90 FR 130 pgs. 30613-30616 - National Emission Standards for Hazardous Air Pollutants; Delegation of Authority to Oklahoma
Type: PRORULEVolume: 90Number: 130Pages: 30613 - 30616
Pages: 30613, 30614, 30615, 30616Docket number: [EPA-R06-OAR-2020-0086; FRL-12761-01-R6]
FR document: [FR Doc. 2025-12800 Filed 7-9-25; 8:45 am]
Agency: Environmental Protection Agency
Official PDF Version: PDF Version
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 61 and 63
[EPA-R06-OAR-2020-0086; FRL-12761-01-R6]
National Emission Standards for Hazardous Air Pollutants; Delegation of Authority to Oklahoma
AGENCY:
Environmental Protection Agency (EPA).
ACTION:
Proposed rule.
SUMMARY:
The Oklahoma Department of Environmental Quality (ODEQ) has submitted updated regulations for receiving delegation and approval of its program for the implementation and enforcement of certain National Emission Standards for Hazardous Air Pollutants (NESHAP) for all sources, as provided for under previously approved delegation mechanisms. The updated State regulations incorporate by reference certain NESHAP promulgated by the Environmental Protection Agency (EPA), as they existed through June 30, 2023. The EPA is proposing to approve ODEQ's requested delegation update. The proposed delegation of authority under this action applies to sources located in certain areas of Indian country as discussed herein.
DATES:
Written comments must be received on or before August 11, 2025.
ADDRESSES:
Submit your comments, identified by Docket No. EPA-R06-OAR-2020-0086, at https://www.regulations.gov or via email to barrett.richard@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 Rick Barrett, 214-665-7227, barrett.richard@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:
Rick Barrett, EPA Region 6 Office, Air Permits Section (ARPE), 214-665-7227, barrett.richard@epa.gov. We encourage 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 wherever "we," "us," or "our" is used, we mean the EPA.
Table of Contents
I. What does this action do?
II. What is the authority for delegation?
III. What criteria must Oklahoma's program meet to be approved?
IV. How did ODEQ meet the NESHAP program approval criteria?
V. What is being delegated?
VI. What is not being delegated?
VII. How will statutory and regulatory interpretations be made?
VIII. What authority does the EPA have?
IX. What information must ODEQ provide to the EPA?
X. What is the EPA's oversight role?
XI. Should sources submit notices to the EPA or ODEQ?
XII. How will unchanged authorities be delegated to ODEQ in the future?
XIII. Impact on Areas of Indian Country
XIV. Proposed Action
XV. Statutory and Executive Order Reviews
I. What does this action do?
The EPA is proposing to approve the delegation of the implementation and enforcement of certain NESHAP to ODEQ. If finalized, the delegation will provide ODEQ with the primary responsibility to implement and enforce the delegated standards.
II. What is the authority for delegation?
Section 112(l) of the Clean Air Act (CAA), and 40 CFR part 63, subpart E, authorize the EPA to delegate authority to any State or local agency which submits adequate regulatory procedures for implementation and enforcement of emission standards for hazardous air pollutants. The hazardous air pollutant standards are codified at 40 CFR parts 61 and 63.
III. What criteria must Oklahoma's program meet to be approved?
Section 112(l)(5) of the CAA requires the EPA to disapprove any program submitted by a State for the delegation of NESHAP standards if the EPA determines that:
(A) the authorities contained in the program are not adequate to assure compliance by the sources within the State with respect to each applicable standard, regulation, or requirement established under section 112;
(B) adequate authority does not exist, or adequate resources are not available, to implement the program;
(C) the schedule for implementing the program and assuring compliance by affected sources is not sufficiently expeditious; or
(D) the program is otherwise not in compliance with the guidance issued by the EPA under section 112(l)(2) or is not likely to satisfy, in whole or in part, the objectives of the CAA.
[top] In carrying out its responsibilities under section 112(l), the EPA promulgated regulations at 40 CFR part 63, subpart E, setting forth criteria for the approval of submitted programs. For example, to obtain approval of a program to implement and enforce Federal section 112 rules as promulgated without changes (straight delegation) for part 70 sources, a State must demonstrate that it meets the criteria of 40 CFR 63.91(d). 40 CFR 63.91(d)(3) provides that interim or final Title V program approval will satisfy the criteria of 40 CFR 63.91(d). 1 The NESHAP delegation for Oklahoma, as it applies to both part 70 and non-part 70
Footnotes:
1 ?Some NESHAP standards do not require a source to obtain a Title V permit ( e.g., certain area sources that are exempt from the requirement to obtain a Title V permit). For these non-Title V sources, the EPA believes that the State must assure the EPA that it can implement and enforce the NESHAP for such sources. See 65 FR 55810, 55813 (September 14, 2000). The EPA previously approved Oklahoma's program to implement and enforce the NESHAP as they apply to non-part 70 sources. See 66 FR 1584 (January 9, 2001).
IV. How did ODEQ meet the NESHAP program approval criteria?
As to the NESHAP standards in 40 CFR parts 61 and 63, as part of its Title V submission ODEQ stated that it intended to use the mechanism of incorporation by reference to adopt unchanged Federal section 112 standards into its regulations. This commitment applied to both existing and future standards as they applied to part 70 sources. The EPA's final interim approval of Oklahoma's Title V operating permits program delegated the authority to implement certain NESHAP to the State, effective March 6, 1996 (61 FR 4220, February 5, 1996). On December 5, 2001, the EPA promulgated full approval of the State's operating permits program, effective November 30, 2001 (66 FR 63170). These interim and final Title V program approvals satisfy the up-front approval criteria of 40 CFR 63.91(d). Under 40 CFR 63.91(d)(2), once a State has satisfied up-front approval criteria, it needs only to reference the previous demonstration and reaffirm that it still meets the criteria for any subsequent submittals of the section 112 standards. ODEQ has affirmed that it still meets the up-front approval criteria. With respect to non-part 70 sources, the EPA has previously approved delegation of NESHAP authorities to ODEQ after finding adequate authorities to implement and enforce the NESHAP for such sources. See 66 FR 1584 (January 9, 2001).
V. What is being delegated?
By letter dated October 28, 2024, the EPA received a request from ODEQ to update its existing NESHAP delegation. With certain exceptions noted in section VII of this document, ODEQ's request included certain NESHAP in 40 CFR parts 61 and 63. ODEQ's request included newly incorporated NESHAP promulgated by the EPA and amendments to existing standards currently delegated, as amended between June 30, 2022, and June 30, 2023, as adopted by the State.
VI. What is not being delegated?
All authorities not affirmatively and expressly proposed for delegation by this action will not be delegated. These include the following parts 61 and 63 authorities listed below:
• 40 CFR part 61, subpart B (National Emission Standards for Radon Emissions from Underground Uranium Mines);
• 40 CFR part 61, subpart H (National Emission Standards for Emissions of Radionuclides Other Than Radon From Department of Energy Facilities);
• 40 CFR part 61, subpart I (National Emission Standards for Radionuclide Emissions from Federal Facilities Other Than Nuclear Regulatory Commission Licensees and Not Covered by Subpart H);
• 40 CFR part 61, subpart K (National Emission Standards for Radionuclide Emissions from Elemental Phosphorus Plants);
• 40 CFR part 61, subpart Q (National Emission Standards for Radon Emissions from Department of Energy facilities);
• 40 CFR part 61, subpart R (National Emission Standards for Radon Emissions from Phosphogypsum Stacks);
• 40 CFR part 61, subpart T (National Emission Standards for Radon Emissions from the Disposal of Uranium Mill Tailings); and
• 40 CFR part 61, subpart W (National Emission Standards for Radon Emissions from Operating Mill Tailings).
In addition, the EPA regulations provide that we cannot delegate to a State any of the Category II Subpart A authorities set forth in 40 CFR 63.91(g)(2). These include the following provisions: §?63.6(g), Approval of Alternative Non-Opacity Standards; §?63.6(h)(9), Approval of Alternative Opacity Standards; §?63.7(e)(2)(ii) and (f), Approval of Major Alternatives to Test Methods; §?63.8(f), Approval of Major Alternatives to Monitoring; and §?63.10(f), Approval of Major Alternatives to Recordkeeping and Reporting. Also, some 40 CFR parts 61 and 63 standards have certain provisions that cannot be delegated to the States as outlined in specific subparts. Furthermore, no authorities are being proposed for delegation that require rulemaking in the Federal Register to implement, or where Federal overview is the only way to ensure national consistency in the application of the standards or requirements of CAA section 112. Finally, this action does not propose delegation of any authority under section 112(r), the accidental release program.
If this action is finalized as proposed, all questions concerning implementation and enforcement of the excluded standards in the State of Oklahoma should be directed to the EPA Region 6 Office.
The EPA is proposing a determination that the NESHAP program submitted by Oklahoma meets the applicable requirements of CAA section 112(l)(5) and 40 CFR part 63, subpart E.
As more fully discussed in section XIII of this document, the proposed delegation to ODEQ to implement and enforce certain NESHAP extends to sources or activities located in certain areas of Indian country, as described below in section XIV.
VII. How will statutory and regulatory interpretations be made?
If this NESHAP delegation is finalized as proposed, ODEQ will obtain concurrence from the EPA on any matter involving the interpretation of section 112 of the CAA or 40 CFR parts 61 and 63 to the extent that implementation, administration, or enforcement of these sections have not been covered by prior EPA determinations or guidance.
VIII. What authority does the EPA have?
We retain the right, as provided by CAA section 112(l)(7) and 40 CFR 63.90(d)(2), to enforce any applicable emission standard or requirement under section 112. In addition, the EPA may enforce any federally approved State rule, requirement, or program under 40 CFR 63.90(e) and 63.91(c)(1)(i). The EPA also has the authority to make certain decisions under the General Provisions (subpart A) of parts 61 and 63. We are proposing to delegate to the ODEQ some of these authorities, and retaining others, as explained in sections V and VI above. In addition, the EPA may review and disapprove State determinations and subsequently require corrections. See 40 CFR 63.91(g)(1)(ii). The EPA also has the authority to review ODEQ's implementation and enforcement of approved rules or programs and to withdraw approval if we find inadequate implementation or enforcement. See 40 CFR 63.96.
Furthermore, we retain the authority in an individual emission standard that may not be delegated according to provisions of the standard. Finally, we retain the authorities stated in the original delegation agreement. See "Provisions for the Implementation and Enforcement of NSPS and NESHAP in Oklahoma," effective March 25, 1982, a copy of which is included in the docket for this action.
[top] A table of currently delegated NESHAP standards and how the updated NESHAP delegation would look if this proposal is finalized may be found in the Technical Support Document (TSD) included in the docket for this action. The table also shows the authorities that cannot be delegated to any State or local agency.
IX. What information must ODEQ provide to the EPA?
ODEQ must provide any additional compliance related information to the EPA, Region 6, Office of Enforcement and Compliance Assurance, within 45 days of a request under 40 CFR 63.96(a). Under 40 CFR 63.91(g)(1), Oklahoma may request delegation of any of the authorities listed as Category I in 40 CFR 63.91(g)(1)(i), and EPA will delegate any such authorities at its discretion. The State must maintain a record of all approved alternatives to all monitoring, testing, recordkeeping, and reporting requirements and provide this list of alternatives to its EPA Regional Office at least semi-annually, or on a more frequent basis if requested by the Regional Office. See 40 CFR 63.91(g)(1)(ii).
X. What is the EPA's oversight role?
The EPA must oversee ODEQ's decisions to ensure the delegated authorities are being adequately implemented and enforced. We will integrate oversight of the delegated authorities into the existing mechanisms and resources for oversight currently in place. If, during oversight, we determine that ODEQ has made decisions that decrease the stringency of the delegated standards, then ODEQ shall be required to take corrective actions and the source(s) affected by the decisions will be notified, as required by and under the procedures set forth at 40 CFR 63.96(b). We will initiate withdrawal proceedings of the program or rule under 40 CFR 63.96(b) if the corrective actions taken are insufficient.
XI. Should sources submit notices to the EPA or ODEQ?
For the delegated NESHAP standards and authorities covered by this proposed action, if finalized, sources would submit all the information required pursuant to the general provisions and the relevant subpart(s) of the delegated NESHAP (40 CFR parts 61 and 63) directly via electronic submittal to online EPA database portals that are specified in each rule and to the ODEQ. The ODEQ accepts submissions using an acceptable electronic format or paper submittals at the following address: Oklahoma Department of Environmental Quality, 707 North Robinson, P.O. Box 1677, Oklahoma City, Oklahoma 73101-1677. The ODEQ is the primary point of contact with respect to delegated NESHAP. The EPA Region 6 proposes to waive the requirement that courtesy notifications and reports for delegated standards be submitted to the EPA in addition to ODEQ in accordance with 40 CFR 63.9(a)(4)(ii) and 63.10(a)(4)(ii). 2 For those standards and authorities not delegated as discussed above, sources must continue to submit all appropriate information to the EPA by electronic database portals.
Footnotes:
2 ?This waiver only extends to the submission of copies of notifications and reports; the EPA does not waive the requirements in delegated standards that require notifications and reports be submitted to an electronic database ( e.g., 40 CFR part 63, subpart HHHHHHH).
XII. How will unchanged authorities be delegated to ODEQ in the future?
As stated in previous NESHAP delegation actions, the EPA has approved Oklahoma's mechanism of incorporation by reference of NESHAP standards into ODEQ regulations, as they apply to both part 70 and non-part 70 sources. See, e.g., 61 FR 4224 (February 5, 1996) and 66 FR 1584 (January 9, 2001). Consistent with the EPA regulations and guidance, 3 ODEQ may request future updates to Oklahoma's NESHAP delegation by submitting a letter to the EPA that appropriately identifies the specific NESHAP which have been incorporated by reference into State rules, reaffirms that it still meets up-front approval delegation criteria for part 70 sources, and demonstrates that ODEQ maintains adequate authorities and resources to implement and enforce the delegated NESHAP requirements for all sources. We will respond in writing to the request stating that the request for delegation is either approved or denied. A Federal Register action will be published to inform the public and affected sources of the updated delegation, indicate where source notifications and reports should be sent, and amend the relevant portions of the Code of Federal Regulations identifying which NESHAP standards have been delegated to the ODEQ.
Footnotes:
3 ? See Hazardous Air Pollutants: Amendments to the Approval of State Programs and Delegation of Federal Authorities, Final Rule (65 FR 55810, September 14, 2000); and "Straight Delegation Issues Concerning Sections 111 and 112 Requirements and Title V," by John S. Seitz, Director of Air Quality Planning and Standards, EPA, dated December 10, 1993.
XIII. 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 outside of Indian country. The State's request excluded certain areas of Indian country further described below.
The EPA has approved Oklahoma's SAFETEA request to administer all of the State's EPA-approved environmental regulatory programs 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 the 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. 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).
As explained above, the EPA is proposing an update to the Oklahoma NESHAP delegation which will apply statewide in Oklahoma. Consistent with the EPA's SAFETEA approval, this NESHAP delegation will apply to areas of Indian country pursuant to the SAFETEA approval, including to all Indian country in the State of Oklahoma other than the excluded Indian country lands as described above.
XIV. Proposed Action
[top] In this action, the EPA is proposing to approve an update to the Oklahoma NESHAP delegation that would provide the ODEQ with the authority to implement and enforce certain newly incorporated NESHAP promulgated by the EPA and amendments to existing standards currently delegated, as they existed though June 30, 2023. This proposed delegation to ODEQ extends to sources and activities located in certain
XV. Statutory and Executive Order Reviews
Under the CAA, the Administrator has the authority to approve section 112(l) submissions that comply with the provisions of the Act and applicable Federal regulations. In reviewing section 112(l) submissions, the EPA's role is to approve state choices, provided that they meet the criteria and objectives of the CAA and the EPA's implementing regulations. Accordingly, this action merely proposes to approve the State's request as meeting Federal requirements and does not impose additional requirements beyond those imposed by State law. For that reason, this proposed action:
A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review
This action is not a significant regulatory action as defined in Executive Order 12866 (58 FR 51735, October 4, 1993) and was therefore not submitted to the Office of Management and Budget (OMB) for review.
B. Executive Order 14192: Unleashing Prosperity Through Deregulation
This action is not an Executive Order 14192 regulatory action because this action is not significant under Executive Order 12866.
C. Paperwork Reduction Act (PRA)
This action does not impose an information collection burden under the PRA (44 U.S.C. 3501 et seq. ) because it does not impose an information collection burden.
D. Regulatory Flexibility Act (RFA)
This action is certified to not have a significant economic impact on a substantial number of small entities under the RFA (5 U.S.C. 601 et seq. ).This action proposes to approve the delegation of federal rules as requested by the state agency and will therefore have no net regulatory burden for all directly regulated small entities.
E. Unfunded Mandates Reform Act (UMRA)
This action does not contain an unfunded mandate as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. This action imposes no enforceable duty on any State, local, or tribal governments or the private sector.
F. Executive Order 13132: Federalism
This action does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government.
G. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments
This proposed approval of revisions to the Oklahoma SIP that update the Oklahoma NESHAP delegation 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 (December 7, 2023), the EPA has offered consultation to all 38 Tribal governments whose lands are located within the exterior boundaries of the State of Oklahoma and that may be affected by this action and provided information about this action.
H. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks
The EPA interprets Executive Order 13045 as applying only to regulatory actions considered significant under section 3(f)(1) of Executive Order 12866 and that concern environmental health or safety risks that EPA has reason to believe may disproportionately affect children, per the definition of "covered regulatory action" in section 2-202 of Executive Order 13045. This action is not subject to Executive Order 13045 because it approves a state program.
I. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution or Use
This action is not subject to Executive Order 13211 (66 FR 28355, May 22, 2001), because it is not a significant regulatory action under Executive Order 12866.
J. National Technology Transfer and Advancement Act (NTTAA)
This rulemaking does not involve technical standards. This action 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.
List of Subjects
40 CFR Part 61
Environmental protection, Air pollution control, Hazardous substances, Intergovernmental relations, Radioactive materials, Reporting and recordkeeping requirements, Uranium, Vinyl chloride.
40 CFR Part 63
Environmental protection, Air pollution control, Administrative practice and procedure, Business and industry, Carbon oxides, Hazardous substances, Intergovernmental relations, Nitrogen oxides, Ozone, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
Authority:
42 U.S.C. 7401 et seq.
Dated: June 30, 2025.
James McDonald,
Director, Air and Radiation Division, Region 6.
[FR Doc. 2025-12800 Filed 7-9-25; 8:45 am]
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