[Federal Register Volume 61, Number 31 (Wednesday, February 14, 1996)]
[Rules and Regulations]
[Pages 5699-5701]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-3233]



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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52

[NE-9-1-7220a; FRL-5409-6]


Approval and Promulgation of Implementation Plans and Approval of 
112(l) Authority; Lincoln-Lancaster County Health Department (LLCHD) 
and City of Omaha (Nebraska)

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: This final action approves the State Implementation Plan (SIP) 
submitted by the state of Nebraska on behalf of the two local air 
pollution control agencies. The state has an approved program 
(published in the Federal Register on January 4, 1995), and the local 
agencies have adopted the same regulatory framework in order to issue 
Federally enforceable Class II permits. This request is sound, since 
the local agencies will administer independent Title V programs and 
should also offer relevant sources the alternative Class II permits. 
Furthermore, all applicable sources in the state (and in the local 
agencies' jurisdiction) are already subject to the requirements of the 
Class II operating permit program. Therefore, the only practical change 
created by this SIP revision for sources in Omaha or Lincoln-Lancaster 
County is that these Class II permits will be issued by the local 
agencies instead of the state.
    This revision includes the creation of a Class II operating permit 
program and adopts the state's Part D (nonattainment) new source review 
rule changes, SO2 rule corrections, and provisions for compliance 
and enforcement information. These revisions are identical to those 
adopted by the state and have been approved by EPA in the January 4, 
1995 Federal Register. The EPA's rationale for that approval is 
contained in the cited Federal Register document and in the ``Technical 
Support Document (TSD) for a Revision to the Nebraska SIP and Request 
for Approval under Section 112(l)'' dated August 12, 1994, which is 
also part of the rationale for this approval.
    The creation of a Class II operating permit program enables the 
local agencies, like the state, to have a Federally enforceable program 
for sources not covered by the requirements for Title V sources under 
the Clean Air Act Amendments of 1990 and part 70 of the Code of Federal 
Regulations (CFR), and for sources not subject to Title V because they 
are able to obtain a Class II permit.

DATES: This action is effective April 15, 1996 unless by March 15, 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 and 
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 sources not otherwise subject to Title V which became effective on 
March 6, 1995. Thereafter, the two local agencies adopted the state's 
regulations in order to create Class II operating permit programs in 
their respective jurisdictions as well.
    Specifically, the LLCHD has used Title 129 (Nebraska's Air Quality 
Regulations) to create the ``Lincoln-Lancaster County Air Pollution 
Control Program'' (adopted May 16, 1995), but uses a different 
reference system (article and section) instead of Title 129's system of 
chapter and section. Nevertheless, the content of the local program 
rules as it applies to operating permits is identical to Title 129. The 
city of Omaha has incorporated the state's regulation by reference 
(adopted March 23, 1995).
    Following the adoption of these rules, the state submitted a 
request on May 31, 1995, on behalf of LLCHD to completely replace the 
LLCHD portion of the SIP with the regulations cited above to create a 
Federally enforceable Class II program. On June 2, 1995, the state 
submitted a similar request on behalf of the city of Omaha for the same 
purpose. The state has also requested approval of these programs 
pursuant to section 112(l) of the Act, which governs state programs for 
regulation of hazardous air pollutants (HAP).
    Since the local agencies use the same regulatory basis as the 
state's, and this revision merely enables the local agencies to 
administer the requirements that sources in their jurisdictions are 
already subject to, this notice does not duplicate the topics addressed 
at 60 FR 372-375 published in the Federal Register on January 4, 1995. 
The reader may consult that notice for a review of the provisions for 
which the EPA has already provided analysis and determined 
approvability. In summary, EPA reviewed the state, and subsequently the 
local, Class II programs to determine if they are consistent with the 
guidance for approval of Federally enforceable state operating permit 
programs (54 FR 27281, June 28, 1989). EPA determined that the state 
program is consistent with that guidance, and has now determined that 
the local programs meet the guidance as well.
    Furthermore, the reader may request the TSD for a revision to the 
Nebraska SIP and request for approval under section 112(l) dated August 
12, 1994, for a complete and thorough discussion of the revision as it 
relates to the state Class II program. The reader may also request the 
TSD for a revision to the Nebraska SIP creating a Class II Operating 
Permit Program for the city of Omaha and LLCHD dated September 1, 1995. 
These documents are available at 

[[Page 5700]]
the locations stated in the ADDRESSES section of this document.

Approval of 112(l) Authority

    The state has also requested that the local agencies' operating 
permits program be approved pursuant to section 112(l) of the Act. By 
approving the program under this provision, the local agencies may 
impose requirements for HAPs which are subject to EPA enforcement under 
the Clean Air Act (CAA). One effect of this rule is that limitations on 
potential-to-emit hazardous pollutants, issued in accordance with the 
approved program will be recognized as Federally enforceable by EPA. 
Thus, sources may voluntarily restrict their potential emissions of 
HAPs and be issued a Class II permit to avoid the more extensive 
requirements of Title V.
    In order to receive approval, the programs must meet specific 
criteria for approval under 112(l) which include:
    1. Adequate authority within the program to ensure compliance by 
all sources with each applicable standard, regulation, or requirement 
established by the Administrator. As part of the state's submittal to 
create the Class II program, an Attorney General's statement was 
provided which ensures necessary legal authority and compliance by all 
sources within the state. The local agencies have also provided 
statements of adequate authority from their legal counsels.
    2. Adequate authority to implement the program. As part of the 
state's SIP revision, appropriate copies of state statutes, 
regulations, and other requirements which contain the relevant 
provisions demonstrating authority to implement and enforce the state 
rule upon approval have been submitted to the EPA and deemed 
approvable. The local agencies have also submitted provisions which 
demonstrate adequate authority to implement the program.
    3. Adequate resources to implement the program. Both local agencies 
have committed to provide adequate resources in resource demonstrations 
that comprehensively address requirements of the Title V and SIP-based 
operating permit programs which is inclusive of 112(l) requirements.
    4. An expeditious schedule for implementing the program and 
ensuring compliance by the affected sources. Class II permit 
applications are due within 12 months of the effective date of the 
regulations (May 1995).
    Based on the review described above, the EPA is approving the Class 
II operating permit program for the control of air toxics that allow 
sources to limit their potential to emit of HAPs under section 112(l) 
of the Act.

Prevention of Significant Deterioration (PSD)

    Although the local agencies' adoption of the state's rules include 
PSD regulations, the EPA herein notes that only the state program 
includes an approved part 51 program to issue PSD permits. As part of 
the Class II program, the local agencies will act as agents of the 
state to administer and enforce requirements applicable under PSD, 
although only the state will actually issue these permits.

Variances

    Both local agencies have the authority to issue a variance from 
requirements imposed by state or local law based on Nebraska Revised 
Statute Sec. 81-1513.
    However, the EPA has no authority to approve provisions of state 
and local authority, such as the variance provisions, which are 
inconsistent with the Act. Thus, any proposed variance must be 
submitted as a request for a revision to the SIP.
    Furthermore, the EPA reserves the right to enforce provisions of 
the Act where the permitting authority purports to grant relief in a 
manner inconsistent with the requirements of the Act.

EPA Action

    EPA is taking final action to approve revisions submitted May 31 
and June 2, 1995, for the LLCHD and city of Omaha, respectively. All 
revisions discussed in this notice are considered approvable by the 
EPA. This action also approves the revisions under section 112(l) of 
the Act for these local programs.
    This action does not include several requirements unique to the 
local programs, such as the regulation of odors, which do not address 
CAA requirements. These excluded portions are specified in the TSD for 
this action, dated September 1, 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 document 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 a revision 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 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, 

[[Page 5701]]
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 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 15, 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: December 7, 1995.
William Rice,
Acting 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)(44) to read 
as follows:


Sec. 52.1420  Identification of plan.

* * * * *
    (c) * * *
    (44) On May 31 and June 2, 1995, the Director of the Nebraska 
Department of Environmental Quality (NDEQ) submitted revisions to the 
SIP to update the local ordinances of the Lincoln-Lancaster County 
Health Department and city of Omaha, respectively, and to create 
Federally enforceable Class II operating permit programs for these 
agencies.
    (i) Incorporation by reference.
    (A) 1993 Lincoln-Lancaster County Air Pollution Control Program, 
Version March 1995, effective May 16, 1995. This includes the following 
citations: Article I (except Section 6); Article II, Sections 1-12, 14-
17, 19-20, 22, 24-25, 32-38; and Appendix I.
    (B) Ordinance No. 33102 dated November 2, 1993, which adopts 
Chapter 41, Article I, Sections 41-4 through 41-6; 41-9; 41-10; Article 
II, Sections 41-23; 41-27; 41-38; and 41-40 and Article IV of the Omaha 
Municipal Code. Ordinance No. 33506 dated March 21, 1995, amends 
Chapter 41, Article I, Sections 41-2 and 41-9 of the Omaha Municipal 
Code and adopts Title 129, Nebraska Air Quality Regulations, approved 
December 2, 1994.
    (ii) Additional material.
    (A) Letter from the city of Omaha dated September 13, 1995, 
regarding adequate authority to implement section 112(l).
    (B) Letter from the NDEQ dated November 9, 1995, regarding rule 
omissions and PSD.
    3. Section 52.1427 is added to read as follows:


Sec. 52.1427  Operating permits.

    Emission limitations and related provisions which are established 
in the city of Omaha and Lincoln-Lancaster 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. 96-3233 Filed 2-13-96; 8:45 am]
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