[Federal Register Volume 81, Number 155 (Thursday, August 11, 2016)]
[Proposed Rules]
[Pages 53098-53100]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-18895]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2012-0263; FRL-9950-35-Region 6]


Approval and Promulgation of Implementation Plans; Oklahoma; 
Disapproval of Prevention of Significant Deterioration for Particulate 
Matter Less Than 2.5 Micrometers--Significant Impact Levels and 
Significant Monitoring Concentration

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
disapprove severable portions of the February 6, 2012, Oklahoma State 
Implementation Plan (SIP) submittal that establish certain de minimis 
thresholds for particulate matter less than 2.5 micrometers in diameter 
(PM2.5) in the Prevention of Significant Deterioration (PSD) 
permitting requirements. Specifically, we are proposing to disapprove 
provisions that adopt and implement the PM2.5 significant 
impact levels (SILs) and significant monitoring concentration (SMC); 
both of which were vacated by a federal court and subsequently removed 
from federal PSD regulations. We are proposing to disapprove the 
submitted provisions as inconsistent with federal laws and regulations 
for the permitting of PM2.5. The EPA is proposing this 
disapproval under section 110 and part C of the Clean Air Act (CAA).

DATES: Written comments must be received on or before September 12, 
2016.

ADDRESSES: Submit your comments, identified by Docket No. EPA-R06-OAR-
2012-0263, 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: 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. CAA and SIPs

    Section 110 of the CAA requires states to develop and submit to the 
EPA a SIP to ensure that state air quality meets National Ambient Air 
Quality Standards (NAAQS). These ambient standards currently address 
six criteria pollutants: Carbon monoxide, nitrogen dioxide, ozone, 
lead, particulate matter, and sulfur dioxide. Each federally-approved 
SIP protects air quality primarily by addressing air pollution at its 
point of origin through air pollution regulations and control 
strategies. The EPA approved SIP regulations and control strategies are 
federally enforceable.

B. Prior Federal Action

    Under Section 165(a) of the CAA, a major source may not commence 
construction unless the source has been issued a permit and has 
satisfied certain requirements. Among those requirements, the permit 
applicant must demonstrate that emissions from construction or 
operation of the facility will not cause, or contribute to, air 
pollution in excess of any increment, NAAQS, or any other applicable 
emission standard of performance. This statutory requirement has been 
incorporated into federal regulations at 40 CFR 51.166(k)(1). Moreover, 
to support this analysis, PSD permit applications must contain air 
quality monitoring data representing air quality in the area affected 
by the proposed source for the 1-year period preceding receipt of the 
application. This statutory requirement has been incorporated into 
federal regulations at 40 CFR 51.166(m)(ii)-(iv).
    In 2010, the EPA promulgated regulations for SIPs concerning PSD 
permitting for PM2.5 which included two voluntary screening 
tools: SILs and SMCs. 75 FR 64864 (Oct. 20, 2010). The SILs are 
screening tools that states with PSD SIPs apply in the issuance of a 
PSD permit to demonstrate that the proposed source's allowable 
emissions will not cause or contribute to a violation of the NAAQS or 
increment. The SMC has been used to exempt sources from the requirement 
in the CAA to collect preconstruction monitoring data for up to 1 year 
before submitting a permit application in order to help determine 
existing ambient air quality. 78 FR 73699 (Dec. 9, 2013).
    Sierra Club filed a petition for review of the PSD regulations 
containing the PM2.5 SILs and SMC with the United States 
Court of Appeals for the District of Columbia Circuit (the Court). On 
January 22, 2013, the Court issued an opinion granting a request from 
the EPA

[[Page 53099]]

to vacate and remand to the EPA portions of the October 20, 2010, PSD 
regulations establishing the PM2.5 SIL and further vacating 
the portions of the PSD regulations establishing a PM2.5 
SMC. See, Sierra Club v. EPA, 706 F.3d 428 (D.C. Cir. 2013).
    In response to the Court's decision, the EPA amended its 
regulations to remove the affected PM2.5 SIL regulations 
from the federal regulations and to replace the existing 
PM2.5 SMC value with a ``zero'' threshold. 78 FR 73698 (Dec. 
9, 2013). In that rulemaking, the EPA removed the regulatory text 
related to the affected PM2.5 SILs at sections 51.166(k)(2) 
and 52.21(k)(2). Although the Court vacated the PM2.5 SMC 
provisions in 40 CFR 51.166(i)(5)(i)(c) and 52.21(i)(5)(i)(c), the EPA 
did not remove the affected regulatory text, but instead revised the 
concentration for the PM2.5 SMC listed in sections 
51.166(i)(5)(i)(c) and 52.21(i)(5)(i)(c) to zero micrograms per cubic 
meter (0 [mu]g/m\3\). Because 40 CFR 51.166(i)(5)(iii) and 40 CFR 
52.21(i)(5)(iii) establish an exemption from air monitoring 
requirements for any pollutant ``not listed in paragraph (i)(5)(i),'' 
the EPA explained that it would not be appropriate to remove the 
reference to PM2.5 in paragraph (i)(5)(i). Were the EPA to 
completely remove PM2.5 from the list of pollutants in 
sections 51.166(i)(5)(i)(c) and 52.21(i)(5)(i)(c) of the PSD 
regulations, PM2.5 would no longer be a listed pollutant and 
the paragraph (iii) provision could be interpreted as giving reviewing 
authorities the discretion to exempt permit applicants from the 
requirement to conduct monitoring for PM2.5, in 
contravention of the Court's decision and the CAA. Instead, the EPA 
revised the concentration listed in sections 51.166(i)(5)(i)(c) and 
52.21(i)(5)(i)(c) to ``0'' micrograms per cubic meter ([mu]g/m\3\). 
This means that there is no air quality impact level below which a 
reviewing authority has the discretion to exempt a source from the 
PM2.5 monitoring requirements at 40 CFR 52.21(m).

C. Oklahoma's Submittal

    On February 6, 2012, Oklahoma submitted revisions to its PSD SIP at 
OAC 252:100-8-33(c)(1)(C) that adopted provisions substantively 
identical to the EPA PSD SIP's requirement for PM2.5 PSD 
SMC. 40 CFR 51.166(i)(5)(i). The February 6, 2012, submittal also 
included revisions to OAC 252:100-8-35(a)(2) that adopted provisions 
substantively identical to the EPA PSD SIP's requirements for 
PM2.5 PSD SILs. 40 CFR 51.166(k)(2). The February 6, 2012, 
submittal included other revisions to the Oklahoma SIP that are 
severable from the voluntary PSD exemptions. Our Technical Support 
Document (TSD), available in the rulemaking docket, identifies the 
separate EPA actions addressing the remainder of the February 6, 2012 
submittal.

II. The EPA's Evaluation

    Our analysis, available in our TSD, finds that the State of 
Oklahoma adopted and submitted on February 6, 2012, revisions to the 
Oklahoma SIP that were substantively consistent with the voluntary 
exemptions from PSD monitoring at 40 CFR 51.166(i)(5)(i) and the 
requirements for a source impact analysis at 40 CFR 51.166(k)(2) 
promulgated on October 20, 2010. Subsequent to the submittal of these 
provisions, the Court vacated and remanded these provisions to the EPA. 
On December 9, 2013, we promulgated revisions to the PSD SIP rules that 
removed the vacated PM2.5 SILs provision and replaced the 
existing PM2.5 SMC value with a ``zero'' threshold level at 
40 CFR 51.166. Because the PM2.5 SILs and SMC are no longer 
valid exemptions from the requirements of a PSD SIP, we propose to 
disapprove these revisions submitted to be included in the Oklahoma PSD 
SIP as they are inconsistent with the federal statutory and regulatory 
permitting requirements for PM2.5.
    Disapproval of the submitted PM2.5 SILs at OAC 252:100-
8-35(a)(2) ensures that the provisions at OAC 252:100-8-35(a)(1) \1\ in 
the existing SIP continue to apply to PM2.5. Namely, that 
the owner or operator of the proposed source or modification shall 
demonstrate that, as of the source's start-up date, allowable emissions 
increases from that source or modification, in conjunction with all 
other applicable emissions increases or reductions (including secondary 
emissions) would not cause or contribute to any increase in ambient 
concentrations that would exceed any NAAQS in any air quality control 
region; or the remaining available PSD increment for the specified air 
contaminants in any area, as determined by the Director of the Oklahoma 
Department of Environmental Quality.
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    \1\ The EPA proposed approval of OAC 252:100-8-35(a)(1) on June 
30, 2016, as consistent with federal PSD requirements. See 81 FR 
42587.
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    Disapproval of the submitted PM2.5 SMC at OAC 252:100-8-
33(c)(1) means that PM2.5 will not be a listed pollutant in 
the state's requirement for ambient monitoring data, and would appear 
to allow PSD permit applicants to avoid submitting PM2.5 
monitoring data as part of their permit application. To address this 
concern, the Oklahoma Department of Environmental Quality submitted a 
letter on February 25, 2016, that demonstrated the State retains 
authority to require pre- and post-construction PSD monitoring for 
PM2.5 under the Oklahoma PSD SIP in the event that the EPA 
disapproves OAC 252:100-8-33(c)(1). Specifically, the SIP, under OAC 
252:100-8-35.1(b)(3),\2\ grants the ODEQ Director the authority to 
request information regarding the air quality impact of the source or 
modification. The ODEQ interprets this SIP provision to grant the 
Director the authority to request monitoring data for PM2.5 
as required under 40 CFR 51.166(m). Further, as noted in our December 
9, 2013, final rule, any State regulations or approved SIP provisions 
adopting the PM2.5 SIL and SMC are unlawful and may not be 
applied even prior to their removal from the applicable State 
regulations or SIP. See 78 FR 73698, 73700. Because reliance on the 
PM2.5 SIL and SMC has been deemed unlawful, and because the 
State has provided a letter demonstrating underlying authority in the 
Oklahoma SIP at OAC 252:100-8-35.1(b)(3) to require pre- and post-
construction monitoring for PM2.5, we have determined it is 
appropriate to disapprove the submitted PM2.5 SMC provisions 
at OAC 252:100-8-33(c)(1).
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    \2\ The EPA proposed approval of OAC 252:100-8-35.1(b)(3) on 
June 30, 2016, as consistent with federal PSD requirements. See 81 
FR 42587.
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    The EPA has an obligation under section 110 of the CAA to act on 
submitted SIP revisions unless these revisions are withdrawn by the 
State. Therefore, the EPA has a duty to act on the submitted Oklahoma 
provisions pertaining to the PM2.5 SILs and SMC, because 
these provisions were submitted for EPA's review on February 6, 2012, 
and the state has not withdrawn the portion of the SIP submission 
containing these provisions. Our proposed action today will disapprove 
this portion of the February 6, 2012 SIP submission because these 
provisions are inconsistent with the federal statutory and regulatory 
SIP permitting requirements for PM2.5.

III. Proposed Action

    We are proposing to disapprove severable portions of the February 
6, 2012, Oklahoma SIP submittal establishing the voluntary 
PM2.5 SILs provision and SMC. The EPA has made the 
preliminary determination that these submitted revisions to the 
Oklahoma SIP are disapprovable because they establish permitting SIP 
requirements that are inconsistent with the federal

[[Page 53100]]

statutory and regulatory permitting requirements for PM2.5. 
Therefore, under section 110 and part C of the CAA, and for the reasons 
presented above, the EPA is proposing to disapprove the following 
revisions:
     Substantive revisions to the Oklahoma SIP at OAC 252:100-
8-33(c)(1)(C) establishing the PM2.5 SMC as submitted on 
February 6, 2012; and
     Substantive revisions to the Oklahoma PSD program in OAC 
252:100-8-35(a)(2) establishing the PM2.5 PSD SILs provision 
as submitted on February 6, 2012.
    The EPA is proposing to disapprove the revisions listed because the 
submitted provisions are inconsistent with the federal statutory and 
regulatory permitting requirements for PM2.5. Upon 
finalization of this disapproval owners or operators of a proposed 
source or modification will continue to satisfy the source impact 
analysis provisions for PM2.5 as required under the Oklahoma 
SIP at OAC 252:100-8-35(a)(1). Additionally, the State of Oklahoma 
would continue to have the necessary authority to require monitoring of 
PM2.5 under the Oklahoma SIP at OAC 252:100-8-35.1(b)(3) 
consistent with the provisions of 40 CFR 52.21(m). Finalization of this 
proposed disapproval will not require the EPA to promulgate a Federal 
Implementation Plan, because the Oklahoma PSD program will continue to 
satisfy the Federal PSD SIP requirements for PM2.5 
monitoring and source impact analysis. We are proposing this 
disapproval under section 110 and part C of the Act; as such, the EPA 
will not impose sanctions as a result of a final disapproval.

IV. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 13563: Improving Regulation and Regulatory Review

    This action is not a significant regulatory action and was 
therefore not submitted to the Office of Management and Budget (OMB) 
for review.

B. Paperwork Reduction Act (PRA)

    This action does not impose an information collection burden under 
the PRA. There is no burden imposed under the PRA because this action 
proposes to disapprove submitted revisions that are no longer 
consistent with federal laws and regulations for the regulation and 
permitting of PM2.5.

C. Regulatory Flexibility Act (RFA)

    I certify that this action will not have a significant economic 
impact on a substantial number of small entities under the RFA. This 
action will not impose any requirements on small entities. This action 
proposes to disapprove submitted revisions that are no longer 
consistent with federal laws and regulations for the regulation and 
permitting of PM2.5, and therefore will have no impact on 
small entities.

D. Unfunded Mandates Reform Act (UMRA)

    This action does not contain any unfunded mandate as described in 
UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect 
small governments. The action imposes no enforceable duty on any state, 
local or tribal governments or the private sector. This action proposes 
to disapprove submitted revisions that are no longer consistent with 
federal laws and regulations for the regulation and permitting of 
PM2.5, and therefore will have no impact on small 
governments.

E. Executive Order 13132: Federalism

    This action does not have federalism implications. 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.

F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    This action does not have tribal implications as specified in 
Executive Order 13175. This action proposes to disapprove provisions of 
state law that are no longer consistent with federal law for the 
regulation and permitting of PM2.5; there are no 
requirements or responsibilities added or removed from Indian Tribal 
Governments. Thus, Executive Order 13175 does not apply to this action.

G. Executive Order 13045: Protection of Children From Environmental 
Health Risks and Safety Risks

    The EPA interprets Executive Order 13045 as applying only to those 
regulatory actions that concern environmental health or safety risks 
that the EPA has reason to believe may disproportionately affect 
children, per the definition of ``covered regulatory action'' in 
section 2-202 of the Executive Order. This action is not subject to 
Executive Order 13045 because it disapproves state permitting 
provisions that are inconsistent with federal laws and regulations for 
the regulation and permitting of PM2.5.

H. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution or Use

    This action is not subject to Executive Order 13211, because it is 
not a significant regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act (NTTAA)

    This rulemaking does not involve technical standards.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    The EPA believes the human health or environmental risk addressed 
by this action will not have potential disproportionately high and 
adverse human health or environmental effects on minority, low-income 
or indigenous populations. This action is not subject to Executive 
Order 12898 because it disapproves state permitting provisions that are 
inconsistent with federal laws and regulations for the regulation and 
permitting of PM2.5.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Particulate matter, Reporting 
and recordkeeping requirements.

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

    Dated: July 29, 2016.
Ron Curry,
Regional Administrator, Region 6.
[FR Doc. 2016-18895 Filed 8-10-16; 8:45 am]
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