National Emission Standards for Hazardous Air Pollutants; Delegation of Authority to Oklahoma, 39641-39644 [2018-17139]

Download as PDF Federal Register / Vol. 83, No. 155 / Friday, August 10, 2018 / Proposed Rules country, the proposed rules regarding SIPs do not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will they impose substantial direct costs on tribal governments or preempt tribal law. With respect to the South Carolina SIP, EPA notes that the Catawba Indian Nation Reservation is located within the boundary of York County, South Carolina, and pursuant to the Catawba Indian Claims Settlement Act, S.C. Code Ann. 27–16–120, ‘‘all state and local environmental laws and regulations apply to the Catawba Indian Nation and Reservation and are fully enforceable by all relevant state and local agencies and authorities.’’ Thus, the South Carolina SIP applies to the Catawba Reservation; however, because the proposed action related to South Carolina is merely modifying public notice provisions for certain types of air permits issued by SC DHEC, EPA has preliminarily determined that there are no substantial direct effects on the Catawba Indian Nation. EPA has also preliminarily determined that the proposed action related to South Carolina’s SIP will not impose any substantial direct costs on tribal governments or preempt tribal law. Furthermore, the proposed rules regarding Title V Operating Permit programs do not have tribal implications because they are not approved to apply to any source of air pollution over which an Indian Tribe has jurisdiction, nor will these proposed rules impose substantial direct costs on tribal governments or preempt tribal law. List of Subjects 40 CFR Part 52 Environmental protection, Administrative practice and procedure, Air pollution control, Incorporation by reference, Intergovernmental relations, Reporting and recordkeeping requirements. daltland on DSKBBV9HB2PROD with PROPOSALS 40 CFR Part 70 Environmental protection, Administrative practice and procedure, Air pollution control, Intergovernmental relations, Operating Permits, Reporting and recordkeeping requirements. Dated: July 31, 2018. Onis ‘‘Trey’’ Glenn, III, Regional Administrator, Region 4. [FR Doc. 2018–17207 Filed 8–9–18; 8:45 am] BILLING CODE 6560–50–P VerDate Sep<11>2014 16:24 Aug 09, 2018 Jkt 244001 ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 61 and 63 [EPA–R06–OAR–2008–0063; FRL–9972– 26—Region 6] National Emission Standards for Hazardous Air Pollutants; Delegation of Authority to Oklahoma Environmental Protection Agency (EPA). ACTION: Proposed rule. AGENCY: The Oklahoma Department of Environmental Quality (ODEQ) has submitted updated regulations for receiving delegation and approval of its program for the implementation and enforcement of certain National Emission Standards for Hazardous Air Pollutants (NESHAP) for all sources (both part 70 and non-part 70 sources), as provided for under previously approved delegation mechanisms. The updated state regulations incorporate by reference certain NESHAP promulgated by the EPA at parts 61 and 63, as they existed through September 1, 2016. The EPA is proposing to approve ODEQ’s requested delegation update. DATES: Written comments on this proposed rule must be received on or before September 10, 2018. ADDRESSES: Submit your comments, identified by Docket ID No. EPA–R06– OAR–2008–0063, at https:// www.regulations.gov or via email to barrett.richard@epa.gov. Follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. The EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission (i.e. on the web, cloud, or other file sharing system). For additional submission methods, please contact Mr. Rick Barrett, 214–665–7227, barrett.richard@epa.gov. For the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit https://www2.epa.gov/dockets/ commenting-epa-dockets. SUMMARY: PO 00000 Frm 00020 Fmt 4702 Sfmt 4702 39641 Docket: The index to the docket for this action is available electronically at www.regulations.gov and in hard copy at EPA Region 6, 1445 Ross Avenue, Suite 700, Dallas, Texas. While all documents in the docket are listed in the index, some information may be publicly available only at the hard copy location (e.g., copyrighted material), and some may not be publicly available at either location (e.g., CBI). FOR FURTHER INFORMATION CONTACT: Mr. Rick Barrett (6MM–AP), (214) 665–7227; email: barrett.richard@epa.gov. To inspect the hard copy materials, please schedule an appointment with Mr. Rick Barrett or Mr. Bill Deese at (214) 665– 7253. SUPPLEMENTARY INFORMATION: Throughout this document wherever ‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean the EPA. Table of Contents I. What does this action do? II. What is the authority for delegation? III. What criteria must Oklahoma’s program meet to be approved? IV. How did ODEQ meet the NESHAP program approval criteria? V. What is being delegated? VI. What is not being delegated? VII. How will statutory and regulatory interpretations be made? VIII. What authority does the EPA have? IX. What information must ODEQ provide to the EPA? X. What is the EPA’s oversight role? XI. Should sources submit notices to the EPA or ODEQ? XII. How will unchanged authorities be delegated to ODEQ in the future? XIII. Proposed Action XIV. Statutory and Executive Order Reviews I. What does this action do? EPA is proposing to update its approval of Oklahoma’s program for the implementation and enforcement of certain NESHAP. If finalized, the delegation will provide ODEQ with the primary responsibility to implement and enforce the delegated standards. II. What is the authority for delegation? Section 112(l) of the CAA and 40 CFR part 63, subpart E, authorize the EPA to delegate authority for the implementation and enforcement of emission standards for hazardous air pollutants to a State or local agency that satisfies the statutory and regulatory requirements in subpart E. The hazardous air pollutant standards are codified at 40 CFR parts 61 and 63. III. What criteria must Oklahoma’s program meet to be approved? Section 112(l)(5) of the CAA requires the EPA to disapprove any program submitted by a State for the delegation E:\FR\FM\10AUP1.SGM 10AUP1 39642 Federal Register / Vol. 83, No. 155 / Friday, August 10, 2018 / Proposed Rules of NESHAP standards if the EPA determines that: (A) The authorities contained in the program are not adequate to assure compliance by the sources within the State with respect to each applicable standard, regulation, or requirement established under section 112; (B) adequate authority does not exist, or adequate resources are not available, to implement the program; (C) the schedule for implementing the program and assuring compliance by affected sources is not sufficiently expeditious; or (D) the program is otherwise not in compliance with the guidance issued by the EPA under section 112(l)(2) or is not likely to satisfy, in whole or in part, the objectives of the CAA. In carrying out its responsibilities under section 112(l), the EPA promulgated regulations at 40 CFR part 63, subpart E setting forth criteria for the approval of submitted programs. For example, in order to obtain approval of a program to implement and enforce Federal section 112 rules as promulgated without changes (straight delegation) for part 70 sources, a State must demonstrate that it meets the criteria of 40 CFR 63.91(d). 40 CFR 63.91(d)(3) provides that interim or final Title V program approval will satisfy the criteria of 40 CFR 63.91(d).1 The NESHAP delegation for Oklahoma, as it applies to both part 70 and non-part 70 sources, was most recently approved on December 13, 2005 (70 FR 73595). daltland on DSKBBV9HB2PROD with PROPOSALS IV. How did ODEQ meet the NESHAP program approval criteria? As to the NESHAP standards in 40 CFR parts 61 and 63, as part of its Title V submission ODEQ stated that it intended to use the mechanism of incorporation by reference to adopt unchanged Federal section 112 into its regulations. This commitment applied to both existing and future standards as they applied to part 70 sources. EPA’s final interim approval of Oklahoma’s Title V operating permits program delegated the authority to implement certain NESHAP, effective March 6, 1996 (61 FR 4220, February 5, 1996). On December 5, 2001, EPA granted final full approval of the State’s operating permits program (66 FR 63170). These 1 Some NESHAP standards do not require a source to obtain a title V permit (e.g., certain area sources that are exempt from the requirement to obtain a title V permit). For these non-title V sources, the EPA believes that the State must assure the EPA that it can implement and enforce the NESHAP for such sources. See 65 FR 55810, 55813 (Sept. 14, 2000). EPA previously approved Oklahoma’s program to implement and enforce the NESHAP as they apply to non-part 70 sources. See 66 FR 1584 (Dec. 5, 2001). VerDate Sep<11>2014 16:24 Aug 09, 2018 Jkt 244001 interim and final Title V program approvals satisfy the up-front approval criteria of 40 CFR 63.91(d). Under 40 CFR 63.91(d)(2), once a State has satisfied up-front approval criteria, it needs only to reference the previous demonstration and reaffirm that it still meets the criteria for any subsequent submittals for delegation of the section 112 standards. ODEQ has affirmed that it still meets the up-front approval criteria. With respect to non-part 70 sources, the EPA has previously approved delegation of NESHAP authorities to ODEQ after finding adequate authorities to implement and enforce the NESHAP for such sources. See 66 FR 1584 (January 9, 2001). V. What is being delegated? By letter dated June 25, 2018, the EPA received a request from ODEQ to update its existing NESHAP delegation.2 With certain exceptions noted in section VI below, Oklahoma’s request included NESHAP in 40 CFR part 61 and 40 CFR part 63. ODEQ’s request included newly incorporated NESHAP promulgated by the EPA and amendments to existing standards currently delegated, as they existed though September 1, 2016. This proposed action is being taken in reponse to ODEQ’s request noted above. VI. What is not being delegated? All authorities not affirmatively and expressly proposed for delegation by this action will not be delegated. These include the following part 61 and 63 authorities listed below: • 40 CFR part 61, subpart B (National Emission Standards for Radon Emissions from Underground Uranium Mines); • 40 CFR part 61, subpart H (National Emission Standards for Emissions of Radionuclides Other Than Radon From Department of Energy Facilities); • 40 CFR part 61, subpart I (National Emission Standards for Radionuclide Emissions from Federal Facilities Other Than Nuclear Regulatory Commission Licensees and Not Covered by Subpart H); • 40 CFR part 61, subpart K (National Emission Standards for Radionuclide Emissions from Elemental Phosphorus Plants); • 40 CFR part 61, subpart Q (National Emission Standards for Radon Emissions from Department of Energy facilities); 2 ODEQ’s June 25, 2018 letter rescinds its previous three letters, dated January 11, 2008, August 23, 2012, and October 16, 2017, requesting EPA approval to update Oklahoma’s NESHAP delegation. As such, the EPA’s proposed rulemaking (80 FR 9678, February 24, 2015) associated with ODEQ’s January 11, 2008 letter is hereby withdrawn. PO 00000 Frm 00021 Fmt 4702 Sfmt 4702 • 40 CFR part 61, subpart R (National Emission Standards for Radon Emissions from Phosphogypsum Stacks); • 40 CFR part 61, subpart T (National Emission Standards for Radon Emissions from the Disposal of Uranium Mill Tailings); • 40 CFR part 61, subpart W (National Emission Standards for Radon Emissions from Operating Mill Tailings); and • 40 CFR part 63, subpart J (National Emission Standards for Polyvinyl Choride and Copolymers Production). In addition, the EPA regulations provide that we cannot delegate to a State any of the Category II Subpart A authorities set forth in 40 CFR 63.91(g)(2). These include the following provisions: § 63.6(g), Approval of Alternative Non-Opacity Standards; § 63.6(h)(9), Approval of Alternative Opacity Standards; § 63.7(e)(2)(ii) and (f), Approval of Major Alternatives to Test Methods; § 63.8(f), Approval of Major Alternatives to Monitoring; and § 63.10(f), Approval of Major Alternatives to Recordkeeping and Reporting. Also, some part 61 and part 63 standards have certain provisions that cannot be delegated to the States. Furthermore, no authorities are being proposed for delegation that require rulemaking in the Federal Register to implement, or where Federal overview is the only way to ensure national consistency in the application of the standards or requirements of CAA section 112. Finally, this action does not propose delegation of any authority under section 112(r), the accidental release program. If finalized, all questions concerning implementation and enforcement of the excluded standards in the State of Oklahoma should be directed to the EPA Region 6 Office. EPA is proposing a determination that the NESHAP program submitted by Oklahoma meets the applicable requirements of CAA section 112(l)(5) and 40 CFR part 63, subpart E. This delegation to ODEQ to implement and enforce certain NESHAP does not extend to sources or activities located in Indian country, as defined in 18 U.S.C. 1151. Oklahoma is not seeking delegation for such areas, and neither the EPA nor ODEQ is aware of any existing facilities in Indian country subject to the NESHAP being delegated. ODEQ may submit a request to expand this program to non-reservation areas of Indian country in the future, at which time the EPA would evaluate the request through the appropriate process. E:\FR\FM\10AUP1.SGM 10AUP1 Federal Register / Vol. 83, No. 155 / Friday, August 10, 2018 / Proposed Rules VII. How will statutory and regulatory interpretations be made? If this NESHAP delegation is finalized, ODEQ will obtain concurrence from the EPA on any matter involving the interpretation of section 112 of the CAA or 40 CFR parts 61 and 63 to the extent that implementation or enforcement of these provisions have not been covered by prior EPA determinations or guidance. VIII. What authority does the EPA have? We retain the right, as provided by CAA section 112(l)(7) and 40 CFR 63.90(d)(2), to enforce any applicable emission standard or requirement under section 112. In addition, the EPA may enforce any federally approved State rule, requirement, or program under 40 CFR 63.90(e) and 63.91(c)(1)(i). The EPA also has the authority to make certain decisions under the General Provisions (subpart A) of parts 61 and 63. We are proposing to delegate to the ODEQ some of these authorities, and retaining others, as explained in sections V and VI above. In addition, the EPA may review and disapprove State determinations and subsequently require corrections. See 40 CFR 63.91(g)(1)(ii). EPA also has the authority to review ODEQ’s implementation and enforcement of approved rules or programs and to withdraw approval if we find inadequate implementation or enforcement. See 40 CFR 63.96. Furthermore, we retain any authority in an individual emission standard that may not be delegated according to provisions of the standard. Finally, we retain the authorities stated in the original delegation agreement. See ‘‘Provisions for the Implementation and Enforcement of NSPS and NESHAP in Oklahoma,’’ effective March 25, 1982, a copy of which is included in the docket for this action. The delegation table as of now and how it would look if this proposal is finalized may be found in the Technical Support Document (TSD) included in the docket for this action. The table also shows the authorities that cannot be delegated to any State or local agency. daltland on DSKBBV9HB2PROD with PROPOSALS IX. What information must ODEQ provide to the EPA? ODEQ must provide any additional compliance related information to EPA, Region 6, Office of Enforcement and Compliance Assurance within 45 days of a request under 40 CFR 63.96(a). In receiving delegation for specific General Provisions authorities, ODEQ must submit to EPA Region 6 on a semi- VerDate Sep<11>2014 16:24 Aug 09, 2018 Jkt 244001 annual basis, copies of determinations issued under these authorities. See 40 CFR 63.91(g)(1)(ii). For part 63 standards, these determinations include: § 63.1, Applicability Determinations; § 63.6(e), Operation and Maintenance Requirements—Responsibility for Determining Compliance; § 63.6(f), Compliance with Non-Opacity Standards—Responsibility for Determining Compliance; § 63.6(h), Compliance with Opacity and Visible Emissions Standards—Responsibility for Determining Compliance; § 63.7(c)(2)(i) and (d), Approval of SiteSpecific Test Plans; § 63.7(e)(2)(i), Approval of Minor Alternatives to Test Methods; § 63.7(e)(2)(ii) and (f), Approval of Intermediate Alternatives to Test Methods; § 63.7(e)(iii), Approval of Shorter Sampling Times and Volumes When Necessitated by Process Variables or Other Factors; § 63.7(e)(2)(iv), (h)(2) and (3), Waiver of Performance Testing; § 63.8(c)(1) and (e)(1), Approval of SiteSpecific Performance Evaluation (Monitoring) Test Plans; § 63.8(f), Approval of Minor Alternatives to Monitoring; § 63.8(f), Approval of Intermediate Alternatives to Monitoring; §§ 63.9 and 63.10, Approval of Adjustments to Time Periods for Submitting Reports; § 63.10(f), Approval of Minor Alternatives to Recordkeeping and Reporting; and § 63.7(a)(4), Extension of Performance Test Deadline. 39643 Air Quality Division, P.O. Box 1677, Oklahoma City, Oklahoma 73101–1677. The ODEQ is the primary point of contact with respect to delegated NESHAP. Sources do not need to send a copy to the EPA. The EPA Region 6 proposes to waive the requirement that notifications and reports for delegated standards be submitted to EPA in addition to ODEQ in accordance with 40 CFR 63.9(a)(4)(ii) and 63.10(a)(4)(ii).3 For those standards and authorties not delegated as discussed above, sources must continue to submit all appropriate information to the EPA. XII. How will unchanged authorities be delegated to ODEQ in the future? X. What is the EPA’s oversight role? The EPA oversees ODEQ’s decisions to ensure the delegated authorities are being adequately implemented and enforced. We will integrate oversight of the delegated authorities into the existing mechanisms and resources for oversight currently in place. If, during oversight, we determine that ODEQ made decisions that decreased the stringency of the delegated standards, then ODEQ shall be required to take corrective actions and the source(s) affected by the decisions will be notified, as required by 40 CFR 63.91(g)(1)(ii) and (b). We will initiate withdrawal of the program or rule if the corrective actions taken are insufficient. See 51 FR 20648 (June 6, 1986). As stated in previous NESHAP delegation actions, the EPA has approved Oklahoma’s mechanism of incorporation by reference of NESHAP standards into ODEQ regulations, as they apply to both part 70 and non-part 70 sources. See, e.g., 61 FR 4224 (February 5, 1996) and 66 FR 1584 (January 9, 2001). Consistent with the EPA regulations and guidance,4 ODEQ may request future updates to Oklahoma’s NESHAP delegation by submitting a letter to the EPA that appropriately identifies the specific NESHAP which have been incorporated by reference into state regulation, reaffirms that it still meets up-front approval delegation criteria for part 70 sources, and demonstrates that ODEQ maintains adequate authorites and resources to implememnt and enforce the delegated NESHAP requirements for all sources. We will respond in writing to the request stating that the request for delegation is either granted or denied. A Federal Register action will be published to inform the public and affected sources of the updated delegation, indicate where source notifications and reports should be sent, and amend the relevant portions of the Code of Federal Regulations identifying which NESHAP standards have been delegated to the ODEQ. We have not been using this informational notice process but intend to from now on upon XI. Should sources submit notices to the EPA or ODEQ? For the delegated NESHAP standards and authorities covered by this proposed action, if finalized, sources would submit all of the information required pursuant to the general provisions and the relevant subpart(s) of the delegated NESHAP (40 CFR parts 61 and 63) directly to the ODEQ at the following address: State of Oklahoma, Department of Environmental Quality, 3 This waiver only extends to the submission of copies of notifications and reports; the EPA does not waive the requirements in delegated standards that require notifications and reports be submitted to an electronic database (e.g., 40 CFR part 63, subpart HHHHHHH). 4 See Harardous Air Pollutants: Amendments to the Approval of State Programs and Delegation of Federal Authorities, Final Rule (65 FR 55810, September 14, 2000); and ‘‘Straight Delegation Issues Concerning Sections 111 and 112 Requirements and Title V,’’ by John S. Seitz, Director of Air Qualirty Planning and Standards, EPA, dated December 10, 1993. PO 00000 Frm 00022 Fmt 4702 Sfmt 4702 E:\FR\FM\10AUP1.SGM 10AUP1 39644 Federal Register / Vol. 83, No. 155 / Friday, August 10, 2018 / Proposed Rules receipt of the next NESHAP delegation request from ODEQ.5 XIII. Proposed Action In today’s action, the EPA is proposing to approve an update to the Oklahoma NESHAP delegation that would provide the ODEQ with the authority to implement and enforce certain newly incorporated NESHAP promulgated by the EPA and amendments to existing standards currently delegated, as they existed though September 1, 2016. As requested in ODEQ’s June 25, 2018 letter, this proposed delegation to ODEQ does not extend to sources or activities located in Indian country, as defined in 18 U.S.C. 1151. daltland on DSKBBV9HB2PROD with PROPOSALS XIV. Statutory and Executive Order Reviews List of Subjects Under the CAA, the Administrator has the authority to approve section 112(l) submissions that comply with the provisions of the Act and applicable Federal regulations. In reviewing section 112(l) submissions, the EPA’s role is to approve state choices, provided that they meet the criteria and objectives of the CAA and of the EPA’s implementing regulations. Accordingly, this proposed action would merely approve the State’s request as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this proposed action: • Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011); • 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); 5 A request from ODEQ that raises an isuse not previously subject to comment, presents new data, requires EPA to examine its interpretion of the applicable law, or where EPA wishes to re-examine its present position on a matter will be processed through notice and comment rulemaking in the Federal Register. VerDate Sep<11>2014 16:24 Aug 09, 2018 Jkt 244001 • 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). 40 CFR Part 61 Environmental protection, Administrative practice and procedure, Air pollution control, Arsenic, Benzene, Beryllium, Hazardous substances, Mercury, Intergovernmental relations, Reporting and recordkeeping requirements, Vinyl chloride. 40 CFR Part 63 Environmental protection, Administrative practice and procedure, Air pollution control, Hazardous substances, Intergovernmental relations, Reporting and recordkeeping requirements. Authority: 42 U.S.C. 7401 et seq. Dated: July 25, 2018. Wren Stenger, Multimedia Division Director, Region 6. [FR Doc. 2018–17139 Filed 8–9–18; 8:45 am] BILLING CODE 6560–50–P DEPARTMENT OF HEALTH AND HUMAN SERVICES 45 CFR Part 153 [CMS–9919–P] RIN 0938–AT66 Patient Protection and Affordable Care Act; Adoption of the Methodology for the HHS-Operated Permanent Risk Adjustment Program for the 2018 Benefit Year Proposed Rule Centers for Medicare & Medicaid Services (CMS), Department of Health and Human Services (HHS). ACTION: Proposed rule. AGENCY: This rule proposes to adopt the risk adjustment methodology that HHS previously established for the 2018 SUMMARY: PO 00000 Frm 00023 Fmt 4702 Sfmt 4702 benefit year. In February 2018, a district court vacated the use of statewide average premium in the HHS-operated risk adjustment methodology for the 2014 through 2018 benefit years. HHS is proposing to adopt the HHS-operated risk adjustment methodology for the 2018 benefit year as established in the final rules published in the March 23, 2012 Federal Register and the December 22, 2016 Federal Register. DATES: To be assured consideration, comments must be received at one of the addresses provided below, no later than 5:00 p.m. on September 7, 2018. ADDRESSES: In commenting, please refer to file code CMS–9919–P. Because of staff and resource limitations, we cannot accept comments by facsimile (FAX) transmission. Comments, including mass comment submissions, must be submitted in one of the following three ways (please choose only one of the ways listed): 1. Electronically. You may submit electronic comments on this regulation to https://www.regulations.gov. Follow the ‘‘Submit a comment’’ instructions. 2. By regular mail. You may mail written comments to the following address ONLY: Centers for Medicare & Medicaid Services, Department of Health and Human Services, Attention: CMS–9919–P, P.O. Box 8016, Baltimore, MD 21244–8016. Please allow sufficient time for mailed comments to be received before the close of the comment period. 3. By express or overnight mail. You may send written comments to the following address ONLY: Centers for Medicare & Medicaid Services, Department of Health and Human Services, Attention: CMS–9919–P, Mail Stop C4–26–05, 7500 Security Boulevard, Baltimore, MD 21244–1850. For information on viewing public comments, see the beginning of the SUPPLEMENTARY INFORMATION section. FOR FURTHER INFORMATION CONTACT: Krutika Amin, (301) 492–5153; Jaya Ghildiyal, (301) 492–5149; or Adrianne Patterson, (410) 786–0686. SUPPLEMENTARY INFORMATION: Inspection of Public Comments: All comments received before the close of the comment period are available for viewing by the public, including any personally identifiable or confidential business information that is included in a comment. We post all comments received before the close of the comment period on the following website as soon as possible after they have been received: https:// www.regulations.gov. Follow the search instructions on that website to view public comments. E:\FR\FM\10AUP1.SGM 10AUP1

Agencies

[Federal Register Volume 83, Number 155 (Friday, August 10, 2018)]
[Proposed Rules]
[Pages 39641-39644]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-17139]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 61 and 63

[EPA-R06-OAR-2008-0063; FRL-9972-26--Region 6]


National Emission Standards for Hazardous Air Pollutants; 
Delegation of Authority to Oklahoma

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Oklahoma Department of Environmental Quality (ODEQ) has 
submitted updated regulations for receiving delegation and approval of 
its program for the implementation and enforcement of certain National 
Emission Standards for Hazardous Air Pollutants (NESHAP) for all 
sources (both part 70 and non-part 70 sources), as provided for under 
previously approved delegation mechanisms. The updated state 
regulations incorporate by reference certain NESHAP promulgated by the 
EPA at parts 61 and 63, as they existed through September 1, 2016. The 
EPA is proposing to approve ODEQ's requested delegation update.

DATES: Written comments on this proposed rule must be received on or 
before September 10, 2018.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R06-
OAR-2008-0063, at https://www.regulations.gov or via email to 
[email protected]. Follow the online instructions for submitting 
comments. Once submitted, comments cannot be edited or removed from 
Regulations.gov. The EPA may publish any comment received to its public 
docket. Do not submit electronically any information you consider to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Multimedia submissions (audio, 
video, etc.) must be accompanied by a written comment. The written 
comment is considered the official comment and should include 
discussion of all points you wish to make. The EPA will generally not 
consider comments or comment contents located outside of the primary 
submission (i.e. on the web, cloud, or other file sharing system). For 
additional submission methods, please contact Mr. Rick Barrett, 214-
665-7227, [email protected]. For the full EPA public comment 
policy, information about CBI or multimedia submissions, and general 
guidance on making effective comments, please visit https://www2.epa.gov/dockets/commenting-epa-dockets.
    Docket: The index to the docket for this action is available 
electronically at www.regulations.gov and in hard copy at EPA Region 6, 
1445 Ross Avenue, Suite 700, Dallas, Texas. While all documents in the 
docket are listed in the index, some information may be publicly 
available only at the hard copy location (e.g., copyrighted material), 
and some may not be publicly available at either location (e.g., CBI).

FOR FURTHER INFORMATION CONTACT: Mr. Rick Barrett (6MM-AP), (214) 665-
7227; email: [email protected]. To inspect the hard copy 
materials, please schedule an appointment with Mr. Rick Barrett or Mr. 
Bill Deese at (214) 665-7253.

SUPPLEMENTARY INFORMATION: Throughout this document wherever ``we,'' 
``us,'' or ``our'' is used, we mean the EPA.

Table of Contents

I. What does this action do?
II. What is the authority for delegation?
III. What criteria must Oklahoma's program meet to be approved?
IV. How did ODEQ meet the NESHAP program approval criteria?
V. What is being delegated?
VI. What is not being delegated?
VII. How will statutory and regulatory interpretations be made?
VIII. What authority does the EPA have?
IX. What information must ODEQ provide to the EPA?
X. What is the EPA's oversight role?
XI. Should sources submit notices to the EPA or ODEQ?
XII. How will unchanged authorities be delegated to ODEQ in the 
future?
XIII. Proposed Action
XIV. Statutory and Executive Order Reviews

I. What does this action do?

    EPA is proposing to update its approval of Oklahoma's program for 
the implementation and enforcement of certain NESHAP. If finalized, the 
delegation will provide ODEQ with the primary responsibility to 
implement and enforce the delegated standards.

II. What is the authority for delegation?

    Section 112(l) of the CAA and 40 CFR part 63, subpart E, authorize 
the EPA to delegate authority for the implementation and enforcement of 
emission standards for hazardous air pollutants to a State or local 
agency that satisfies the statutory and regulatory requirements in 
subpart E. The hazardous air pollutant standards are codified at 40 CFR 
parts 61 and 63.

III. What criteria must Oklahoma's program meet to be approved?

    Section 112(l)(5) of the CAA requires the EPA to disapprove any 
program submitted by a State for the delegation

[[Page 39642]]

of NESHAP standards if the EPA determines that:
    (A) The authorities contained in the program are not adequate to 
assure compliance by the sources within the State with respect to each 
applicable standard, regulation, or requirement established under 
section 112;
    (B) adequate authority does not exist, or adequate resources are 
not available, to implement the program;
    (C) the schedule for implementing the program and assuring 
compliance by affected sources is not sufficiently expeditious; or
    (D) the program is otherwise not in compliance with the guidance 
issued by the EPA under section 112(l)(2) or is not likely to satisfy, 
in whole or in part, the objectives of the CAA.
    In carrying out its responsibilities under section 112(l), the EPA 
promulgated regulations at 40 CFR part 63, subpart E setting forth 
criteria for the approval of submitted programs. For example, in order 
to obtain approval of a program to implement and enforce Federal 
section 112 rules as promulgated without changes (straight delegation) 
for part 70 sources, a State must demonstrate that it meets the 
criteria of 40 CFR 63.91(d). 40 CFR 63.91(d)(3) provides that interim 
or final Title V program approval will satisfy the criteria of 40 CFR 
63.91(d).\1\ The NESHAP delegation for Oklahoma, as it applies to both 
part 70 and non-part 70 sources, was most recently approved on December 
13, 2005 (70 FR 73595).
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    \1\ Some NESHAP standards do not require a source to obtain a 
title V permit (e.g., certain area sources that are exempt from the 
requirement to obtain a title V permit). For these non-title V 
sources, the EPA believes that the State must assure the EPA that it 
can implement and enforce the NESHAP for such sources. See 65 FR 
55810, 55813 (Sept. 14, 2000). EPA previously approved Oklahoma's 
program to implement and enforce the NESHAP as they apply to non-
part 70 sources. See 66 FR 1584 (Dec. 5, 2001).
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IV. How did ODEQ meet the NESHAP program approval criteria?

    As to the NESHAP standards in 40 CFR parts 61 and 63, as part of 
its Title V submission ODEQ stated that it intended to use the 
mechanism of incorporation by reference to adopt unchanged Federal 
section 112 into its regulations. This commitment applied to both 
existing and future standards as they applied to part 70 sources. EPA's 
final interim approval of Oklahoma's Title V operating permits program 
delegated the authority to implement certain NESHAP, effective March 6, 
1996 (61 FR 4220, February 5, 1996). On December 5, 2001, EPA granted 
final full approval of the State's operating permits program (66 FR 
63170). These interim and final Title V program approvals satisfy the 
up-front approval criteria of 40 CFR 63.91(d). Under 40 CFR 
63.91(d)(2), once a State has satisfied up-front approval criteria, it 
needs only to reference the previous demonstration and reaffirm that it 
still meets the criteria for any subsequent submittals for delegation 
of the section 112 standards. ODEQ has affirmed that it still meets the 
up-front approval criteria. With respect to non-part 70 sources, the 
EPA has previously approved delegation of NESHAP authorities to ODEQ 
after finding adequate authorities to implement and enforce the NESHAP 
for such sources. See 66 FR 1584 (January 9, 2001).

V. What is being delegated?

    By letter dated June 25, 2018, the EPA received a request from ODEQ 
to update its existing NESHAP delegation.\2\ With certain exceptions 
noted in section VI below, Oklahoma's request included NESHAP in 40 CFR 
part 61 and 40 CFR part 63. ODEQ's request included newly incorporated 
NESHAP promulgated by the EPA and amendments to existing standards 
currently delegated, as they existed though September 1, 2016. This 
proposed action is being taken in reponse to ODEQ's request noted 
above.
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    \2\ ODEQ's June 25, 2018 letter rescinds its previous three 
letters, dated January 11, 2008, August 23, 2012, and October 16, 
2017, requesting EPA approval to update Oklahoma's NESHAP 
delegation. As such, the EPA's proposed rulemaking (80 FR 9678, 
February 24, 2015) associated with ODEQ's January 11, 2008 letter is 
hereby withdrawn.
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VI. What is not being delegated?

    All authorities not affirmatively and expressly proposed for 
delegation by this action will not be delegated. These include the 
following part 61 and 63 authorities listed below:
     40 CFR part 61, subpart B (National Emission Standards for 
Radon Emissions from Underground Uranium Mines);
     40 CFR part 61, subpart H (National Emission Standards for 
Emissions of Radionuclides Other Than Radon From Department of Energy 
Facilities);
     40 CFR part 61, subpart I (National Emission Standards for 
Radionuclide Emissions from Federal Facilities Other Than Nuclear 
Regulatory Commission Licensees and Not Covered by Subpart H);
     40 CFR part 61, subpart K (National Emission Standards for 
Radionuclide Emissions from Elemental Phosphorus Plants);
     40 CFR part 61, subpart Q (National Emission Standards for 
Radon Emissions from Department of Energy facilities);
     40 CFR part 61, subpart R (National Emission Standards for 
Radon Emissions from Phosphogypsum Stacks);
     40 CFR part 61, subpart T (National Emission Standards for 
Radon Emissions from the Disposal of Uranium Mill Tailings);
     40 CFR part 61, subpart W (National Emission Standards for 
Radon Emissions from Operating Mill Tailings); and
     40 CFR part 63, subpart J (National Emission Standards for 
Polyvinyl Choride and Copolymers Production).
    In addition, the EPA regulations provide that we cannot delegate to 
a State any of the Category II Subpart A authorities set forth in 40 
CFR 63.91(g)(2). These include the following provisions: Sec.  63.6(g), 
Approval of Alternative Non-Opacity Standards; Sec.  63.6(h)(9), 
Approval of Alternative Opacity Standards; Sec.  63.7(e)(2)(ii) and 
(f), Approval of Major Alternatives to Test Methods; Sec.  63.8(f), 
Approval of Major Alternatives to Monitoring; and Sec.  63.10(f), 
Approval of Major Alternatives to Recordkeeping and Reporting. Also, 
some part 61 and part 63 standards have certain provisions that cannot 
be delegated to the States. Furthermore, no authorities are being 
proposed for delegation that require rulemaking in the Federal Register 
to implement, or where Federal overview is the only way to ensure 
national consistency in the application of the standards or 
requirements of CAA section 112. Finally, this action does not propose 
delegation of any authority under section 112(r), the accidental 
release program.
    If finalized, all questions concerning implementation and 
enforcement of the excluded standards in the State of Oklahoma should 
be directed to the EPA Region 6 Office.
    EPA is proposing a determination that the NESHAP program submitted 
by Oklahoma meets the applicable requirements of CAA section 112(l)(5) 
and 40 CFR part 63, subpart E. This delegation to ODEQ to implement and 
enforce certain NESHAP does not extend to sources or activities located 
in Indian country, as defined in 18 U.S.C. 1151. Oklahoma is not 
seeking delegation for such areas, and neither the EPA nor ODEQ is 
aware of any existing facilities in Indian country subject to the 
NESHAP being delegated. ODEQ may submit a request to expand this 
program to non-reservation areas of Indian country in the future, at 
which time the EPA would evaluate the request through the appropriate 
process.

[[Page 39643]]

VII. How will statutory and regulatory interpretations be made?

    If this NESHAP delegation is finalized, ODEQ will obtain 
concurrence from the EPA on any matter involving the interpretation of 
section 112 of the CAA or 40 CFR parts 61 and 63 to the extent that 
implementation or enforcement of these provisions have not been covered 
by prior EPA determinations or guidance.

VIII. What authority does the EPA have?

    We retain the right, as provided by CAA section 112(l)(7) and 40 
CFR 63.90(d)(2), to enforce any applicable emission standard or 
requirement under section 112. In addition, the EPA may enforce any 
federally approved State rule, requirement, or program under 40 CFR 
63.90(e) and 63.91(c)(1)(i). The EPA also has the authority to make 
certain decisions under the General Provisions (subpart A) of parts 61 
and 63. We are proposing to delegate to the ODEQ some of these 
authorities, and retaining others, as explained in sections V and VI 
above. In addition, the EPA may review and disapprove State 
determinations and subsequently require corrections. See 40 CFR 
63.91(g)(1)(ii). EPA also has the authority to review ODEQ's 
implementation and enforcement of approved rules or programs and to 
withdraw approval if we find inadequate implementation or enforcement. 
See 40 CFR 63.96.
    Furthermore, we retain any authority in an individual emission 
standard that may not be delegated according to provisions of the 
standard. Finally, we retain the authorities stated in the original 
delegation agreement. See ``Provisions for the Implementation and 
Enforcement of NSPS and NESHAP in Oklahoma,'' effective March 25, 1982, 
a copy of which is included in the docket for this action. The 
delegation table as of now and how it would look if this proposal is 
finalized may be found in the Technical Support Document (TSD) included 
in the docket for this action. The table also shows the authorities 
that cannot be delegated to any State or local agency.

IX. What information must ODEQ provide to the EPA?

    ODEQ must provide any additional compliance related information to 
EPA, Region 6, Office of Enforcement and Compliance Assurance within 45 
days of a request under 40 CFR 63.96(a). In receiving delegation for 
specific General Provisions authorities, ODEQ must submit to EPA Region 
6 on a semi-annual basis, copies of determinations issued under these 
authorities. See 40 CFR 63.91(g)(1)(ii). For part 63 standards, these 
determinations include: Sec.  63.1, Applicability Determinations; Sec.  
63.6(e), Operation and Maintenance Requirements--Responsibility for 
Determining Compliance; Sec.  63.6(f), Compliance with Non-Opacity 
Standards--Responsibility for Determining Compliance; Sec.  63.6(h), 
Compliance with Opacity and Visible Emissions Standards--Responsibility 
for Determining Compliance; Sec.  63.7(c)(2)(i) and (d), Approval of 
Site-Specific Test Plans; Sec.  63.7(e)(2)(i), Approval of Minor 
Alternatives to Test Methods; Sec.  63.7(e)(2)(ii) and (f), Approval of 
Intermediate Alternatives to Test Methods; Sec.  63.7(e)(iii), Approval 
of Shorter Sampling Times and Volumes When Necessitated by Process 
Variables or Other Factors; Sec.  63.7(e)(2)(iv), (h)(2) and (3), 
Waiver of Performance Testing; Sec.  63.8(c)(1) and (e)(1), Approval of 
Site-Specific Performance Evaluation (Monitoring) Test Plans; Sec.  
63.8(f), Approval of Minor Alternatives to Monitoring; Sec.  63.8(f), 
Approval of Intermediate Alternatives to Monitoring; Sec. Sec.  63.9 
and 63.10, Approval of Adjustments to Time Periods for Submitting 
Reports; Sec.  63.10(f), Approval of Minor Alternatives to 
Recordkeeping and Reporting; and Sec.  63.7(a)(4), Extension of 
Performance Test Deadline.

X. What is the EPA's oversight role?

    The EPA oversees ODEQ's decisions to ensure the delegated 
authorities are being adequately implemented and enforced. We will 
integrate oversight of the delegated authorities into the existing 
mechanisms and resources for oversight currently in place. If, during 
oversight, we determine that ODEQ made decisions that decreased the 
stringency of the delegated standards, then ODEQ shall be required to 
take corrective actions and the source(s) affected by the decisions 
will be notified, as required by 40 CFR 63.91(g)(1)(ii) and (b). We 
will initiate withdrawal of the program or rule if the corrective 
actions taken are insufficient. See 51 FR 20648 (June 6, 1986).

XI. Should sources submit notices to the EPA or ODEQ?

    For the delegated NESHAP standards and authorities covered by this 
proposed action, if finalized, sources would submit all of the 
information required pursuant to the general provisions and the 
relevant subpart(s) of the delegated NESHAP (40 CFR parts 61 and 63) 
directly to the ODEQ at the following address: State of Oklahoma, 
Department of Environmental Quality, Air Quality Division, P.O. Box 
1677, Oklahoma City, Oklahoma 73101-1677. The ODEQ is the primary point 
of contact with respect to delegated NESHAP. Sources do not need to 
send a copy to the EPA. The EPA Region 6 proposes to waive the 
requirement that notifications and reports for delegated standards be 
submitted to EPA in addition to ODEQ in accordance with 40 CFR 
63.9(a)(4)(ii) and 63.10(a)(4)(ii).\3\ For those standards and 
authorties not delegated as discussed above, sources must continue to 
submit all appropriate information to the EPA.
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    \3\ This waiver only extends to the submission of copies of 
notifications and reports; the EPA does not waive the requirements 
in delegated standards that require notifications and reports be 
submitted to an electronic database (e.g., 40 CFR part 63, subpart 
HHHHHHH).
---------------------------------------------------------------------------

XII. How will unchanged authorities be delegated to ODEQ in the future?

    As stated in previous NESHAP delegation actions, the EPA has 
approved Oklahoma's mechanism of incorporation by reference of NESHAP 
standards into ODEQ regulations, as they apply to both part 70 and non-
part 70 sources. See, e.g., 61 FR 4224 (February 5, 1996) and 66 FR 
1584 (January 9, 2001). Consistent with the EPA regulations and 
guidance,\4\ ODEQ may request future updates to Oklahoma's NESHAP 
delegation by submitting a letter to the EPA that appropriately 
identifies the specific NESHAP which have been incorporated by 
reference into state regulation, reaffirms that it still meets up-front 
approval delegation criteria for part 70 sources, and demonstrates that 
ODEQ maintains adequate authorites and resources to implememnt and 
enforce the delegated NESHAP requirements for all sources. We will 
respond in writing to the request stating that the request for 
delegation is either granted or denied. A Federal Register action will 
be published to inform the public and affected sources of the updated 
delegation, indicate where source notifications and reports should be 
sent, and amend the relevant portions of the Code of Federal 
Regulations identifying which NESHAP standards have been delegated to 
the ODEQ. We have not been using this informational notice process but 
intend to from now on upon

[[Page 39644]]

receipt of the next NESHAP delegation request from ODEQ.\5\
---------------------------------------------------------------------------

    \4\ See Harardous Air Pollutants: Amendments to the Approval of 
State Programs and Delegation of Federal Authorities, Final Rule (65 
FR 55810, September 14, 2000); and ``Straight Delegation Issues 
Concerning Sections 111 and 112 Requirements and Title V,'' by John 
S. Seitz, Director of Air Qualirty Planning and Standards, EPA, 
dated December 10, 1993.
    \5\ A request from ODEQ that raises an isuse not previously 
subject to comment, presents new data, requires EPA to examine its 
interpretion of the applicable law, or where EPA wishes to re-
examine its present position on a matter will be processed through 
notice and comment rulemaking in the Federal Register.
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XIII. Proposed Action

    In today's action, the EPA is proposing to approve an update to the 
Oklahoma NESHAP delegation that would provide the ODEQ with the 
authority to implement and enforce certain newly incorporated NESHAP 
promulgated by the EPA and amendments to existing standards currently 
delegated, as they existed though September 1, 2016. As requested in 
ODEQ's June 25, 2018 letter, this proposed delegation to ODEQ does not 
extend to sources or activities located in Indian country, as defined 
in 18 U.S.C. 1151.

XIV. Statutory and Executive Order Reviews

    Under the CAA, the Administrator has the authority to approve 
section 112(l) submissions that comply with the provisions of the Act 
and applicable Federal regulations. In reviewing section 112(l) 
submissions, the EPA's role is to approve state choices, provided that 
they meet the criteria and objectives of the CAA and of the EPA's 
implementing regulations. Accordingly, this proposed action would 
merely approve the State's request as meeting Federal requirements and 
does not impose additional requirements beyond those imposed by state 
law. For that reason, this proposed action:
     Is not a significant regulatory action subject to review 
by the Office of Management and Budget under Executive Orders 12866 (58 
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
     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).

List of Subjects

40 CFR Part 61

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Arsenic, Benzene, Beryllium, Hazardous 
substances, Mercury, Intergovernmental relations, Reporting and 
recordkeeping requirements, Vinyl chloride.

40 CFR Part 63

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Hazardous substances, Intergovernmental 
relations, Reporting and recordkeeping requirements.

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

    Dated: July 25, 2018.
Wren Stenger,
Multimedia Division Director, Region 6.
[FR Doc. 2018-17139 Filed 8-9-18; 8:45 am]
 BILLING CODE 6560-50-P
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