[Federal Register Volume 88, Number 80 (Wednesday, April 26, 2023)]
[Rules and Regulations]
[Pages 25283-25285]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-08615]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2016-0674; FRL-10596-02-R6]


Oklahoma; Excess Emission and Malfunction Reporting Requirements

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: Pursuant to the Federal Clean Air Act (CAA, the Act), the 
Environmental Protection Agency (EPA) is approving a State 
Implementation Plan (SIP) revision submitted by the State of Oklahoma 
through the Secretary of Energy & Environment on November 7, 2016. The 
revision was submitted in response to a finding of substantial 
inadequacy and SIP call as published by EPA on June 12, 2015, 
concerning excess emissions during periods of startup, shutdown, and 
malfunction (SSM) events. EPA is approving the SIP revision and finds 
that it corrects the inadequacies identified in Oklahoma's SIP in the 
June 12, 2015 SIP call.

DATES: This rule is effective on May 26, 2023.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID No. EPA-R06-OAR-2016-0674. 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: Mr. Alan Shar, Regional Haze and 
SO2 Section, EPA Region 6 Office, 1201 Elm Street, Suite 
500, Dallas, Texas 75270, (214) 665-6691, [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 
February 3, 2023 (88 FR 7378) proposal. In that document we proposed to 
approve a revision to the Oklahoma SIP submitted on November 7, 2016, 
in response to EPA's national SIP call of June 12, 2015, concerning 
excess emissions during periods of SSM. Specifically, we proposed to 
approve the removal of EPA-approved Subchapter 9 Excess Emission and 
Malfunction Reporting Requirements, sections OAC 252:100-9-1, OAC 
252:100-9-2, 252:100-9-3(a) and (b), OAC 252:100-9-4, OAC 252:100-9-5, 
and OAC 252:100-9-6 from the Oklahoma SIP. We also proposed to 
determine that the November 7, 2016, SIP revision corrects the 
substantial inadequacies with the Oklahoma SIP identified in the June 
12, 2015 SIP call.

II. Response to Comments

    The public comment period for our proposed approval and 
determination ended on March 6, 2022, and no adverse comments were 
received. We received one comment supporting removal of sections OAC 
252:100-9-1, OAC 252:100-9-2, 252:100-9-3(a) and (b), OAC 252:100-9-4, 
OAC 252:100-9-5, and OAC 252:100-9-6 from the Oklahoma SIP. Therefore, 
we are finalizing our approval action as proposed.

III. Impacts on Areas of Indian Country

    Section III of our February 3, 2023 (88 FR 7378) proposal discusses 
in detail the background for EPA's October 1, 2020 approval of 
Oklahoma's request under the Safe, Accountable, Flexible, Efficient 
Transportation Equity Act of 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 EPA 
for areas outside of Indian country.\1\
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    \1\ 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 any 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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[[Page 25284]]

    As explained below, the EPA is finalizing a revision to the 
Oklahoma SIP submitted by the State of Oklahoma on November 7, 2016. 
More specifically, we are approving the removal of OAC 252:100-9-1, OAC 
252:100-9-2, OAC 252:100-9-3(a) and (b), OAC 252:100-9-4, OAC 252:100-
9-5, and OAC 252:100-9-6 of Subchapter 9 Excess Emission and 
Malfunction Reporting Requirements of the Oklahoma SIP. Consistent with 
the D.C. Circuit's decision in ODEQ v. EPA and with 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.\2\ 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.
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    \2\ 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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IV. Final Action

    The EPA is approving a revision to the Oklahoma SIP submitted on 
November 7, 2016, in response to EPA's national SIP call of June 12, 
2015, concerning excess emissions during periods of SSM. Specifically, 
we are approving the removal of sections OAC 252:100-9-1, OAC 252:100-
9-2, 252:100-9-3(a) and (b), OAC 252:100-9-4, OAC 252:100-9-5, and OAC 
252:100-9-6 of Subchapter 9 Excess Emission and Malfunction Reporting 
Requirements from the Oklahoma SIP. We are approving these revisions in 
accordance with section 110 of the Act. EPA is also determining that 
this SIP revision corrects the deficiencies in Oklahoma's SIP 
identified in the June 12, 2015 SIP call.

V. Environmental Justice Considerations

    As stated in the proposal and for informational purposes only, EPA 
provided additional information regarding this action and potentially 
impacted populations. EPA reviewed individual demographic data, 
education level, and percent of people living below the poverty level 
in Oklahoma and then compared the data to the national average.\3\ As 
discussed in the proposal, this action is intended to ensure that all 
communities and populations across Oklahoma, and downwind areas, 
including people of color and low-income and indigenous populations 
overburdened by pollution, receive the full human health and 
environmental protection provided by the CAA through the removal of 
director discretion provisions that have interfered with the 
enforcement structure of the CAA by raising inappropriate impediments 
to enforcement by states, the EPA, or citizens.
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    \3\ Section V, February 3, 2023 (88 FR 7380).
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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 removing the incorporation by reference of Subchapter 
9 Excess Emission and Malfunction Reporting in 40 CFR 52.1960, as 
described in the Final Action 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 EPA for 
removal from the Oklahoma SIP, have been removed from incorporation by 
reference by EPA into that plan, are no longer federally enforceable 
under sections 110 and 113 of the CAA as of the effective date of the 
final rulemaking of EPA's approval, and incorporation by reference will 
be removed 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.
     This approval of a revision to the Oklahoma SIP removing 
provisions providing discretionary exemptions from excess emission 
violations as discussed more fully in our proposal will apply to 
certain areas of Indian country as discussed in the preamble, and 
therefore has tribal implications as specified in E.O. 13175 (65 FR 
67249, November 9, 2000). However, this action will neither impose 
substantial direct compliance costs on federally recognized tribal 
governments, nor preempt tribal law. This action will not impose 
substantial direct compliance costs on federally recognized tribal 
governments because no actions will be required of tribal governments. 
This action will also not preempt tribal law as no Oklahoma tribe 
implements a regulatory program under the CAA, and thus does not have 
applicable or related tribal laws. Consistent with the EPA Policy on 
Consultation and Coordination with Indian Tribes (May 4, 2011), the EPA 
held a virtual

[[Page 25285]]

consultation meeting with the Muscogee (Creek) Nation of Oklahoma on 
February 14, 2023, and provided additional information concerning this 
action.
     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. 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 by 
removal of director discretion provisions of the Oklahoma SIP. 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 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 June 26, 2023. 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: April 17, 2023.
Earthea Nance,
Regional Administrator, Region 6.


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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

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1. The authority citation for part 52 continues to read as follows:

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

Subpart LL--Oklahoma


Sec.  52.1920  [Amended]

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2. In Sec.  52.1920, the table in paragraph (c) entitled ``EPA Approved 
Oklahoma Regulations'' is amended by removing the heading ``Subchapter 
9 Excess Emission and Malfunction Reporting Requirements'' and the 
entries for 252:100-9-1 through 252:100-9-6.

[FR Doc. 2023-08615 Filed 4-25-23; 8:45 am]
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