00-618. 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 [phone].

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.

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 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 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 § 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:

§ 52.1420

Identification of plan.

(c) EPA-approved regulations.

EPA—Approved Nebraska Regulations

Nebraska citation	Title	State effective date	EPA approval date	Comments
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 Source	9/7/97	[insert publication date and FR citation]
*         *         *         *         *
129-5	Operating Permit	9/7/97	[insert publication date and FR citation]	Section 001.02 is not SIP approved.
*         *         *         *         *
129-6	Emissions Reporting	9/7/97	[insert publication date and FR citation]
129-7	Operating Permits—Application	9/7/97	[insert publication date and FR citation]
129-8	Operating Permit Content	9/7/97	[insert publication date and FR citation]
*         *         *         *         *
129-10	Operating Permits for Temporary Sources	9/7/97	[insert publication date and FR citation]
*         *         *         *         *
129-17	Construction Permits—When Required	9/7/97	[insert publication date and FR citation]
*         *         *         *         *
129-22	Incinerators; Emission Standards	9/7/97	[insert publication date and FR citation]
*         *         *         *         *
129-25	Nitrogen Oxides (Calculated as Nitrogen Dioxide); Emissions Standards for Existing Stationary Sources	9/7/97	[insert publication date and FR citation]
*         *         *         *         *
129-34	Emission Sources; Testing; Monitoring	9/7/97	[insert publication date and FR citation]
129-35	Compliance; Exceptions Due to Startup, Shutdown, or Malfunction	9/7/97	[insert publication date and FR citation]
*         *         *         *         *
129-41	General Provision	9/7/97	[insert publication date and FR citation]
*         *         *         *         *
Appendix II	Hazardous Air Pollutants (HAPS)	9/7/97	[insert publication 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 Required	8/11/98	[insert publication date and FR citation]
Section 6	Emissions Reporting—When Required	8/11/98	[insert publication date and FR citation]
Section 7	Operating Permits—Application	8/11/98	[insert publication date and FR citation]
Section 8	Operating Permit—Content	8/11/98	[insert publication date and FR citation]
*         *         *         *         *
Section 15	Operating Permit Modifications—Reopening for Cause	8/11/98	[insert publication date and FR citation]
*         *         *         *         *
Section 17	Construction Permits—When Required	8/11/98	[insert publication date and FR citation]
*         *         *         *         *
Section 20	Particulate Emissions—Limitations and Standards	3/31/97	[insert publication date and FR citation]
*         *         *         *         *
Section 32	Dust—Duty to Prevent Escape of	3/31/97	[insert publication date and FR citation]
*         *         *         *         *
City of Omaha
Chapter 41—Air Quality Control
Article I In General
41-2	Adoption of State Regulations with Exceptions	4/1/98	[insert publication date and FR citation]
	*         *         *         *         *

* * * * *

(e) * * *

EPA-Approved Nebraska Nonregulatory Provisions

Name of nonregulatory SIP provision	Applicable Geographic or nonattainment area	State submittal date	EPA approval date	Comments
*         *         *         *         *
Lincoln Municipal Code, Chapter 8.06.140 and 8.06.145	City of Lincoln	2/5/99	[insert publication date and FR citation]
Lancaster Co. Resolution 5069, Sections 12 and 13	Lancaster County	2/5/99	[insert publication date and FR citation]

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.

* * * * *