[Federal Register Volume 86, Number 205 (Wednesday, October 27, 2021)]
[Proposed Rules]
[Pages 59333-59336]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-23035]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2021-0621; FRL-9085-01-R6]


Air Plan Approval; Oklahoma; Updates to the General SIP and 
Incorporation by Reference Provisions

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: Pursuant to the Federal Clean Air Act (CAA or the Act), the 
Environmental Protection Agency (EPA) is proposing to approve 
identified portions of two revisions to the Oklahoma State 
Implementation Plan (SIP) submitted by the State of Oklahoma designee 
on May 15, 2020, and February 9, 2021. This action addresses the 
revisions submitted to the Oklahoma SIP pertaining to the general SIP 
definitions and the incorporation by reference of Federal requirements 
under Oklahoma Administrative Code (OAC).

DATES: Written comments must be received on or before November 26, 
2021.

ADDRESSES: Submit your comments, identified by Docket No. EPA-R06-OAR-
2021-0621, at https://www.regulations.gov or via email to

[[Page 59334]]

[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 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 https://www.epa.gov/dockets/commenting-epa-dockets.
    Docket: The index to the docket for this action is available 
electronically at www.regulations.gov. While all documents in the 
docket are listed in the index, some information may not be publicly 
available due to docket file size restrictions or content (e.g., CBI).

FOR FURTHER INFORMATION CONTACT: Ms. Adina Wiley, EPA Region 6 Office, 
Air Permits Section, 214-665-2115, [email protected]. Out of an 
abundance of caution for members of the public and our staff, the EPA 
Region 6 office will be closed to the public to reduce the risk of 
transmitting COVID-19. We encourage the public to submit comments via 
https://www.regulations.gov, as there will be a delay in processing 
mail and no courier or hand deliveries will be accepted. Please call or 
email the contact listed above if you need alternative access to 
material indexed but not provided in the docket.

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

I. Background

    Section 110 of the Act requires states to develop air pollution 
regulations and control strategies to ensure that air quality meets the 
EPA's National Ambient Air Quality Standards (NAAQS). These ambient 
standards are established under section 109 of the Act and they 
currently address six criteria pollutants: Carbon monoxide, nitrogen 
dioxide, ozone, lead, particulate matter, and sulfur dioxide. The 
state's air regulations are contained in its SIP, which is basically a 
clean air plan. Each state is responsible for developing SIPs to 
demonstrate how the NAAQS will be achieved, maintained, and enforced. 
The SIP must be submitted to the EPA for approval, and any changes a 
state makes to the approved SIP also must be submitted to the EPA for 
approval.
    On December May 15, 2020, Mr. Kenneth Wagner, Secretary of Energy 
and Environment, submitted revisions to the Oklahoma SIP that included 
the annual SIP updates for 2019. The submittal included revisions to 
OAC 252:100, Subchapter 2 and Appendix Q to update the incorporation by 
reference of Federal requirements, which will be addressed in this 
proposal. The submittal also included revisions to OAC 252:100, 
Subchapter 39, to revise the regulations for control of volatile 
organic compounds (VOCs) in nonattainment areas and former 
nonattainment areas. The EPA has determined that the May 15, 2020, 
submitted revisions to OAC 252:100, Subchapter 39 will be addressed in 
a separate rulemaking.\1\
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    \1\ The EPA's action on the revisions to OAC 252:100, Subchapter 
39 can be found at www.regulations.gov, Docket No. EPA-R06-OAR-2020-
0437.
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    On February 9, 2021, Mr. Wagner, Secretary of Energy and 
Environment, submitted revisions to the Oklahoma SIP that included the 
annual SIP updates for 2020. The submittal included revisions to OAC 
252:100, Subchapter 1 to update the definitions for the Oklahoma SIP 
and revisions to OAC 252:100, Subchapter 2 and Appendix Q to update the 
incorporation by reference of Federal requirements. This proposal will 
address the submitted revisions to OAC 252:100-1-3, Subchapter 2 and 
Appendix Q. We have determined that the revisions to the statutory 
definitions at OAC 252:100-1-2 should be reviewed in a separate action. 
The submittal also included revisions to OAC 252:100, Subchapter 13, to 
revise the open burning regulations; Subchapters, 37, 39, and Appendix 
N to revise the regulations for control of VOC emissions in 
nonattainment areas and former nonattainment areas from aerospace 
industries coating operations; and revisions to Subchapters 39-49 to 
revise the regulations for the control of VOC emissions in 
nonattainment areas and former nonattainment areas from manufacturing 
of fiberglass reinforced plastic products. The EPA has determined that 
the February 9, 2021, submitted revisions to OAC 252:100, Subchapters 
13, 37, 39-49, and Appendix N will be addressed in a separate 
rulemaking action.

II. The EPA's Evaluation

    The accompanying Technical Support Document for this action 
includes a detailed analysis of the submitted revisions to the Oklahoma 
SIP which are the subject of this proposed rulemaking. Our analysis 
indicates that the May 15, 2020, and the February 9, 2021, SIP 
revisions addressed in this proposed rulemaking action were developed 
in accordance with the CAA and the State provided reasonable notice and 
public hearing.

Updates to the Oklahoma SIP Definitions

    The general SIP provisions of OAC 252:100, Subchapter 1, 
incorporate statutory definitions at OAC 252:100-1-2 and general 
definitions at OAC 252:100-1-3. On February 9, 2021, the ODEQ submitted 
revisions to OAC 252:100-1-2 and OAC 252:100-1-3 adopted on June 25, 
2020, effective September 15, 2020. The EPA is only addressing the 
submitted revisions to OAC 252:100-1-3 at this time.
    The revisions to OAC 252:100-1-3, update the definitions used 
throughout the Oklahoma SIP. The revisions to the definitions of ``Best 
available control technology'' and ``responsible official'' and the new 
definition for ``Title V permit'' are consistent with the underlying 
federal requirements.

Updates to the Oklahoma SIP Incorporation by Reference Provisions

    The ODEQ submitted revisions on May 15, 2020 and February 9, 2021, 
to update the Incorporation by Reference provisions found in the 
Oklahoma SIP. These revisions ensure the Oklahoma SIP maintains 
consistency with current federal requirements.
    On May 15, 2020, the ODEQ submitted revisions to OAC 252:100-2-3 
and Appendix Q that were adopted on May 28, 2019 and effective 
September 15, 2019. These revisions updated the incorporation by 
reference date in the opening paragraph of OAC 252:100-2-3 and revoked 
and replaced the previous version of OAC 252, Chapter 100, Appendix Q.
    On February 9, 2021, the ODEQ submitted another set of revisions to 
OAC 252:100-2-3 and Appendix Q that were adopted on June 25, 2020, and 
effective September 15, 2020. The February 9, 2021, revisions updated 
the opening paragraph of OAC 252:100-2-3 to include the current 
incorporation

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by reference date and revoked and replaced the prior version of 
Appendix Q that was submitted on May 15, 2020.

III. Impact on Areas of Indian Country

    Following the U.S. Supreme Court decision in McGirt v. Oklahoma, 
140 S. Ct. 2452 (2020), the Governor of the State of Oklahoma requested 
approval under Section 10211(a) of the Safe, Accountable, Flexible, 
Efficient Transportation Equity Act of 2005: A Legacy for Users, Public 
Law 109-59, 119 Stat. 1144, 1937 (August 10, 2005) (``SAFETEA''), to 
administer in certain areas of Indian country (as defined at 18 U.S.C. 
1151) the State's environmental regulatory programs that were 
previously approved by the EPA for areas outside of Indian country. The 
State's request excluded certain areas of Indian country further 
described below. In addition, the State only sought approval to the 
extent that such approval is necessary for the State to administer a 
program in light of Oklahoma Dept. of Environmental Quality v. EPA, 740 
F.3d 185 (D.C. Cir. 2014).\2\
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    \2\ In ODEQ v. EPA, the D.C. Circuit held that under the CAA, a 
state has the authority to implement a SIP in non-reservation areas 
of Indian country in the state, where there has been no 
demonstration of tribal jurisdiction. Under the D.C. Circuit's 
decision, the CAA does not provide authority to states to implement 
SIPs in Indian reservations. ODEQ did not, however, substantively 
address the separate authority in Indian country provided 
specifically to Oklahoma under SAFETEA. That separate authority was 
not invoked until the State submitted its request under SAFETEA, and 
was not approved until EPA's decision, described in this section, on 
October 1, 2020.
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    On October 1, 2020, the EPA approved Oklahoma's SAFETEA request to 
administer all the State's EPA-approved environmental regulatory 
programs, including the Oklahoma SIP, in the requested areas of Indian 
country. As requested by Oklahoma, the EPA's approval under SAFETEA 
does not include Indian country lands, including rights-of-way running 
through the same, that: (1) Qualify as Indian allotments, the Indian 
titles to which have not been extinguished, under 18 U.S.C. 1151(c); 
(2) are held in trust by the United States on behalf of an individual 
Indian or Tribe; or (3) are owned in fee by a Tribe, if the Tribe (a) 
acquired that fee title to such land, or an area that included such 
land, in accordance with a treaty with the United States to which such 
Tribe was a party, and (b) never allotted the land to a member or 
citizen of the Tribe (collectively ``excluded Indian country lands'').
    EPA's approval under SAFETEA expressly provided that to the extent 
EPA's prior approvals of Oklahoma's environmental programs excluded 
Indian country, any such exclusions are superseded for the geographic 
areas of Indian country covered by the EPA's approval of Oklahoma's 
SAFETEA request.\3\ The approval also provided that future revisions or 
amendments to Oklahoma's approved environmental regulatory programs 
would extend to the covered areas of Indian country (without any 
further need for additional requests under SAFETEA).
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    \3\ EPA's prior approvals relating to Oklahoma's SIP frequently 
noted that the SIP was not approved to apply in areas of Indian 
country (consistent with the D.C. Circuit's decision in ODEQ v. EPA) 
located in the state. See, e.g., 85 FR 20178, 20180 (April 10, 
2020). Such prior expressed limitations are superseded by the EPA's 
approval of Oklahoma's SAFETEA request.
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    The EPA is proposing to approve revisions to the general 
definitions used in the Oklahoma SIP as well as updates to the 
incorporation by reference provisions to maintain consistency with 
federal requirements, which will apply statewide in Oklahoma. 
Consistent with the D.C. Circuit's decision in ODEQ v. EPA and with 
EPA's October 1, 2020 SAFETEA approval, if this approval is finalized 
as proposed, these SIP revisions will apply to all Indian country 
within the State of Oklahoma, other than the excluded Indian country 
lands, as described above. Because--per the State's request under 
SAFETEA--EPA's October 1, 2020 approval does not displace any SIP 
authority previously exercised by the State under the CAA as 
interpreted in ODEQ v. EPA, the SIP will also apply to any Indian 
allotments or dependent Indian communities located outside of an Indian 
reservation over which there has been no demonstration of tribal 
authority.\4\
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    \4\ In accordance with Executive Order 13990, EPA is currently 
reviewing our October 1, 2020 SAFETEA approval and is engaging in 
further consultation with tribal governments and discussions with 
the State of Oklahoma as part of this review. EPA also notes that 
the October 1, 2020 approval is the subject of a pending challenge 
in federal court. (Pawnee v. Regan, No. 20-9635 (10th Cir.)). 
Pending completion of EPA's review, EPA is proceeding with this 
proposed action in accordance with the October 1, 2020 approval. 
EPA's final action on the approved revisions to the Oklahoma SIP 
that include revisions to OAC 252:100-1-3, 2-3, and Appendix Q will 
address the scope of the state's program with respect to Indian 
country, and may make any appropriate adjustments, based on the 
status of our review at that time. If EPA's final action on 
Oklahoma's SIP is taken before our review of the SAFETEA approval is 
complete, EPA may make further changes to the approval of Oklahoma's 
program to reflect the outcome of the SAFETEA review.
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IV. Proposed Action

    We are proposing to approve under section 110 of the CAA, revisions 
to the Oklahoma SIP that update the definitions relied on throughout 
the SIP and update the incorporation by reference dates for Federal 
requirements. We have determined that the revisions submitted on May 
15, 2020, and February 9, 2021, were developed in accordance with the 
CAA and EPA's regulations, policy, and guidance for SIP development.
    The EPA proposes approval of the following revisions to the 
Oklahoma SIP adopted on May 28, 2019, effective September 15, 2019, and 
submitted to the EPA on May 15, 2020:
     Revisions to OAC 252:100-2-3, Incorporation by Reference,
     Repeal of OAC 252:100, Appendix Q, and
     Adoption of new OAC 252:100, Appendix Q.
    The EPA proposes approval of the following revisions to the 
Oklahoma SIP adopted on June 25, 2020, effective September 15, 2020, 
and submitted to the EPA on February 9, 2021:
     Revisions to OAC 252:100-1-3, Definitions,
     Revisions to OAC 252:100-2-3, Incorporation by Reference,
     Repeal of OAC 252:100, Appendix Q, and
     Adoption of new OAC 252:100, Appendix Q.

V. 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 (please contact the person identified in the FOR 
FURTHER INFORMATION CONTACT section of this preamble for more 
information).

VI. 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

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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).
    This proposal to approve revisions to the Oklahoma SIP that update 
the definitions relied on throughout the SIP and update the 
incorporation by reference dates for Federal requirements as discussed 
more fully elsewhere in this document will apply, if finalized as 
proposed, to certain areas of Indian country as discussed in the 
preamble, and therefore has tribal implications as specified in E.O. 
13175 (65 FR 67249, November 9, 2000). However, this action will 
neither impose substantial direct compliance costs on federally 
recognized tribal governments, nor preempt tribal law. This action will 
not impose substantial direct compliance costs on federally recognized 
tribal governments because no actions will be required of tribal 
governments. This action will also not preempt tribal law as no 
Oklahoma tribe implements a regulatory program under the CAA, and thus 
does not have applicable or related tribal laws. Consistent with the 
EPA Policy on Consultation and Coordination with Indian Tribes (May 4, 
2011), the EPA has offered consultation to tribal governments that may 
be affected by this action.

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: October 15, 2021.
David Gray,
Acting Regional Administrator, Region 6.
[FR Doc. 2021-23035 Filed 10-26-21; 8:45 am]
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