Approval and Promulgation of Air Quality Implementation Plans; Oklahoma; Infrastructure Requirements for 1997 8-Hour Ozone and the 1997 and 2006 PM2.5, 70940-70952 [2011-29638]
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consultation with the FLMs on Regional
Haze issues throughout the
implementation period of the SIP.
D. Periodic SIP Revisions and Five-Year
Progress Reports
Consistent with the requirements of
40 CFR 51.308(g), the District of
Columbia has committed to submitting
a report on reasonable progress (in the
form of a SIP revision) to the EPA every
five years following the initial submittal
of its regional haze SIP.
IV. What action is EPA proposing to
take?
EPA is proposing to approve the
revision to the District of Columbia SIP
submitted by the District of Columbia
through the DDOE on October 27, 2011
that addresses regional haze for the first
implementation period. EPA is
proposing to make a determination that
the District of Columbia Regional Haze
SIP contains the emission reductions
needed to achieve the District of
Columbia’s share of emission reductions
agreed upon through the regional
planning process. Furthermore, the
District of Columbia’s Regional Haze
Plan ensures that emissions from the
District of Columbia will not interfere
with the reasonable progress goals for
neighboring states’ Class I areas.
Accordingly, EPA is proposing to find
that this revision meets the applicable
visibility related requirements of CAA
section 110(a)(2) including but not
limited to 110(a)(2)(D)(i)(II) and
110(a)(2)(J), relating to visibility
protection for the 1997 8–Hour Ozone
NAAQS and the 1997 and 2006 p.m.2.5
NAAQS. EPA is also proposing to
conclude that the Regional Haze Plan
submitted by the District of Columbia
also satisfies the BART requirements of
section 169A of the CAA. EPA is
soliciting public comments on the
issues discussed in this document.
These comments will be considered
before taking final action.
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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
CAA and applicable Federal regulations.
42 U.S.C. 7410(k); 40 CFR 52.02(a).
Thus, in reviewing SIP submissions,
EPA’s role is to approve state choices,
provided that they meet the criteria of
the 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 proposed action:
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• Is not a ‘‘significant regulatory
action’’ subject to review by the Office
of Management and Budget under
Executive Order 12866 (58 FR 51735,
October 4, 1993);
• 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, this proposed rule
approving the District of Columbia’s
Regional Haze Plan does not have tribal
implications as specified by Executive
Order 13175 (65 FR 67249, November 9,
2000), because the SIP is not approved
to apply in Indian country located in the
state, and EPA notes that it will not
impose substantial direct costs on tribal
governments or preempt tribal law.
List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Nitrogen dioxide,
Particulate matter, Reporting and
recordkeeping requirements, Sulfur
oxides, Visibility, Volatile organic
compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: November 8, 2011.
W.C. Early,
Acting, Regional Administrator, Region III.
[FR Doc. 2011–29595 Filed 11–15–11; 8:45 am]
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ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R06–OAR–2008–0637; FRL -9492–8]
Approval and Promulgation of Air
Quality Implementation Plans;
Oklahoma; Infrastructure
Requirements for 1997 8-Hour Ozone
and the 1997 and 2006 PM2.5 NAAQS
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
EPA is proposing to approve
submittals from the State of Oklahoma
pursuant to the Clean Air Act (CAA or
Act) that address the infrastructure
elements specified in the CAA section
110(a)(2), necessary to implement,
maintain, and enforce the 1997 8-hour
ozone and the 1997 and 2006 fine
particulate matter (PM2.5) national
ambient air quality standards (NAAQS
or standards). We are proposing to find
that the current Oklahoma State
Implementation Plan (SIP) meets the
following infrastructure elements for the
1997 8-hour ozone NAAQS and the
1997 and 2006 PM2.5 NAAQS:
110(a)(2)(A), (B), (C), (D)(ii), (E), (F), (G),
(H), (J), (K), (L), and (M). EPA is also
proposing to find that emissions from
sources in Oklahoma do not interfere
with measures required in the SIP of
any other state under part C of the Act
to prevent significant deterioration of air
quality, with regard to the 2006 PM2.5
NAAQS. This action is being taken
under section 110 and part C of the Act.
DATES: Comments must be received on
or before December 16, 2011.
ADDRESSES: Submit your comments,
identified by Docket No. EPA–R06–
OAR–2008–0637, by one of the
following methods:
• Federal Rulemaking Portal: https://
www.regulations.gov. Follow the online
instructions for submitting comments.
• U.S. EPA Region 6 ‘‘Contact Us’’
Web site: https://epa.gov/region6/
r6comment.htm. Please click on ‘‘6PD
(Multimedia)’’ and select ‘‘Air’’ before
submitting comments.
• Email: Mr. Guy Donaldson at
donaldson.guy@epa.gov. Please also
send a copy by email to the person
listed in the FOR FURTHER INFORMATION
CONTACT section below.
• Fax: Mr. Guy Donaldson, Chief, Air
Planning Section (6PD–L), at fax
number (214) 665–7263.
• Mail: Mr. Guy Donaldson, Chief,
Air Planning Section (6PD–L),
Environmental Protection Agency, 1445
Ross Avenue, Suite 1200, Dallas, Texas
75202–2733.
SUMMARY:
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• Hand or Courier Delivery: Mr. Guy
Donaldson, Chief, Air Planning Section
(6PD–L), Environmental Protection
Agency, 1445 Ross Avenue, Suite 1200,
Dallas, Texas 75202–2733. Such
deliveries are accepted only between the
hours of 8 a.m. and 4 p.m. weekdays,
and not on legal holidays. Special
arrangements should be made for
deliveries of boxed information.
Instructions: Direct your comments to
Docket ID No. EPA–R06–OAR–2008–
0637. EPA’s policy is that all comments
received will be included in the public
docket without change and may be
made available online at https://
www.regulations.gov, including any
personal information provided, unless
the comment includes information
claimed to be Confidential Business
Information (CBI) or other information
whose disclosure is restricted by statute.
Do not submit information that you
consider to be CBI or otherwise
protected through https://
www.regulations.gov or email. The
https://www.regulations.gov web site is
an ‘‘anonymous access’’ system, which
means EPA will not know your identity
or contact information unless you
provide it in the body of your comment.
If you send an email comment directly
to EPA without going through https://
www.regulations.gov, your email
address will be automatically captured
and included as part of the comment
that is placed in the public docket and
made available on the Internet. If you
submit an electronic comment, EPA
recommends that you include your
name and other contact information in
the body of your comment and with any
disk or CD–ROM you submit. If EPA
cannot read your comment due to
technical difficulties and cannot contact
you for clarification, EPA may not be
able to consider your comment.
Electronic files should avoid the use of
special characters, any form of
encryption, and be free of any defects or
viruses. For additional information
about EPA’s public docket visit the EPA
Docket Center homepage at https://
www.epa.gov/epahome/dockets.htm.
Docket: All documents in the docket
are listed in the https://
www.regulations.gov index. Although
listed in the index, some information is
not publicly available, e.g., CBI or other
information whose disclosure is
restricted by statute. Certain other
material, such as copyrighted material,
will be publicly available only in hard
copy. Publicly available docket
materials are available either
electronically in https://
www.regulations.gov or in hard copy at
the Air Planning Section (6PD–L),
Environmental Protection Agency, 1445
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Ross Avenue, Suite 700, Dallas, Texas
75202–2733. The file will be made
available by appointment for public
inspection in the Region 6 FOIA Review
Room between the hours of 8:30 a.m.
and 4:30 p.m. weekdays except for legal
holidays. Contact the person listed in
the FOR FURTHER INFORMATION CONTACT
paragraph below or Mr. Bill Deese at
(214) 665–7253 to make an
appointment. If possible, please make
the appointment at least two working
days in advance of your visit. There will
be a fee of 15 cents per page for making
photocopies of documents. On the day
of the visit, please check in at the EPA
Region 6 reception area at 1445 Ross
Avenue, Suite 700, Dallas, Texas.
The State submittal is also available
for public inspection during official
business hours, by appointment, at the
Oklahoma Department of Environmental
Quality (ODEQ), Air Quality Division,
707 North Robinson, P.O. Box 1677,
Oklahoma City, Oklahoma 73101–1677.
FOR FURTHER INFORMATION CONTACT: Mr.
Terry Johnson, Air Planning Section
(6PD–L), Environmental Protection
Agency, Region 6, 1445 Ross Avenue,
Suite 700, Dallas, Texas 75202–2733,
telephone (214) 665–2154; fax number
(214) 665–6762; email address
johnson.terry@epa.gov.
SUPPLEMENTARY INFORMATION:
Throughout this document, ‘‘we,’’ ‘‘us,’’
and ‘‘our’’ means EPA.
Table of Contents
I. Background
A. What are the National Ambient Air
Quality Standards?
B. What is a SIP?
C. What is the background for this
rulemaking?
D. What elements are required under
Section 110(a)(2)?
II. What action is EPA proposing?
III. How has Oklahoma addressed the
elements of Section 110(a)(2)?
IV. Proposed Action
V. Statutory and Executive Order Reviews
I. Background
A. What are the National Ambient Air
Quality Standards?
Section 109 of the Act requires EPA
to establish NAAQS for pollutants that
‘‘may reasonably be anticipated to
endanger public health and welfare,’’
and to develop a primary and secondary
standard for each NAAQS. The primary
standard is designed to protect human
health with an adequate margin of
safety, and the secondary standard is
designed to protect public welfare and
the environment. EPA has set NAAQS
for six common air pollutants, referred
to as criteria pollutants: carbon
monoxide, lead, nitrogen dioxide,
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ozone, particulate matter (PM), and
sulfur dioxide. These standards present
state and local governments with the
minimum air quality levels they must
meet to comply with the Act. Also,
these standards provide information to
residents of the United States about the
air quality in their communities.
B. What is a SIP?
The SIP is a set of air pollution
regulations, control strategies, other
means or techniques, and technical
analyses developed by the state, to
ensure that the state meets the NAAQS.
The SIP is required by section 110 and
other provisions of the Act. These SIPs
can be extensive, containing state
regulations or other enforceable
documents and supporting information
such as emissions inventories,
monitoring networks, and modeling
demonstrations. Each state must submit
these regulations and control strategies
to EPA for approval and incorporation
into the Federally-enforceable SIP. Each
Federally-approved SIP protects air
quality primarily by addressing air
pollution at its point of origin.
C. What is the background for this
rulemaking?
Under sections 110(a)(1) and (2) of the
Act, states are required to submit SIPs
that provide for the implementation,
maintenance, and enforcement (the
infrastructure) of a new or revised
NAAQS within three years following
the promulgation of the NAAQS, or
within such shorter period as EPA may
prescribe. Section 110(a)(2) lists the
specific infrastructure elements that
must be incorporated into the SIPs,
including for example, requirements for
emission inventories, new source
review (NSR), air pollution control
measures, and monitoring that are
designed to assure attainment and
maintenance of the NAAQS. Table 1 in
Section D of this rulemaking provides a
list of all 14 infrastructure elements.1
On July 18, 1997, we published new
and revised NAAQS for ozone (62 FR
38856) and PM (62 FR 38652). For
ozone, we set an 8-hour standard of 0.08
1 Two elements identified in section 110(a)(2) are
not governed by the 3-year submission deadline of
section 110(a)(1) because SIPs incorporating
necessary local nonattainment area controls are not
due within 3 years after promulgation of a new or
revised NAAQS, but rather are due at the time the
nonattainment area plan requirements are due
pursuant to section 172 of the CAA. These elements
are: (1) Submissions required by section
110(a)(2)(C) to the extent that subsection refers to
a permit program as required in part D Title I of
the CAA and (2) submissions required by section
110(a)(2)(I) which pertain to the nonattainment
planning requirements of part D Title I of the CAA.
Therefore, this action does not cover these specific
SIP elements.
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parts per million (ppm) to replace the
1-hour standard of 0.12 ppm. For PM we
set a new annual and a new 24-hour
NAAQS for particles with an
aerodynamic diameter less than or equal
to a nominal 2.5 micrometers (denoted
PM2.5). The annual PM2.5 standard was
set at 15 micrograms per cubic meter
(mg/m3). The 24-hour PM2.5 standard
was set at 65 mg/m3. On October 17,
2006, we published revised standards
for PM (71 FR 61144). For PM2.5, the
annual standard of 15 mg/m3 was
retained, and the 24-hour standard was
revised to 35 mg/m3. For PM10 the
annual standard was revoked, and the
24-hour standard (150 mg/m3) was
retained. For more information on these
standards, please see the 1997 and 2006
Federal Register notices (62 FR 38856,
62 FR 38652, and 71 FR 61144).
Thus, states were required to submit
such SIPs for the 1997 8-hour ozone and
PM2.5 NAAQS to EPA no later than June
2000.2 However, intervening litigation
over the 1997 8-hour ozone and PM2.5
NAAQS created uncertainty about how
to proceed, and many states did not
provide the required ‘‘infrastructure’’
SIP submission for these newly
promulgated NAAQS.
On March 4, 2004, Earthjustice
submitted a notice of intent to sue
related to EPA’s failure to issue findings
of failure to submit related to the
infrastructure requirements for the 1997
8-hour ozone and PM2.5 NAAQS. EPA
entered into a consent decree with
Earthjustice which required EPA, among
other things, to complete a Federal
Register notice announcing EPA’s
determinations pursuant to section
110(k)(1)(B) of the Act as to whether
each state had made complete
submissions to meet the requirements of
section 110(a)(2) for the 1997 8-hour
ozone NAAQS by December 15, 2007.
Subsequently, EPA received an
extension of the date to complete this
Federal Register notice until March 17,
2008, based upon agreement to make the
findings with respect to submissions
made by January 7, 2008. In accordance
with the consent decree, EPA made
completeness findings for each state
based upon what the Agency had
received from each state as of January 7,
2008. With regard to the 1997 PM2.5
2 EPA issued a revised 8-hour ozone standard on
March 27, 2008 (73 FR 16436). On September 16,
2009, the EPA Administrator announced that EPA
would take rulemaking action to reconsider the
2008 primary and secondary ozone NAAQS. On
January 19, 2010, EPA proposed to set different
primary and secondary ozone standards than those
set in 2008 to provide requisite protection of public
health and welfare, respectively (75 FR 2938). On
September 22, 2011, EPA clarified that the current
ozone standard is set at 75 ppb. This rulemaking
does not address the 2008 ozone standard.
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NAAQS, EPA entered into a consent
decree with Earthjustice, which
required EPA, among other things, to
complete a Federal Register notice
announcing EPA’s determinations
pursuant to section 110(k)(1)(B) of the
Act as to whether each state had made
complete submissions to meet the
requirements of section 110(a)(2) for the
1997 PM2.5 NAAQS by October 5, 2008.
On March 27, 2008, and October 22,
2008, we published findings concerning
whether states had made the 110(a)(2)
submissions for the 1997 ozone (73 FR
16205) and PM2.5 standards (73 FR
62902). In the March 27, 2008 action,
we found that Oklahoma made
submissions that addressed some, but
not all of the requirements of section
110(a)(2) of the Act necessary to
implement the 1997 8-hour ozone
NAAQS. As required by section
110(a)(2)(C) and (J), Oklahoma had
failed to submit a SIP addressing
changes to the part C Prevention of
Significant Deterioration (PSD) permit
program required by the November 29,
2005 (70 FR 71612, page 71699) final
rule that made nitrogen oxides (NOX) a
precursor for ozone in the part C
regulations at 40 CFR 51.166 and in 40
CFR 52.21. In the October 22, 2008
action, we found that Oklahoma failed
to make a submittal to satisfy the
requirements of section 110(a)(2) of the
Act necessary to implement the 1997
PM2.5 NAAQS.
On October 2, 2007 we issued
‘‘Guidance on SIP Elements Required
Under Section 110(a)(1) and (2) for the
1997 8-hour Ozone and PM2.5 National
Ambient Air Quality Standards,’’
Memorandum from William T. Harnett,
Director, Air Quality Policy Division
(AQPD), Office of Air Quality Planning
and Standards (OAQPS).3 On September
25, 2009, we issued ‘‘Guidance on SIP
Elements Required Under Sections
110(a)(1) and (2) for the 2006 24-Hour
Fine Particle (PM2.5) National Ambient
Air Quality Standards (NAAQS),’’
Memorandum also from William T.
Harnett, Director, AQPD, OAQPS. Each
of these guidance memos addresses the
SIP elements found in 110(a)(2). In each
of these guidance memos, the guidance
states that, to the extent that existing
SIPs already meet the requirements,
states need only certify that fact to us.
On December 5, 2007 the ODEQ
submitted a letter certifying that the
Oklahoma SIP includes all the
requirements in section 110(a)(1) and (2)
of the Act for implementation of the
1997 8-hour ozone NAAQS. The letter
3 This and any other guidance documents
referenced in this action are in the docket for this
rulemaking.
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also stated that ODEQ would evaluate
the particulate matter provisions of the
Oklahoma SIP for consistency with
Federal requirements.
On June 24, 2010 the ODEQ submitted
a letter certifying that the Oklahoma SIP
includes all the requirements in section
110(a)(1) and (2) of the Act for
implementation of the 1997 PM2.5
NAAQS. Attached to the certification
letter was supporting information that
identified the Oklahoma SIP provisions,
regulations and statutes that support the
section 110(a)(2) infrastructure elements
for the NAAQS. At this time, ODEQ also
submitted revisions to their PSD SIP
that addressed NOX as a precursor to
ozone. EPA approved the SIP revisions
incorporating NOX as an ozone
precursor (see 75 FR 72695, November
26, 2010).
On April 5, 2011 the ODEQ submitted
a letter, including supporting
information, certifying that the
Oklahoma SIP includes all the
requirements in section 110(a)(1) and (2)
of the Act for implementation of the
2006 revisions to the PM2.5 NAAQS.
Additional information: EPA is
currently acting upon SIPs that address
the infrastructure requirements of CAA
section 110(a)(1) and (2) for ozone and
PM2.5 NAAQS for various states across
the country. Commenters on EPA’s
recent proposals for some states raised
concerns about EPA statements that it
was not addressing certain substantive
issues in the context of acting on those
infrastructure SIP submissions.4 Those
commenters specifically raised concerns
involving provisions in existing SIPs
and with EPA’s statements in other
proposals that it would address two
issues separately and not as part of
actions on the infrastructure SIP
submissions: (i) Existing provisions
related to excess emissions during
periods of start-up, shutdown, or
malfunction at sources, that may be
contrary to the CAA and EPA’s policies
addressing such excess emissions
(‘‘SSM’’); and (ii) existing provisions
related to ‘‘director’s variance’’ or
‘‘director’s discretion’’ that purport to
permit revisions to SIP approved
emissions limits with limited public
process or without requiring further
approval by EPA, that may be contrary
to the CAA (‘‘director’s discretion’’).
EPA notes that there are two other
4 See, Comments of Midwest Environmental
Defense Center, dated May 31, 2011. Docket # EPA–
R05–OAR–2007–1179 (adverse comments on
proposals for three states in Region 5). EPA notes
that these public comments on another proposal are
not relevant to this rulemaking and do not have to
be directly addressed in this rulemaking. EPA will
respond to these comments in the appropriate
rulemaking action to which they apply.
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substantive issues for which EPA
likewise stated in other proposals that it
would address the issues separately: (i)
Existing provisions for minor source
new source review programs that may
be inconsistent with the requirements of
the CAA and EPA’s regulations that
pertain to such programs (‘‘minor source
NSR’’); and (ii) existing provisions for
Prevention of Significant Deterioration
programs that may be inconsistent with
current requirements of EPA’s ‘‘Final
NSR Improvement Rule,’’ 67 FR 80186
(December 31, 2002), as amended by 72
FR 32526 (June 13, 2007) (‘‘NSR
Reform’’). In light of the comments, EPA
believes that its statements in various
proposed actions on infrastructure SIPs
with respect to these four individual
issues should be explained in greater
depth. It is important to emphasize that
EPA is taking the same position with
respect to these four substantive issues
in this action on the infrastructure SIP
submittals for the 1997 8-hour ozone
NAAQS and the 1997 and 2006 PM2.5
NAAQS submissions from Oklahoma.
EPA intended the statements in the
other proposals concerning these four
issues merely to be informational, and
to provide general notice of the
potential existence of provisions within
the existing SIPs of some states that
might require future corrective action.
EPA did not want states, regulated
entities, or members of the public to be
under the misconception that the
Agency’s approval of the infrastructure
SIP submission of a given state should
be interpreted as a reapproval of certain
types of provisions that might exist
buried in the larger existing SIP for such
state. Thus, for example, EPA explicitly
noted that the Agency believes that
some states may have existing SIP
approved SSM provisions that are
contrary to the CAA and EPA policy,
but that ‘‘in this rulemaking, EPA is not
proposing to approve or disapprove any
existing State provisions with regard to
excess emissions during SSM of
operations at facilities.’’ EPA further
explained, for informational purposes,
that ‘‘EPA plans to address such State
regulations in the future.’’ EPA made
similar statements, for similar reasons,
with respect to the director’s discretion,
minor source NSR, and NSR Reform
issues. EPA’s objective was to make
clear that approval of an infrastructure
SIP for these ozone and PM2.5 NAAQS
should not be construed as explicit or
implicit reapproval of any existing
provisions that relate to these four
substantive issues. EPA is reiterating
that position in this action on these
infrastructure SIP submittals for
Oklahoma.
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Unfortunately, the commenters and
others evidently interpreted these
statements to mean that EPA considered
action upon the SSM provisions and the
other three substantive issues to be
integral parts of acting on an
infrastructure SIP submission, and
therefore that EPA was merely
postponing taking final action on the
issues in the context of the
infrastructure SIPs. This was not EPA’s
intention. To the contrary, EPA only
meant to convey its awareness of the
potential for certain types of
deficiencies in existing SIPs, and to
prevent any misunderstanding that it
was reapproving any such existing
provisions. EPA’s intention was to
convey its position that the statute does
not require that infrastructure SIPs
address these specific substantive issues
in existing SIPs and that these issues
may be dealt with separately, outside
the context of acting on the
infrastructure SIP submission of a state.
To be clear, EPA did not mean to imply
that it was not taking a full final agency
action on the infrastructure SIP
submission with respect to any
substantive issue that EPA considers to
be a required part of acting on such
submissions under section 110(k) or
under section 110(c). Given the
confusion evidently resulting from
EPA’s statements in those other
proposals, however, we want to explain
more fully the Agency’s reasons for
concluding that these four potential
substantive issues in existing SIPs may
be addressed separately from actions on
infrastructure SIP submissions.
The requirement for the SIP
submissions at issue arises out of CAA
section 110(a)(1). That provision
requires that states must make a SIP
submission ‘‘within 3 years (or such
shorter period as the Administrator may
prescribe) after the promulgation of a
national primary ambient air quality
standard (or any revision thereof)’’ and
that these SIPS are to provide for the
‘‘implementation, maintenance, and
enforcement’’ of such NAAQS. Section
110(a)(2) includes a list of specific
elements that ‘‘[e]ach such plan’’
submission must meet. EPA has
historically referred to these particular
submissions that states must make after
the promulgation of a new or revised
NAAQS as ‘‘infrastructure SIPs.’’ This
specific term does not appear in the
statute, but EPA uses the term to
distinguish this particular type of SIP
submission designed to address basic
structural requirements of a SIP from
other types of SIP submissions designed
to address other different requirements,
such as ‘‘nonattainment SIP’’
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submissions required to address the
nonattainment planning requirements of
part D, ‘‘regional haze SIP’’ submissions
required to address the visibility
protection requirements of CAA section
169A, new source review permitting
program submissions required to
address the requirements of part D, and
a host of other specific types of SIP
submissions that address other specific
matters.
Although section 110(a)(1) addresses
the timing and general requirements for
these infrastructure SIPs, and section
110(a)(2) provides more details
concerning the required contents of
these infrastructure SIPs, EPA believes
that many of the specific statutory
provisions are facially ambiguous. In
particular, the list of required elements
provided in section 110(a)(2) contains a
wide variety of disparate provisions,
some of which pertain to required legal
authority, some of which pertain to
required substantive provisions, and
some of which pertain to requirements
for both authority and substantive
provisions.5 Some of the elements of
section 110(a)(2) are relatively
straightforward, but others clearly
require interpretation by EPA through
rulemaking, or recommendations
through guidance, in order to give
specific meaning for a particular
NAAQS.6
Notwithstanding that section 110(a)(2)
provides that ‘‘each’’ SIP submission
must meet the list of requirements
therein, EPA has long noted that this
literal reading of the statute is internally
inconsistent, insofar as section
110(a)(2)(I) pertains to nonattainment
SIP requirements that could not be met
on the schedule provided for these SIP
submissions in section 110(a)(1).7 This
5 For example, section 110(a)(2)(E) provides that
states must provide assurances that they have
adequate legal authority under state and local law
to carry out the SIP; section 110(a)(2)(C) provides
that states must have a substantive program to
address certain sources as required by part C of the
CAA; section 110(a)(2)(G) provides that states must
have both legal authority to address emergencies
and substantive contingency plans in the event of
such an emergency.
6 For example, section 110(a)(2)(D)(i) requires
EPA to be sure that each state’s SIP contains
adequate provisions to prevent significant
contribution to nonattainment of the NAAQS in
other states. This provision contains numerous
terms that require substantial rulemaking by EPA in
order to determine such basic points as what
constitutes significant contribution. See, e.g., ‘‘Rule
To Reduce Interstate Transport of Fine Particulate
Matter and Ozone (Clean Air Interstate Rule);
Revisions to Acid Rain Program; Revisions to the
NOX SIP Call; Final Rule,’’ 70 FR 25162 (May 12,
2005) (defining, among other things, the phrase
‘‘contribute significantly to nonattainment’’).
7 See, e.g., Id., 70 FR 25162, at 63–65 (May 12,
2005) (explaining relationship between timing
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illustrates that EPA must determine
which provisions of section 110(a)(2)
may be applicable for a given
infrastructure SIP submission.
Similarly, EPA has previously decided
that it could take action on different
parts of the larger, general
‘‘infrastructure SIP’’ for a given NAAQS
without concurrent action on all
subsections, such as section
110(a)(2)(D)(i), because the Agency
bifurcated the action on these latter
‘‘interstate transport’’ provisions within
section 110(a)(2) and worked with states
to address each of the four prongs of
section 110(a)(2)(D)(i) with substantive
administrative actions proceeding on
different tracks with different
schedules.8 This illustrates that EPA
may conclude that subdividing the
applicable requirements of section
110(a)(2) into separate SIP actions may
sometimes be appropriate for a given
NAAQS where a specific substantive
action is necessitated, beyond a mere
submission addressing basic structural
aspects of the state’s SIP. Finally, EPA
notes that not every element of section
110(a)(2) would be relevant, or as
relevant, or relevant in the same way,
for each new or revised NAAQS and the
attendant infrastructure SIP submission
for that NAAQS. For example, the
monitoring requirements that might be
necessary for purposes of section
110(a)(2)(B) for one NAAQS could be
very different than what might be
necessary for a different pollutant. Thus,
the content of an infrastructure SIP
submission to meet this element from a
state might be very different for an
entirely new NAAQS, versus a minor
revision to an existing NAAQS.9
Similarly, EPA notes that other types
of SIP submissions required under the
statute also must meet the requirements
of section 110(a)(2), and this also
demonstrates the need to identify the
applicable elements for other SIP
submissions. For example,
nonattainment SIPs required by part D
likewise have to meet the relevant
subsections of section 110(a)(2) such as
section 110(a)(2)(A) or (E). By contrast,
requirement of section 110(a)(2)(D) versus section
110(a)(2)(I)).
8 EPA issued separate guidance to states with
respect to SIP submissions to meet section
110(a)(2)(D)(i) for the 1997 ozone and 1997 PM2.5
NAAQS. See, ‘‘Guidance for State Implementation
Plan (SIP) Submissions to Meet Current
Outstanding Obligations Under Section
110(a)(2)(D)(i) for the 8-Hour Ozone and PM2.5
National Ambient Air Quality Standards,’’ from
William T. Harnett, Director Air Quality Policy
Division OAQPS, to Regional Air Division Director,
Regions I–X, dated August 15, 2006.
9 For example, implementation of the 1997 PM
2.5
NAAQS required the deployment of a system of
new monitors to measure ambient levels of that new
indicator species for the new NAAQS.
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it is clear that nonattainment SIPs
would not need to meet the portion of
section 110(a)(2)(C) that pertains to part
C, i.e., the PSD requirements applicable
in attainment areas. Nonattainment SIPs
required by part D also would not need
to address the requirements of section
110(a)(2)(G) with respect to emergency
episodes, as such requirements would
not be limited to nonattainment areas.
As this example illustrates, each type of
SIP submission may implicate some
subsections of section 110(a)(2) and not
others.
Given the potential for ambiguity of
the statutory language of section
110(a)(1) and (2), EPA believes that it is
appropriate for EPA to interpret that
language in the context of acting on the
infrastructure SIPs for a given NAAQS.
Because of the inherent ambiguity of the
list of requirements in section 110(a)(2),
EPA has adopted an approach in which
it reviews infrastructure SIPs against
this list of elements ‘‘as applicable.’’ In
other words, EPA assumes that Congress
could not have intended that each and
every SIP submission, regardless of the
purpose of the submission or the
NAAQS in question, would meet each
of the requirements, or meet each of
them in the same way. EPA elected to
use guidance to make recommendations
for infrastructure SIPs for these ozone
and PM2.5 NAAQS.
On October 2, 2007, EPA issued
guidance making recommendations for
the infrastructure SIP submissions for
both the 1997 8-hour ozone NAAQS and
the 1997 PM2.5 NAAQS.10 Within this
guidance document, EPA described the
duty of states to make these submissions
to meet what the Agency characterized
as the ‘‘infrastructure’’ elements for
SIPs, which it further described as the
‘‘basic SIP requirements, including
emissions inventories, monitoring, and
modeling to assure attainment and
maintenance of the standards.’’ 11 As
further identification of these basic
structural SIP requirements,
‘‘attachment A’’ to the guidance
document included a short description
of the various elements of section
110(a)(2) and additional information
about the types of issues that EPA
considered germane in the context of
such infrastructure SIPs. EPA
emphasized that the description of the
basic requirements listed on attachment
A was not intended ‘‘to constitute an
10 See, ‘‘Guidance on SIP Elements Required
Under Section 110(a)(1) and (2) for the 1997 8-hour
Ozone and PM2.5 National Ambient Air Quality
Standards,’’ from William T. Harnett, Director Air
Quality Policy Division, to Air Division Directors,
Regions I–X, dated October 2, 2007 (the ‘‘2007
Guidance’’).
11 Id., at page 2.
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interpretation of’’ the requirements, and
was merely a ‘‘brief description of the
required elements.’’ 12 EPA also stated
its belief that with one exception, these
requirements were ‘‘relatively self
explanatory, and past experience with
SIPs for other NAAQS should enable
States to meet these requirements with
assistance from EPA Regions.’’ 13 For the
one exception to that general
assumption, however, i.e., how states
should proceed with respect to the
requirements of section 110(a)(2)(G) for
the 1997 PM2.5 NAAQS, EPA gave much
more specific recommendations. But for
other infrastructure SIP submittals, and
for certain elements of the submittals for
the 1997 PM2.5 NAAQS, EPA assumed
that each State would work with its
corresponding EPA regional office to
refine the scope of a State’s submittal
based on an assessment of how the
requirements of section 110(a)(2) should
reasonably apply to the basic structure
of the State’s SIP for the NAAQS in
question.
On September 25, 2009, EPA issued
guidance to make recommendations to
states with respect to the infrastructure
SIPs for the 2006 PM2.5 NAAQS.14 In the
2009 Guidance, EPA addressed a
number of additional issues that were
not germane to the infrastructure SIPs
for the 1997 8-hour ozone and 1997
PM2.5 NAAQS, but were germane to
these SIP submissions for the 2006
PM2.5 NAAQS, e.g., the requirements of
section 110(a)(2)(D)(i) that EPA had
bifurcated from the other infrastructure
elements for those specific 1997 ozone
and PM2.5 NAAQS.
Significantly, neither the 2007
Guidance nor the 2009 Guidance
explicitly referred to the SSM, director’s
discretion, minor source NSR, or NSR
Reform issues as among specific
substantive issues EPA expected states
to address in the context of the
infrastructure SIPs, nor did EPA give
any more specific recommendations
with respect to how states might address
such issues even if they elected to do so.
The SSM and director’s discretion
issues implicate section 110(a)(2)(A),
12 Id.,
at attachment A, page 1.
at page 4. In retrospect, the concerns raised
by commenters with respect to EPA’s approach to
some substantive issues indicates that the statute is
not so ‘‘self explanatory,’’ and indeed is sufficiently
ambiguous that EPA needs to interpret it in order
to explain why these substantive issues do not need
to be addressed in the context of infrastructure SIPs
and may be addressed at other times and by other
means.
14 See, ‘‘Guidance on SIP Elements Required
Under Sections 110(a)(1) and (2) for the 2006 24Hour Fine Particle (PM2.5) National Ambient Air
Quality Standards (NAAQS),’’ from William T,
Harnett, Director Air Quality Policy Division, to
Regional Air Division Directors, Regions I–X, dated
September 25, 2009 (the ‘‘2009 Guidance’’).
13 Id.,
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and the minor source NSR and NSR
Reform issues implicate section
110(a)(2)(C). In the 2007 Guidance and
the 2009 Guidance, however, EPA did
not indicate to states that it intended to
interpret these provisions as requiring a
substantive submission to address these
specific issues in existing SIP provisions
in the context of the infrastructure SIPs
for these NAAQS. Instead, EPA’s 2007
Guidance merely indicated its belief
that the states should make submissions
in which they established that they have
the basic SIP structure necessary to
implement, maintain, and enforce the
NAAQS. EPA believes that states can
establish that they have the basic SIP
structure, notwithstanding that there
may be potential deficiencies within the
existing SIP. Thus, EPA’s proposals for
other states mentioned these issues not
because the Agency considers them
issues that must be addressed in the
context of an infrastructure SIP as
required by section 110(a)(1) and (2),
but rather because EPA wanted to be
clear that it considers these potential
existing SIP problems as separate from
the pending infrastructure SIP actions.
The same holds true for this action on
the infrastructure SIP submittals for
Oklahoma.
EPA believes that this approach to the
infrastructure SIP requirement is
reasonable, because it would not be
feasible to read section 110(a)(1) and (2)
to require a top to bottom, stem to stern,
review of each and every provision of an
existing SIP merely for purposes of
assuring that the state in question has
the basic structural elements for a
functioning SIP for a new or revised
NAAQS. Because SIPs have grown by
accretion over the decades as statutory
and regulatory requirements under the
CAA have evolved, they may include
some outmoded provisions and
historical artifacts that, while not fully
up to date, nevertheless may not pose a
significant problem for the purposes of
‘‘implementation, maintenance, and
enforcement’’ of a new or revised
NAAQS when EPA considers the overall
effectiveness of the SIP. To the contrary,
EPA believes that a better approach is
for EPA to determine which specific SIP
elements from section 110(a)(2) are
applicable to an infrastructure SIP for a
given NAAQS, and to focus attention on
those elements that are most likely to
need a specific SIP revision in light of
the new or revised NAAQS. Thus, for
example, EPA’s 2007 Guidance
specifically directed states to focus on
the requirements of section 110(a)(2)(G)
for the 1997 PM2.5 NAAQS because of
the absence of underlying EPA
regulations for emergency episodes for
this NAAQS and an anticipated absence
of relevant provisions in existing SIPs.
Finally, EPA believes that its
approach is a reasonable reading of
section 110(a)(1) and (2) because the
statute provides other avenues and
mechanisms to address specific
substantive deficiencies in existing SIPs.
These other statutory tools allow the
Agency to take appropriate tailored
action, depending upon the nature and
severity of the alleged SIP deficiency.
70945
Section 110(k)(5) authorizes EPA to
issue a ‘‘SIP call’’ whenever the Agency
determines that a state’s SIP is
substantially inadequate to attain or
maintain the NAAQS, to mitigate
interstate transport, or otherwise to
comply with the CAA.15 Section
110(k)(6) authorizes EPA to correct
errors in past actions, such as past
approvals of SIP submissions.16
Significantly, EPA’s determination that
an action on the infrastructure SIP
submittal is not the appropriate time
and place to address all potential
existing SIP problems does not preclude
the Agency’s subsequent reliance on
provisions in section 110(a)(2) as part of
the basis for action at a later time. For
example, although it may not be
appropriate to require a state to
eliminate all existing inappropriate
director’s discretion provisions in the
course of acting on the infrastructure
SIP, EPA believes that section
110(a)(2)(A) may be among the statutory
bases that the Agency cites in the course
of addressing the issue in a subsequent
action.17
D. What elements are required under
section 110(a)(2)?
Pursuant to the October 2, 2007, EPA
guidance for addressing the SIP
infrastructure elements required under
sections 110(a)(1) and (2) for the 1997
ozone and 1997 and 2006 PM2.5
NAAQS, there are 14 essential
components that must be included in
the SIP. These are listed in Table 1
below.
TABLE 1—SECTION 110(a)(2) ELEMENTS REQUIRED IN SIPS
Clean Air Act citation
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Section
Section
Section
Section
Section
Section
Section
Section
Section
Section
Section
Section
Section
Brief description
110(a)(2)(A) .................................................................................
110(a)(2)(B) .................................................................................
110(a)(2)(C) .................................................................................
110(a)(2)(D) .................................................................................
110(a)(2)(E) .................................................................................
110(a)(2)(F) .................................................................................
110(a)(2)(G) .................................................................................
110(a)(2)(H) .................................................................................
110(a)(2)(J) 18 ..............................................................................
110(a)(2)(J) ..................................................................................
110(a)(2)(J) ..................................................................................
110(a)(2)(K) .................................................................................
110(a)(2)(L) .................................................................................
15 EPA has recently issued a SIP call to rectify a
specific SIP deficiency related to the SSM issue.
See, ‘‘Finding of Substantial Inadequacy of
Implementation Plan; Call for Utah State
Implementation Plan Revision,’’ 74 FR 21639 (April
18, 2011).
16 EPA has recently utilized this authority to
correct errors in past actions on SIP submissions
related to PSD programs. See, ‘‘Limitation of
Approval of Prevention of Significant Deterioration
Provisions Concerning Greenhouse Gas EmittingSources in State Implementation Plans; Final Rule,’’
75 FR 82536 (December 30, 2010). EPA has
previously used its authority under CAA 110(k)(6)
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Emission limits and other control measures.
Ambient air quality monitoring/data system.
Program for enforcement of control measures.
Interstate transport.
Adequate resources.
Stationary source monitoring system.
Emergency power.
Future SIP revisions.
Consultation with government officials.
Public notification.
Prevention of significant deterioration (PSD) and visibility protection.
Air quality modeling/submission of such data.
Permitting fees.
to remove numerous other SIP provisions that the
Agency determined it had approved in error. See,
e.g., 61 FR 38664 (July 25, 1996) and 62 FR 34641
(June 27, 1997) (corrections to American Samoa,
Arizona, California, Hawaii, and Nevada SIPs); 69
FR 67062 (November 16, 2004) (corrections to
California SIP); and 74 FR 57051 (November 3,
2009) (corrections to Arizona and Nevada SIPs).
17 EPA has recently disapproved a SIP submission
from Colorado on the grounds that it would have
included a director’s discretion provision
inconsistent with CAA requirements, including
section 110(a)(2)(A). See, e.g., 75 FR 42342 at 42344
(July 21, 2010) (proposed disapproval of director’s
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discretion provisions); 76 FR 4540 (January 26,
2011) (final disapproval of such provisions).
18 Section 110(a)(2)(I) is omitted from the list.
Section 110(a)(2)(I) pertains to the nonattainment
planning requirements of part D, Title I of the Act.
This section is not governed by the 3-year
submission deadline of section 110(a)(1) because
SIPs incorporating necessary local nonattainment
area controls are not due within 3 years after
promulgation of a new or revised NAAQS, but are
due at the time the nonattainment area plan
requirements are due pursuant to section 172. Thus
this action does not cover section 110(a)(2)(I).
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TABLE 1—SECTION 110(a)(2) ELEMENTS REQUIRED IN SIPS—Continued
Clean Air Act citation
Brief description
Section 110(a)(2)(M) ................................................................................
III. How has Oklahoma addressed the
elements of section 110(a)(2)?
(TSD), located in the docket for this
rulemaking.
Enforceable emission limits and other
control measures, section 110(a)(2)(A):
Section 110(a)(2)(A) requires that all
measures and other elements in the SIP
be enforceable. This provision does not
require the submittal of regulations or
emission limits developed specifically
for attaining the 1997 8-hour ozone and
1997 and 2006 PM2.5 standards. Those
regulations are due later as part of
attainment demonstrations.
Additionally, as explained earlier (see
footnote 1), EPA does not consider SIP
requirements triggered by the
nonattainment area mandates in part D
of Title I of the CAA to be governed by
the submission deadline of section
110(a)(1). Nevertheless, Oklahoma has
included some SIP provisions originally
submitted in response to part D in its
submission documenting its compliance
with the infrastructure requirements of
section 110(a)(1) and (2). Oklahoma has
continually updated the elements of its
SIP revisions submitted in response to
the infrastructure requirements of
section 110(a)(2) and the nonattainment
requirements of part D. For the purposes
of this action, EPA is reviewing any
rules originally submitted in response to
part D solely for the purposes of
determining whether they support a
finding that the state has met the basic
infrastructure requirements under
section 110(a)(2).
The Oklahoma Environmental Quality
Act and the Oklahoma Environmental
Quality Code designate the Oklahoma
Department of Environmental Quality
(ODEQ) as the state air pollution control
agency having jurisdiction for air
quality matters.19 The Oklahoma
Environmental Quality Code establishes
that ODEQ establish an air quality
program for air quality. Further, the
Oklahoma Clean Air Act designates
ODEQ to establish and implement air
quality programs and provides
enforcement authority for regulations
promulgated under the Act.20
The ODEQ has promulgated rules to
limit and control emissions of, among
other things, PM, sulfur compounds
The Oklahoma submittal addresses
the elements of Section 110(a)(2) as
described below. We provide a more
detailed review and analysis of the
Oklahoma infrastructure SIP elements
in the Technical Support Document
19 Except for indoor air quality and asbestos as
regulated for worker safety by the Federal
Occupational Safety and Health Act and by Chapter
11 of Title 40 of the Oklahoma statutes.
20 See 27A O.S.Supp.1995, § 1–1–101; 27A
O.S.Supp.1995, § 2–1–101; Title 27A, §§ 2–5–101 to
2–5–107.
II. What action is EPA proposing?
EPA is proposing to approve the
Oklahoma SIP submittals of December
5, 2007, June 24, 2010, and April 5,
2011, that identify where and how the
14 basic infrastructure elements are in
the EPA-approved SIP as specified in
section 110(a)(2) of the Act. The
Oklahoma submittals do not include
revisions to the SIP, but document how
the current Oklahoma SIP already
includes the required infrastructure
elements. In today’s action, we are
proposing to find that the following
section 110(a)(2) elements are contained
in the current Oklahoma SIP and
provide the infrastructure for
implementing the 1997 ozone and the
1997 and 2006 PM2.5 standards:
emission limits and other control
measures (section 110(a)(2)(A)); ambient
air quality monitoring/data system
(section 110(a)(2)(B)); the program for
enforcement of control measures
(section 110(a)(2)(C)); international and
interstate pollution abatement (section
110(a)(2)(D)(ii)); adequate resources
(section 110(a)(2)(E)); stationary source
monitoring system (section 110(a)(2)(F));
emergency power (section 110(a)(2)(G));
future SIP revisions (section
110(a)(2)(H)); consultation with
government officials (section
110(a)(2)(J)); public notification (section
110(a)(2)(J)); PSD and visibility
protection (section 110(a)(2)(J)); air
quality modeling/data (section
110(a)(2)(K)); permitting fees (section
110(a)(2)(L)); and consultation/
participation by affected local entities
(section 110(a)(2)(M)).
We are also proposing to approve the
Oklahoma SIP provisions that address
the requirement of section
(110)(a)(2)(D)(i)(II) of the Act that
emissions from sources in Oklahoma do
not interfere with measures required in
the SIP of any other state under part C
of the Act to prevent significant
deterioration of air quality for the 2006
PM2.5 NAAQS.
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(including sulfur dioxide or SO2),
nitrogen compounds (including NOX),
and VOCs.21 These rules include
emission limits, control measures,
permits, fees, and compliance schedules
and are found within Title 252, Chapter
100 of the Oklahoma Administrative
Code (denoted 252:100 OAC).
In this action, EPA is not proposing to
approve or disapprove any existing state
provisions with regard to excess
emissions during startup, shutdown, or
malfunction (SSM) of operations at a
facility. EPA believes that a number of
states may have SSM SIP provisions
which are contrary to the Act and
inconsistent with existing EPA
guidance,22 and the Agency plans to
address such state regulations in the
future. In the meantime, EPA
encourages any state having a deficient
SSM provision to take steps to correct
it as soon as possible. Similarly, in this
proposed action EPA does not include
a review of, and also does not propose
to take any action to approve or
disapprove, any existing SIP rules with
regard to director’s discretion or
variance provisions. EPA believes that a
number of states have such provisions
that are contrary to the Act and not
consistent with existing EPA guidance
(52 FR 45044, November 24, 1987) 23
and the Agency plans to take action in
the future to address such state
regulations. In the meantime, EPA
encourages any state having a director’s
discretion or variance provision in its
SIP that is contrary to the Act and
inconsistent with EPA guidance to take
steps to correct the deficiency as soon
as possible.
A detailed list of the applicable rules
at 252:100 OAC, listed above, is
provided in the TSD. The Oklahoma SIP
contains enforceable emission limits
and other control measures, which are
in the federally enforceable SIP. EPA is
21 NO and VOCs are precursors to ozone. PM can
X
be emitted directly and secondarily formed; the
latter is the result of NOX and SO2 precursors
combining with ammonia to form ammonium
nitrate and ammonium sulfate.
22 ‘‘State Implementation Plans (SIPs): Policy
Regarding Excess Emissions During Malfunctions,
Startup, and Shutdown,’’ Memorandum from
Steven A. Herman, Assistant Administrator for
Enforcement and Compliance Assurance, and
Robert Perciasepe, Assistant Administrator for Air
and Radiation, dated September 20, 1999.
23 The section addressing exemptions and
variances is found on p. 45109 of the 1987
rulemaking.
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proposing to determine that the
Oklahoma SIP meets the requirements
of section 110(a)(2)(A) of the Act with
respect to the 1997 8-hour ozone and
1997 and 2006 PM2.5 NAAQS.
Ambient air quality monitoring/data
system, section 110(a)(2)(B): Section
110(a)(2)(B) requires SIPs to include
provisions for establishment and
operation of ambient air quality
monitors, collecting and analyzing
ambient air quality data, and making
these data available to EPA upon
request. The ODEQ operates and
maintains a state-wide network of air
quality monitors; data are collected,
results are quality assured and the data
are submitted to EPA’s Air Quality
System 24 on a regular basis. The
Oklahoma Statewide Air Quality
Surveillance Network was approved by
EPA at 37 FR 10842, 10887 and revised
on March 28, 1979 (44 FR 18490) and
January 12, 1981 (46 FR 2655).
Oklahoma’s monitoring network
includes the State and Local Air
Monitoring Stations (SLAMS), which
measure ambient concentrations of
those pollutants for which standards
have been established in 40 CFR part 50
(46 FR 2655). Oklahoma’s air quality
surveillance network consists of stations
that measure ambient concentrations of
the criteria pollutants, including
ozone 25 and PM2.5. The ODEQ Web site
provides the ozone and PM2.5 monitor
locations and current and historical
data, including ozone design values for
current 26 and past trienniums. On June
30, 2010, ODEQ submitted its 2010
Annual Air Monitoring Network Plan
(AAMNP) that addresses each of the
criteria pollutants, including 8-hour
ozone and PM2.5 and thus allows the
state to measure its air quality for
compliance with the 1997 ozone and
1997 and 2006 PM2.5 NAAQS. EPA
approved the 2010 AAMNP on January
12, 2011.27
In summary, Oklahoma meets the
requirements to establish, operate, and
24 The Air Quality System (AQS) is EPA’s
repository of ambient air quality data. AQS stores
data from over 10,000 monitors, 5,000 of which are
currently active. State, Local and Tribal agencies
collect the data and submit it to AQS on a periodic
basis.
25 During the ozone monitoring season, the ozone
monitors are constantly running and recording onehour ozone averages. Oklahoma submits the hourly
data into AQS, where the 8-hour averages are
computed. Oklahoma also computes the 8-hour
averages and posts the data at https://
www.deq.state.ok.us/AQDnew/monitoring/
index.htm.
26 The current design values reflect the 2008–
2010 ozone season data.
27 A copy of our approval letter is in the docket
for this rulemaking. At the time of this writing, the
review of the 2011 AAMNP has not been
completed.
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maintain an ambient air monitoring
network, collect and analyze the
monitoring data, and make the data
available to EPA upon request. The EPA
is proposing to find that the current
Oklahoma SIP meets the requirements
of section 110(a)(2)(B) of the Act for the
1997 ozone and 1997 and 2006 PM2.5
NAAQS.
Program for enforcement of control
measures and regulation of the
modification and construction of
stationary sources, including a permit
program, pursuant to section
110(a)(2)(C): In its submittal for the
1997 8-hour ozone NAAQS, the ODEQ
did not specifically address this element
of section 110(a)(2)(C). The ODEQ did,
however, include a review of
enforcement of control measures,
including review of proposed new
sources, contained in its SIP in its June
24, 2010 and April 5, 2011 certifications
regarding the 1997 and 2006 PM2.5
NAAQS, respectively.
The ODEQ has requisite enforcement
authority as provided under the
Oklahoma Environmental Quality Act,
Oklahoma Environmental Quality Code
and the Oklahoma Clean Air Act.28 The
administrative proceedings for
enforcement actions, including
administrative compliance orders and
determination of penalty, are provided
under 252 OAC chapter 4, subchapter 9.
Among the issues addressed in 252 OAC
chapter 100, subchapters 3, 5, 8, 9, 13,
17, 19, 23, 24, 25, 31, 33, 37, 39, 43, and
Appendices A, C–G and L, are allowable
emission rates, compliance, control plan
requirements, control schedules,
monitoring and testing requirements,
and reporting and recordkeeping
requirements. These clarify the
boundaries beyond which regulated
entities in Oklahoma can expect
enforcement action.
To meet the requirement for having a
program for the regulation of the
modification and construction of any
stationary source within the areas
covered by the plan as necessary to
assure that NAAQS are achieved,
including a permit program as required
by Parts C and D, generally, the State is
required to have SIP-approved PSD,
Nonattainment, and Minor NSR
permitting programs adequate to
implement the 1997 8-hour ozone and
the 1997 and 2006 PM2.5 NAAQS. As
discussed previously, we are not
evaluating nonattainment-related
provisions, such as the nonattainment
NSR program required by part D in
110(a)(2)(C) and measures for
attainment required by section
110(a)(2)(I), as part of the infrastructure
SIPs for these three NAAQS because
these submittals are required beyond the
date (3 years from NAAQS
promulgation) that section 110
infrastructure submittals are required.
PSD programs apply in areas that are
meeting the NAAQS or are
unclassifiable, referred to as areas in
attainment. PSD applies to new major
sources and major modifications at
existing sources. Oklahoma’s PSD
program was initially approved into the
SIP on August 25, 1983 (see 48 FR
38635), giving the State authority to
issue PSD permits and enforce them
under its approved PSD SIP. Subsequent
revisions to Oklahoma’s PSD program
were found to be consistent with
Federal regulations, and as such, were
approved by EPA into the SIP on
February 12, 1991 (see 56 FR 05653) and
July 23, 1991 (see 56 FR 33715).
To implement section 110(a)(2)(C) for
the 1997 ozone NAAQS, a state must
have updated its PSD rules to address
NOX as an ozone precursor (70 FR
71612). To meet this requirement
Oklahoma submitted updated PSD rules
for ozone on June 24, 2010, and EPA
approved them on November 26, 2010
(75 FR 72695).
To implement section 110(a)(2)(C) for
the PM2.5 NAAQS, a state must provide
revisions to implement the NAAQS, due
May 16, 2011 (73 FR 28321 May 16,
2008). On July 16, 2010, ODEQ
submitted revisions to the Oklahoma
SIP that amended their PSD program to
meet these PM2.5 NAAQS
implementation requirements. We will
act on this submission in a separate
rulemaking. Previously, on December
29, 2008, EPA approved revisions to the
values for PM significant deterioration
increments in accordance with 40 CFR
51.166.29 We determined these revisions
to the PM PSD increments complied
with EPA’s PSD regulations.
In this action, EPA is not proposing to
approve or disapprove any state rules
with regard to the NSR Reform
requirements. EPA will act on SIP
submittals that were made for purposes
of adopting NSR Reform through a
separate rulemaking process.
Oklahoma has the authority to issue
permits under the SIP-approved PSD
program to sources of GHG emissions
(75 FR 82536, December 30, 2010; 75 FR
77698, December 13, 2010).30 The
Tailoring Rule established thresholds
that phase in the applicability of PSD
29 See
28 See
59 FR 32365 EPA incorporation by
reference, the Oklahoma Environmental Quality
Act; Oklahoma Clean Air Act of 1992.
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70947
73 FR 79400.
view Oklahoma’s letter, in which the State
told EPA it had this authority, please see https://
www.epa.gov/nsr/2010letters/ok.pdf.
30 To
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requirements to GHG sources, starting
with the largest GHG emitters, and were
designed to relieve the overwhelming
administrative burdens and costs
associated with the dramatic increase in
permitting burden that would have
resulted from applying PSD
requirements to GHG emission increases
at or above only the mass-based
statutory thresholds of 100/250 tons per
year generally applicable to all PSDregulated pollutants starting on January
2, 2011. However, EPA recognized that
even after it finalized the Tailoring Rule,
many SIPs with approved PSD programs
would, until they were revised,
continue to apply PSD at the statutory
thresholds, even though the States
would not have sufficient resources to
implement the PSD program at those
levels. EPA consequently implemented
its ‘‘PSD SIP Narrowing Rule’’ and
narrowed its approval of those
provisions of previously approved SIPs
that apply PSD to GHG emissions
increases from sources emitting GHGs
below the Tailoring Rule thresholds (75
FR 82536, December 30, 2010). Through
the PSD SIP Narrowing Rule, EPA
withdrew its previous approvals of
those programs to the extent the SIPs
apply PSD to increases in GHG
emissions from GHG-emitting sources
below the Tailoring Rule thresholds.
The portions of the PSD programs
regulating GHGs from GHG-emitting
sources with emission increases at or
above the Tailoring Rule thresholds
remained approved. The effect of EPA
narrowing its approval in this manner is
that the provisions of previously
approved SIPs that apply PSD to GHG
emissions increases from sources
emitting GHGs below the Tailoring Rule
thresholds have the status of having
been submitted by the State but not yet
acted upon by EPA (75 FR 82536,
December 30, 2010).
Oklahoma submitted to EPA a
supplemental certification, dated
October 24, 2011, certifying that the
portion of the GHG PSD program in the
State’s submittal under infrastructure
SIP review is only the portion that
remained approved after EPA’s
promulgation of the PSD SIP Narrowing
Rule, which is the portion that regulates
GHG-emitting sources with GHG
emissions at or above the Tailoring Rule
thresholds. Therefore, we are proposing
to find that the current Oklahoma PSD
SIP meets section 110(a)(2)(C) with
respect to the 1997 8-hour ozone and
PM2.5 NAAQS.
EPA has determined that Oklahoma’s
minor NSR program adopted pursuant
to section 110(a)(2)(C) of the Act
regulates emissions of ozone and PM2.5
and their precursors. EPA has also been
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made aware of concerns that certain
provisions of some states’ minor NSR
programs adopted pursuant to section
110(a)(2)(C) of the Act may not meet all
the requirements found in EPA’s
regulations implementing that
provision. See 40 CFR 51.160–51.164.
EPA has approved Oklahoma’s minor
NSR program into the SIP and various
revisions pertaining to the minor
program.31 Oklahoma and EPA have
relied upon Oklahoma’s existing minor
NSR program to assure that new and
modified sources not captured by the
major NSR permitting programs do not
interfere with attainment and
maintenance of the NAAQS. In this
action, EPA is proposing to approve
Oklahoma’s infrastructure SIP for the
1997 ozone and 1997 and 2006 PM2.5
standards with respect to the general
requirement in section 110(a)(2)(C) to
include a program in the SIP that
regulates the modification and
construction of any stationary source as
necessary to assure that the NAAQS are
achieved. EPA is not proposing to
approve or disapprove Oklahoma’s
existing minor NSR program itself to the
extent that it is inconsistent with EPA’s
regulations governing this program. EPA
believes that a number of states may
have minor NSR provisions that are
contrary to the existing EPA regulations
for this program. EPA intends to work
with states to reconcile state minor NSR
programs with EPA’s regulatory
provisions for the program. The
statutory requirements of section
110(a)(2)(C) provide for considerable
flexibility in designing minor NSR
programs, and EPA believes it may be
time to revisit the regulatory
requirements for this program in order
to give the states an appropriate level of
flexibility to design programs that meet
their particular air quality concerns,
while assuring reasonable consistency
across the country in protecting the
NAAQS with respect to new and
modified minor sources.
Interstate transport, section
110(a)(2)(D): Section 110(a)(2)(D) has
two components, 110(a)(2)(D)(i) and
110(a)(2)(D)(ii). Section 110(a)(2)(D)(i)
requires SIPs to include provisions
prohibiting any source or other type of
emissions activity in one state from
contributing significantly to
nonattainment, interfering with
maintenance of the NAAQS in another
state, or from interfering with measures
required to prevent significant
deterioration of air quality or to protect
visibility in another state. Section
110(a)(2)(D)(ii) requires SIPs to include
31 See Regulation 1.4 at 48 FR 38635 (0825–1983);
56 FR 33715 (07–23–1991).
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provisions insuring compliance with
sections 115 and 126 of the Act, relating
to interstate and international pollution
abatement.
On April 25, 2005 (70 FR 21147), EPA
published a finding that all States had
failed to submit new SIPs addressing
interstate transport for the 1997 8-hour
ozone and 1997 PM2.5 NAAQS, as
required by section 110(a)(2)(D)(i) of the
CAA. Section 110(a)(2)(D)(i) pertains to
interstate transport of certain emissions.
On August 15, 2006, EPA issued its
‘‘Guidance for State Implementation
Plan (SIP) Submission to Meet Current
Outstanding Obligations Under Section
110(a)(2)(D)(i) for the 8-Hour Ozone and
PM2.5 National Ambient Air Quality
Standards’’ (2006 Guidance). EPA
developed the 2006 Guidance to make
recommendations to states for making
submissions to meet the requirements of
section 110(a)(2)(D)(i) for the 1997
8-hour ozone standards and the 1997
PM2.5 standards. As identified in the
2006 Guidance, the ‘‘good neighbor’’
provisions in section 110(a)(2)(D)(i)
require each state to submit a SIP that
prohibits emissions that adversely affect
another state in the ways contemplated
in the statute. Section 110(a)(2)(D)(i)
contains four distinct requirements
related to the impacts of interstate
transport. The SIP must prevent sources
in the state from emitting pollutants in
amounts which will: (1) Contribute
significantly to nonattainment of the
NAAQS in other states; (2) interfere
with maintenance of the NAAQS in
other states; (3) interfere with provisions
to prevent significant deterioration of air
quality in other states; and (4) interfere
with efforts to protect visibility in other
states.
On November 26, 2010, we found for
the 1997 ozone and PM2.5 standards,
that emissions from sources in
Oklahoma do not interfere with
measures required in the SIP of any
other state under part C of the CAA to
prevent significant deterioration of air
quality (75 FR 72695). On October 17,
2011, we proposed that Oklahoma has
sufficient measures to prevent
significant contribution to
nonattainment or significant
interference with maintenance for the
1997 and 2006 PM2.5 standards (76 FR
64065). In the same action, we proposed
that emissions from Oklahoma do not
contribute to nonattainment of the 1997
ozone standard. We also proposed that
emissions from Oklahoma do, or in the
alternative, do not interfere with
maintenance of the 1997 ozone standard
and also took comment on whether
emissions from Oklahoma do not
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interfere with maintenance.32 In this
rulemaking, we are addressing only the
requirement that pertains to preventing
sources in Oklahoma from emitting
pollutants that will interfere with
measures required to prevent significant
deterioration of air quality in other
states for the 2006 PM2.5 standard. In its
April 5, 2011, submission, Oklahoma
indicated that its current NSR SIP is
adequate to prevent such interference.
The 2006 Guidance states that the
PSD permitting program is the primary
measure that each state must include to
prevent interference with other State’s
programs to prevent significant
deterioration of air quality in
accordance with section
110(a)(2)(D)(i)(II). EPA believes that
Oklahoma’s April 5, 2011, submission is
consistent with the 2006 Guidance,
when considered in conjunction with
the State’s PSD program. As discussed
previously in this rulemaking with
regards to section 110(a)(2)(C) and in the
TSD, the State’s PSD program is in the
SIP and meets the basic requirements
for implementing the PM2.5 NAAQS .
Therefore, EPA is proposing that
Oklahoma has sufficient measures in
place to prevent interference with other
State’s programs to prevent significant
deterioration of the 2006 PM2.5 standard.
Section 110(a)(2)(D)(ii) of the Act
requires compliance with sections 115
and 126 of the Act, relating to interstate
and international pollution abatement.
Section 115(a) addresses endangerment
of public health or welfare in foreign
countries from pollution emitted in the
United States. Pursuant to section 115,
the Administrator has neither received
nor issued a formal notification that
emissions from Oklahoma are
endangering public health or welfare in
a foreign country. Section 126(a) of the
Act requires new or modified sources to
notify neighboring states of potential
impacts from such sources. Oklahoma
PSD permitting regulations at 252 OAC
chapter 100 require that affected states
be notified of permitting actions and be
provided with a copy of the draft permit
no later than the commencement of the
public comment period.33 (75 FR
72695). The state also has no pending
obligations under section 126 of the Act.
EPA is proposing to find that the
Oklahoma SIP meets the requirements
of section 110(a)(2)(D)(ii) of the Act for
32 In the Federal Register notice we stated our
intent to base our interference with maintenance
decision on the final determination for our July 11,
2011, supplemental notice of proposed rulemaking
to include Oklahoma in the Cross State Air
Pollution Rule for the 1997 ozone NAAQS (76 FR
40662).
33 OAC 252:100–8–8(e): Transmission of notice of
draft permit to affected states.
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the 1997 ozone and 1997 and 2006
PM2.5 NAAQS.
Adequate resources, section
110(a)(2)(E): Chapter 9, titled
‘‘Resources,’’ of the Oklahoma SIP was
originally approved on May 31, 1972,
and provides assurances that the State
has the adequate resources, i.e.,
personnel and funding, to carry out
their SIP.34 The Oklahoma
Environmental Quality Act, the
Oklahoma Environmental Code and the
Oklahoma Clean Air Act are codified at
Title 27A of the Oklahoma Statutes,
titled Environment and Natural
Resources.35 Together, these laws name
the ODEQ as the state air control
agency, with principal authority in the
state on matters relating to the quality
of air resources, and charge the ODEQ
with preparing and implementing the
SIP. The Oklahoma Clean Air Act also
authorizes the ODEQ to establish fees to
review and act on permit applications;
amend and review permits; conduct
inspections of facilities; and enforce the
rules and orders of permits.
Additionally, there are Federal
sources of funding for the
implementation of the 1997 8-hour
ozone and 1997 and 2006 PM2.5 NAAQS
through, for example, the CAA sections
103 and 105 grant funds. The ODEQ
receives Federal funds on an annual
basis, under section 105 of the Act, to
support its air quality programs. Fees
collected for the Title V and non-Title
V permit programs also provide
necessary funds to help implement the
State’s air programs. EPA fully approved
Oklahoma’s Title V program at 66 FR
63170 (12/05/01). EPA approved
Oklahoma’s Title 1 program at 48 FR
38635 and 64 FR 59629. More specific
information on permitting fees is
provided in the discussion for
110(a)(2)(L) below and in the TSD.
Section 110(a)(2)(E)(ii) requires that
the state comply with section 128.
Section 128 requires: (1) That the
majority of members of the state body
which approves permits or enforcement
orders do not derive any significant
portion of their income from entities
subject to permitting or enforcement
orders under the CAA; and (2) any
potential conflicts of interest by such
body be adequately disclosed. In 1982,
the EPA approved into the SIP the
Oklahoma Code of Ethics for State
Officials and Employees (47 FR 20771),
and in 1994 EPA incorporated by
reference the Oklahoma Clean Air Act of
34 See
37 FR 10887.
59 FR 32365 (June 23, 1994) for
incorporation by reference of the Oklahoma Clean
Air Act of 1992 and the Oklahoma Environmental
Quality Act.
35 See
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70949
1992 and Oklahoma Environmental
Quality Act that contain, among other
things, financial disclosures, conflicts of
interest and ethical conduct for the
Executive Director of the ODEQ and
classified employees of the agency (See
59 FR 32365 for reference to the Acts).
EPA is proposing to find that the
Oklahoma SIP meets the requirements
of section 110(a)(2)(E) of the Act for the
1997 8-hour ozone and the 1997 and
2006 PM2.5 NAAQS.
Stationary source monitoring system,
section 110(a)(2)(F): The Oklahoma
rules at 252 OAC chapter 100,
subchapters 5, 8, 9, 17, 23, 24, 25, and
43 require that stationary sources
monitor for compliance, provide
recordkeeping and reporting, and
provide for enforcement of ozone, PM2.5,
and precursors to these pollutants (SO2,
ammonia, volatile organic compounds
and NOX). The ODEQ uses this data to
track progress towards maintaining the
NAAQS, develop control and
maintenance strategies, identify sources
and general emission levels, and
determine compliance with Oklahoma
and EPA requirements. These rules have
been approved by EPA for incorporation
into the SIP.
Under the Oklahoma Clean Air Act at
Section 27A–2–5–105, the ODEQ is
required to analyze the emissions data
from point, area, mobile, and biogenic
(natural) sources. The ODEQ uses this
data to track progress towards
maintaining the NAAQS, develop
control and maintenance strategies,
identify sources and general emission
levels, and determine compliance with
Oklahoma and EPA requirements.
Emissions data are available
electronically: https://www.epa.gov/ttn/
chief/eiinformation.html. Oklahoma’s
point source emission inventory (EI) is
available at https://www.deq.state.ok.us/
AQDnew/Emissions/Data.htm.
EPA is proposing to find that the
Oklahoma SIP meets the requirements
of section 110(a)(2)(F) for the
1997 8-hour ozone and the 1997 and
2006 PM2.5 NAAQS.
Emergency power, section
110(a)(2)(G): Section 110(a)(2)(G)
requires states to provide for authority
to address activities causing imminent
and substantial endangerment to public
health, including contingency plans to
implement the emergency episode
provisions in their SIPs. The Executive
Director of the ODEQ is empowered by
the Oklahoma Environmental Quality
Code to respond to air pollution
episodes and other air quality
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emergencies,36 and the ODEQ has
contingency plans to implement
emergency episode provisions in the
SIP. Oklahoma’s Emergency Episode
Plan was approved into the SIP by EPA
on February 12, 1991 (56 FR 05653).
Oklahoma’s Emergency Episode Plan
includes alert, warning, and emergency
levels for emergency episodes involving
PM10 and ozone concentrations. The
episode criteria and contingency
measures are found in the Emergency
Episode Plan. The criteria for ozone are
based on a 1-hour average ozone level.
These episode criteria and contingency
measures are adequate to address ozone
emergency episodes and are in the
federally approved SIP. We propose that
the Oklahoma Emergency Episode Plan
provides for the pollutants specified
under 40 CFR 51.150 and is consistent
with the provisions of 40 CFR 51.151
and 152, and Appendix L to Part 51.
The 2009 Infrastructure SIP Guidance
for PM2.5 recommends that a state with
at least one monitored 24-hour PM2.5
value exceeding 140.4 mg/m3 since 2006
establish an emergency episode plan
and contingency measures to be
implemented should such level be
exceeded again. The 2006–2010 ambient
air quality monitoring data 37 for
Oklahoma do not exceed 140.4 mg/m3.
The PM2.5 levels have consistently
remained below this level (140.4 mg/m3),
and furthermore, the state has
appropriate general emergency powers
to address PM2.5 related episodes to
protect the environment and public
health. Given the state’s monitored
PM2.5 levels, EPA is proposing that
Oklahoma is not required to submit an
emergency episode plan and
contingency measures at this time, for
the 1997 and 2006 PM2.5 standards.
Additional detail is provided in the
TSD.
EPA is proposing to find that the
Oklahoma SIP meets the requirements
of section 110(a)(2)(G) for the 1997 8hour ozone and 1997 and 2006 PM2.5
NAAQS.
Future SIP revisions, section
110(a)(2)(H): The Oklahoma
Environmental Quality Code and the
Oklahoma Clean Air Act direct the
ODEQ to prepare and develop the SIP
and provide ODEQ with the necessary
authority to carry out other duties,
requirements and responsibilities
necessary for the implementation of the
Oklahoma Clean Air Act and fulfilling
36 See Oklahoma Environmental Quality Code at
OS27A–2–3–502E.
37 The ozone and PM data are available through
AQS and the state Web site (https://
www.deq.state.ok.us/AQDnew/monitoring/
index.htm). The AQS data for PM are provided in
the docket for this rulemaking.
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the requirements of the Federal Clean
Air Act (OS 27A 2–5–105). Thus,
Oklahoma has the authority to revise its
SIP from time to time as may be
necessary to take into account revisions
of primary or secondary NAAQS, or the
availability of improved or more
expeditious methods of attaining such
standards. Furthermore, Oklahoma also
has the authority under these Oklahoma
Clean Air Act provisions to revise its
SIP in the event the EPA, pursuant to
the Federal Clean Air Act, finds the SIP
to be substantially inadequate to attain
the NAAQS.
EPA is proposing to find that the
Oklahoma SIP meets the requirements
of section 110(a)(2)(H) for the 1997
8-hour ozone and 1997 and 2006 PM2.5
NAAQS.
Consultation with government
officials, section 110(a)(2)(J): Section 2–
5–105 of the 1992 Oklahoma Clean Air
Act gives the ODEQ the authority to
advise, consult, and cooperate with
other agencies of the State, towns, cities
and counties, industries, other states
and the Federal government, and with
affected groups in the prevention and
control of new and existing air
contamination sources within the State.
Chapter 10 of the original Oklahoma SIP
approved on May 31, 1972 (37 FR
10887), provides for intergovernmental
cooperation. Oklahoma’s
Intergovernmental Consultation Plan
was revised and approved by EPA on
May 14, 1982 (47 FR 20771). The 1990
Oklahoma Visibility Plan was approved
by EPA into the SIP on November 8,
1999 (64 FR 60683), and requires the
ODEQ to notify the FLM of the receipt
of any analysis of the anticipated
impacts on visibility in any Federal
Class I area, and requires the ODEQ to
consider any timely analysis performed
by the FLM and to coordinate with the
FLM in conducting any monitoring of
visibility in the mandatory Federal Class
I area. The Attainment Demonstration
for the Central Oklahoma Early Action
Compact (EAC) Area 38 incorporated a
Memorandum of Agreement (MOA)
between the ODEQ and the Association
of Central Oklahoma Governments
(ACOG) into the Oklahoma SIP,
outlining the duties and responsibilities
of each party for implementation of
pollution control measures for the
Central Oklahoma EAC area. The
Attainment Demonstration for the Tulsa
EAC Area 39 incorporated a MOA
between the ODEQ and the Indian
38 The Attainment Demonstration for the Central
Oklahoma EAC Area was approved by EPA on
August 16, 2005 (70 FR 48078).
39 The Attainment Demonstration for the Tulsa
EAC Area was approved by EPA on August 19, 2005
(70 FR 48645).
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Nation Council of Governments
(INCOG) into the Oklahoma SIP,
outlining the duties and responsibilities
of each party for implementation of
pollution control measures for the Tulsa
Metropolitan Area EAC area.
EPA is proposing to find that the
Oklahoma SIP meets this portion of the
section 110(a)(2)(J) requirements for the
1997 8-hour ozone and the 1997 and
2006 PM2.5 NAAQS.40
Public notification if NAAQS are
exceeded, pursuant to section
110(a)(2)(J): Public notification begins
with the air quality forecasts, which
advise the public of conditions capable
of exceeding the 8-hour ozone and PM2.5
NAAQS. The air quality forecasts can be
found on the ODEQ Web site and
consist of an Air Quality Index (AQI)
forecast with specific information on
individual pollutants of concern, such
as ozone and fine particulate matter.
The AQI forecast includes three areas in
the State.41 AQI forecasts are made daily
throughout the year, and ozone-specific
forecasts are made daily during the
ozone season for each of the three
forecast areas. The ozone forecasts are
made, in most cases, a day in advance
by 2 p.m. local time and are valid for the
next day. When the forecast indicates
that ozone or fine particulate levels will
be above their respective standards, the
State notifies the National Weather
Service, who then broadcasts the
information across its weather wire. The
AQI forecasts and pollutant-specific
advisories are available through email
and pager notification. Furthermore, the
ODEQ publishes an annual Air Data
Report, which summarizes observations
made by the State’s ambient monitoring
network.42 EPA is proposing to find that
the Oklahoma SIP meets this portion of
the section 110(a)(2)(J) requirements for
the 1997 8-hour ozone and 1997 and
2006 PM2.5 NAAQS.
PSD and visibility protection, section
110(a)(2)(J): This portion of section
110(a)(2)(J) in part requires that a state’s
SIP meet the applicable requirements of
section 110(a)(2)(C) as relating to PSD
programs. As discussed previously in
this rulemaking with regards to section
110(a)(2)(C) and in the TSD, Oklahoma
operates its EPA-approved PSD program
under Regulation 1.4.4 ‘‘Major
Sources—Prevention of Significant
40 Section 110(a)(2)(J) is divided into three
segments: consultation with government officials;
public notification; and PSD and visibility
protection.
41 There are three forecast areas in Oklahoma:
Lawton, Oklahoma City, and Tulsa. For more
information, please see https://www.deq.state.ok.us/
aqdnew/AQIndex/AQI.htm.
42 The Annual Air Data Report is available online
at the ODEQ Web site at: https://
www.deq.state.ok.us/mainlinks/reports.htm
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Deterioration (PSD) Requirements for
Attainment Areas’’ (now OAC 252:100–
8, Part 7 and elsewhere in OAC
252:100).
On November 8, 1999 (64 FR 60683),
EPA approved Oklahoma’s Visibility
Protection Plan for the Federal Class I
area.43 In that rulemaking, EPA
determined that Oklahoma’s Visibility
Protection Plan meets the visibility
monitoring and NSR provisions under
40 CFR 51.305 and 51.307, as well as
the visibility implementation control
strategy and long-term strategy
requirements under 40 CFR 51.302 and
51.306. The State’s most recent SIP
revision of its Regional Haze program
was submitted to EPA on February 19,
2010, and we proposed action on it on
March 22, 2011 (76 FR 16168). We
expect to take final action on the
Regional Haze submittal by December
16, 2011. With regard to the applicable
requirements for visibility protection,
EPA recognizes that states are subject to
visibility and regional haze program
requirements under part C of the Act
(which includes sections 169A and
169B). In the event of the establishment
of a new NAAQS, however, the
visibility and regional haze program
requirements under part C do not
change. Thus, we find that there is no
new visibility obligation ‘‘triggered’’
under section 110(a)(2)(J) when a new
NAAQS becomes effective. This would
be the case even in the event a
secondary PM2.5 NAAQS for visibility is
established, because this NAAQS would
not affect visibility requirements under
part C. EPA is therefore proposing to
find that the Oklahoma SIP meets the
visibility protection requirements of
section 110(a)(2)(J) for the 1997 8-hour
ozone and 1997 and 2006 PM2.5
NAAQS.
Air quality and modeling/data,
section 110(a)(2)(K): The Oklahoma
Environmental Quality Act, Oklahoma
Environmental Quality Code and the
Oklahoma Clean Air Act provide ODEQ
with principal authority in the state on
matters relating to the quality of air
resources, and charges the ODEQ with
preparing and implementing the SIP,
which includes modeling to inform
decisions on nonattainment area
boundaries and demonstrate
effectiveness of SIP control strategies.44
The ODEQ has demonstrated its
capacity to perform modeling in past
43 Oklahoma
has one mandatory Class I area. It is
the Wichita Mountains National Wildlife Refuge in
Comanche County near Fort Sill Military
Reservation.
44 Except for indoor air quality and asbestos as
regulated for worker safety by the Federal
Occupational Safety and Health Act and by Chapter
11 of Title 40 of the Oklahoma statutes.
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submitted SIP revisions. For example,
Oklahoma submitted modeling in SIP
revisions for the Oklahoma City and
Tulsa Early Action Compact (EAC)
Areas to demonstrate attainment of the
1997 ozone standard. The modeling in
these SIPs was approved by EPA and
adopted into the SIP.45
EPA is proposing to find that the
Oklahoma SIP meets the requirements
of section 110(a)(2)(K) for the 1997 8hour ozone and the 1997 and 2006 PM2.5
NAAQS.
Permitting fees, section 110(a)(2)(L):
The Oklahoma Environmental Quality
Code authorizes the ODEQ, through the
Board of Environmental Quality, to
promulgate rules regarding permit fees.
See 2–2–101. Whereas 2–5–113 of the
Oklahoma Clean Air Act establishes that
the owner or operator of any source
required to have a permit must pay a
permit fee to cover the cost of
implementing and enforcing
Oklahoma’s permit program. EPA
originally approved Regulation 1.4.1(d)
of the Oklahoma Air Pollution Control
Regulations that provides for permit fees
into the Oklahoma SIP on August 25,
1983 (48 FR 38635). The Oklahoma
regulations have since been reorganized,
and the current fee provisions for
annual operating fees for area and nonarea sources are found at OAC 252:100–
5–2; fee provisions for PSD applications
are found at OAC 252:100–7–3, and fee
provisions for Part 70 sources are found
at OAC 252:100–8–1. EPA is proposing
to find that the Oklahoma SIP meets the
requirements of section 110(a)(2)(L) for
the 1997 8-hour ozone and the 1997 and
2006 PM2.5 NAAQS.
Consultation/participation by affected
local entities, section 110(a)(2)(M):
Section 2–5–105 of the Oklahoma Clean
Air Act authorizes the ODEQ to advise,
consult and cooperate with other
agencies of the State, towns, cities and
counties, industries, other states and the
Federal government, and with affected
groups in the prevention and control of
new and existing air contamination
sources within the State. Oklahoma’s
Intergovernmental Consultation plan
was approved by EPA on May 14, 1982
(47 FR 20771), and consisted of a
process for consultation and planning
with relevant local governmental
organizations having responsibility for
any SIP revision process. As part of the
plan, the State entered into formal
agreements with designated
metropolitan planning organizations for
air quality planning in their respective
45 The Oklahoma City and Tulsa areas were
designated as attainment and participated in the
EAC program. EPA approved the modeling for these
areas on August 16, 2005 (70 FR 48078) and on
August 19, 2005 (70 FR 48645), respectively.
PO 00000
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70951
areas of the State. EPA is proposing to
find that the Oklahoma SIP meets the
requirements of section 110(a)(2)(M) for
the 1997 8-hour ozone and the 1997 and
2006 PM2.5 NAAQS.
VII. Proposed Action
We are proposing to approve the SIP
submittals provided by the State of
Oklahoma to demonstrate that the
Oklahoma SIP meets the requirements
of section 110(a)(1) and (2) of the Act for
the 1997 ozone and the 1997 and 2006
PM2.5 NAAQS.
We are proposing to find that the
current Oklahoma SIP meets the
infrastructure elements for the 1997
ozone and 1997 and 2006 PM2.5
NAAQS:
Emission limits and other control
measures (110(a)(2)(A) of the Act);
Ambient air quality monitoring/data
system (110(a)(2)(B) of the Act);
Program for enforcement of control
measures (110(a)(2)(C) of the Act);
Interstate transport, pursuant to
section 110(a)(2)(D)(ii) of the Act;
Adequate resources (110(a)(2)(E) of
the Act);
Stationary source monitoring system
(110(a)(2)(F) of the Act);
Emergency power (110(a)(2)(G) of the
Act);
Future SIP revisions (110(a)(2)(H) of
the Act);
Consultation with government
officials (110(a)(2)(J) of the Act);
Public notification (110(a)(2)(J) of the
Act);
Prevention of significant deterioration
and visibility protection (110(a)(2)(J) of
the Act);
Air quality modeling data
(110(a)(2)(K) of the Act);
Permitting fees (110(a)(2)(L) of the
Act); and
Consultation/participation by affected
local entities (110(a)(2)(M) of the Act).
We are also proposing to approve the
Oklahoma SIP provisions that address
the requirement of section
(110)(a)(2)(D)(i)(II) of the Act that
emissions from sources in Oklahoma do
not interfere with measures required in
the SIP of any other state under part C
of the Act to prevent significant
deterioration of air quality for the 2006
PM2.5 NAAQS.
V. Statutory and Executive Order
Reviews
Under the Clean Air Act, the
Administrator is required to approve a
SIP submission that complies with the
provisions of the Act and applicable
Federal regulations. 42 U.S.C. 7410(k);
40 CFR 52.02(a). Thus, in reviewing SIP
submissions, EPA’s role is to approve
state choices, provided that they meet
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the criteria of the Clean Air Act.
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 Order 12866 (58 FR 51735,
October 4, 1993);
• 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 Clean Air Act;
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, this rule does not have
tribal implications as specified by
Executive Order 13175 (65 FR 67249,
November 9, 2000), because the SIP is
not approved to apply in Indian country
located in the state, and EPA notes that
it will not impose substantial direct
costs on tribal governments or preempt
tribal law.
List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Intergovernmental
relations, Nitrogen dioxides, Ozone,
Particulate matter, Reporting and
recordkeeping requirements, Volatile
organic compounds.
Authority: 42 U.S.C. 7401 et seq.
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Dated: November 7, 2011.
Al Armendariz,
Regional Administrator, Region 6.
[FR Doc. 2011–29638 Filed 11–15–11; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R06–OAR–2008–0727; FRL–9493–8]
Extension of Public Comment Period
for Proposed Action on Arkansas
Regional Haze State Implementation
Plan and Interstate Transport State
Implementation Plan To Address
Pollution Affecting Visibility and
Regional Haze
Environmental Protection
Agency (EPA).
ACTION: Proposed rule; extension of
comment period.
AGENCY:
On October 17, 2011, EPA
published in the Federal Register a
proposed rule proposing to partially
approve and partially disapprove the
Arkansas Regional Haze (RH) State
Implementation Plan (SIP) and to
partially approve and partially
disapprove Arkansas’ Interstate
Transport SIP to address pollution
affecting visibility, and requested
comment by November 16, 2011. EPA is
extending the public comment period
for the proposed rule until December 22,
2011.
DATES: Comments must be received on
or before December 22, 2011.
ADDRESSES: Submit your comments,
identified by Docket No. EPA–R06–
OAR–2008–0727, by one of the
following methods:
• Federal e-Rulemaking Portal:
https://www.regulations.gov. Follow the
online instructions for submitting
comments.
• EPA Region 6 ‘‘Contact Us’’ Web
site: https://epa.gov/region6/
r6comment.htm. Please click on ‘‘6PD
(Multimedia)’’ and select ‘‘Air’’ before
submitting comments.
• Email: Mr. Guy Donaldson at
donaldson.guy@epa.gov. Please also
send a copy by email to the person
listed in the FOR FURTHER INFORMATION
CONTACT section below.
• Fax: Mr. Guy Donaldson, Chief, Air
Planning Section (6PD–L), at fax
number (214) 665–7263.
• Mail: Mr. Guy Donaldson, Chief,
Air Planning Section (6PD–L),
Environmental Protection Agency, 1445
Ross Avenue Suite 1200, Dallas, Texas
75202–2733.
SUMMARY:
PO 00000
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Fmt 4702
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• Mr. Guy Donaldson, Chief, Air
Planning Section (6PD–L),
Environmental Protection Agency, 1445
Ross Avenue, Suite 1200, Dallas, Texas
75202–2733. Such deliveries are
accepted only between the hours of
8 a.m. and 4 p.m. weekdays, and not on
legal holidays. Special arrangements
should be made for deliveries of boxed
information.
Instructions: Direct your comments to
Docket ID No. EPA–R06–OAR–2008–
0727. EPA’s policy is that all comments
received will be included in the public
docket without change and may be
made available online at https://
www.regulations.gov, including any
personal information provided, unless
the comment includes information
claimed to be Confidential Business
Information (CBI) or other information
whose disclosure is restricted by statute.
Do not submit information that you
consider to be CBI or otherwise
protected through https://
www.regulations.gov or email. The
https://www.regulations.gov Web site is
an ‘‘anonymous access’’ system, which
means EPA will not know your identity
or contact information unless you
provide it in the body of your comment.
If you send an email comment directly
to EPA without going through https://
www.regulations.gov, your email
address will be automatically captured
and included as part of the comment
that is placed in the public docket and
made available on the Internet. If you
submit an electronic comment, EPA
recommends that you include your
name and other contact information in
the body of your comment and with any
disk or CD–ROM you submit. If EPA
cannot read your comment due to
technical difficulties and cannot contact
you for clarification, EPA may not be
able to consider your comment.
Electronic files should avoid the use of
special characters, any form of
encryption, and be free of any defects or
viruses.
FOR FURTHER INFORMATION CONTACT: Ms.
Dayana Medina, Air Planning Section
(6PD–L), Environmental Protection
Agency, Region 6, 1445 Ross Avenue,
Suite 700, Dallas, Texas 75202–2733,
telephone (214) 665–7241; fax number
(214) 665–7263; email address
medina.dayana@epa.gov.
SUPPLEMENTARY INFORMATION:
Throughout this document wherever
‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean
the EPA. On October 17, 2011, we
published in the Federal Register a
proposed rule proposing to partially
approve and partially disapprove the
Arkansas RH SIP and to partially
approve and partially disapprove
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]]>Agencies
[Federal Register Volume 76, Number 221 (Wednesday, November 16, 2011)]
[Proposed Rules]
[Pages 70940-70952]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-29638]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R06-OAR-2008-0637; FRL -9492-8]
Approval and Promulgation of Air Quality Implementation Plans;
Oklahoma; Infrastructure Requirements for 1997 8-Hour Ozone and the
1997 and 2006 PM2.5 NAAQS
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: EPA is proposing to approve submittals from the State of
Oklahoma pursuant to the Clean Air Act (CAA or Act) that address the
infrastructure elements specified in the CAA section 110(a)(2),
necessary to implement, maintain, and enforce the 1997 8-hour ozone and
the 1997 and 2006 fine particulate matter (PM2.5) national
ambient air quality standards (NAAQS or standards). We are proposing to
find that the current Oklahoma State Implementation Plan (SIP) meets
the following infrastructure elements for the 1997 8-hour ozone NAAQS
and the 1997 and 2006 PM2.5 NAAQS: 110(a)(2)(A), (B), (C),
(D)(ii), (E), (F), (G), (H), (J), (K), (L), and (M). EPA is also
proposing to find that emissions from sources in Oklahoma do not
interfere with measures required in the SIP of any other state under
part C of the Act to prevent significant deterioration of air quality,
with regard to the 2006 PM2.5 NAAQS. This action is being
taken under section 110 and part C of the Act.
DATES: Comments must be received on or before December 16, 2011.
ADDRESSES: Submit your comments, identified by Docket No. EPA-R06-OAR-
2008-0637, by one of the following methods:
Federal Rulemaking Portal: https://www.regulations.gov.
Follow the online instructions for submitting comments.
U.S. EPA Region 6 ``Contact Us'' Web site: https://epa.gov/region6/r6comment.htm. Please click on ``6PD (Multimedia)'' and select
``Air'' before submitting comments.
Email: Mr. Guy Donaldson at donaldson.guy@epa.gov. Please
also send a copy by email to the person listed in the FOR FURTHER
INFORMATION CONTACT section below.
Fax: Mr. Guy Donaldson, Chief, Air Planning Section (6PD-
L), at fax number (214) 665-7263.
Mail: Mr. Guy Donaldson, Chief, Air Planning Section (6PD-
L), Environmental Protection Agency, 1445 Ross Avenue, Suite 1200,
Dallas, Texas 75202-2733.
[[Page 70941]]
Hand or Courier Delivery: Mr. Guy Donaldson, Chief, Air
Planning Section (6PD-L), Environmental Protection Agency, 1445 Ross
Avenue, Suite 1200, Dallas, Texas 75202-2733. Such deliveries are
accepted only between the hours of 8 a.m. and 4 p.m. weekdays, and not
on legal holidays. Special arrangements should be made for deliveries
of boxed information.
Instructions: Direct your comments to Docket ID No. EPA-R06-OAR-
2008-0637. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
https://www.regulations.gov, including any personal information
provided, unless the comment includes information claimed to be
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Do not submit information that you
consider to be CBI or otherwise protected through https://www.regulations.gov or email. The https://www.regulations.gov web site
is an ``anonymous access'' system, which means EPA will not know your
identity or contact information unless you provide it in the body of
your comment. If you send an email comment directly to EPA without
going through https://www.regulations.gov, your email address will be
automatically captured and included as part of the comment that is
placed in the public docket and made available on the Internet. If you
submit an electronic comment, EPA recommends that you include your name
and other contact information in the body of your comment and with any
disk or CD-ROM you submit. If EPA cannot read your comment due to
technical difficulties and cannot contact you for clarification, EPA
may not be able to consider your comment. Electronic files should avoid
the use of special characters, any form of encryption, and be free of
any defects or viruses. For additional information about EPA's public
docket visit the EPA Docket Center homepage at https://www.epa.gov/epahome/dockets.htm.
Docket: All documents in the docket are listed in the https://www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, will be publicly available only in hard copy.
Publicly available docket materials are available either electronically
in https://www.regulations.gov or in hard copy at the Air Planning
Section (6PD-L), Environmental Protection Agency, 1445 Ross Avenue,
Suite 700, Dallas, Texas 75202-2733. The file will be made available by
appointment for public inspection in the Region 6 FOIA Review Room
between the hours of 8:30 a.m. and 4:30 p.m. weekdays except for legal
holidays. Contact the person listed in the FOR FURTHER INFORMATION
CONTACT paragraph below or Mr. Bill Deese at (214) 665-7253 to make an
appointment. If possible, please make the appointment at least two
working days in advance of your visit. There will be a fee of 15 cents
per page for making photocopies of documents. On the day of the visit,
please check in at the EPA Region 6 reception area at 1445 Ross Avenue,
Suite 700, Dallas, Texas.
The State submittal is also available for public inspection during
official business hours, by appointment, at the Oklahoma Department of
Environmental Quality (ODEQ), Air Quality Division, 707 North Robinson,
P.O. Box 1677, Oklahoma City, Oklahoma 73101-1677.
FOR FURTHER INFORMATION CONTACT: Mr. Terry Johnson, Air Planning
Section (6PD-L), Environmental Protection Agency, Region 6, 1445 Ross
Avenue, Suite 700, Dallas, Texas 75202-2733, telephone (214) 665-2154;
fax number (214) 665-6762; email address johnson.terry@epa.gov.
SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us,''
and ``our'' means EPA.
Table of Contents
I. Background
A. What are the National Ambient Air Quality Standards?
B. What is a SIP?
C. What is the background for this rulemaking?
D. What elements are required under Section 110(a)(2)?
II. What action is EPA proposing?
III. How has Oklahoma addressed the elements of Section 110(a)(2)?
IV. Proposed Action
V. Statutory and Executive Order Reviews
I. Background
A. What are the National Ambient Air Quality Standards?
Section 109 of the Act requires EPA to establish NAAQS for
pollutants that ``may reasonably be anticipated to endanger public
health and welfare,'' and to develop a primary and secondary standard
for each NAAQS. The primary standard is designed to protect human
health with an adequate margin of safety, and the secondary standard is
designed to protect public welfare and the environment. EPA has set
NAAQS for six common air pollutants, referred to as criteria
pollutants: carbon monoxide, lead, nitrogen dioxide, ozone, particulate
matter (PM), and sulfur dioxide. These standards present state and
local governments with the minimum air quality levels they must meet to
comply with the Act. Also, these standards provide information to
residents of the United States about the air quality in their
communities.
B. What is a SIP?
The SIP is a set of air pollution regulations, control strategies,
other means or techniques, and technical analyses developed by the
state, to ensure that the state meets the NAAQS. The SIP is required by
section 110 and other provisions of the Act. These SIPs can be
extensive, containing state regulations or other enforceable documents
and supporting information such as emissions inventories, monitoring
networks, and modeling demonstrations. Each state must submit these
regulations and control strategies to EPA for approval and
incorporation into the Federally-enforceable SIP. Each Federally-
approved SIP protects air quality primarily by addressing air pollution
at its point of origin.
C. What is the background for this rulemaking?
Under sections 110(a)(1) and (2) of the Act, states are required to
submit SIPs that provide for the implementation, maintenance, and
enforcement (the infrastructure) of a new or revised NAAQS within three
years following the promulgation of the NAAQS, or within such shorter
period as EPA may prescribe. Section 110(a)(2) lists the specific
infrastructure elements that must be incorporated into the SIPs,
including for example, requirements for emission inventories, new
source review (NSR), air pollution control measures, and monitoring
that are designed to assure attainment and maintenance of the NAAQS.
Table 1 in Section D of this rulemaking provides a list of all 14
infrastructure elements.\1\
---------------------------------------------------------------------------
\1\ Two elements identified in section 110(a)(2) are not
governed by the 3-year submission deadline of section 110(a)(1)
because SIPs incorporating necessary local nonattainment area
controls are not due within 3 years after promulgation of a new or
revised NAAQS, but rather are due at the time the nonattainment area
plan requirements are due pursuant to section 172 of the CAA. These
elements are: (1) Submissions required by section 110(a)(2)(C) to
the extent that subsection refers to a permit program as required in
part D Title I of the CAA and (2) submissions required by section
110(a)(2)(I) which pertain to the nonattainment planning
requirements of part D Title I of the CAA. Therefore, this action
does not cover these specific SIP elements.
---------------------------------------------------------------------------
On July 18, 1997, we published new and revised NAAQS for ozone (62
FR 38856) and PM (62 FR 38652). For ozone, we set an 8-hour standard of
0.08
[[Page 70942]]
parts per million (ppm) to replace the 1-hour standard of 0.12 ppm. For
PM we set a new annual and a new 24-hour NAAQS for particles with an
aerodynamic diameter less than or equal to a nominal 2.5 micrometers
(denoted PM2.5). The annual PM2.5 standard was
set at 15 micrograms per cubic meter ([mu]g/m\3\). The 24-hour
PM2.5 standard was set at 65 [mu]g/m\3\. On October 17,
2006, we published revised standards for PM (71 FR 61144). For
PM2.5, the annual standard of 15 [mu]g/m\3\ was retained,
and the 24-hour standard was revised to 35 [mu]g/m\3\. For
PM10 the annual standard was revoked, and the 24-hour
standard (150 [mu]g/m\3\) was retained. For more information on these
standards, please see the 1997 and 2006 Federal Register notices (62 FR
38856, 62 FR 38652, and 71 FR 61144).
Thus, states were required to submit such SIPs for the 1997 8-hour
ozone and PM2.5 NAAQS to EPA no later than June 2000.\2\
However, intervening litigation over the 1997 8-hour ozone and
PM2.5 NAAQS created uncertainty about how to proceed, and
many states did not provide the required ``infrastructure'' SIP
submission for these newly promulgated NAAQS.
---------------------------------------------------------------------------
\2\ EPA issued a revised 8-hour ozone standard on March 27, 2008
(73 FR 16436). On September 16, 2009, the EPA Administrator
announced that EPA would take rulemaking action to reconsider the
2008 primary and secondary ozone NAAQS. On January 19, 2010, EPA
proposed to set different primary and secondary ozone standards than
those set in 2008 to provide requisite protection of public health
and welfare, respectively (75 FR 2938). On September 22, 2011, EPA
clarified that the current ozone standard is set at 75 ppb. This
rulemaking does not address the 2008 ozone standard.
---------------------------------------------------------------------------
On March 4, 2004, Earthjustice submitted a notice of intent to sue
related to EPA's failure to issue findings of failure to submit related
to the infrastructure requirements for the 1997 8-hour ozone and
PM2.5 NAAQS. EPA entered into a consent decree with
Earthjustice which required EPA, among other things, to complete a
Federal Register notice announcing EPA's determinations pursuant to
section 110(k)(1)(B) of the Act as to whether each state had made
complete submissions to meet the requirements of section 110(a)(2) for
the 1997 8-hour ozone NAAQS by December 15, 2007. Subsequently, EPA
received an extension of the date to complete this Federal Register
notice until March 17, 2008, based upon agreement to make the findings
with respect to submissions made by January 7, 2008. In accordance with
the consent decree, EPA made completeness findings for each state based
upon what the Agency had received from each state as of January 7,
2008. With regard to the 1997 PM2.5 NAAQS, EPA entered into
a consent decree with Earthjustice, which required EPA, among other
things, to complete a Federal Register notice announcing EPA's
determinations pursuant to section 110(k)(1)(B) of the Act as to
whether each state had made complete submissions to meet the
requirements of section 110(a)(2) for the 1997 PM2.5 NAAQS
by October 5, 2008.
On March 27, 2008, and October 22, 2008, we published findings
concerning whether states had made the 110(a)(2) submissions for the
1997 ozone (73 FR 16205) and PM2.5 standards (73 FR 62902).
In the March 27, 2008 action, we found that Oklahoma made submissions
that addressed some, but not all of the requirements of section
110(a)(2) of the Act necessary to implement the 1997 8-hour ozone
NAAQS. As required by section 110(a)(2)(C) and (J), Oklahoma had failed
to submit a SIP addressing changes to the part C Prevention of
Significant Deterioration (PSD) permit program required by the November
29, 2005 (70 FR 71612, page 71699) final rule that made nitrogen oxides
(NOX) a precursor for ozone in the part C regulations at 40
CFR 51.166 and in 40 CFR 52.21. In the October 22, 2008 action, we
found that Oklahoma failed to make a submittal to satisfy the
requirements of section 110(a)(2) of the Act necessary to implement the
1997 PM2.5 NAAQS.
On October 2, 2007 we issued ``Guidance on SIP Elements Required
Under Section 110(a)(1) and (2) for the 1997 8-hour Ozone and
PM2.5 National Ambient Air Quality Standards,'' Memorandum
from William T. Harnett, Director, Air Quality Policy Division (AQPD),
Office of Air Quality Planning and Standards (OAQPS).\3\ On September
25, 2009, we issued ``Guidance on SIP Elements Required Under Sections
110(a)(1) and (2) for the 2006 24-Hour Fine Particle (PM2.5)
National Ambient Air Quality Standards (NAAQS),'' Memorandum also from
William T. Harnett, Director, AQPD, OAQPS. Each of these guidance memos
addresses the SIP elements found in 110(a)(2). In each of these
guidance memos, the guidance states that, to the extent that existing
SIPs already meet the requirements, states need only certify that fact
to us.
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\3\ This and any other guidance documents referenced in this
action are in the docket for this rulemaking.
---------------------------------------------------------------------------
On December 5, 2007 the ODEQ submitted a letter certifying that the
Oklahoma SIP includes all the requirements in section 110(a)(1) and (2)
of the Act for implementation of the 1997 8-hour ozone NAAQS. The
letter also stated that ODEQ would evaluate the particulate matter
provisions of the Oklahoma SIP for consistency with Federal
requirements.
On June 24, 2010 the ODEQ submitted a letter certifying that the
Oklahoma SIP includes all the requirements in section 110(a)(1) and (2)
of the Act for implementation of the 1997 PM2.5 NAAQS.
Attached to the certification letter was supporting information that
identified the Oklahoma SIP provisions, regulations and statutes that
support the section 110(a)(2) infrastructure elements for the NAAQS. At
this time, ODEQ also submitted revisions to their PSD SIP that
addressed NOX as a precursor to ozone. EPA approved the SIP
revisions incorporating NOX as an ozone precursor (see 75 FR
72695, November 26, 2010).
On April 5, 2011 the ODEQ submitted a letter, including supporting
information, certifying that the Oklahoma SIP includes all the
requirements in section 110(a)(1) and (2) of the Act for implementation
of the 2006 revisions to the PM2.5 NAAQS.
Additional information: EPA is currently acting upon SIPs that
address the infrastructure requirements of CAA section 110(a)(1) and
(2) for ozone and PM2.5 NAAQS for various states across the
country. Commenters on EPA's recent proposals for some states raised
concerns about EPA statements that it was not addressing certain
substantive issues in the context of acting on those infrastructure SIP
submissions.\4\ Those commenters specifically raised concerns involving
provisions in existing SIPs and with EPA's statements in other
proposals that it would address two issues separately and not as part
of actions on the infrastructure SIP submissions: (i) Existing
provisions related to excess emissions during periods of start-up,
shutdown, or malfunction at sources, that may be contrary to the CAA
and EPA's policies addressing such excess emissions (``SSM''); and (ii)
existing provisions related to ``director's variance'' or ``director's
discretion'' that purport to permit revisions to SIP approved emissions
limits with limited public process or without requiring further
approval by EPA, that may be contrary to the CAA (``director's
discretion''). EPA notes that there are two other
[[Page 70943]]
substantive issues for which EPA likewise stated in other proposals
that it would address the issues separately: (i) Existing provisions
for minor source new source review programs that may be inconsistent
with the requirements of the CAA and EPA's regulations that pertain to
such programs (``minor source NSR''); and (ii) existing provisions for
Prevention of Significant Deterioration programs that may be
inconsistent with current requirements of EPA's ``Final NSR Improvement
Rule,'' 67 FR 80186 (December 31, 2002), as amended by 72 FR 32526
(June 13, 2007) (``NSR Reform''). In light of the comments, EPA
believes that its statements in various proposed actions on
infrastructure SIPs with respect to these four individual issues should
be explained in greater depth. It is important to emphasize that EPA is
taking the same position with respect to these four substantive issues
in this action on the infrastructure SIP submittals for the 1997 8-hour
ozone NAAQS and the 1997 and 2006 PM2.5 NAAQS submissions
from Oklahoma.
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\4\ See, Comments of Midwest Environmental Defense Center, dated
May 31, 2011. Docket EPA-R05-OAR-2007-1179 (adverse
comments on proposals for three states in Region 5). EPA notes that
these public comments on another proposal are not relevant to this
rulemaking and do not have to be directly addressed in this
rulemaking. EPA will respond to these comments in the appropriate
rulemaking action to which they apply.
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EPA intended the statements in the other proposals concerning these
four issues merely to be informational, and to provide general notice
of the potential existence of provisions within the existing SIPs of
some states that might require future corrective action. EPA did not
want states, regulated entities, or members of the public to be under
the misconception that the Agency's approval of the infrastructure SIP
submission of a given state should be interpreted as a reapproval of
certain types of provisions that might exist buried in the larger
existing SIP for such state. Thus, for example, EPA explicitly noted
that the Agency believes that some states may have existing SIP
approved SSM provisions that are contrary to the CAA and EPA policy,
but that ``in this rulemaking, EPA is not proposing to approve or
disapprove any existing State provisions with regard to excess
emissions during SSM of operations at facilities.'' EPA further
explained, for informational purposes, that ``EPA plans to address such
State regulations in the future.'' EPA made similar statements, for
similar reasons, with respect to the director's discretion, minor
source NSR, and NSR Reform issues. EPA's objective was to make clear
that approval of an infrastructure SIP for these ozone and
PM2.5 NAAQS should not be construed as explicit or implicit
reapproval of any existing provisions that relate to these four
substantive issues. EPA is reiterating that position in this action on
these infrastructure SIP submittals for Oklahoma.
Unfortunately, the commenters and others evidently interpreted
these statements to mean that EPA considered action upon the SSM
provisions and the other three substantive issues to be integral parts
of acting on an infrastructure SIP submission, and therefore that EPA
was merely postponing taking final action on the issues in the context
of the infrastructure SIPs. This was not EPA's intention. To the
contrary, EPA only meant to convey its awareness of the potential for
certain types of deficiencies in existing SIPs, and to prevent any
misunderstanding that it was reapproving any such existing provisions.
EPA's intention was to convey its position that the statute does not
require that infrastructure SIPs address these specific substantive
issues in existing SIPs and that these issues may be dealt with
separately, outside the context of acting on the infrastructure SIP
submission of a state. To be clear, EPA did not mean to imply that it
was not taking a full final agency action on the infrastructure SIP
submission with respect to any substantive issue that EPA considers to
be a required part of acting on such submissions under section 110(k)
or under section 110(c). Given the confusion evidently resulting from
EPA's statements in those other proposals, however, we want to explain
more fully the Agency's reasons for concluding that these four
potential substantive issues in existing SIPs may be addressed
separately from actions on infrastructure SIP submissions.
The requirement for the SIP submissions at issue arises out of CAA
section 110(a)(1). That provision requires that states must make a SIP
submission ``within 3 years (or such shorter period as the
Administrator may prescribe) after the promulgation of a national
primary ambient air quality standard (or any revision thereof)'' and
that these SIPS are to provide for the ``implementation, maintenance,
and enforcement'' of such NAAQS. Section 110(a)(2) includes a list of
specific elements that ``[e]ach such plan'' submission must meet. EPA
has historically referred to these particular submissions that states
must make after the promulgation of a new or revised NAAQS as
``infrastructure SIPs.'' This specific term does not appear in the
statute, but EPA uses the term to distinguish this particular type of
SIP submission designed to address basic structural requirements of a
SIP from other types of SIP submissions designed to address other
different requirements, such as ``nonattainment SIP'' submissions
required to address the nonattainment planning requirements of part D,
``regional haze SIP'' submissions required to address the visibility
protection requirements of CAA section 169A, new source review
permitting program submissions required to address the requirements of
part D, and a host of other specific types of SIP submissions that
address other specific matters.
Although section 110(a)(1) addresses the timing and general
requirements for these infrastructure SIPs, and section 110(a)(2)
provides more details concerning the required contents of these
infrastructure SIPs, EPA believes that many of the specific statutory
provisions are facially ambiguous. In particular, the list of required
elements provided in section 110(a)(2) contains a wide variety of
disparate provisions, some of which pertain to required legal
authority, some of which pertain to required substantive provisions,
and some of which pertain to requirements for both authority and
substantive provisions.\5\ Some of the elements of section 110(a)(2)
are relatively straightforward, but others clearly require
interpretation by EPA through rulemaking, or recommendations through
guidance, in order to give specific meaning for a particular NAAQS.\6\
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\5\ For example, section 110(a)(2)(E) provides that states must
provide assurances that they have adequate legal authority under
state and local law to carry out the SIP; section 110(a)(2)(C)
provides that states must have a substantive program to address
certain sources as required by part C of the CAA; section
110(a)(2)(G) provides that states must have both legal authority to
address emergencies and substantive contingency plans in the event
of such an emergency.
\6\ For example, section 110(a)(2)(D)(i) requires EPA to be sure
that each state's SIP contains adequate provisions to prevent
significant contribution to nonattainment of the NAAQS in other
states. This provision contains numerous terms that require
substantial rulemaking by EPA in order to determine such basic
points as what constitutes significant contribution. See, e.g.,
``Rule To Reduce Interstate Transport of Fine Particulate Matter and
Ozone (Clean Air Interstate Rule); Revisions to Acid Rain Program;
Revisions to the NOX SIP Call; Final Rule,'' 70 FR 25162
(May 12, 2005) (defining, among other things, the phrase
``contribute significantly to nonattainment'').
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Notwithstanding that section 110(a)(2) provides that ``each'' SIP
submission must meet the list of requirements therein, EPA has long
noted that this literal reading of the statute is internally
inconsistent, insofar as section 110(a)(2)(I) pertains to nonattainment
SIP requirements that could not be met on the schedule provided for
these SIP submissions in section 110(a)(1).\7\ This
[[Page 70944]]
illustrates that EPA must determine which provisions of section
110(a)(2) may be applicable for a given infrastructure SIP submission.
Similarly, EPA has previously decided that it could take action on
different parts of the larger, general ``infrastructure SIP'' for a
given NAAQS without concurrent action on all subsections, such as
section 110(a)(2)(D)(i), because the Agency bifurcated the action on
these latter ``interstate transport'' provisions within section
110(a)(2) and worked with states to address each of the four prongs of
section 110(a)(2)(D)(i) with substantive administrative actions
proceeding on different tracks with different schedules.\8\ This
illustrates that EPA may conclude that subdividing the applicable
requirements of section 110(a)(2) into separate SIP actions may
sometimes be appropriate for a given NAAQS where a specific substantive
action is necessitated, beyond a mere submission addressing basic
structural aspects of the state's SIP. Finally, EPA notes that not
every element of section 110(a)(2) would be relevant, or as relevant,
or relevant in the same way, for each new or revised NAAQS and the
attendant infrastructure SIP submission for that NAAQS. For example,
the monitoring requirements that might be necessary for purposes of
section 110(a)(2)(B) for one NAAQS could be very different than what
might be necessary for a different pollutant. Thus, the content of an
infrastructure SIP submission to meet this element from a state might
be very different for an entirely new NAAQS, versus a minor revision to
an existing NAAQS.\9\
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\7\ See, e.g., Id., 70 FR 25162, at 63-65 (May 12, 2005)
(explaining relationship between timing requirement of section
110(a)(2)(D) versus section 110(a)(2)(I)).
\8\ EPA issued separate guidance to states with respect to SIP
submissions to meet section 110(a)(2)(D)(i) for the 1997 ozone and
1997 PM2.5 NAAQS. See, ``Guidance for State
Implementation Plan (SIP) Submissions to Meet Current Outstanding
Obligations Under Section 110(a)(2)(D)(i) for the 8-Hour Ozone and
PM2.5 National Ambient Air Quality Standards,'' from
William T. Harnett, Director Air Quality Policy Division OAQPS, to
Regional Air Division Director, Regions I-X, dated August 15, 2006.
\9\ For example, implementation of the 1997 PM2.5
NAAQS required the deployment of a system of new monitors to measure
ambient levels of that new indicator species for the new NAAQS.
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Similarly, EPA notes that other types of SIP submissions required
under the statute also must meet the requirements of section 110(a)(2),
and this also demonstrates the need to identify the applicable elements
for other SIP submissions. For example, nonattainment SIPs required by
part D likewise have to meet the relevant subsections of section
110(a)(2) such as section 110(a)(2)(A) or (E). By contrast, it is clear
that nonattainment SIPs would not need to meet the portion of section
110(a)(2)(C) that pertains to part C, i.e., the PSD requirements
applicable in attainment areas. Nonattainment SIPs required by part D
also would not need to address the requirements of section 110(a)(2)(G)
with respect to emergency episodes, as such requirements would not be
limited to nonattainment areas. As this example illustrates, each type
of SIP submission may implicate some subsections of section 110(a)(2)
and not others.
Given the potential for ambiguity of the statutory language of
section 110(a)(1) and (2), EPA believes that it is appropriate for EPA
to interpret that language in the context of acting on the
infrastructure SIPs for a given NAAQS. Because of the inherent
ambiguity of the list of requirements in section 110(a)(2), EPA has
adopted an approach in which it reviews infrastructure SIPs against
this list of elements ``as applicable.'' In other words, EPA assumes
that Congress could not have intended that each and every SIP
submission, regardless of the purpose of the submission or the NAAQS in
question, would meet each of the requirements, or meet each of them in
the same way. EPA elected to use guidance to make recommendations for
infrastructure SIPs for these ozone and PM2.5 NAAQS.
On October 2, 2007, EPA issued guidance making recommendations for
the infrastructure SIP submissions for both the 1997 8-hour ozone NAAQS
and the 1997 PM2.5 NAAQS.\10\ Within this guidance document,
EPA described the duty of states to make these submissions to meet what
the Agency characterized as the ``infrastructure'' elements for SIPs,
which it further described as the ``basic SIP requirements, including
emissions inventories, monitoring, and modeling to assure attainment
and maintenance of the standards.'' \11\ As further identification of
these basic structural SIP requirements, ``attachment A'' to the
guidance document included a short description of the various elements
of section 110(a)(2) and additional information about the types of
issues that EPA considered germane in the context of such
infrastructure SIPs. EPA emphasized that the description of the basic
requirements listed on attachment A was not intended ``to constitute an
interpretation of'' the requirements, and was merely a ``brief
description of the required elements.'' \12\ EPA also stated its belief
that with one exception, these requirements were ``relatively self
explanatory, and past experience with SIPs for other NAAQS should
enable States to meet these requirements with assistance from EPA
Regions.'' \13\ For the one exception to that general assumption,
however, i.e., how states should proceed with respect to the
requirements of section 110(a)(2)(G) for the 1997 PM2.5
NAAQS, EPA gave much more specific recommendations. But for other
infrastructure SIP submittals, and for certain elements of the
submittals for the 1997 PM2.5 NAAQS, EPA assumed that each
State would work with its corresponding EPA regional office to refine
the scope of a State's submittal based on an assessment of how the
requirements of section 110(a)(2) should reasonably apply to the basic
structure of the State's SIP for the NAAQS in question.
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\10\ See, ``Guidance on SIP Elements Required Under Section
110(a)(1) and (2) for the 1997 8-hour Ozone and PM2.5
National Ambient Air Quality Standards,'' from William T. Harnett,
Director Air Quality Policy Division, to Air Division Directors,
Regions I-X, dated October 2, 2007 (the ``2007 Guidance'').
\11\ Id., at page 2.
\12\ Id., at attachment A, page 1.
\13\ Id., at page 4. In retrospect, the concerns raised by
commenters with respect to EPA's approach to some substantive issues
indicates that the statute is not so ``self explanatory,'' and
indeed is sufficiently ambiguous that EPA needs to interpret it in
order to explain why these substantive issues do not need to be
addressed in the context of infrastructure SIPs and may be addressed
at other times and by other means.
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On September 25, 2009, EPA issued guidance to make recommendations
to states with respect to the infrastructure SIPs for the 2006
PM2.5 NAAQS.\14\ In the 2009 Guidance, EPA addressed a
number of additional issues that were not germane to the infrastructure
SIPs for the 1997 8-hour ozone and 1997 PM2.5 NAAQS, but
were germane to these SIP submissions for the 2006 PM2.5
NAAQS, e.g., the requirements of section 110(a)(2)(D)(i) that EPA had
bifurcated from the other infrastructure elements for those specific
1997 ozone and PM2.5 NAAQS.
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\14\ See, ``Guidance on SIP Elements Required Under Sections
110(a)(1) and (2) for the 2006 24-Hour Fine Particle
(PM2.5) National Ambient Air Quality Standards (NAAQS),''
from William T, Harnett, Director Air Quality Policy Division, to
Regional Air Division Directors, Regions I-X, dated September 25,
2009 (the ``2009 Guidance'').
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Significantly, neither the 2007 Guidance nor the 2009 Guidance
explicitly referred to the SSM, director's discretion, minor source
NSR, or NSR Reform issues as among specific substantive issues EPA
expected states to address in the context of the infrastructure SIPs,
nor did EPA give any more specific recommendations with respect to how
states might address such issues even if they elected to do so. The SSM
and director's discretion issues implicate section 110(a)(2)(A),
[[Page 70945]]
and the minor source NSR and NSR Reform issues implicate section
110(a)(2)(C). In the 2007 Guidance and the 2009 Guidance, however, EPA
did not indicate to states that it intended to interpret these
provisions as requiring a substantive submission to address these
specific issues in existing SIP provisions in the context of the
infrastructure SIPs for these NAAQS. Instead, EPA's 2007 Guidance
merely indicated its belief that the states should make submissions in
which they established that they have the basic SIP structure necessary
to implement, maintain, and enforce the NAAQS. EPA believes that states
can establish that they have the basic SIP structure, notwithstanding
that there may be potential deficiencies within the existing SIP. Thus,
EPA's proposals for other states mentioned these issues not because the
Agency considers them issues that must be addressed in the context of
an infrastructure SIP as required by section 110(a)(1) and (2), but
rather because EPA wanted to be clear that it considers these potential
existing SIP problems as separate from the pending infrastructure SIP
actions. The same holds true for this action on the infrastructure SIP
submittals for Oklahoma.
EPA believes that this approach to the infrastructure SIP
requirement is reasonable, because it would not be feasible to read
section 110(a)(1) and (2) to require a top to bottom, stem to stern,
review of each and every provision of an existing SIP merely for
purposes of assuring that the state in question has the basic
structural elements for a functioning SIP for a new or revised NAAQS.
Because SIPs have grown by accretion over the decades as statutory and
regulatory requirements under the CAA have evolved, they may include
some outmoded provisions and historical artifacts that, while not fully
up to date, nevertheless may not pose a significant problem for the
purposes of ``implementation, maintenance, and enforcement'' of a new
or revised NAAQS when EPA considers the overall effectiveness of the
SIP. To the contrary, EPA believes that a better approach is for EPA to
determine which specific SIP elements from section 110(a)(2) are
applicable to an infrastructure SIP for a given NAAQS, and to focus
attention on those elements that are most likely to need a specific SIP
revision in light of the new or revised NAAQS. Thus, for example, EPA's
2007 Guidance specifically directed states to focus on the requirements
of section 110(a)(2)(G) for the 1997 PM2.5 NAAQS because of
the absence of underlying EPA regulations for emergency episodes for
this NAAQS and an anticipated absence of relevant provisions in
existing SIPs.
Finally, EPA believes that its approach is a reasonable reading of
section 110(a)(1) and (2) because the statute provides other avenues
and mechanisms to address specific substantive deficiencies in existing
SIPs. These other statutory tools allow the Agency to take appropriate
tailored action, depending upon the nature and severity of the alleged
SIP deficiency. Section 110(k)(5) authorizes EPA to issue a ``SIP
call'' whenever the Agency determines that a state's SIP is
substantially inadequate to attain or maintain the NAAQS, to mitigate
interstate transport, or otherwise to comply with the CAA.\15\ Section
110(k)(6) authorizes EPA to correct errors in past actions, such as
past approvals of SIP submissions.\16\ Significantly, EPA's
determination that an action on the infrastructure SIP submittal is not
the appropriate time and place to address all potential existing SIP
problems does not preclude the Agency's subsequent reliance on
provisions in section 110(a)(2) as part of the basis for action at a
later time. For example, although it may not be appropriate to require
a state to eliminate all existing inappropriate director's discretion
provisions in the course of acting on the infrastructure SIP, EPA
believes that section 110(a)(2)(A) may be among the statutory bases
that the Agency cites in the course of addressing the issue in a
subsequent action.\17\
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\15\ EPA has recently issued a SIP call to rectify a specific
SIP deficiency related to the SSM issue. See, ``Finding of
Substantial Inadequacy of Implementation Plan; Call for Utah State
Implementation Plan Revision,'' 74 FR 21639 (April 18, 2011).
\16\ EPA has recently utilized this authority to correct errors
in past actions on SIP submissions related to PSD programs. See,
``Limitation of Approval of Prevention of Significant Deterioration
Provisions Concerning Greenhouse Gas Emitting-Sources in State
Implementation Plans; Final Rule,'' 75 FR 82536 (December 30, 2010).
EPA has previously used its authority under CAA 110(k)(6) to remove
numerous other SIP provisions that the Agency determined it had
approved in error. See, e.g., 61 FR 38664 (July 25, 1996) and 62 FR
34641 (June 27, 1997) (corrections to American Samoa, Arizona,
California, Hawaii, and Nevada SIPs); 69 FR 67062 (November 16,
2004) (corrections to California SIP); and 74 FR 57051 (November 3,
2009) (corrections to Arizona and Nevada SIPs).
\17\ EPA has recently disapproved a SIP submission from Colorado
on the grounds that it would have included a director's discretion
provision inconsistent with CAA requirements, including section
110(a)(2)(A). See, e.g., 75 FR 42342 at 42344 (July 21, 2010)
(proposed disapproval of director's discretion provisions); 76 FR
4540 (January 26, 2011) (final disapproval of such provisions).
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D. What elements are required under section 110(a)(2)?
Pursuant to the October 2, 2007, EPA guidance for addressing the
SIP infrastructure elements required under sections 110(a)(1) and (2)
for the 1997 ozone and 1997 and 2006 PM2.5 NAAQS, there are
14 essential components that must be included in the SIP. These are
listed in Table 1 below.
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\18\ Section 110(a)(2)(I) is omitted from the list. Section
110(a)(2)(I) pertains to the nonattainment planning requirements of
part D, Title I of the Act. This section is not governed by the 3-
year submission deadline of section 110(a)(1) because SIPs
incorporating necessary local nonattainment area controls are not
due within 3 years after promulgation of a new or revised NAAQS, but
are due at the time the nonattainment area plan requirements are due
pursuant to section 172. Thus this action does not cover section
110(a)(2)(I).
Table 1--Section 110(a)(2) Elements Required in SIPs
------------------------------------------------------------------------
Clean Air Act citation Brief description
------------------------------------------------------------------------
Section 110(a)(2)(A)................... Emission limits and other
control measures.
Section 110(a)(2)(B)................... Ambient air quality monitoring/
data system.
Section 110(a)(2)(C)................... Program for enforcement of
control measures.
Section 110(a)(2)(D)................... Interstate transport.
Section 110(a)(2)(E)................... Adequate resources.
Section 110(a)(2)(F)................... Stationary source monitoring
system.
Section 110(a)(2)(G)................... Emergency power.
Section 110(a)(2)(H)................... Future SIP revisions.
Section 110(a)(2)(J) \18\.............. Consultation with government
officials.
Section 110(a)(2)(J)................... Public notification.
Section 110(a)(2)(J)................... Prevention of significant
deterioration (PSD) and
visibility protection.
Section 110(a)(2)(K)................... Air quality modeling/submission
of such data.
Section 110(a)(2)(L)................... Permitting fees.
[[Page 70946]]
Section 110(a)(2)(M)................... Consultation/participation by
affected local entities.
------------------------------------------------------------------------
II. What action is EPA proposing?
EPA is proposing to approve the Oklahoma SIP submittals of December
5, 2007, June 24, 2010, and April 5, 2011, that identify where and how
the 14 basic infrastructure elements are in the EPA-approved SIP as
specified in section 110(a)(2) of the Act. The Oklahoma submittals do
not include revisions to the SIP, but document how the current Oklahoma
SIP already includes the required infrastructure elements. In today's
action, we are proposing to find that the following section 110(a)(2)
elements are contained in the current Oklahoma SIP and provide the
infrastructure for implementing the 1997 ozone and the 1997 and 2006
PM2.5 standards: emission limits and other control measures
(section 110(a)(2)(A)); ambient air quality monitoring/data system
(section 110(a)(2)(B)); the program for enforcement of control measures
(section 110(a)(2)(C)); international and interstate pollution
abatement (section 110(a)(2)(D)(ii)); adequate resources (section
110(a)(2)(E)); stationary source monitoring system (section
110(a)(2)(F)); emergency power (section 110(a)(2)(G)); future SIP
revisions (section 110(a)(2)(H)); consultation with government
officials (section 110(a)(2)(J)); public notification (section
110(a)(2)(J)); PSD and visibility protection (section 110(a)(2)(J));
air quality modeling/data (section 110(a)(2)(K)); permitting fees
(section 110(a)(2)(L)); and consultation/participation by affected
local entities (section 110(a)(2)(M)).
We are also proposing to approve the Oklahoma SIP provisions that
address the requirement of section (110)(a)(2)(D)(i)(II) of the Act
that emissions from sources in Oklahoma do not interfere with measures
required in the SIP of any other state under part C of the Act to
prevent significant deterioration of air quality for the 2006
PM2.5 NAAQS.
III. How has Oklahoma addressed the elements of section 110(a)(2)?
The Oklahoma submittal addresses the elements of Section 110(a)(2)
as described below. We provide a more detailed review and analysis of
the Oklahoma infrastructure SIP elements in the Technical Support
Document (TSD), located in the docket for this rulemaking.
Enforceable emission limits and other control measures, section
110(a)(2)(A): Section 110(a)(2)(A) requires that all measures and other
elements in the SIP be enforceable. This provision does not require the
submittal of regulations or emission limits developed specifically for
attaining the 1997 8-hour ozone and 1997 and 2006 PM2.5
standards. Those regulations are due later as part of attainment
demonstrations. Additionally, as explained earlier (see footnote 1),
EPA does not consider SIP requirements triggered by the nonattainment
area mandates in part D of Title I of the CAA to be governed by the
submission deadline of section 110(a)(1). Nevertheless, Oklahoma has
included some SIP provisions originally submitted in response to part D
in its submission documenting its compliance with the infrastructure
requirements of section 110(a)(1) and (2). Oklahoma has continually
updated the elements of its SIP revisions submitted in response to the
infrastructure requirements of section 110(a)(2) and the nonattainment
requirements of part D. For the purposes of this action, EPA is
reviewing any rules originally submitted in response to part D solely
for the purposes of determining whether they support a finding that the
state has met the basic infrastructure requirements under section
110(a)(2).
The Oklahoma Environmental Quality Act and the Oklahoma
Environmental Quality Code designate the Oklahoma Department of
Environmental Quality (ODEQ) as the state air pollution control agency
having jurisdiction for air quality matters.\19\ The Oklahoma
Environmental Quality Code establishes that ODEQ establish an air
quality program for air quality. Further, the Oklahoma Clean Air Act
designates ODEQ to establish and implement air quality programs and
provides enforcement authority for regulations promulgated under the
Act.\20\
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\19\ Except for indoor air quality and asbestos as regulated for
worker safety by the Federal Occupational Safety and Health Act and
by Chapter 11 of Title 40 of the Oklahoma statutes.
\20\ See 27A O.S.Supp.1995, Sec. 1-1-101; 27A O.S.Supp.1995,
Sec. 2-1-101; Title 27A, Sec. Sec. 2-5-101 to 2-5-107.
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The ODEQ has promulgated rules to limit and control emissions of,
among other things, PM, sulfur compounds (including sulfur dioxide or
SO2), nitrogen compounds (including NOX), and
VOCs.\21\ These rules include emission limits, control measures,
permits, fees, and compliance schedules and are found within Title 252,
Chapter 100 of the Oklahoma Administrative Code (denoted 252:100 OAC).
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\21\ NOX and VOCs are precursors to ozone. PM can be
emitted directly and secondarily formed; the latter is the result of
NOX and SO2 precursors combining with ammonia
to form ammonium nitrate and ammonium sulfate.
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In this action, EPA is not proposing to approve or disapprove any
existing state provisions with regard to excess emissions during
startup, shutdown, or malfunction (SSM) of operations at a facility.
EPA believes that a number of states may have SSM SIP provisions which
are contrary to the Act and inconsistent with existing EPA
guidance,\22\ and the Agency plans to address such state regulations in
the future. In the meantime, EPA encourages any state having a
deficient SSM provision to take steps to correct it as soon as
possible. Similarly, in this proposed action EPA does not include a
review of, and also does not propose to take any action to approve or
disapprove, any existing SIP rules with regard to director's discretion
or variance provisions. EPA believes that a number of states have such
provisions that are contrary to the Act and not consistent with
existing EPA guidance (52 FR 45044, November 24, 1987) \23\ and the
Agency plans to take action in the future to address such state
regulations. In the meantime, EPA encourages any state having a
director's discretion or variance provision in its SIP that is contrary
to the Act and inconsistent with EPA guidance to take steps to correct
the deficiency as soon as possible.
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\22\ ``State Implementation Plans (SIPs): Policy Regarding
Excess Emissions During Malfunctions, Startup, and Shutdown,''
Memorandum from Steven A. Herman, Assistant Administrator for
Enforcement and Compliance Assurance, and Robert Perciasepe,
Assistant Administrator for Air and Radiation, dated September 20,
1999.
\23\ The section addressing exemptions and variances is found on
p. 45109 of the 1987 rulemaking.
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A detailed list of the applicable rules at 252:100 OAC, listed
above, is provided in the TSD. The Oklahoma SIP contains enforceable
emission limits and other control measures, which are in the federally
enforceable SIP. EPA is
[[Page 70947]]
proposing to determine that the Oklahoma SIP meets the requirements of
section 110(a)(2)(A) of the Act with respect to the 1997 8-hour ozone
and 1997 and 2006 PM2.5 NAAQS.
Ambient air quality monitoring/data system, section 110(a)(2)(B):
Section 110(a)(2)(B) requires SIPs to include provisions for
establishment and operation of ambient air quality monitors, collecting
and analyzing ambient air quality data, and making these data available
to EPA upon request. The ODEQ operates and maintains a state-wide
network of air quality monitors; data are collected, results are
quality assured and the data are submitted to EPA's Air Quality System
\24\ on a regular basis. The Oklahoma Statewide Air Quality
Surveillance Network was approved by EPA at 37 FR 10842, 10887 and
revised on March 28, 1979 (44 FR 18490) and January 12, 1981 (46 FR
2655). Oklahoma's monitoring network includes the State and Local Air
Monitoring Stations (SLAMS), which measure ambient concentrations of
those pollutants for which standards have been established in 40 CFR
part 50 (46 FR 2655). Oklahoma's air quality surveillance network
consists of stations that measure ambient concentrations of the
criteria pollutants, including ozone \25\ and PM2.5. The
ODEQ Web site provides the ozone and PM2.5 monitor locations
and current and historical data, including ozone design values for
current \26\ and past trienniums. On June 30, 2010, ODEQ submitted its
2010 Annual Air Monitoring Network Plan (AAMNP) that addresses each of
the criteria pollutants, including 8-hour ozone and PM2.5
and thus allows the state to measure its air quality for compliance
with the 1997 ozone and 1997 and 2006 PM2.5 NAAQS. EPA
approved the 2010 AAMNP on January 12, 2011.\27\
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\24\ The Air Quality System (AQS) is EPA's repository of ambient
air quality data. AQS stores data from over 10,000 monitors, 5,000
of which are currently active. State, Local and Tribal agencies
collect the data and submit it to AQS on a periodic basis.
\25\ During the ozone monitoring season, the ozone monitors are
constantly running and recording one-hour ozone averages. Oklahoma
submits the hourly data into AQS, where the 8-hour averages are
computed. Oklahoma also computes the 8-hour averages and posts the
data at https://www.deq.state.ok.us/AQDnew/monitoring/index.htm.
\26\ The current design values reflect the 2008-2010 ozone
season data.
\27\ A copy of our approval letter is in the docket for this
rulemaking. At the time of this writing, the review of the 2011
AAMNP has not been completed.
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In summary, Oklahoma meets the requirements to establish, operate,
and maintain an ambient air monitoring network, collect and analyze the
monitoring data, and make the data available to EPA upon request. The
EPA is proposing to find that the current Oklahoma SIP meets the
requirements of section 110(a)(2)(B) of the Act for the 1997 ozone and
1997 and 2006 PM2.5 NAAQS.
Program for enforcement of control measures and regulation of the
modification and construction of stationary sources, including a permit
program, pursuant to section 110(a)(2)(C): In its submittal for the
1997 8-hour ozone NAAQS, the ODEQ did not specifically address this
element of section 110(a)(2)(C). The ODEQ did, however, include a
review of enforcement of control measures, including review of proposed
new sources, contained in its SIP in its June 24, 2010 and April 5,
2011 certifications regarding the 1997 and 2006 PM2.5 NAAQS,
respectively.
The ODEQ has requisite enforcement authority as provided under the
Oklahoma Environmental Quality Act, Oklahoma Environmental Quality Code
and the Oklahoma Clean Air Act.\28\ The administrative proceedings for
enforcement actions, including administrative compliance orders and
determination of penalty, are provided under 252 OAC chapter 4,
subchapter 9. Among the issues addressed in 252 OAC chapter 100,
subchapters 3, 5, 8, 9, 13, 17, 19, 23, 24, 25, 31, 33, 37, 39, 43, and
Appendices A, C-G and L, are allowable emission rates, compliance,
control plan requirements, control schedules, monitoring and testing
requirements, and reporting and recordkeeping requirements. These
clarify the boundaries beyond which regulated entities in Oklahoma can
expect enforcement action.
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\28\ See 59 FR 32365 EPA incorporation by reference, the
Oklahoma Environmental Quality Act; Oklahoma Clean Air Act of 1992.
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To meet the requirement for having a program for the regulation of
the modification and construction of any stationary source within the
areas covered by the plan as necessary to assure that NAAQS are
achieved, including a permit program as required by Parts C and D,
generally, the State is required to have SIP-approved PSD,
Nonattainment, and Minor NSR permitting programs adequate to implement
the 1997 8-hour ozone and the 1997 and 2006 PM2.5 NAAQS. As
discussed previously, we are not evaluating nonattainment-related
provisions, such as the nonattainment NSR program required by part D in
110(a)(2)(C) and measures for attainment required by section
110(a)(2)(I), as part of the infrastructure SIPs for these three NAAQS
because these submittals are required beyond the date (3 years from
NAAQS promulgation) that section 110 infrastructure submittals are
required.
PSD programs apply in areas that are meeting the NAAQS or are
unclassifiable, referred to as areas in attainment. PSD applies to new
major sources and major modifications at existing sources. Oklahoma's
PSD program was initially approved into the SIP on August 25, 1983 (see
48 FR 38635), giving the State authority to issue PSD permits and
enforce them under its approved PSD SIP. Subsequent revisions to
Oklahoma's PSD program were found to be consistent with Federal
regulations, and as such, were approved by EPA into the SIP on February
12, 1991 (see 56 FR 05653) and July 23, 1991 (see 56 FR 33715).
To implement section 110(a)(2)(C) for the 1997 ozone NAAQS, a state
must have updated its PSD rules to address NOX as an ozone
precursor (70 FR 71612). To meet this requirement Oklahoma submitted
updated PSD rules for ozone on June 24, 2010, and EPA approved them on
November 26, 2010 (75 FR 72695).
To implement section 110(a)(2)(C) for the PM2.5 NAAQS, a
state must provide revisions to implement the NAAQS, due May 16, 2011
(73 FR 28321 May 16, 2008). On July 16, 2010, ODEQ submitted revisions
to the Oklahoma SIP that amended their PSD program to meet these
PM2.5 NAAQS implementation requirements. We will act on this
submission in a separate rulemaking. Previously, on December 29, 2008,
EPA approved revisions to the values for PM significant deterioration
increments in accordance with 40 CFR 51.166.\29\ We determined these
revisions to the PM PSD increments complied with EPA's PSD regulations.
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\29\ See 73 FR 79400.
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In this action, EPA is not proposing to approve or disapprove any
state rules with regard to the NSR Reform requirements. EPA will act on
SIP submittals that were made for purposes of adopting NSR Reform
through a separate rulemaking process.
Oklahoma has the authority to issue permits under the SIP-approved
PSD program to sources of GHG emissions (75 FR 82536, December 30,
2010; 75 FR 77698, December 13, 2010).\30\ The Tailoring Rule
established thresholds that phase in the applicability of PSD
[[Page 70948]]
requirements to GHG sources, starting with the largest GHG emitters,
and were designed to relieve the overwhelming administrative burdens
and costs associated with the dramatic increase in permitting burden
that would have resulted from applying PSD requirements to GHG emission
increases at or above only the mass-based statutory thresholds of 100/
250 tons per year generally applicable to all PSD-regulated pollutants
starting on January 2, 2011. However, EPA recognized that even after it
finalized the Tailoring Rule, many SIPs with approved PSD programs
would, until they were revised, continue to apply PSD at the statutory
thresholds, even though the States would not have sufficient resources
to implement the PSD program at those levels. EPA consequently
implemented its ``PSD SIP Narrowing Rule'' and narrowed its approval of
those provisions of previously approved SIPs that apply PSD to GHG
emissions increases from sources emitting GHGs below the Tailoring Rule
thresholds (75 FR 82536, December 30, 2010). Through the PSD SIP
Narrowing Rule, EPA withdrew its previous approvals of those programs
to the extent the SIPs apply PSD to increases in GHG emissions from
GHG-emitting sources below the Tailoring Rule thresholds. The portions
of the PSD programs regulating GHGs from GHG-emitting sources with
emission increases at or above the Tailoring Rule thresholds remained
approved. The effect of EPA narrowing its approval in this manner is
that the provisions of previously approved SIPs that apply PSD to GHG
emissions increases from sources emitting GHGs below the Tailoring Rule
thresholds have the status of having been submitted by the State but
not yet acted upon by EPA (75 FR 82536, December 30, 2010).
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\30\ To view Oklahoma's letter, in which the State told EPA it
had this authority, please see https://www.epa.gov/nsr/2010letters/ok.pdf.
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Oklahoma submitted to EPA a supplemental certification, dated
October 24, 2011, certifying that the portion of the GHG PSD program in
the State's submittal under infrastructure SIP review is only the
portion that remained approved after EPA's promulgation of the PSD SIP
Narrowing Rule, which is the portion that regulates GHG-emitting
sources with GHG emissions at or above the Tailoring Rule thresholds.
Therefore, we are proposing to find that the current Oklahoma PSD SIP
meets section 110(a)(2)(C) with respect to the 1997 8-hour ozone and
PM2.5 NAAQS.
EPA has determined that Oklahoma's minor NSR program adopted
pursuant to section 110(a)(2)(C) of the Act regulates emissions of
ozone and PM2.5 and their precursors. EPA has also been made
aware of concerns that certain provisions of some states' minor NSR
programs adopted pursuant to section 110(a)(2)(C) of the Act may not
meet all the requirements found in EPA's regulations implementing that
provision. See 40 CFR 51.160-51.164. EPA has approved Oklahoma's minor
NSR program into the SIP and various revisions pertaining to the minor
program.\31\ Oklahoma and EPA have relied upon Oklahoma's existing
minor NSR program to assure that new and modified sources not captured
by the major NSR permitting programs do not interfere with attainment
and maintenance of the NAAQS. In this action, EPA is proposing to
approve Oklahoma's infrastructure SIP for the 1997 ozone and 1997 and
2006 PM2.5 standards with respect to the general requirement
in section 110(a)(2)(C) to include a program in the SIP that regulates
the modification and construction of any stationary source as necessary
to assure that the NAAQS are achieved. EPA is not proposing to approve
or disapprove Oklahoma's existing minor NSR program itself to the
extent that it is inconsistent with EPA's regulations governing this
program. EPA believes that a number of states may have minor NSR
provisions that are contrary to the existing EPA regulations for this
program. EPA intends to work with states to reconcile state minor NSR
programs with EPA's regulatory provisions for the program. The
statutory requirements of section 110(a)(2)(C) provide for considerable
flexibility in designing minor NSR programs, and EPA believes it may be
time to revisit the regulatory requirements for this program in order
to give the states an appropriate level of flexibility to design
programs that meet their particular air qua
