03-22539. 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 announcing approval of revisions to the Nebraska State Implementation Plan (SIP) and Operating Permits Program. On September 5, 2002, the state updated its air program construction and operating permitting rules, its definitions rule, and emission inventory reporting rule. Approval of these revised rules 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 November 4, 2003, unless EPA receives adverse comments by October 6, 2003. 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 submitted either by mail or electronically. Written comments should be submitted to Wayne Kaiser, Environmental Protection Agency, Air Planning and Development Branch, 901 North 5th Street, Kansas City, Kansas 66101. Electronic comments should be sent either to Wayne Kaiser at [e-mail] or to http://www.regulations.gov,, which is an alternative method for submitting electronic comments to EPA. To submit comments, please follow the detailed instructions described in “What action is EPA taking” in the SUPPLEMENTARY INFORMATION section.

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:

Wayne Kaiser 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 does Federal approval of a state operating permits program mean to me?

What is being addressed in this document?

Have the requirements for approval of a SIP revision and part 70 program 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 us. 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 us 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 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 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.

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

In order for state regulations to be incorporated into 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 are incorporated into 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 Does Federal Approval of a State Operating Permits Program Mean to Me?

Enforcement of the state regulation before and after it is incorporated into the Federally-approved operating permits program 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 Being Addressed in This Document?

The state of Nebraska has requested that we approve as a revision to the Nebraska SIP, part 70 Operating Permits Program, and section 112(l) air toxics program rule revisions adopted by the Nebraska Environmental Quality Council on September 5, 2002. In its submission, the state also requested that we not take action, at this time, on certain revisions, as discussed below, relating to the state's “permit by rule.” The revisions to Title 129—Nebraska Air Quality Regulations which we are approving in today's rule are:

Chapter 1—Definitions, was revised to add new definitions for: Air Quality Control Region, AP-42, Insignificant activities, Low emitter, Method 9, Method 22, Mobile source, Speciation, Synthetic minor, and UTM coordinates. Additionally, the existing definition for Interstate air pollution control agency was revised. These changes will help clarify and define other related requirements of the state's rules.

Chapter 5—Operating Permits—When Required. Clarifying terms were added to the terms Class I and Class II permits. Class I also means major source, and Class II means minor source.

Chapter 6—Emissions Reporting: When Required. The emissions reporting requirements were clarified to distinguish between non-hazardous and hazardous pollutants, and a reference to Appendix III was added. This appendix, otherwise called the Insignificant Activities List, specifies the hazardous air pollutants and quantities required to be reported on the emission inventory form.

Chapter 30—Open Fires, Prohibited; Exceptions. This revision broadens the range of groups that may be issued open burning permits for the purpose of plant and wildlife parks management when approved by the Director.

Appendix III—Reporting Levels of Hazardous Air Pollutants for Emissions Inventory. This table (the Insignificant Activities List) has been used by the Department for some time, but now has been codified into Title 129 of the state rules.

The state has also adopted a permit-by-rule provision in chapter 42 of Title 129 of the state rules. Because the state is in the process of revising chapter 42, and we are working with the state to make appropriate revisions, Nebraska has requested that we not consider chapter 42 as part of its official submission at this time. In keeping with that request, we are also not acting on portions of the submission which reference chapter 42 identified below. This will avoid confusion by ensuring that the Federally-approved requirements do not cross-reference other requirements which are not Federally approved at this time. We will be acting on these provisions when the state submits its revised chapter 42 for approval.

The specific portions of the September 5, 2002, revisions which are not approved are as follows:

—The revision to chapter 5, rule 001.02;

—The revision to chapter 9, rule 011; and

—The revision to chapter 17, rule 001.

These provisions provide exemptions from certain construction and operating permit program requirements for sources operating under chapter 42. The result of our action is that these exemptions will not be recognized under the Federally-approved permitting programs until such time as we approve the state's chapter 42 permit-by-rule program.

Have the Requirements for Approval of a SIP Revision and Part 70 Program 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 revisions approved today meet the substantive SIP requirements of the CAA, including section 110 and implementing regulations. Finally, the approved revisions meet the substantive requirements of Title V of the 1990 CAA Amendments and 40 CFR part 70.

What Action Is EPA Taking?

We are approving as an amendment to the Nebraska SIP revisions to Title 129, chapters 1, 5, 6, and 30 as described in this rule. We are also approving as a program revision to the state's part 70 Operating Permits Program revisions to Title 129, chapters 1, 5, 6, and appendix III. Finally, we are approving pursuant to section 112(l) revisions to chapter 5. These revisions to the state rules became effective November 20, 2002.

EPA is processing this action as a direct final action because the revisions make routine changes to the existing rules 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.

You may submit comments either electronically or by mail. To ensure proper receipt by EPA, identify the appropriate rulemaking identification number, NE 190-1190a, in the subject line on the first page of your comment. Please ensure that your comments are submitted within the specified comment period. Comments received after the close of the comment period will be marked “late.” EPA is not required to consider these late comments.

1. Electronically. If you submit an electronic comment as prescribed below, EPA recommends that you include your name, mailing address, and an e-mail address or other contact information in the body of your comment. This ensures that you can be identified as the submitter of the comment and allows EPA to contact you in case EPA cannot read your comment due to technical difficulties or needs further information on the substance of your comment. EPA's policy is that EPA will not edit your comment, and any identifying or contact information provided in the body of a comment will be included as part of the comment that is placed in the official public docket. 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.

a. Electronic mail. Comments may be sent by e-mail to Wayne Kaiser at [e-mail]. Please include identification number NE 190-1190a in the subject line. EPA's e-mail system is not an “anonymous access” system. If you send an e-mail comment directly without going through Regulations.gov, EPA's e-mail system automatically captures your e-mail address. E-mail addresses that are automatically captured by EPA's e-mail system are included as part of the comment that is placed in the official public docket.

b. Regulations.gov. Your use of Regulations.gov is an alternative method of submitting electronic comments to EPA. Go directly to http://www.regulations.gov, click on “To Search for Regulations,” then select Environmental Protection Agency and use the “go” button. The list of current EPA actions available for comment will be listed. Please follow the online instructions for submitting comments. The system is an “anonymous access” system, which means EPA will not know your identity, e-mail address, or other contact information unless you provide it in the body of your comment.

2. By Mail. Written comments should be sent to the name and address listed in the ADDRESSES section of this document.

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 SIP 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 CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by November 4, 2003. 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: August 22, 2003.

Cecilia Tapia,

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:

a. Adding a heading for Title 129.

b. Revising the entries for 129-1, 129-5, 129-6, and 129-30.

The addition and revisions read as follows:

§ 52.1420

Identification of plan.

* * * * *

(c) * * *

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	11/20/02	9/5/03 and FR page citation
*         *         *         *         *         *         *
129-5	Operating Permit	11/20/02	9/5/03 and FR page citation	Section 001.02 is not SIP approved.
129-6	Emissions Reporting	11/20/02	9/5/03 and FR page citation
*         *         *         *         *         *         *
129-30	Open Fires, Prohibited; Exceptions	11/20/02	9/5/03 and FR page citation
*         *         *         *         *         *         *

* * * * *

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 (g) 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.

* * * * *

(g) The Nebraska Department of Environmental Quality approved revisions to NDEQ Title 129, chapters 1, 5, 6, and appendix III (which codifies its prior Federally approved Insignificant Activities List) on September 5, 2002, which became effective on November 20, 2002. These revisions were submitted on May 1, 2003. We are approving these program revisions effective November 4, 2003.

* * * * *