89 FR 42 pgs. 15031-15034 - Air Plan Approval; Oklahoma; Updates to the State Implementation Plan Incorporation by Reference Provisions
Type: RULEVolume: 89Number: 42Pages: 15031 - 15034
Pages: 15031, 15032, 15033, 15034Docket number: [EPA–R06–OAR–2022–0279; FRL–10675–02–R6]
FR document: [FR Doc. 2024–04103 Filed 2–29–24; 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-2022-0279; FRL-10675-02-R6]
Air Plan Approval; Oklahoma; Updates to the State Implementation Plan Incorporation by Reference Provisions
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 revisions to the Oklahoma State Implementation Plan (SIP) submitted by the State of Oklahoma designee on December 17, 2021, and January 20, 2023. This action addresses the submittal of revisions to the Oklahoma SIP to update the incorporation by reference provision of Federal requirements under Oklahoma Administrative Code (OAC).
DATES:
This rule is effective April 1, 2024.
ADDRESSES:
The EPA has established a docket for this action under Docket ID No. EPA-R06-OAR-2022-0279. 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:
Adina Wiley, EPA Region 6 Office, Air Permits Section, 214-665-2115, wiley.adina@epa.gov. Please call or email the contact listed above if you need alternative access to material indexed but not provided in the docket.
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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 March 6, 2023, proposal (88 FR 13755). In that document we proposed to approve revisions to the Oklahoma SIP that update the incorporation by reference dates for Federal requirements. We received one comment on our proposed action, addressed below.
II. Response to Comments
The commentor asserts that there is a potential inconsistency with the portions of our proposed rulemaking discussing the Impact on Areas of Indian Country and Environmental Justice Considerations. We address the comment below in two parts.
Comment: In section III of our proposal ("Impact on Areas of Indian Country") we said, "As requested by Oklahoma, the EPA's approval under SAFETEA? 1 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)." The commentor cites the definition of "Indian country" in Title 18, "(a) all land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and, including rights-of-way running through the reservation, (b) all dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a state, and (c) all Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same." The commentor offers their interpretation of this definition, stating that "this statute states that all Indian reservations and areas allocated for the Native American community are reserved for that community and under that community's jurisdiction" and ties this interpretation to our proposed action, arguing that "[t]he problem that arises in the proposed statute, is that it leaves the issue of air quality as a responsibility of Indian Country."
Footnotes:
1 ?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")
Response: Section III of our proposed rulemaking, Impact on Areas of Indian Country, provides the regulatory history of Oklahoma's request and the EPA's approval to administer the State's environmental regulatory programs in certain areas of Indian Country pursuant to SAFETEA. The EPA's October 1, 2020, approval of the Oklahoma SAFETEA request gives the State-not the Tribes-the authority to administer the Oklahoma SIP within certain areas of Indian country. The State of Oklahoma is responsible for protecting air quality in these areas.
Comment: The commentor states their concern that "despite Indian Country having authority over their land, they aren't given a sufficient amount of resources to combat poor air quality, leaving them to their own defenses. Subsequently, leaving Tribes to deal with poor air quality and not giving them a chance to improve it. A general recommendation I offer is to (a) add clarity to the cities, and Tribes, that are excluded from Indian Country and will implement this statute, (b) instead of trying to take control of Indian Country or leaving the complete authority to Indian Country, work with the Tribes and create statutes with their opinions and ideas in mind and have a shared statute that everyone benefits from."
Response: As a result of the EPA's SAFETEA approval, the State of Oklahoma is responsible for protecting air quality in certain areas of Indian Country and concerns about resources allocated to Tribes for this purpose are not relevant to this rulemaking. The EPA notes, however, that several Tribal governments within the State of Oklahoma have Tribal air programs that are supported and encouraged by the EPA.
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 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
Footnotes:
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").
The 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).
Footnotes:
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.
[top] The EPA is approving updates to the Oklahoma SIP incorporation by reference provisions to maintain consistency with Federal requirements, which will apply statewide in Oklahoma. Consistent with the D.C. Circuit's decision in ODEQ v. EPA and with the EPA's October 1, 2020,
Footnotes:
4 ?In accordance with Executive Order 13990, EPA is currently reviewing our October 1, 2020 SAFETEA approval and expects to engage in further discussions with Tribal governments and 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 252:100-2-3 and Appendix Q addresses the scope of the state's program with respect to Indian country. Although EPA is approving these revisions 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. Final Action
We are approving under section 110 of the CAA, the December 17, 2021, and January 20, 2023, revisions to the Oklahoma SIP to update the incorporation by reference dates for Federal requirements. These revisions were developed in accordance with the CAA and the EPA's regulations, policy, and guidance for SIP development.
The EPA is approving the following revisions to the Oklahoma SIP adopted on June 11, 2021, effective September 15, 2021, and submitted to the EPA on December 17, 2021:
• Revisions to OAC 252:100-2-3, Incorporation by Reference,
• Repeal of OAC 252:100, Appendix Q, and
• Adoption of new OAC 252:100, Appendix Q.
The EPA approves the following revisions to the Oklahoma SIP adopted on June 21, 2022, effective September 15, 2022, and submitted to the EPA on January 30, 2023:
• Revisions to OAC 252:100-2-3, Incorporation by Reference,
• Repeal of OAC 252:100. Appendix Q, and
• Adoption of new OAC 252:100, Appendix Q.
V. Environmental Justice Consideration
The EPA reviewed demographic data and provided the results in our March 6, 2023, proposal. See 88 FR 13755, 13756-13757.
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 finalizing the incorporation by reference of the revisions to the Oklahoma regulations that update Oklahoma's incorporation by reference of certain Federal regulations in 40 CFR parts 50, 51, and 98 identified and discussed in Section IV of this preamble, Final Action. 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 inclusion in the SIP, have been incorporated by reference by 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 in the next update to the SIP compilation.
VII. 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 Clean Air Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, 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 14094 (88 FR 21879, April 11, 2023);
• 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 subject to Executive Order 13045 (62 FR 19885, April 23, 1997) because it approves a state program;
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001); and
• 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 Clean Air Act.
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."
[top] The state 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. In addition, there is no information in the record upon which this decision is based inconsistent with the stated
This final approval of revisions to the Oklahoma SIP that update the incorporation by reference dates for Federal requirements as discussed more fully elsewhere in this document 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 has engaged with Tribal governments that may be affected by this action and provided information about this action.
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 April 30, 2024. 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: February 22, 2024.
Earthea Nance,
Regional Administrator, Region 6.
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, in paragraph (c), the table titled "EPA Approved Oklahoma Regulations" is amended by revising the entries for "252:100-2-3" and "252:100, Appendix Q" to read as follows:
§?52.1920 Identification of plan.
(c) * * *
| State citation | Title/subject | State effective date | EPA approval date | Explanation |
|---|---|---|---|---|
| * * * * * * * | ||||
| Chapter 100 (OAC 252:100). AIR POLLUTION CONTROL | ||||
| * * * * * * * | ||||
| Subchapter 2. Incorporation by Reference | ||||
| * * * * * * * | ||||
| 252:100-2-3 | Incorporation by reference | 9/15/2022 | 3/1/2024, [Insert Federal Register citation] | |
| * * * * * * * | ||||
| Appendices for OAC 252: Chapter 100 | ||||
| * * * * * * * | ||||
| 252:100, Appendix Q | Incorporation by reference | 9/15/2022 | 3/21/2024, [Insert Federal Register citation] | |
| * * * * * * * | ||||
[FR Doc. 2024-04103 Filed 2-29-24; 8:45 am]
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