[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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