03-29692. 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 Office of the Federal Register (OFR), Office of Air and Radiation Docket and Information Center, and the Regional Office.

EFFECTIVE DATE:

This action is effective December 1, 2003.

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 VII, 901 North 5th Street, Kansas City, Kansas 66101; Office of Air and Radiation Docket and Information Center, Room B-108, 1301 Constitution Avenue, NW (Mail Code 6102T), Washington, DC 20460, and Office of the Federal Register, 800 North Capitol Street NW., Suite 700, Washington, DC.

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 can revise 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 as being 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 (OFR). 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. Today EPA is updating the IBR material.

EPA is also making minor corrections to the table in § 52.1420(c) as follows:

On February 14, 1996 (61 FR 5701), EPA approved and incorporated by reference revisions to Lincoln-Lancaster County Air Pollution Control Program, Article 2, Section 9. We are correcting the state effective date for Section 9, Article 2 to reflect that previous approval.

On February 14, 1996 (61 FR 5701), EPA approved and incorporated by reference revisions to City of Omaha, Chapter 41, Article IV, for 41-61. We are correcting the entries for 41-61 to reflect that previous approval.

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 updating citations.

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 Clean Air Act. 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 Clean Air Act. 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 Clean Air Act. 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 January 30, 2004. 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

Dated: November 17, 2003.

Martha R. Steincamp,

Acting Regional Administrator, Region 7.

Chapter I, title 40, Code of Federal Regulations, 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), (d) and (e) of this section with an EPA approval date prior to November 5, 2003, 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), (d) and (e) of this section with EPA approval dates after November 5, 2003, will be incorporated by reference in the next update to the SIP compilation.

(2) EPA Region VII certifies that the rules/regulations provided by EPA in the SIP compilation at the addresses in paragraph (b)(3) are an exact duplicate of the officially promulgated state rules/regulations which have been approved as part of the SIP as of November 5, 2003.

(3) Copies of the materials incorporated by reference may be inspected at the Environmental Protection Agency, Region VII, Air Planning and Development Branch, 901 North 5th Street, Kansas City, Kansas 66101; the Office of the Federal Register, 800 North Capitol Street, NW., Suite 700, Washington, DC.; or at the EPA, Air and Radiation Docket and Information Center, Room B-108, 1301 Constitution Avenue, NW. (Mail Code 6102T), Washington, DC 20460.

(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	09/05/03, 68 FR 52694
129-2	Definition of Major Source	07/10/02	07/08/03, 68 FR 40530
129-3	Region and Subregions	6/26/94	1/04/95, 60 FR 372
129-4	Ambient Air Quality Standards	04/01/02 07/10/02	07/08/03, 68 FR 40530
129-5	Operating Permit	11/20/02	09/05/03, 68 FR 52694	Section 001.02 is not SIP approved.
129-6	Emissions Reporting	11/20/02	09/05/03, 68 FR 52694
129-7	Operating Permits—Application	8/22/2000	5/29/02, 67 FR 37327
129-8	Operating Permit Content	8/22/2000	5/29/02, 67 FR 37327
129-9	General Operating Permits for Class I and II Sources	5/29/95	10/18/95, 60 FR 53872
129-10	Operating Permits for Temporary Sources	9/7/97	1/20/00, 65 FR 3134
129-11	Operating Permits—Emergency; Defense	5/29/95	10/18/95, 60 FR 53872
129-12	Operating Permit Renewal and Expiration	5/29/95	2/09/96, 61 FR 4899
129-13	Class I Operating Permit—EPA Review; Affected States Review; Class II Permit	5/29/95	10/18/95, 60 FR 53872
129-14	Permits—Public Participation	5/29/95	10/18/95, 60 FR 53872
129-15	Operating Permit Modification; Reopening for Cause	5/29/95	10/18/95, 60 FR 53872
129-16	Stack Heights; Good Engineering Practice (GEP)	12/15/1998	5/29/02, 67 FR 37327
129-17	Construction Permits—When Required	07/10/02	07/08/03, 68 FR 40530	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	12/15/1998	5/29/02, 67 FR 37327
129-20	Particulate Emissions; Limitations and Standards (Exceptions Due to Breakdowns or Scheduled Maintenance: See Chapter 35)	04/01/02 07/10/02	07/08/03, 68 FR 40530
129-21	Controls for Transferring, Conveying, Railcar and Truck Loading at Rock Processing Operations in Cass County	07/10/02	07/08/03, 68 FR 40530
129-22	Incinerators; Emission Standards	9/7/97	1/20/00, 65 FR 3134
129-24	Sulfur Compound Emissions, Existing Sources Emission Standards	6/26/94	1/04/95, 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 3134
129-30	Open Fires, Prohibited; Exceptions	11/20/02	09/05/03, 68 FR 52694
129-32	Dust; Duty to Prevent Escape of	6/26/94	1/04/95, 60 FR 372
129-33	Compliance; Time Schedule for	6/26/94	1/04/95, 60 FR 372
129-34	Emission Sources; Testing; Monitoring	8/22/2000	5/29/02, 67 FR 37327
129-35	Compliance; Exceptions Due to Startup, Shutdown, or Malfunction	9/7/97	1/20/00, 65 FR 3134
129-36	Control Regulations; Circumvention, When Excepted	6/26/94	1/04/95, 60 FR 372
129-37	Compliance; Responsibility	6/26/94	1/04/95, 60 FR 372
129-38	Emergency Episodes; Occurrence and Control, Contingency Plans	6/26/94	1/04/95, 60 FR 372
129-39	Visible Emissions from Diesel-powered Motor Vehicles	6/26/94	1/04/95, 60 FR 372
129-40	General Conformity	5/29/95	2/12/96, 61 FR 5297
129-41	General Provision	12/15/1998	5/29/02, 67 FR 37327
129-42	Consolidated with Chapter 41	5/29/95	2/09/96, 61 FR 4899
129-43	Consolidated with Chapter 41	5/29/95	2/09/96, 61 FR 4899
129-44	Consolidated with Chapter 41	5/29/95	2/09/96, 61 FR 4899
Appendix I	Emergency Emission Reductions	6/26/94	1/04/94, 60 FR 372
Appendix II	Hazardous Air Pollutants (HAPS)	9/7/97	1/20/00, 65 FR 3134
Title 115—Rules of Practice and Procedure
115-1	Definitions of Terms	8/08/93	1/04/95, 60 FR 372
115-2	Filing and Correspondence	8/08/93	1/04/95, 60 FR 372
115-3	Public Records Availability	8/08/93	1/04/95, 60 FR 372
115-4	Public Records Confidentiality	8/08/93	1/04/95, 60 FR 372
115-5	Public Hearings	8/08/93	1/04/95, 60 FR 372
115-6	Voluntary Compliance	8/08/93	1/04/95, 60 FR 372
115-7	Contested Cases	8/08/93	1/04/95, 60 FR 372
115-8	Emergency Proceeding Hearings	8/08/93	1/04/95, 60 FR 372
115-9	Declaratory Rulings	8/08/93	1/04/95, 60 FR 372
115-10	Rulemaking	8/08/93	1/04/95, 60 FR 372
115-11	Variances	8/08/93	1/04/95, 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 5701
Section 2	Unlawful Acts—Permits Required	5/16/95	2/14/96, 61 FR 5701
Section 3	Violations—Hearing—Orders	5/16/95	2/14/96, 61 FR 5701
Section 4	Appeal Procedure	5/16/95	2/14/96, 61 FR 5701
Section 5	Variance	5/16/95	2/14/96, 61 FR 5701
Section 7	Compliance—Actions to Enforce—Penalties for Non-Compliance	5/16/95	2/14/96, 61 FR 5701
Section 8	Procedure for Abatement	5/16/95	2/14/96, 61 FR 5701
Section 9	Severability	5/16/95	2/14/96, 61 FR 5701
Article 2—Regulations and Standards
Section 1	Definitions	8/11/98	1/20/00, 65 FR 3134
Section 2	Major Sources—Defined	8/11/98	1/20/00, 65 FR 3134
Section 4	Ambient Air Quality Standards	5/16/95	2/14/96, 61 FR 5701
Section 5	Operating Permits—When Required	8/11/98	1/20/00, 65 FR 3134
Section 6	Emissions Reporting—When Required	8/11/98	1/20/00, 65 FR 3134
Section 7	Operating Permits—Application	8/11/98	1/20/00, 65 FR 3135
Section 8	Operating Permit—Content	8/11/98	1/20/00, 65 FR 3135
Section 9	General Operating Permits for Class I and II Sources	5/16/95	2/14/96, 61 FR 5701
Section 10	Operating Permits for Temporary Services	5/16/95	2/14/96, 61 FR 5701
Section 11	Emergency Operating Permits—Defense	5/16/95	2/14/96, 61 FR 5701
Section 12	Operating Permit Renewal and Expiration	5/16/95	2/14/96, 61 FR 5701
Section 14	Permits—Public Participation	5/16/95	2/14/96, 61 FR 5701
Section 15	Operating Permit Modifications—Reopening for Cause	8/11/98	1/20/00, 65 FR 3135
Section 16	Stack—Heights—Good Engineering Practice (GEP)	5/16/95	2/14/96, 61 FR 5701
Section 17	Construction Permits—When Required	8/11/98	1/20/00, 65 FR 3135
Section 19	Prevention of Significant Deterioration of Air Quality	5/16/95	2/14/96, 61 FR 5701
Section 20	Particulate Emissions—Limitations and Standards	3/31/97	1/20/00, 65 FR 3135
Section 22	Incinerator Emissions	5/16/95	2/14/96, 61 FR 5701
Section 24	Sulfur Compound Emissions—Existing Sources—Emission Standards	5/16/95	2/14/96, 61 FR 5701
Section 25	Nitrogen Oxides (Calculated as Nitrogen Dioxide)—Emissions Standards for Existing Stationary Sources	5/16/95	2/14/96, 61 FR 5701
Section 32	Dust—Duty to Prevent Escape of	3/31/97	1/20/00, 65 FR 3135
Section 33	Compliance—Time Schedule for	5/16/95	2/14/96, 61 FR 5701
Section 34	Emission Sources—Testing—Monitoring	5/16/95	2/14/96, 61 FR 5701
Section 35	Compliance—Exceptions Due to Startup Shutdown or Malfunction	5/16/95	2/14/96, 61 FR 5701
Section 36	Control Regulations—Circumvention—When Expected	5/16/95	2/14/96, 61 FR 5701
Section 37	Compliance—Responsibility of Owner/Operator Pending Review by Director	5/16/95	2/14/96, 61 FR 5701
Section 38	Emergency Episodes—Occurrence and Control— Contingency Plans	5/16/95	2/14/96, 61 FR 5701
Appendix	Emergency Emission Reduction Regulations	5/16/95	2/14/96, 61 FR 5701
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 3135
41-4	Enforcement—Generally	5/29/95	2/14/96, 61 FR 5701
41-5	Same Health Department	5/29/95	2/14/96, 61 FR 5701
41-6	Residential Exemptions	5/29/95	2/14/96, 61 FR 5701
41-9	Penalties	5/29/95	2/14/96, 61 FR 5701
41-10	Civil Enforcement	5/29/95	2/14/96, 61 FR 5701
Article II—Permitting of Air Contaminant Sources
41-23	Prerequisite to Approval	5/29/95	2/14/96, 61 FR 5701
41-27	Signature Required; Guarantee	5/29/95	2/14/96, 61 FR 5701
41-38	Funds	5/29/95	2/14/96, 61 FR 5701
41-40	Fees—When Delinquent	5/29/95	2/14/96, 61 FR 5701
Article IV—Waste Incinerators Division 1. Generally
41-60	Definitions	5/29/95	2/14/96, 61 FR 5701
41-61	Violations	5/29/95	2/14/96, 61 FR 5701
Article IV—Waste Incinerators Division 2. Emissions
41-70	New or Modified Facilities	5/29/95	2/14/96, 61 FR 5701
41-71	Existing Facilities	5/29/95	2/14/96, 61 FR 5701
41-72	Emission Testing	5/29/95	2/14/96, 61 FR 5701
Article IV—Waste Incinerators Division 3. Design
41-80	New or Modified Waste Incinerators	5/29/95	2/14/96, 61 FR 5701
41-81	Existing Incinerators	5/29/95	2/14/96, 61 FR 5701

(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 States 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 3135
(21) Lancaster Co. Resolution 5069, Sections 12 and 13.	Lancaster County	2/5/99	1/20/00, 65 FR 3135
(22) Nebraska Lead Maintenance SIP	Omaha	1/18/01	4/20/01, 66 FR 20199