[Federal Register Volume 83, Number 155 (Friday, August 10, 2018)]
[Proposed Rules]
[Pages 39641-39644]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-17139]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 61 and 63

[EPA-R06-OAR-2008-0063; FRL-9972-26--Region 6]


National Emission Standards for Hazardous Air Pollutants; 
Delegation of Authority to Oklahoma

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Oklahoma Department of Environmental Quality (ODEQ) has 
submitted updated regulations for receiving delegation and approval of 
its program for the implementation and enforcement of certain National 
Emission Standards for Hazardous Air Pollutants (NESHAP) for all 
sources (both part 70 and non-part 70 sources), as provided for under 
previously approved delegation mechanisms. The updated state 
regulations incorporate by reference certain NESHAP promulgated by the 
EPA at parts 61 and 63, as they existed through September 1, 2016. The 
EPA is proposing to approve ODEQ's requested delegation update.

DATES: Written comments on this proposed rule must be received on or 
before September 10, 2018.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R06-
OAR-2008-0063, 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 Mr. Rick Barrett, 214-
665-7227, [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 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: Mr. Rick Barrett (6MM-AP), (214) 665-
7227; email: [email protected]. To inspect the hard copy 
materials, please schedule an appointment with Mr. Rick Barrett or Mr. 
Bill Deese at (214) 665-7253.

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

Table of Contents

I. What does this action do?
II. What is the authority for delegation?
III. What criteria must Oklahoma's program meet to be approved?
IV. How did ODEQ meet the NESHAP program approval criteria?
V. What is being delegated?
VI. What is not being delegated?
VII. How will statutory and regulatory interpretations be made?
VIII. What authority does the EPA have?
IX. What information must ODEQ provide to the EPA?
X. What is the EPA's oversight role?
XI. Should sources submit notices to the EPA or ODEQ?
XII. How will unchanged authorities be delegated to ODEQ in the 
future?
XIII. Proposed Action
XIV. Statutory and Executive Order Reviews

I. What does this action do?

    EPA is proposing to update its approval of Oklahoma's program for 
the implementation and enforcement of certain NESHAP. If finalized, the 
delegation will provide ODEQ with the primary responsibility to 
implement and enforce the delegated standards.

II. What is the authority for delegation?

    Section 112(l) of the CAA and 40 CFR part 63, subpart E, authorize 
the EPA to delegate authority for the implementation and enforcement of 
emission standards for hazardous air pollutants to a State or local 
agency that satisfies the statutory and regulatory requirements in 
subpart E. The hazardous air pollutant standards are codified at 40 CFR 
parts 61 and 63.

III. What criteria must Oklahoma's program meet to be approved?

    Section 112(l)(5) of the CAA requires the EPA to disapprove any 
program submitted by a State for the delegation

[[Page 39642]]

of NESHAP standards if the EPA determines that:
    (A) The authorities contained in the program are not adequate to 
assure compliance by the sources within the State with respect to each 
applicable standard, regulation, or requirement established under 
section 112;
    (B) adequate authority does not exist, or adequate resources are 
not available, to implement the program;
    (C) the schedule for implementing the program and assuring 
compliance by affected sources is not sufficiently expeditious; or
    (D) the program is otherwise not in compliance with the guidance 
issued by the EPA under section 112(l)(2) or is not likely to satisfy, 
in whole or in part, the objectives of the CAA.
    In carrying out its responsibilities under section 112(l), the EPA 
promulgated regulations at 40 CFR part 63, subpart E setting forth 
criteria for the approval of submitted programs. For example, in order 
to obtain approval of a program to implement and enforce Federal 
section 112 rules as promulgated without changes (straight delegation) 
for part 70 sources, a State must demonstrate that it meets the 
criteria of 40 CFR 63.91(d). 40 CFR 63.91(d)(3) provides that interim 
or final Title V program approval will satisfy the criteria of 40 CFR 
63.91(d).\1\ The NESHAP delegation for Oklahoma, as it applies to both 
part 70 and non-part 70 sources, was most recently approved on December 
13, 2005 (70 FR 73595).
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    \1\ Some NESHAP standards do not require a source to obtain a 
title V permit (e.g., certain area sources that are exempt from the 
requirement to obtain a title V permit). For these non-title V 
sources, the EPA believes that the State must assure the EPA that it 
can implement and enforce the NESHAP for such sources. See 65 FR 
55810, 55813 (Sept. 14, 2000). EPA previously approved Oklahoma's 
program to implement and enforce the NESHAP as they apply to non-
part 70 sources. See 66 FR 1584 (Dec. 5, 2001).
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IV. How did ODEQ meet the NESHAP program approval criteria?

    As to the NESHAP standards in 40 CFR parts 61 and 63, as part of 
its Title V submission ODEQ stated that it intended to use the 
mechanism of incorporation by reference to adopt unchanged Federal 
section 112 into its regulations. This commitment applied to both 
existing and future standards as they applied to part 70 sources. EPA's 
final interim approval of Oklahoma's Title V operating permits program 
delegated the authority to implement certain NESHAP, effective March 6, 
1996 (61 FR 4220, February 5, 1996). On December 5, 2001, EPA granted 
final full approval of the State's operating permits program (66 FR 
63170). These interim and final Title V program approvals satisfy the 
up-front approval criteria of 40 CFR 63.91(d). Under 40 CFR 
63.91(d)(2), once a State has satisfied up-front approval criteria, it 
needs only to reference the previous demonstration and reaffirm that it 
still meets the criteria for any subsequent submittals for delegation 
of the section 112 standards. ODEQ has affirmed that it still meets the 
up-front approval criteria. With respect to non-part 70 sources, the 
EPA has previously approved delegation of NESHAP authorities to ODEQ 
after finding adequate authorities to implement and enforce the NESHAP 
for such sources. See 66 FR 1584 (January 9, 2001).

V. What is being delegated?

    By letter dated June 25, 2018, the EPA received a request from ODEQ 
to update its existing NESHAP delegation.\2\ With certain exceptions 
noted in section VI below, Oklahoma's request included NESHAP in 40 CFR 
part 61 and 40 CFR part 63. ODEQ's request included newly incorporated 
NESHAP promulgated by the EPA and amendments to existing standards 
currently delegated, as they existed though September 1, 2016. This 
proposed action is being taken in reponse to ODEQ's request noted 
above.
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    \2\ ODEQ's June 25, 2018 letter rescinds its previous three 
letters, dated January 11, 2008, August 23, 2012, and October 16, 
2017, requesting EPA approval to update Oklahoma's NESHAP 
delegation. As such, the EPA's proposed rulemaking (80 FR 9678, 
February 24, 2015) associated with ODEQ's January 11, 2008 letter is 
hereby withdrawn.
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VI. What is not being delegated?

    All authorities not affirmatively and expressly proposed for 
delegation by this action will not be delegated. These include the 
following part 61 and 63 authorities listed below:
     40 CFR part 61, subpart B (National Emission Standards for 
Radon Emissions from Underground Uranium Mines);
     40 CFR part 61, subpart H (National Emission Standards for 
Emissions of Radionuclides Other Than Radon From Department of Energy 
Facilities);
     40 CFR part 61, subpart I (National Emission Standards for 
Radionuclide Emissions from Federal Facilities Other Than Nuclear 
Regulatory Commission Licensees and Not Covered by Subpart H);
     40 CFR part 61, subpart K (National Emission Standards for 
Radionuclide Emissions from Elemental Phosphorus Plants);
     40 CFR part 61, subpart Q (National Emission Standards for 
Radon Emissions from Department of Energy facilities);
     40 CFR part 61, subpart R (National Emission Standards for 
Radon Emissions from Phosphogypsum Stacks);
     40 CFR part 61, subpart T (National Emission Standards for 
Radon Emissions from the Disposal of Uranium Mill Tailings);
     40 CFR part 61, subpart W (National Emission Standards for 
Radon Emissions from Operating Mill Tailings); and
     40 CFR part 63, subpart J (National Emission Standards for 
Polyvinyl Choride and Copolymers Production).
    In addition, the EPA regulations provide that we cannot delegate to 
a State any of the Category II Subpart A authorities set forth in 40 
CFR 63.91(g)(2). These include the following provisions: Sec.  63.6(g), 
Approval of Alternative Non-Opacity Standards; Sec.  63.6(h)(9), 
Approval of Alternative Opacity Standards; Sec.  63.7(e)(2)(ii) and 
(f), Approval of Major Alternatives to Test Methods; Sec.  63.8(f), 
Approval of Major Alternatives to Monitoring; and Sec.  63.10(f), 
Approval of Major Alternatives to Recordkeeping and Reporting. Also, 
some part 61 and part 63 standards have certain provisions that cannot 
be delegated to the States. Furthermore, no authorities are being 
proposed for delegation that require rulemaking in the Federal Register 
to implement, or where Federal overview is the only way to ensure 
national consistency in the application of the standards or 
requirements of CAA section 112. Finally, this action does not propose 
delegation of any authority under section 112(r), the accidental 
release program.
    If finalized, all questions concerning implementation and 
enforcement of the excluded standards in the State of Oklahoma should 
be directed to the EPA Region 6 Office.
    EPA is proposing a determination that the NESHAP program submitted 
by Oklahoma meets the applicable requirements of CAA section 112(l)(5) 
and 40 CFR part 63, subpart E. This delegation to ODEQ to implement and 
enforce certain NESHAP does not extend to sources or activities located 
in Indian country, as defined in 18 U.S.C. 1151. Oklahoma is not 
seeking delegation for such areas, and neither the EPA nor ODEQ is 
aware of any existing facilities in Indian country subject to the 
NESHAP being delegated. ODEQ may submit a request to expand this 
program to non-reservation areas of Indian country in the future, at 
which time the EPA would evaluate the request through the appropriate 
process.

[[Page 39643]]

VII. How will statutory and regulatory interpretations be made?

    If this NESHAP delegation is finalized, ODEQ will obtain 
concurrence from the EPA on any matter involving the interpretation of 
section 112 of the CAA or 40 CFR parts 61 and 63 to the extent that 
implementation or enforcement of these provisions have not been covered 
by prior EPA determinations or guidance.

VIII. What authority does the EPA have?

    We retain the right, as provided by CAA section 112(l)(7) and 40 
CFR 63.90(d)(2), to enforce any applicable emission standard or 
requirement under section 112. In addition, the EPA may enforce any 
federally approved State rule, requirement, or program under 40 CFR 
63.90(e) and 63.91(c)(1)(i). The EPA also has the authority to make 
certain decisions under the General Provisions (subpart A) of parts 61 
and 63. We are proposing to delegate to the ODEQ some of these 
authorities, and retaining others, as explained in sections V and VI 
above. In addition, the EPA may review and disapprove State 
determinations and subsequently require corrections. See 40 CFR 
63.91(g)(1)(ii). EPA also has the authority to review ODEQ's 
implementation and enforcement of approved rules or programs and to 
withdraw approval if we find inadequate implementation or enforcement. 
See 40 CFR 63.96.
    Furthermore, we retain any authority in an individual emission 
standard that may not be delegated according to provisions of the 
standard. Finally, we retain the authorities stated in the original 
delegation agreement. See ``Provisions for the Implementation and 
Enforcement of NSPS and NESHAP in Oklahoma,'' effective March 25, 1982, 
a copy of which is included in the docket for this action. The 
delegation table as of now and how it would look if this proposal is 
finalized may be found in the Technical Support Document (TSD) included 
in the docket for this action. The table also shows the authorities 
that cannot be delegated to any State or local agency.

IX. What information must ODEQ provide to the EPA?

    ODEQ must provide any additional compliance related information to 
EPA, Region 6, Office of Enforcement and Compliance Assurance within 45 
days of a request under 40 CFR 63.96(a). In receiving delegation for 
specific General Provisions authorities, ODEQ must submit to EPA Region 
6 on a semi-annual basis, copies of determinations issued under these 
authorities. See 40 CFR 63.91(g)(1)(ii). For part 63 standards, these 
determinations include: Sec.  63.1, Applicability Determinations; Sec.  
63.6(e), Operation and Maintenance Requirements--Responsibility for 
Determining Compliance; Sec.  63.6(f), Compliance with Non-Opacity 
Standards--Responsibility for Determining Compliance; Sec.  63.6(h), 
Compliance with Opacity and Visible Emissions Standards--Responsibility 
for Determining Compliance; Sec.  63.7(c)(2)(i) and (d), Approval of 
Site-Specific Test Plans; Sec.  63.7(e)(2)(i), Approval of Minor 
Alternatives to Test Methods; Sec.  63.7(e)(2)(ii) and (f), Approval of 
Intermediate Alternatives to Test Methods; Sec.  63.7(e)(iii), Approval 
of Shorter Sampling Times and Volumes When Necessitated by Process 
Variables or Other Factors; Sec.  63.7(e)(2)(iv), (h)(2) and (3), 
Waiver of Performance Testing; Sec.  63.8(c)(1) and (e)(1), Approval of 
Site-Specific Performance Evaluation (Monitoring) Test Plans; Sec.  
63.8(f), Approval of Minor Alternatives to Monitoring; Sec.  63.8(f), 
Approval of Intermediate Alternatives to Monitoring; Sec. Sec.  63.9 
and 63.10, Approval of Adjustments to Time Periods for Submitting 
Reports; Sec.  63.10(f), Approval of Minor Alternatives to 
Recordkeeping and Reporting; and Sec.  63.7(a)(4), Extension of 
Performance Test Deadline.

X. What is the EPA's oversight role?

    The EPA oversees ODEQ's decisions to ensure the delegated 
authorities are being adequately implemented and enforced. We will 
integrate oversight of the delegated authorities into the existing 
mechanisms and resources for oversight currently in place. If, during 
oversight, we determine that ODEQ made decisions that decreased the 
stringency of the delegated standards, then ODEQ shall be required to 
take corrective actions and the source(s) affected by the decisions 
will be notified, as required by 40 CFR 63.91(g)(1)(ii) and (b). We 
will initiate withdrawal of the program or rule if the corrective 
actions taken are insufficient. See 51 FR 20648 (June 6, 1986).

XI. Should sources submit notices to the EPA or ODEQ?

    For the delegated NESHAP standards and authorities covered by this 
proposed action, if finalized, sources would submit all of the 
information required pursuant to the general provisions and the 
relevant subpart(s) of the delegated NESHAP (40 CFR parts 61 and 63) 
directly to the ODEQ at the following address: State of Oklahoma, 
Department of Environmental Quality, Air Quality Division, P.O. Box 
1677, Oklahoma City, Oklahoma 73101-1677. The ODEQ is the primary point 
of contact with respect to delegated NESHAP. Sources do not need to 
send a copy to the EPA. The EPA Region 6 proposes to waive the 
requirement that notifications and reports for delegated standards be 
submitted to EPA in addition to ODEQ in accordance with 40 CFR 
63.9(a)(4)(ii) and 63.10(a)(4)(ii).\3\ For those standards and 
authorties not delegated as discussed above, sources must continue to 
submit all appropriate information to the EPA.
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    \3\ This waiver only extends to the submission of copies of 
notifications and reports; the EPA does not waive the requirements 
in delegated standards that require notifications and reports be 
submitted to an electronic database (e.g., 40 CFR part 63, subpart 
HHHHHHH).
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XII. How will unchanged authorities be delegated to ODEQ in the future?

    As stated in previous NESHAP delegation actions, the EPA has 
approved Oklahoma's mechanism of incorporation by reference of NESHAP 
standards into ODEQ regulations, as they apply to both part 70 and non-
part 70 sources. See, e.g., 61 FR 4224 (February 5, 1996) and 66 FR 
1584 (January 9, 2001). Consistent with the EPA regulations and 
guidance,\4\ ODEQ may request future updates to Oklahoma's NESHAP 
delegation by submitting a letter to the EPA that appropriately 
identifies the specific NESHAP which have been incorporated by 
reference into state regulation, reaffirms that it still meets up-front 
approval delegation criteria for part 70 sources, and demonstrates that 
ODEQ maintains adequate authorites and resources to implememnt and 
enforce the delegated NESHAP requirements for all sources. We will 
respond in writing to the request stating that the request for 
delegation is either granted or denied. A Federal Register action will 
be published to inform the public and affected sources of the updated 
delegation, indicate where source notifications and reports should be 
sent, and amend the relevant portions of the Code of Federal 
Regulations identifying which NESHAP standards have been delegated to 
the ODEQ. We have not been using this informational notice process but 
intend to from now on upon

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receipt of the next NESHAP delegation request from ODEQ.\5\
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    \4\ See Harardous Air Pollutants: Amendments to the Approval of 
State Programs and Delegation of Federal Authorities, Final Rule (65 
FR 55810, September 14, 2000); and ``Straight Delegation Issues 
Concerning Sections 111 and 112 Requirements and Title V,'' by John 
S. Seitz, Director of Air Qualirty Planning and Standards, EPA, 
dated December 10, 1993.
    \5\ A request from ODEQ that raises an isuse not previously 
subject to comment, presents new data, requires EPA to examine its 
interpretion of the applicable law, or where EPA wishes to re-
examine its present position on a matter will be processed through 
notice and comment rulemaking in the Federal Register.
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XIII. Proposed Action

    In today's action, the EPA is proposing to approve an update to the 
Oklahoma NESHAP delegation that would provide the ODEQ with the 
authority to implement and enforce certain newly incorporated NESHAP 
promulgated by the EPA and amendments to existing standards currently 
delegated, as they existed though September 1, 2016. As requested in 
ODEQ's June 25, 2018 letter, this proposed delegation to ODEQ does not 
extend to sources or activities located in Indian country, as defined 
in 18 U.S.C. 1151.

XIV. Statutory and Executive Order Reviews

    Under the CAA, the Administrator has the authority to approve 
section 112(l) submissions that comply with the provisions of the Act 
and applicable Federal regulations. In reviewing section 112(l) 
submissions, the EPA's role is to approve state choices, provided that 
they meet the criteria and objectives of the CAA and of the EPA's 
implementing regulations. Accordingly, this proposed action would 
merely approve the State's request as meeting Federal requirements and 
does not impose additional requirements beyond those imposed by state 
law. For that reason, this proposed 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 application of those requirements would be inconsistent 
with the CAA; and
     does not provide 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).

List of Subjects

40 CFR Part 61

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Arsenic, Benzene, Beryllium, Hazardous 
substances, Mercury, Intergovernmental relations, Reporting and 
recordkeeping requirements, Vinyl chloride.

40 CFR Part 63

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

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

    Dated: July 25, 2018.
Wren Stenger,
Multimedia Division Director, Region 6.
[FR Doc. 2018-17139 Filed 8-9-18; 8:45 am]
 BILLING CODE 6560-50-P