[Federal Register Volume 86, Number 138 (Thursday, July 22, 2021)]
[Proposed Rules]
[Pages 38627-38630]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-15396]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2020-0437; FRL-8698-01-R6]


Air Plan Approval; Oklahoma; Volatile Organic Compound Emissions 
in Nonattainment Areas and Former Nonattainment Areas

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 designee with a letter dated May 7, 2020. The 
submittal covers updates to the Oklahoma SIP, as contained in the 
state's 2019 annual SIP update. Specifically, this action addresses 
revisions to Oklahoma Administrative Code (OAC), Emission of Volatile 
Organic Compounds (VOCs) in Nonattainment Areas and Former 
Nonattainment Areas. There are two Oklahoma counties affected by this 
action: Tulsa County and Oklahoma County.

DATES: Written comments must be received on or before August 23, 2021.

ADDRESSES: Submit your comments, identified by Docket No. EPA-R6-OAR-
2020-0437, at https://www.regulations.gov or via email to 
fuerst.sherry@epa.gov. Follow the online instructions for submitting 
comments. Once submitted, comments

[[Page 38628]]

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 
Ms. Sherry Fuerst, 214-665-6454, fuerst.sherry@epa.gov. 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: Sherry Fuerst, EPA Region 6 Office, 
Infrastructure and Ozone Section, 214-665-6454, fuerst.sherry@epa.gov. 
Out of an abundance of caution for members of the public and our staff, 
the EPA Region 6 office will 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, as there will be a delay in processing 
mail and no courier or hand deliveries will be accepted. 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

    On May 7, 2020, the Secretary of Energy and Environment for the 
State of Oklahoma submitted for EPA review and approval under section 
110 of the CAA and 40 CFR part 51, revisions to the Oklahoma Air 
Quality SIP. The revisions were included in the state's annual SIP 
update for 2019 and consisted of revisions to Subchapters 2 and 39 and 
Appendix Q in the OAC Title 252 Chapter 100, which became effective on 
September 15, 2019. In this action, we note that we are only proposing 
to approve revisions to OAC Title 252 Chapter 100 Subchapter 39 (OAC 
252:100-39) Sections 4, 16, 40, and 41. We are not taking action on 
Subchapter 2 and Appendix Q at this time. The EPA plans to propose 
action on these provisions in a future rulemaking action.
    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 also requires that the EPA not approve 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.
    These rules were promulgated in compliance with the Oklahoma 
Administrative Procedures Act and published in the Oklahoma Register, 
the official state publication for rulemaking actions.

II. The EPA's Evaluation

    In this action, we are proposing to approve revisions to OAC Title 
252 Chapter 100 Subchapter 39 (OAC 252:100-39). Submittal documents for 
Subchapter 39 are available in the docket for this action. ODEQ's May 
7, 2020 submittal is amending the following sections:
    1. 252:100-39-4 to remove an incorrect citation to a revoked state 
rule;
    2. 252:100-39-16 to update the timeframe listed as the non-oxidant 
season, this revision is intended to ensure that the proper controls 
are used during scheduled refinery unit turnarounds during Oklahoma's 
current ozone season;
    3. 252:100-39-40 to correct the dates of Oklahoma's non-oxidant 
season, this revision is intended to ensure that cutback asphalt cannot 
be used during Oklahoma's ozone season; and,
    4. 252:100-39-41 to allow for the use of alternative testing 
methods for leak inspections, to update references used for pressure 
and vapor testing to incorporate the most recent EPA regulations, and 
to update tank truck tag (OAC 252:100-39-41(e)(4)(A)(iv) and (v)) 
requirements to reflect current practices in Tulsa County.
    More information on the proposed changes is available in the 
Technical Support Document prepared in conjunction with this rulemaking 
action. This is a is a revision by revision discussion:
    OAC 252:100, Subchapter 39, Section 4 revision removes an incorrect 
cross reference. The revision removes ``252:100-48'' from a list of 
rules from which facilities are exempted because 252:100-48 has been 
revoked. ODEQ provided notice of the proposed change, announced the 
comment period from December 3, 2018 through January 9, 2019 and posted 
a notice of public hearing in Volume 36, Number 6, page 44 of the 
Oklahoma Register on December 3, 2018. The public hearing was held on 
January 16, 2019, and no comments were received. The revision is 
ministerial in nature. Examination of the record indicates that the 
submitted revision to Subchapter 39, Section 4 is proper and provides 
additional clarity. Thus, we find that the requirements of section 
110(l) of the Act have been satisfied. Therefore, we are proposing to 
approve the submitted revision to Subchapter 39, Section 4.
    OAC 252:100, Subchapter 39, Section 16 revisions update the non-
oxidant season from November 1 through March 31 to December 1 through 
the last day of February. This update is consistent 40 CFR part 58, 
Appendix D, Table D-3 titled ``Ozone Monitoring Season by State''. 
Scheduled refinery unit turnarounds may only be accomplished without 
the controls specified in OAC 252:100-39-16(b)(1) and OAC 252:100-39-
16(b)(2) during non-oxidant seasons. ODEQ provided notice of the 
proposed change, announced the comment period from December 3, 2018 
through January 9, 2019 and notice of a public hearing in Volume 36, 
Number 6, page 44 of the Oklahoma Register on December 3, 2018. The 
public hearing was held on January 16, 2019, and no comments were 
received. The environment will likely benefit from shortening the 
duration of non-oxidant season from 5 months to 3 months (changing from 
November 1 through March 31 to December 1 through the last day of 
February). Examination of the record indicates that the submitted 
revision to Subchapter 39, Section 16 is proper and the revisions will 
strengthen the SIP by requiring control of emissions during turnarounds 
during a time period consistent with the ozone season in Oklahoma. 
Thus, we find that the Oklahoma SIP that the requirements of section 
110(l) of the Act have been satisfied. Therefore, we are proposing to 
approve the submitted revision to Subchapter 39, Section 16.
    OAC 252:100, Subchapter 39, Section 40 revisions are to amend rules 
regulating the use of cutback asphalt to correct the dates of 
Oklahoma's non-oxidant season, which should be December 1 through the 
last day of February. This purpose of this proposed

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rule is to ensure that cutback asphalt cannot be used during Oklahoma's 
ozone season. This revision is consistent with 40 CFR part 58, Appendix 
D, Table D-3 titled ``Ozone Monitoring Season by State''. ODEQ provided 
notice of the proposed change, announced the comment period from 
September 4, 2018 through October 5, 2018, and notice of a public 
hearing in Volume 35, Number 24, page 705 of the Oklahoma Register on 
September 4, 2018. The public hearing was held on October 10, 2018, and 
no comments were received. The environment will benefit by restricting 
the time of year cutback asphalt can be used. Examination of the record 
indicates that the submitted revision to Subchapter 39, Section 40 is 
proper, the revisions will strengthen the SIP preventing emissions from 
the application of cutback asphalt during the time of year when ozone 
formation is most likely. Thus, we find that the Oklahoma SIP that the 
requirements of section 110(l) of the Act have been satisfied. 
Therefore, we are proposing to approve the submitted revision to 
Subchapter 39, Section 40.
    Several changes were made to OAC 252:100, Subchapter 39, Section 
41. A typographical error was corrected in subsection 41(c)(5). In 
subsection 41(d)(3), reference was made to a test method in an EPA 
Control Technique Guideline (CTG) from 1978. This reference was changed 
to reference the EPA Test Method 27 contained in 40 CFR part 60 as the 
applicable procedure for the testing requirement for tank leak 
tightness. Several modifications were made to subsection 41(e). 
Subsection 41(e) applies to Tulsa County only. Subsections 41(e)(2)(B) 
and (E) were modified by removing a thirty-year-old effective date that 
is no longer necessary. Also, an alternative work practice for 
monitoring equipment for leaks that is consistent with 40 CFR 60.18(g) 
through 60.18(i) was added. The revision also states that leaks 
detected by EPA Test Method 21 or by an alternative work practice shall 
be repaired within 15 days. Revisions to subsection 41(e)(4)(A)(iv) 
update the reference to the portion of the rule that specifies the 
proper pressure testing which changed as a result of reorganizing the 
section. As part of reorganizing the section, subsection 
41(e)(4)(A)(vi) was moved to subsection 41(e)(4)(B)(i), and other 
references in subsection 41(e)(4) were changed to align the references 
with the reorganization. Subsection 41(e)(4)(B)(ii) was updated to 
state that the vapor tightness test must be consistent with EPA Test 
Method 27 and updated what is considered a passing test as defined by 
EPA Test Method 27.
    ODEQ provided notice of the proposed changes, announced the comment 
period from September 4, 2018 through October 5, 2018, and hearing 
schedule in Volume 35, Number 24, page 705 of the Oklahoma Register on 
September 4, 2018. The public hearing was held on October 10, 2018, and 
no comments were received. The revisions are ministerial in nature, 
update references consistent with federal regulations or adopt use of 
EPA Test Methods. Examination of the record indicates that the 
submitted revision to Subchapter 39, Section 41 is proper and do not 
relax the SIP. Thus, we find that the requirements of section 110(l) of 
the Act have been satisfied. Therefore, we are proposing to approve the 
submitted revision to Subchapter 39, Section 41.

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).\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'').
    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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    As explained above, the EPA is proposing to approve revisions to 
the Oklahoma SIP that include revisions to OAC Title 252 Chapter 100 
Subchapter 39 (OAC 252:100-39) Sections 4, 16, 40, and 41, which will 
apply in Tulsa and Oklahoma Counties. 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 Tulsa and Oklahoma 
Counties, 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 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 Subchapter 39 
(OAC 252:100-39) Sections 4, 16, 40, and 41 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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[[Page 38630]]

IV. Proposed Action

    In this action, we are proposing to approve revisions to OAC 
252:100-39, Emission of VOCs in Nonattainment Areas and Former 
Nonattainment Areas, in Section 4 (Exemptions), Section 16 (Petroleum 
refinery process unit turnaround), Section 40 (Cutback asphalt), and 
Section 41 (Storage, loading and transport/delivery of VOCs) as 
submitted to us by a letter dated May 20, 2020 (Submittal). The 
submittal covers Oklahoma's 2019 regulatory update. We are proposing to 
approve these revisions in accordance with section 110 of the Act.

V. 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, as described in the 
Proposed Action section above. 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).

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 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);
     Is not an Executive Order 13771 (82 FR 9339, February 2, 
2017) regulatory action because SIP approvals are exempted under 
Executive Order 12866;
     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 proposal to approve revisions to the Oklahoma SIP that include 
amendments to OAC Title 252 Chapter 100 Subchapter 39 (OAC 252:100-39) 
Sections 4, 16, 40, and 41 will apply, if finalized as proposed, to 
certain areas of Indian country in Tulsa and Oklahoma counties 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, Reporting and recordkeeping 
requirements, Volatile organic compounds.

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

    Dated: July 15, 2021.
David Gray,
Acting Regional Administrator, Region 6.
[FR Doc. 2021-15396 Filed 7-21-21; 8:45 am]
BILLING CODE 6560-50-P


