[Federal Register Volume 68, Number 130 (Tuesday, July 8, 2003)]
[Rules and Regulations]
[Pages 40528-40531]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-17098]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 70

[NE 178-1178a; FRL-7523-1]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is announcing approval of revisions to the Nebraska State 
Implementation Plan (SIP) and Operating Permits Program. On September 
7, 2001, and May 10, 2002, the state updated its air program rules to 
be consistent with Federal requirements, to revise definitions, and to 
clarify applicability, reporting, and monitoring requirements. Approval 
of these revisions will ensure consistency between the state and 
Federally-approved rules, and ensure Federal enforceability of the 
state's revised air program rules.

DATES: This direct final rule will be effective September 8, 2003, 
unless EPA receives adverse comments by August 7, 2003. 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 Wayne Kaiser, Environmental 
Protection Agency, Air Planning and Development Branch, 901 North 5th 
Street, Kansas City, Kansas 66101, or E-mail him at 
[email protected].
    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: Wayne Kaiser at (913) 551-7603.

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 Permits Program?
What is being addressed in this document?
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 us. 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 us 
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 
Promulgations 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 
the CAA.

What Is the Part 70 Operating Permits Program?

    The CAA Amendments of 1990 require all states to develop operating 
permits programs that meet certain Federal criteria. 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 permits 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 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 permits program 
are also subject to public notice, comment, and our approval.

What Is Being Addressed in This Document?

    The state of Nebraska has requested that we approve as a revision 
to the Nebraska SIP, part 70 Operating Permits Program and section 
112(l) air toxics

[[Page 40529]]

program two recently adopted sets of revisions to Title 129. The first 
revision set was submitted to us on May 10, 2002, and included 
revisions to Chapters 1, 4, 5, 6, 20, 29, and 34. The second set of 
revisions was submitted on November 5, 2002, and included revisions to 
Chapters 1, 2, 4, 5, 6, 17, 20, 21, and 31. An overview of the 
revisions are discussed below.

Revisions Submitted on May 10, 2002

    Chapter 1--Definitions. A definition of ``deviation'' was added 
since this term is used in other rules; an exception clause was added 
to the definition of ``incineration,'' which exempts ``a furnace used 
by law enforcement personnel to dispose of ammunition, fireworks or 
similar flammable or explosive materials''; and the definition of 
``Volatile organic compound (VOC)'' was revised to add ``methyl 
acetate'' to the list of exempt VOCs. This revision is consistent with 
EPA's list of exempt VOCs at 40 CFR 51.100(s).
    Chapter 4--Ambient Air Quality Standards. In 1997 EPA promulgated 
new standards for fine particulate matter (PM2.5) and ozone. 
The state has adopted these ambient standards and also the data 
interpretation procedures of Appendix I and Appendix N of 40 CFR part 
50 for ozone and particulate matter.
    Chapter 5--Operating Permits. Revisions to this rule include 
clarifying the applicability of non-major sources to the Class II 
operating permits program; clarifying the deferral of sources from the 
Class I operating permits program; and clarifying the reporting 
requirements for certain emergency generators. The revision to Section 
001.02 will not be acted on because this section relates only to the 
Class II permit program and was not previously Federally approved.
    Chapter 6--Emissions Reporting, When Required. The annual deadline 
for submitting the emissions inventory reporting form was changed from 
July 1 to April 1.
    Chapter 20--Particulate Emissions; Limitations and Standards 
(Exceptions Due to Breakdowns or Scheduled Maintenance: See Chapter 
35). An exception was added, in conjunction with the revision to the 
``incinerator'' definition in Chapter 1, which exempts from the opacity 
requirements of Chapter 20 incinerators used by law enforcement 
personnel to dispose of ammunition or explosive materials. Also, 
paragraph 007 was revised to clarify the applicability of the rule.
    Chapter 29--Operating Permit Emissions Fees. A provision of this 
rule was revised to remove a sunset provision subjecting certain 
electric generation units to a lower emission fee. These units will now 
pay emissions fees beginning with calendar year 2001 emissions.
    Chapter 34--Emission Sources; Testing; Monitoring. Paragraph 005 
was revised to decrease from forever, to five years, the time period 
for which certain large steam generators, requesting exemption from 
operating a continuous opacity monitoring system, must have a clean 
opacity compliance record.
    Upon review by EPA, it was determined that this revision is 
inconsistent with the provisions of 40 CFR part 51, Appendix P--Minimum 
Emission Monitoring Requirements, paragraph 2.1.1.2. That paragraph 
provides a limited exemption from opacity monitoring for sources which 
have ``never'' been found in violation of a visible emission standard. 
The state revision allows the exemption for sources which have not been 
found in violation for the past five years, which is less stringent 
than the Federal requirement. Consequently, we are taking no action on 
this provision of the state submittal. The state has agreed to revise 
its rule to make it consistent with the Federal provision in the near 
future.

Revisions Submitted on November 5, 2002

    Chapter 1--Definitions. The following definitions were clarified: 
``applicable requirement,'' ``fuel burning equipment,'' and the 
exemption for ``incinerators'' from opacity limits is only for 
incinerators owned and operated by law enforcement agencies being 
solely used to dispose of ammunition, fireworks, or similar flammable 
or explosive materials. A definition for ``Maximum Achievable Control 
Technology (MACT)'' was added to define the MACT emission limitations 
for new and existing sources.
    Chapter 2--Definition of Major Source. Fugitive emissions must be 
considered when determining if a source is major for hazardous air 
pollutants with this revision and the major source definition was 
revised to be consistent in both Title V and the NSR/PSD programs.
    Chapter 6--Emissions Reporting; When Required. Sources are now 
allowed to submit their own form if acceptable to the Department and it 
was clarified that appropriate methods need to be used in calculating 
actual emissions.
    Chapter 17--Construction Permits; When Required. The change 
consistently clarified that fugitive emissions must be included in 
calculating levels of hazardous air pollutants and defines the source 
categories that must include fugitive emissions when determining the 
net change in potential emissions.
    Chapter 20--Particulate Emissions; Limitations and Standards 
(Exceptions Due to Breakdowns or Scheduled Maintenance: See Chapter 
35). This revision clarifies that furnaces exempted from the opacity 
standard for disposal of ammunition and other flammable or explosive 
materials applies only when being solely used for this purpose.
    Chapter 31--Compliance Assurance Monitoring. The reference to Title 
40 of the Code of Federal Regulations was updated to July 1, 2001.
    The revisions to Chapters 4, 5, and 21 are administrative in 
nature, including correcting typographical errors and deleting obsolete 
references.
    Further discussion and background information is contained in the 
technical support document prepared for this action, which is available 
from the EPA contact listed above.

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 
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 notice, the revisions meet 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?

    EPA is processing this action as a direct final action because the 
revisions make routine changes to the existing rules which are 
noncontroversial, and make regulatory revisions required by state 
statute. Therefore, we do not anticipate any adverse comments. Please 
note that if EPA receives adverse comment on part of this rule and if 
that part can be severed from the remainder of the rule, EPA may adopt 
as final those parts of the rule that are not the subject of an adverse 
comment.
    Final action: EPA is approving as an amendment to the Nebraska SIP 
revisions to Title 129, Chapters 1, 4, 5, 6, 20, and 34 (except Chapter 
5, 001.02), submitted on May 10, 2002, and revisions to Title 129, 
Chapters 1, 2, 4, 5, 6, 17, 20, and 21, submitted on November 5, 2002, 
pursuant to section 110.

[[Page 40530]]

    EPA is also approving as a program revision to the state's part 70 
Operating Permits Program revisions to Title 129, Chapters 1, 5, 6, and 
29, submitted on May 10, 2002, and revisions to Title 129, Chapters 1, 
2, 5, 6, and 31 submitted on November 5, 2002, pursuant to Part 70. 
Finally, EPA is approving pursuant to 112(l) revisions to Chapter 5.

Statutory and Executive Order Reviews

    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 pre-existing 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).
    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 September 8, 2003. 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, 
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen 
dioxide, Ozone, Particulate matter, Reporting and recordkeeping 
requirements, Sulfur oxides, Volatile organic compounds.

40 CFR Part 70

    Administrative practice and procedure, Air pollution control, 
Intergovernmental relations, Operating Permits, Reporting and 
Recordkeeping requirements.

    Dated: June 26, 2003.
William Rice,
Acting Regional Administrator, Region 7.

0
Chapter I, title 40 of the Code of Federal Regulations is amended as 
follows:

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart CC--Nebraska

0
2. Section 52.1420 is amended by:
0
a. Revising paragraph (b)(3); and
0
b. In the table to paragraph (c) by revising the entries for: 129-1, 
129-2, 129-4, 129-5, 129-6, 129-17, 129-20, and 129-21.
    The revisions read as follows:


Sec.  52.1420  Identification of plan.

* * * * *
    (b) * * *
    (3) Copies of the materials incorporated by reference may be 
inspected at the Environmental Protection Agency, Region VII, Air 
Planning and Development Branch, 901 North 5th Street, Kansas City, 
Kansas 66101; the Office of Federal Register, 800 North Capitol Street, 
NW., Suite 700, Washington, DC; or at the EPA Air and Radiation Docket 
and Information Center, Room B-108, 1301 Constitution Avenue, NW. (Mail 
Code 6102T), Washington, DC 20460.
    (c) * * *

[[Page 40531]]



                                       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...........       4/1/02  [7/8/03 and FR
                                                     7/10/02   citation].
129-2..................  Definition of Major         7/10/02  [7/8/03 and FR
                          Source.                              citation].
 
                                                  * * * * * * *
129-4..................  Ambient Air Quality          4/1/02  [July 8, 2003 and FR
                          Standards.                 7/10/02   citation].
129-5..................  Operating Permit......       4/1/02  [7/8/03 and FR          Section 001.02 is not SIP
                                                     7/10/02   citation].              approved.
129-6..................  Emissions Reporting...       4/1/02  [7/8/03 and FR
                                                     7/10/02   citation].
 
                                                  * * * * * * *
129-17.................  Construction Permits--      7/10/02  [7/8/03 and FR          Refer to January 23, 2002,
                          When Required.                       citation].              NDEQ letter to EPA
                                                                                       regarding change to 129-
                                                                                       17-014. Approved by EPA
                                                                                       on May 29, 2002.
 
                                                  * * * * * * *
129-20.................  Particulate Emissions;       4/1/02  [7/8/03 and FR
                          Limitations and            7/10/02   citation].
                          Standards (Exceptions
                          Due to Breakdowns of
                          Scheduled
                          Maintenance: See
                          Chapter 35).
129-21.................  Controls for                7/10/02  [7/08/03 and FR
                          Transferring,                        citation].
                          Conveying, Railcar
                          and Truck Loading at
                          Rock Processing
                          Operations in Cass
                          County.
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

PART 70--[AMENDED]

0
The authority citation for Part 70 continues to read as follows:

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

Appendix A--[Amended]

0
2. Appendix A to Part 70 is amended by adding paragraph (f) under 
Nebraska; City of Omaha; Lincoln-Lancaster County Health Department 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

* * * * *
    (f) The Nebraska Department of Environmental Quality submitted 
the following program revisions on May 10, 2002, NDEQ Title 129, 
Chapters 1, 5, 6, and 29; and on November 5, 2002, NDEQ Title 129, 
Chapters 1, 2, 5, 6, and 31, approval effective September 8, 2003.
* * * * *
[FR Doc. 03-17098 Filed 7-7-03; 8:45 am]
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