[Federal Register Volume 88, Number 43 (Monday, March 6, 2023)]
[Proposed Rules]
[Pages 13755-13758]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-04487]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2022-0279; FRL-10675-01-R6]


Air Plan Approval; Oklahoma; Updates to the State Implementation 
Plan Incorporation by Reference Provisions

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: Pursuant to the Federal Clean Air Act (CAA or the Act), the 
Environmental Protection Agency (EPA) is proposing to approve revisions 
to the Oklahoma State Implementation Plan (SIP) submitted by the State 
of Oklahoma designee on December 17, 2021, and January 30, 2023. This 
action addresses the submittal of revisions to the Oklahoma SIP to 
update the incorporation by reference provision of Federal requirements 
under Oklahoma Administrative Code (OAC).

DATES: Written comments must be received on or before April 5, 2023.

ADDRESSES: Submit your comments, identified by Docket No. EPA-R06-OAR-
2022-0279, 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 Adina Wiley, 214-665-
2115, [email protected]. For the full EPA public comment policy, 
information about CBI or multimedia submissions, and general guidance 
on making effective comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets.
    Docket: The index to the docket for this action is available 
electronically at www.regulations.gov. While all documents in the 
docket are listed in the index, some information may not be publicly 
available due to docket file size restrictions or content (e.g., CBI).

FOR FURTHER INFORMATION CONTACT: Ms. Adina Wiley, EPA Region 6 Office, 
Air Permits Section, 214-665-2115, [email protected]. Out of an 
abundance of caution for members of the public and our staff, the EPA 
Region 6 office may be closed to the public to reduce the risk of 
transmitting COVID-19. We encourage the public to submit comments via 
https://www.regulations.gov. Please call or email the contact listed 
above if you need alternative access to material indexed but not 
provided in the docket.

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

I. Background

    Section 110 of the Act requires states to develop air pollution 
regulations and control strategies to ensure that air quality meets the 
EPA's National Ambient Air Quality Standards (NAAQS). These ambient 
standards are established under section 109 of the Act and they 
currently address six criteria pollutants: Carbon monoxide, nitrogen 
dioxide, ozone, lead, particulate matter, and sulfur dioxide. The 
state's air regulations are contained in its SIP, which is basically a 
clean air plan. Each state is responsible for developing SIPs to 
demonstrate how the NAAQS will be achieved, maintained, and enforced. 
The SIP must be submitted to the EPA for approval, and any changes a 
state makes to the approved SIP also must be submitted to the EPA for 
approval.
    On December 17, 2021, Mr. Kenneth Wagner, Secretary of Energy and 
Environment, submitted revisions to the Oklahoma SIP that included the 
annual SIP updates for 2021. The submittal included revisions to OAC 
252:100, Subchapter 2 and Appendix Q to update the incorporation by 
reference of Federal requirements, which will be addressed in this 
proposal.
    On January 30, 2023, Mr. Ken McQueen, Secretary of Energy and 
Environment, submitted revisions to the Oklahoma SIP that included the 
annual SIP updates for 2022. This submittal included revisions to OAC 
252:100, Subchapter 2 and Appendix Q to update the incorporation by 
reference of Federal requirements, which will be addressed in this 
proposal. The submittal also included revisions to OAC 252:100, 
Subchapters 8, 37 and 39 which will be addressed by EPA at a later date 
and in separate rulemakings.

II. The EPA's Evaluation

    The accompanying Technical Support Document for this action 
includes a detailed analysis of the submitted revisions to the Oklahoma 
SIP which are the subject of this proposed rulemaking. Our analysis 
indicates that the December 17, 2021 and January 30, 2023, SIP 
revisions addressed in this proposed rulemaking action were developed 
in accordance with the CAA and the State provided reasonable notice and 
public hearing.
    The ODEQ submitted revisions on December 17, 2021 and January 30, 
2023, to update the Incorporation by Reference provisions found in the 
Oklahoma SIP. In the December 17, 2021, submittal the ODEQ provided 
amendments to OAC 252:100-2-3 and Appendix Q that were adopted on June 
11, 2021, and effective September 15,

[[Page 13756]]

2021. The January 30, 2023, submittal included amendments to OAC 
252:100-2-3 and Appendix Q that were adopted on June 21, 2022, and 
effective September 15, 2022. These revisions ensure the Oklahoma SIP 
maintains consistency with current Federal requirements by updating the 
opening paragraph of OAC 252:100-2-3 to include the current 
incorporation by reference date and revoking and replacing the prior 
version of Appendix Q. Specifically, the ODEQ updated the incorporation 
by reference requirements of:
     40 CFR part 50, appendices B and J, to ensure the Oklahoma 
SIP uses the current Federal reference methods for determining 
compliance with the NAAQS,
     40 CFR part 51, subpart A, table 1 to appendix A to use 
current requirements in the Oklahoma emission inventory reporting 
requirements,
     40 CFR part 51, paragraph 51.100(s)(1) of subpart F, to 
use the Federal definition of volatile organic compound,
     40 CFR part 51, appendix P, to use Federal emission 
monitoring requirements,
     40 CFR part 51, appendix W, to use current Federal 
guidance on air quality models, and
     40 CFR part 98, table A-1 of subpart A, to use current 
global warming potentials in the Oklahoma air permitting programs.

III. Impact on Areas of Indian Country

    Following the U.S. Supreme Court decision in McGirt v. Oklahoma, 
140 S. Ct. 2452 (2020), the Governor of the State of Oklahoma requested 
approval under Section 10211(a) of the Safe, Accountable, Flexible, 
Efficient Transportation Equity Act of 2005: A Legacy for Users, Public 
Law 109-59, 119 Stat. 1144, 1937 (August 10, 2005) (``SAFETEA''), to 
administer in certain areas of Indian country (as defined at 18 U.S.C. 
1151) the State's environmental regulatory programs that were 
previously approved by the EPA for areas outside of Indian country. The 
State's request excluded certain areas of Indian country further 
described below. In addition, the State only sought approval to the 
extent that such approval is necessary for the State to administer a 
program in light of Oklahoma Dept. of Environmental Quality v. EPA, 740 
F.3d 185 (D.C. Cir. 2014).\1\
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    \1\ In ODEQ v. EPA, the D.C. Circuit held that under the CAA, a 
state has the authority to implement a SIP in non-reservation areas 
of Indian country in the state, where there has been no 
demonstration of tribal jurisdiction. Under the D.C. Circuit's 
decision, the CAA does not provide authority to states to implement 
SIPs in Indian reservations. ODEQ did not, however, substantively 
address the separate authority in Indian country provided 
specifically to Oklahoma under SAFETEA. That separate authority was 
not invoked until the State submitted its request under SAFETEA, and 
was not approved until EPA's decision, described in this section, on 
October 1, 2020.
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    On October 1, 2020, the EPA approved Oklahoma's SAFETEA request to 
administer all the State's EPA-approved environmental regulatory 
programs, including the Oklahoma SIP, in the requested areas of Indian 
country. As requested by Oklahoma, the EPA's approval under SAFETEA 
does not include Indian country lands, including rights-of-way running 
through the same, that: (1) qualify as Indian allotments, the Indian 
titles to which have not been extinguished, under 18 U.S.C. 1151(c); 
(2) are held in trust by the United States on behalf of an individual 
Indian or Tribe; or (3) are owned in fee by a Tribe, if the Tribe (a) 
acquired that fee title to such land, or an area that included such 
land, in accordance with a treaty with the United States to which such 
Tribe was a party, and (b) never allotted the land to a member or 
citizen of the Tribe (collectively ``excluded Indian country lands'').
    The 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.\2\ 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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    \2\ EPA's prior approvals relating to Oklahoma's SIP frequently 
noted that the SIP was not approved to apply in areas of Indian 
country (consistent with the D.C. Circuit's decision in ODEQ v. EPA) 
located in the state. See, e.g., 85 FR 20178, 20180 (April 10, 
2020). Such prior expressed limitations are superseded by the EPA's 
approval of Oklahoma's SAFETEA request.
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    The EPA is proposing to approve updates to the Oklahoma SIP 
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, if this approval is finalized 
as proposed, these SIP revisions will apply to all Indian country 
within the State of Oklahoma, other than the excluded Indian country 
lands, as described above. Because--per the State's request under 
SAFETEA--EPA's October 1, 2020, approval does not displace any SIP 
authority previously exercised by the State under the CAA as 
interpreted in ODEQ v. EPA, the SIP will also apply to any Indian 
allotments or dependent Indian communities located outside of an Indian 
reservation over which there has been no demonstration of tribal 
authority.\3\
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    \3\ In accordance with Executive Order 13990, EPA is currently 
reviewing our October 1, 2020 SAFETEA approval and expects to engage 
in further discussions with tribal governments and the State of 
Oklahoma as part of this review. EPA also notes that the October 1, 
2020 approval is the subject of a pending challenge in Federal 
court. (Pawnee v. Regan, No. 20-9635 (10th Cir.)). Pending 
completion of EPA's review, EPA is proceeding with this proposed 
action in accordance with the October 1, 2020 approval. EPA's final 
action on the approved revisions to the Oklahoma SIP that include 
revisions to OAC 252:100-2-3 and Appendix Q will address the scope 
of the state's program with respect to Indian country, and may make 
any appropriate adjustments, based on the status of our review at 
that time. If EPA's final action on Oklahoma's SIP is taken before 
our review of the SAFETEA approval is complete, EPA may make further 
changes to the approval of Oklahoma's program to reflect the outcome 
of the SAFETEA review.
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IV. Proposed Action

    We are proposing to approve under section 110 of the CAA, the 
December 17, 2021, and January 30, 2023, revisions to the Oklahoma SIP 
to update the incorporation by reference dates for Federal 
requirements. We have determined that these revisions were developed in 
accordance with the CAA and the EPA's regulations, policy, and guidance 
for SIP development.
    The EPA proposes approval of the following revisions to the 
Oklahoma SIP adopted on June 11, 2021, effective September 15, 2021, 
and submitted to the EPA on December 17, 2021:
     Revisions to OAC 252:100-2-3, Incorporation by Reference,
     Repeal of OAC 252:100, Appendix Q, and
     Adoption of new OAC 252:100. Appendix Q.
    The EPA proposes approval of the following revisions to the 
Oklahoma SIP adopted on June 21, 2022, effective September 15, 2022, 
and submitted to the EPA on January 30, 2023:
     Revisions to OAC 252:100-2-3, Incorporation by Reference,
     Repeal of OAC 252:100, Appendix Q, and
     Adoption of new OAC 252:100. Appendix Q.

V. Environmental Justice Considerations

    The EPA reviewed demographic data, which provides an assessment of

[[Page 13757]]

individual demographic groups of the populations living within 
Oklahoma.\4\ The EPA then compared the data to the national average for 
each of the demographic groups. The results of this analysis are being 
provided for informational and transparency purposes. 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 persons in poverty in Oklahoma is 
higher than the national average (14.3 percent versus 11.4 percent). 
The percent of persons aged 25 years and older 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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    \4\ 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 action proposes to approve revisions to the Oklahoma SIP to 
update the incorporation by reference provisions to maintain 
consistency with Federal requirements; thus, enabling the State of 
Oklahoma to implement control strategies and permitting programs. We 
expect that this action, if finalized, will generally achieve emissions 
reductions and contribute to reduced environmental and health impacts 
on all populations in Oklahoma, including people of color and low-
income populations. Further, there is no information in the record 
indicating that this action is expected to have disproportionately high 
or adverse human health or environmental effects on a particular group 
of people.

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 regulations that update Oklahoma's 
incorporation by reference of certain Federal regulations in 40 CFR 
parts 50, 51, and 98 identified and discussed in Section II, The EPA's 
Evaluation, and Section IV, Proposed Action, of this preamble. We have 
made, and will continue to make, these documents generally available 
electronically through www.regulations.gov (please contact the person 
identified in the FOR FURTHER INFORMATION CONTACT section of this 
preamble for more information).

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);
     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).
    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. 
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.'' 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.''
    The air agency did not evaluate environmental justice 
considerations as part of its SIP submittal; the CAA and applicable 
implementing regulations neither prohibit nor require such an 
evaluation. The EPA performed an environmental justice analysis, as is 
described above in the section titled, ``Environmental Justice 
Considerations.'' The analysis was done for the purpose of providing 
additional context and information about this rulemaking to the public, 
not as a basis of the action. Due to the nature of the action being 
taken here, this action is expected to have a neutral to positive 
impact on the air quality of the affected area. In addition, there is 
no information in the record upon which this decision is based 
inconsistent with the stated goal of E.O. 12898 of achieving 
environmental justice for people of color, low-income populations, and 
Indigenous peoples.
    This proposed approval of revisions to the Oklahoma SIP that update 
the incorporation by reference dates for Federal requirements as 
discussed more fully elsewhere in this document will apply, if 
finalized as proposed, to certain areas of Indian country as discussed 
in the preamble, and therefore has tribal implications as specified in 
E.O. 13175 (65 FR 67249, November 9,

[[Page 13758]]

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 engaged with 
tribal governments that may be affected by this action and provided 
information about this action.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen 
dioxide, Ozone, Particulate matter, Reporting and recordkeeping 
requirements, Sulfur oxides, Volatile organic compounds.

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

    Dated: February 28, 2023.
Earthea Nance,
Regional Administrator, Region 6.
[FR Doc. 2023-04487 Filed 3-3-23; 8:45 am]
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