[Federal Register Volume 61, Number 28 (Friday, February 9, 1996)]
[Rules and Regulations]
[Pages 4899-4901]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-2830]



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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52

[NE-8-1-7206a; FRL-5344-2]


Approval and Promulgation of Implementation Plans; State of 
Nebraska

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: The state of Nebraska operates a Federally approved State 
Implementation Plan (SIP) that includes a Class II operating permit 
program for minor sources (those not subject to Title V). This revision 
will clarify and strengthen the Class II operating permit program and 
other miscellaneous rule changes.

DATES: This action is effective April 9, 1996 unless by March 11, 1996 
adverse or critical comments are received.

ADDRESSES: Copies of the documents relevant to this action are 
available for public inspection during normal business hours at the: 
Environmental Protection Agency, Air Branch, 726 Minnesota Avenue, 
Kansas City, Kansas 66101; and EPA Air & Radiation Docket and 
Information Center, 401 M Street SW., Washington, DC 20460.

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

SUPPLEMENTARY INFORMATION: In February 1994, the state of Nebraska 
submitted an SIP revision to create a Class II operating permit program 
for minor sources (those not subject to Title V). This revision became 
effective on March 6, 1995 (see 60 FR 372-375).
    During the period after the initial state submission, the state 
proposed several miscellaneous revisions to clarify and strengthen the 
Class II operating permit program. These revisions were adopted by the 
Environmental Quality Council on December 2, 1994, and signed by the 
Governor on May 29, 1995. The state subsequently requested a revision 
to the SIP on June 14, 1995, under the signature of Randolph Wood, 
designee of the Governor. This rulemaking addresses those revisions.
    Additionally, in a rulemaking published on January 4, 1995 (60 FR 
372), one chapter of the state's regulations was inadvertently not 
submitted with the incorporation by reference material. Thus, this 
rulemaking now incorporates Chapter 25, ``Nitrogen Oxides (Calculated 
as Nitrogen Dioxide); Emissions Standards for Existing Stationary 
Sources'' of Title 129.

Significant Features of the SIP Revision

A. Modifications for Class II and Construction Permits

    1. Consistent with Federal regulations, the state now exempts 
sources subject only to 112(r) of the Act from the responsibility to 
obtain a Class II operating permit (5:002.02C). (Section 112(r) 
requires prevention of accidental release plans.) Sources subject to 
112(r) are still required to comply with that section's provisions but 
will not be required to also obtain a state permit. This relieves 
approximately 500 sources, otherwise not regulated under the Act, from 
obtaining Class II permits.
    2. The state has revised Title 129 to provide that Class II sources 
have the same exemptions and mechanisms for meeting the requirement to 
obtain an operating permit available to them as do Class I (Title V) 
sources in 5:003:01 and 02. These changes are necessary because those 
provisions in the previous rule language did not specify Class II 
sources, and the change makes the rule consistent for both classes of 
sources.
    3. Pursuant to Title V, the state has developed a list and criteria 
for insignificant activities for Class I permits as referenced in 
7:006.03. The state has revised its rules in 7:007.07 to also allow 
exclusion of insignificant activities from Class II permit 
applications.
    Without the development of a list that can be used for Class II 
sources, emissions information would be 

[[Page 4900]]
required for every emission point or unit at a facility, regardless of 
how small. This revision offers the same relief for Class II sources 
from unnecessary reporting as for Class I sources, and reduces the 
amount of information required for specified emission units or 
activities. However, Class II applications must still provide 
information necessary to determine whether an activity is subject to an 
applicable requirement.
    4. The state has added language that states the provisions of an 
operating permit issued under Title 129 supersede the provisions of any 
previously issued operating or construction permit (8:007.06). The 
addition of this language prevents any misunderstanding over which 
provisions are applicable to a source. However, this provision does not 
authorize changes to prior permits which make its requirements less 
stringent, because rule 8:015.01 requires that permit requirements must 
be at least as stringent as any applicable requirement including 
conditions of any prior permit.
    5. Concerning expired permits, the state has reworded rule 12:003 
to provide that the conditions of an expired permit shall continue 
until a new permit is issued or until the application for a new permit 
is denied.
    6. With respect to construction permits in rule 17:001.01, the 
state has consolidated the applicability provisions previously 
contained in separate rules into the construction permit rule. This is 
consistent with EPA requirements for programs to review the air quality 
impact of proposed new sources and modifications as specified in 
section 110(a)(2)(C) of the Act.

B. Provisions Regulating Incinerators and Class II Permits

    1. The state has tightened its requirement that refuse incinerators 
obtain operating permits in rule 5:001.02B. The revision provide that 
residential incinerators are exempt if they are used to dispose of 
wastes generated on site.
    2. The state has added a requirement that nonresidential refuse 
incinerators obtain a construction permit in rule 17:001.02. An 
exemption is provided for residential incinerators on property with 
five or less dwellings which dispose of wastes generated on site.
    3. The incinerator emission standards in Chapter 22 are amended to 
apply to both new and existing refuse incinerators. The former rule 
applied only to existing incinerators.
    The EPA believes these revisions are approvable because they 
strengthen the existing SIP and are consistent with the relevant 
requirements of section 110(a)(2) of the Act.
C. Updating and Adopting Federal Regulations
    1. The state has revised rule 19:01 to update its incorporation of 
Prevention of Significant Deterioration regulations as found in 40 CFR 
part 52.21 as amended through June 3, 1994.
    2. Nebraska has incorporated by reference the Federal regulation on 
General Conformity. This regulation applies to Federal projects in 
nonattainment areas and requires such projects to conform to the state 
SIP. At this time, the regulation would only apply to the lead 
nonattainment area in Omaha.
    The EPA is not acting on the Nebraska General Conformity rule in 
Chapter 40 as part of this rulemaking, but will act on it in a separate 
rulemaking.
D. Administrative Restructuring of Title 129
    In the previously approved version of Title 129, Chapters 40 
through 44 addressed various administrative matters such as appeal 
procedures and the responsibility to comply with Title 129. The state 
now consolidates these requirements into one chapter (41). No actual 
change in the content has been made from the previously approved SIP.

EPA Action

    EPA is taking final action to approve revisions submitted June 14, 
1995, for the state of Nebraska. All revisions discussed in this notice 
are considered approvable by the EPA. The reader should note in the 
rulemaking portion of this document EPA's provision clarifying that any 
nonconforming permit requirements may be deemed not Federally 
enforceable.
    For a complete understanding of the state's submission and EPA's 
analysis, the reader may request the ``Technical Support Document (TSD) 
for a Revision to the Nebraska State Implementation Plan (SIP) 
concerning the Class II Operating Permit Program'' dated August 30, 
1995.
    The EPA is publishing this action without prior proposal because 
the Agency views this as a noncontroversial amendment and anticipates 
no adverse comments. However, in a separate document in the Federal 
Register publication, the EPA is proposing to approve the SIP revision 
should adverse or critical comments be filed.
    If the EPA receives such comments, this action will be withdrawn 
before the effective date by publishing a subsequent notice that will 
withdraw the final action. All public comments received will then be 
addressed in a subsequent final rule based on this action serving as a 
proposed rule. The EPA will not institute a second comment period on 
this action. Any parties interested in commenting on this action should 
do so at this time.
    Nothing in this action should be construed as permitting or 
allowing or establishing a precedent for any future request for 
revision to any SIP. Each request for revision to the SIP shall be 
considered separately in light of specific technical, economic, and 
environmental factors, and in relation to relevant statutory and 
regulatory requirements.
    Under the Regulatory Flexibility Act, 5 U.S.C. 600 et. seq., EPA 
must prepare a regulatory flexibility analysis assessing the impact of 
any proposed or final rule on small entities (5 U.S.C. 603 and 604). 
Alternatively, EPA may certify that the rule will not have a 
significant impact on a substantial number of small entities. Small 
entities include small businesses, small not-for-profit enterprises, 
and government entities with jurisdiction over populations of less than 
50,000.
    SIP approvals under section 110 and subchapter I, Part D of the 
Clean Air Act (CAA) do not create any new requirements, but simply 
approve requirements that the state is already imposing. Therefore, 
because the Federal SIP approval does not impose any new requirements, 
EPA certifies that it does not have a significant impact on any small 
entities affected. Moreover, due to the nature of the Federal-state 
relationship under the CAA, preparation of a regulatory flexibility 
analysis would constitute Federal inquiry into the economic 
reasonableness of state action. The CAA forbids EPA to base its actions 
concerning SIPs on such grounds (Union Electric Co. v. U.S. E.P.A., 427 
U.S. 246, 256-66 (S.Ct. 1976); 42 U.S.C. 7410(a)(2)).
    This action has been classified as a Table 3 action for signature 
by the Regional Administrator under the procedures published in the 
Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by a 
July 10, 1995, memorandum from Mary Nichols, Assistant Administrator 
for Air and Radiation. The Office of Management and Budget (OMB) has 
exempted this regulatory action from E.O. 12866 review.

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 

[[Page 4901]]
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 this SIP revision, the state has elected to 
adopt the program provided for under section 110 of the CAA. These 
rules may bind state and local governments to perform certain actions 
and also require the private sector to perform certain duties. To the 
extent that the rules being finalized for approval by this action will 
impose new requirements, sources are already subject to these 
regulations under state law. Accordingly, no additional costs to state 
or local governments, or to the private sector, result from this final 
action. EPA has also determined that this final action does not include 
a mandate that may result in estimated costs of $100 million or more to 
tribal, state, or local governments in the aggregate or to the private 
sector.
    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 April 9, 1996. 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 in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Hydrocarbons, Incorporation by reference, Intergovernmental relations, 
Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and 
recordkeeping requirements, Sulfur oxides, Volatile organic compounds.

    Dated: November 22, 1995.
Dennis Grams,
Regional Administrator.

    Part 52, 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. 7401-7671q.

Subpart CC--Nebraska

    2. Section 52.1420 is amended by adding paragraph (c)(43) to read 
as follows:


Sec. 52.1420  Identification of plan.

* * * * *
    (c) *  *  *
    (43) On June 14, 1995, the Director of the Nebraska Department of 
Environmental Quality submitted revisions to the State Implementation 
Plan (SIP) to modify the Class II operating permit program.
    (i) Incorporation by reference.
    (A) Revised rules ``Title 129--Nebraska Air Quality Regulations,'' 
effective May 29, 1995. This revision applies to chapters 5, 7, 12, 17, 
19, 25, 41 and deletes chapters 42, 43 and 44.
    (ii) Additional material.
    (A) None.
    3. Section 52.1424 is added to read as follows:


Sec. 52.1424  Operating permits.

    Emission limitations and related provisions which are established 
in Nebraska operating permits as Federally enforceable conditions shall 
be enforceable by EPA. The EPA reserves the right to deem permit 
conditions not Federally enforceable. Such a determination will be made 
according to appropriate procedures and be based upon the permit, 
permit approval procedures, or permit requirement which do not conform 
with the operating permit program requirements or the requirements of 
EPA underlying regulations.

[FR Doc. 96-2830 Filed 2-8-96; 8:45 am]
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