[Federal Register Volume 66, Number 77 (Friday, April 20, 2001)]
[Rules and Regulations]
[Pages 20196-20199]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-9741]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 81

[Region 7 Tracking No. 0124-1124(b); FRL-6968-5]


Approval and Promulgation of Implementation Plans; State of 
Nebraska

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is announcing the redesignation of the lead nonattainment 
area in eastern Douglas County, Nebraska, to attainment of the National 
Ambient Air Quality Standards (NAAQS). EPA is also approving a revision 
to the Nebraska State Implementation Plan (SIP) for maintenance of the 
lead standard in the eastern Douglas County area.

DATES: This direct final rule will be effective June 19, 2001 unless 
EPA receives adverse comments by May 21, 2001. If adverse comments are 
received, EPA will publish a timely withdrawal of the direct final rule 
in the Federal Register informing the public that the rule will not 
take effect.

ADDRESSES: Comments may be mailed to Kim Johnson, Environmental 
Protection Agency, Air Planning and Development Branch, 901 North 5th 
Street, Kansas City, Kansas 66101.
    Copies of documents relative to this action are available for 
public inspection during normal business hours at the above listed 
Region 7 location. The interested persons wanting to examine these 
documents should make an appointment with the office at least 24 hours 
in advance.

FOR FURTHER INFORMATION CONTACT: Kim Johnson at 913-551-7975.

SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we, us, 
or our'' is used, we mean EPA. This section provides additional 
information by addressing the following questions:

What is a SIP?
What is the Federal approval process for a SIP?
What does Federal approval of a state regulation mean to me?
What requirements must be followed for redesignation to attainment?
What is being addressed in this document?
Have the requirements for approval of a SIP revision and 
redesignation to attainment been met?
What action is EPA taking?

What Is a SIP?

    Section 110 of the Clean Air Act (CAA) requires states to develop 
air pollution regulations and control strategies to ensure that state 
air quality meets the national ambient air quality standards 
established by EPA. These ambient standards are established under 
section 109 of the CAA, and they currently address six criteria 
pollutants. These pollutants are: carbon monoxide, nitrogen dioxide, 
ozone, lead, particulate matter, and sulfur dioxide.
    Each state must submit these regulations and control strategies to 
us for approval and incorporation into the Federally enforceable SIP.
    Each Federally approved SIP protects air quality primarily by 
addressing air pollution at its point of origin. These SIPs can be 
extensive, containing state regulations or other enforceable documents 
and supporting information such as emission inventories, monitoring 
networks, and modeling demonstrations.

What Is the Federal Approval Process for a SIP?

    In order for state regulations to be incorporated into the 
Federally enforceable SIP, states must formally adopt the regulations 
and control strategies consistent with state and Federal requirements. 
This process generally includes a public notice, public hearing, public 
comment period, and a formal adoption by a state-authorized rulemaking 
body.
    Once a state rule, regulation, or control strategy is adopted, the 
state submits it to us for inclusion into the SIP. We must provide 
public notice and seek additional public comment regarding the proposed 
Federal action on the state submission. If adverse comments are 
received, they must be addressed prior to any final Federal action by 
us.

[[Page 20197]]

    All state regulations and supporting information approved by EPA 
under section 110 of the CAA are incorporated into the Federally 
approved SIP. Records of such SIP actions are maintained in the Code of 
Federal Regulations (CFR) at Title 40, Part 52, entitled ``Approval and 
Promulgation of Implementation Plans.'' The actual state regulations 
which are approved are not reproduced in their entirety in the CFR 
outright but are ``incorporated by reference,'' which means that we 
have approved a given state regulation with a specific effective date.

What Does Federal Approval of a State Regulation Mean to Me?

    Enforcement of the state regulation before and after it is 
incorporated into the Federally approved SIP is primarily a state 
responsibility. However, after the regulation is Federally approved, we 
are authorized to take enforcement action against violators. Citizens 
are also offered legal recourse to address violations as described in 
section 304 of the CAA.

What Requirements Must Be Followed for Redesignation to Attainment?

    Under section 307(d) of the CAA, we are required to promulgate 
designations of areas identifying their status with respect to 
attainment of the ambient standards described previously. We are 
required to determine whether each area is attaining the standard, not 
attaining the standard, or cannot be designated based on available 
information. Once an area is designated as nonattainment for a 
standard, it cannot be redesignated to attainment until the 
requirements of section 107(d)(3)(E) of the CAA are met. These 
requirements are discussed below, and include a revision to the SIP to 
show how the state, in which the area is located, plans to maintain the 
standards in the future in the area to be redesignated to attainment.

What Is Being Addressed in This Document?

    We are redesignating the nonattainment area in eastern Douglas 
County, Nebraska, to attainment for lead and taking final action to 
approve the maintenance plan submitted by Nebraska to revise its lead 
SIP.
    The basis for our approval of the rule is described in this notice, 
and in more detail in the technical support document (TSD) prepared for 
this action. The TSD is available at the address identified above.
    The purpose of the submittal is to meet the criteria under section 
107(d)(3) of the Clean Air Act Amendments (CAAA) for redesignation of 
the nonattainment area in eastern Douglas County to attainment for the 
lead standard.
    The area was designated as nonattainment for lead on January 6, 
1992. The boundaries of the nonattainment area, located in the City of 
Omaha, are as follows:
    Jones Street on the south;
    Eleventh Street on the west;
    Avenue H and the Nebraska-Iowa border on the north; and
    the Missouri River on the east.
    The Asarco--Omaha facility, which was located in the middle of the 
nonattainment area as described above, was the only major source of 
lead in this area after 1982. The Asarco--Omaha facility ceased 
operations on December 31, 1997 and began the process of demolition 
with agreement under the Nebraska Remedial Action Plan Monitoring Act 
(RAPMA) program. Demolition activity was completed in late 1999. The 
area was stabilized with a six-inch clean soil cap to prevent erosion.
    Section 107(d)(3) of the CAAA establishes the five requirements to 
be met before we can designate an area from nonattainment area to 
attainment. These are:
    A. The area has attained the NAAQS;
    B. The area has a fully approved SIP under section 110(k) of the 
act;
    C. We have determined that the improvement in air quality is due to 
permanent and enforceable emissions reductions;
    D. We have determined that the maintenance plan for the area has 
met the requirements of section 175A of the Act and;
    E. The state has met all requirements applicable to the area under 
section 110 and part D.

Attainment of the NAAQS

    The state submittal provided ambient air monitor data showing that 
this area has consistently shown compliance with the NAAQS for lead 
since the third quarter of 1997. The NAAQS for lead is 1.5 micrograms 
per cubic meter (1.5 g/m\3\), maximum quarterly average. A 
quarterly average is considered a violation of the standard if it is at 
least 1.6 g/m\3\ when rounded to the tenths from the 
hundredths place when monitored.

Fully Approved SIP

    EPA initially fully approved the Nebraska lead SIP for Omaha in 
1987. That approval was under the applicable requirements of section 
110 of the Act. As a result of continuing monitored violations in the 
area, and in response to additional requirements added by the 1990 
Amendments to the Act, Nebraska submitted a part D nonattainment SIP 
for the Asarco facility on December 22, 1993, in the form of an 
enforceable Compliance Order. On this same day, Asarco filed an 
administrative appeal of the Order which stayed enforcement of the 
Order until a decision was issued by the Nebraska Department of 
Environmental Quality (NDEQ) administrator on June 2, 1995. An amended 
Order was then submitted to EPA on June 21, 1995. This Order was 
determined to be complete by EPA on July 13, 1995.
    On November 15, 1995, Asarco submitted a revised control strategy, 
based on rollback of production and facility reconfiguration. The NDEQ 
revised the Compliance Order and submitted it to EPA on August 28, 
1996. The Order included limitations to meet the requirements of Part D 
for attainment of the NAAQS, and contingency measures to be implemented 
in case of failure to achieve reasonable further progress toward 
attainment, or to attain the lead standard by the applicable attainment 
date. EPA approved this revision on March 20, 1997 (52 FR 1420).
    With the shutdown of the Asarco facility on December 31, 1997, and 
subsequent demolition, the provisions of the 1996 lead SIP revision are 
no longer applicable. The current SIP submittal reflects the shutdown 
and demolition of the Asarco facility.

Permanent and Enforceable Emissions Reductions

    The permanent closure and demolition activities at the Asarco 
facility are complete. The attainment of the lead standard is directly 
related to the permanent cessation of the lead emissions from closing 
and demolishing this facility and reclaiming the site.

Fully Approved Maintenance Plan

    Section 175A of the Act requires that the plan include measures as 
necessary to ensure maintenance of the standard for at least ten years 
after redesignation, including contingency measures meeting the 
requirements of section 175A(d). Due to the fact that the only 
significant source of lead in this nonattainment area has been 
permanently closed and demolished, and the 1996 lead SIP identified no 
other lead sources for which regulation was necessary for attainment, 
the maintenance plan for the area is limited. The state is committed to 
continuing a limited monitoring network to measure ambient lead 
concentrations in the area. In addition, any new lead source which may 
be interested in constructing in this

[[Page 20198]]

area would be required to meet the state's new source preconstruction 
permitting rules. These rules are designed to ensure that emission 
increases from new source growth will not cause a violation of a NAAQS.
    EPA has determined that the complete elimination of the lead 
emissions which caused the nonattainment problem in the area justifies 
the minimal maintenance plan, and that additional measures, including 
contingency measures, are unavailable for the area.

Part D and Section 110

    The state has met these requirements by submitting and implementing 
the nonattainment plan to bring the area back into attainment and by 
continuing to monitor the ambient air quality during and after 
demolition and reclamation of the area.

Have the Requirements for Approval of a SIP Revision and 
Redesignation to Attainment Been Met?

    The state submittal has met the public notice requirements for SIP 
submissions in accordance with 40 CFR 51.102. The submittal also 
satisfied the completeness criteria of 40 CFR part 51, appendix V. In 
addition, as explained above and in more detail in the technical 
support document which is part of this document, the revision meets the 
substantive SIP requirements of the CAA, including section 110 and 
implementing regulations. The state submittal also meets the criteria 
for redesignation to attainment in section 107(d)(3) of the CAA, as 
explained above and in the TSD.

What Action Is EPA Taking?

    We are taking final action to approve the revision to the Nebraska 
lead SIP as an amendment to the SIP and redesignate the nonattainment 
area in eastern Douglas County, Nebraska, to attainment for lead.
    We are processing this action as a final action because the area 
has been attaining the lead standard since 1997 based on monitored 
data, and because the major lead source in the nonattainment area has 
been demolished and the area surrounding the source has been reclaimed. 
Therefore, we do not anticipate any adverse comments.

Administrative Requirements

    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. This action 
merely approves state law as meeting Federal requirements and imposes 
no additional requirements beyond those imposed by state law. In 
addition, a redesignation to attainment does not impose additional 
requirements. 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 preexisting 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 (Public Law 104-4). For the same 
reason, this rule also does not significantly or uniquely affect the 
communities of tribal governments, as specified by Executive Order 
13084 (63 FR 27655, May 10, 1998). This rule will 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), because it 
merely approves a state rule implementing a Federal standard and a 
state request for redesignation, and does not alter the relationship or 
the distribution of power and responsibilities established in the CAA. 
This rule also is not subject to Executive Order 13045 (62 FR 19885, 
April 23, 1997), because it is not economically significant.
    In reviewing SIP submissions and requests for redesignation, our 
role is to approve state choices, provided that they meet the criteria 
of the CAA. In this context, in the absence of a prior existing 
requirement for the state to use voluntary consensus standards (VCS), 
we have 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 CAA. 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. As required by section 3 
of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing 
this rule, we have taken the necessary steps to eliminate drafting 
errors and ambiguity, minimize potential litigation, and provide a 
clear legal standard for affected conduct. EPA has complied with 
Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the 
takings implications of the rule in accordance with the ``Attorney 
General's Supplemental Guidelines for the Evaluation of Risk and 
Avoidance of Unanticipated Takings'' under the Executive Order. 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. We will submit a report containing this rule and other 
required information to the United States Senate, the United States 
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 CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by June 19, 2001. 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, 
Hydrocarbons, Intergovernmental relations, Lead, Nitrogen dioxide, 
Ozone, Particulate matter, Reporting and recordkeeping requirements, 
Sulfur oxides.

40 CFR Part 81

    Environmental protection, Air pollution control.

    Dated: April 11, 2001.
William A. Spratlin,
Acting Regional Administrator, Region 7.


    Chapter I, title 40 of the Code of Federal Regulations is amended 
as follows:

[[Page 20199]]

PART 52--[AMENDED]

    1. The authority citation for part 52 continues to read as follows:

    Authority: 42 U.S.C. 7401 et seq.

Subpart CC--Nebraska

    2. In Sec. 52.1420(e) the table is amended by:
    a. Adding the entry for Nebraska Lead SIP at the end of the table, 
to read as follows:


Sec. 52.1420  Identification of plan.

* * * * *
    (e) * * *

                                                     EPA-Approved Nebraska Nonregulatory Provisions
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                                                                     State
 Name of nonregulatory SIP provision   Applicable geographic or    submittal                  EPA approval date                         Comments
                                          nonattainment area         date
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                   *                  *                  *                  *                  *                  *                  *
Nebraska Lead Maintenance SIP........  Omaha...................      1/18/01   4/20/01
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PART 81--[AMENDED]

    1. The authority citation for part 81 continues to read as follows:

    Authority: 42 U.S.C. 7401 et seq.

Subpart C--Section 107 Attainment Status Designations

    2. The table in Sec. 81.328 entitled ``Nebraska Lead'' is amended 
to revise the entry for Douglas County to read as follows:


Sec. 81.328  Nebraska

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                                                 Nebraska--Lead
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                                       Designation                             Classification
       Designated area       -----------------------------------------------------------------------------------
                                    Date           Type                      Date                       Type
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Douglas County (part):
    Portion of city of Omaha  4/20/01          Attainment
     bounded by: Jones
     Street on the south,
     Eleventh Street on the
     west, Avenue H and the
     Nebraska-Iowa border on
     the north, and the
     Missouri River on the
     east.
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[FR Doc. 01-9741 Filed 4-19-01; 8:45 am]
BILLING CODE 6560-50-P