Approval and Promulgation of Implementation Plans and Operating Permits Programs, Approval Under Section 112(l); State of Nebraska

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[Federal Register: January 20, 2000 (Volume 65, Number 13)]
[Rules and Regulations]
[Page 3130-3136]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr20ja00-6]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 70

[NE 071-1071a; FRL-6521-6]

Approval and Promulgation of Implementation Plans and Operating
Permits Programs, Approval Under Section 112(l); State of Nebraska

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

-----------------------------------------------------------------------

SUMMARY: EPA is taking final action to approve a State Implementation
Plan (SIP) revision submitted by the state of Nebraska on February 5,
1999. This revision consists of updates to Title 129--Nebraska Air
Quality Regulations, Chapters 1, 2, 5, 6, 7, 8, 10, 17, 22, 25, 34, 35,
41, and Appendix II. The state also requested that EPA approve
revisions adopted by the Lincoln-Lancaster County Health Department
(LLCHD), Lincoln, Nebraska, in 1997 and 1998, and rule revisions
adopted by the city of Omaha in 1998. EPA is taking action to approve
these revisions also. These revisions will strengthen the SIP with
respect to attainment and maintenance of established air quality
standards and with respect to hazardous air pollutants (HAP). EPA is
also approving revisions to the agencies' part 70 operating permits
programs. The effect of this action is to ensure that the state and
local agencies' air program rule revisions are reflected in the EPA-
approved program.

DATES: This direct final rule is effective on March 20, 2000 without
further notice, unless EPA receives adverse comment by February 22,
2000. If adverse comment is received, EPA will publish a timely
withdrawal of the direct final rule in the Federal Register and inform
the public that the rule will not take effect.

ADDRESSES: Comments may be addressed to Wayne A. Kaiser, Environmental
Protection Agency, Air Planning and Development Branch, 901 North 5th
Street, Kansas City, Kansas 66101.
Copies of the state submittal are available at the following
addresses for inspection during normal business hours: Environmental
Protection Agency, Air Planning and Development Branch, 901 North 5th
Street, Kansas City, Kansas 66101; and the Environmental Protection
Agency, Air and Radiation Docket and Information Center, Air Docket
(6102), 401 M Street, SW, Washington, D.C. 20460.

FOR FURTHER INFORMATION CONTACT: Wayne A. Kaiser at (913) 551-7603.

SUPPLEMENTARY INFORMATION: This section provides additional
information by addressing the following questions:

What is a SIP?
What is the Federal approval process for a SIP?
What does Federal approval of a state regulation mean to me?
What is approval under section 112(l)?
What is the Part 70 Operating Permits Program?
What is being addressed in this document?
Have the requirements for approval of a SIP revision been met?
What action is EPA taking?

What is a SIP?

Section 110 of the Clean Air Act (CAA) requires states to develop
air pollution regulations and control strategies to ensure that state
air quality meets the national ambient air quality standards
established by EPA. These ambient standards are established under
section 109 of the CAA, and they currently address six criteria
pollutants. These pollutants are: carbon monoxide, nitrogen dioxide,
ozone, lead, particulate matter, and sulfur dioxide.
Each state must submit these regulations and control strategies to
EPA for approval and incorporation into the Federally enforceable SIP.

[[Page 3131]]

Each Federally approved SIP protects air quality primarily by
addressing air pollution at its point of origin. These SIPs can be
extensive, containing state regulations or other enforceable documents
and supporting information such as emission inventories, monitoring
networks, and modeling demonstrations.

What is the Federal Approval Process for a SIP?

In order for state regulations to be incorporated into the
Federally enforceable SIP, states must formally adopt the regulations
and control strategies consistent with state and Federal requirements.
This process generally includes a public notice, public hearing, public
comment period, and a formal adoption by a state-authorized rulemaking
body.
Once a state rule, regulation, or control strategy is adopted, the
state submits it to EPA for inclusion into the SIP. EPA must provide
public notice and seek additional public comment regarding the proposed
Federal action on the state submission. If adverse comments are
received, they must be addressed prior to any final Federal action by
EPA.
All state regulations and supporting information approved by EPA
under section 110 of the CAA are incorporated into the Federally
approved SIP. Records of such SIP actions are maintained in the Code of
Federal Regulations (CFR) at Title 40, part 52, entitled ``Approval and
Promulgations of Implementation Plans.'' The actual state regulations
which are approved are not reproduced in their entirety in the CFR
outright but are ``incorporated by reference,'' which means that EPA
has approved a given state regulation with a specific effective date.

What Does Federal Approval of a State Regulation Mean to Me?

Enforcement of the state regulation before and after it is
incorporated into the Federally approved SIP is primarily a state
responsibility. However, after the regulation is Federally approved,
EPA is authorized to take enforcement action against violators.
Citizens are also offered legal recourse to address violations as
described in the CAA.

What is Approval Under Section 112(l)?

Section 112(l) of the CAA provides authority for EPA to implement a
program to regulate HAPs, and to subsequently delegate authority for
this program to the states and local agencies. EPA has delegated
authority for this program to Nebraska, LLCHD, and Omaha, and has
approved relevant state and local agency HAP rules under this
authority. In this action, EPA is approving revisions to the section
112(l) approved state and local agency rules.

What Is the Part 70 Operating Permits Program?

The CAA Amendments of 1990 require all states to develop operating
permits programs that meet certain Federal criteria. In implementing
this program, the states are to require certain sources of air
pollution to obtain permits that contain all applicable requirements
under the CAA. One purpose of the part 70 operating permits program is
to improve enforcement by issuing each source a single permit that
consolidates all of the applicable CAA requirements into a Federally
enforceable document. By consolidating all of the applicable
requirements for a facility into one document, the source, the public,
and the permitting authorities can more easily determine what CAA
requirements apply and how compliance with those requirements is
determined.
Sources required to obtain an operating permit under this program
include ``major'' sources of air pollution and certain other sources
specified in the CAA or in EPA's implementing regulations. For example,
all sources regulated under the acid rain program, regardless of size,
must obtain permits. Examples of major sources include those that emit
100 tons per year or more of volatile organic compounds, carbon
monoxide, lead, sulfur dioxide, nitrogen dioxide, or PM10;
those that emit 10 tons per year of any single hazardous air pollutant
(HAP) (specifically listed under the CAA); or those that emit 25 tons
per year or more of a combination of HAPs.
Revisions to the state and local agencies' operating permits
program are also subject to public notice, comment, and EPA approval.

What Is Being Addressed in This Document?

EPA is taking final action to approve a SIP revision submitted by
the state of Nebraska on February 5, 1999. This revision consists of
updates to Title 129--Nebraska Air Quality Regulations, Chapters 1, 2,
5, 6, 7, 8, 10, 17, 22, 25, 34, 35, 41, and Appendix II. The state also
requested that EPA approve revisions adopted by the LLCHD, Lincoln,
Nebraska in 1997 and 1998, and the city of Omaha in 1998. All of the
rule revisions are being approved pursuant to section 110. State rules
being approved pursuant to section 112(l) are Chapters 5, 7, 8, and 10.
Section 112(l) approved rules for LLCHD are Chapters 5, 7, 8, and 15.
The Omaha 112(l) revisions are consistent with the state's 112(l)
revisions.
EPA is also approving as an amendment to the agencies' Part 70
operating programs the following rule revisions: NDEQ Chapters 1, 2, 5,
6, 7, 8, 10, 29, and 41; LLCHD Chapters 2-1, 2-2, 2-5, 2-6, 2-7, 2-8,
and 2-15; and Omaha rules similar to the NDEQ revisions.
A detailed discussion of the specific rule revisions effected by
the state and local agencies is contained in the Technical Support
Document (TSD) prepared for this action, which is available from the
EPA contact listed above.
The request to revise the Nebraska SIP was submitted by Michael J.
Linder, NDEQ Interim Director, on February 5, 1999. The state rules
were effective September 7, 1997; the Lincoln-Lancaster County rules
were effective March 11, 1997, and August 11, 1998; and the city of
Omaha rules were effective April 1, 1998.

Have the Requirements for Approval of a SIP Revision Been Met?

The state submittals have met the public notice requirements for
SIP submissions in accordance with 40 CFR 51.102. The submittals also
satisfied the completeness criteria of 40 CFR part 51, appendix V. In
addition, as explained above and in more detail in the TSDs which are
part of this notice, the revisions meet the substantive SIP
requirements of the CAA, including section 110 and implementing
regulations.

What Action Is EPA Taking?

EPA is processing this action as a direct final action because this
amendment to the Nebraska SIP makes routine revisions to the existing
rules which are noncontroversial. Therefore, we do not anticipate any
adverse comments.

Conclusion

Final Action

EPA is taking final action to approve, as an amendment to the
Nebraska SIP, rule revisions submitted by the state of Nebraska as
discussed above. Approval of this revision in the Nebraska SIP will
make the state and local agency rules Federally enforceable. EPA is
also approving revisions to the agencies' part 70 operating permits
programs and section 112(l) programs.
EPA is publishing this rule without prior proposal because the
Agency views this as a noncontroversial submittal and anticipates no
adverse

[[Page 3132]]

comments. However, in the proposed rules section of this Federal
Register publication, EPA is publishing a separate document that will
serve as the proposal to approve the SIP revision should adverse
comments be filed. This rule will be effective March 20, 2000 without
further notice unless the Agency receives adverse comments by February
22, 2000.
If EPA receives such comments, then EPA will publish a document
withdrawing the final rule and informing the public that the rule will
not take effect. All public comments received will then be addressed in
a subsequent final rule based on the proposed rule. EPA will not
institute a second comment period. Parties interested in commenting
should do so at this time. If no such comments are received, the public
is advised that this action will be effective on March 20, 2000, and no
further action will be taken.

Administrative Requirements

A. Executive Order 12866

The Office of Management and Budget (OMB) has exempted this
regulatory action from Executive Order 12866, entitled ``Regulatory
Planning and Review.''

B. Executive Order 13132

Federalism (64 FR 43255, August 10, 1999) revokes and replaces
Executive Order 12612 (Federalism) and Executive Order 12875 (Enhancing
the Intergovernmental Partnership). Executive Order 13132 requires EPA
to develop an accountable process to ensure ``meaningful and timely
input by state and local officials in the development of regulatory
policies that have federalism implications.'' ``Policies that have
federalism implications'' is defined in the Executive Order to include
regulations that have ``substantial direct effects on the states, on
the relationship between the national government and the states, or on
the distribution of power and responsibilities among the various levels
of government.'' Under Executive Order 13132, EPA may not issue a
regulation that has federalism implications, that imposes substantial
direct compliance costs, and that is not required by statute, unless
the Federal Government provides the funds necessary to pay the direct
compliance costs incurred by state and local governments, or EPA
consults with state and local officials early in the process of
developing the proposed regulation. EPA also may not issue a regulation
that has federalism implications and that preempts state law unless the
Agency consults with state and local officials early in the process of
developing the proposed regulation.
This final rule will not have substantial direct effects on the
states, on the relationship between the national government and the
states, or on the distribution of power and responsibilities among the
various levels of government, as specified in Executive Order 13132.
Thus, the requirements of section 6 of the Executive Order do not apply
to this rule.

C. Executive Order 13045

Protection of Children from Environmental Health Risks and Safety
Risks (62 FR 19885, April 23, 1997) applies to any rule that: (1) Is
determined to be ``economically significant'' as defined under
Executive Order 12866, and (2) concerns an environmental health or
safety risk that EPA has reason to believe may have a disproportionate
effect on children. If the regulatory action meets both criteria, the
Agency must evaluate the environmental health or safety effects of the
planned rule on children, and explain why the planned regulation is
preferable to other potentially effective and reasonably feasible
alternatives considered by the Agency.
This rule is not subject to Executive Order 13045 because it is not
an economically significant regulatory action as defined by Executive
Order 12866, and it does not establish a further health or risk-based
standard because it approves state rules which implement a previously
promulgated health or safety-based standard.

D. Executive Order 13084

Under Executive Order 13084, Consultation and Coordination with
Indian Tribal Governments, EPA may not issue a regulation that is not
required by statute, that significantly or uniquely affects the
communities of Indian tribal governments, and that imposes substantial
direct compliance costs on those communities, unless the Federal
Government provides the funds necessary to pay the direct compliance
costs incurred by the tribal governments, or EPA consults with those
governments. If EPA complies by consulting, Executive Order 13084
requires EPA to provide to OMB, in a separately identified section of
the preamble to the rule, a description of the extent of EPA's prior
consultation with representatives of affected tribal governments, a
summary of the nature of their concerns, and a statement supporting the
need to issue the regulation. In addition, Executive Order 13084
requires EPA to develop an effective process permitting elected
officials and other representatives of Indian tribal governments ``to
provide meaningful and timely input in the development of regulatory
policies on matters that significantly or uniquely affect their
communities.''
Today's rule does not significantly or uniquely affect the
communities of Indian tribal governments. This action does not involve
or impose any requirements that affect Indian tribes. Accordingly, the
requirements of section 3(b) of Executive Order 13084 do not apply to
this rule.

E. Regulatory Flexibility Act (RFA)

The RFA generally requires an agency to conduct a regulatory
flexibility analysis of any rule subject to notice and comment
rulemaking requirements unless the agency certifies that the rule will
not have a significant economic impact on a substantial number of small
entities. Small entities include small businesses, small not-for-profit
enterprises, and small governmental jurisdictions. This final rule will
not have a significant impact on a substantial number of small entities
because SIP approvals under section 110 and subchapter I, part D of the
CAA do not create any new requirements but simply approve requirements
that the state is already imposing. Therefore, I certify that this
action will not have a significant economic impact on a substantial
number of small entities. Moreover, due to the nature of the Federal-
state relationship under the CAA, preparation of flexibility analysis
would constitute Federal inquiry into the economic reasonableness of
state action. The CAA forbids EPA to base its actions concerning SIPs
on such grounds. Union Electric Co. v. U.S. EPA, 427 U.S. 246, 255-66
(1976); 42 U.S.C. 7410(a)(2).

F. Unfunded Mandates

Under section 202 of the Unfunded Mandates Reform Act of 1995
(``Unfunded Mandates Act'') signed into law on March 22, 1995, EPA must
prepare a budgetary impact statement to accompany any proposed or final
rule that includes a Federal mandate that may result in estimated
annual costs to state, local, or tribal governments in the aggregate,
or to private sector, of $100 million or more. Under section 205, EPA
must select the most cost-effective and least burdensome alternative
that achieves the objectives of the rule and is consistent with
statutory requirements. Section 203 requires EPA to establish a plan
for informing and

[[Page 3133]]

advising any small governments that may be significantly or uniquely
impacted by the rule.
EPA has determined that the approval action promulgated does not
include a Federal mandate that may result in estimated annual costs of
$100 million or more to either state, local, or tribal governments in
the aggregate, or to the private sector. This Federal action approves
preexisting requirements under state or local law and imposes no new
requirements. Accordingly, no additional costs to state, local, or
tribal governments, or to the private sector, result from this action.

G. Submission to Congress and the Comptroller General

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect the agency promulgating the
rule must submit a rule report, which includes a copy of the rule, to
each House of the Congress and to the Comptroller General of the United
States. EPA will submit a report containing this rule and other
required information to the United States Senate, the United States
House of Representatives, and the United States Comptroller General
prior to publication of the rule in the Federal Register. This rule is
not a ``major rule'' as defined by 5 U.S.C. 804(2).

H. Petitions for Judicial Review

Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by March 20, 2000. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of this rule for the purposes of judicial review, nor does
it extend the time within which a petition for judicial review may be
filed and shall not postpone the effectiveness of such rule or action.
This action may not be challenged later in proceedings to enforce its
requirements. (See section 307(b)(2).)

List of Subjects

40 CFR Part 52

Environmental protection, Air pollution control, Carbon monoxide,
Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate
matter, Reporting and recordkeeping requirements, Sulfur oxides,
Volatile organic compounds.

40 CFR Part 70

Environmental Protection, Administrative practice and procedure,
Air pollution control, Intergovernmental relations, Operating permits,
Reporting and recordkeeping requirements.

Dated: December 14, 1999.
William Rice,
Acting Regional Administrator, Region VII.

Chapter I, Title 40 of the CFR is amended as follows:

PART 52--[AMENDED]

1. The authority citation for Part 52 continues to read as follows:

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

Subpart CC--Nebraska

2. In Sec. 52.1420 paragraph (c), table titled EPA-APPROVED
NEBRASKA REGULATIONS, the following entries are revised, and a new
entry titled Appendix II is added following the Appendix I entry, and
in paragraph (e), table titled EPA-APPROVED NEBRASKA NONREGULATORY
PROVISIONS, two entries are added at the end of the table to read as
follows:

Sec. 52.1420 Identification of plan.

[[Page 3134]]

EPA--Approved Nebraska Regulations
----------------------------------------------------------------------------------------------------------------
State
Nebraska citation Title effective EPA approval date Comments
date
----------------------------------------------------------------------------------------------------------------
STATE OF NEBRASKA
Department of Environmental Quality Title 129--Nebraska Air Quality Regulations
----------------------------------------------------------------------------------------------------------------
129-1........................... Definitions............. 9/7/97 [insert publication
date and FR
citation].
129-2........................... Definition of Major 9/7/97 [insert publication
Source. date and FR
citation].

* * * * *
129-5........................... Operating Permit........ 9/7/97 [insert publication Section 001.02 is
date and FR not SIP approved.
citation].

* * * * *
129-6........................... Emissions Reporting..... 9/7/97 [insert publication
date and FR
citation].
129-7........................... Operating Permits-- 9/7/97 [insert publication
Application. date and FR
citation].
129-8........................... Operating Permit Content 9/7/97 [insert publication
date and FR
citation].

* * * * *
129-10.......................... Operating Permits for 9/7/97 [insert publication
Temporary Sources. date and FR
citation].

* * * * *
129-17.......................... Construction Permits-- 9/7/97 [insert publication
When Required. date and FR
citation].

* * * * *
129-22.......................... Incinerators; Emission 9/7/97 [insert publication
Standards. date and FR
citation].

* * * * *
129-25.......................... Nitrogen Oxides 9/7/97 [insert publication
(Calculated as Nitrogen date and FR
Dioxide); Emissions citation].
Standards for Existing
Stationary Sources.

* * * * *
129-34.......................... Emission Sources; 9/7/97 [insert publication
Testing; Monitoring. date and FR
citation].
129-35.......................... Compliance; Exceptions 9/7/97 [insert publication
Due to Startup, date and FR
Shutdown, or citation].
Malfunction.

* * * * *
129-41.......................... General Provision....... 9/7/97 [insert publication
date and FR
citation].

* * * * *
Appendix II..................... Hazardous Air Pollutants 9/7/97 [insert publication
(HAPS). date and FR
citation].

----------------------------------------------------------------------------------------------------------------
* * * * *
Lincoln-Lancaster County Air Pollution Control Program
----------------------------------------------------------------------------------------------------------------

Article 1--Administration and Enforcement

----------------------------------------------------------------------------------------------------------------
* * * * *
Article 2--Regulations and Standards
----------------------------------------------------------------------------------------------------------------
Section 1....................... Definitions............. 8/11/98 [insert publication
date and FR
citation].
Section 2....................... Major Sources--Defined.. 8/11/98 [insert publication
date and FR
citation].

* * * * *
Section 5....................... Operating Permits--When 8/11/98 [insert publication
Required. date and FR
citation].
Section 6....................... Emissions Reporting-- 8/11/98 [insert publication
When Required. date and FR
citation].

[[Page 3135]]

Section 7....................... Operating Permits-- 8/11/98 [insert publication
Application. date and FR
citation].
Section 8....................... Operating Permit-- 8/11/98 [insert publication
Content. date and FR
citation].

* * * * *
Section 15...................... Operating Permit 8/11/98 [insert publication
Modifications--Reopenin date and FR
g for Cause. citation].

* * * * *
Section 17...................... Construction Permits-- 8/11/98 [insert publication
When Required. date and FR
citation].

* * * * *
Section 20...................... Particulate Emissions-- 3/31/97 [insert publication
Limitations and date and FR
Standards. citation].

* * * * *
Section 32...................... Dust--Duty to Prevent 3/31/97 [insert publication
Escape of. date and FR
citation].

----------------------------------------------------------------------------------------------------------------
* * * * *
City of Omaha
Chapter 41--Air Quality Control
----------------------------------------------------------------------------------------------------------------
Article I In General

----------------------------------------------------------------------------------------------------------------
41-2............................ Adoption of State 4/1/98 [insert publication
Regulations with date and FR
Exceptions. citation].

* * * * *
----------------------------------------------------------------------------------------------------------------

* * * * *
(e) * * *

EPA-Approved Nebraska Nonregulatory Provisions
----------------------------------------------------------------------------------------------------------------
State
Name of nonregulatory SIP Applicable Geographic or submittal EPA approval date Comments
provision nonattainment area date
----------------------------------------------------------------------------------------------------------------

* * * * *
Lincoln Municipal Code, Chapter City of Lincoln......... 2/5/99 [insert publication
8.06.140 and 8.06.145. date and FR
citation].
Lancaster Co. Resolution 5069, Lancaster County........ 2/5/99 [insert publication
Sections 12 and 13. date and FR
citation].
----------------------------------------------------------------------------------------------------------------

[[Page 3136]]

PART 70--[AMENDED]

1. The authority citation for Part 70 continues to read a follows:

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

2. Appendix A to Part 70 is amended by adding paragraph (d) to the
entry for Nebraska; City of Omaha; Lincoln-Lancaster County Health
Department to read as follows.

Appendix A to Part 70--Approval Status of State and Local Operating
Permits Program

* * * * *
Nebraska; City of Omaha; Lincoln-Lancaster County Health Department
* * * * *
(d) The Nebraska Department of Environmental Quality submitted the
following program revisions on August 20, 1999; NDEQ Title 129,
Chapters 1, 2, 5, 6, 7, 8, 10, 29, and 41; City of Omaha Ordinance No.
34492, amended section 41-2, and LLCHD Articles 2-1, 2-2, 2-5, 2-6, 2-
7, 2-8, and 2-15, effective February 22, 2000.
* * * * *
[FR Doc. 00-618 Filed 1-19-00; 8:45 am]
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Approval and Promulgation of Implementation Plans and Operating Permits Programs, Approval Under Section 112(l); State of Nebraska

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