Air Plan Approval; Oklahoma; Updates to the General SIP and New Source Review Permitting Requirements

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

Pursuant to the Federal Clean Air Act (CAA or the Act), the Environmental Protection Agency (EPA) is approving identified portions of revisions to the State Implementation Plan (SIP) for Oklahoma submitted by the State of Oklahoma designee by letters dated May 16, 1994; July 26, 2010; January 8, 2018; May 16, 2018; and December 19, 2018, and as clarified by letter dated May 16, 2018. This action addresses submitted revisions to the Oklahoma SIP pertaining to the incorporation by reference of federal requirements, updates to the general SIP provisions, and updates to the New Source Review (NSR) permit programs to address public notice and modeling requirements, including certain statutory provisions.

DATES:

This rule is effective on May 11, 2020.

ADDRESSES:

The EPA has established a docket for this action under Docket ID No. EPA-R06-OAR-2018-0208. 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 and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically through https://www.regulations.gov or in hard copy at the EPA Region 6 Office, 1201 Elm Street, Suite 500, Dallas, Texas 75270.

FOR FURTHER INFORMATION CONTACT:

Adina Wiley, EPA Region 6 Office, Air Permits Section, 1201 Elm Street, Suite 500, Dallas, TX 75270, 214-665-2115, wiley.adina@epa.gov. To inspect the hard copy materials, please schedule an appointment with Ms. Adina Wiley or Mr. Bill Deese at 214-665-7253.

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 December 3, 2019 proposal (84 FR 66103). In that document we proposed to approve revisions to the Oklahoma SIP submitted on May 16, 1994; July 26, 2010; January 8, 2018; May 16, 2018; and December 19, 2018, and as clarified by letter dated May 16, 2018. The revisions include the incorporation by reference dates for federal requirements and updates to the NSR Prevention of Significant Deterioration (PSD) and Nonattainment NSR permitting programs to maintain consistency with federal requirements. Our proposal included an analysis of these provisions and made a preliminary determination that the revisions were developed in accordance with the CAA and EPA's regulations, policy, and guidance for SIP development and NSR permitting.

We received one relevant comment on our proposed approval; the comment and our response are presented below.

II. Response to Comments

Comment: The commenter stated that the EPA needs to be clearer when it is approving regulations into the SIP, especially when acting on multiple SIP submittals at once. As an example, the commenter noted that the EPA appears to be trying to approve the January 8, 2018, and December 19, 2018 versions of Oklahoma Administrative Code (OAC) 252:100, Subchapter 2 and Appendix Q, both of which incorporate by reference federal rules as of a date certain. The commenter maintained that the EPA cannot approve both versions simultaneously, because the SIP can only incorporate by reference one version of the federal rules at a time. The commenter asserted that the EPA must find all instances of overlapping rules in all the SIP submissions and only approve one. Once the EPA decides which of the overlapping rules should be approved (i.e., which submission is more recent), the commenter stated that the EPA must then disapprove the older versions of the rule as moot. The commenter concluded that the EPA approval of multiple overlapping SIPs would simply confuse the public.

Response: We agree with the commenter that action on multiple SIP submittals in a single rulemaking can present unique challenges; however, we present the following discussion in order to clarify our action and ensure the commenter, as well as the public, that we are approving only one version of each State regulation addressed by this action, as identified in the amendatory language included below. The Technical Support Document (TSD) associated with this rulemaking identifies each time the State regulatory section has been revised and submitted by Oklahoma as a proposed SIP revision. For each submission, our TSD provides a line-by-line evaluation of whether the submitted revision is approvable under federal requirements. Where a section has been revised multiple times, our TSD will show these multiple submissions side-by-side with a corresponding evaluation as to the approvability of the revisions. The amendatory language included in this final rule revises the Oklahoma SIP at 40 CFR 52.1920 based on the analysis presented in our TSD and the December 3, 2019 proposal. For example, the table at 40 CFR 52.1920(c) titled “EPA Approved Oklahoma Regulations” identifies each component of the Oklahoma SIP by the state citation, name of the section, state effective date, date and citation of EPA's final approval, and any comments pertinent to that section. Finally, the commenter is incorrect in stating that the EPA must disapprove older versions of the submitted rules as moot. As demonstrated in the TSD, the sequential Oklahoma regulations build on the earlier revisions. To disapprove older submittals as moot would be contrary to the State's intended rulemaking. No changes have been made as a result of this comment.

III. Final Action

We are approving the following as revisions to the Oklahoma SIP:

• Removal of Regulation 3.8, adopted on March 30, 1994, submitted May 16, 1994;
• New OAC 252:100-8-36.1, Public Participation, adopted on April 28, 2006, effective on June 15, 2006, submitted July 16, 2010;
• Submitted on January 8, 2018:

○ Revisions to OAC 252:100-1-3, Definitions, adopted on June 13, 2017 and effective September 15, 2017;

○ Revisions to OAC 252:100-2-3 and Appendix Q for Incorporation by Reference, adopted on June 13, 2017 and effective September 15, 2017;

○ Revisions to OAC 252:100-8-31, Definitions, adopted on June 13, 2017 and effective September 15, 2017;

○ Revisions to OAC 252:100-8-33, Exemptions, adopted on June 13, 2017 and effective September 15, 2017;

○ Revisions to OAC 252:100-8-35, Air quality impact evaluation, adopted on June 13, 2017 and effective September 15, 2017; and

○ Revisions to OAC 252:100-8-51.1, Emissions reductions and offsets, adopted on June 13, 2017 and effective September 15, 2017.

• Submitted on May 16, 2018:

○ Revisions to OAC 252:4-1-2, Definitions, adopted on June 9, 2016, effective September 15, 2016;

○ Revisions to OAC 252:4-1-3, Organization, adopted on April 25, 2013, effective July 1, 2013, and revisions adopted on June 9, 2016, effective September 15, 2016;

○ Revisions to OAC 252:4-1-5, Availability of a record, adopted on May 6, 2005, effective June 15, 2005, and revisions adopted on April 25, 2013, effective July 1, 2013;

○ Revisions to OAC 252:4-1-6, Administrative fees, adopted on May 6, 2005, effective June 15, 2005;

○ Revisions to OAC 252:4-3-1, Meetings, adopted on March 27, 2007, effective June 15, 2007;

○ Revisions to OAC 252:4-7-5, Fees and fee refunds, adopted on June 13, 2017, effective September 15, 2017;

○ Revisions to OAC 252:4-7-13, Notices, adopted on March 25, 2003, effective June 1, 2003, except for OAC 252:4-7-13(g)(4); and revisions adopted June 13, 2017, effective September 15, 2017;

○ Revisions to OAC 252:4-7-15, Permit issuance or denial, adopted on May 28, 2002, effective June 1, 2002, and revisions adopted April 25, 2013, effective July 1, 2013;

○ Revisions to OAC 252:4-7-18, Pre-issuance permit review and correction, adopted April 25, 2013, effective July 1, 2013;

○ New OAC 252:4-7-20, Agency review of final permit decision, adopted April 25, 2013, effective July 1, 2013;

○ Revisions to OAC 252:4-7-32, Air quality applications—Tier I, adopted March 25, 2003, effective June 1, 2003;

○ Revisions to OAC 252:4-7-33, Air quality applications—Tier II, adopted March 25, 2003, effective June 1, 2003, except for OAC 252:4-7-33(c)(4);

○ Revisions to OAC 252:4-9-32, Individual proceedings filed by others, as adopted on May 1, 2009, effective July 1, 2009 and revisions adopted April 25, 2013, effective July 1, 2013;

○ Revisions to OAC 252:4-9-51, In general, adopted on March 24, 2004, effective June 1, 2004;

○ Revisions to OAC 252:4-9-52, Individual proceedings, adopted on March 24, 2004, effective June 1, 2004;

○ New OAC 252:4-17, Electronic Reporting, sections OAC 252:4-17-1—OAC 252:4-17-7, adopted April 27, 2007, effective June 15, 2017;

○ Revisions to OAC 252:4-17-2, Definitions, adopted June 9, 2016, effective September 15, 2016;

○ Revisions to OAC 252:4-17-4, Electronic signature agreement, adopted June 9, 2016, effective September 15, 2016;

○ Letter to Ms. Anne Idsal, Regional Administrator, EPA Region 6, dated May 16, 2018 regarding “Clarification of PSD Public Participation Procedures under 2017 Revisions to the Oklahoma State Implementation Plan (SIP)”;

○ Definitions of “Process Meeting” and “Response to Comments” at 27A Oklahoma Statutes (O.S.) 2-14-103 added July 1, 1994, and last modified and effective November 1, 2015;

○ The provisions for notification to an affected state at 27A O.S. 2-5-112(E) added May 15, 1992, and last modified and effective June 3, 2004;

○ 27A O.S. 2-14-301, 2-14-302, and 2-14-303 added and in effect July 1, 1996;

○ 27A O.S. 2-14-304 added July 1, 1996, and last modified and effective May 9, 2002;

○ Definition of “Record” at 51 O.S. 24A.3, added November 1, 1985, and last modified and effective November 1, 2014;

○ The requirement to maintain, and the description of the contents of the rulemaking record at 75 O.S. 302(B) promulgated in 1963 and last modified and effective November 1, 1998;

○ The process for adoption, amendment or revocation of a rule at 75 O.S. 303 promulgated in 1963 and last modified and affective November 1, 2013; and

○ Definition of “Meeting” at 25 O.S. 304(2) added October 1, 1977, and last modified and effective in 2010.

• Submitted December 19, 2018:

○ Revisions to OAC 252:100-2-3 and Appendix Q adopted on June 18, 2018 and effective September 15, 2018; and

○ Revisions to OAC 252:100-8-35, Air quality impact evaluation, adopted on June 18, 2018 and effective September 15, 2018.

The EPA finds that the provisions in OAC 252:4-1-1, 4-1-2, 4-1-3, 4-1-4, 4-1-5, 4-1-6, 4-1-7, 4-1-8, and 4-1-9, and OAC 252:100-5-1, 5-1.1 and 5-2.2 are applicable to the entirety of the Oklahoma SIP and the amendatory language table at 40 CFR 52.1920(c) is modified to reflect this finding. Additionally, the EPA is removing the disapprovals listed in 40 CFR 52.1922(b)(2), (b)(3), (b)(4), and (c), because the state has submitted appropriate revisions to the SIP to correct the disapprovals.

IV. 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 finalizing the incorporation by reference the revisions to the Oklahoma regulations as described in the Final Action section above. The EPA has made, and will continue to make, these materials generally available through www.regulations.gov and at the EPA Region 6 Office (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 the EPA for inclusion in the SIP, have been incorporated by reference by the EPA into that plan, are fully federally enforceable under sections 110 and 113 of the CAA as of the effective date of the final rulemaking of EPA's approval, and will be incorporated by reference in the next update to the SIP compilation.

V. Statutory and Executive Order Reviews

Under the Clean Air Act, 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 Clean Air Act. 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);
• 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, 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 the 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).

In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by June 9, 2020. 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 CAA section 307(b)(2).)

List of Subjects in 40 CFR Part 52

• Environmental protection
• Air pollution control
• Carbon monoxide,

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

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

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

Subpart LL—Oklahoma

2. In § 52.1920:

a. In paragraph (c), amend the table titled “EPA Approved Oklahoma Regulations” by:

i. Removing the entries for Regulation “3.8”, “3.8(a)”, “3.8(b)”, and “3.8(c)”;

ii. Adding entries for “52:4-7-20”, “252:4-17-1”, “252:4-17-2”, “252:4-17-3”, “252:4-17-4”, “252:4-17-5”, “252:4-17-6”, “252:4-17-7”, “252:100-8-36.1”; and

iii. Revising the entries for “252:4-1-1”; “252:4-1-2”; “252:4-1-3”; “252:4-1-4”; “252:4-1-5”; “252:4-1-6”; “252:4-1-7”; “252:4-1-8”; “252:4-1-9”; “252:4-3-1”; “252:4-7-5”; “252:4-7-13”; “252-4-7-15”; “252:4-7-18”; “252:4-7-32”; “252:4-7-33”; “252:4-9-32”; “252:4-9-51”; “252:4-9-52”; “252:100-1-3”; “252:100-2-3”; “252:100-5-1”; “252:100-5-1.1”; “252:100-5-2.2”; “252:100-8-31”; “252:100-8-33”; “252:100-8-35”; “252:100-8-51.1”; and “252:100, Appendix Q”.

b. In paragraph (e),

i. Amend the table titled “EPA-Approved Nonregulatory Provisions and Quasi-Regulatory Measures in the Oklahoma SIP” by adding an entry for: “Letter to Ms. Anne Idsal, Regional Administrator, EPA Region 6, dated May 16, 2018 regarding “Clarification of PSD Public Participation Procedures under 2017 Revisions to the Oklahoma State Implementation Plan”.”

ii. Amend the second table titled “EPA Approved Statutes in the Oklahoma SIP” by adding entries for “25 O.S. 304(2)”, “27A O.S. 2-5-112(E)”, “2-14-103, O.S. 2-14-301”, “2-14-302”, “2-14-303”, “2-14-304”; “51 O.S. 24A.3”, “75 O.S. 302(B)”, and “75 O.S. 303”.

The additions and revisions read as follows:

(e) * * *

3. In § 52.1922 revise paragraph (b) and remove paragraph (c).

The revision reads as follows: