[Federal Register Volume 87, Number 145 (Friday, July 29, 2022)]
[Rules and Regulations]
[Pages 45654-45657]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-16043]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2020-0437; FRL-8698-02-R6]


Air Plan Approval; Oklahoma; Volatile Organic Compound Emissions 
in Nonattainment Areas and Former Nonattainment Areas

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 revisions to the 
State Implementation Plan (SIP) for Oklahoma submitted by the State of 
Oklahoma designee with a letter dated May 7, 2020. The submittal covers 
updates to the Oklahoma SIP, as contained in the State's 2019 annual 
SIP update. Specifically, this action addresses revisions to Oklahoma 
Administrative Code (OAC) Title 252 Chapter 100 Subchapter 39, Emission 
of Volatile Organic Compounds (VOCs) in Nonattainment Areas and Former 
Nonattainment Areas. There are two Oklahoma counties affected by this 
action: Tulsa County and Oklahoma County.

DATES: This rule is effective on August 29, 2022.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID No. EPA-R06-OAR-2020-0437. 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: Clovis Steib, EPA Region 6 Office, 
Infrastructure and Ozone Section, 214-665-7566, [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 38627). In that document we proposed to 
approve revisions to the SIP for Oklahoma submitted by the State of 
Oklahoma with a letter dated May 7, 2020. Specifically, the action 
addressed revisions to OAC Title 252 Chapter 100 Subchapter 39, 
Sections 4, 16, 40, and 41. The revisions corrected errors and made 
these sections of the Oklahoma SIP consistent with EPA's rules. The two 
areas in Oklahoma affected by this action are Tulsa County and Oklahoma 
County.
    We received comments on our proposal from one commenter. Our 
response to the comments follows.

II. Response to Comments

    Comment: One commenter stated that it is important for citizens to 
stay informed and be kept up to date on Federal government revisions 
and regulations, such as this proposed approval action on the Oklahoma 
SIP.
    Response: Public comment is just one part of an extensive 
rulemaking process. It is an invaluable gateway to plug in to the 
regulatory process because it is required of all agencies, across 
statutes, for any new regulation. Under the Administrative Procedures 
Act (1946), Federal agencies like the EPA, are required to request 
comments on new regulation proposals by all members of the public. We 
thank the commenter for their interest and taking the time to submit 
their response; as well as encouraging their fellow citizens to engage 
in the public comment process. No changes to the proposal were made in 
response to the comment.

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 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 Docket ID No. EPA-R06-OAR-2020-0437.
    \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 Docket ID No. EPA-R06-OAR-2020-0437.
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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

[[Page 45655]]

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, the 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. The EPA expects to have further discussions 
with tribal governments and the State of Oklahoma as part of this 
reconsideration. The 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.). The 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 approving revisions to the SIP for 
Oklahoma submitted by the State of Oklahoma with a letter dated May 7, 
2020. Specifically, the action addressed revisions to OAC Title 252 
Chapter 100 Subchapter 39, Sections 4, 16, 40, and 41. The revisions 
corrected errors and made these sections of the Oklahoma SIP consistent 
with EPA's rules. 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 revisions approved in this 
rulemaking action will apply to all Indian country within Tulsa and 
Oklahoma Counties, 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 
approved SIP revisions for Oklahoma County and Tulsa County 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.

IV. 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.'' \6\ 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 policies.'' \7\ 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\ See https://www.epa.gov/environmentaljustice/learn-about-environmental-justice.
    \7\ 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 the 
affected Oklahoma and Tulsa counties area.\8\ The EPA then compared the 
data to the national average for each of the demographic groups.\9\ The 
results of the demographic analysis indicate that, for populations 
within Tulsa and Oklahoma counties, the percent people of color 
(persons who reported their race as a category other than white alone 
(not Hispanic or Latino)) is slightly less than the national average 
for Tulsa County; and slightly more than the national average for 
Oklahoma County (38 and 44 percent, respectively versus 40 percent). 
Within people of color, the percent of the population that is Black or 
African American alone is below the national average for Tulsa County 
and above the national average for Oklahoma County (10.8 and 15.8 
percent, respectively versus 13.4 percent), and the percent of the 
population that is American Indian/Alaska Native is higher than the 
national average for both Tulsa and Oklahoma counties (6.9 and 4.4 
percent, respectively versus 1.3 percent). The percent of the 
population that is ``two or more races'' is higher than the national 
average for both Tulsa and Oklahoma counties (6.2 and 5.4 percent, 
respectively versus 2.8 percent). The percent of people living below 
the poverty level in Tulsa and Oklahoma counties is higher than the 
national average (12.8 and 15.2 percent, respectively versus 11.4 
percent). The percent of people over 25 with a high school diploma in 
Tulsa and Oklahoma counties is similar to the national average (89.9 
and 88 percent, respectively versus 88.5 percent), as is the percent 
with a ``bachelor's degree or higher'' (32 and 33.1 percent, 
respectively versus 32.9 percent).
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    \8\ See the United States Census Bureau's QuickFacts on Oklahoma 
at https://www.census.gov/quickfacts/fact/table/OK,US/PST045221.
    \9\ 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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    The SIP revisions do not appear to have a disproportionately high 
or adverse human health or environmental effects on communities with EJ 
concerns as the changes to the Oklahoma SIP will result in updates and 
clarifications an also further restrict the use of cutback asphalt. 
Since the use of cutback asphalt is prohibited for a longer period of 
time each year communities throughout the affected counties will 
realize benefits.

V. Final Action

    We are approving revisions to OAC 252:100-39, Emission of VOCs in 
Nonattainment Areas and Former Nonattainment Areas, in Section 4 
(Exemptions), Section 16 (Petroleum refinery process unit turnaround), 
Section 40 (Cutback asphalt), and Section 41 (Storage, loading and 
transport/delivery of VOCs) as submitted to us by a letter dated May 7, 
2020 (Submittal). The submittal covers Oklahoma's 2019 regulatory 
update. This action is being taken under section 110 of the Act.

VI. Incorporation by Reference

    In this rule, the EPA is finalizing regulatory text that includes 
incorporation by reference. In accordance with requirements of 1 CFR 
51.5, the EPA is finalizing the incorporation by reference the 
revisions to the Oklahoma regulations, as described in the Final Action 
section above. The EPA has made, and will continue to make, these 
materials generally available through www.regulations.gov (please 
contact the person identified in the FOR FURTHER

[[Page 45656]]

INFORMATION CONTACT section of this preamble for more information). 
Therefore, these materials have been approved by EPA for inclusion in 
the SIP, have been incorporated by reference by EPA into that plan, are 
fully federally enforceable under sections 110 and 113 of the CAA as of 
the effective date of the final rulemaking of EPA's approval, and will 
be incorporated in the next update to the SIP compilation.

VII. 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 approves 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 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 approval of revisions to the Oklahoma SIP will apply to 
certain areas of Indian country in Tulsa and Oklahoma Counties, 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 offered consultation to tribal governments that may be 
affected by this action. EPA received no comments or requests for 
consultation from tribal governments.
    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. 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).
    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by September 27, 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, Reporting and recordkeeping 
requirements, Volatile organic compounds.

    Dated: July 20, 2022.
Earthea Nance,
Regional Administrator, Region 6.

    For the reasons stated in the preamble, the Environmental 
Protection Agency 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. In Sec.  52.1920 in paragraph (c) amend the table ``EPA APPROVED 
OKLAHOMA REGULATIONS'' by revising the entries for ``252:100-39-4,'' 
``252:100-39-16,'' ``252:100-39-40,'' and ``252:100-39-41'' to read as 
follows.
* * * * *
    (c) * * *

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                                        EPA Approved Oklahoma Regulations
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                                                      State
       State citation           Title/subject       effective    EPA approval date           Explanation
                                                      date
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                                                  * * * * * * *
                  OKLAHOMA ADMINISTRATIVE CODE, TITLE 252. DEPARTMENT OF ENVIRONMENTAL QUALITY
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                                CHAPTER 100 (OAC 252:100). AIR POLLUTION CONTROL
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                                                  * * * * * * *
                       Subchapter 39. Emission of Organic Materials in Nonattainment Areas
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                                           Part 1. General Provisions
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                                                  * * * * * * *
252:100-39-4...............  Exemptions........       9/15/2019  7/29/2022,
                                                                  [Insert Federal
                                                                  Register
                                                                  citation].
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                                      Part 3. Petroleum Refinery Operations
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                                                  * * * * * * *
252:100-39-16..............  Petroleum refinery       9/15/2019  7/29/2022,
                              process unit                        [Insert Federal
                              turnaround.                         Register
                                                                  citation].
 
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                                                  * * * * * * *
                                           Part 7. Specific Operations
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252:100-39-40..............  Cutback asphalt          9/15/2019  7/29/2022,
                              (paving).                           [Insert Federal
                                                                  Register
                                                                  citation].
252:100-39-41..............  Storage, loading         9/15/2019  7/29/2022,
                              and transport/                      [Insert Federal
                              delivery of VOCs.                   Register
                                                                  citation].
 
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[FR Doc. 2022-16043 Filed 7-28-22; 8:45 am]
BILLING CODE 6560-50-P