88 FR 23 pgs. 7384-7388 - Air Plan Approval; Oklahoma; Revisions to Air Pollution Control Rules
Type: PRORULEVolume: 88Number: 23Pages: 7384 - 7388
Pages: 7384, 7385, 7386, 7387, 7388Docket number: [EPA-R06-OAR-2021-0214; FRL-9407-01-R6]
FR document: [FR Doc. 2023-02293 Filed 2-2-23; 8:45 am]
Agency: Environmental Protection Agency
Official PDF Version: PDF Version
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R06-OAR-2021-0214; FRL-9407-01-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 revisions to the State Implementation Plan (SIP) for Oklahoma submitted by the State of Oklahoma on February 9, 2021. The submitted revisions address Open Burning, Control of Emission of Volatile Organic Compounds (VOC), and Specialty Coatings VOC Content Limits.
DATES:
Written comments must be received on or before March 6, 2023.
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ADDRESSES:
Submit your comments, identified by Docket No. EPA-R6-OAR-2021-0214, at https://www.regulations.gov or via email to shahin.emad@epa.gov. 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, shahin.emad@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:
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, shahin.emad@epa.gov. For information on the revisions addressing open burning, please contact Ms. Carrie Paige, Region 6 Office, Infrastructure and Ozone Section, 214-665-6521, paige.carrie@epa.gov. Out of an abundance of caution for members of the public and staff, the EPA Region 6 office may be closed to the public to reduce the risk of transmitting COVID-19. 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 EPA for approval and any changes a state makes to the approved SIP also must be submitted to the EPA for approval.
The Secretary of Energy and Environment for the State of Oklahoma ("the State") submitted revisions of the Oklahoma SIP to the EPA on February 9, 2021, which was supplemented on April 30, 2021. 1 The revisions address Subchapters 1, 2, 13, 37, and 39, and Appendices N and Q in the Oklahoma Administrative Code (OAC) Title 252, Chapter 100. In this action, we are proposing to approve the revisions to OAC Title 252 Chapter 100 Subchapters 13 (Open Burning), 37 (Control of Emission of Volatile Organic Compounds (VOCs), 39 (Emission of Volatile Organic Compounds (VOCs) in Nonattainment Areas and Former Nonattainment Areas), and Appendix N (Specialty Coatings VOC Content Limits). We approved the revisions to Subchapters 1, 2, and Appendix Q in a separate rulemaking action. 2
Footnotes:
1 ?The cover letters for these submittals were dated February 2, 2021, and April 29, 2021, and are in the docket for this rulemaking action.
2 ?See 87 FR 50263 (August 16, 2022).
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
A. Subchapter 13 (Open Burning)
Subchapter 13 (denoted OAC 252:100-13) imposes requirements for controlling open burning of refuse, and other combustible materials. A detailed description of the submitted revisions and our evaluation is provided in the Technical Support Document (TSD), posted in the docket for this action. A summary of the submitted revisions follows.
1. Revisions to OAC 252:100-13-2 (Definitions) add "Clean wood waste" to the entry for "Wood waste". The revisions also replace the terms "Ozone Watch" and "Particulate Matter Watch" with "Ozone Alert" and "Particulate Matter Alert" to be consistent with terms used by cities in Oklahoma.
2. Revisions to OAC 252:100-13-5 (Open burning prohibited) add a reference to new section 252:100-13-8.1 (Transported material) and moves one sentence addressing transported material to new section 252:100-13-8.1.
3. Revisions to OAC 252:100-13-7 (Allowed open burning) add requirements to remove materials containing asbestos, asphalt, and lead in structures used for fire training. The revisions also require that fires set for land clearing operations use an air curtain incinerator (ACI) in areas that are or have been designated as nonattainment or in a metropolitan statistical area (MSA) with a population greater than 900,000 people. The revisions also add "Certain medical marijuana plant refuse" that are consistent with the Oklahoma Statutes at Section 428 (Title 63). These revisions strengthen the current SIP rules and are consistent with Federal regulations at 40 CFR 60 for ACI, and at 40 CFR 61.145, which addresses the National Emission Standards for Hazardous Air Pollutants (NESHAP) for asbestos-containing materials.
4. Revisions to 252:100-13-8 (Use of air curtain incinerators) strengthen the current SIP by requiring the use of an ACI in areas that are or have been designated as nonattainment, or in a MSA with a population greater than 900,000 people; and limiting the materials that can be accepted for burning in such ACIs.
5. Revisions to 252:100-13-8.1 (Transported material)-this entire section is new to the SIP and strengthens the SIP by identifying what, where, and how materials are allowed to be transported for open burning.
[top] 6. Revisions to 252:100-13-9 (General conditions and requirements allowed for open burning) replace "An Ozone or PM Watch" with "An Ozone or PM
The submitted revisions to 252:100-13 add clarity, consistency, and stringency to the open burning 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 these revisions.
B. Subchapters 37 and 39
In an earlier submitted SIP revision, the State revised the name of Subchapter 37 from "Control of Emission of Organic Materials" to "Control of Emission of Volatile Organic Compounds (VOC)" and revised the name of Subchapter 39 from "Emission of Organic Materials in Nonattainment Areas" to "Emission of Volatile Organic Compounds (VOCs) in Nonattainment Areas and Former Nonattainment Areas." However, we inadvertently left these changes out of the amendatory table in our direct final action at 73 FR 79400 (December 29, 2008). These name changes will be made in the amendatory table in the final action.
In this action, we are also proposing to approve revisions to OAC 252:100, Subchapters 37 and 39 (OAC 252:100-37 and 252:100-39) and Appendix N. The submitted revisions are available in the docket for this action. The State's February 9, 2021, submittal is amending the following sections:
1. 252:100-37-27 to add a new section 27, Control of emission of VOCs from aerospace industries coatings operations, for new and existing aerospace vehicle and component coating operations at aerospace manufacturing, rework and/or repair facilities statewide.
2. 252:100-39-47 to update the language of section 47 to include changes to the 40 CFR part 63, subpart GG, Aerospace NESHAP, clarify regulatory language and make minor clerical corrections.
3. 252:100-39 is amended by revoking section 49, Manufacturing of reinforced plastic products.
4. 252:100-39, a new Appendix N, Specialty Coatings VOC Content Limits, is added to the SIP to provide restrictions on the VOC content of coatings used in the aerospace industry. Appendix N list of coatings and VOC content matches Table 1 of the National Emission Standards for Hazardous Air Pollutants (NESHAP) 40 CFR 63 Subpart GG and specifies its intended use for compliance with sections 252:100-37-27 and 252:100-39-47.
More complete information on the proposed changes, including minor typographical and citation changes is available in the TSD prepared in conjunction with this rulemaking action. Below is a summary of the revision-by-revision discussion:
OAC 252:100-37-27 is amended to add a new section controlling emissions of VOCs from aerospace industries coatings operations statewide. The section applies to new and existing aerospace vehicle and component coating operations at aerospace manufacturing, rework and/or repair facilities. Examining the new section indicates that the submitted revision not only would reference certain limits specified in the aerospace NESHAP, 40 CFR 63 Subpart GG, but will also strengthen the SIP by requiring control of VOC emissions from aerospace industry throughout the State of Oklahoma. Therefore, we are proposing to approve the submitted revisions to Subchapter 37, Section 27.
OAC 252:100-39-47 is amended to update the language of section 47 to incorporate changes to the 40 CFR part 63, Subpart GG, Aerospace NESHAP, clarify regulatory language and make minor clerical corrections. Examination of the revisions indicates that the submitted revision to Subchapter 39-47 is proper and provides additional clarity. Thus, we find that the requirements of section 110(l) of the Act are satisfied. Therefore, we are proposing to approve the submitted revision to Subchapter 39, Section 47.
OAC 252:100-39 is amended by revoking section 49, manufacturing of fiberglass reinforced plastic products. Section 49 was implemented in 1989 to provide VOC reductions in Tulsa County, and since EPA finalized the NESHAP for new and existing reinforced plastic composites production facilities, codified at 40 CFR 63 Subpart WWWW (Subpart WWWW) in 2003, the duality of applying section 49 and Subpart WWWW to the same source is no longer practical. The provisions of Subpart WWWW are incorporated by reference into the state's rules under OAC 252:100-2-3. Subpart WWWW provides equal or greater VOC reductions to section 49 and is applicable to sites statewide.
OAC 252:100-39, A new Appendix N, Specialty Coatings VOC Content Limits, lists the VOC content limits allowed for use in the State at affected facilities. These limits are needed to provide for effective compliance with sections OAC 252:100-37-27 and OAC 252:100-39-47. We find that the new Appendix N restricts VOC content by matching the VOC limits specified in Table 1-Specialty Coatings-HAP and VOC Content Limits, as set forth in the aerospace NESHAP 40 CFR part 63, subpart GG. Because the addition of Appendix N adds new requirements, we would not expect an increase in emissions and therefore no interference with any applicable requirement concerning attainment and reasonable further progress (as defined in the CAA section 171), or any other applicable requirement of the CAA.
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). 3
Footnotes:
3 ?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.
[top] 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
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. 4 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).
Footnotes:
4 ?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.
As explained earlier in this action, the EPA is proposing to approve revisions to the Oklahoma SIP that will apply state-wide and therefore have tribal implications as specified in Executive Order (E.O.) 13175. 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, 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
Footnotes:
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 Subchapters 13, 37, and 39 and Appendix N 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. Environmental Justice Considerations
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. The EPA defines environmental justice 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." The 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."? 6 The EPA is providing additional analysis of environmental justice associated with this action for the purpose of providing information to the public. 7 The EPA found, based on the EJScreen analyses, that this proposed action will not have disproportionately high or adverse human health or environmental effects on communities with EJ concerns. The revisions strengthen the SIP by reducing air quality impacts from specific operations statewide and thus, benefit the public. For example, as described earlier in this action, the removal of specific materials from structures used for fire training and the use of the ACI are controls that improve air quality. The submitted revisions do not relax provisions in the approved SIP and are consistent with Federal rules, including, but not limited to 40 CFR 60, 40 CFR 61, and 40 CFR 63.
Footnotes:
6 ? See https://www.epa.gov/environmentaljustice/learn-about-environmental-justice.
7 ?Our analysis is provided in the docket for this rulemaking action.
V. Proposed Action
We are proposing to approve revisions to the Oklahoma SIP, submitted to us on February 9, 2021. Specifically, we are proposing to approve revisions to OAC 252:100, Subchapters 13, 37, and 39, and Appendix N. We are proposing to approve these revisions in accordance with section 110 of the Act.
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 SIP regulations, as described in Section II of this proposed action. We have made, and will continue to make, these documents generally available electronically through www.regulations.gov (please contact the persons 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);
[top] • 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 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: January 30, 2023.
Earthea Nance,
Regional Administrator, Region 6.
[FR Doc. 2023-02293 Filed 2-2-23; 8:45 am]
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