Air Plan Approval; Oklahoma; Updates to the State Implementation Plan Incorporation by Reference Provisions

<RULE> ENVIRONMENTAL PROTECTION AGENCY <CFR>40 CFR Part 52</CFR> <DEPDOC>[EPA-R06-OAR-2022-0279; FRL-10675-02-R6]</DEPDOC> <SUBJECT>Air Plan Approval; Oklahoma; Updates to the State Implementation Plan Incorporation by Reference Provisions</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> Environmental Protection Agency (EPA). <HD SOURCE="HED">ACTION:</HD> Final rule. <SUM> <HD SOURCE="HED">SUMMARY:</HD> Pursuant to the Federal Clean Air Act (CAA or the Act), the Environmental Protection Agency (EPA) is approving revisions to the Oklahoma State Implementation Plan (SIP) submitted by the State of Oklahoma designee on December 17, 2021, and January 20, 2023. This action addresses the submittal of revisions to the Oklahoma SIP to update the incorporation by reference provision of Federal requirements under Oklahoma Administrative Code (OAC). </SUM> <DATES> <HD SOURCE="HED">DATES:</HD> This rule is effective April 1, 2024. </DATES> <HD SOURCE="HED">ADDRESSES:</HD> The EPA has established a docket for this action under Docket ID No. EPA-R06-OAR-2022-0279. All documents in the docket are listed on the <E T="03">https://www.regulations.gov</E> website. Although listed in the index, some information is not publicly available, <E T="03">e.g.,</E> Confidential Business Information or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the internet. Publicly available docket materials are available electronically through <E T="03">https://www.regulations.gov.</E> <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> Adina Wiley, EPA Region 6 Office, Air Permits Section, 214-665-2115, <E T="03">wiley.adina@epa.gov.</E> Please call or email the contact listed above if you need alternative access to material indexed but not provided in the docket. </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> Throughout this document “we,” “us,” and “our” means the EPA. <HD SOURCE="HD1">I. Background</HD> The background for this action is discussed in detail in our March 6, 2023, proposal (88 FR 13755). In that document we proposed to approve revisions to the Oklahoma SIP that update the incorporation by reference dates for Federal requirements. We received one comment on our proposed action, addressed below. <HD SOURCE="HD1">II. Response to Comments</HD> The commentor asserts that there is a potential inconsistency with the portions of our proposed rulemaking discussing the Impact on Areas of Indian Country and Environmental Justice Considerations. We address the comment below in two parts. <E T="03">Comment:</E> In section III of our proposal (“Impact on Areas of Indian Country”) we said, “As requested by Oklahoma, the EPA's approval under SAFETEA  <SU>1</SU> <FTREF/> does not include Indian country lands, including rights-of-way running through the same, that (1) qualify as Indian allotments, the Indian titles to which have not been extinguished, under 18 U.S.C. 1151(c).” The commentor cites the definition of “Indian country” in Title 18, “(a) all land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and, including rights-of-way running through the reservation, (b) all dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a state, and (c) all Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same.” The commentor offers their interpretation of this definition, stating that “this statute states that all Indian reservations and areas allocated for the Native American community are reserved for that community and under that community's jurisdiction” and ties this interpretation to our proposed action, arguing that “[t]he problem that arises in the proposed statute, is that it leaves the issue of air quality as a responsibility of Indian Country.” <FTNT> <SU>1</SU>  Safe, Accountable, Flexible, Efficient Transportation Equity Act of 2005: A Legacy for Users, Public Law 109-59, 119 Stat. 1144, 1937 (August 10, 2005) (“SAFETEA”) </FTNT> <E T="03">Response:</E> Section III of our proposed rulemaking, Impact on Areas of Indian Country, provides the regulatory history of Oklahoma's request and the EPA's approval to administer the State's environmental regulatory programs in certain areas of Indian Country pursuant to SAFETEA. The EPA's October 1, 2020, approval of the Oklahoma SAFETEA request gives the State—not the Tribes—the authority to administer the Oklahoma SIP within certain areas of Indian country. The State of Oklahoma is responsible for protecting air quality in these areas. <E T="03">Comment:</E> The commentor states their concern that “despite Indian Country having authority over their land, they aren't given a sufficient amount of resources to combat poor air quality, leaving them to their own defenses. Subsequently, leaving Tribes to deal with poor air quality and not giving them a chance to improve it. A general recommendation I offer is to (a) add clarity to the cities, and Tribes, that are excluded from Indian Country and will implement this statute, (b) instead of trying to take control of Indian Country or leaving the complete authority to Indian Country, work with the Tribes and create statutes with their opinions and ideas in mind and have a shared statute that everyone benefits from.” <E T="03">Response:</E> As a result of the EPA's SAFETEA approval, the State of Oklahoma is responsible for protecting air quality in certain areas of Indian Country and concerns about resources allocated to Tribes for this purpose are not relevant to this rulemaking. The EPA notes, however, that several Tribal governments within the State of Oklahoma have Tribal air programs that are supported and encouraged by the EPA. <HD SOURCE="HD1">III. Impact on Areas of Indian Country</HD> Following the U.S. Supreme Court decision in <E T="03">McGirt</E> v <E T="03">Oklahoma,</E> 140 S. Ct. 2452 (2020), the Governor of the State of Oklahoma requested approval under Section 10211(a) of the Safe, Accountable, Flexible, Efficient Transportation Equity Act of 2005: A Legacy for Users, Public Law 109-59, 119 Stat. 1144, 1937 (August 10, 2005) (“SAFETEA”), to administer in certain areas of Indian country (as defined at 18 U.S.C. 1151) the State's environmental regulatory programs that were previously approved by the EPA for areas outside of Indian country. The State's request excluded certain areas of Indian country further described below. In addition, the State only sought approval to the extent that such approval is necessary for the State to administer a program in light of <E T="03">Oklahoma Dept. of Environmental Quality</E> v. <E T="03">EPA,</E> 740 F.3d 185 (D.C. Cir. 2014). v. <E T="03">EPA,</E> the D.C. Circuit held that under the CAA, a state has the authority to implement a SIP in non-reservation areas of Indian country in the state, where there has been no demonstration of Tribal jurisdiction. Under the D.C. Circuit's decision, the CAA does not provide authority to states to implement SIPs in Indian reservations. <E T="03">ODEQ</E> did not, however, substantively address the separate authority in Indian country provided specifically to Oklahoma under SAFETEA. That separate authority was not invoked until the State submitted its request under SAFETEA, and was not approved until EPA's decision, described in this section, on October 1, 2020. </FTNT> On October 1, 2020, the EPA approved Oklahoma's SAFETEA request to administer all the State's EPA-approved environmental regulatory programs, including the Oklahoma SIP, in the requested areas of Indian country. As requested by Oklahoma, the EPA's approval under SAFETEA does not include Indian country lands, including rights-of-way running through the same, that: (1) qualify as Indian allotments, the Indian titles to which have not been extinguished, under 18 U.S.C. 1151(c); (2) are held in trust by the United States on behalf of an individual Indian or Tribe; or (3) are owned in fee by a Tribe, if the Tribe (a) acquired that fee title to such land, or an area that included such land, in accordance with a treaty with the United States to which such Tribe was a party, and (b) never allotted the land to a member or citizen of the Tribe (collectively “excluded Indian country lands”). The EPA's approval under SAFETEA expressly provided that to the extent EPA's prior approvals of Oklahoma's environmental programs excluded Indian country, any such exclusions are superseded for the geographic areas of Indian country covered by the EPA's approval of Oklahoma's SAFETEA request. <SU>3</SU> <FTREF/> The approval also provided that future revisions or amendments to Oklahoma's approved environmental regulatory programs would extend to the covered areas of Indian country (without any further need for additional requests under SAFETEA). <FTNT> <SU>3</SU>  EPA's prior approvals relating to Oklahoma's SIP frequently noted that the SIP was not approved to apply in areas of Indian country (consistent with the D.C. Circuit's decision in <E T="03">ODEQ</E> v. <E T="03">EPA</E> ) located in the state. <E T="03">See, e.g.,</E> 85 FR 20178, 20180 (April 10, 2020). Such prior expressed limitations are superseded by the EPA's approval of Oklahoma's SAFETEA request. </FTNT> The EPA is approving updates to the Oklahoma SIP incorporation by reference provisions to maintain consistency with Federal requirements, which will apply statewide in Oklahoma. Consistent with the D.C. Circuit's decision in <E T="03">ODEQ</E> v. <E T="03">EPA</E> and with the EPA's October 1, 2020, ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 22k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━