[Federal Register Volume 60, Number 201 (Wednesday, October 18, 1995)]
[Rules and Regulations]
[Pages 53872-53875]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-25844]



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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 70
[AD-FRL-5316-2]

Clean Air Act (CAA) Final Full Approval Of Operating Permits 
Programs; State of Nebraska, City of Omaha, and Lincoln-Lancaster 
County Health Department (LLCHD) and Delegation of 112(l) Authority
AGENCY: Environmental Protection Agency (EPA).

ACTION: Final full approval.

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SUMMARY: The EPA is promulgating full approval of the operating permits 
programs submitted by the state of Nebraska, city of Omaha, and LLCHD 
for the purpose of complying with Federal requirements for an 
approvable state program to issue operating permits to all major 
stationary sources and certain other sources. EPA is also approving, 
under section 112(l), all three programs for accepting delegation of 
section 112 standards to enforce air toxics regulations.

EFFECTIVE DATE: November 17, 1995.

ADDRESSES: Copies of the three submittals and other supporting 
information used in developing the final full approval are available 
for inspection during normal business hours at the following location: 
Environmental Protection Agency, Region VII, 726 Minnesota Avenue, 
Kansas City, Kansas 66101.

FOR FURTHER INFORMATION CONTACT: Christopher D. Hess at (913) 551-7213.

SUPPLEMENTARY INFORMATION:

I. Background and Purpose

A. Introduction

    Title V of the 1990 Clean Air Act Amendments (sections 501-507 of 
the Clean Air Act (``the Act'')), and implementing regulations at 40 
Code of Federal Regulations (CFR) part 70, require that states develop 
and submit operating permits programs to EPA by November 15, 1993, and 
that EPA act to approve or disapprove each program within one year 
after receiving the submittal. The EPA's program review occurs pursuant 
to section 502 of the Act and the part 70 regulations, which together 
outline criteria for approval or disapproval. Where a program 
substantially, but not fully, meets the requirements of part 70, EPA 
may grant the program interim approval for a period of up to two years. 
If EPA has not fully approved a program by two years after the November 
15, 1993, date (or by the end of an interim program), it must establish 
and implement a Federal program.
    On January 31, 1995, EPA proposed full approval of the operating 
permits program for LLCHD (60 FR 5883-87). Furthermore, on April 3, 
1995, EPA proposed approval of delegation for 112(l) for LLCHD (60 FR 
16829-30). Public comments were received on (60 FR 5883-87) which are 
addressed in section II of this notice. None were received on 60 FR 
16829-30.
    On March 7, 1995, EPA proposed full approval of the operating 
permits program for the state of Nebraska and city of Omaha (60 FR 
12521-24). The 

[[Page 53873]]
EPA received public comments which are also addressed in section II of 
this notice. In this notice, EPA is taking final action to promulgate 
full approval of all three operating permit programs submitted within 
Nebraska, including delegation of 112(l) authority.

II. Public Comments

    One party submitted comments on both of the two proposal notices. 
Although the letters are signed by different representatives, the same 
interest is represented by each and the comments are largely identical. 
A total of six comments will herein be addressed which answers all 
comments.
    Comment #1: The approval date for all three programs should be the 
same, so that due dates for industry submissions triggered by the 
approval date will be uniform throughout the state.
    EPA Response: Although two separate proposal notices were used, the 
EPA has combined the final action into one notice. Therefore, all three 
programs have the same approval date. It should be noted, however, that 
the effective date of the EPA approval is not necessarily the trigger 
date for certain source obligations under the state and local programs. 
For example, sources which apply for early permit processing under the 
state and local rules must submit complete applications by dates 
specified in the rules, which are not dependent on the effective date 
of EPA approval.
    Comment #2: The annual inventory submission dates should be uniform 
for all three programs. The uniform date should be July 1 of each year, 
to correspond to the reporting deadline for toxic release inventory 
data under the Federal Emergency Planning and Community Right to Know 
Act (EPCRA).
    EPA Response: Under Title V of the Act and part 70, the minimum 
requirements for EPA approval of state and local permitting programs 
contain no specific provisions governing the submission of annual 
emission inventory information, and no expressed or implied requirement 
relating to dates for submission of emission inventories. A state has 
the flexibility under part 70 to submit approvable programs which 
contain different dates for submission of emission information, at the 
discretion of the state.
    EPA notes, in addition, that the inventory submission provisions 
referenced by the commenter state that annual inventories showing 
emissions for the prior calendar year must be submitted ``by'' July 1 
(in the Nebraska rule) and ``by'' March 31 (in the Lincoln-Lancaster 
rule). Thus, a source owner could submit inventories by March 31 in 
each jurisdiction and be in compliance with both rules. Similarly, a 
source owner could submit toxic release information by March 31, and be 
in compliance with the applicable EPCRA deadline.
    Comment #3: A uniform fee schedule should be established throughout 
the state.
    EPA Response: The city of Omaha and LLCHD have established fees of 
$30.07 per ton of regulated air pollutant, while the state has adopted 
a fee slightly above this at $30.69. Under 40 CFR 70.9(a), permitting 
agencies must assess fees that adequately cover the costs of 
administering the program, and must ensure that the fees will be used 
solely to cover Title V permit program costs. There is no requirement 
that fees be uniform within a state, so long as these minimum 
requirements are met. In fact, since the statewide permit program in 
Nebraska assesses fees on fewer pollutants (i.e., Nebraska, unlike the 
local permitting authorities, assesses fees only on smaller particulate 
emissions), EPA would anticipate that the amount per ton of pollutant 
would be higher for the state than for the local programs. Therefore, 
the EPA believes, for reasons detailed in the proposed rulemakings 60 
FR 5883 and 60 FR 12521, that the fee requirements of section 70.9 have 
been met.
    Comment #4: None of Nebraska's programs allow ``off-permit'' 
changes without a permit revision. EPA should require that the 
permitting authorities adopt criteria under which permitting 
authorities will allow changes not covered by the permit, without the 
need for a permit revision.
    EPA Response: In 40 CFR 70.4(b)(14), EPA recognizes that permitting 
authorities may, as a matter of state or local law, prohibit sources 
from making certain changes which are not addressed in or prohibited by 
a permit (``off-permit'' changes). EPA cannot require that states allow 
off-permit changes. Thus, this matter is within the discretion of the 
individual permitting agencies.
    It is noted, however, that Title 129, Chapter 15:007 allows certain 
types of changes within a permitted facility without a permit revision 
(``Section 502(b)10'' changes). Interested sources should reference 
that provision.
    Comment #5: Permitting agencies might use Title V fees to 
administer the Class II source program (the operating permit program 
for non-Title V sources). Nebraska should provide assurance that such 
fees will not be misdirected to non-Title V activities.
    EPA Response: Fees collected under Title V may only be used for 
Title V activities. As stated in EPA's proposals on the state and local 
programs (at 60 FR 5885 and 60 FR 125223), the program submittals 
include a demonstration that separate funds have been created for 
handling the Title V fees. Permitting authorities will be expected to 
keep appropriate records to show that the fees are used only for 
activities relating to Title V.
    There may be sources in the class II program, however, for which 
the state and local agencies may utilize Title V funding in permit 
processing (such as sources potentially subject to Title V, which take 
restrictions in Class II permits so that they will not be required to 
obtain Title V permits). EPA considers such permitting to be a valid 
Title V activity. However, the state must use other funds for 
permitting and other activities which have no relationship to the Title 
V program.
    Comment #6: If more funds are generated than required, are there 
provisions to reduce future fee assessments?
    EPA Response: In the program descriptions of all three submittals, 
the respective agencies identified a fee schedule that is anticipated 
to meet the costs of implementing the program(s). Furthermore, in each 
instance, the respective agencies have committed to reviewing the fee 
schedule on an annual basis once the actual costs of the program are 
determined. The Federal requirements do not prevent a permitting 
authority from later adjusting the fee schedule downward, as long as 
the minimum fee demonstration requirements of 40 CFR 70.9 are met.

III. Final Action and Implications

A. Fulfillment of EPA Requested Modifications

    The January 31, 1995, Federal Register notice proposing approval of 
the LLCHD program outlined two requirements prior to final action: (1) 
modifying the regulations to ensure that all ``applicable 
requirements'' of the CAA (as defined in 40 CFR 70.2) are identified in 
permit applications and throughout the permitting process; and (2) 
modifying provisions relating to minor permit modifications to ensure 
that certain changes, which may be modifications under Title I of the 
CAA, would not qualify for minor permit revision processing. In the 
proposal, EPA suggested that it could approve the LLCHD program if it 
adopted changes substantially similar to those adopted by Nebraska in 
the state's December 2, 1994, rule (see 60 FR 5885). On May 16, 

[[Page 53874]]
1995, the Lincoln-Lancaster Board of Commissioners adopted these 
modified amendments, based on the state's December 2, 1994, amendments, 
and these were submitted to EPA on May 23, 1995.
    The March 7, 1995, Federal Register notice proposing approval for 
the state of Nebraska and city of Omaha programs also outlined two 
requirements prior to final action: the state must submit the December 
2, 1994, amendments to Title 129, and the city of Omaha must 
incorporate these amendments by reference and submit them to EPA.
    The state of Nebraska submitted these amendments on June 14, 1995, 
following signature by the Governor on May 29, 1995. On March 21, 1995, 
the city of Omaha adopted these amendments by reference to become 
effective 15 days after the state's December 2, 1994, amendments became 
effective (June 13, 1995--based on the May 29, 1995, approval by the 
Governor). Thus, all three agencies have met the final requirements for 
final full approval.

B. Variances

    One issue of EPA concern with state programs is the ability of a 
part 70 source to obtain a waiver from any applicable requirement. The 
Nebraska Department of Environmental Quality (NDEQ) has the authority 
to issue a variance from requirements imposed by state law in Nebraska 
Revised Statute Sec. 81-1513.
    However, the EPA regards the Nebraska variance provision, and 
similar local agency regulatory provisions, as wholly external to the 
programs submitted for approval under part 70, and EPA is consequently 
taking no action on these variance provisions. The EPA has no authority 
to approve provisions of state and local authority, such as the 
variance provisions, which are inconsistent with the Act. The EPA does 
not recognize the ability of a permitting authority to grant relief 
from the duty to obtain and comply with the terms of a Federally 
enforceable part 70 permit, except where such relief is granted through 
procedures allowed by part 70.
    The EPA reserves the right to enforce the terms of the part 70 
permit where the permitting authority purports to grant relief from the 
duty to obtain and comply with a part 70 permit in a manner 
inconsistent with part 70 requirements.

C. Final Action

    1. Regulations. The EPA is promulgating full approval of the 
operating permits program submitted to EPA for the state of Nebraska, 
city of Omaha, and LLCHD submitted on November 15, 1993. Each agency 
has demonstrated its respective program will be adequate to meet the 
minimum elements of an operating permits program as specified in 40 CFR 
part 70.
    This approval includes the following regulations adopted by each 
agency:
    a. NDEQ, Title 129, Nebraska Air Quality Regulations, amended May 
29, 1995. This includes the following chapters of the regulations 
insofar as they apply to Title V: 1, 2, 5-15, 29, 40-44.
    b. 1993 Lincoln-Lancaster County Air Pollution Control Program, 
Version March 1995, dated May 16, 1995. This includes the following 
citations insofar as they apply to Title V: Article 1, Sections 1-2, 
and 7; and Article 2, Sections 1, 2, 5-15, and 29.
    c. Omaha Municipal Code, Section 41-2, 41-9 and 41-10; Ordinance 
33506, dated March 21, 1995, which incorporates by reference Title 129.
    2. Jurisdiction. The scope of the part 70 programs approved in this 
notice applies to all part 70 sources (as defined in the approved 
program), within the state of Nebraska, except any sources of air 
pollution over which an Indian Tribe has jurisdiction. See 59 FR 55813, 
55815-18 (November 9, 1994). The term ``Indian Tribe'' is defined under 
the Act as ``any Indian Tribe, Band, Nation, or other organized group 
or community, including any Alaska Native village, which is Federally 
recognized as eligible for the special programs and services provided 
by the United States to Indians, because of their status as Indians.'' 
See section 302(r) of the CAA; 59 FR 43956, 43962 (August 25, 1994); 58 
FR 54364 (October 21, 1993).
    3. 112(l). Requirements for approval, specified in 40 CFR 70.4(b), 
encompass section 112(l)(5) requirements for approval of a program for 
delegation of section 112 standards as promulgated by EPA as they apply 
to part 70 sources, as well as sources not subject to part 70 
requirements. Section 112(l)(5) requires that the state's program 
contain adequate authorities, adequate resources for implementation, 
and an expeditious compliance schedule, which are also requirements 
under part 70. Therefore, the EPA is also promulgating full approval 
under section 112(l)(5) and 40 CFR 63.91 of these programs for 
receiving delegation of section 112 standards that are unchanged from 
Federal standards as promulgated.
    4. 112(g). The EPA issued an interpretive notice on February 14, 
1995 (60 FR 8333), which outlines EPA's revised interpretation of 
112(g) applicability. The notice postpones the effective date of 112(g) 
until after EPA has promulgated a rule addressing that provision. The 
notice sets forth in detail the rationale for the revised 
interpretation.
    The section 112(g) interpretive notice explains that EPA is still 
considering whether the effective date of section 112(g) should be 
delayed beyond the date of promulgation of the Federal rule so as to 
allow states time to adopt rules implementing the Federal rule, and 
that EPA will provide for any such additional delay in the final 
section 112(g) rulemaking. Unless and until EPA provides for such an 
additional postponement of section 112(g), Nebraska must have a 
Federally enforceable mechanism for implementing section 112(g) during 
the period between promulgation of the Federal section 112(g) rule and 
adoption of implementing Federal regulations.
    The EPA is aware that Nebraska lacks a program designed 
specifically to implement section 112(g). However, Nebraska does have a 
preconstruction review program that can serve as an adequate 
implementation vehicle during the transition period, because it would 
allow Nebraska to select control measures that would meet Maximum 
Available Control Technology, as defined in section 112, and 
incorporate these measures into a Federally enforceable preconstruction 
permit.
    EPA is approving Nebraska's preconstruction permitting program 
under the authority of Title V and part 70, solely for the purpose of 
implementing section 112(g) to the extent necessary, during the 
transition period between 112(g) promulgation and adoption of a state 
rule implementing EPA's section 112(g) regulations. Although section 
112(l) generally provides authority for approval of state air programs 
to implement section 112(g), Title V and section 112(g) provide for 
this limited approval because of the direct linkage between the 
implementation of section 112(g) and Title V.
    The scope of this approval is narrowly limited to section 112(g), 
and does not confer or imply approval for purposes of any other 
provision under the Act (e.g., section 110). This approval will be 
without effect, if EPA decides in the final section 112(g) rule that 
sources are not subject to the requirements of the rule until state 
regulations are adopted. The duration of this approval is limited to 18 
months following promulgation by EPA of the 112(g) rule to provide 
adequate time for the state to adopt regulations consistent with the 
Federal requirements. 

[[Page 53875]]


IV. Administrative Requirements

A. Docket

    Copies of the three submittals and other information relied upon 
for the final full approval, including public comments received and 
reviewed by EPA on the proposal, are contained in a docket maintained 
at the EPA Regional Office. The docket is an organized and complete 
file of all the information submitted to, or otherwise considered by, 
EPA in the development of this final full approval. The docket is 
available for public inspection at the location listed under the 
ADDRESSES section of this document.

B. Executive Order 12866

    The Office of Management and Budget has exempted this action from 
Executive Order 12866 review.

C. Regulatory Flexibility Act

    The EPA's actions under section 502 of the Act do not create any 
new requirements, but simply address operating permits programs 
submitted to satisfy the requirements of 40 CFR part 70. Because this 
action does not impose any new requirements, it does not have a 
significant impact on a substantial number of small entities.

D. Unfunded Mandates

    Under sections 202, 203, and 205 of the Unfunded Mandates Reform 
Act of 1995 (``Unfunded Mandates Act''), signed into law on March 22, 
1995, EPA must undertake various actions in association with proposed 
or final rules that include a Federal mandate that may result in 
estimated costs of $100 million or more to the private sector, or to 
state, local, or tribal governments in the aggregate.
    Through submission of these operating permit programs, the state of 
Nebraska and two local agencies have elected to adopt the program 
provided for under Title V of the CAA. These rules bind these entities 
to perform certain actions and also require the private sector to 
perform certain duties.
    To the extent that the rules being proposed for approval by this 
action will impose new requirements, sources are already subject to 
these regulations under statelaw. EPA has determined that this proposed 
action does not include a mandate that may result in estimated costs of 
$100 million or more to state, local, or tribal governments in the 
aggregate or to the private sector.

List of Subjects in 40 CFR Part 70

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Intergovernmental relations, Operating permits, 
and Reporting and recordkeeping requirements.

    Dated: October 6, 1995.
Dennis Grams,
Regional Administrator.

    Part 70, title 40 of the Code of Federal Regulations is amended as 
follows:

PART 70--[AMENDED]

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

    Authority: 42 U.S.C. 7401-7671q.

    2. Appendix A to part 70 is amended by adding the entry for the 
state of Nebraska, the city of Omaha, and LLCHD to read as follows:

Appendix A to Part 70--Approval Status of State and Local Operating 
Permits Programs

* * * * *
State of Nebraska; City of Omaha; Lincoln-Lancaster County Health 
Department
    (a) The Nebraska Department of Environmental Quality submitted on 
November 15, 1993, supplemented by correspondence dated November 2, 
1994, and August 29, 1995.
    (b) Omaha Public Works Department submitted on November 15, 1993, 
supplemented by correspondence dated April 18, 1994; May 13, 1994; 
August 12, 1994; April 13, 1995; and April 19, 1995.
    (c) Lincoln-Lancaster County Health Department submitted on 
November 15, 1993, supplemented by correspondence dated June 27, 1994. 
Full approval effective on: November 17, 1995.
    (d) Reserved.
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[FR Doc. 95-25844 Filed 10-17-95; 8:45 am]
BILLING CODE 6560-50-P