[Federal Register Volume 84, Number 232 (Tuesday, December 3, 2019)]
[Proposed Rules]
[Pages 66103-66109]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-25954]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R06-OAR-2018-0208; FRL-10002-11-Region 6]
Air Plan Approval; Oklahoma; Updates to the General SIP and New
Source Review Permitting Requirements
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: Pursuant to the Federal Clean Air Act (CAA or the Act), the
Environmental Protection Agency (EPA) is proposing to approve
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 on May 16, 2018. This action
addresses the revisions submitted to the Oklahoma SIP pertaining to
incorporation by reference of Federal requirements, updates to the
general SIP provisions and New Source Review (NSR) permit programs to
address public notice and modeling requirements, including certain
statutory provisions.
DATES: Written comments must be received on or before January 3, 2020.
ADDRESSES: Submit your comments, identified by Docket No. EPA-R06-OAR-
2018-0208, at https://www.regulations.gov or via email to
[email protected]. 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 Adina Wiley, (214) 665-
2115, [email protected]. 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 and in hard copy at the EPA
Region 6 Office, 1201 Elm Street, Suite 500, Dallas, Texas. While all
documents in the docket are listed in the index, some information may
be publicly available only at the hard copy location (e.g., copyrighted
material), and some may not be publicly available at either location
(e.g., CBI).
FOR FURTHER INFORMATION CONTACT: Adina Wiley, EPA Region 6 Office, Air
Permits Section, 1201 Elm Street, Suite 500, Dallas, TX 75270, 214-665-
2115, [email protected]. To inspect the hard copy materials, please
schedule an appointment with Adina Wiley or Mr. Bill Deese at 214-665-
7253.
SUPPLEMENTARY INFORMATION: Throughout this document wherever ``we,''
``us,'' or ``our'' is used, we mean the EPA.
I. Background
Section 110 of the Act requires states to develop air pollution
regulations and control strategies to ensure that air quality meets the
EPA's National Ambient Air Quality Standards (NAAQS). These ambient
standards are established under section 109 of the Act and they
currently address six criteria pollutants: Carbon monoxide, nitrogen
[[Page 66104]]
dioxide, ozone, lead, particulate matter, and sulfur dioxide. The
state's air regulations are contained in its SIP, which is basically a
clean air plan. Each state is responsible for developing SIPs to
demonstrate how the NAAQS will be achieved, maintained, and enforced.
The SIP must be submitted to the EPA for approval and any changes a
state makes to the approved SIP also must be submitted to the EPA for
approval.
Section 110(a)(2)(C) of the CAA requires states to develop and
submit to the EPA for approval into the SIP, preconstruction review and
permitting programs applicable to certain new and modified stationary
sources of air pollutants for attainment and nonattainment areas that
cover both major and minor new sources and modifications, collectively
referred to as the NSR SIP. The CAA NSR SIP program is composed of
three separate programs: Prevention of Significant Deterioration (PSD),
Nonattainment New Source Review (NNSR), and Minor NSR. The EPA codified
minimum requirements for these State permitting programs including
public participation and notification requirements at 40 CFR 51.160-
51.164. Requirements specific to construction of new stationary sources
and major modifications in nonattainment areas are codified in 40 CFR
51.165 for the NNSR program. Requirements for permitting of new
stationary sources and major modifications in attainment areas subject
to PSD, including additional public participation requirements, are
found at 40 CFR 51.166.
The State of Oklahoma submitted revisions to the Oklahoma SIP on
May 16, 1994; July 16, 2010; January 8, 2018; May 16, 2018; and
December 19, 2018 and a clarification letter dated May 16, 2018. On May
16, 1994, the Governor of Oklahoma submitted the recodification of the
Oklahoma regulations as a revision to the Oklahoma SIP. The EPA
addressed most of this recodification on November 3, 1999; this
proposed rulemaking addresses the repeal of Regulation 3.8. See 64 FR
59629. On July 16, 2010, Mr. J.D. Strong, Secretary of Environment,
submitted revisions to the Oklahoma SIP to implement NSR Reform. The
submittal included revisions to Subchapters 1 and 8 in OAC 252:100 that
became effective June 15, 2006. The EPA has acted on all portions of
the July 16, 2010, submittal except for the adoption of OAC 252:100-8-
36.1, which will be addressed in this proposed rulemaking. See 81 FR
66535. On January 8, 2018, Mr. Michael Teague, Secretary of Energy and
Environment, submitted revisions to the Oklahoma SIP that included the
annual SIP update for 2017, with amendments to Subchapters 1, 2, 8, and
Appendix Q. On May 16, 2018, Mr. Michael Teague, Secretary of Energy
and Environment, submitted revisions to the Oklahoma SIP that included
updates and amendments to OAC 252:4, relevant Oklahoma statutes, and a
clarification letter dated May 16, 2018, about how the Oklahoma public
notice process addresses the requirements for PSD public notice. On
December 19, 2018, Mr. Michael Teague, Secretary of Energy and
Environment, submitted revisions to the Oklahoma SIP that included the
annual SIP updates for 2018, with amendments to OAC 252:100,
Subchapters 2, 8, and Appendix Q. Collectively, the submitted revisions
update the incorporation by reference of Federal requirements, the
general SIP provisions and New Source Review (NSR) permit programs to
address public notice and modeling requirements.
II. The EPA's Evaluation
The accompanying Technical Support Document (TSD) for this action
includes a detailed analysis of the submitted revisions to the Oklahoma
SIP. Our analysis indicates that the May 16, 1994; July 16, 2010;
January 8, 2018; May 16, 2018; and December 19, 2018, SIP revisions
were developed in accordance with the CAA and the State provided
reasonable notice and public hearing.
General SIP Updates
On May 16, 1994, the Governor of Oklahoma submitted a
recodification of the existing Oklahoma regulations as a revision to
the Oklahoma SIP; as part of this recodification the State of Oklahoma
requested that we remove Regulation 3.8 from the SIP. The EPA has
determined that the provisions of Regulation 3.8, approved into the
Oklahoma SIP on August 15, 1983, address the control of emissions of
hazardous air pollutants (HAPs) and therefore do not need to be
included in the Oklahoma SIP. Control of HAP emissions is appropriately
addressed through the delegation of NESHAP and MACT standards; see the
EPA's recent approval at 83 FR 53183 (October 22, 2018).
The January 8, 2018, submittal updated the general
definitions applicable to the entire Oklahoma SIP at OAC 252:100-1-3 to
be consistent with Federal requirements. The definition of ``building,
facility, or installation'' was revised to be consistent with the
requirements at 40 CFR 51.165(a)(1)(ii)(A) and (B) and 40 CFR
51.166(b)(6)(i) and (ii). The definition of ``carbon dioxide equivalent
emissions'' was revised to delete the Greenhouse Gas (GHG) Biomass
Deferral provisions.\1\ On May 23, 2016, the EPA disapproved the GHG
Biomass Deferral revisions to the definition of ``carbon dioxide
equivalent emissions'' at OAC 252:100-1-3 in the January 8, 2013, SIP
submittal. See 81 FR 32239. The deletion of the provisions in the
January 8, 2018, submittal is approvable as consistent with Federal
requirements for permitting of GHGs and the EPA's May 23, 2016,
disapproval. Additionally, removal of the GHG Biomass Deferral
provisions from the definition will enable the EPA to remove the
disapproval at 40 CFR 52.1922(c).
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\1\ On July 12, 2013, the D.C. Circuit, in Center for Biological
Diversity v. EPA, 722 F.3d 401, vacated the provisions of the GHG
Biomass Deferral. Due to a series of extension requests and
rehearing proceedings, the court did not issue its mandate making
the vacatur effective until August 10, 2015. However, the GHG
Biomass Deferral expired by its own terms on July 21, 2014.
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The revisions to OAC 252:100, Subchapter 2 and Appendix Q
submitted on January 8 and December 19, 2018, update the incorporation
by reference dates so the Oklahoma SIP maintains consistency with
Federal requirements. The State of Oklahoma is also incorporating by
reference the requirements of the EPA's Guideline on Air Quality Models
at 40 CFR part 51, appendix W; this updated incorporation ensures that
the ODEQ will apply the current EPA models and requirements for SIP and
air permit modeling needs.
The May 16, 2018, Oklahoma SIP submittal included several
revisions to existing SIP-approved requirements at OAC 252:4, Rules of
Practice and Procedure, applicable to the entirety of the Oklahoma SIP.
The submittal included revisions to OAC 252:4, Subchapter 1--General
Provisions adopted May 6, 2005, April 25, 2013, and June 9, 2016; OAC
252:4, Subchapter 3--Meetings and Public Forums adopted March 27, 2007;
and OAC 252:4, Subchapter 9--Administrative Proceedings, Part 3--
Individual Proceedings adopted May 1, 2009, and April 25, 2013. The
submitted revisions clarify existing SIP-approved requirements and
update internal cross-references to other Oklahoma regulations.
The May 16, 2018, Oklahoma SIP submittal included several
revisions to the existing permit-related SIP requirements at OAC 252:4,
Subchapter 7--Environmental Permit Process adopted on March 28, 2002;
March 25, 2003, April 25, 2013, and June 13, 2017. OAC 252:4-7-5 has
been expanded to clarify how the ODEQ processes permit fees and fee
refunds. OAC 252:4-7-13
[[Page 66105]]
has been revised to include new public notice requirements. Revisions
to OAC 252:4-7-13(g)(1)-(3) adopted on March 25, 2003, ensure
consistency with Federal public notice requirements at 40 CFR
51.166(q)(2)(iii) by requiring public notices to be published in a
newspaper of general circulation, identify the emissions changes
involved in the modification, and require written notice to neighboring
states where the air quality may be impacted. Revisions to OAC 252:4-7-
13(g)(5) adopted on June 13, 2017, require public notices for PSD
permits to specify the degree of increment consumption and that public
notices for PSD permits are sent to the applicant, EPA Administrator,
and officials and agencies having cognizance over the location of the
proposed construction, consistent with the Federal PSD requirements at
40 CFR 51.166(q)(2)(iii) and (iv), discussed more fully in the section
about PSD public notice requirements.\2\ Section OAC 252:4-7-18 has
been expanded to clarify how the ODEQ will review and correct a permit
prior to issuance. Section OAC 252:4-7-20 has been added to specify the
process of ODEQ review of a final permit decision and the contents of
the final permit decision administrative record. The SIP-approved
portions of OAC 252:4-7-32 have been renumbered; the EPA is only
addressing the renumbering in this proposal. Section OAC 252:4-7-33 has
been expanded to include new 7-33(c)(3) which requires Tier II public
notice for the SIP-approved plant-wide emission plan approvals at OAC
252:100, Subchapters 37 or 39.
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\2\ The EPA is taking no action on the severable revision to OAC
252:4-7-13(g)(4) adopted on March 25, 2003, and submitted May 16,
2018. This adopted provision is specific to operating permits, which
are addressed through a state's part 70 program rather than the SIP.
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The new provisions at OAC 252:4-17-1--OAC 252:4-17-7
adopted on April 27, 2007, and the revisions to OAC 252:4-17-2 and OAC
252:4-17-4 adopted on June 9, 2016, submitted as a revision to the
Oklahoma SIP on May 16, 2018, establish the requirements for Cross-
Media Electronic Reporting Rule (CROMERR) compliant electronic
reporting under 40 CFR parts 51 and 52 in the State of Oklahoma. The
EPA has separately evaluated and approved the Oklahoma Electronic
Document Receiving System as CROMERR compliant. See 73 FR 58587, 79 FR
55792, and 81 FR 36301. The requirements at OAC 252:4-17-1 through OAC
252:4-17-7 are approvable as revisions to the Oklahoma SIP consistent
with the requirements of 40 CFR 51.286.
The EPA has determined it is appropriate to approve the general
revisions to the Oklahoma SIP discussed above because these revisions
maintain consistency with Federal requirements and will not interfere
with any applicable requirement concerning attainment and reasonable
further progress or any other applicable CAA requirements.
PSD Updates
The State of Oklahoma submitted revisions to the PSD Program on
January 8, 2018, that were adopted on June 13, 2017 at OAC 252:100-8-
31, Definitions; OAC 252:100-8-33, Exemptions; and OAC 252:100-8-35,
Air quality impact evaluation. Additional revisions to OAC 252:100-8-35
were adopted on June 18, 2018 and submitted on December 19, 2018.
The submitted revisions to OAC 252:100-8-31, update the
definitions of: (1) ``Regulated NSR Pollutant'' to be consistent with
the Federal requirements at 40 CFR 51.166(b)(49); (2) ``Significant''
to be consistent with the Federal requirements at 40 CFR 51.166(b)(23);
and (3) ``Subject to regulation'' to remove the GHG Biomass Deferral
and GHG PSD permitting requirements for non-anyway sources to be
consistent with the Federal requirements at 40 CFR 51.166(b)(48). On
May 23, 2016, the EPA disapproved the GHG Biomass Deferral and GHG PSD
permitting requirements for non-anyway sources in the definition of
``Subject to regulation'' at OAC 252:100-8-31 in the January 8, 2013
SIP submittal. See 81 FR 32239. Approval of the revisions to the
definition of ``Subject to regulation'' will allow the EPA to remove
the disapproval of the Oklahoma non-anyway permitting provisions at 40
CFR 52.1922(b)(2) and the disapproval of the GHG Biomass Deferral at 40
CFR 52.1922(c).
The revisions to OAC 252:100-8-33 update the PSD
Exemptions consistent with Federal requirements. The provisions at OAC
252:100-8-33(a)(2) have been updated to reflect the Federal
requirements at 40 CFR 51.166(i)(2) for nonattainment designations for
revoked NAAQS. The exemptions from air quality analysis requirements at
OAC 252:100-8-33(c) have been updated to remove the significant
monitoring concentration exemption for PM2.5, consistent
with the Federal PSD requirements at 40 CFR 51.166(i)(5)(i) and the
EPA's prior disapproval on October 28, 2016. See 81 FR 74921. As a
result of this change, the EPA will remove the disapproval at 40 CFR
52.1920(b)(3).
The revisions to OAC 252:100-8-35(a) adopted June 13, 2017
and submitted January 8, 2018, remove the provisions establishing
PM2.5 significant impact levels. The EPA previously
disapproved the provisions at OAC 252:100-8-35(a)(2) on October 28,
2016. See 81 FR 74921. The deletion of these provisions from the State
regulations is consistent with Federal PSD requirements at 40 CFR
51.166(k)(2) and addresses our disapproval. As such, the EPA will
remove the disapproval at 40 CFR 52.1922(b)(4).
The revisions to OAC 252:100-8-35(b) adopted June 18, 2018
and submitted December 19, 2018, remove the incorporation by reference
date of the EPA's Guideline on Air Quality Models at 40 CFR part 51,
appendix W. This revision is necessary to update the Oklahoma PSD SIP
to use the current version of the EPA's Guideline on Air Quality
Modeling, consistent with Federal PSD requirements at 40 CFR 51.166(l).
The removal of the IBR date in OAC 252:100-8-35(b) works with the
updated incorporation by reference dates submitted in OAC 252:100,
Subchapter 2 and Appendix Q. As the EPA makes updates to appendix W,
the ODEQ will update the Oklahoma SIP IBR dates in OAC 252:100,
Subchapter 2 and Appendix Q, thereby ensuring the Oklahoma PSD program
will be updated in the future.
The revisions to OAC 252:100-8-35(c) adopted June 18, 2018
and submitted December 19, 2018, remove the incorporation by reference
date of the EPA's 40 CFR part 58, appendix B. The removal of this date
ensures the Oklahoma SIP can use the latest version of 40 CFR part 58,
appendix B, consistent with the Federal PSD permitting requirements at
40 CFR 51.166(m)(3).
The EPA has determined it is appropriate to approve the revisions
to the Oklahoma PSD program submitted January 8 and December 19, 2018,
as discussed above because these revisions maintain consistency with
Federal requirements and will not interfere with any applicable
requirement concerning attainment and reasonable further progress or
any other applicable CAA requirements.
NNSR Updates
The State of Oklahoma submitted revisions to the NNSR Program on
January 8, 2018 that were adopted on June 13, 2017 at OAC 252:100-8-
51.1, Emissions reductions and offsets. The submitted revisions update
the incorporation by reference date of 40 CFR 51.165(a)(11) to April 6,
2015, consistent with the effective date of the
[[Page 66106]]
revisions promulgated by the EPA on March 6, 2015 to address the NNSR
permitting requirements for the 2008 ozone standard. See 80 FR 12264.
The March 6, 2015, final rule specifies that emission offsets for NNSR
permitting must be for the same regulated pollutant; states have the
discretion to allow interprecursor trading for either ozone or direct
PM2.5 emissions only if this discretion is identified in the
SIP. The State of Oklahoma is attainment for both ozone and
PM2.5; there is no requirement for the Oklahoma SIP to
include an NNSR program for either ozone or PM2.5, or to
identify whether the State will exercise its discretionary authority to
allow interprecursor trading to satisfy emission offset requirements.
We can propose approval of the revisions to OAC 252:100-8-51.1 because
the State has incorporated by reference Federal permitting
requirements. However, if the State of Oklahoma is designated
nonattainment for ozone or PM2.5 at any time in the future,
a subsequent SIP revision would be necessary to provide for
interprecursor trading for emission offsets.
PSD Public Notice Updates
On June 15, 2006, the State of Oklahoma adopted, and submitted on
July 26, 2010, a new provision for PSD Public Notice at OAC 252:100-8-
36.1. This section relies on the separate authorities found at OAC
252:4 and 27A Oklahoma Statutes (O.S.) 2-5-112 and 27A O.S. 2-14-101 to
2-14-304 to satisfy the Federal public notice requirements for PSD
permit applications. On May 16, 2018, the State of Oklahoma submitted a
revision to the Oklahoma SIP that included revisions to OAC 252:4,
updated versions of the Oklahoma Statutes, and a clarification letter
dated May 16, 2018 regarding PSD public notice requirements. The EPA's
evaluation of how these regulations and statutes satisfy PSD public
notice requirements is summarized below. The full analysis is contained
in the TSD for this action.
40 CFR 51.166(q)(1) requires that the permitting authority
will notify all applicants within a specified time period as to the
completeness of the application or any deficiency in the application.
The Oklahoma SIP satisfies 40 CFR 51.166(q)(1) through OAC 252:4-7-7,
which requires the ODEQ to complete an administrative completeness
review within 60 calendar days from receipt of the permit application.
If the application is deemed incomplete, then the applicant is notified
by mail of the deficiencies and supplemental information is requested.
The EPA SIP-approved OAC 252:4-7-7 on May 15, 2017. See 82 FR 22281.
40 CFR 51.166(q)(2)(i) requires that within one year after
receipt of a complete application, the reviewing authority will make a
preliminary determination whether construction should be approved,
approved with conditions, or disapproved. The Oklahoma SIP satisfies 40
CFR 51.166(q)(2)(i) through OAC 252:4-7-31, which requires that
construction permits for PSD sources be reviewed and issued or denied
within 365 days. Construction permits generally cover new PSD sources
and modifications to existing PSD sources. The EPA SIP-approved OAC
252:4-7-31 on May 15, 2017. See 82 FR 22281.
40 CFR 51.166(q)(2)(ii) requires that within one year
after receipt of a complete application, the reviewing authority will
make available in at least one location in each region in which the
proposed source is proposed to be constructed a copy of all materials
the applicant submitted, a copy of the preliminary determination, and
any other materials considered in making the preliminary determination.
The Oklahoma SIP satisfies 40 CFR 51.66(q)(2)(ii) through the May 16,
2018 clarification letter, the application of 27A O.S. 2-14-302(A),
302(B), and the definition of ``Record'' at 51 O.S. 24A.3 and OAC
252:4-1-5. Under the definition of ``Record'' at 51 O.S. 24A.3, any
materials provided to the ODEQ during the permit application process
would be considered part of the permit record in the State of Oklahoma.
Section OAC 252:4-1-5 requires the permit record to be available for
public inspection and copying at the ODEQ offices. The ODEQ confirmed
this through the May 16, 2018, clarification letter in which they state
``All applications, including all materials, updates, modeling files,
etc. that are submitted with the application or in support/
clarification of the application, are considered part of the
application, and, along with the Department's draft permit decision and
analysis, are available for public review in the Department's main
Oklahoma City office (and/or Tulsa office) (regardless of Tier).'' In
addition, 27A O.S. 2-14-302(B) (applicable to Tier II and Tier III
applications, per 27A O.S. 2-14-302(A)) requires the applicant upon
publication of notice of a draft permit, to make the draft permit and
the application available for public review at a location in the county
where the proposed new site or existing facility is located.
40 CFR 51.166(q)(2)(iii) requires that within one year of
receipt of a complete application, the reviewing authority will provide
public notice in a newspaper of general circulation in each region in
which the proposed source would be constructed of the application, the
preliminary determination, the expected degree of increment consumption
and the opportunity for comment at a public hearing as well as written
comments. The Oklahoma SIP satisfies 40 CFR 51.166(q)(2)(iii) through
the May 16, 2018 clarification letter, the submitted revisions to OAC
252:4-7-13(g)(5) and the application of 27A O.S. 2-14-301 and 2-14-302.
The Oklahoma SIP relies on newspaper notice for the consistent method
of noticing under the Federal PSD requirements. 27A O.S. 2-14-301
requires that a permit applicant publish notice of filing in a local
newspaper. 27A O.S. 2-14-302 requires that the public notice of the
draft permit be provided by the applicant in a local newspaper; notice
of a draft denial will be provided by the ODEQ in a local newspaper.
The notice of the draft permit or denial will provide 30 days for
public comment and the opportunity to request a public meeting. The
revisions to OAC 252:4-7-13(g)(5) require that all published notices
for a PSD permit application must include the expected degree of
increment consumption.
40 CFR 51.166(q)(2)(iv) requires that within one year of
receipt of a complete application, the reviewing authority will send a
copy of the notice of public comment to the applicant, the EPA
Administrator, and to officials and agencies having cognizance over the
location where the proposed construction would occur. The Oklahoma SIP
satisfies 40 CFR 51.166(q)(2)(iv) through the May 16, 2018
clarification letter, the submitted revisions to OAC 252:4-7-13(g) and
the application of 27A O.S. 2-14-302. 27A O.S. 2-14-302 requires public
notice of the draft permit or denial through the local newspaper. OAC
252:4-7-13(g)(1) requires that permit applicants give notice to
individuals on a mailing list maintained by the ODEQ. The revisions to
OAC 252:4-7-13(g)(5) specify that the mailing list for PSD permit
applicants must include the applicant; the EPA Administrator; chief
executives of the city and county where the source would be located;
any comprehensive regional land use planning agency; and any State,
Federal Land Manager or Tribal Government whose lands may be affected
by emissions from the source or modifications.
40 CFR 51.166(q)(2)(v) requires that within one year from
receipt of a complete application, the reviewing authority must provide
opportunity for
[[Page 66107]]
a public hearing for interested persons to appear and submit written or
oral comments. The Oklahoma SIP satisfies 40 CFR 51.166(q)(2)(v)
through the May 16, 2018 clarification letter and the application of
27A O.S. 2-14-302 and 27A O.S. 2-14-303. 27A O.S. 2-14-302 requires
that a public notice include a 30-day public comment period and the
opportunity to request a formal public meeting. 27A O.S. 2-14-303
provides the rules the ODEQ will follow if a formal meeting is
requested.
40 CFR 51.166(q)(2)(vi) requires that within one year from
receipt of a complete application, the reviewing authority will
consider all comments, both written and oral, and make all comments
available for public inspection. The Oklahoma SIP satisfies 40 CFR
51.166(q)(2)(vi) through the May 16, 2018 clarification letter, the
definition of ``response to comments'' at 27A O.S. 2-14-103, the
application of 27A O.S. 2-14-304, the definition of ``Record'' at 51
O.S. 24A.3, and OAC 252:4-1-5. Through the definition of ``record'',
any comments submitted either written or oral, would be considered part
of the ODEQ's permitting record and pursuant to OAC 252:4-1-5, must be
available at the ODEQ offices. The ODEQ is required to prepare a
response to comments document consistent with the definition at 27A
O.S. 2-14-103 and the requirements at 27A O.S. 2-14-304.
40 CFR 51.166(q)(2)(vii) requires that within one year
from receipt of a complete application, the reviewing authority will
make a final determination on the permit application. The Oklahoma SIP
satisfies 40 CFR 51.166(q)(2)(vii) through OAC 252:4-7-31 which
requires that construction permits for PSD sources be reviewed and
issued or denied within 365 days. This would apply to a new PSD source
or modification to an existing PSD source. EPA SIP-approved OAC 252:4-
7-31 on May 15, 2017. See 82 FR 22281.
40 CFR 51.166(q)(2)(viii) requires that within one year
from receipt of a complete application, the reviewing authority will
notify the applicant in writing of the final determination and make the
notification available for public inspection. The Oklahoma SIP
satisfies 40 CFR 51.166(q)(2)(viii) through the May 16, 2018
clarification letter, the submitted revisions to OAC 252:4-7-20(c), the
requirements at OAC 252:4-7-31, the application of 27A O.S. 2-14-304,
27A O.S. 2-14-304(C)(2), 27A O.S. 2-14-304(F), and the definition of
``Record'' at 51 O.S. 24A.3. OAC 252:4-7-31 requires that PSD
construction permits will be issued or denied within one year from
receipt of a complete application. The EPA SIP-approved the
requirements at OAC 252:4-7-31 on November 26, 2010. See 75 FR 72695.
27A O.S. 2-14-304 requires the ODEQ to give notice of the final permit
decision to the applicant. The new requirements at OAC 252:4-7-20(c)
identify the elements of the permit administrative record that must be
prepared by the ODEQ, including the final permit. In addition, OAC
252:4-1-5 requires the record to be available for public inspection at
the ODEQ offices.
The EPA has also determined we need to approve portions of the
submitted Oklahoma statutes into the Oklahoma SIP because they provide
unique authorities not provided elsewhere through Oklahoma regulation.
Specifically, the following statutory provisions are necessary for the
Oklahoma SIP to satisfy the PSD public notice requirements:
Definitions of ``Process Meeting'' and ``Response to
Comments'' at 27A 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.
The EPA has determined it is appropriate to approve the above
identified statutory provisions and regulatory revisions into the
Oklahoma SIP because these revisions maintain consistency with Federal
requirements for PSD public notice and will not interfere with any
applicable requirement concerning attainment and reasonable further
progress or any other applicable CAA requirements.
III. Proposed Action
We are proposing to approve under section 110 of the CAA, revisions
to the Oklahoma SIP that revise the incorporation by reference dates
for Federal requirements and update the NSR PSD and NNSR permitting
programs to maintain consistency with Federal requirements. We have
determined that the revisions submitted on May 16, 1994; July 26, 2010;
January 8, 2018; May 16, 2018; and December 19, 2018, as clarified by
letter dated May 16, 2018, were developed in accordance with the CAA
and EPA's regulations, policy, and guidance for SIP development and NSR
permitting. The EPA proposes approval of 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:
[cir] Revisions to OAC 252:100-1-3, Definitions, adopted on June
13, 2017 and effective September 15, 2017;
[cir] Revisions to OAC 252:100-2-3 and Appendix Q for Incorporation
by Reference, adopted on June 13, 2017 and effective September 15,
2017;
[cir] Revisions to OAC 252:100-8-31, Definitions, adopted on June
13, 2017 and effective September 15, 2017;
[cir] Revisions to OAC 252:100-8-33, Exemptions, adopted on June
13, 2017 and effective September 15, 2017;
[cir] Revisions to OAC 252:100-8-35, Air quality impact evaluation,
adopted on June 13, 2017 and effective September 15, 2017; and
[cir] 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:
[cir] Revisions to OAC 252:4-1-2, Definitions, adopted on June 9,
2016, effective September 15, 2016;
[cir] 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;
[cir] 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;
[cir] Revisions to OAC 252:4-1-6, Administrative fees, adopted on
May 6, 2005, effective June 15, 2005;
[cir] Revisions to OAC 252:4-3-1, Meetings, adopted on March 27,
2007, effective June 15, 2007;
[[Page 66108]]
[cir] Revisions to OAC 252:4-7-5, Fees and fee refunds, adopted on
June 13, 2017, effective September 15, 2017;
[cir] 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 April 25, 2013, effective July 1, 2013;
[cir] 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;
[cir] Revisions to OAC 252:4-7-18, Pre-issuance permit review and
correction, adopted April 25, 2013, effective July 1, 2013;
[cir] New OAC 252:4-7-20, Agency review of final permit decision,
adopted April 25, 2013, effective July 1, 2013;
[cir] Revisions to OAC 252:4-7-32, Air quality applications -Tier
I, adopted March 25, 2003, effective June 1, 2003;
[cir] 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);
[cir] 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;
[cir] Revisions to OAC 252:4-9-51, In general, adopted on March 24,
2004, effective June 1, 2004;
[cir] Revisions to OAC 252:4-9-52, Individual proceedings, adopted
on March 24, 2004, effective June 1, 2004;
[cir] 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;
[cir] Revisions to OAC 252:4-17-2, Definitions, adopted June 9,
2016, effective September 15, 2016;
[cir] Revisions to OAC 252:4-17-4, Electronic signature agreement,
adopted June 9, 2016, effective September 15, 2016;
[cir] 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)'';
[cir] Definitions of ``Process Meeting'' and ``Response to
Comments'' at 27A O.S. 2-14-103 added July 1, 1994, and last modified
and effective November 1, 2015;
[cir] 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;
[cir] 27A O.S. 2-14-301, 2-14-302, and 2-14-303 added and in effect
July 1, 1996;
[cir] 27A O.S. 2-14-304 added July 1, 1996, and last modified and
effective May 9, 2002;
[cir] Definition of ``Record'' at 51 O.S. 24A.3, added November 1,
1985, and last modified and effective November 1, 2014;
[cir] 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;
[cir] 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
[cir] Definition of ``Meeting'' at 25 O.S. 304(2) added October 1,
1977, and last modified and effective in 2010.
Submitted December 19, 2018:
[cir] Revisions to OAC 252:100-2-3 and Appendix Q adopted on June
18, 2018 and effective September 15, 2018; and
[cir] Revisions to OAC 252:100-8-35, Air quality impact evaluation,
adopted on June 18, 2018 and effective September 15, 2018.
The EPA is proposing 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) should be
modified to reflect this finding. Additionally, the EPA proposes to
remove the disapprovals listed in 40 CFR 52.1922(b)(2), (3), and (4)
and (c), because the State has submitted appropriate revisions to the
SIP to correct the disapprovals.
IV. Incorporation by Reference
In this action, we are proposing to include in a final rule
regulatory text that includes incorporation by reference. In accordance
with the requirements of 1 CFR 51.5, we are proposing to incorporate by
reference revisions to the Oklahoma regulations and statutes as
described in the Proposed Action section above. We have made, and will
continue to make, these documents generally available electronically
through www.regulations.gov and in hard copy at the EPA Region 6 office
(please contact the person identified in the FOR FURTHER INFORMATION
CONTACT section of this preamble for more information).
V. Statutory and Executive Order Reviews
Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the Act and applicable
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, the EPA's role is to approve state choices,
provided that they meet the criteria of the CAA. Accordingly, this
action merely proposes to approve state law as meeting Federal
requirements and does not impose additional requirements beyond those
imposed by state law. For that reason, this action:
Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Orders
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21,
2011);
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, 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 an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
Is not subject to requirements of section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the CAA; and
Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, the SIP is not approved to apply on any Indian reservation
land or in any other area where EPA or an Indian tribe has demonstrated
that a tribe has jurisdiction. In those areas of Indian country, the
proposed 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).
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
[[Page 66109]]
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen
dioxide, Ozone, Particulate matter, Reporting and recordkeeping
requirements, Sulfur oxides, Volatile organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: November 21, 2019.
Kenley McQueen,
Regional Administrator, Region 6.
[FR Doc. 2019-25954 Filed 12-2-19; 8:45 am]
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