01-9741. Approval and Promulgation of Implementation Plans; State of Nebraska

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Direct final rule.

SUMMARY:

EPA is announcing the redesignation of the lead nonattainment area in eastern Douglas County, Nebraska, to attainment of the National Ambient Air Quality Standards (NAAQS). EPA is also approving a revision to the Nebraska State Implementation Plan (SIP) for maintenance of the lead standard in the eastern Douglas County area.

DATES:

This direct final rule will be effective June 19, 2001 unless EPA receives adverse comments by May 21, 2001. 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 Kim Johnson, Environmental Protection Agency, Air Planning and Development Branch, 901 North 5th Street, Kansas City, Kansas 66101.

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:

Kim Johnson at 913-551-7975.

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 requirements must be followed for redesignation to attainment?

What is being addressed in this document?

Have the requirements for approval of a SIP revision and redesignation to attainment 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 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 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 Promulgation 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 section 304 of the CAA.

What Requirements Must Be Followed for Redesignation to Attainment?

Under section 307(d) of the CAA, we are required to promulgate designations of areas identifying their status with respect to attainment of the ambient standards described previously. We are required to determine whether each area is attaining the standard, not attaining the standard, or cannot be designated based on available information. Once an area is designated as nonattainment for a standard, it cannot be redesignated to attainment until the requirements of section 107(d)(3)(E) of the CAA are met. These requirements are discussed below, and include a revision to the SIP to show how the state, in which the area is located, plans to maintain the standards in the future in the area to be redesignated to attainment.

What Is Being Addressed in This Document?

We are redesignating the nonattainment area in eastern Douglas County, Nebraska, to attainment for lead and taking final action to approve the maintenance plan submitted by Nebraska to revise its lead SIP.

The basis for our approval of the rule is described in this notice, and in more detail in the technical support document (TSD) prepared for this action. The TSD is available at the address identified above.

The purpose of the submittal is to meet the criteria under section 107(d)(3) of the Clean Air Act Amendments (CAAA) for redesignation of the nonattainment area in eastern Douglas County to attainment for the lead standard.

The area was designated as nonattainment for lead on January 6, 1992. The boundaries of the nonattainment area, located in the City of Omaha, are as follows:

Jones Street on the south;

Eleventh Street on the west;

Avenue H and the Nebraska-Iowa border on the north; and

the Missouri River on the east.

The Asarco—Omaha facility, which was located in the middle of the nonattainment area as described above, was the only major source of lead in this area after 1982. The Asarco—Omaha facility ceased operations on December 31, 1997 and began the process of demolition with agreement under the Nebraska Remedial Action Plan Monitoring Act (RAPMA) program. Demolition activity was completed in late 1999. The area was stabilized with a six-inch clean soil cap to prevent erosion.

Section 107(d)(3) of the CAAA establishes the five requirements to be met before we can designate an area from nonattainment area to attainment. These are:

A. The area has attained the NAAQS;

B. The area has a fully approved SIP under section 110(k) of the act;

C. We have determined that the improvement in air quality is due to permanent and enforceable emissions reductions;

D. We have determined that the maintenance plan for the area has met the requirements of section 175A of the Act and;

E. The state has met all requirements applicable to the area under section 110 and part D.

Attainment of the NAAQS

The state submittal provided ambient air monitor data showing that this area has consistently shown compliance with the NAAQS for lead since the third quarter of 1997. The NAAQS for lead is 1.5 micrograms per cubic meter (1.5 μg/m³), maximum quarterly average. A quarterly average is considered a violation of the standard if it is at least 1.6 μg/m³ when rounded to the tenths from the hundredths place when monitored.

Fully Approved SIP

EPA initially fully approved the Nebraska lead SIP for Omaha in 1987. That approval was under the applicable requirements of section 110 of the Act. As a result of continuing monitored violations in the area, and in response to additional requirements added by the 1990 Amendments to the Act, Nebraska submitted a part D nonattainment SIP for the Asarco facility on December 22, 1993, in the form of an enforceable Compliance Order. On this same day, Asarco filed an administrative appeal of the Order which stayed enforcement of the Order until a decision was issued by the Nebraska Department of Environmental Quality (NDEQ) administrator on June 2, 1995. An amended Order was then submitted to EPA on June 21, 1995. This Order was determined to be complete by EPA on July 13, 1995.

On November 15, 1995, Asarco submitted a revised control strategy, based on rollback of production and facility reconfiguration. The NDEQ revised the Compliance Order and submitted it to EPA on August 28, 1996. The Order included limitations to meet the requirements of Part D for attainment of the NAAQS, and contingency measures to be implemented in case of failure to achieve reasonable further progress toward attainment, or to attain the lead standard by the applicable attainment date. EPA approved this revision on March 20, 1997 (52 FR 1420).

With the shutdown of the Asarco facility on December 31, 1997, and subsequent demolition, the provisions of the 1996 lead SIP revision are no longer applicable. The current SIP submittal reflects the shutdown and demolition of the Asarco facility.

Permanent and Enforceable Emissions Reductions

The permanent closure and demolition activities at the Asarco facility are complete. The attainment of the lead standard is directly related to the permanent cessation of the lead emissions from closing and demolishing this facility and reclaiming the site.

Fully Approved Maintenance Plan

Section 175A of the Act requires that the plan include measures as necessary to ensure maintenance of the standard for at least ten years after redesignation, including contingency measures meeting the requirements of section 175A(d). Due to the fact that the only significant source of lead in this nonattainment area has been permanently closed and demolished, and the 1996 lead SIP identified no other lead sources for which regulation was necessary for attainment, the maintenance plan for the area is limited. The state is committed to continuing a limited monitoring network to measure ambient lead concentrations in the area. In addition, any new lead source which may be interested in constructing in this area would be required to meet the state's new source preconstruction permitting rules. These rules are designed to ensure that emission increases from new source growth will not cause a violation of a NAAQS.

EPA has determined that the complete elimination of the lead emissions which caused the nonattainment problem in the area justifies the minimal maintenance plan, and that additional measures, including contingency measures, are unavailable for the area.

Part D and Section 110

The state has met these requirements by submitting and implementing the nonattainment plan to bring the area back into attainment and by continuing to monitor the ambient air quality during and after demolition and reclamation of the area.

Have the Requirements for Approval of a SIP Revision and Redesignation to Attainment 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 document, the revision meets the substantive SIP requirements of the CAA, including section 110 and implementing regulations. The state submittal also meets the criteria for redesignation to attainment in section 107(d)(3) of the CAA, as explained above and in the TSD.

What Action Is EPA Taking?

We are taking final action to approve the revision to the Nebraska lead SIP as an amendment to the SIP and redesignate the nonattainment area in eastern Douglas County, Nebraska, to attainment for lead.

We are processing this action as a final action because the area has been attaining the lead standard since 1997 based on monitored data, and because the major lead source in the nonattainment area has been demolished and the area surrounding the source has been reclaimed. Therefore, we do not anticipate any adverse comments.

Administrative Requirements

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. This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. In addition, a redesignation to attainment does not impose additional requirements. 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 preexisting 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). For the same reason, this rule also does not significantly or uniquely affect the communities of tribal governments, as specified by Executive Order 13084 (63 FR 27655, May 10, 1998). This 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 (64 FR 43255, August 10, 1999), because it merely approves a state rule implementing a Federal standard and a state request for redesignation, 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 (62 FR 19885, April 23, 1997), because it is not economically significant.

In reviewing SIP submissions and requests for redesignation, our 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), we have 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. As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this rule, we have taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings” under the Executive Order. 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. We will submit a report containing this rule and other required information to the United States Senate, the United States 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 June 19, 2001. 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
• Hydrocarbons
• Intergovernmental relations
• Lead
• Nitrogen dioxide
• Ozone
• Particulate matter
• Reporting and recordkeeping requirements
• Sulfur oxides

40 CFR Part 81

• Environmental protection
• Air pollution control

Dated: April 11, 2001.

William A. Spratlin,

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. In § 52.1420(e) the table is amended by:

a. Adding the entry for Nebraska Lead SIP at the end of the table, to read as follows:

§ 52.1420

Identification of plan.

* * * * *

(e) * * *

EPA-Approved Nebraska Nonregulatory Provisions

Name of nonregulatory SIP provision	Applicable geographic or nonattainment area	State submittal date	EPA approval date	Comments
*         *         *         *         *         *         *
Nebraska Lead Maintenance SIP	Omaha	1/18/01	4/20/01

PART 81—[AMENDED]

1. The authority citation for part 81 continues to read as follows:

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

Subpart C—Section 107 Attainment Status Designations

2. The table in § 81.328 entitled “Nebraska Lead” is amended to revise the entry for Douglas County to read as follows:

§ 81.328

Nebraska

* * * * *

Nebraska—Lead

Designated area	Designation		Classification
	Date	Type	Date	Type
Douglas County (part):
Portion of city of Omaha bounded by: Jones Street on the south, Eleventh Street on the west, Avenue H and the Nebraska-Iowa border on the north, and the Missouri River on the east	4/20/01	Attainment