[Federal Register Volume 87, Number 87 (Thursday, May 5, 2022)]
[Rules and Regulations]
[Pages 26677-26680]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-09194]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R06-OAR-2021-0032; FRL-8688-02-R6]
Air Plan Approval; Oklahoma; Interstate Visibility Transport
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: Pursuant to the Federal Clean Air Act (CAA or the Act), the
Environmental Protection Agency (EPA) is approving elements of a State
Implementation Plan (SIP) submission from the State of Oklahoma for the
2015 Ozone National Ambient Air Quality Standard (NAAQS) and
disapproving elements of two SIP submissions for the 2010 sulfur
dioxide (SO2) and the 2012 fine particulate matter
(PM2.5) NAAQS. These infrastructure SIP (i-SIP) submissions
address how the existing SIP provides for implementation, maintenance,
and enforcement of these NAAQS. The i-SIP requirements are to ensure
that the Oklahoma SIP is adequate to meet the State's responsibilities
under the CAA for these NAAQS. Specifically, this final rule addresses
the interstate visibility transport requirements of the i-SIP for the
2015 Ozone NAAQS, 2010 SO2, and 2012 PM2.5 NAAQS
under CAA section 110(a)(2)(D)(i)(II). We are also finalizing our
determination that the deficiencies in the Oklahoma SIP that form the
basis of our disapproval of the interstate visibility transport
portions of the Oklahoma i-SIP submissions for the 2010 SO2
and 2012 PM2.5 NAAQS are remedied by the existing Federal
Implementation Plan (FIP) in place for the Oklahoma Regional Haze
program, and that no further Federal action is required to address the
disapproval.
DATES: This rule is effective on June 6, 2022.
ADDRESSES: The EPA has established a docket for this action under
Docket ID No. EPA-R06-OAR-2021-0032. All documents in the docket are
listed on the https://www.regulations.gov website. Although listed in
the index, some information is not publicly available, e.g.,
Confidential Business Information or other information whose disclosure
is restricted by statute. Certain other material, such as copyrighted
material, is not placed on the internet. Publicly available docket
materials are available electronically through https://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Dayana Medina, EPA Region 6 Office,
Regional Haze and SO2 Section, 214-665-7241,
[email protected]. Out of an abundance of caution for members of
the public and our staff, the EPA Region 6 office may be closed to the
public to reduce the risk of transmitting COVID-19. 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, ``we,'' ``us,''
and ``our'' means the EPA.
I. Background
The background for this action is discussed in detail in our July
22, 2021 proposal (86 FR 38630). In that document, we proposed to
approve the interstate visibility transport element of the i-SIP
submission from the State of Oklahoma for the 2015 Ozone NAAQS. We also
proposed to disapprove the interstate visibility transport elements of
two i-SIP submissions from the State of Oklahoma: One for the 2010
SO2 NAAQS and the other for the 2012 PM2.5 NAAQS.
We simultaneously proposed, in exercising our authority under section
110(c) of the Act, to find that the deficiencies in the Oklahoma SIP
that formed the basis of our proposed disapproval of the interstate
visibility transport portions of the Oklahoma i-SIP submissions for the
2010 SO2 and 2012 PM2.5 NAAQS are already
addressed by the existing FIP in place for the Oklahoma Regional Haze
program, and that no further Federal action is required. The reader
should refer to our notice of proposed rulemaking for our evaluation of
the Oklahoma i-SIP submissions and a detailed explanation of our
rationale for this action.
The public comment period for the proposed action closed on August
23, 2021. We received one public comment concerning our proposed
action. The comment is included in the publicly posted docket
associated with this action at https://www.regulations.gov. Below we
provide a summary of the comment along with our response. After careful
consideration of the comment received, we have decided to finalize our
action with no changes from the proposed action.
II. Response to Comments
Comment: The commenter expressed appreciation for EPA's close
evaluation of Oklahoma's SIP submittals and expressed support of EPA's
determinations and actions identified in the proposed rule.
Response: We appreciate the commenter's support of our proposed
rule.
Comment: The commenter stated that they do not object to EPA's
determination, among others, that the existing FIP in place for the
Oklahoma Regional Haze program is sufficient to remedy the proposed
disapproval of the interstate visibility transport portions of the
Oklahoma i-SIP submissions for the 2010 SO2 and 2012
PM2.5 NAAQS but asked EPA to revisit, as necessary and
appropriate in the future, whether the existing FIP continues to remain
sufficiently stringent to comply with the requirements of the CAA,
including whether it is adequately ensuring reasonable progress towards
achieving Oklahoma's regional haze goals.
Response: First, we note that comments regarding the stringency of
the existing Oklahoma Regional Haze FIP and whether it is sufficient to
comply with the regional haze requirements of the CAA are beyond the
scope of this action, and as such, we will not be responding to them.
We also note that we are not implementing a new or revised FIP in this
action but are instead finding that the existing regional haze FIP also
addresses the deficiencies in the Oklahoma SIP that form the basis of
our disapproval of the interstate visibility transport portions of the
Oklahoma i-SIP submissions for the 2010 SO2 and 2012
PM2.5 NAAQS. EPA will review and take action on any future
regional haze SIP revisions submitted by Oklahoma in separate future
actions.
III. Impact on Areas of Indian Country
As stated in the proposed action, 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 outside
[[Page 26678]]
of Indian country.\1\ 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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\1\ A copy of the Governor's July 22, 2020 request can be found
in the docket for this rulemaking on the https://www.regulations.gov
website. See Document ID No. EPA-R06-OAR-2021-0032-0017.
\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 of the State's EPA-approved environmental regulatory
programs, including the Oklahoma SIP, in the requested areas of Indian
country.\3\ 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'').
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\3\ A copy of EPA's October 1, 2020 approval can be found in the
docket for this rulemaking on the https://www.regulations.gov
website. See Document ID No. EPA-R06-OAR-2021-0032-0018.
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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.\4\ 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).\5\
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\4\ 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.
\5\ On December 22, 2021, EPA proposed to withdraw and
reconsider the October 1, 2020 SAFETEA approval. See https://www.epa.gov/ok/proposed-withdrawal-and-reconsideration-and-supporting-information. EPA is engaging in further consultation with
tribal governments and expects to have discussions with the State of
Oklahoma as part of this reconsideration. EPA also notes that the
October 1, 2020 approval is the subject of a pending challenge in
Federal court. Pawnee Nation of Oklahoma v. Regan, No. 20-9635 (10th
Cir.). EPA may make further changes to the approval of Oklahoma's
program to reflect the outcome of the proposed withdrawal and
reconsideration of the October 1, 2020 SAFETEA approval.
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As explained above, the EPA is disapproving the interstate
visibility transport portions of the Oklahoma i-SIP submittals for the
2010 SO2 and the 2012 PM2.5 NAAQS because they do
not meet the interstate visibility transport requirements of CAA
Section 110(a)(2)(D)(i)(II) with respect to these NAAQS; however, the
EPA is also making the determination that the deficiencies forming the
basis of the disapproval of these SIPs are met through the existing FIP
in place for the Oklahoma Regional Haze program. The FIP applies to all
lands within the State regardless of land status. In practice, the FIP
requirements, as discussed in the proposed rule, only apply to the
Oklahoma Gas & Electric (OG&E) facilities, Sooner Station Units 1 and 2
(located within Noble County) and Muskogee, Units 4 and 5 (located
within Muskogee County and the Cherokee Nation Reservation).
Additionally, the EPA is approving the interstate visibility
transport element of the Oklahoma i-SIP for the 2015 Ozone NAAQS.
Consistent with the D.C. Circuit's decision in ODEQ v. EPA and with
EPA's October 1, 2020, SAFETEA approval, this portion of the SIP
applies in certain areas of Indian country. Under EPA's October 1, 2020
SAFETEA approval, the SIP will apply to all Indian country within the
State of Oklahoma, other than the excluded Indian country lands.
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.
This action does not result in the imposition of new requirements
for the affected sources. Rather, it approves Oklahoma's determination
that the regional haze measures that have already been approved and are
currently being implemented satisfy the visibility transport
requirements for the 2015 Ozone NAAQS and also makes the determination
that the regional haze measures promulgated by EPA in the Oklahoma FIP
that are currently being implemented address the deficiencies in the
Oklahoma SIP with respect to visibility transport requirements for the
2010 SO2 and 2012 PM2.5 NAAQS.
IV. Final Action
The EPA is approving the interstate visibility transport elements
of the i-SIP submission from the State of Oklahoma for the 2015 Ozone
NAAQS. We are also disapproving the interstate visibility transport
elements of two i-SIP submissions from the State of Oklahoma: One for
the 2010 SO2 NAAQS and the other for the 2012
PM2.5 NAAQS. We simultaneously find, in exercising our
authority under section 110(c) of the Act, that the deficiencies in the
Oklahoma SIP that form the basis of our disapproval of the interstate
visibility transport portions of the Oklahoma i-SIP submissions for the
2010 SO2 and 2012 PM2.5 NAAQS are already
addressed by the existing FIP in place for the Oklahoma Regional Haze
program, and that no further Federal action is required.
V. Environmental Justice Considerations
Executive Order 12898 (Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations, 59 FR 7629,
Feb. 16, 1994) directs Federal agencies to identify and address
``disproportionately high and adverse human health or environmental
effects'' of their actions on minority populations and low-income
populations to the greatest extent practicable and permitted by law.
The EPA defines environmental justice (EJ) as ``the fair treatment and
meaningful involvement of all people regardless of race, color,
national origin, or income with respect to the development,
implementation, and enforcement of environmental laws, regulations, and
policies.'' The EPA further defines the term fair treatment to mean
that ``no group of people should bear a disproportionate burden of
environmental harms and risks, including those resulting from the
negative environmental consequences of industrial, governmental, and
commercial operations or programs and
[[Page 26679]]
policies.'' \6\ EPA is providing additional analysis of environmental
justice associated with this action. We are doing so for the purpose of
providing information to the public, not as a basis of our final
action.
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\6\ https://www.epa.gov/environmentaljustice/learn-about-environmental-justice.
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EPA reviewed demographic data, which provides an assessment of
individual demographic groups of the populations living within
Oklahoma.\7\ The EPA then compared the data to the national average for
each of the demographic groups.\8\ The results of the demographic
analysis indicate that, for populations within Oklahoma, the percent
people of color (persons who reported their race as a category other
than White alone (not Hispanic or Latino)) is less than the national
average (35 percent versus 40 percent). Within people of color, the
percent of the population that is Black or African American alone is
lower than the national average (7.8 percent versus 13.4 percent) and
the percent of the population that is American Indian/Alaska Native is
significantly higher than the national average (9.4 percent versus 1.3
percent). The percent of the population that is two or more races is
higher than the national averages (6.3 percent versus 2.8 percent). The
percent of people living below the poverty level in Oklahoma is higher
than the national average (14.3 percent versus 11.4 percent). The
percent of people over 25 with a high school diploma in Oklahoma is
similar to the national average (88.6 percent versus 88.5 percent),
while the percent with a Bachelor's degree or higher is below the
national average (26.1 percent versus 32.9 percent).
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\7\ See the United States Census Bureau's QuickFacts on Oklahoma
at https://www.census.gov/quickfacts/fact/table/OK,US/PST045221.
\8\ See the United States Census Bureau's QuickFacts on Oklahoma
at https://www.census.gov/quickfacts/fact/table/OK,US/PST045221.
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This final rule approves Oklahoma's determination that the regional
haze measures that have already been approved into the Oklahoma SIP and
are currently being implemented satisfy the visibility transport
requirements for the 2015 Ozone NAAQS and also makes the determination
that the regional haze measures promulgated by EPA in the Oklahoma FIP
that are currently being implemented address the deficiencies in the
Oklahoma SIP with respect to the visibility transport requirements for
the 2010 SO2 and 2012 PM2.5 NAAQS. The existing
regional haze measures on which Oklahoma and EPA are relying to satisfy
the visibility transport requirements for these three NAAQS have
resulted in significant emissions reductions, as discussed in the
proposed rule. Some of the pollutants which form haze have also been
linked to serious health problems, such as increased respiratory
illness, decreased lung function, and even premature death.\9\
Therefore, we believe that these existing regional haze measures and
resulting emissions reductions have contributed to reduced
environmental and health impacts on all populations in Oklahoma,
including people of color and low-income populations in Oklahoma. We
conclude that this final rule does not have disproportionately high or
adverse human health or environmental effects on communities with
environmental justice concerns.
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\9\ SO2, nitrogen dioxide (NO2), and
particulate matter are among six criteria air pollutants for which
the EPA has established NAAQS. The CAA requires the EPA to
periodically review the scientific basis for the NAAQS by preparing
an integrated science assessment. The integrated science assessment
provides the EPA's evaluation and synthesis of the most policy-
relevant science related to the health effects of the criteria
pollutants. The most recent integrated science assessments for
SO2, NO2, and particulate matter can be
accessed here: https://www.epa.gov/naaqs/sulfur-dioxide-so2-primary-air-quality-standards; https://www.epa.gov/naaqs/nitrogen-dioxide-no2-primary-air-quality-standards; and https://www.epa.gov/naaqs/particulate-matter-pm-air-quality-standards.
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VI. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review
This final action is not a ``significant regulatory action'' and
was therefore not submitted to the Office of Management and Budget for
review.
B. Paperwork Reduction Act (PRA)
This final action does not impose an information collection burden
under the PRA because it does not contain any information collection
activities.
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 merely approves a portion of one SIP submission as meeting the
CAA and disapproves portions of two SIP submissions as not meeting the
CAA.
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.
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 final action approving the interstate visibility transport
element of the Oklahoma i-SIP submission for the 2015 Ozone NAAQS and
disapproving the interstate visibility transport elements of the
Oklahoma i-SIP submissions for the 2010 1-hour SO2 NAAQS and
the 2012 PM2.5 NAAQS (and making a determination that no
further action is required to address the deficiencies identified in
the disapproval) will apply 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), on July 16, 2021, the EPA offered consultation to 38 tribal
governments whose lands are located within the exterior boundaries of
the State of Oklahoma. EPA did not receive any comments from tribal
governments or requests for consultation.
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
[[Page 26680]]
Executive order. This action is not subject to Executive Order 13045
because it merely approves a portion of one SIP submission as meeting
the CAA and disapproves portions of two SIP submissions as not meeting
the CAA.
H. Executive Order 13211: Actions 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
This rulemaking does not involve technical standards.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
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 merely approves a portion of a SIP
submission as meeting the CAA and disapproves portions of two SIP
submissions as not meeting the CAA.
K. Congressional Review Act (CRA)
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. The EPA will submit a report containing this action and
other required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2).
L. Judicial Review
Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by July 5, 2022. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of this action for the purposes of judicial review, nor
does it extend the time within which a petition for judicial review may
be filed and shall not postpone the effectiveness of such rule or
action. This action may not be challenged later in proceedings to
enforce its requirements. (See section 307(b)(2).)
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Nitrogen dioxide, Ozone,
Particulate matter, Sulfur oxides, Visibility transport.
Authority: 42 U.S.C. 7401 et seq.
Dated: April 25, 2022.
Earthea Nance,
Regional Administrator, Region 6.
For the reasons stated in the preamble, the EPA amends 40 CFR part
52 as follows:
PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart LL--Oklahoma
0
2. Section 52.1928 is amended by adding paragraphs (e) and (f) to read
as follows:
Sec. 52.1928 Visibility protection.
* * * * *
(e) The portion of the State Implementation Plan pertaining to
adequate provisions to prohibit emissions from interfering with
measures required in another state to protect visibility for the 2015
ozone national ambient air quality standard (NAAQS), submitted on
October 25, 2018, and clarified in a letter dated January 5, 2021, is
approved.
(f) The portions of the State Implementation Plans pertaining to
adequate provisions to prohibit emissions from interfering with
measures required in another state to protect visibility for the 2010
1-hour SO2 NAAQS, submitted on January 28, 2015, and the
2012 PM2.5 NAAQS, submitted on June 16, 2016, are
disapproved. The deficiencies in the Oklahoma SIP that form the basis
of our disapproval of the interstate visibility transport portions of
these two State Implementation Plan submissions are addressed by Sec.
52.1923.
[FR Doc. 2022-09194 Filed 5-4-22; 8:45 am]
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