Approval and Promulgation of Implementation Plans and Operating Permits Program; State of Nebraska

Note: EPA no longer updates this information, but it may be useful as a reference or resource.

[Federal Register: July 8, 2003 (Volume 68, Number 130)]
[Rules and Regulations]
[Page 40528-40531]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr08jy03-13]

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

ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 52 and 70
[NE 178-1178a; FRL-7523-1]

Approval and Promulgation of Implementation Plans and Operating
Permits Program; State of Nebraska

AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.

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

SUMMARY: EPA is announcing approval of revisions to the Nebraska State
Implementation Plan (SIP) and Operating Permits Program. On September
7, 2001, and May 10, 2002, the state updated its air program rules to
be consistent with Federal requirements, to revise definitions, and to
clarify applicability, reporting, and monitoring requirements. Approval
of these revisions will ensure consistency between the state and
Federally-approved rules, and ensure Federal enforceability of the
state's revised air program rules.

DATES: This direct final rule will be effective September 8, 2003,
unless EPA receives adverse comments by August 7, 2003. If adverse
comments are received, EPA will publish a timely withdrawal of the
direct final rule in the Federal Register informing the public that the
rule will not take effect.

ADDRESSES: Comments may be mailed to Wayne Kaiser, Environmental
Protection Agency, Air Planning and Development Branch, 901 North 5th
Street, Kansas City, Kansas 66101, or E-mail him at
kaiser.wayne@epa.gov.
Copies of documents relative to this action are available for
public inspection during normal business hours at the above-listed
Region 7 location. The interested persons wanting to examine these
documents should make an appointment with the office at least 24 hours
in advance.

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

SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,''
``us,'' or ``our'' is used, we mean EPA. 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 the part 70 Operating Permits Program?
What is being addressed in this document?
Have the requirements for approval of a SIP revision and part 70
program 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 us. 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
us for approval and incorporation into the Federally-enforceable SIP.
Each Federally-approved SIP protects air quality primarily by
addressing air pollution at its point of origin. 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 us for inclusion into the SIP. We 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
us.
All state regulations and supporting information approved by us
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 we
have 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, we
are authorized to take enforcement action against violators. Citizens
are also offered legal recourse to address violations as described in
the CAA.

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 our 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 our approval.

What Is Being Addressed in This Document?

The state of Nebraska has requested that we approve as a revision
to the Nebraska SIP, part 70 Operating Permits Program and section
112(l) air toxics

[[Page 40529]]

program two recently adopted sets of revisions to Title 129. The first
revision set was submitted to us on May 10, 2002, and included
revisions to Chapters 1, 4, 5, 6, 20, 29, and 34. The second set of
revisions was submitted on November 5, 2002, and included revisions to
Chapters 1, 2, 4, 5, 6, 17, 20, 21, and 31. An overview of the
revisions are discussed below.

Revisions Submitted on May 10, 2002

Chapter 1--Definitions. A definition of ``deviation'' was added
since this term is used in other rules; an exception clause was added
to the definition of ``incineration,'' which exempts ``a furnace used
by law enforcement personnel to dispose of ammunition, fireworks or
similar flammable or explosive materials''; and the definition of
``Volatile organic compound (VOC)'' was revised to add ``methyl
acetate'' to the list of exempt VOCs. This revision is consistent with
EPA's list of exempt VOCs at 40 CFR 51.100(s).
Chapter 4--Ambient Air Quality Standards. In 1997 EPA promulgated
new standards for fine particulate matter (PM_2.5) and ozone.
The state has adopted these ambient standards and also the data
interpretation procedures of Appendix I and Appendix N of 40 CFR part
50 for ozone and particulate matter.
Chapter 5--Operating Permits. Revisions to this rule include
clarifying the applicability of non-major sources to the Class II
operating permits program; clarifying the deferral of sources from the
Class I operating permits program; and clarifying the reporting
requirements for certain emergency generators. The revision to Section
001.02 will not be acted on because this section relates only to the
Class II permit program and was not previously Federally approved.
Chapter 6--Emissions Reporting, When Required. The annual deadline
for submitting the emissions inventory reporting form was changed from
July 1 to April 1.
Chapter 20--Particulate Emissions; Limitations and Standards
(Exceptions Due to Breakdowns or Scheduled Maintenance: See Chapter
35). An exception was added, in conjunction with the revision to the
``incinerator'' definition in Chapter 1, which exempts from the opacity
requirements of Chapter 20 incinerators used by law enforcement
personnel to dispose of ammunition or explosive materials. Also,
paragraph 007 was revised to clarify the applicability of the rule.
Chapter 29--Operating Permit Emissions Fees. A provision of this
rule was revised to remove a sunset provision subjecting certain
electric generation units to a lower emission fee. These units will now
pay emissions fees beginning with calendar year 2001 emissions.
Chapter 34--Emission Sources; Testing; Monitoring. Paragraph 005
was revised to decrease from forever, to five years, the time period
for which certain large steam generators, requesting exemption from
operating a continuous opacity monitoring system, must have a clean
opacity compliance record.
Upon review by EPA, it was determined that this revision is
inconsistent with the provisions of 40 CFR part 51, Appendix P--Minimum
Emission Monitoring Requirements, paragraph 2.1.1.2. That paragraph
provides a limited exemption from opacity monitoring for sources which
have ``never'' been found in violation of a visible emission standard.
The state revision allows the exemption for sources which have not been
found in violation for the past five years, which is less stringent
than the Federal requirement. Consequently, we are taking no action on
this provision of the state submittal. The state has agreed to revise
its rule to make it consistent with the Federal provision in the near
future.

Revisions Submitted on November 5, 2002

Chapter 1--Definitions. The following definitions were clarified:
``applicable requirement,'' ``fuel burning equipment,'' and the
exemption for ``incinerators'' from opacity limits is only for
incinerators owned and operated by law enforcement agencies being
solely used to dispose of ammunition, fireworks, or similar flammable
or explosive materials. A definition for ``Maximum Achievable Control
Technology (MACT)'' was added to define the MACT emission limitations
for new and existing sources.
Chapter 2--Definition of Major Source. Fugitive emissions must be
considered when determining if a source is major for hazardous air
pollutants with this revision and the major source definition was
revised to be consistent in both Title V and the NSR/PSD programs.
Chapter 6--Emissions Reporting; When Required. Sources are now
allowed to submit their own form if acceptable to the Department and it
was clarified that appropriate methods need to be used in calculating
actual emissions.
Chapter 17--Construction Permits; When Required. The change
consistently clarified that fugitive emissions must be included in
calculating levels of hazardous air pollutants and defines the source
categories that must include fugitive emissions when determining the
net change in potential emissions.
Chapter 20--Particulate Emissions; Limitations and Standards
(Exceptions Due to Breakdowns or Scheduled Maintenance: See Chapter
35). This revision clarifies that furnaces exempted from the opacity
standard for disposal of ammunition and other flammable or explosive
materials applies only when being solely used for this purpose.
Chapter 31--Compliance Assurance Monitoring. The reference to Title
40 of the Code of Federal Regulations was updated to July 1, 2001.
The revisions to Chapters 4, 5, and 21 are administrative in
nature, including correcting typographical errors and deleting obsolete
references.
Further discussion and background information is contained in the
technical support document prepared for this action, which is available
from the EPA contact listed above.

Have the Requirements for Approval of a SIP Revision and Part 70
Program Revision Been Met?

The state submittal has met the public notice requirements for SIP
submissions in accordance with 40 CFR 51.102. The submittal also
satisfied the completeness criteria of 40 CFR part 51, appendix V. In
addition, as explained above and in more detail in the technical
support document which is part of this notice, the revisions meet the
substantive SIP requirements of the CAA, including section 110 and
implementing regulations. Finally, the submittal meets the substantive
requirements of Title V of the 1990 CAA Amendments and 40 CFR part 70.

What Action Is EPA Taking?

EPA is processing this action as a direct final action because the
revisions make routine changes to the existing rules which are
noncontroversial, and make regulatory revisions required by state
statute. Therefore, we do not anticipate any adverse comments. Please
note that if EPA receives adverse comment on part of this rule and if
that part can be severed from the remainder of the rule, EPA may adopt
as final those parts of the rule that are not the subject of an adverse
comment.
Final action: EPA is approving as an amendment to the Nebraska SIP
revisions to Title 129, Chapters 1, 4, 5, 6, 20, and 34 (except Chapter
5, 001.02), submitted on May 10, 2002, and revisions to Title 129,
Chapters 1, 2, 4, 5, 6, 17, 20, and 21, submitted on November 5, 2002,
pursuant to section 110.

[[Page 40530]]

EPA is also approving as a program revision to the state's part 70
Operating Permits Program revisions to Title 129, Chapters 1, 5, 6, and
29, submitted on May 10, 2002, and revisions to Title 129, Chapters 1,
2, 5, 6, and 31 submitted on November 5, 2002, pursuant to Part 70.
Finally, EPA is approving pursuant to 112(l) revisions to Chapter 5.

Statutory and Executive Order Reviews

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
action is not a ``significant regulatory action'' and therefore is not
subject to review by the Office of Management and Budget. For this
reason, this action is also not subject to Executive Order 13211,
``Actions Concerning Regulations That Significantly Affect Energy
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This action
merely approves state law as meeting Federal requirements and imposes
no additional requirements beyond those imposed by state law.
Accordingly, the Administrator certifies that this rule will not have a
significant economic impact on a substantial number of small entities
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because
this rule approves pre-existing requirements under state law and does
not impose any additional enforceable duty beyond that required by
state law, it does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Public Law 104-4).
This rule also does not have tribal implications because it will
not have a substantial direct effect on one or more Indian tribes, on
the relationship between the Federal Government and Indian tribes, or
on the distribution of power and responsibilities between the Federal
Government and Indian tribes, as specified by Executive Order 13175
(65 FR 67249, November 9, 2000). This action also does not have Federalism
implications because it does 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
(64 FR 43255, August 10, 1999). This action merely approves a state rule
implementing a Federal standard, and does not alter the relationship or
the distribution of power and responsibilities established in the CAA.
This rule also is not subject to Executive Order 13045 ``Protection of
Children from Environmental Health Risks and Safety Risks''
(62 FR 19885, April 23, 1997), because it is not economically significant.
In reviewing SIP submissions, EPA's role is to approve state
choices, provided that they meet the criteria of the CAA. In this
context, in the absence of a prior existing requirement for the State
to use voluntary consensus standards (VCS), EPA has no authority to
disapprove a SIP submission for failure to use VCS. It would thus be
inconsistent with applicable law for EPA, when it reviews a SIP
submission, to use VCS in place of a SIP submission that otherwise
satisfies the provisions of the CAA. Thus, the requirements of section
12(d) of the National Technology Transfer and Advancement Act of 1995
(15 U.S.C. 272 note) do not apply. This rule does not impose an
information collection burden under the provisions of the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
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 U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2).
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 September 8, 2003. 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,
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen
dioxide, Ozone, Particulate matter, Reporting and recordkeeping
requirements, Sulfur oxides, Volatile organic compounds.

40 CFR Part 70

Administrative practice and procedure, Air pollution control,
Intergovernmental relations, Operating Permits, Reporting and
Recordkeeping requirements.

Dated: June 26, 2003.
William Rice,
Acting Regional Administrator, Region 7.

? Chapter I, title 40 of the Code of Federal Regulations 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. Section 52.1420 is amended by:
? a. Revising paragraph (b)(3); and
? b. In the table to paragraph (c) by revising the entries for: 129-1,
129-2, 129-4, 129-5, 129-6, 129-17, 129-20, and 129-21.
The revisions read as follows:

Sec. 52.1420 Identification of plan.

* * * * *
(b) * * *
(3) Copies of the materials incorporated by reference may be
inspected at the Environmental Protection Agency, Region VII, Air
Planning and Development Branch, 901 North 5th Street, Kansas City,
Kansas 66101; the Office of Federal Register, 800 North Capitol Street,
NW., Suite 700, Washington, DC; or at the EPA Air and Radiation Docket
and Information Center, Room B-108, 1301 Constitution Avenue, NW. (Mail
Code 6102T), Washington, DC 20460.
(c) * * *

[[Page 40531]]

EPA--Approved Nebraska Regulations
----------------------------------------------------------------------------------------------------------------
State
Nebraska citation Title effective EPA approval date Comments
date
----------------------------------------------------------------------------------------------------------------
State of Nebraska
Department of Environmental Quality
----------------------------------------------------------------------------------------------------------------
129-1.................. Definitions........... 4/1/02 [7/8/03 and FR
7/10/02 citation].
129-2.................. Definition of Major 7/10/02 [7/8/03 and FR
Source. citation].

* * * * * * *
129-4.................. Ambient Air Quality 4/1/02 [July 8, 2003 and FR
Standards. 7/10/02 citation].
129-5.................. Operating Permit...... 4/1/02 [7/8/03 and FR Section 001.02 is not SIP
7/10/02 citation]. approved.
129-6.................. Emissions Reporting... 4/1/02 [7/8/03 and FR
7/10/02 citation].

* * * * * * *
129-17................. Construction Permits-- 7/10/02 [7/8/03 and FR Refer to January 23, 2002,
When Required. citation]. NDEQ letter to EPA
regarding change to 129-
17-014. Approved by EPA
on May 29, 2002.

* * * * * * *
129-20................. Particulate Emissions; 4/1/02 [7/8/03 and FR
Limitations and 7/10/02 citation].
Standards (Exceptions
Due to Breakdowns of
Scheduled
Maintenance: See
Chapter 35).
129-21................. Controls for 7/10/02 [7/08/03 and FR
Transferring, citation].
Conveying, Railcar
and Truck Loading at
Rock Processing
Operations in Cass
County.

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

PART 70--[AMENDED]

? The authority citation for Part 70 continues to read as follows:

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

Appendix A--[Amended]

? 2. Appendix A to Part 70 is amended by adding paragraph (f) under
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 Programs

* * * * *

Nebraska; City of Omaha; Lincoln-Lancaster County Health Department

* * * * *
(f) The Nebraska Department of Environmental Quality submitted
the following program revisions on May 10, 2002, NDEQ Title 129,
Chapters 1, 5, 6, and 29; and on November 5, 2002, NDEQ Title 129,
Chapters 1, 2, 5, 6, and 31, approval effective September 8, 2003.
* * * * *
[FR Doc. 03-17098 Filed 7-7-03; 8:45 am]
BILLING CODE 6560-50-P

Notices For
2009
2008
2007
2006
2005
2004
2003
2002
2001
2000
1999
1998
1997
1996
1995
1994

Approval and Promulgation of Implementation Plans and Operating Permits Program; State of Nebraska

Local Navigation