[Federal Register Volume 88, Number 113 (Tuesday, June 13, 2023)]
[Proposed Rules]
[Pages 38433-38436]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-12614]


-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2023-0090; FRL-11014-01-R6]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: Pursuant to the Federal Clean Air Act (CAA or the Act), the 
Environmental Protection Agency (EPA) is proposing to approve portions 
of the revisions to the State Implementation Plan (SIP) for Oklahoma 
submitted by the State of Oklahoma on January 30, 2023. This action 
addresses amendments to Subchapter 37, Control of Emission of Volatile 
Organic Compounds (VOCs) and Subchapter 39, Emission of Volatile 
Organic Compounds (VOCs) in Nonattainment Areas and Former 
Nonattainment Areas, in the Oklahoma Administrative Code Title 252, 
Chapter 100, Oklahoma Department of Environmental Quality to improve 
the clarity and consistency of the Oklahoma SIP.

DATES: Written comments must be received on or before July 13, 2023.

ADDRESSES: Submit your comments, identified by Docket No. EPA-R06-OAR-
2023-0090, 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

[[Page 38434]]

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]. 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 the EPA for approval and any changes a state makes to the 
approved SIP also must be submitted to the EPA for approval.
    On January 24, 2023, the Secretary of Energy and Environment for 
the State of Oklahoma (``the State'') submitted revisions of the 
Oklahoma SIP to the EPA. The revisions address Subchapters 2, 8, 37, 
39, and Appendix Q in the Oklahoma Administrative Code (OAC) Title 252, 
Chapter 100. The submitted revisions to Subchapters 37 and 39 are 
severable and in this action, we are proposing to approve the revisions 
to Subchapters 37 (Control of Emission of Volatile Organic Compounds 
(VOCs), and 39 (Emission of Volatile Organic Compounds (VOCs) in 
Nonattainment Areas and Former Nonattainment Areas). We are addressing 
the revisions to Subchapter 2 and Appendix Q in a separate action \1\ 
and plan to address the revisions to Subchapter 8 in separate future 
action.
---------------------------------------------------------------------------

    \1\ See 88 FR 13755 (March 6, 2023).
---------------------------------------------------------------------------

    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

Subchapters 37 and 39

    In this action, we are proposing to approve revisions to OAC 
252:100, Subchapters 37 and 39 (OAC 252:100-37 and 252:100-39). The 
submitted revisions are available in the docket for this action. A 
summary of the State's submitted revisions follows.
    1. OAC 252:100-37-16 (Loading of VOC) revises OAC 252:100-37-16(c). 
The revision makes clear the Department's long standing interpretation 
that loading operations from condensate tanks at natural gas compressor 
stations are not considered loading facilities for the purpose of this 
section, and thus are not subject to the requirements of this section.
    2. OAC 252:100-39-45 (Petroleum (solvent) Dry Cleaning) amendment 
to correct the approval process for facilities that incinerate 
petroleum solvents dry cleaning filters and removes the outdated 
compliance schedule. Section 45 is specific to petroleum solvent dry 
cleaners in Tulsa County and the revision clarifies that incineration 
of petroleum dry cleaning filters would only be allowed if permitted by 
the appropriate regulatory entity.
    The revisions to OAC 252:100-37 clarify the State's interpretation 
of loading facility as a facility whose main purpose is for the 
loading/unloading of VOCs in relatively large quantities using 
specialized equipment. Although loading operations occur at compressor 
stations, the facility itself is not considered a loading facility and 
was therefore not intended to be covered by these requirements. The 
transfer of condensate and produced water from atmospheric storage 
tanks into individual tanker trucks at a compressor station is a 
different type of operation (both in scale and in the equipment used). 
For example, applicable loading facilities include the bulk transfer of 
gasoline at a pipeline terminal/bulk gasoline distribution system.
    There are several other provisions in Chapter 100 that apply to 
compressor stations. The requirements in 252:100-37-15(b) for submerged 
fill or a vapor recovery system would apply to most condensate tanks at 
compressor stations since a typical tank is about 400 barrels (16,800 
gallons) and for compressor stations that have effluent water 
separators 252:100-37-37 would apply. Condensate tanks at compressor 
stations are covered under other parts of Subchapter 37, namely 
252:100-37-15, in addition to any federal NSPS that may also apply such 
as Subpart OOOO.
    Examination of the revisions indicates that the submitted revision 
to Subchapter 39-45 is proper and provides additional clarity. The 
specification that incineration of petroleum dry cleaning filters would 
only be allowed if permitted by the appropriate regulatory entity 
updates this provision to appropriately address existing law for 
incineration facilities in Oklahoma. The removal of an outdated 
deadline streamlines the SIP for additional clarity.
    The submitted revisions to OAC 252:100-37 and 39 add clarity and 
consistency to the Loading of VOC and Petroleum (solvent) Dry Cleaning 
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 the submitted these 
revisions to Subchapter 37, Section 16 and Subchapter 39, Section 45.

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

[[Page 38435]]

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).\2\
---------------------------------------------------------------------------

    \2\ 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.
---------------------------------------------------------------------------

    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.\3\ 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).\4\
---------------------------------------------------------------------------

    \3\ 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.
    \4\ On December 22, 2021, 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. EPA expects to have further discussions with 
tribal governments and State of Oklahoma as part of this 
reconsideration. 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.). EPA may make 
further changes to the approval of Oklahoma's program to reflect the 
outcome of the proposed withdrawal and reconsideration of the 
October 1, 2020, SAFETEA approval. To the extent any change occurs 
in the scope of Oklahoma's SIP authority in Indian country before 
finalization of the proposed rule, such a change may affect the 
scope of the EPA's final action on the proposed rule.
---------------------------------------------------------------------------

    As explained earlier in this action, the EPA is proposing to 
approve revisions to portions of the Oklahoma SIP that were submitted 
by the State of Oklahoma on January 24, 2023. More specifically, we are 
proposing to approve a revision providing clarification to OAC 252:100-
37-16 of Subchapter 37, Control of Emission of Volatile Organic 
Compounds (VOCs) and amending language and correcting approval process 
for OAC 252:100-39-45 of Subchapter 39, Emission of Volatile Organic 
Compounds (VOCs) in Nonattainment Areas and Former Nonattainment Areas, 
in the Oklahoma Administrative Code Title 252, Chapter 100, Oklahoma 
Department of Environmental Quality 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, SAFETEA 
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\
---------------------------------------------------------------------------

    \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 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.
---------------------------------------------------------------------------

IV. Proposed Action

    We are proposing to approve a portion of the revisions to the 
Oklahoma SIP, submitted to us on January 30, 2023. Specifically, we are 
proposing to approve revisions to OAC 252:100, Subchapters 37 and 39. 
We are proposing to approve these revisions in accordance with section 
110 of the Act.

V. Environmental Justice Considerations

    EPA reviewed demographic data, which provides an assessment of 
individual demographic groups of the populations living within 
Oklahoma. 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 (38.5 percent versus 43.1 percent). Within 
people of color, the percent of the population that is Black or African 
American alone is less than the national average (7.8 percent versus 
13.6 percent) and the percent of the population that is American 
Indian/Alaska Native is greater than the national average (9.7 percent 
versus 1.3 percent). The percent of the population that is two or more 
races is greater than the national average (6.6 percent versus 2.9 
percent). The percent of people living in poverty in Oklahoma is 
greater than the national average (15.6 percent versus 11.6 percent).
    The proposed approval strengthens the SIP by adding clarity and 
consistency to the SIP. We expect that this action will generally be 
neutral or 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.
    The ODEQ did not evaluate environmental justice considerations as 
part of their SIP submittal; the CAA and applicable implementing 
regulations neither prohibit nor require such an evaluation. EPA 
performed an

[[Page 38436]]

environmental justice analysis,\6\ as is described above. 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.
---------------------------------------------------------------------------

    \6\ Our Environmental Justice Considerations are posted in the 
docket.
---------------------------------------------------------------------------

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 as 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
     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.''
    Oklahoma 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. 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. 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 people.
    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: June 7, 2023.
Earthea Nance,
Regional Administrator, Region 6.
[FR Doc. 2023-12614 Filed 6-12-23; 8:45 am]
BILLING CODE 6560-50-P


