulated under the 
CAA and EPA regulations.
     Revisions to the regulations at OAC 252:100, Subchapter 
5--Registration, Emission Inventory, and Annual Operating Fees on July 
16, 2010. These amendments, update the Subchapter 5 Definitions at OAC 
252:100-5-1.1 to remove obsolete definitions and promote clarity and 
revise the Emission Inventory provisions at OAC 252:100-5-1.2 to 
include non-substantive edits to promote clarity to state Emission 
Inventory practices.\2\
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    \2\ The revision to OAC 252:100-5-2.1(a)(3) effective June 11, 
2014 and submitted July 16, 2010, was withdrawn by the Oklahoma 
Secretary of Energy and Environment on January 28, 2015. As such, 
this provision is no longer before us for review.
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B. Evaluation of the Revisions to the Oklahoma Major NSR Permitting 
Programs

    We evaluated amendments to the Oklahoma PSD and NNSR programs 
submitted on June 24, 2010; July 16, 2010, February 6, 2012, and 
January 18, 2013. These submitted revisions update

[[Page 42589]]

the general requirements for Oklahoma Major NSR Permitting Programs, 
and provide specific updates to the Oklahoma PSD and NNSR Permitting 
Programs at OAC 252:100-8-1.1, 8-30, 8-31, 8-32, 8-32.1, 8-32.2, 8-
32.2, 8-33, 8-34, 8-35, 8-35.1, 8-35.2, 8-36, 8-36.2, 8-37, 8-38, 8-39, 
8-50, 8-50.1, 8-51, 8-51.1, 8-52, 8-53, 8-54, 8-54.1, 8-55, 8-56, and 
8-57.\3\ These amendments, if approved by the EPA, would update the PSD 
and NNSR programs to be consistent with federal permitting requirements 
and provide clarity to the existing SIP-approved rules. The EPA's 
evaluation of the Oklahoma SIP submittals includes an analysis of how 
the Oklahoma regulations comport with the federal permitting 
requirements. We find that in most cases, the state regulatory language 
is identical to that of the federal rule. Where the regulatory language 
is not identical, we find it is consistent with the intent of the 
federal rules and definitions. The EPA is therefore proposing to 
approve the submitted rules as part of the Oklahoma PSD and NNSR SIP.
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    \3\ As identified in the TSD, the EPA is taking no action at 
this time on the submitted revisions to OAC 252:100-8-2, 8-4, 8-5, 
8-6, 8-6.1, 8-6.3, 8-7, 8-7.2, 8-8, and 8-36.1.
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1. NSR Reform Rule
    The EPA promulgated its NSR Reform Program rules on December 31, 
2002 (67 FR 80186). On November 7, 2003 (68 FR 63021), the EPA 
promulgated a final action on its reconsideration of the December 31, 
2002, NSR Reform Program rules. Our evaluation of the Oklahoma SIP 
submittals demonstrates the ODEQ has adopted and submitted revisions to 
the PSD and NNSR permitting programs that are sufficient for the ODEQ 
to implement the required elements of NSR Reform.
    The rule revisions effective June 15, 2006, submitted as a revision 
to the Oklahoma SIP on July 16, 2010, include revisions to OAC 252:100 
Part 7--Prevention of Significant (PSD) Requirements for Attainment 
Areas. The submission covers Applicability, PSD requirements, Actuals 
PALs, and Definitions that implement the NSR Reform revisions to PSD. 
To be approvable under the SIP, states implementing Part C (PSD permit 
program in 40 CFR 51.166) must include the EPA's December 31, 2002, 
changes as minimum PSD program elements. The following summary 
demonstrates the revisions to the Oklahoma PSD program satisfy the 
federal PSD program requirements:
     Incorporation of a new method for determining baseline 
actual emissions; defined in OAC 252:100-8-30 and OAC 252:100-8-31;
     Incorporation of the actual-to-projected-actual 
methodology for determining whether a major modification has occurred; 
found in OAC 252:100-8-30; and
     Inclusion of rules that allow major stationary sources to 
comply with Plantwide Applicability Limits (PALs) to avoid having a 
significant emissions increase that triggers the requirements of the 
major NSR program; found OAC 252:100-8-38.
    The rule revisions effective June 15, 2006, submitted as a revision 
to the Oklahoma SIP on July 16, 2010, also include revisions to OAC 
252:100 Part 9--Major Sources Affecting Nonattainment Areas. The 
submission covers Applicability, NNSR requirements, Actuals PALs, and 
Definitions that implement the NSR Reform revisions to NNSR. To be 
approvable under the SIP, states implementing Part D (NNSR permit 
program in 40 CFR 51.165) must include the EPA's December 31, 2002, 
changes as minimum NNSR program elements. The following summary 
demonstrates that the revisions to the Oklahoma NNSR program satisfy 
the federal NNSR program requirements.
     Incorporation of a new method for determining baseline 
actual emissions; defined in OAC 252:100-8-50 and OAC 252:100-8-51;
     Incorporation of the actual-to-projected-actual 
methodology for determining whether a major modification has occurred; 
found in OAC 252:100-8-50; and
     Inclusion of rules that allow major stationary sources to 
comply with Plantwide Applicability Limits (PALs) to avoid having a 
significant emissions increase that triggers the requirements of the 
major NSR program; found OAC 252:100-8-56.
2. Final Rule To Implement the 8-Hour Ozone (O3) NAAQS--
Phase 2 and Certain Aspects of the 1990 Amendments Relating to NSR and 
PSD as They Apply to Carbon Monoxide (CO), PM and O3 NAAQS 
(O3 NAAQS Implementation Rule)
    The EPA finalized the O3 NAAQS Implementation Rule to 
provide additional regulatory requirements under the PSD and NNSR SIP 
programs regarding the implementation of the 8-hour ozone NAAQS. See 70 
FR 71612, November 29, 2005. Regarding NSR, this rule is based on the 
proposed rule published on June 2, 2003 to implement the 8-hour 
O3 NAAQS, as well as the proposed rule published on July 23, 
1996 for PSD and NNSR. See 68 FR 32802 and 61 FR 38305, respectively. 
These changes provide a consistent national program for permitting 
major stationary sources under section 110(a)(2)(C) and parts C and D 
of title I of the CAA, including major stationary sources of any ozone 
precursor in ozone nonattainment areas.
    The revisions to the Oklahoma PSD Program address the required 
elements of the EPA's final 8-hour ozone NAAQS Phase 2 rule as follows:
     The Oklahoma PSD program contains a revised definition of 
``major stationary source'' at OAC 252:100-8-31, which specifies that a 
major source that is major for VOC or NOX is considered 
major for ozone.
     The Oklahoma PSD program contains a revised definition of 
``major modification'' at OAC 252:100-8-31, which specifies that any 
significant increase or net emissions increase at a major stationary 
source that is significant for VOC or NOX shall be 
considered significant for ozone.
     The Oklahoma PSD program contains a revised definition of 
``significant'' at OAC 252:100-8-31, which specifies that the SER for 
ozone is 40 TPY of VOC or NOX.
     The Oklahoma PSD program contains a revised definition of 
``regulated NSR pollutant'' at OAC 252:100-8-31, which specifies that 
VOC and NOX are precursors to ozone and thus regulated 
pollutants.
     The Oklahoma PSD program contains a revised exemption from 
PSD monitoring at OAC 252:100-8-33(c)(1)(F), which specifies that no de 
minimis air quality level is provided for ozone.
    The EPA's final 8-hour ozone NAAQS Phase 2 Rule also codified 
requirements added to part D of Title I of the CAA in the 1990 
Amendments related to permitting of major stationary sources in areas 
that are nonattainment for the O3, PM, and CO NAAQS. Second, 
the EPA revised the criteria for crediting emissions reductions credits 
from shutdowns and curtailments as offsets. Third, revisions to the 
regulations for permitting of major stationary sources in nonattainment 
areas in interim periods between designation of new nonattainment areas 
and the EPA's approval of a revised SIP. Fourth, the EPA changed the 
regulations that impose a ban prohibiting construction of new or 
modified major stationary sources in nonattainment area where the State 
fails to have an implementation plan meeting all of the requirements of 
part D. The revisions to the Oklahoma NNSR Program address the required

[[Page 42590]]

elements of the EPA's final 8-hour Ozone NAAQS Phase 2 rule as follows:
     The Oklahoma NNSR program at OAC 252:100-8-51 incorporates 
by reference the federal NNSR definition of ``major stationary source'' 
at 40 CFR 51.165(a)(1)(iv) as of July 1, 2010.
     The definition of ``major modification'' at OAC 252:100-8-
51 was revised by adding a new paragraph (C) and new OAC 252:100-8-
54.1(a) together requiring NOX to be regulated as an ozone 
precursor in an ozone nonattainment area consistent with the federal 
requirements at 40 CFR 51.165(a)(1)(v) and (a)(3)(8).
     The Oklahoma NNSR program at OAC 252:100-8-51 incorporates 
by reference the federal NNSR definition of ``significant'' at 40 CFR 
51.165(a)(1)(x) as of July 1, 2010.
     New OAC 252:100-8-51.1(b) incorporates by reference the 
emission offset requirements in 40 CFR 51.165(a)(9) as of July 2, 2007.
     New OAC 252:100-8-54.1(b) makes the PM10 
requirements apply to the PM10 precursors consistent with 
the requirements at 40 CFR 51.165(a)(10).
3. PSD and NNSR: Reasonable Possibility in Recordkeeping Rulemaking
    The EPA finalized PSD and NNSR: Reasonable Possibility in 
Recordkeeping on December 21, 2007. See 72 FR 72607. This rule 
clarifies the ``reasonable possibility'' recordkeeping and reporting 
standards of our 2002 NSR Reform rules. The ``reasonable possibility'' 
standard identifies for sources and reviewing authorities the criteria 
under which an owner or operator of a major stationary source 
undergoing a physical change or change in the method of operation that 
does not trigger major NSR permitting requirements for a given 
regulated NSR pollutant must keep records. The standard also specifies 
when the recordkeeping and reporting requirements apply to such 
sources.
    The Oklahoma PSD program does not include the reasonable 
possibility provisions as promulgated by EPA at 40 CFR 
51.166(r)(6)(vi). Instead, in the Oklahoma PSD program, any source 
using the ``projected actual emissions'' methodology is required to 
comply with the recordkeeping requirements at 40 CFR 51.166(r)(6)(i)-
(v). Similarly, the revisions to the Oklahoma NNSR program effective 
June 15, 2006, submitted July 16, 2010, incorporate by reference as of 
January 2, 2006, the requirements in 40 CFR 51.165(a)(6)(i) through 
(a)(6)(v), and do not include the reasonable possibility provisions 
promulgated at 40 CFR 51.165(a)(6)(vi).
    The Oklahoma Department of Environmental Quality submitted a letter 
of interpretation on February 8, 2016, that explained how the Oklahoma 
PSD program applies the recordkeeping, monitoring and reporting 
requirements consistent with 40 CFR 51.166(r)(6)(i)-(v) to all sources 
that use the ``projected actual emissions'' methodology; not just a 
subset of sources for which there is a ``reasonable possibility'' that 
a project would result in a significant emissions increase of a 
regulated NSR pollutant. These requirements apply to any source using 
the ``projected actual emissions'' methodology. Therefore, the EPA 
believes that the Oklahoma SIP does not need to include the reasonable 
possibility provisions at 40 CFR 51.166(r)(6)(vi). This requirement for 
all sources to maintain records, monitor emissions and report in 
accordance with 40 CFR 51.166(r)(6)(i)-(v) is more stringent than 
federal requirements and is therefore approvable. While the February 8, 
2016, letter is specific to the Oklahoma PSD program and the 
requirements at OAC 252:100-8-36.2, we find that the Oklahoma NNSR 
program is structured similarly and the same conclusion would apply. 
Any source using the ``projected actual emissions'' methodology is 
required to meet the recordkeeping and reporting requirements 
consistent with 40 CFR 51.165(a)(6)(i)-(v). Therefore, the Oklahoma SIP 
does not need to include the reasonable possibility provisions at 40 
CFR 51.165(a)(6)(vi).
4. Revisions to the PSD and NNSR Programs for PM2.5 
Implementation
    The EPA promulgated two rules establishing both required and 
optional implementation elements for PSD and NNSR permitting programs 
for PM2.5: the May 16, 2008 final rule for Implementation of 
the New Source Review (NSR) Program for Particulate Matter Less than 
2.5 Micrometers (PM2.5) (referred to as the NSR 
PM2.5 Implementation Rule), 73 FR 28321; and the October 20, 
2010 final rule for Prevention of Significant Deterioration (PSD) for 
Particulate Matter Less than 2.5 Micrometers (PM2.5)--
Increments, Significant Impact Levels (SILs) and Significant Monitoring 
Concentration (SMC) (referred to as the PM2.5 PSD 
Increments--SILs--SMC Rule), 75 FR 64864. Both the NSR PM2.5 
Implementation Rule and the PM2.5 PSD Increments--SILs--SMC 
Rule have also been the subject of litigation. Following is a 
discussion of how the Oklahoma PSD and NNSR programs satisfy the 
required elements of these two rulemakings and address the concerns 
raised in the subsequent litigation.
a. NSR PM2.5 Implementation Rule
    Our evaluation of the February 6, 2012, revisions to the Oklahoma 
PSD permitting program presented below and in our accompanying TSD, 
demonstrates that the Oklahoma PSD program includes all of the PSD 
required elements of the NSR PM2.5 Implementation Rule.
     Regulation of Direct PM2.5 and Precursors: The 
revised definition of ``regulated NSR pollutant'' at OAC 252:100-8-31 
is consistent with the federal definition of ``regulated NSR 
pollutant'' at 40 CFR 51.166(b)(49) and identifies precursors to 
PM2.5 in attainment areas. With respect to PM2.5, 
the revised definition of ``regulated pollutant'' at OAC 252:100-8-31 
identifies sulfur dioxide and nitrogen oxides as regulated 
PM2.5 precursors while volatile organic compounds (VOCs) are 
not regulated PM2.5 precursors in PM2.5 
attainment areas in Oklahoma.
     Establish SERs: The revisions to the PSD definition of 
``significant'' at OAC 252:100-8-31 establishes significant emission 
rates for direct PM2.5 and for NOX and 
SO2 and PM2.5 precursors.
     Condensable PM10/PM2.5 Emissions: 
The revised definition of ``regulated NSR pollutant'' at OAC 252:100-8-
31 is consistent with the federal requirements promulgated on May 16, 
2008 at 40 CFR 51.166(b)(49)(vi). Note that the EPA subsequently 
promulgated a correction to the definition of ``regulated NSR 
pollutant'' with regard to the way in which condensable particulate 
matter is to be addressed with regard to emissions of PM at 40 CFR 
51.166(b)(49)(i)(a). The correction clarified that permit applicants 
are not required to consider the condensable portion of particulate 
matter in applicability determinations and in establishing emission 
limitations concerning ``PM emissions,'' a term that represents a size 
range or indicator of particulate matter not considered to be a 
criteria pollutant. See 77 FR 65107, October 25, 2012. Although the 
ODEQ revisions do not reflect this amendment of the federal condensable 
provision, the State's revision to the PSD program to address 
condensable emissions is nonetheless approvable as it is more stringent 
than the current federal requirements for regulating condensibles as 
modified by the EPA in the October 25, 2012 final rule.
    Based on the analysis presented below and in our accompanying TSD, 
the EPA is also proposing to find that the February 6, 2012, revision 
to the Oklahoma NNSR permitting program includes all of the NNSR 
requirements

[[Page 42591]]

of the NSR PM2.5 Implementation Rule for the following 
reasons:
     Regulation of Direct PM2.5 and Precursors: The 
revised definition of ``regulated NSR pollutant'' at OAC 252:100-8-51 
is consistent with the federal definition of ``regulated NSR 
pollutant'' at 40 CFR 51.165(a)(1)(xxxvii) and identifies precursors to 
PM2.5 in nonattainment areas. With respect to 
PM2.5, the revised definition of ``regulated pollutant'' at 
OAC 252:100-8-51 identifies sulfur dioxide and nitrogen oxides as 
regulated PM2.5 precursors while volatile organic compounds 
(VOCs) and ammonia are not regulated PM2.5 precursors in 
PM2.5 nonattainment areas in Oklahoma. We note there are 
currently no PM2.5 nonattainment areas in Oklahoma.
     Establish SERs: The February 6, 2012, submittal 
incorporates by reference the definition of ``significant'' at 40 CFR 
51.165(a)(1) as it exists on July 1, 2011, and will therefore include 
significant emission rates for direct PM2.5 and for sulfur 
dioxide and nitrogen oxides as PM2.5 precursors as 
promulgated by the EPA at 40 CFR 51.165(a)(1)(xxxvii)(C) and (D) on May 
16, 2008.
     Condensable PM10/PM2.5 Emissions: 
The revised definition of ``regulated NSR pollutant'' at OAC 252:100-8-
51 is consistent with the federal requirements promulgated on May 16, 
2008 at 40 CFR 51.165(a)(1)(xxxvii).
b. The EPA's Analysis of the Revisions to the Oklahoma PSD and NNSR 
Permitting Program Submittal in Light of the Litigation on the May 16, 
2008 NSR PM2.5 Implementation Rule
    On January 4, 2013, the U.S. Court of Appeals for the District of 
Columbia Circuit, in Natural Resources Defense Council v. EPA \4\ 
issued a decision that remanded the EPA's 2007 and 2008 rules 
implementing the 1997 PM2.5 NAAQS. With respect to the 
requirements for implementation of the PM2.5 NAAQS in 
nonattainment areas, the Court found that the EPA erred in implementing 
the PM2.5 NAAQS in these rules solely pursuant to the 
general implementation provisions of subpart 1 of part D of title I of 
the CAA, rather than pursuant to the additional implementation 
provisions specific to particulate matter nonattainment areas in 
subpart 4. The Court ordered the EPA to ``repromulgate'' these rules 
pursuant to subpart 4 consistent with this opinion.'' Id. at 437. 
Subpart 4 of Part D, Title I of the CAA establishes additional 
provisions for particulate matter nonattainment areas.
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    \4\ 706 F.3d 428 (D.C. Cir. 2013).
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    The 2008 PM2.5 NSR Implementation Rule addressed by the 
NRDC decision promulgated NSR requirements for implementation of 
PM2.5 in both nonattainment areas (NNSR) and attainment/
unclassifiable areas (PSD).\5\ As the requirements of subpart 4 only 
pertain to nonattainment areas, the EPA does not consider the portions 
of the 2008 rule that address requirements for PM2.5 in 
attainment and unclassifiable areas to be affected by the court's 
opinion. Moreover, the EPA does not anticipate the need to revise any 
PSD requirements promulgated in the 2008 NSR PM2.5 
Implementation Rule in order to comply with the court's decision. 
Accordingly, the EPA's proposed approval of revisions to the Oklahoma 
SIP with respect to the PSD requirements promulgated by the 2008 NSR 
PM2.5 Implementation Rule does not conflict with the court's 
opinion.
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    \5\ The 2007 implementation rule also addressed by the NRDC 
decision does not address any NSR requirements and is therefore not 
addressed by this rulemaking.
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    With respect to the nonattainment area requirements in affected 
rules, including the NNSR requirements of the 2008 PM2.5 NSR 
Implementation Rule, on June 2, 2014, the EPA published a final 
rulemaking that begins to address the remand of both rules. See 79 FR 
31566. The final rule classifies all existing 1997 and 2006 
PM2.5 NAAQS nonattainment areas as ``Moderate'' 
nonattainment areas and sets a deadline of December 31, 2014, for 
states to submit any SIP submissions, including nonattainment NSR SIPs, 
that may be necessary to satisfy the requirements of subpart 4, part D, 
title I of the CAA with respect to those 1997 and 2006 PM2.5 
NAAQS nonattainment areas.
    In a separate rulemaking process that will follow the April 2014 
rule, the EPA is evaluating the requirements of subpart 4 as they 
pertain to, among other things, nonattainment NSR for PM2.5 
emissions. In particular, subpart 4 includes section 189(e) of the CAA, 
which requires the control of major stationary sources of 
PM10 precursors ``except where the Administrator determines 
that such sources do not contribute significantly to PM10 
levels which exceed the standard in the area.'' Under the court's 
decision in NRDC, section 189(e) of the CAA also applies to 
PM2.5.
    Notably, Oklahoma does not have any areas designated as 
nonattainment under either the 1997 or the 2006 PM2.5 NAAQS. 
The obligation for a state to submit a plan addressing PM2.5 
nonattainment NSR permitting requirements under CAA section 189(a)(1)-
(2) only attaches when an area within a state has been designated 
nonattainment. Accordingly, Oklahoma is not required at this time to 
make any submissions addressing PM2.5 nonattainment NSR 
permitting. The December 31, 2014, deadline for states to make any 
additional submission necessary to address the requirements of subpart 
4 as to the 1997 and 2006 PM2.5 NAAQS, including addressing 
the regulation of PM2.5 precursors pursuant to section 
189(e), does not apply to Oklahoma.
    Nonetheless, as discussed above in our evaluation of the NNSR 
Definitions at OAC 252:100-8-51, the State of Oklahoma submitted a 
revision to the Oklahoma SIP on February 6, 2012, which included 
revisions to definitions in the Oklahoma NNSR Permitting Program to 
address PM2.5. The revised definition of ``regulated NSR 
pollutant'' at OAC 252:100-8-51 is consistent with the federal 
definition of ``regulated NSR pollutant'' at 40 CFR 
51.165(a)(1)(xxxvii) and identifies precursors to PM2.5 in 
nonattainment areas. With respect to PM2.5, the revised 
definition of ``regulated pollutant'' at OAC 252:100-8-51 identifies 
sulfur dioxide and nitrogen oxides as regulated PM2.5 
precursors while volatile organic compounds (VOCs) and ammonia are not 
regulated PM2.5 precursors in PM2.5 nonattainment 
areas in Oklahoma. The February 6, 2012, submittal incorporates by 
reference the definition of ``significant'' at 40 CFR 51.165(a)(1) as 
it exists on July 1, 2011, and will therefore include significant 
emission rates for direct PM2.5 and for sulfur dioxide and 
nitrogen oxides as PM2.5 precursors. These revisions, 
although consistent with the 2008 NSR Rule as developed consistent with 
subpart 1 of the Act, may not contain the elements necessary to satisfy 
the CAA requirements when evaluated under the subpart 4 statutory 
requirements in the event an area in Oklahoma is designated 
nonattainment in the future. In particular, Oklahoma's submission does 
not include regulation of VOCs and ammonia as PM2.5 
precursors, nor does it include a demonstration consistent with section 
189(e) showing that major sources of those precursor pollutants would 
not contribute significantly to PM2.5 levels exceeding the 
standard in the area. For these reasons, the EPA cannot conclude at 
this time that this part of the Oklahoma NNSR submission satisfies all 
of the requirements of subpart 4 as they pertain to PM2.5 
NNSR permitting. However, because PM2.5

[[Page 42592]]

levels in Oklahoma do not currently exceed the standard, it is not 
necessary for the Oklahoma NNSR SIP at this time to fully address the 
requirements under CAA section 189. In the event that an area is 
designated nonattainment for the 2012 PM2.5 NAAQS or any 
other future PM2.5 NAAQS, Oklahoma will have a deadline 
under section 189(a)(2) of the CAA to make a submission addressing the 
statutory requirements as to that area, including the requirements in 
section 189(e) that apply to the regulation of PM2.5 
precursors.
    The revisions to Oklahoma's NNSR rule are not required by the 
statute at this time, nor do the revisions contain all of the necessary 
elements to satisfy the CAA requirements when evaluated under the 
subpart 4 provisions; however, the revisions represent an enhancement 
of the currently SIP-approved Oklahoma NNSR Permitting Program, which 
does not address PM2.5 or its precursors at all. For these 
reasons, the EPA is proposing to approve the NNSR revisions at OAC 
252:100-8-51 as submitted on February 6, 2012. We note that only 
SO2 and NOX will be regulated as PM2.5 
precursors under the Oklahoma NNSR program.
c. PSD for PM2.5--Increments, SILs, and SMC Rule
    The EPA finalized the PSD for PM2.5--Increments, SILs 
and SMC Rule to provide additional regulatory requirements under the 
PSD SIP program regarding the implementation of the PM2.5 
NAAQS. See 75 FR 64864. The PSD for PM2.5--Increments, SILs 
and SMC Rule required states to submit SIP revisions to EPA by July 20, 
2012, adopting provisions equivalent to or at least as stringent as the 
PM2.5 PSD increments and the associated implementing 
regulations promulgated pursuant to section 166(a) of the CAA. More 
detail on the PSD for PM2.5--Increments, SILs and SMC Rule 
can be found in the EPA's October 20, 2010 final rule. See 75 FR 64864.
    With respect to the requirement that revisions to the PSD program 
must include the increment component of the PSD for PM2.5--
Increments, SILs and SMC Rule, the ODEQ has adopted the required 
PM2.5 increments at OAC 252:100-3-4 that are at least as 
stringent as those promulgated by the EPA on October 20, 2011. The ODEQ 
further adopted revisions to definitions of ``baseline area,'' ``major 
source baseline date,'' and ``minor source baseline date'' at OAC 
252:100-8-31 that are required for the implementation of the 
PM2.5 increment at least as stringent as regulations 
promulgated by the EPA on October 20, 2011. The ODEQ also correctly 
updated the source impact analysis requirements at OAC 252:100-8-
35(a)(1) and the provisions for sources impacting Class I areas at OAC 
252:100-8-36 consistent with the requirements at 40 CFR 51.166(k)(1) 
and 40 CFR 51.166(p), respectively, promulgated by the EPA on October 
20, 2011. The EPA is proposing to find that the Oklahoma PSD program 
and the Oklahoma SIP now includes the required PM2.5 
increments and associated implementing regulations, and these 
provisions are applicable requirements for sources and modifications 
that are major for PM2.5 and/or the identified precursors of 
SO2 and NOX.
    With respect to the NNSR Program, the October 20, 2010 final rule 
also codified the PM2.5 SILs in the EPA's regulations on new 
source review and permitting requirements at 40 CFR 51.165(b)(2). 
Unlike the PSD regulations (40 CFR 51.166 and 40 CFR 52.21), 40 CFR 
51.165(b)(2) does not use the SILs to exempt a source from conducting 
cumulative air quality analysis. Instead, 40 CFR 51.165(b)(2) states 
that a proposed source or modification will be considered to cause a 
violation of a NAAQS when that source or modification would, at a 
minimum exceed the SIL in any area that does not or would not meet the 
applicable NAAQS. The revisions at OAC 252:100-8-52(a) incorporate by 
reference the federal requirements for SILs at 40 CFR 51.165(b)(2) as 
of December 20, 2010.
d. The EPA's Analysis of the Revisions to the Oklahoma PSD Program in 
Light of the Litigation on the October 20, 2010 PSD for 
PM2.5--Increments, SILs and SMC Rule
    The EPA's October 20, 2010 PSD for PM2.5--Increments, 
SILs and SMC Rule also provided that states could discretionarily 
choose to adopt and submit for EPA approval PM2.5 SILs, used 
as a screening tool to evaluate the impact a proposed new major source 
or major modification may have on the NAAQS or PSD increment, and/or a 
PM2.5 SMC (also a screening tool) to determine the 
subsequent level of ambient air monitoring data gathering required for 
a PSD permit application for emissions of PM2.5.
    On January 22, 2013, the U.S. Court of Appeals for the District of 
Columbia granted a request from the EPA to vacate and remand to the EPA 
portions of the federal PSD regulations (40 CFR 51.166(k)(2) and 
52.21(k)(2)) setting forth provisions for implementing SILs for 
PM2.5 so that the EPA could reconcile the inconsistency 
between the regulatory text and certain statements in the preamble to 
the 2010 final rule. Sierra Club v. EPA, 705 F.3d 458, 463-64 (D.C. 
Cir. 2013). The court declined to vacate the different portions of the 
federal PSD regulations (40 CFR 51.165(b)(2)) for implementing SILs for 
PM2.5 that did not contain the same inconsistency in the 
regulatory text. Id. at 465-66. The court further vacated the portions 
of the PSD regulations (40 CFR 51.166(i)(5)(i)(c) and 
52.21(i)(5)(i)(c)) implementing a PM2.5 SMC, finding that 
the EPA lacked legal authority to adopt and use the PM2.5 
SMC to exempt permit applicants from the statutory requirement to 
compile and submit ambient monitoring data. Id. at 468-69. On December 
9, 2013, the EPA issued a good cause final rule formally removing the 
affected PSD SILs and SMC provisions from the CFR. See 78 FR 73698.
    Oklahoma has adopted and submitted provisions to establish the 
PM2.5 SIL at OAC 252:100-8-35(a)(2) and the PM2.5 
SMC at OAC 252:100-8-33(c)(1)(C) in the Oklahoma PSD program. The EPA 
is severing these discretionary provisions from this action; we will 
address these submitted provisions in a separate action at a later 
date.
    The court ruling and the EPA's subsequent good cause final 
rulemaking only addressed the PSD revisions of the October 20, 2010, 
final rule; therefore there will be no impact on the submitted 
revisions to the Oklahoma NNSR program.
5. EPA's GHG Tailoring Rule
    On June 3, 2010, the EPA published a final rule, known as the 
Tailoring Rule, which phased in permitting requirements for greenhouse 
gas (GHG) emissions from stationary sources under the CAA PSD and title 
V permitting programs (75 FR 31514). Under its interpretation of the 
CAA at the time, the EPA believed the Tailoring Rule was necessary to 
avoid a sudden and unmanageable increase in the number of sources that 
would be required to obtain PSD and title V permits under the CAA 
because the sources emitted or had the potential to emit GHGs above the 
applicable major source and major modification thresholds.
    In Step 1 of the Tailoring Rule, which began on January 2, 2011, 
the EPA limited application of PSD and title V requirements for GHGs to 
sources that were subject to PSD or title V ``anyway'' due to their 
emissions of non-GHG pollutants. These sources are referred to as 
``anyway sources.'' In Step 2 of the Tailoring Rule, which began on 
July 1, 2011, the EPA applied the PSD and title V permitting 
requirements under the CAA to sources that were classified as

[[Page 42593]]

major, and, thus, required to obtain a permit, based solely on their 
GHG emissions or potential to emit GHGs, and to modifications of major 
sources that required a PSD permit because they increased only GHG 
emissions above the threshold level in the EPA regulations. On June 23, 
2014, the U.S. Supreme Court issued a decision in Utility Air 
Regulatory Group (UARG) v. EPA, 134 S. Ct. 2427, addressing the 
application of stationary source permitting requirements to GHGs. The 
U.S. Supreme Court held that the EPA may not treat GHGs as an air 
pollutant for the specific purpose of determining whether a source is a 
major source (or a modification thereof) and thus required to obtain a 
PSD or title V permit. With respect to PSD, the ruling effectively 
upheld the PSD permitting requirements for GHG emissions under Step 1 
of the Tailoring Rule for ``anyway sources,'' and invalidated the PSD 
permitting requirements for Step 2 sources. Because the Supreme Court 
decision affirmed in part and reversed in part an earlier decision of 
the D.C. Circuit in Coalition for Responsible Regulation v. EPA, 684 
F.3d 102 (D.C. Cir. 2012), on April 10, 2015, the D.C. Circuit issued 
an Amended Judgment (Nos. 09-1322, 10-073, 10-1092 and 10-1167), which 
reflects the UARG v. EPA Supreme Court decision. The D.C. Circuit 
simultaneously issued its mandate, which means that the Coalition 
Amended Judgment became final and effective upon issuance. In the 
Coalition Amended Judgment, the D.C. Circuit ordered that the EPA 
regulations under review (including 40 CFR 51.166(b)(48)(v) and 40 CFR 
52.21(b)(49)(v)) be vacated to the extent they require a stationary 
source to obtain a PSD permit if GHGs are the only pollutant (i) that 
the source emits or has the potential to emit above the applicable 
major source thresholds, or (ii) for which there is a significant 
emissions increase from a modification. The D.C. Circuit also ordered 
that the regulations under review be vacated to the extent they require 
a stationary source to obtain a title V permit solely because the 
source emits or has the potential to emit GHGs above the applicable 
major source thresholds, and that the EPA consider further phasing in 
the GHG permitting requirements at lower GHG emission thresholds (in 
particular 40 CFR 52.22 and 40 CFR 70.12, 71.13).
    In response to the Coalition Amended Judgment, the EPA promulgated 
a good cause final rule on August 19, 2015, removing the PSD permitting 
provisions for Step 2, non-anyway sources from the federal regulations 
at 40 CFR 51.166(b)(48)(v) and 52.21(b)(49)(v). The EPA no longer has 
the authority to regulate Step 2, non-anyway sources, nor can we 
approve provisions in a state regulation providing this authority. We 
anticipate future federal rulemakings to address the remainder of the 
UARG and Coalition judgments. We further anticipate that these federal 
rulemaking actions will necessitate revisions to the existing PSD 
regulations in SIP-approved states.
    The ODEQ submitted revisions to the Oklahoma SIP addressing the 
regulation and permitting of GHGs on February 6, 2012 and January 18, 
2013. The EPA finds that the provisions for Step 1 permitting submitted 
on February 6, 2012, at OAC 252:100-8-31, definition of ``subject to 
regulation,'' subparagraphs (A), (B), (C), (D), and (F) are consistent 
with federal requirements for Step 1 GHG Permitting at 40 CFR 
51.166(b)(48). Additionally, the February 6, 2012 submittal included 
revisions to the general definitions at OAC 252:100-1-3 to include new 
definitions for CO2e and GHG consistent with the federal PSD 
definitions at 40 CFR 51.166(b)(48)(ii)(a) and 51.166(b)(48)(i), 
respectively.
    On May 23, 2016, the EPA promulgated our final disapproval of the 
provisions for Step 2 permitting submitted on February 6, 2012 and the 
revisions submitted on January 18, 2013 to implement the GHG Biomass 
Deferral. See 81 FR 32239.
a. EPA's Analysis of the Approvability of the Oklahoma PSD Automatic 
Rescission Provisions for GHGs
    Oklahoma's February 6, 2012, SIP submittal adds automatic 
rescission provisions to the State's PSD regulations at OAC 252:8-100-
36.2, definition of ``subject to regulation,'' subparagraph (F). The 
automatic rescission provisions provide that in the event that federal 
legislation or a federal court determines that a portion of the EPA's 
tailoring rule, endangerment finding, or light-duty vehicle GHG 
standard is unenforceable, that provision will be enforceable in the 
Oklahoma PSD program only to the extent that it is enforceable by the 
EPA.
    The EPA is proposing to approve the Oklahoma automatic rescission 
provisions. In assessing the approvability of this severability 
provision, the EPA considers two key factors: (1) Whether the public 
will be given reasonable notice of any change to the SIP that occurs as 
a result of the automatic rescission provisions, and (2) whether any 
future change to the SIP that occurs as a result of the automatic 
rescission provisions would be consistent with the EPA's interpretation 
of the effect of the triggering action on federal GHG permitting 
requirements. See e.g., 79 FR 8130 (February 11, 2014) and 77 FR 12484 
(March 1, 2012). These criteria are derived from the SIP revision 
procedures set forth in the CAA and federal regulations.
    Regarding public notice, CAA section 110(l) provides that any 
revision to a SIP submitted by a State to EPA for approval ``shall be 
adopted by such State after reasonable notice and public hearing.'' In 
accordance with CAA section 110(l), ODEQ followed applicable notice-
and-comment procedures prior to adopting the automatic rescission 
provisions. Thus, the public is on notice that the automatic rescission 
provisions in the Oklahoma PSD program will enable the Oklahoma PSD 
program and the Oklahoma SIP to update automatically to reflect any 
order by a federal court or any change in federal law that limits or 
renders ineffective the regulation of GHGs under the CAA's PSD 
permitting program. In a letter dated April 22, 2016, the ODEQ has 
stated that it would provide notice to the general public and regulated 
community of the changes to the Oklahoma PSD program in the event of 
any change in the federal permitting requirements for GHGs.
    The EPA's consideration of whether any SIP change resulting from 
Oklahoma's automatic rescission provisions would be consistent with our 
interpretation of the effect of the triggering action on federal GHG 
permitting requirements is based on 40 CFR 51.105, which states that 
``[r]evisions of a plan, or any portion thereof, will not be considered 
part of an applicable plan until such revisions have been approved by 
the Administrator in accordance with this part.'' To be consistent with 
40 CFR 51.105, any automatic SIP change resulting from a court order or 
federal law change must be consistent with the EPA's interpretation of 
the effect of such order or federal law change on GHG permitting 
requirements. We interpret this provision to mean that Oklahoma will 
wait for and follow the EPA's interpretation as to the impact of any 
federal law change or the D.C. Circuit or the U.S. Supreme Court issues 
an order before Oklahoma's SIP would be changed. In the event of a 
court decision or federal law change that triggers (or likely triggers) 
application of Oklahoma's automatic rescission provisions, the EPA 
intends to promptly describe the impact of the court decision or 
federal law change on the enforceability of its GHG permitting 
regulations. The EPA invites comment,

[[Page 42594]]

particularly from the State, regarding this interpretation.
6. PSD and NNSR: Reconsideration of Inclusion of Fugitive Rule and 
Subsequent EPA-Stays
    On December 19, 2008, the EPA issued a final rule revising the 
requirements of PSD and NNSR program regarding the treatment of 
fugitive emissions (Fugitive Emissions Rule, 73 FR 77882). The Fugitive 
Emissions Rule required fugitive emissions to be included in 
determining whether a physical or operational change results in a major 
modification only for sources in industries that have been designated 
through rulemaking under section 302(j) of the CAA. Previously, the EPA 
rules required that fugitive emissions be included in major 
modification applicable determinations for all source categories.
    On February 17, 2009, the Natural Resources Defense Council (NRDC) 
submitted a petition for reconsideration of the December 2008 Fugitive 
Emissions Rule. On April 24, 2009, the EPA responded to the petition by 
letter indicating we were convening a reconsideration proceeding for 
the December 2008 Fugitive Emissions Rule and granted a 3-month 
administrative stay of the rule provisions. The initial 3-month 
administrative stay of the Fugitive Emissions Rule became effective on 
September 30, 2009. See 74 FR 50115. An interim final rule extending 
the administrative stay for an additional 3 months became effective on 
December 31, 2009. See 74 FR 5265692. An additional 18 month stay was 
finalized on March 31, 2010. See 75 FR 16012. The EPA finalized a final 
rule on March 30, 2011, titled PSD and NNSR: Reconsideration of 
Inclusion of Fugitive Rule. See 76 FR 17548. This final action stayed 
indefinitely the provisions of the December 2008 Fugitive Emissions 
Rule. As such, the Oklahoma PSD and NNSR programs must consider 
fugitive emissions in the major modification applicability 
determinations for all source categories.
    Following is a summary of how the Oklahoma PSD program addresses 
fugitive emissions consistent with the current PSD requirements.
     The Oklahoma PSD program does not include the revisions to 
``major modification'' or ``net emissions increase'' promulgated by the 
EPA in the December 2008 Fugitive Emissions Rule at 40 CFR 
51.166(b)(2)(v) or 40 CFR 51.166(b)(3)(iii)(d), respectively. As such, 
the Oklahoma PSD program does not include the provisions that are 
indefinitely stayed.
     The Oklahoma PSD program continues to require fugitive 
emissions to be included in the major modification applicability 
determinations for all source categories.
     The Oklahoma SIP at OAC 252:100-1-3 includes the 
definition of ``fugitive emissions'' consistent with the federal 
definition at 40 CFR 51.166(b)(20).
     The definition of ``projected actual emissions'' at OAC 
252:100-8-31 in the Oklahoma PSD program has been revised to include 
fugitive emissions to the extent quantifiable and emissions associated 
with startups, shutdowns, and malfunctions. This definition has also 
been revised to allow for the use of the emission unit's potential to 
emit in TPY consistent with 40 CFR 51.166(b)(40)(ii)(b) and (d).
     The definition of ``baseline actual emissions'' at OAC 
252:100-8-31 in the Oklahoma PSD program has been revised to include 
fugitive emissions to the extent quantifiable for any existing electric 
utility steam generating unit (EUSGU) and any existing emissions unit 
other than an EUSGU consistent with 40 CFR 51.166(b)(47)(i)(a) and 
(ii)(a). This definition has also been revised to address the 
requirements for calculating baseline actual emissions for a new 
emissions unit consistent with 40 CFR 51.166(b)(47)(iii). This 
definition has also been revised to address the requirements for 
calculating baseline actual emissions or a PAL consistent with 40 CFR 
51.166(b)(47)(iv).
     The Oklahoma SIP at OAC 252:100-8-33(a)(1)(B) includes the 
exemption at 40 CFR 51.166(i)(1)(ii).
     The source obligation provisions at OAC 252:100-8-36.2(c) 
for the requirements when using projected actual emissions are 
consistent with the obligation provisions found at 40 CFR 
51.166(r)(6)(i)-(v). Note that the Oklahoma PSD program does not 
include the reasonable possibility provisions at 40 CFR 
51.166(r)(6)(vi). Rather, the Oklahoma PSD program requires all sources 
using the ``projected actual emissions'' methodology to maintain 
records consistent with 40 CFR 51.166(r)(6). This is more stringent 
than federal requirements and is therefore approvable.
     The Oklahoma PSD program incorporates by reference the PSD 
PALs provisions at 40 CFR 51.166(w) as of July 2, 2007. However, the 
definition of ``baseline actual emissions'' for PALs is not part of 
this incorporation by reference. Per OAC 252:100-8-31 definition of 
``baseline actual emissions,'' paragraph (E) for a PAL stationary 
source, the baseline actual emissions for an EUSGU or other existing 
emissions units other than an EUSGU shall be calculated using the 
general Oklahoma PSD definition of ``baseline actual emissions'' at OAC 
252:100-8-31 and therefore will include fugitive emissions to the 
extent quantifiable.
    Following is a summary of how the Oklahoma NNSR program addresses 
fugitive emissions.
     The Oklahoma NNSR program does not include the revisions 
to ``major modification'' or ``net emissions increase'' promulgated by 
the EPA in the December 2008 Fugitive Emissions Rule at 40 CFR 
51.165(a)(1)(v)(G) or 40 CFR 51.165(a)(1)(vi)(C)(3), respectively. As 
such, the Oklahoma NNSR program does not include the provisions that 
are indefinitely stayed.
     The Oklahoma NNSR program continues to require fugitive 
emissions to be included in the major modification applicability 
determinations for all source categories.
     The Oklahoma NNSR program at OAC 252:100-8-51 incorporates 
by reference the federal NNSR definitions for ``major stationary 
source,'' ``fugitive emissions,'' and ``projected actual emissions'' as 
of July 1, 2010. The Oklahoma NNSR program does not IBR the definition 
of ``baseline actual emissions,'' rather the NNSR program relies on the 
Oklahoma PSD definition at OAC 252:100-8-31 for the definition of 
``baseline actual emissions.''
     The applicability provisions at OAC 252:100-8-50 have been 
evaluated elsewhere in this TSD and determined to be consistent with 
federal requirements for NNSR.
     The Oklahoma NNSR program at OAC 252:100-8-53 incorporates 
by reference the requirements of 40 CFR 51.165(a)(4) regarding the 
exemption of fugitive emissions in determining whether a source or 
modification is major as of July 2, 2007. The Oklahoma NNSR program 
source obligations at OAC 252:100-8-55 incorporates by reference the 
requirements of 40 CFR 51.165(a)(6)(i) through (v) as of July 2, 2007. 
Additionally the Oklahoma NNSR program at OAC 252:100-8-57 incorporates 
by reference the requirements at 40 CFR 51.165(f) regarding actuals 
PALs as of July 2, 2007.

D. Evaluation Under Section 110(l) of the CAA

    Under Section 110(l), the EPA cannot propose to approve a SIP 
revision that has not been developed with reasonable notice and public 
hearing. Nor can we propose to approve a revision that will worsen air 
quality. The submitted revisions to the Oklahoma SIP were developed 
using the Oklahoma SIP-

[[Page 42595]]

approved process with adequate notice and comment procedures. Our 
analysis also indicates that the revisions to the major source PSD and 
NNSR permitting programs are necessary to maintain consistency with 
federal permitting requirements. The revisions to the general Oklahoma 
SIP requirements are necessary to implement the major source permitting 
programs. As such, we find that the revisions to the Oklahoma PSD and 
NNSR programs and the General SIP requirements will support the state's 
air quality programs and will not interfere with attainment, reasonable 
further progress or any other applicable requirements of the CAA. 
Therefore, the EPA proposes to find that the revisions to the Oklahoma 
SIP submitted on June 24, 2010; July 16, 2010; December 27, 2010; 
February 6, 2012; and January 18, 2013 will not result in degradation 
of air quality.

III. Proposed Action

    For the reasons presented above and in our accompanying TSD, the 
EPA proposes to approve the severable revisions to the Oklahoma SIP 
submitted on June 24, 2010; July 16, 2010; December 27, 2010; February 
6, 2012; and January 18, 2013. We have made the preliminary 
determination that the revisions were developed and submitted in 
accordance with the requirements of the CAA and the EPA's regulations 
regarding SIP development at 40 CFR part 51. Additionally, we have 
determined that the submitted revisions to the Oklahoma PSD and NNSR 
programs are consistent with our major source permitting regulations at 
40 CFR 51.160-51.166 and the associated policy and guidance. Therefore, 
under section 110 and parts C and D of the Act, the EPA proposes to 
fully approve into the Oklahoma SIP the following revisions:

                          Table 1--Revisions to the Oklahoma SIP Proposed for Approval
----------------------------------------------------------------------------------------------------------------
           Section                    Title                 Effective date                 Submittal date
----------------------------------------------------------------------------------------------------------------
OAC 252:100-1-1.............  General Provisions,   June 12, 2003................  July 16, 2010.
                               Purpose.
OAC 252:100-1-2.............  General Provisions,   June 12, 2003................  July 16, 2010.
                               Statutory
                               definitions.
OAC 252:100-1-3.............  General Provisions,   June 12, 2003................  July 16, 2010.
                               Definitions.         July 1, 2008.................  July 16, 2010.
                                                    July 1, 2009.................  July 16, 2010.
                                                    June 15, 2006................  July 16, 2010.
                                                    July 1, 2011.................  February 6, 2012.
                                                    July 1, 2012.................  January 18, 2013.
OAC 252:100-1-4.............  General Provisions,   June 12, 2003................  July 16, 2010.
                               Units,               July 1, 2009.................  July 16, 2010.
                               Abbreviations and    July 1, 2011.................  February 6, 2012.
                               acronyms.
OAC 252:100-2-1.............  Incorporation by      July 1, 2012.................  January 18, 2013.
                               Reference (IBR)
                               Purpose.
OAC 252:100-2-3.............  IBR, Incorporation    July 1, 2012.................  January 18, 2013.
                               by Reference.
OAC 252:100-3-4.............  Air Quality           June 15, 2005................  December 27, 2010.
                               Standards and        July 1, 2011.................  February 6, 2012.
                               Increments,
                               Significant
                               Deterioration
                               Increments.
OAC 252:100, Appendix P.....  Regulated Air         June 15, 2007................  July 16, 2010.
                               Pollutants.
OAC 252:100, Appendix Q.....  Incorporation by      July 1, 2009.................  July 16, 2010.
                               Reference.           July 1, 2012.................  January 18, 2013.
OAC 252:100-5-1.1...........  Definitions.........  June 15, 2007................  July 16, 2010.
OAC 252:100-5-2.1...........  Emission Inventory..  June 11, 2004................  July 16, 2010.
                                                    June 15, 2007................  July 16, 2010
OAC 252:100-8-1.1...........  General Provisions,   June 15, 2006................  July 16, 2010.
                               Definitions.
OAC 252:100-8-30............  Prevention of         June 1, 2009.................  June 24, 2010.
                               Significant          June 15, 2006................  July 16, 2010.
                               Deterioration (PSD)
                               Requirements for
                               Attainment Areas,
                               Applicability.
OAC 252:100-8-31............  PSD, Definitions....  June 1, 2009.................  June 24, 2010.
                                                    June 15, 2006................  July 16, 2010.
                                                    July 1, 2011.................  February 6, 2012.
                                                    July 1, 2012.................  January 18, 2013.
OAC 252:100-8-32............  PSD, Source           REVOKED June 15, 2006........  REVOKED July 16, 2010.
                               Applicability
                               Determination.
OAC 252:100-8-32.1..........  PSD Ambient Air       June 15, 2006................  July 16, 2010.
                               Increments and
                               Ceilings.
OAC 252:100-8-32.2..........  PSD Exclusion from    June 15, 2006................  July 16, 2010.
                               Increment
                               Consumption.
OAC 252:100-8-32.3..........  PSD Stack Heights...  June 15, 2006................  July 16, 2010.
OAC 252:100-8-33............  PSD, Exemptions.....  June 1, 2009.................  June 24, 2010.
                                                    June 15, 2006................  July 16, 2010.
                                                    July 1, 2011.................  February 6, 2012.
                                                    July 1, 2012.................  January 18, 2013.
OAC 252:100-8-34............  PSD, Control          June 15, 2006................  July 16, 2010.
                               Technology Review.
OAC 252:100-8-35............  PSD Air Quality       June 15, 2006................  July 16, 2010.
                               Impact Evaluation.   July 1, 2011.................  February 6, 2012.
OAC 252:100-8-35.1..........  PSD Source            June 15, 2006................  July 16, 2010.
                               Information.
OAC 252:100-8-35.2..........  PSD Additional        June 15, 2006................  July 16, 2010.
                               Impact Analyses.
OAC 252:100-8-36............  PSD Source Impacting  June 15, 2006................  July 16, 2010.
                               Class I Areas.
OAC 252:100-8-36.2..........  PSD Source            June 15, 2006................  July 16, 2010.
                               Obligation.
OAC 252:100-8-37............  PSD, Innovative       June 1, 2009.................  June 24, 2010.
                               Control Technology.  June 15, 2006................  July 16, 2010.
OAC 252:100-8-38............  PSD, Actuals PAL....  June 1, 2009.................  June 24, 2010.
                                                    June 15, 2006................  July 16, 2010.
OAC 252:100-8-39............  PSD Severability....  June 15, 2006................  July 16, 2010.
OAC 252:100-8-50............  Majors Affecting      June 1, 2009.................  June 24, 2010.
                               Nonattainment Areas  June 15, 2006................  July 16, 2010.
                               (NNSR),
                               Applicability.

[[Page 42596]]

 
OAC 252:100-8-50.1..........  NNSR, Incorporation   June 1, 2009.................  June 24, 2010.
                               by Reference.        June 15, 2006................  July 16, 2010.
                                                    July 1, 2011.................  February 6, 2012.
OAC 252:100-8-51............  NNSR, Definitions...  June 1, 2009.................  June 24, 2010.
                                                    June 15, 2006................  July 16, 2010.
                                                    July 1, 2011.................  February 6, 2012.
OAC 252:100-8-51.1..........  NNSR Emission         June 15, 2006................  July 16, 2010.
                               reductions and       July 1, 2011.................  February 6, 2012.
                               offsets.             July 1, 2012.................  January 18, 2013.
OAC 252:100-8-52............  NNSR, Applicability   June 1, 2009.................  June 24, 2010.
                               determination for    June 15, 2006................  July 16, 2010.
                               sources in           July 1, 2011.................  February 6, 2012.
                               attainment areas
                               causing or
                               contributing to
                               NAAQS violations.
OAC 252:100-8-53............  NNSR, Exemptions....  June 1, 2009.................  June 24, 2010.
                                                    June 15, 2006................  July 16, 2010.
OAC 252:100-8-54............  NNSR Requirements     June 15, 2006................  July 16, 2010.
                               for sources located
                               in nonattainment
                               areas.
OAC 252:100-8-54.1..........  NNSR, Ozone and PM10  June 1, 2009.................  June 24, 2010.
                               precursors.
OAC 252:100-8-55............  NNSR, Source          June 1, 2009.................  June 24, 2010.
                               Obligation.          June 15, 2006................  July 16, 2010.
OAC 252:100-8-56............  NNSR, Actuals PAL...  June 1, 2009.................  June 24, 2010.
                                                    June 15, 2006................  July 16, 2010.
OAC 252:100-8-57............  NNSR Severability...  June 15, 2006................  July 16, 2010.
----------------------------------------------------------------------------------------------------------------

    Upon promulgation of a final approval of the proposed revisions to 
address the GHG Step 1 permitting requirements, the EPA would also 
remove the provisions at 40 CFR 52.1929(c), under which the EPA 
narrowed the applicability of the Oklahoma PSD program to regulate 
sources consistent with federal requirements. The provisions at 40 CFR 
52.1929(c) will no longer be necessary when we finalize approval of the 
State regulations into the Oklahoma SIP.
    The EPA is proposing to find that the February 6, 2012, revisions 
to the Oklahoma NNSR program address all required NNSR elements for the 
implementation of the 1997 and 2006 PM2.5 NAAQS. We note 
that the Oklahoma NNSR program does not include regulation of VOCs and 
ammonia as PM2.5 precursors. However, as section 189(e) of 
the Act requires regulation of PM2.5 precursors that 
significantly contribute to PM2.5 levels ``which exceed the 
standard in the area'' and Oklahoma does not have a designated 
PM2.5 nonattainment area, the revisions addressing only 
SO2 and NOX are not inconsistent with the 
requirements of the CAA. In the event that an area is designated 
nonattainment for the 2012 PM2.5 NAAQS, or any other future 
PM2.5 NAAQS, Oklahoma will have a deadline under section 
189(a)(2) of the CAA to make a submission addressing the statutory 
requirements as to that area, including the requirements in section 
189(e) that apply to the regulation of PM2.5 precursors.
    The EPA is also proposing a ministerial correction to 40 CFR 
52.1920(c) to remove a duplicate entry for the SIP approval of OAC 
252:100-5-1. We propose to remove the first listing of this section, 
and retain the identical entry in numerical order under OAC, Title 252, 
Subchapter 5--Registration, Emissions Inventory, and Annual Operating 
Fees.
    The EPA invites the public to make comments on all aspects of our 
proposed full approval of the revisions to the Oklahoma SIP as 
presented above and to submit them by the indicated Date. After 
reviewing the comments received, we will make a final determination of 
the approvability of the specified revisions to the Oklahoma SIP in the 
Federal Register.

IV. Incorporation by Reference

    In this action, we are proposing to include in a final rule 
regulatory text that includes incorporation by reference. In accordance 
with the requirements of 1 CFR 51.5, we are proposing to incorporate by 
reference revisions to the Oklahoma regulations as described in the 
Proposed Action section above. We have made, and will continue to make, 
these documents generally available electronically through 
www.regulations.gov and/or in hard copy at the EPA Region 6 office.

V. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the Act and applicable 
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, the EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
action merely proposes to approve state law as meeting Federal 
requirements and does not impose additional requirements beyond those 
imposed by state law. For that reason, this action:
     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);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     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.);
     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);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     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

[[Page 42597]]

application of those requirements would be inconsistent with the CAA; 
and
     Does not provide the 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 the EPA or an Indian tribe 
has demonstrated that a tribe has jurisdiction. In those areas of 
Indian country, the proposed 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).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen 
dioxide, Ozone, Particulate matter, Reporting and recordkeeping 
requirements, Sulfur oxides, Volatile organic compounds.

    Authority: 42 U.S.C. 7401 et seq.

    Dated: June 22, 2016.
Ron Curry,
Regional Administrator, Region 6.
[FR Doc. 2016-15618 Filed 6-29-16; 8:45 am]
 BILLING CODE 6560-50-P