E9-18024. Approval and Promulgation of Air Quality Implementation Plans; Nebraska; Update to Materials Incorporated by Reference

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule; notice of administrative change.

SUMMARY:

EPA is updating the materials submitted by Nebraska that are incorporated by reference (IBR) into the State implementation plan (SIP). The regulations affected by this update have been previously submitted by the state agency and approved by EPA. This update affects the SIP materials that are available for public inspection at the National Archives and Records Administration (NARA), the Air and Radiation Docket and Information Center located at EPA Headquarters in Washington, DC, and the Regional Office.

DATES:

Effective Date: This action is effective July 30, 2009.

ADDRESSES:

SIP materials which are incorporated by reference into 40 CFR part 52 are available for inspection at the following locations: Environmental Protection Agency, Region 7, 901 North 5th Street, Kansas City, Kansas 66101; or at http://www.epa.gov/​region07/​programs/​artd/​air/​rules/​fedapprv.htm;​; the Air and Radiation Docket and Information Center, EPA Headquarters Library, Room Number 3334, EPA West Building, 1301 Constitution Avenue, NW., Washington, DC 20460, and the National Archives and Records Administration. If you wish to obtain materials from a docket in the EPA Headquarters Library, please call the Office of Air and Radiation Docket at [phone]. For information on the availability of this material at NARA, call [phone], or go to: http://www.archives.gov/​federal_​register/​code_​of_​federal_​regulations/​ibr_​locations.html.

FOR FURTHER INFORMATION CONTACT:

Evelyn VanGoethem at [phone], or by e-mail at [e-mail].

SUPPLEMENTARY INFORMATION:

The SIP is a living document which the state revises as necessary to address the unique air pollution problems in the state. Therefore, EPA from time to time must take action on SIP revisions containing new and/or revised regulations to make them part of the SIP. On May 22, 1997 (62 FR 27968), EPA revised the procedures for incorporating by reference Federally-approved SIPs, as a result of consultations between EPA and the Office of Federal Register. The description of the revised SIP document, IBR procedures and “Identification of plan” format are discussed in further detail in the May 22, 1997, Federal Register document.

On February 12, 1999, EPA published a document in the Federal Register (64 FR 7091) beginning the new IBR procedure for Nebraska. On December 1, 2003 (68 FR 67045), EPA published an update to the IBR material for Nebraska.

In this document, EPA is doing the following:

1. Announcing the update to the IBR material as of July 1, 2009.

2. Correcting the date format in the “State effective date” or “State Submittal date” and “EPA approval date” columns in § 52.1420 paragraphs (c), (d) and (e). Dates are numerical month/day/year without additional zeros.

3. Modifying the Federal Register citation in § 52.1420 paragraphs (c), (d) and (e) to reflect the beginning page of the preamble as opposed to the page number of the regulatory text.

EPA has determined that today's rule falls under the “good cause” exemption in section 553(b)(3)(B) of the Administrative Procedures Act (APA) which, upon finding “good cause,” authorizes agencies to dispense with public participation and section 553(d)(3), which allows an agency to make a rule effective immediately (thereby avoiding the 30-day delayed effective date otherwise provided for in the APA). Today's rule simply codifies provisions which are already in effect as a matter of law in Federal and approved State programs. Under section 553 of the APA, an agency may find good cause where procedures are “impractical, unnecessary, or contrary to the public interest.” Public comment is “unnecessary” and “contrary to the public interest” since the codification only reflects existing law. Immediate notice in the CFR benefits the public by providing notice of the updated Nebraska SIP compilation.

Statutory and Executive Order Reviews

Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act 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 Clean Air Act. 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 Order 12866 (58 FR 51735, October 4, 1993);
• 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 in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• 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 Clean Air Act; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

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 action 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).

EPA has also determined that the provisions of section 307(b)(1) of the Clean Air Act pertaining to petitions for judicial review are not applicable to this action. This action is simply an announcement of prior rulemakings that have previously undergone notice and comment. Prior EPA rulemaking actions for each individual component of the Nebraska SIP compilation previously afforded interested parties the opportunity to file a petition for judicial review in the United States Court of Appeals for the appropriate circuit within 60 days of such rulemaking action.

List of Subjects in 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

Dated: July 8, 2009.

William Rice,

Acting Regional Administrator, Region 7.

40 CFR part 52 is amended as follows:

PART 52—[AMENDED]

1. The authority for citation for part 52 continues to read as follows:

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

Subpart CC—Nebraska

2. In § 52.1420 paragraphs (b), (c), (d) and (e) are revised to read as follows:

§ 52.1420

Identification of plan.

* * * * *

(b) Incorporation by reference. (1) Material listed in paragraphs (c) and (d) of this section with an EPA approval date prior to July 1, 2009, was approved for incorporation by reference by the Director of the Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Material is incorporated as it exists on the date of the approval, and notice of any change in the material will be published in the Federal Register. Entries in paragraphs (c) and (d) of this section with EPA approval dates after July 1, 2009, will be incorporated by reference in the next update to the SIP compilation.

(2) EPA Region 7 certifies that the rules/regulations provided by EPA in the SIP compilation at the addresses in paragraph (b)(3) of this section are an exact duplicate of the officially promulgated State rules/regulations which have been approved as part of the SIP as of July 1, 2009.

(3) Copies of the materials incorporated by reference may be inspected at the Environmental Protection Agency, Region 7, Air Planning and Development Branch, 901 North 5th Street, Kansas City, Kansas 66101; at the EPA, Air and Radiation Docket and Information Center, Room Number 3334, EPA West Building, 1301 Constitution Avenue, NW., Washington, DC 20460; or at the National Archives and Records Administration (NARA). If you wish to obtain material from the EPA Regional Office, please call [phone]; for material from a docket in EPA Headquarters Library, please call the Office of Air and Radiation Docket at [phone]. For information on the availability of this material at NARA, call [phone], or go to: http://www.archives.gov/​federal_​register/​code_​of_​federal_​regulations/​ibr_​locations.html.

(c) EPA-approved regulations.

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
129-1	Definitions	11/20/02	9/5/03, 68 FR 52691
129-2	Definition of Major Source	7/10/02	7/8/03, 68 FR 40528
129-3	Region and Subregions	6/26/94	1/4/95, 60 FR 372
129-4	Ambient Air Quality Standards	4/1/02 7/10/02	7/8/03, 68 FR 40528
129-5	Operating Permit	11/20/02	9/5/03, 68 FR 52691	Section 001.02 is not SIP approved.
129-6	Emissions Reporting	11/20/02	9/5/03, 68 FR 52691
129-7	Operating Permits—Application	8/22/00	5/29/02, 67 FR 37325
129-8	Operating Permit Content	8/22/00	5/29/02, 67 FR 37325
129-9	General Operating Permits for Class I and II Sources	6/26/94	1/4/95, 60 FR 372
129-10	Operating Permits for Temporary Sources	9/7/97	1/20/00, 65 FR 3130
129-11	Operating Permits—Emergency; Defense	6/26/94	1/4/95, 60 FR 372
129-12	Operating Permit Renewal and Expiration	5/29/95	2/9/96, 61 FR 4899
129-13	Class I Operating Permit—EPA Review; Affected States Review; Class II Permit	6/26/94	1/4/95, 60 FR 372
129-14	Permits—Public Participation	6/26/94	1/4/95, 60 FR 372
129-15	Operating Permit Modification; Reopening for Cause	6/26/94	1/4/95, 60 FR 372
129-16	Stack Heights; Good Engineering Practice (GEP)	12/15/98	5/29/02, 67 FR 37325
129-17	Construction Permits—When Required	7/10/02	7/8/03, 68 FR 40528	Refer to January 23, 2002, NDEQ letter to EPA regarding change to 129-17-014. Approved by EPA on May 29, 2002.
129-19	Prevention of Significant Deterioration of Air Quality	12/15/98	5/29/02, 67 FR 37325
129-20	Particulate Emissions; Limitations and Standards (Exceptions Due to Breakdowns or Scheduled Maintenance: See Chapter 35)	2/7/04	3/31/05, 70 FR 16426
129-21	Controls for Transferring, Conveying, Railcar and Truck Loading at Rock Processing Operations in Cass County	7/10/02	7/8/03, 68 FR 40528
129-22	Incinerators; Emission Standards	9/7/97	1/20/00, 65 FR 3130
129-24	Sulfur Compound Emissions, Existing Sources Emission Standards	6/26/94	1/4/95, 60 FR 372
129-25	Nitrogen Oxides (Calculated as Nitrogen Dioxide); Emissions Standards for Existing Stationary Sources	9/7/97	1/20/00, 65 FR 3130
129-30	Open Fires, Prohibited; Exceptions	11/20/02	9/5/03, 68 FR 52691
129-32	Dust; Duty to Prevent Escape of	6/26/94	1/4/95, 60 FR 372
129-33	Compliance; Time Schedule for	6/26/94	1/4/95, 60 FR 372
129-34	Emission Sources; Testing; Monitoring	5/7/05	7/10/06, 71 FR 38776
129-35	Compliance; Exceptions Due to Startup, Shutdown, or Malfunction	9/7/97	1/20/00, 65 FR 3130
129-36	Control Regulations; Circumvention, When Excepted	6/26/94	1/4/95, 60 FR 372
129-37	Compliance; Responsibility	6/26/94	1/4/95, 60 FR 372
129-38	Emergency Episodes; Occurrence and Control, Contingency Plans	6/26/94	1/4/95, 60 FR 372
129-39	Visible Emissions from Diesel-powered Motor Vehicles	6/26/94	1/4/95, 60 FR 372
129-40	General Conformity	5/29/95	2/12/96, 61 FR 5297
129-41	General Provisions	12/15/98	5/29/02, 67 FR 37325
129-42	Permits-By-Rule	11/20/02 4/8/03 5/7/05	7/10/06, 71 FR 38776
129-43	Consolidated with Chapter 41	5/29/95	2/9/96, 61 FR 4899
129-44	Consolidated with Chapter 41	5/29/95	2/9/96, 61 FR 4899
Appendix I	Emergency Emission Reductions	6/26/94	1/4/95, 60 FR 372
Appendix II	Hazardous Air Pollutants (HAPS)	5/7/05	7/10/06, 71 FR 38776
Title 115—Rules of Practice and Procedure
115-1	Definitions of Terms	8/8/93	1/4/95, 60 FR 372
115-2	Filing and Correspondence	8/8/93	1/4/95, 60 FR 372
115-3	Public Records Availability	8/8/93	1/4/95, 60 FR 372
115-4	Public Records Confidentiality	8/8/93	1/4/95, 60 FR 372
115-5	Public Hearings	8/8/93	1/4/95, 60 FR 372
115-6	Voluntary Compliance	8/8/93	1/4/95, 60 FR 372
115-7	Contested Cases	8/8/93	1/4/95, 60 FR 372
115-8	Emergency Proceeding Hearings	8/8/93	1/4/95, 60 FR 372
115-9	Declaratory Rulings	8/8/93	1/4/95, 60 FR 372
115-10	Rulemaking	8/8/93	1/4/95, 60 FR 372
115-11	Variances	8/8/93	1/4/95, 60 FR 372
Lincoln-Lancaster County Air Pollution Control Program
Article 1—Administration and Enforcement
Section 1	Intent	5/16/95	2/14/96, 61 FR 5699
Section 2	Unlawful Acts—Permits Required	5/16/95	2/14/96, 61 FR 5699
Section 3	Violations—Hearings—Orders	5/16/95	2/14/96, 61 FR 5699
Section 4	Appeal Procedure	5/16/95	2/14/96, 61 FR 5699
Section 5	Variance	5/16/95	2/14/96, 61 FR 5699
Section 7	Compliance—Actions to Enforce—Penalties for Non-Compliance	5/16/95	2/14/96, 61 FR 5699
Section 8	Procedure for Abatement	5/16/95	2/14/96, 61 FR 5699
Section 9	Severability	5/16/95	2/14/96, 61 FR 5699
Article 2—Regulations and Standards
Section 1	Definitions	8/11/98	1/20/00, 65 FR 3130
Section 2	Major Sources—Defined	8/11/98	1/20/00, 65 FR 3130
Section 4	Ambient Air Quality Standards	5/16/95	2/14/96, 61 FR 5699
Section 5	Operating Permits—When Required	8/11/98	1/20/00, 65 FR 3130
Section 6	Emissions Reporting—When Required	8/11/98	1/20/00, 65 FR 3130
Section 7	Operating Permit—Application	8/11/98	1/20/00, 65 FR 3130
Section 8	Operating Permit—Content	8/11/98	1/20/00, 65 FR 3130
Section 9	General Operating Permits for Class I and II Sources	5/16/95	2/14/96, 61 FR 5699
Section 10	Operating Permits for Temporary Services	5/16/95	2/14/96, 61 FR 5699
Section 11	Emergency Operating Permits—Defense	5/16/95	2/14/96, 61 FR 5699
Section 12	Operating Permit Renewal and Expiration	5/16/95	2/14/96, 61 FR 5699
Section 14	Permits—Public Participation	5/16/95	2/14/96, 61 FR 5699
Section 15	Operating Permit Modifications—Reopening for Cause	8/11/98	1/20/00, 65 FR 3130
Section 16	Stack—Heights—Good Engineering Practice (GEP)	5/16/95	2/14/96, 61 FR 5699
Section 17	Construction Permits—When Required	8/11/98	1/20/00, 65 FR 3130
Section 19	Prevention of Significant Deterioration of Air Quality	5/16/95	2/14/96, 61 FR 5699
Section 20	Particulate Emissions—Limitations and Standards	3/31/97	1/20/00, 65 FR 3130
Section 22	Incinerator Emissions	5/16/95	2/14/96, 61 FR 5699
Section 24	Sulfur Compound Emissions—Existing Sources—Emission Standards	5/16/95	2/14/96, 61 FR 5699
Section 25	Nitrogen Oxides (Calculated as Nitrogen Dioxide)—Emissions Standards for Existing Stationary Sources	5/16/95	2/14/96, 61 FR 5699
Section 32	Dust—Duty to Prevent Escape of	3/31/97	1/20/00, 65 FR 3130
Section 33	Compliance—Time Schedule for	5/16/95	2/14/96, 61 FR 5699
Section 34	Emission Sources—Testing—Monitoring	5/16/95	2/14/96, 61 FR 5699
Section 35	Compliance—Exceptions Due to Startup Shutdown or Malfunction	5/16/95	2/14/96, 61 FR 5699
Section 36	Control Regulations—Circumvention—When Expected	5/16/95	2/14/96, 61 FR 5699
Section 37	Compliance—Responsibility of Owner/Operator Pending Review by Director	5/16/95	2/14/96, 61 FR 5699
Section 38	Emergency Episodes—Occurrence and Control—Contingency Plans	5/16/95	2/14/96, 61 FR 5699
Appendix I	Emergency Emission Reduction Regulations	5/16/95	2/14/96, 61 FR 5699
City of Omaha
Chapter 41—Air Quality Control
Article I In General
41-2	Adoption of State Regulations with Exceptions	4/1/98	1/20/00, 65 FR 3130
41-4	Enforcement—Generally	5/29/95	2/14/96, 61 FR 5699
41-5	Same Health Department	5/29/95	2/14/96, 61 FR 5699
41-6	Residential Exemptions	5/29/95	2/14/96, 61 FR 5699
41-9	Penalties	5/29/95	2/14/96, 61 FR 5699
41-10	Civil Enforcement	5/29/95	2/14/96, 61 FR 5699
Article II—Permitting of Air Contaminant Sources
41-23	Prerequisite to Approval	5/29/95	2/14/96, 61 FR 5699
41-27	Signature Required; Guarantee	5/29/95	2/14/96, 61 FR 5699
41-38	Funds	5/29/95	2/14/96, 61 FR 5699
41-40	Fees—When Delinquent	5/29/95	2/14/96, 61 FR 5699
Article IV—Waste Incinerators Division 1. Generally
41-60	Definitions	5/29/95	2/14/96, 61 FR 5699
41-61	Violations	5/29/95	2/14/96, 61 FR 5699
Article IV—Waste Incinerators Division 2. Emissions
41-70	New or Modified Facilities	5/29/95	2/14/96, 61 FR 5699
41-71	Existing Facilities	5/29/95	2/14/96, 61 FR 5699
41-72	Emission Testing	5/29/95	2/14/96, 61 FR 5699
Article IV—Waste Incinerators Division 3. Design
41-80	New or Modified Waste Incinerators	5/29/95	2/14/96, 61 FR 5699
41-81	Existing Incinerators	5/29/95	2/14/96, 61 FR 5699

(d) EPA-approved state source-specific permits.

EPA-Approved Nebraska Source-Specific Permits

Name of source	Permit No.	State effective date	EPA approval date	Explanation
(1) Gould, Inc	677	11/9/83	1/31/85, 50 FR 4510
(2) Asarco, Inc	1520	6/6/96	3/20/97, 62 FR 13329	The EPA did not approve paragraph 19.

(e) EPA-approved nonregulatory provisions and quasi-regulatory measures.

EPA-Approved Nebraska Nonregulatory Provisions

Name of nonregulatory SIP provision	Applicable geographic or nonattainment area	State submittal date	EPA approval date	Explanation
(1) Air Quality Implementation Plan	Statewide	1/28/72	5/31/72, 37 FR 10842
(2) Confirmation That the State Does Not Have Air Quality Control Standards Based on Attorney General's Disapproval	Statewide	4/25/72	5/31/72, 37 FR 10842
(3) Request for Two-Year Extension to Meet the Primary NOX Standard	Omaha	1/24/72	7/27/72, 37 FR 15080
(4) Clarification of Section 11 of the State's Plan	Statewide	2/16/72	7/27/72, 37 FR 15080
(5) Letters Clarifying the Application of the State's Emergency Episode Rule	Omaha	10/2/72	5/14/73, 38 FR 12696
(6) Analysis of Ambient Air Quality in Standard Metropolitan Statistical Areas and Recommendations for Air Quality Maintenance Areas	Omaha, Lincoln, Sioux City	5/9/74	6/2/75, 40 FR 23746
(7) Amended State Law (LB1029) Giving the Department of Environmental Quality Authority to Require Monitoring of Emissions, Reporting of Emissions and Release of Emissions Data	Statewide	2/10/76	6/23/76, 41 FR 25898
(8) Air Monitoring Plan	Statewide	6/19/81	10/6/81, 46 FR 49122
(9) TSP Nonattainment Plan	Douglas and Cass Counties	9/25/80 8/9/82	3/28/83, 48 FR 12715
(10) Plan for Intergovernmental Consultation and Coordination and for Public Notification	Statewide	8/9/82	7/5/83, 48 FR 30631
(11) Lead Plan	Statewide except Omaha	1/9/81 8/5/81 1/11/83	11/29/83, 48 FR 53697	The plan was approved except that portion pertaining to Omaha.
(12) Lead Nonattainment Plan	Omaha	7/24/84 11/17/83 8/1/84	1/31/85, 50 FR 4510
(13) CO Nonattainment Plan	Omaha	4/3/85	9/15/86, 51 FR 32640
(14) CO Nonattainment Plan	Lincoln	4/3/85	9/19/86, 51 FR 33264
(15) Revised Lead Nonattainment Plan	Omaha	2/2/87	8/3/87, 52 FR 28694
(16) Letter Pertaining to NOX Rules and Analysis Which Certifies the Material Became Effective on February 20, 1991	Statewide	3/8/91	7/2/91, 56 FR 30335	State submittal date is date of the letter.
(17) Small Business Assistance Program	Statewide	11/12/92	8/30/93, 58 FR 45452
(18) Class II Operating Permit Program Including Letter Committing to Submit Information to RACT/BACT/LAER Clearinghouse, Letter Regarding Availability of State Operating Permits to the EPA and Specified Emissions Limits in Permits, and Letter Regarding the Increase in New Source Review Thresholds	Statewide	2/16/94	1/4/95, 60 FR 372
(19) Letter from City of Omaha Regarding Authority to Implement Section 112(l) and Letter from the State Regarding Rule Omissions and PSD Program Implementation	Omaha, Lincoln	9/13/95 11/9/95	2/14/96, 61 FR 5725	State submittal dates are dates of letters.
(20) Lincoln Municipal Code, Chapter 8.06.140 and 8.06.145	City of Lincoln	2/5/99	1/20/00, 65 FR 3130
(21) Lancaster Co. Resolution 5069, Sections 12 and 13	Lancaster County	2/5/99	1/20/00, 65 FR 3130
(22) Nebraska Lead Maintenance SIP	Omaha	1/18/01	4/20/01, 66 FR 20196
(23) CAA 110(1)(2)(D)(i) SIP—Interstate Transport	Statewide	5/18/07	12/17/07, 72 FR 71245