[Federal Register Volume 61, Number 29 (Monday, February 12, 1996)]
[Rules and Regulations]
[Pages 5297-5299]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-2975]


40 CFR Part 52

[NE-7-1-71549; FRL-5399-7]

Approval and Promulgation of Implementation Plans; State of 

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.


SUMMARY: By this action the EPA gives full approval to the State 
Implementation Plan (SIP) submitted by the state of Nebraska for the 
purpose of fulfilling the requirements set forth in the EPA's General 
Conformity rule. The SIP was submitted by the state to satisfy the 
Federal requirements in 40 CFR 51.852 and 93.151.

DATES: This action is effective April 12, 1996 unless by March 13, 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 Planning and Development 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: Lisa V. Haugen at (913) 551-7877.

SUPPLEMENTARY INFORMATION: Section 176(c) of the Clean Air Act, as 
amended (the Act), requires the EPA to promulgate criteria and 
procedures for demonstrating and ensuring conformity of Federal actions 
to an applicable implementation plan developed pursuant to section 110 
and Part D of the Act. Conformity to an SIP is defined in the Act as 
meaning conformity to an SIP's purpose of eliminating or reducing the 
severity and number of violations of 

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the National Ambient Air Quality Standards (NAAQS), and achieving 
expeditious attainment of such standards. The Federal agency 
responsible for the action is required to determine if its actions 
conform to the applicable SIP. On November 30, 1993, the EPA 
promulgated the final rule (hereafter referred to as the General 
Conformity rule), which establishes the criteria and procedures 
governing the determination of conformity for all Federal actions, 
except Federal highway and transit actions.
    The General Conformity rule also establishes the criteria for EPA 
approval of SIPs. See 40 CFR 51.851 and 93.151. These criteria provide 
that the state provisions must be at least as stringent as the 
requirements specified in EPA's General Conformity rule, and that they 
can be more stringent only if they apply equally to Federal and non-
Federal entities (section 51.851(b)).
    On November 6, 1991, the EPA promulgated a nonattainment 
designation for the area surrounding the Asarco lead refinery in Omaha, 
Nebraska, in response to violations of the lead NAAQS. Sections 51.851 
and 93.151 of the General Conformity rule require that states submit an 
SIP revision containing the criteria and procedures for assessing the 
conformity of Federal actions to the applicable SIP, within 12 months 
after November 30, 1993. As the rule applies to all nonattainment areas 
and maintenance areas, an SIP revision which addresses the requirements 
of the General Conformity rule became due on November 30, 1994.
    On June 14, 1995, the state of Nebraska submitted an SIP revision 
meeting the requirements of Secs. 51.851 and 93.151 of the General 
Conformity rule. The submission adopts by reference 40 CFR part 93, 
subpart B, except 40 CFR 93.151. The omitted section contains the 
criteria for EPA approval of General Conformity SIP revisions, and also 
states the effect of EPA approval of an SIP revision. It is not a 
necessary component of the state's substantive rules governing general 
conformity determinations.
    The Nebraska rule also modifies 40 CFR 93.160(f) and 40 CFR 
93.160(g) to adapt the language in the Federal regulations to the state 
rule. It deletes the language in 93.160(f) stating that the 
``implementation plan revision required in Sec. 93.151 shall provide 
that,'' and retains the substantive requirement in paragraph (f). It 
also revises paragraph (g) to refer to adoption and approval of the 
Nebraska SIP revision, in place of the reference in EPA's rule to SIP 
revisions generally.
    This SIP revision was adopted by the Nebraska Environmental Council 
on December 2, 1994. The rule was signed by the Governor on May 24, 
1995, and became effective on May 29, 1995.
    Because the Nebraska rule adopts the substantive requirements of 
EPA's rule by reference, it meets the criteria in Secs. 51.851 and 
93.151 for approval of General Conformity SIP revisions.

EPA Action

    By this action EPA grants full approval of Nebraska's June 14, 
1995, submittal. This SIP revision meets all of the requirements set 
forth in 40 CFR 51.851 and 93.151.
    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 
    SIP approvals under section 110 and subchapter I, Part D of the 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 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 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, 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 
state or local governments in the aggregate or to the private sector. 
EPA has determined that these rules result in no additional costs to 
tribal government.
    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 12, 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 

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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, Incorporation by 
reference, Intergovernmental relations, Lead, Reporting and 
recordkeeping requirements.

    Dated: November 14, 1996.
Dennis Grams,
Regional Administrator.

    Part 52, chapter I, title 40 of the Code of Federal Regulations is 
amended as follows:


    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)(42) to read 
as follows:

Sec. 52.1420  Identification of plan.

* * * * *
    (c) * * *
    (42) A Plan revision was submitted by the Nebraska Department of 
Environmental Quality on June 14, 1995, which incorporates by reference 
EPA's regulations relating to determining conformity of general Federal 
actions to State or Federal Implementation Plans.
    (i) Incorporation by reference.
    (A) A revision to title 129, adding chapter 40, entitled ``General 
Conformity'' was adopted by the Environmental Quality Council on 
December 2, 1994, and became effective on May 29, 1995.

[FR Doc. 96-2975 Filed 2-9-96; 8:45 am]