[Federal Register Volume 88, Number 23 (Friday, February 3, 2023)]
[Proposed Rules]
[Pages 7384-7388]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-02293]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2021-0214; FRL-9407-01-R6]


Air Plan Approval; Oklahoma; Revisions to Air Pollution Control 
Rules

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 revisions 
to the State Implementation Plan (SIP) for Oklahoma submitted by the 
State of Oklahoma on February 9, 2021. The submitted revisions address 
Open Burning, Control of Emission of Volatile Organic Compounds (VOC), 
and Specialty Coatings VOC Content Limits.

DATES: Written comments must be received on or before March 6, 2023.

[[Page 7385]]


ADDRESSES: Submit your comments, identified by Docket No. EPA-R6-OAR-
2021-0214, at https://www.regulations.gov or via email to 
[email protected]. Follow the online instructions for submitting 
comments. Once submitted, comments cannot be edited or removed from 
Regulations.gov. The EPA may publish any comment received to its public 
docket. Do not submit electronically any information you consider to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Multimedia submissions (audio, 
video, etc.) must be accompanied by a written comment. The written 
comment is considered the official comment and should include 
discussion of all points you wish to make. The EPA will generally not 
consider comments or comment contents located outside of the primary 
submission (i.e., on the web, cloud, or other file sharing system). For 
additional submission methods, please contact Mr. Emad Shahin, 214-665-
6717, [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: For information on the revisions 
addressing emissions of VOC, please contact Mr. Emad Shahin, EPA Region 
6 Office, Infrastructure and Ozone Section, 214-665-6717, 
[email protected]. For information on the revisions addressing open 
burning, please contact Ms. Carrie Paige, Region 6 Office, 
Infrastructure and Ozone Section, 214-665-6521, [email protected]. 
Out of an abundance of caution for members of the public and staff, the 
EPA Region 6 office may be closed to the public to reduce the risk of 
transmitting COVID-19. The EPA encourages the public to submit comments 
via https://www.regulations.gov. 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,'' or 
``our'' means 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 CAA section 109 and currently address 
six criteria pollutants: carbon monoxide, nitrogen dioxide, ozone, 
lead, particulate matter (PM), and sulfur dioxide. A 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 EPA for approval and any changes a state makes to the 
approved SIP also must be submitted to the EPA for approval.
    The Secretary of Energy and Environment for the State of Oklahoma 
(``the State'') submitted revisions of the Oklahoma SIP to the EPA on 
February 9, 2021, which was supplemented on April 30, 2021.\1\ The 
revisions address Subchapters 1, 2, 13, 37, and 39, and Appendices N 
and Q in the Oklahoma Administrative Code (OAC) Title 252, Chapter 100. 
In this action, we are proposing to approve the revisions to OAC Title 
252 Chapter 100 Subchapters 13 (Open Burning), 37 (Control of Emission 
of Volatile Organic Compounds (VOCs), 39 (Emission of Volatile Organic 
Compounds (VOCs) in Nonattainment Areas and Former Nonattainment 
Areas), and Appendix N (Specialty Coatings VOC Content Limits). We 
approved the revisions to Subchapters 1, 2, and Appendix Q in a 
separate rulemaking action.\2\
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    \1\ The cover letters for these submittals were dated February 
2, 2021, and April 29, 2021, and are in the docket for this 
rulemaking action.
    \2\ See 87 FR 50263 (August 16, 2022).
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    The criteria used to evaluate these SIP revisions are found 
primarily in section 110 of the Act. Section 110(l) requires that a SIP 
revision submitted to the EPA be adopted after reasonable notice and 
public hearing and precludes the EPA from approving a SIP revision if 
the revision would interfere with any applicable requirement concerning 
attainment and reasonable further progress or any other applicable 
requirement of the Act.
    The submitted revisions were promulgated in compliance with the 
Oklahoma Administrative Procedures Act and published in the Oklahoma 
Register, the official state publication for rulemaking actions. These 
revisions are posted in the docket for this action.

II. The EPA's Evaluation

A. Subchapter 13 (Open Burning)

    Subchapter 13 (denoted OAC 252:100-13) imposes requirements for 
controlling open burning of refuse, and other combustible materials. A 
detailed description of the submitted revisions and our evaluation is 
provided in the Technical Support Document (TSD), posted in the docket 
for this action. A summary of the submitted revisions follows.
    1. Revisions to OAC 252:100-13-2 (Definitions) add ``Clean wood 
waste'' to the entry for ``Wood waste''. The revisions also replace the 
terms ``Ozone Watch'' and ``Particulate Matter Watch'' with ``Ozone 
Alert'' and ``Particulate Matter Alert'' to be consistent with terms 
used by cities in Oklahoma.
    2. Revisions to OAC 252:100-13-5 (Open burning prohibited) add a 
reference to new section 252:100-13-8.1 (Transported material) and 
moves one sentence addressing transported material to new section 
252:100-13-8.1.
    3. Revisions to OAC 252:100-13-7 (Allowed open burning) add 
requirements to remove materials containing asbestos, asphalt, and lead 
in structures used for fire training. The revisions also require that 
fires set for land clearing operations use an air curtain incinerator 
(ACI) in areas that are or have been designated as nonattainment or in 
a metropolitan statistical area (MSA) with a population greater than 
900,000 people. The revisions also add ``Certain medical marijuana 
plant refuse'' that are consistent with the Oklahoma Statutes at 
Section 428 (Title 63). These revisions strengthen the current SIP 
rules and are consistent with Federal regulations at 40 CFR 60 for ACI, 
and at 40 CFR 61.145, which addresses the National Emission Standards 
for Hazardous Air Pollutants (NESHAP) for asbestos-containing 
materials.
    4. Revisions to 252:100-13-8 (Use of air curtain incinerators) 
strengthen the current SIP by requiring the use of an ACI in areas that 
are or have been designated as nonattainment, or in a MSA with a 
population greater than 900,000 people; and limiting the materials that 
can be accepted for burning in such ACIs.
    5. Revisions to 252:100-13-8.1 (Transported material)--this entire 
section is new to the SIP and strengthens the SIP by identifying what, 
where, and how materials are allowed to be transported for open 
burning.
    6. Revisions to 252:100-13-9 (General conditions and requirements 
allowed for open burning) replace ``An Ozone or PM Watch'' with ``An 
Ozone or PM

[[Page 7386]]

Alert'' and strengthen the SIP by requiring ``at least 500 feet from 
any occupied structure. . . .'' for open burning of waste generated 
from commercial operations.
    The submitted revisions to 252:100-13 add clarity, consistency, and 
stringency to the open burning rules. The revisions do not relax the 
current SIP rules and are consistent with Federal regulations at 40 CFR 
60 and 40 CFR 61. Therefore, and consistent with CAA section 110(l), we 
do not expect these revisions to interfere with any applicable 
requirement concerning attainment and reasonable further progress or 
any other applicable requirement of the Act. We are proposing to 
approve these revisions.

B. Subchapters 37 and 39

    In an earlier submitted SIP revision, the State revised the name of 
Subchapter 37 from ``Control of Emission of Organic Materials'' to 
``Control of Emission of Volatile Organic Compounds (VOC)'' and revised 
the name of Subchapter 39 from ``Emission of Organic Materials in 
Nonattainment Areas'' to ``Emission of Volatile Organic Compounds 
(VOCs) in Nonattainment Areas and Former Nonattainment Areas.'' 
However, we inadvertently left these changes out of the amendatory 
table in our direct final action at 73 FR 79400 (December 29, 2008). 
These name changes will be made in the amendatory table in the final 
action.
    In this action, we are also proposing to approve revisions to OAC 
252:100, Subchapters 37 and 39 (OAC 252:100-37 and 252:100-39) and 
Appendix N. The submitted revisions are available in the docket for 
this action. The State's February 9, 2021, submittal is amending the 
following sections:
    1. 252:100-37-27 to add a new section 27, Control of emission of 
VOCs from aerospace industries coatings operations, for new and 
existing aerospace vehicle and component coating operations at 
aerospace manufacturing, rework and/or repair facilities statewide.
    2. 252:100-39-47 to update the language of section 47 to include 
changes to the 40 CFR part 63, subpart GG, Aerospace NESHAP, clarify 
regulatory language and make minor clerical corrections.
    3. 252:100-39 is amended by revoking section 49, Manufacturing of 
reinforced plastic products.
    4. 252:100-39, a new Appendix N, Specialty Coatings VOC Content 
Limits, is added to the SIP to provide restrictions on the VOC content 
of coatings used in the aerospace industry. Appendix N list of coatings 
and VOC content matches Table 1 of the National Emission Standards for 
Hazardous Air Pollutants (NESHAP) 40 CFR 63 Subpart GG and specifies 
its intended use for compliance with sections 252:100-37-27 and 
252:100-39-47.
    More complete information on the proposed changes, including minor 
typographical and citation changes is available in the TSD prepared in 
conjunction with this rulemaking action. Below is a summary of the 
revision-by-revision discussion:
    OAC 252:100-37-27 is amended to add a new section controlling 
emissions of VOCs from aerospace industries coatings operations 
statewide. The section applies to new and existing aerospace vehicle 
and component coating operations at aerospace manufacturing, rework 
and/or repair facilities. Examining the new section indicates that the 
submitted revision not only would reference certain limits specified in 
the aerospace NESHAP, 40 CFR 63 Subpart GG, but will also strengthen 
the SIP by requiring control of VOC emissions from aerospace industry 
throughout the State of Oklahoma. Therefore, we are proposing to 
approve the submitted revisions to Subchapter 37, Section 27.
    OAC 252:100-39-47 is amended to update the language of section 47 
to incorporate changes to the 40 CFR part 63, Subpart GG, Aerospace 
NESHAP, clarify regulatory language and make minor clerical 
corrections. Examination of the revisions indicates that the submitted 
revision to Subchapter 39-47 is proper and provides additional clarity. 
Thus, we find that the requirements of section 110(l) of the Act are 
satisfied. Therefore, we are proposing to approve the submitted 
revision to Subchapter 39, Section 47.
    OAC 252:100-39 is amended by revoking section 49, manufacturing of 
fiberglass reinforced plastic products. Section 49 was implemented in 
1989 to provide VOC reductions in Tulsa County, and since EPA finalized 
the NESHAP for new and existing reinforced plastic composites 
production facilities, codified at 40 CFR 63 Subpart WWWW (Subpart 
WWWW) in 2003, the duality of applying section 49 and Subpart WWWW to 
the same source is no longer practical. The provisions of Subpart WWWW 
are incorporated by reference into the state's rules under OAC 252:100-
2-3. Subpart WWWW provides equal or greater VOC reductions to section 
49 and is applicable to sites statewide.
    OAC 252:100-39, A new Appendix N, Specialty Coatings VOC Content 
Limits, lists the VOC content limits allowed for use in the State at 
affected facilities. These limits are needed to provide for effective 
compliance with sections OAC 252:100-37-27 and OAC 252:100-39-47. We 
find that the new Appendix N restricts VOC content by matching the VOC 
limits specified in Table 1-Specialty Coatings-HAP and VOC Content 
Limits, as set forth in the aerospace NESHAP 40 CFR part 63, subpart 
GG. Because the addition of Appendix N adds new requirements, we would 
not expect an increase in emissions and therefore no interference with 
any applicable requirement concerning attainment and reasonable further 
progress (as defined in the CAA section 171), or any other applicable 
requirement of the CAA.

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, 109 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).\3\
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    \3\ 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

[[Page 7387]]

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.\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).
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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.
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    As explained earlier in this action, the EPA is proposing to 
approve revisions to the Oklahoma SIP that will apply state-wide and 
therefore have tribal implications as specified in Executive Order 
(E.O.) 13175. 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 Oklahoma, other than the excluded Indian country lands, 
as described earlier. 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.\5\
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    \5\ 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 Title 252 Chapter 100 Subchapters 13, 
37, and 39 and Appendix N 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. Environmental Justice Considerations

    Executive Order 12898 (Federal Actions to Address Environmental 
Justice in Minority Populations and Low-Income Populations, 59 FR 7629, 
February 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 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.\7\ 
The EPA found, based on the EJScreen analyses, that this proposed 
action will not have disproportionately high or adverse human health or 
environmental effects on communities with EJ concerns. The revisions 
strengthen the SIP by reducing air quality impacts from specific 
operations statewide and thus, benefit the public. For example, as 
described earlier in this action, the removal of specific materials 
from structures used for fire training and the use of the ACI are 
controls that improve air quality. The submitted revisions do not relax 
provisions in the approved SIP and are consistent with Federal rules, 
including, but not limited to 40 CFR 60, 40 CFR 61, and 40 CFR 63.
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    \6\ See https://www.epa.gov/environmentaljustice/learn-about-environmental-justice.
    \7\ Our analysis is provided in the docket for this rulemaking 
action.
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V. Proposed Action

    We are proposing to approve revisions to the Oklahoma SIP, 
submitted to us on February 9, 2021. Specifically, we are proposing to 
approve revisions to OAC 252:100, Subchapters 13, 37, and 39, and 
Appendix N. We are proposing to approve these revisions in accordance 
with section 110 of the Act.

VI. 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 SIP regulations, as described in 
Section II of this proposed action. We have made, and will continue to 
make, these documents generally available electronically through 
www.regulations.gov (please contact the persons identified in the FOR 
FURTHER INFORMATION CONTACT section of this preamble for more 
information).

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 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 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);

[[Page 7388]]

     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 will apply, 
if finalized as proposed, to certain areas of Indian country throughout 
Oklahoma 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, Incorporation by 
reference, Intergovernmental relations, Ozone, Particulate matter, 
Reporting and recordkeeping requirements, Volatile organic compounds.

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

    Dated: January 30, 2023.
Earthea Nance,
Regional Administrator, Region 6.
[FR Doc. 2023-02293 Filed 2-2-23; 8:45 am]
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