[Federal Register Volume 67, Number 103 (Wednesday, May 29, 2002)]
[Rules and Regulations]
[Pages 37325-37328]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-13248]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 70

[NE 156-1156a; FRL-7218-2]


Approval and Promulgation of Implementation Plans and Operating 
Permit Program; State of Nebraska

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is announcing it is approving revisions to the Nebraska 
State Implementation Plan (SIP), Operating Permit Program, and Air 
Toxics Program. These revisions will ensure consistency between the 
state and Federally-approved rules, and ensure Federal enforceability 
of the state's air program.

DATES: This direct final rule will be effective July 29, 2002, unless 
EPA receives adverse comments by June 28, 2002. 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 Lynn M. Slugantz, 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: Lynn M. Slugantz at (913) 551-7883.

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 is the Part 70 Operating Permit Program?
    What is Being Addressed in This Action?
    Have the Requirements for Approval of a SIP Revision and Part 70 
Program Revision 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.
    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,

[[Page 37326]]

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 Is the Part 70 Operating Permit Program?

    The CAA Amendments of 1990 require all states to develop an 
operating permit program that meets certain Federal criteria listed in 
40 CFR part 70. In implementing this program, the states are to require 
certain sources of air pollution to obtain permits that contain all 
applicable requirements under the CAA. One purpose of the part 70 
operating permit program is to improve enforcement by issuing each 
source a single permit that consolidates all of the applicable CAA 
requirements into a Federally-enforceable document. By consolidating 
all of the applicable requirements for a facility into one document, 
the source, the public, and the permitting authorities can more easily 
determine what CAA requirements apply and how compliance with those 
requirements is determined.
    Sources required to obtain an operating permit under this program 
include ``major'' sources of air pollution and certain other sources 
specified in the CAA or in our implementing regulations. For example, 
all sources regulated under the acid rain program, regardless of size, 
must obtain permits. Examples of major sources include those that emit 
100 tons per year or more of volatile organic compounds, carbon 
monoxide, lead, sulfur dioxide, nitrogen dioxide, or particulate matter 
less than 10 micrometers in size (PM10); those that emit 10 
tons per year of any single hazardous air pollutant (HAP) (Specifically 
listed under the CAA); or those that emit 25 tons per year or more of a 
combination of HAPs.
    Revisions to the state and local agencies' operating permit program 
are subject to public notice, comment, and our approval. Because the 
state's operating permit rules are approved pursuant to both part 70 
and section 112(l), some of the revised rules are also approved 
pursuant to section 112(l).

What Is Being Addressed in This Action?

    The Nebraska Department of Environmental Quality (NDEQ) has adopted 
changes to its Title 129--Nebraska Air Quality Regulations and has 
requested that EPA approve these changes as a revision to the Nebraska 
SIP.
    Nebraska has also asked that changes also be approved as revisions 
to the Title V Operating Permit Program, and [sect] 112(l) Air Toxics 
Program. The changes to Title 129 were approved by the Nebraska 
Environmental Quality Council at its September 4, 1998, and March 23, 
2000, hearings, with effective dates of December 15, 1998, and August 
22, 2000, respectively. Also, on January 23, 2002, NDEQ sent EPA a 
letter which provided further explanation regarding a modification made 
to section 014 of Chapter 17, ``Construction Permits--When Required.''
    The following is a description of the changes to Nebraska's Title 
129:
    1. Applicable Requirement Definition. The definition of applicable 
requirement in Chapter 1, 014.04 was revised to reference Chapter 23 
emission standards for Hazardous Air Pollutants (HAPs) in addition to 
the already existing reference to Chapters 27 and 28.
    2. Updates to Reference-type Materials. The version of the SIC Code 
Manual cited in Chapter 1, 018 was updated to 1987.
    3. Volatile Organic Compound (VOC) Exemption Update. Chapter 1, 109 
was revised to add 16 additional compounds to the list of organic 
compounds which have been determined to have negligible reactivity.
    4. Transferral of Stack Height Rules. Four definitions from Chapter 
1 related to Stack Height Good Engineering Practice (032, 040, 049, and 
061) were transferred to new regulations added to Chapter 16 (new 004, 
005, 006, 007, 008). These rules have previously been approved by EPA.
    5. Significance Levels for Landfills. In Chapter 1, 094, a trigger 
level for ``Municipal solid waste landfill emissions'' was added to the 
definition of ``significant'' in Chapter 1.
    6. Requirements for Permit Compliance Certification. Chapter 7, 
006.02I4 was revised to replace ``enhanced monitoring'' with 
``compliance assurance or periodic monitoring'' consistent with 
terminology used in corresponding regulations.
    7. Annual Certification of Risk Management Plans. Chapter 8, 011.02 
was revised to correct a typographical error in a citation, from 
Chapter 7, 002 to Chapter 7, 006.02I3.
    8. Compliance with Terms of Construction Permit. Chapter 17, 002.01 
was added to reinforce that permit non-compliance is not allowed.
    9. Modification of a Construction Permit. Chapter 17, 014 was added 
to allow for modification of construction permits without public notice 
procedures under tightly limited circumstances. The revision allows the 
Director the means to address construction permit provisions which in 
hindsight could or should have been written differently, without 
undergoing a full permit revision process where there is no 
environmental impact. On January 23, 2002, NDEQ sent EPA a letter which 
responded to EPA's concerns that this change not allow sources to 
modify an existing construction permit which would allow significant 
emissions of a pollutant not previously emitted or which should require 
a new Best Available Control Technology (BACT) analysis. The NDEQ's 
letter explains its process for review of requests for changes under 
this section and for assuring that only modifications meeting the 
criteria of the rule are approved under this process.
    10. Update to CFR Citation. The CFR citation in Chapter 19, 001 was 
updated to July 1, 1997, which, among other things, updates the 
definition of ``significant'' to include a trigger level for municipal 
solid waste landfill emissions.
    11. Opacity of Particulate Emissions. Chapter 20, 005 was revised 
to allow for evaluation of opacity using an EPA-approved method other 
than Method 9 in Appendix A of 40 CFR part 60, as long as the alternate 
method is agreed upon by NDEQ and EPA.
    12. Compliance Assurance Monitoring. Chapter 31, 001 was revised to 
adopt by reference the Federal compliance assurance monitoring (CAM) 
rule as found at 40 CFR part 64, effective July 1, 1999. Previously, 
EPA had not approved Chapter 31 as part of NDEQ's Title V program. 
Today, EPA is adding the chapter to the list of those chapters of Title 
129 which are approved as part of Nebraska's Title V Operating Permit 
Program.
    13. Emission Sources, Testing, Monitoring. Chapter 34, 007 was 
revised to require performance tests ``if required'' rather than every 
time a new or modified source becomes operational.
    14. Updates to Reference-type Materials. The reference to the Test 
Methods for Evaluating Solid Waste in

[[Page 37327]]

Chapter 34, 002.06, was updated to 1997.
    15. Location of Federal Documents. Chapter 41, 007 was added to 
clarify that copies of the substantial Federal documents (Code of 
Federal Regulations and Federal Register) adopted by reference are 
located and available at NDEQ's office.

Have the Requirements for Approval of a SIP Revision and Part 70 
Program Revision Been Met?

    The state submittal has met the public notice requirements for SIP 
submissions in accordance with 40 CFR 51.102. The submittal also 
satisfies 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. Finally, the submittal meets the substantive 
requirements of Title V of the 1990 CAA Amendments and 40 CFR part 70.

What Action is EPA Taking?

    We are processing this action as a direct final action because the 
revisions make routine changes to the existing rules which are 
noncontroversial. Therefore, we do not anticipate any adverse comments. 
Please note that if EPA receives adverse comment on an amendment, 
paragraph, or section of this rule and if that provision is severed 
from the remainder of the rule, EPA may adopt as final those provisions 
of the rule that are not the subject of an adverse comment.
    Final Action: EPA is approving as an amendment to the Nebraska SIP 
regulatory changes to Title 129, Chapters 1, 7, 8, 16, 17, 19, 20, 34 
and 41. EPA is also approving as an amendment to the Nebraska Title V 
operating permit program changes to Title 129 Chapters 1, 7, 8, 31, and 
41. Finally, EPA is approving pursuant to section 112(l) revisions to 
Chapters 7 and 8.

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. For this 
reason, this action is also not subject to Executive Order 13211, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This action 
merely approves state law as meeting Federal requirements and imposes 
no additional requirements beyond those imposed by state law. 
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 (Pub. L. 104-4).
    This rule also does not have tribal implications because it will 
not have a substantial direct effect on one or more Indian tribes, on 
the relationship between the Federal Government and Indian tribes, or 
on the distribution of power and responsibilities between the Federal 
Government and Indian tribes, as specified by Executive Order 13175 (65 
FR 67249, November 9, 2000). This action also does not have Federalism 
implications because it does 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). This action merely approves a state rule 
implementing a Federal standard, 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, ``Protection of 
Children from Environmental Health Risks and Safety Risks'' (62 FR 
19885, April 23, 1997), because it is not economically significant.
    In reviewing SIP submissions, EPA's 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), EPA has 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. 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. EPA will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. 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 July 29, 2002. 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, Intergovernmental 
relations, Reporting and recordkeeping requirements, Volatile organic 
compound.

40 CFR Part 70

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

    Dated: May 16, 2002.
Karen A. Flournoy,
Acting Regional Administrator, Region 7.


    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 et seq.

Subpart CC--Nebraska

    2. In [sect] 52.1420 the table in paragraph (c) is amended by:
    a. Revising the entry for ``129-1''.
    b. Revising the entry for ``129-7''.

[[Page 37328]]

    c. Revising the entry for ``129-8''.
    d. Revising the entry for ``129-16''.
    e. Revising the entry for ``129-17''.
    f. Revising the entry for ``129-19''.
    g. Revising the entry for ``129-20''.
    h. Revising the entry for ``129-34''.
    i. Revising the entry for ``129-41''.
    The revisions read as follows:


[sect] 52.1420  Identification of Plan.

* * * * *
    (c) * * *

                                        EPA-Approved Nebraska Regulations
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                                                    State
  Nebraska  citation             Title            effective       EPA approval date             Comments
                                                     date
----------------------------------------------------------------------------------------------------------------
                             STATE OF NEBRASKA--DEPARTMENT OF ENVIRONMENTAL QUALITY
----------------------------------------------------------------------------------------------------------------
129-1................  Definitions.............    8/22/2000  [May 29, 2002, and FR
                                                               cite]
 
                                                  * * * * * * *
129-7................  Operating Permits--         8/22/2000  [May 29, 2002, and FR
                        Application.                           cite]
129-8................  Operating Permit Content    8/22/2000  [May 29, 2002, and FR
                                                               cite]
 
                                                  * * * * * * *
129-16...............  Stack Heights; Good        12/15/1998  [May 29, 2002, and FR
                        Engineering Practice                   cite]
                        (GEP).
129-17...............  Construction Permits--      8/22/2000  [May 29, 2002, and FR     Also refer to January
                        When Required.                         cite]                     23, 2002, NDEQ letter
                                                                                         to EPA regarding change
                                                                                         to 129-17-014.
129-19...............  Prevention of              12/15/1998  [May 29, 2002, and FR
                        Significant                            cite]
                        Deterioration of air
                        Quality.
129-20...............  Particulate Emissions;      8/22/2000  [May 29, 2002, and FR
                        Limitations and                        cite]
                        Standards (Exceptions
                        due to Breakdowns of
                        Scheduled Maintenance:
                        See Chapter 34).
 
                                                  * * * * * * *
129-34...............  Emission Sources;           8/22/2000  [May 29, 2002, and FR
                        Testing; Monitoring.                   cite]
 
                                                  * * * * * * *
129-41...............  General Provision.......   12/15/1998  [May 29, 2002, and FR
                                                               cite]
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

PART 70--[AMENDED]

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

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


    2. Appendix A to Part 70 is amended by adding under ``Nebraska; 
City of Omaha; Lincoln-Lancaster County Health Department'' paragraph 
(e) to read as follows:

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

* * * * *

Nebraska; City of Omaha; Lincoln-Lancaster County Health Department

* * * * *
    (e) The Nebraska Department of Environmental Quality submitted 
the following program revisions on June 29, 2001; NDEQ Title 129, 
Chapters 1 and 41, effective December 15, 1998; and NDEQ Title 129, 
Chapters 1, 7, 8, and 31, effective on August 22, 2000.
* * * * *
[FR Doc. 02-13248 Filed 5-28-02; 8:45 am]
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