E6-10730. 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 approving revisions to the State Implementation Plan (SIP) and Operating Permits Programs submitted by the state of Nebraska. This action revises monitoring requirements which were found to be less stringent than the applicable Federal rule; adds permits-by-rule provisions, which would provide a streamlined approach for issuing construction/operating permits for hot mix asphalt plants and small animal incinerators; and deletes the chemical compound ethylene glycol monobutyl ether from the list of regulated hazardous air pollutants in Appendices II and III. 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, 2006, without further notice, unless EPA receives adverse comment by August 9, 2006. If adverse comment is 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:

Submit your comments, identified by Docket ID No. EPA-R07-OAR-2006-0476, by one of the following methods:

1. http://www.regulations.gov. Follow the on-line instructions for submitting comments.

2. E-mail: [e-mail].

3. Mail: Shelly Rios-LaLuz, Environmental Protection Agency, Air Planning and Development Branch, 901 North 5th Street, Kansas City, Kansas 66101.

4. Hand Delivery or Courier: Deliver your comments to Shelly Rios-LaLuz, Environmental Protection Agency, Air Planning and Development Branch, 901 North 5th Street, Kansas City, Kansas 66101.

Instructions: Direct your comments to Docket ID No. EPA-R07-OAR-2006-0476. EPA's policy is that all comments received will be included in the public docket without change and may be made available online at http://www.regulations. gov, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit through http://www.regulations.gov or e-mail information that you consider to be CBI or otherwise protected. The http://www.regulations.gov Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through http://www.regulations.gov, your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses.

Docket: All documents in the electronic docket are listed in the http://www.regulations.gov index. Although listed in the index, some information is not publicly available, i.e., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically in http://www.regulations.gov or in hard copy at the Environmental Protection Agency, Air Planning and Development Branch, 901 North 5th Street, Kansas City, Kansas 66101. The Regional Office's official hours of business are Monday through Friday, 8 a.m. to 4:30 p.m. excluding Federal holidays. 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:

Shelly Rios-LaLuz at [phone], or by e-mail at [e-mail].

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 the Federal Approval Process for an Operating Permits Program?

What Is Being Addressed in This Document?

What Is EPA's Analysis of These Revisions?

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

What Action Is EPA Taking?

What Is a SIP?

Section 110 of the Clean Air Act (CAA or Act) 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 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.

Revision to the State and local agencies operating permits program are also subject to public notice, comment, and our approval.

What Is the Federal Approval Process for an Operating Permits Program?

In order for state regulations to be included in the Federally-enforceable Title V operating permits program, states must formally adopt regulations 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 approved operating permits program. 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 502 of the CAA, including revisions to the state program, are included in the Federally-approved operating permits program. Records of such actions are maintained in the CFR at Title 40, part 70, appendix A, entitled “Approval Status of State and Local Operating Permits Programs.”

What Is Being Addressed in This Document?

On October 20, 2005, we received a request from the State of Nebraska to approve revisions to Nebraska's State Implementation Plan and Part 70 Operating Permits Program. This request amends Nebraska's SIP to replace or update provisions currently found in Title 129, Chapter 34—Emission Sources; Testing; Monitoring; Appendix II—Hazardous Air Pollutants. This request also amends Nebraska's Part 70—Operating Permits Program to update Appendix III—Reporting Levels of Hazardous Air Pollutants for Emissions Inventory. Furthermore, this submittal requests the addition of Title 129, Chapter 42—Permits-By-Rule to the SIP. Proposed revisions to Nebraska's SIP were approved by the Nebraska Department of Environmental Quality (NDEQ) on September 5, 2002, December 5, 2002 and March 4, 2005. Revisions to Title 129 adopted on September 5, 2002, and December 5, 2002, were first submitted to EPA on June 4, 2004; however, approvability issues were identified, and we did not act on the request to add Chapter 42 to Nebraska's SIP at that time. Subsequently, we worked with NDEQ to resolve the approvability issues so that Nebraska could resubmit Chapter 42 for inclusion into the SIP.

This action also addresses revisions to Title 129—Nebraska Air Quality Regulations, Chapter 34, Appendix II and Appendix III. The purpose of these revisions is to revise monitoring requirements in Chapter 34 which were found to be less stringent than the Federal requirements, to delete the chemical compound ethylene glycol monobutyl ether from the list of regulated hazardous air pollutants in Appendices II and III.

The purpose of Chapter 42—Permits-by-Rule is to provide a streamlined approach for issuing construction/operating permits to certain minor source categories such as hot mix asphalt plants and small animal incinerators.

What Is EPA's Analysis of These Revisions?

The revision to Chapter 34.005 makes the rule consistent with 40 CFR part 51 appendix P, paragraph 2.1.1.2. This provision establishes continuous monitoring requirements for certain sources. The Federal rule also exempts sources from monitoring requirements if they burn certain types of fuel and if a source has never been out of compliance with applicable particulate emission standards or visibility standards in a state rule. Prior to this revisions of section 005, the state rule allowed the exemption if the source has not been out of compliance with these standards in the preceding five years. This rule was not incorporated into the Nebraska SIP because it was less stringent than the Federal requirement. Because NDEQ has now revised its rule to be consistent with the Federal rule, EPA is approving it into the SIP.

Revisions to Title 129—Appendices II and III, which list hazardous air pollutants and reporting levels for emissions inventory purposes, were made in response to the delisting by EPA of the chemical compound ethylene glycol monobutyl ether from the regulated lists of Hazardous Air Pollutants.

The addition of Chapter 42 will offer Permits-by-Rule provisions which will provide a streamlined approach for issuing permits to various categories of sources. Nebraska's rule applies to minor sources in these source categories, including new, existing and temporary sources that have been approved by NDEQ for coverage under a permit-by-rule. Under these provisions, sources that are approved for a permit by rule are considered to have fulfilled the duty to obtain a construction and/or operating permit as required by Title 129, Chapter 17 and Chapter 5, respectively, unless required to do so by any other legal requirement. This is expected to significantly reduce NDEQ's resource burden by allowing sources in specified categories to operate under these provisions, as opposed to requiring them to apply for individual permits.

In addition, this will allow for resources to be spent in oversight of sources covered by the rule and in issuing individual permits to larger and more diverse sources not covered under these provisions.

The industry categories that are eligible to apply for a permit-by-rule include hot mix asphalt plants and small animal incinerators. A hot mix asphalt plant is defined in this rule as a facility that is comprised of generators; heaters; dryers; systems for screening, handling, storing and weighing hot aggregate; systems for loading, transferring and storing aggregate materials; system for mixing hot mix asphalt; and associated emission control systems. A small animal incinerator is defined as a facility that is used to burn deceased animal remains and is comprised of a dual-chamber design, consisting of a primary charging chamber and a secondary chamber (or after burner) with burners located in each burner.

NDEQ has ensured that provisions included in this rule are protective of human health and of the NAAQS by:

• Not allowing sources and/or emission units that are subject to the prevention of significant deterioration (PSD) program or that will be operated as a major source pursuant to the Class I operating permit program under Title 129, Chapter 5, to be eligible for a permit-by-rule.
• Not allowing provisions established in this rule to supersede any other applicable Federal requirements or a previously issued construction or operating permit (unless a technical demonstration is submitted which shows that the prior requirements are unnecessary to protect the NAAQS or PSD increment).
• Prohibiting a source that obtains a permit-by-rule to locate in or relocate to a nonattainment area.
• Including provisions which require that the owner or operator of any new, existing or temporary sources intended to be covered under a permit-by-rule notify NDEQ before construction begins (in the case of construction permits) or before operation begins (in the case of operating permits).
• Including provisions that require the source to submit the necessary information to conduct an air quality impact assessment as requested or as deemed appropriate by the Director of NDEQ.
• Establishing actions that will be taken against sources that have not complied with the permit-by-rule.
• Requiring that the source provide annual emissions inventory data or other necessary information to determine the impact of sources under a permit-by-rule to maintain the ambient air quality standards.
• Requiring notification to NDEQ and the local agencies, as applicable, of a change in location for temporary sources and determination of new hourly limits.
• Including record keeping requirements that would allow evaluation and enforcement of the limits and conditions contained in the rule.
• Establishing performance testing to evaluate compliance with provisions of the permit-by-rule.
• For hot mix asphalt plants, requiring the use of an air emissions computation program provided by NDEQ to establish hourly production limits and hourly generator combustion limits which will be used to conduct dispersion modeling to establish hourly limits that comply with the NAAQS.
• For hot mix asphalt plants, limiting the amount of diesel fuel that can be used on a monthly and a consecutive 12-month basis.
• For hot mix asphalt plants, requiring that the appropriate emissions control technology be installed.
• For small animal incinerators, establishing a restriction of the percent of medical/infectious waste that can be included per load to be incinerated.

In addition, NDEQ submitted a demonstration showing that, for each category covered by the rule, emission limits established in the rule are protective of the NAAQS accounting for the worst-case scenario for each source category.

Have the Requirements for Approval of a SIP and Part 70 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 document, the revision meets the substantive SIP requirements of the CAA, including section 110 and implementing regulations. The revision also meets the applicable requirements of Title V and EPA regulations for revision to the operating permit program.

What Action Is EPA Taking?

We are processing this action as a direct final action because the revisions make routine changes to the existing rules and other changes which are noncontroversial. 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.

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 (Pub. L. 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 State 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 Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by September 8, 2006. 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 19, 2006.

William W. 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. In § 52.1420 the table in paragraph (c) is amended by revising the entries for 129-34, 129-42, and Appendix II to 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 Environmental Quality
Title 129—Nebraska Air Quality Regulations
*         *         *         *         *         *         *
129-34	Emission Sources; Testing; Monitoring	5/7/2005	7/10/2006 [insert FR page number where the document begins]
*         *         *         *         *         *         *
129-42	Permits-By-Rule	11/20/2002, 4/8/2003, 5/7/2005	7/10/2006 [insert FR page number where the document begins]
*         *         *         *         *         *         *
Appendix II	Hazardous Air Pollutants (HAPs)	5/7/2005	7/10/2006 [insert FR page number where the document begins]

* * * * *

PART 70—[AMENDED]

1. 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 (i) 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.

* * * * *

(i) The Nebraska Department of Environmental Quality approved a revision to NDEQ Title 129, Appendix III on May 2, 2005, which became effective May 7, 2005. This revision was submitted on October 20, 2005. We are approving this program revision effective September 8, 2006.

* * * * *