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Federal Register / Vol. 86, No. 138 / Thursday, July 22, 2021 / Proposed Rules rule is to ensure that cutback asphalt cannot be used during Oklahomas ozone season. This revision is consistent with 40 CFR part 58, Appendix D, Table D3 titled Ozone Monitoring Season by State. ODEQ provided notice of the proposed change, announced the comment period from September 4, 2018 through October 5, 2018, and notice of a public hearing in Volume 35, Number 24, page 705 of the Oklahoma Register on September 4, 2018. The public hearing was held on October 10, 2018, and no comments were received.
The environment will benefit by restricting the time of year cutback asphalt can be used. Examination of the record indicates that the submitted revision to Subchapter 39, Section 40 is proper, the revisions will strengthen the SIP preventing emissions from the application of cutback asphalt during the time of year when ozone formation is most likely. Thus, we find that the Oklahoma SIP that the requirements of section 110l of the Act have been satisfied. Therefore, we are proposing to approve the submitted revision to Subchapter 39, Section 40.
Several changes were made to OAC
252:100, Subchapter 39, Section 41. A
typographical error was corrected in subsection 41c5. In subsection 41d3, reference was made to a test method in an EPA Control Technique Guideline CTG from 1978. This reference was changed to reference the EPA Test Method 27 contained in 40
CFR part 60 as the applicable procedure for the testing requirement for tank leak tightness. Several modifications were made to subsection 41e. Subsection 41e applies to Tulsa County only.
Subsections 41e2B and E were modified by removing a thirty-year-old effective date that is no longer necessary. Also, an alternative work practice for monitoring equipment for leaks that is consistent with 40 CFR
60.18g through 60.18i was added.
The revision also states that leaks detected by EPA Test Method 21 or by an alternative work practice shall be repaired within 15 days. Revisions to subsection 41e4Aiv update the reference to the portion of the rule that specifies the proper pressure testing which changed as a result of reorganizing the section. As part of reorganizing the section, subsection 41e4Avi was moved to subsection 41e4Bi, and other references in subsection 41e4 were changed to align the references with the reorganization. Subsection 41e4Bii was updated to state that the vapor tightness test must be consistent with EPA Test Method 27 and updated what
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is considered a passing test as defined by EPA Test Method 27.
ODEQ provided notice of the proposed changes, announced the comment period from September 4, 2018 through October 5, 2018, and hearing schedule in Volume 35, Number 24, page 705 of the Oklahoma Register on September 4, 2018. The public hearing was held on October 10, 2018, and no comments were received. The revisions are ministerial in nature, update references consistent with federal regulations or adopt use of EPA
Test Methods. Examination of the record indicates that the submitted revision to Subchapter 39, Section 41 is proper and do not relax the SIP. Thus, we find that the requirements of section 110l of the Act have been satisfied.
Therefore, we are proposing to approve the submitted revision to Subchapter 39, Section 41.
III. Impact on Areas of Indian Country Following the U.S. Supreme Court decision in McGirt v. Oklahoma, 140 S.
Ct. 2452 2020, the Governor of the State of Oklahoma requested approval under Section 10211a of the Safe, Accountable, Flexible, Efficient Transportation Equity Act of 2005: A
Legacy for Users, Public Law 10959, 109 Stat. 1144, 1937 August 10, 2005
SAFETEA, to administer in certain areas of Indian country as defined at 18
U.S.C. 1151 the States environmental regulatory programs that were previously approved by the EPA for areas outside of Indian country. The States request excluded certain areas of Indian country further described below.
In addition, the State only sought approval to the extent that such approval is necessary for the State to administer a program in light of Oklahoma Dept. of Environmental Quality v. EPA, 740 F.3d 185 D.C. Cir.
2014.1
On October 1, 2020, the EPA
approved Oklahomas SAFETEA request to administer all the States EPAapproved environmental regulatory programs, including the Oklahoma SIP, in the requested areas of Indian country.
As requested by Oklahoma, the EPAs 1 In ODEQ v. EPA, the D.C. Circuit held that under the CAA, a state has the authority to implement a SIP in non-reservation areas of Indian country in the state, where there has been no demonstration of tribal jurisdiction. Under the D.C.
Circuits decision, the CAA does not provide authority to states to implement SIPs in Indian reservations. ODEQ did not, however, substantively address the separate authority in Indian country provided specifically to Oklahoma under SAFETEA. That separate authority was not invoked until the State submitted its request under SAFETEA, and was not approved until EPAs decision, described in this section, on October 1, 2020.

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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. 1151c;
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.
EPAs approval under SAFETEA
expressly provided that to the extent EPAs prior approvals of Oklahomas environmental programs excluded Indian country, any such exclusions are superseded for the geographic areas of Indian country covered by the EPAs approval of Oklahomas SAFETEA
request.2 The approval also provided that future revisions or amendments to Oklahomas approved environmental regulatory programs would extend to the covered areas of Indian country without any further need for additional requests under SAFETEA.
As explained above, the EPA is proposing to approve revisions to the Oklahoma SIP that include revisions to OAC Title 252 Chapter 100 Subchapter 39 OAC 252:10039 Sections 4, 16, 40, and 41, which will apply in Tulsa and Oklahoma Counties. Consistent with the D.C. Circuits decision in ODEQ v. EPA
and with EPAs October 1, 2020
SAFETEA approval, if this approval is finalized as proposed, these SIP
revisions will apply to all Indian country within Tulsa and Oklahoma Counties, other than the excluded Indian country lands, as described above. Becauseper the States request under SAFETEAEPAs October 1, 2020 approval does not displace any SIP
authority previously exercised by the State under the CAA as interpreted in ODEQ v. EPA, the SIP will also apply to any Indian allotments or dependent Indian communities located outside of an Indian reservation over which there has been no demonstration of tribal authority.3
2 EPAs prior approvals relating to Oklahomas SIP frequently noted that the SIP was not approved to apply in areas of Indian country consistent with the D.C. Circuits decision in ODEQ v. EPA located in the state. See, e.g., 85 FR 20178, 20180 April 10, 2020. Such prior expressed limitations are superseded by the EPAs approval of Oklahomas SAFETEA request.
3 In accordance with Executive Order 13990, EPA
is currently reviewing our October 1, 2020
SAFETEA approval and is engaging in further
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