2024-11649. Air Plan Approval; Nebraska; Revisions to Title 129 of the Nebraska Administrative Code; Nebraska Air Quality Regulations

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Proposed rule.

SUMMARY:

The Environmental Protection Agency (EPA) is proposing to approve revisions to the Nebraska State Implementation Plan (SIP), Operating Permits Program, and 112(l) Plan. The revisions were submitted by the State of Nebraska on December 2, 2022. This proposed action will amend the SIP to revise Nebraska air quality regulations and will add specific definitions from a Nebraska statute. These proposed changes include new and renumbered rules, the consolidation of 43 chapters into 16 chapters, replacement of duplicative language with references to state statute and federal regulation, revisions to reflect changes to state and federal law, and other changes to state regulations. The EPA's proposed approval of this rule revision is in accordance with the requirements of the Clean Air Act (CAA).

DATES:

Comments must be received on or before July 3, 2024.

ADDRESSES:

You may send comments, identified by Docket ID No. EPA-R07-OAR-2024-0025 to https://www.regulations.gov. Follow the online instructions for submitting comments.

Instructions: All submissions received must include the Docket ID No. for this rulemaking. Comments received will be posted without change to https://www.regulations.gov, including any personal information provided. For detailed instructions on sending comments and additional information on the rulemaking process, see the “Written Comments” heading of the SUPPLEMENTARY INFORMATION section of this document.

FOR FURTHER INFORMATION CONTACT:

William Stone, Environmental Protection Agency, Region 7 Office, Air Permitting and Planning Branch, 11201 Renner Boulevard, Lenexa, Kansas 66219; telephone number: [phone]; email address: [e-mail].

SUPPLEMENTARY INFORMATION:

Throughout this document “we,” “us,” and “our” refer to the EPA.

Table of Contents

I. Written Comments

II. What is being addressed in this document?

III. Have the requirements for approval of a SIP revision been met?

IV. What action is the EPA taking?

V. Incorporation by Reference

VI. Statutory and Executive Order Reviews

I. Written Comments

Submit your comments, identified by Docket ID No. EPA-R07-OAR-2024-0025, at https://www.regulations.gov. Once submitted, comments cannot be edited or removed from Regulations.gov. The EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission ( i.e. on the web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit https://www.epa.gov/​dockets/​commenting-epa-dockets.

II. What is being addressed in this document?

The EPA is proposing to amend Nebraska's SIP and Operating Permits Program to include revisions to title 129 of the Nebraska Administrative Code and to add specific definitions from Nebraska Revised Statute 81-1502. The EPA is proposing to approve revisions to the Nebraska SIP received on December 2, 2022. The revisions are to Title 129—Nebraska Air Quality Regulations and include specific definitions from Nebraska Revised Statute 81-1502. These proposed changes include new and renumbered rules, the consolidation of 43 chapters into 16 chapters, replacement of duplicative language with references to state statute and federal regulation, approval of specific definitions in state statute, revisions to reflect changes to state and federal law, and other changes to state regulations.

In addition to the changes discussed above, the state's revision to title 129 includes state rules that allow small projects to start construction prior to receiving a construction permit. To be eligible for this program, the new source or modification to an existing source must not be subject to Nonattainment New Source Review (NSR), case-by-case Maximum Achievable Control Technology (MACT) or Prevention of Significant Deterioration (PSD) or be a source seeking federally enforceable permit restrictions to avoid review under Nonattainment NSR, case-by-case MACT or PSD. The source is prohibited from operating until a construction permit has been issued. Since the source is not allowed to hook up the equipment to the exhaust stack or operate the equipment in any way that may emit any pollutant prior to receiving a construction permit, there is no change to emissions or air quality as a result of these revisions. Nebraska Department of Environment and Energy's (NDEE's) requirements for reviewing the permit application and protecting air quality are unchanged by these revisions. In the Technical Support Document (TSD) for Chapter 3 included in the docket for this action, we include more information about this change.

This revision is in compliance with federal requirements, including: (1) CAA section 110(a)(2)(c), which requires states to include a minor NSR program in their SIP to regulate modifications and new construction of stationary sources within the area as necessary to assure the National Ambient Air Quality Standards (NAAQS) are achieved; (2) The regulatory requirements under 40 CFR 51.160, including § 51.160(b), which requires states to have legally enforceable procedures to prevent construction or modification of a source if it would violate any SIP control strategies or interfere with attainment or maintenance of the NAAQS; and (3) the statutory requirements under CAA section 110(l), which provides that the EPA cannot approve a SIP revision if the revision would interfere with any applicable requirement concerning attainment and reasonable further progress, or any other applicable requirement of the CAA.

The state also revised the carbon monoxide threshold for minor construction permitting from 50 tons per year to 100 tons per year. In the TSD for Chapter 3 included in the docket for this action, we explain how allowing NDEE to increase the permitting threshold for Carbon Monoxide (CO) for minor construction permits meets the requirements of section 110(l) of the CAA. The summary includes the state's monitoring and emissions trends for CO and an explanation of how Nebraska's construction permitting program protects protect air quality in Nebraska from exceeding the NAAQS. In this analysis we also stated that the state of Nebraska operates two CO monitors and both are in attainment for the 1-hour and 8-hour 1971 CO NAAQS, with design values less than 16% of the 8-hour NAAQS.

In addition, title 129 has been revised to include an exemption to emission standards for oxides of nitrogen at nitric acid production installations if the installation is subject to 40 CFR part 60 Subpart Ga Standards of Performance for Nitric Acid Plants for Which Construction, Reconstruction, or Modification Commenced After October 14, 2011 or other more stringent federal standards or a more stringent permit limit. Section 110(l) of the CAA states that EPA cannot approve a SIP revision if the revision would interfere with any applicable requirement concerning attainment and reasonable further progress (RFP), or any other applicable requirement of the CAA. The new exemptions to the nitrogen oxide limit of this regulation only apply to sources subject to the NSPS or other more stringent limits. This means that any source that becomes exempt from the nitrogen oxide limit in title 129, is controlled for this pollutant by the NSPS or other more stringent limits. In addition to this regulatory backstop EPA acknowledges that the state of Nebraska in currently in attainment with all NAAQS. For these reasons, we find that this action will not interfere with any applicable requirement concerning attainment and reasonable further progress (as defined in section 171 of the CAA), or any other applicable requirement of the CAA as required under section 110(l). This change is further explained the TSD for Chapter 16.

This action also proposes to remove the total reduced sulfur (TRS) ambient standard from the SIP. On April 16, 2024, Nebraska requested that EPA not approve this portion of Chapter 2 from the December 2, 2022 submission. This standard was approved into the SIP initially in Chapter 4, but has no federal basis, so the state has proposed to remove it from the SIP, but retain it as a state only standard. Because Nebraska's December 2, 2022 submission requested that the EPA replace rules that were approved in the SIP with the amended title 129 rules, and because Nebraska has withdrawn the amended title 129 rules related to TRS, the EPA proposes to remove rules related to TRS from the SIP. In the TSD for Chapter 2 included in the docket for this action, we explain how removing TRS from the SIP meets the requirements of section 110(l) of the CAA.

In Chapter 10 Permits—Public Participation, NDEE has removed language that is duplicated in Title 115 Chapter 3 Public Hearings which was approved into the SIP (86 FR 26843). In section 2 of Chapter 10, NDEE has also removed language requiring public notice to be distributed to persons that have signed up for a department mailing list. The state continues to distribute public notices for air permits by email to person who provide and email to the department as required by 40 CFR 70.7(h)(2).

In section 3 of Chapter 10, NDEE removed language that specifically requires the public notice to contain the emissions change involved in any permit modification. Title 115 Chapter 3 section 7 requires the public notice to contain a brief description of the business conducted at the facility or activity described in the permit application or the draft permit. The department considers any change in emissions to be an activity described in the permit application, and as such, continues to put any emission change in the public notice. The EPA agrees with NDEE that this requirement fulfills the requirement of 40 CFR 70.7(h)(2) to identify the emissions change involved in any permit modification.

All of the revisions are described in detail in the technical support documents (TSD) included in the docket for this action.

III. Have the requirements for approval of a SIP revision been met?

The State submission has met the public notice requirements for SIP submissions in accordance with 40 CFR 51.102. The submission also satisfied the completeness criteria of 40 CFR part 51, appendix V. The State provided public notice on this SIP revision from February 23, 2022 to March 29, 2022, and held a public hearing on March 30, 2022 and received no comments. In addition, as explained above and in more detail in the TSD which is part of this docket, the revision meets the substantive SIP requirements of the CAA, including section 110 and implementing regulations.

IV. What action is the EPA taking?

We are proposing to amend the Nebraska SIP by approving the State's request to revise Title 129—Nebraska Air Quality Regulations and certain definitions in Nebraska Revised Statute 81-1502. Approval of these revisions will ensure consistency between state and federally-approved rules. The EPA has determined that these changes will not adversely impact air quality.

The EPA is soliciting comment on the substantive revisions detailed in this proposal and the TSDs. The EPA is not soliciting comment on existing rule text, including existing rule text that has been reorganized, as these provisions have been previously approved by the EPA into the SIP or Operating Permits Program. Final rulemaking will occur after consideration of any comments.

V. Incorporation by Reference

In this document, the EPA is proposing to include regulatory text in an EPA final rule that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is finalizing the incorporation by reference of the Nebraska rules:

• Chapter 1—General Provisions; Definitions, which provides general provisions and definitions for air quality regulations;
• Chapter 2—Nebraska Air Quality Standards, which lists the ambient air quality standards;
• Chapter 3—Construction Permits, which regulates air construction permitting in Nebraska;
• Chapter 4—Prevention Of Significant Deterioration of Air Quality (PSD) which regulates PSD permitting in Nebraska;
• Chapter 6—Operating Permits which regulates air operating permitting in Nebraska;
• Chapter 7—General Permits which regulates air general permitting in Nebraska;
• Chapter 8—Permits-By-Rule which regulates air permit-by-rule permitting in Nebraska;
• Chapter 9—Permit Revisions; Reopening For Cause which regulates air permit revisions in Nebraska;
• Chapter 10—Permits—Public Participation which regulates public notice requirements for air permitting in Nebraska;
• Chapter 11—Emissions Reporting, When Required which regulates air emissions inventory in Nebraska;
• Chapter 14—Incinerators, Emission Standards which regulates emissions from incinerators in Nebraska;
• Chapter 15—Compliance which regulates compliance with air regulations in Nebraska;
• Chapter 16—Sulfur Compound and Nitrogen Oxides Emissions Standards which regulates emissions of sulfur dioxide and nitrogen oxides in Nebraska;
• Appendix I—Hazardous Air Pollutants Sorted by CAS Number which lists the hazardous air pollutants;
• Appendix II—Air Pollution Emergency Episodes which explains Nebraska's emergency episode procedures; and
• Nebraska Revised Statute 81-1502—Terms, Defined which contains definitions for Nebraska's air quality regulations.

The state effective date of these rules is September 28, 2022. The state effective date of Nebraska Revised Statute 81-1502 is March 21, 2019. The EPA has made, and will continue to make, these materials generally available through https://www.regulations.gov and at the EPA Region 7 Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information).

Also, in this document, as described in the proposed amendments to 40 CFR part 52 set forth below, EPA is proposing to remove provisions of the EPA-Approved Nebraska Regulations and Statutes from the Nebraska State Implementation Plan, which is incorporated by reference in accordance with the requirements of 1 CFR part 51.

VI. Statutory and Executive Order Reviews

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:

• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 14094 (88 FR 21879, April 11, 2023);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.);
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have federalism implications as specified inExecutive Order 13132 (64 FR 43255, August 10, 1999);
• Is not subject toExecutive Order 13045 (62 FR 19885, April 23, 1997) because it approves a state program;
• Is not a significant regulatory action subject toExecutive Order 13211 (66 FR 28355, May 22, 2001); and
• Is not subject to requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA.

In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

Executive Order 12898 (Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations, 59 FR 7629, February 16, 1994) directs Federal agencies to identify and address “disproportionately high and adverse human health or environmental effects” of their actions on minority populations and low-income populations to the greatest extent practicable and permitted by law. EPA defines environmental justice (EJ) as “the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.” EPA further defines the term fair treatment to mean that “no group of people should bear a disproportionate burden of environmental harms and risks, including those resulting from the negative environmental consequences of industrial, governmental, and commercial operations or programs and policies.”

The NDEE did not evaluate environmental justice considerations as part of its SIP submittal; the CAA and applicable implementing regulations neither prohibit nor require such an evaluation. EPA did not perform an EJ analysis and did not consider EJ in this action. Consideration of EJ is not required as part of this action, and there is no information in the record inconsistent with the stated goal of E.O. 12898 of achieving environmental justice for people of color, low-income populations, and Indigenous peoples.

List of Subjects

40 CFR Part 52

• Environmental protection
• Air pollution control
• Incorporation by reference
• Intergovernmental relations
• Particulate matter
• Reporting and recordkeeping requirements
• 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: May 21, 2024.

Meghan A. McCollister,

Regional Administrator, Region 7.

For the reasons stated in the preamble, the EPA proposes to amend 40 CFR parts 52 and 70 as set forth below:

PART 52—APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

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, in the table in paragraph (c):

a. Revise the center heading “Department of Environmental Quality” to read “Department of Environment and Energy”.

b. Revise the entries “129-1”, “129-2”, “129-3”, and “129-4”;

c. Remove the entry “129-5”;

d. Revise the entries “129-6”, “129-7”, “129-8”, “129-9”, “129-10”, and “129-11”;

e. Remove the entries “129-12” and “129-13”;

f. Revise the entries “129-14”, “129-15”, and “129-16”;

g. Remove the entries “129-17”, “129-19”, “129-20”, “129-21”, “129-22”, “129-24”, “129-25”, “129-30”, “129-32”, “129-33”, “129-34”, “129-35”, “129-36”, “129-37”, “129-38”, “129-41”, “129-42”, “129-43”, and “129-44”;

h. Revise the entries “Appendix I” and “Appendix II”; and

i. Add the center heading “Nebraska Revised Statute 81-1502 Terms Defined” and the entry “1502” after the entry “115-3”.

The revisions and additions read as follows:

§ 52.1420

Identification of plan.

* * * * *

(c) * * *

EPA-Approved Nebraska Regulations

Nebraska citation	Title	State effective date	EPA approval date	Explanation
State of Nebraska
Department of Environment and Energy
Title 129—Nebraska Air Quality Regulations
129-1	General Provisions; Definitions	9/28/2022	[Date of publication of the final rule in the Federal Register ], [ Federal Register citation of the final rule]
129-2	Nebraska Air Quality Standards	9/28/2022	[Date of publication of the final rule in the Federal Register ], [ Federal Register citation of the final rule]	Section 002 Total reduced sulfur (TRS) is not approved into the SIP.
129-3	Construction Permits	9/28/2022	[Date of publication of the final rule in the Federal Register ], [ Federal Register citation of the final rule]
129-4	Prevention of Significant Deterioration (PSD)	9/28/2022	[Date of publication of the final rule in the Federal Register ], [ Federal Register citation of the final rule]
129-6	Operating Permits	9/28/2022	[Date of publication of the final rule in the Federal Register ], [ Federal Register citation of the final rule]
129-7	General Permits	9/28/2022	[Date of publication of the final rule in the Federal Register ], [ Federal Register citation of the final rule]
129-8	Permits-By-Rule	9/28/2022	[Date of publication of the final rule in the Federal Register ], [ Federal Register citation of the final rule]
129-9	Permit Revisions; Reopening For Cause	9/28/2022	[Date of publication of the final rule in the Federal Register ], [ Federal Register citation of the final rule]
129-10	Permits—Public Participation	9/28/2022	[Date of publication of the final rule in the Federal Register ], [ Federal Register citation of the final rule]
129-11	Emissions Reporting, When Required	9/28/2022	[Date of publication of the final rule in the Federal Register ], [ Federal Register citation of the final rule]
129-14	Incinerators, Emission Standards	9/28/2022	[Date of publication of the final rule in the Federal Register ], [ Federal Register citation of the final rule]
129-15	Compliance	9/28/2022	[Date of publication of the final rule in the Federal Register ], [ Federal Register citation of the final rule]
129-16	Sulfur Compound and Nitrogen Dioxides Emissions Standards	9/28/2022	[Date of publication of the final rule in the Federal Register ], [ Federal Register citation of the final rule]
Appendix I	Hazardous Air Pollutants Sorted by CAS Number	9/28/2022	[Date of publication of the final rule in the Federal Register ], [ Federal Register citation of the final rule]
Appendix II	Air Pollution Emergency Episodes	9/28/2022	[Date of publication of the final rule in the Federal Register ], [ Federal Register citation of the final rule]
*         *         *         *         *         *         *
Nebraska Revised Statute 81-1502 Terms Defined
1502	Terms Defined	3/21/2019	[Date of publication of the final rule in the Federal Register ], [ Federal Register citation of the final rule]	The following paragraphs of Nebraska Revised Statute 81-1502 are approved into the SIP: (2) Air pollution; (3) Chairperson; and (10) Person.
*         *         *         *         *         *         *

* * * * *

PART 70—STATE OPERATING PERMIT PROGRAMS

3. The authority citation for part 70 continues to read as follows:

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

4. Appendix A to part 70 is amended by adding paragraph (r) 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

* * * * *

(r) The Nebraska Department of Environment and Energy submitted for program approval revisions to the Nebraska Administrative Code, title 129, chapters 1, 6, 7, 9, 10, 11, and appendix I on December 2, 2022. Title 129 Chapter 8 “Operating Permit Content” has been renumbered and renamed Chapter 6 “Operating Permits” and Chapter 8 is no longer part 70 approved. Appendix III has been repealed and is no longer part 70 approved. The state effective date is September 28, 2022. The proposed revision effective date is [date 30 days after date of publication of the final rule in the Federal Register ].

* * * * *