[Federal Register Volume 87, Number 87 (Thursday, May 5, 2022)]
[Rules and Regulations]
[Pages 26677-26680]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-09194]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2021-0032; FRL-8688-02-R6]


Air Plan Approval; Oklahoma; Interstate Visibility Transport

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: Pursuant to the Federal Clean Air Act (CAA or the Act), the 
Environmental Protection Agency (EPA) is approving elements of a State 
Implementation Plan (SIP) submission from the State of Oklahoma for the 
2015 Ozone National Ambient Air Quality Standard (NAAQS) and 
disapproving elements of two SIP submissions for the 2010 sulfur 
dioxide (SO<INF>2</INF>) and the 2012 fine particulate matter 
(PM<INF>2.5</INF>) NAAQS. These infrastructure SIP (i-SIP) submissions 
address how the existing SIP provides for implementation, maintenance, 
and enforcement of these NAAQS. The i-SIP requirements are to ensure 
that the Oklahoma SIP is adequate to meet the State's responsibilities 
under the CAA for these NAAQS. Specifically, this final rule addresses 
the interstate visibility transport requirements of the i-SIP for the 
2015 Ozone NAAQS, 2010 SO<INF>2</INF>, and 2012 PM<INF>2.5</INF> NAAQS 
under CAA section 110(a)(2)(D)(i)(II). We are also finalizing our 
determination that the deficiencies in the Oklahoma SIP that form the 
basis of our disapproval of the interstate visibility transport 
portions of the Oklahoma i-SIP submissions for the 2010 SO<INF>2</INF> 
and 2012 PM<INF>2.5</INF> NAAQS are remedied by the existing Federal 
Implementation Plan (FIP) in place for the Oklahoma Regional Haze 
program, and that no further Federal action is required to address the 
disapproval.

DATES: This rule is effective on June 6, 2022.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID No. EPA-R06-OAR-2021-0032. 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: Dayana Medina, EPA Region 6 Office, 
Regional Haze and SO<INF>2</INF> Section, 214-665-7241, 
<a href="/cdn-cgi/l/email-protection#0e636b6a67606f206a6f776f606f4e6b7e6f20696178"><span class="__cf_email__" data-cfemail="c0ada5a4a9aea1eea4a1b9a1aea180a5b0a1eea7afb6">[email protected]</span></a>. Out of an abundance of caution for members of 
the public and our staff, the EPA Region 6 office may be closed to the 
public to reduce the risk of transmitting COVID-19. 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,'' 
and ``our'' means the EPA.

I. Background

    The background for this action is discussed in detail in our July 
22, 2021 proposal (86 FR 38630). In that document, we proposed to 
approve the interstate visibility transport element of the i-SIP 
submission from the State of Oklahoma for the 2015 Ozone NAAQS. We also 
proposed to disapprove the interstate visibility transport elements of 
two i-SIP submissions from the State of Oklahoma: One for the 2010 
SO<INF>2</INF> NAAQS and the other for the 2012 PM<INF>2.5</INF> NAAQS. 
We simultaneously proposed, in exercising our authority under section 
110(c) of the Act, to find that the deficiencies in the Oklahoma SIP 
that formed the basis of our proposed disapproval of the interstate 
visibility transport portions of the Oklahoma i-SIP submissions for the 
2010 SO<INF>2</INF> and 2012 PM<INF>2.5</INF> NAAQS are already 
addressed by the existing FIP in place for the Oklahoma Regional Haze 
program, and that no further Federal action is required. The reader 
should refer to our notice of proposed rulemaking for our evaluation of 
the Oklahoma i-SIP submissions and a detailed explanation of our 
rationale for this action.
    The public comment period for the proposed action closed on August 
23, 2021. We received one public comment concerning our proposed 
action. The comment is included in the publicly posted docket 
associated with this action at https://www.regulations.gov. Below we 
provide a summary of the comment along with our response. After careful 
consideration of the comment received, we have decided to finalize our 
action with no changes from the proposed action.

II. Response to Comments

    Comment: The commenter expressed appreciation for EPA's close 
evaluation of Oklahoma's SIP submittals and expressed support of EPA's 
determinations and actions identified in the proposed rule.
    Response: We appreciate the commenter's support of our proposed 
rule.
    Comment: The commenter stated that they do not object to EPA's 
determination, among others, that the existing FIP in place for the 
Oklahoma Regional Haze program is sufficient to remedy the proposed 
disapproval of the interstate visibility transport portions of the 
Oklahoma i-SIP submissions for the 2010 SO<INF>2</INF> and 2012 
PM<INF>2.5</INF> NAAQS but asked EPA to revisit, as necessary and 
appropriate in the future, whether the existing FIP continues to remain 
sufficiently stringent to comply with the requirements of the CAA, 
including whether it is adequately ensuring reasonable progress towards 
achieving Oklahoma's regional haze goals.
    Response: First, we note that comments regarding the stringency of 
the existing Oklahoma Regional Haze FIP and whether it is sufficient to 
comply with the regional haze requirements of the CAA are beyond the 
scope of this action, and as such, we will not be responding to them. 
We also note that we are not implementing a new or revised FIP in this 
action but are instead finding that the existing regional haze FIP also 
addresses the deficiencies in the Oklahoma SIP that form the basis of 
our disapproval of the interstate visibility transport portions of the 
Oklahoma i-SIP submissions for the 2010 SO<INF>2</INF> and 2012 
PM<INF>2.5</INF> NAAQS. EPA will review and take action on any future 
regional haze SIP revisions submitted by Oklahoma in separate future 
actions.

III. Impact on Areas of Indian Country

    As stated in the proposed action, 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

[[Page 26678]]

of Indian country.\1\ 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\
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    \1\ A copy of the Governor's July 22, 2020 request can be found 
in the docket for this rulemaking on the https://www.regulations.gov 
website. See Document ID No. EPA-R06-OAR-2021-0032-0017.
    \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.
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    On October 1, 2020, the EPA approved Oklahoma's SAFETEA request to 
administer all of the State's EPA-approved environmental regulatory 
programs, including the Oklahoma SIP, in the requested areas of Indian 
country.\3\ 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'').
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    \3\ A copy of EPA's October 1, 2020 approval can be found in the 
docket for this rulemaking on the https://www.regulations.gov 
website. See Document ID No. EPA-R06-OAR-2021-0032-0018.
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    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).\5\
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    \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.
    \5\ 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 is engaging in further consultation with 
tribal governments and expects to have discussions with the 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.
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    As explained above, the EPA is disapproving the interstate 
visibility transport portions of the Oklahoma i-SIP submittals for the 
2010 SO<INF>2</INF> and the 2012 PM<INF>2.5</INF> NAAQS because they do 
not meet the interstate visibility transport requirements of CAA 
Section 110(a)(2)(D)(i)(II) with respect to these NAAQS; however, the 
EPA is also making the determination that the deficiencies forming the 
basis of the disapproval of these SIPs are met through the existing FIP 
in place for the Oklahoma Regional Haze program. The FIP applies to all 
lands within the State regardless of land status. In practice, the FIP 
requirements, as discussed in the proposed rule, only apply to the 
Oklahoma Gas & Electric (OG&E) facilities, Sooner Station Units 1 and 2 
(located within Noble County) and Muskogee, Units 4 and 5 (located 
within Muskogee County and the Cherokee Nation Reservation).
    Additionally, the EPA is approving the interstate visibility 
transport element of the Oklahoma i-SIP for the 2015 Ozone NAAQS. 
Consistent with the D.C. Circuit's decision in ODEQ v. EPA and with 
EPA's October 1, 2020, SAFETEA approval, this portion of the SIP 
applies in certain areas of Indian country. Under EPA's October 1, 2020 
SAFETEA approval, the SIP will apply to all Indian country within the 
State of Oklahoma, other than the excluded Indian country lands. 
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.
    This action does not result in the imposition of new requirements 
for the affected sources. Rather, it approves Oklahoma's determination 
that the regional haze measures that have already been approved and are 
currently being implemented satisfy the visibility transport 
requirements for the 2015 Ozone NAAQS and also makes the determination 
that the regional haze measures promulgated by EPA in the Oklahoma FIP 
that are currently being implemented address the deficiencies in the 
Oklahoma SIP with respect to visibility transport requirements for the 
2010 SO<INF>2</INF> and 2012 PM<INF>2.5</INF> NAAQS.

IV. Final Action

    The EPA is approving the interstate visibility transport elements 
of the i-SIP submission from the State of Oklahoma for the 2015 Ozone 
NAAQS. We are also disapproving the interstate visibility transport 
elements of two i-SIP submissions from the State of Oklahoma: One for 
the 2010 SO<INF>2</INF> NAAQS and the other for the 2012 
PM<INF>2.5</INF> NAAQS. We simultaneously find, in exercising our 
authority under section 110(c) of the Act, that the deficiencies in the 
Oklahoma SIP that form the basis of our disapproval of the interstate 
visibility transport portions of the Oklahoma i-SIP submissions for the 
2010 SO<INF>2</INF> and 2012 PM<INF>2.5</INF> NAAQS are already 
addressed by the existing FIP in place for the Oklahoma Regional Haze 
program, and that no further Federal action is required.

V. Environmental Justice Considerations

    Executive Order 12898 (Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations, 59 FR 7629, 
Feb. 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 (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.'' 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

[[Page 26679]]

policies.'' \6\ EPA is providing additional analysis of environmental 
justice associated with this action. We are doing so for the purpose of 
providing information to the public, not as a basis of our final 
action.
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    \6\ https://www.epa.gov/environmentaljustice/learn-about-environmental-justice.
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    EPA reviewed demographic data, which provides an assessment of 
individual demographic groups of the populations living within 
Oklahoma.\7\ The EPA then compared the data to the national average for 
each of the demographic groups.\8\ 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 (35 percent versus 40 percent). Within people of color, the 
percent of the population that is Black or African American alone is 
lower than the national average (7.8 percent versus 13.4 percent) and 
the percent of the population that is American Indian/Alaska Native is 
significantly higher than the national average (9.4 percent versus 1.3 
percent). The percent of the population that is two or more races is 
higher than the national averages (6.3 percent versus 2.8 percent). The 
percent of people living below the poverty level in Oklahoma is higher 
than the national average (14.3 percent versus 11.4 percent). The 
percent of people over 25 with a high school diploma in Oklahoma is 
similar to the national average (88.6 percent versus 88.5 percent), 
while the percent with a Bachelor's degree or higher is below the 
national average (26.1 percent versus 32.9 percent).
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    \7\ See the United States Census Bureau's QuickFacts on Oklahoma 
at https://www.census.gov/quickfacts/fact/table/OK,US/PST045221.
    \8\ See the United States Census Bureau's QuickFacts on Oklahoma 
at https://www.census.gov/quickfacts/fact/table/OK,US/PST045221.
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    This final rule approves Oklahoma's determination that the regional 
haze measures that have already been approved into the Oklahoma SIP and 
are currently being implemented satisfy the visibility transport 
requirements for the 2015 Ozone NAAQS and also makes the determination 
that the regional haze measures promulgated by EPA in the Oklahoma FIP 
that are currently being implemented address the deficiencies in the 
Oklahoma SIP with respect to the visibility transport requirements for 
the 2010 SO<INF>2</INF> and 2012 PM<INF>2.5</INF> NAAQS. The existing 
regional haze measures on which Oklahoma and EPA are relying to satisfy 
the visibility transport requirements for these three NAAQS have 
resulted in significant emissions reductions, as discussed in the 
proposed rule. Some of the pollutants which form haze have also been 
linked to serious health problems, such as increased respiratory 
illness, decreased lung function, and even premature death.\9\ 
Therefore, we believe that these existing regional haze measures and 
resulting emissions reductions have contributed to reduced 
environmental and health impacts on all populations in Oklahoma, 
including people of color and low-income populations in Oklahoma. We 
conclude that this final rule does not have disproportionately high or 
adverse human health or environmental effects on communities with 
environmental justice concerns.
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    \9\ SO<INF>2</INF>, nitrogen dioxide (NO<INF>2</INF>), and 
particulate matter are among six criteria air pollutants for which 
the EPA has established NAAQS. The CAA requires the EPA to 
periodically review the scientific basis for the NAAQS by preparing 
an integrated science assessment. The integrated science assessment 
provides the EPA's evaluation and synthesis of the most policy-
relevant science related to the health effects of the criteria 
pollutants. The most recent integrated science assessments for 
SO<INF>2</INF>, NO<INF>2</INF>, and particulate matter can be 
accessed here: https://www.epa.gov/naaqs/sulfur-dioxide-so2-primary-air-quality-standards; https://www.epa.gov/naaqs/nitrogen-dioxide-no2-primary-air-quality-standards; and https://www.epa.gov/naaqs/particulate-matter-pm-air-quality-standards.
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VI. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 13563: Improving Regulation and Regulatory Review

    This final action is not a ``significant regulatory action'' and 
was therefore not submitted to the Office of Management and Budget for 
review.

B. Paperwork Reduction Act (PRA)

    This final action does not impose an information collection burden 
under the PRA because it does not contain any information collection 
activities.

C. Regulatory Flexibility Act (RFA)

    I certify that this action will not have a significant economic 
impact on a substantial number of small entities under the RFA. This 
action merely approves a portion of one SIP submission as meeting the 
CAA and disapproves portions of two SIP submissions as not meeting the 
CAA.

D. Unfunded Mandates Reform Act (UMRA)

    This action does not contain any unfunded mandate as described in 
UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect 
small governments. The action imposes no enforceable duty on any state, 
local or tribal governments or the private sector.

E. Executive Order 13132: Federalism

    This action does not have federalism implications. 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.

F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    This final action approving the interstate visibility transport 
element of the Oklahoma i-SIP submission for the 2015 Ozone NAAQS and 
disapproving the interstate visibility transport elements of the 
Oklahoma i-SIP submissions for the 2010 1-hour SO<INF>2</INF> NAAQS and 
the 2012 PM<INF>2.5</INF> NAAQS (and making a determination that no 
further action is required to address the deficiencies identified in 
the disapproval) 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), on July 16, 2021, the EPA offered consultation to 38 tribal 
governments whose lands are located within the exterior boundaries of 
the State of Oklahoma. EPA did not receive any comments from tribal 
governments or requests for consultation.

G. Executive Order 13045: Protection of Children From Environmental 
Health Risks and Safety Risks

    The EPA interprets Executive Order 13045 as applying only to those 
regulatory actions that concern environmental health or safety risks 
that the EPA has reason to believe may disproportionately affect 
children, per the definition of ``covered regulatory action'' in 
section 2-202 of the

[[Page 26680]]

Executive order. This action is not subject to Executive Order 13045 
because it merely approves a portion of one SIP submission as meeting 
the CAA and disapproves portions of two SIP submissions as not meeting 
the CAA.

H. Executive Order 13211: Actions That Significantly Affect Energy 
Supply, Distribution or Use

    This action is not subject to Executive Order 13211, because it is 
not a significant regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act

    This rulemaking does not involve technical standards.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    EPA believes the human health or environmental risk addressed by 
this action will not have potential disproportionately high and adverse 
human health or environmental effects on minority, low-income or 
indigenous populations. This action merely approves a portion of a SIP 
submission as meeting the CAA and disapproves portions of two SIP 
submissions as not meeting the CAA.

K. Congressional Review Act (CRA)

    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. The 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).

L. Judicial Review

    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 July 5, 2022. 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, Incorporation by 
reference, Intergovernmental relations, Nitrogen dioxide, Ozone, 
Particulate matter, Sulfur oxides, Visibility transport.

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

    Dated: April 25, 2022.
Earthea Nance,
Regional Administrator, Region 6.

    For the reasons stated in the preamble, the EPA amends 40 CFR part 
52 as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart LL--Oklahoma

0
2. Section 52.1928 is amended by adding paragraphs (e) and (f) to read 
as follows:


 Sec.  52.1928  Visibility protection.

* * * * *
    (e) The portion of the State Implementation Plan pertaining to 
adequate provisions to prohibit emissions from interfering with 
measures required in another state to protect visibility for the 2015 
ozone national ambient air quality standard (NAAQS), submitted on 
October 25, 2018, and clarified in a letter dated January 5, 2021, is 
approved.
    (f) The portions of the State Implementation Plans pertaining to 
adequate provisions to prohibit emissions from interfering with 
measures required in another state to protect visibility for the 2010 
1-hour SO<INF>2</INF> NAAQS, submitted on January 28, 2015, and the 
2012 PM<INF>2.5</INF> NAAQS, submitted on June 16, 2016, are 
disapproved. The deficiencies in the Oklahoma SIP that form the basis 
of our disapproval of the interstate visibility transport portions of 
these two State Implementation Plan submissions are addressed by Sec.  
52.1923.

[FR Doc. 2022-09194 Filed 5-4-22; 8:45 am]
BILLING CODE 6560-50-P


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