[Federal Register Volume 87, Number 157 (Tuesday, August 16, 2022)]
[Rules and Regulations]
[Pages 50263-50267]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-17241]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2021-0621; FRL-9085-02-R6]


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

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 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 revisions to the Oklahoma SIP 
pertaining to the general SIP definitions under Oklahoma

[[Page 50264]]

Administrative Code (OAC) Title 252, Chapter 100, Subchapter 1, Section 
1-3, and revisions to the Oklahoma SIP to update the incorporation by 
reference of Federal requirements under OAC Title 252, Chapter 100, 
Subchapter 2, and Appendix Q.

DATES: This rule is effective on September 15, 2022.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID No. EPA-R06-OAR-2021-0621. 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: 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 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 
proposed rulemaking published on October 27, 2021 (86 FR 59333). In 
that document we proposed to approve revisions to the Oklahoma SIP that 
update the definitions relied on throughout the Oklahoma SIP and update 
the incorporation by reference dates for Federal requirements. The 
public comment period for the proposed action closed on November 26, 
2021. We received one comment in support of our action. This supportive 
comment, which is included in the publicly posted docket associated 
with this action at https://www.regulations.gov, restated the purpose 
of the EPA's proposed rulemaking and expressed support for our action. 
Therefore, we are finalizing our action as proposed.

II. 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 Document ID No. EPA-R06-OAR-2021-0621-0006.
    \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-2021-0621-0007.
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    The EPA's approval under SAFETEA expressly provided that to the 
extent the 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\ The 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 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 the 
EPA's October 1, 2020, SAFETEA approval, these SIP revisions 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--the 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.

III. Final Action

    We are approving, 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 the EPA's regulations, policy and guidance for SIP development.

[[Page 50265]]

    The EPA is approving 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 is approving 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.

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.'' 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.'' \6\ The EPA is 
providing additional analysis of environmental justice associated with 
this action for the purpose of providing information to the public and 
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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    The EPA conducted an EJScreen analysis for census block groups 
within the State of Oklahoma. The complete report is available in the 
docket for this action. We reviewed census block group data for the 
entire state to identify counties that contained census block groups 
over the 80th percentile for any EJ Index. From this statewide 
analysis, we identified 11 counties within the state that have census 
block groups with EJScreen Indexes over the 80th percentile that were 
targeted for further review using EJScreen 2.0. Of the 11 identified 
counties, 1 county has census block groups that exceed the 80th 
percentile in the state for the EJ Index for particulate patter 
PM2.5, 2 counties have census block groups that exceed the 
80th percentile in the state for the EJ Index for ozone, 1 county has 
census block groups that exceed the 80th percentile in the state for 
the EJ Index for 2017 Diesel Particulate Matter, 1 county has census 
block groups that exceed the 80th percentile in the state for the EJ 
Index for 2017 air toxics cancer risk, 1 county has census block groups 
that exceed the 80th percentile in the state for the EJ Index for 2017 
air toxics respiratory HI, 5 counties have census block groups that 
exceed the 80th percentile in the state for the EJ Index for traffic 
proximity, 4 counties have census block groups that exceed the 80th 
percentile in the state for the EJ Index for lead paint, 5 counties 
have census block groups that exceed the 80th percentile in the state 
for the EJ Index for RMP facility proximity, 6 counties have census 
block groups that exceed the 80th percentile in the state for the EJ 
Index for hazardous waste proximity, 7 counties have census block 
groups that exceed the 80th percentile in the state for the EJ Index 
for underground storage tanks, and 4 counties contain census block 
groups that exceed the 80th percentile in the state for the EJ Index 
for wastewater discharge.
    The EPA also 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. 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). These 
populations and others residing in Oklahoma may be vulnerable and 
subject to disproportionate impacts within the meaning of the Executive 
orders described above.
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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.
_____________________________________-

    This final rule approves revisions to the general definitions 
germane to the Oklahoma SIP and updates to the incorporation by 
reference provisions to maintain consistency with Federal requirements. 
Final approval of these revisions to the implementing definitions of 
the Oklahoma SIP and incorporation of current Federal requirements will 
continue to enable the State of Oklahoma to implement control 
strategies and permitting programs that will achieve emissions 
reductions and contribute to reduced environmental and health impacts 
on those residing, working, attending school, or otherwise present in 
vulnerable communities in Oklahoma. This final rule is not anticipated 
to have disproportionately high or adverse human health or 
environmental effects on communities with environmental justice 
concerns because it should not result in or contribute to emissions 
increases in Oklahoma.

V. 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 INFORMATION CONTACT 
section of this preamble for more information). Therefore, these 
materials have been approved by the EPA for inclusion in the SIP, have 
been incorporated by reference by the EPA into that plan, are

[[Page 50266]]

fully federally enforceable under sections 110 and 113 of the CAA as of 
the effective date of the final rulemaking of the EPA's approval, and 
will be incorporated in the next update to the SIP compilation.

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 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 action 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 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 
67429, 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 (by letter dated October 15, 2021) on our proposed 
rulemaking to tribal governments that may be affected by this action. 
We received no requests for tribal consultation.
    This action is subject to the Congressional Review Act, and the EPA 
will submit a rule report to each House of the Congress and to the 
Comptroller General of the United States. This action is not a ``major 
rule'' as defined by 5 U.S.C. 804(2).
    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 October 17, 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, Carbon monoxide, 
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen 
dioxide, Ozone, Particulate matter, Reporting and recordkeeping 
requirements, Sulfur oxides, Volatile organic compounds.

    Dated: August 5, 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), the table titled ``EPA Approved 
Oklahoma Regulations'' is amended by revising the entries for 
``252:100-1-3'', ``252:100-2-3'', and ``252:100, Appendix Q'' to read 
as follows:


Sec.  52.1920  Identification of plan.

* * * * *
    (c) * * *

                                        EPA Approved Oklahoma Regulations
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                                                           State
        State citation              Title/subject     effective date    EPA approval date        Explanation
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                                                  * * * * * * *
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                                CHAPTER 100 (OAC 252:100). AIR POLLUTION CONTROL
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                                        Subchapter 1. General Provisions
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                                                  * * * * * * *
252:100-1-3...................  Definitions.........       9/15/2020  8/16/2022, [Insert
                                                                       Federal Register
                                                                       citation].
 
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                                    Subchapter 2. Incorporation by Reference
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                                                  * * * * * * *
252:100-2-3...................  Incorporation by           9/15/2020  8/16/2022, [Insert
                                 reference.                            Federal Register
                                                                       citation].
 
                                                  * * * * * * *
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                                       Appendices for OAC 252: Chapter 100
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                                                  * * * * * * *
252:100, Appendix Q...........  Incorporation by           9/15/2020  8/16/2022, [Insert    SIP only includes
                                 reference.                            Federal Register      specified portions
                                                                       citation].            of 40 CFR parts 50,
                                                                                             51, and 98, as
                                                                                             referenced in
                                                                                             252:100, Appendix
                                                                                             Q.
 
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[FR Doc. 2022-17241 Filed 8-15-22; 8:45 am]
BILLING CODE 6560-50-P