[Federal Register Volume 68, Number 172 (Friday, September 5, 2003)]
[Rules and Regulations]
[Pages 52691-52695]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-22539]


=======================================================================
-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 70

[NE 190-1190a; FRL-7552-9]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

-----------------------------------------------------------------------

SUMMARY: EPA is announcing approval of revisions to the Nebraska State 
Implementation Plan (SIP) and Operating Permits Program. On September 
5, 2002, the state updated its air program construction and operating 
permitting rules, its definitions rule, and emission inventory 
reporting rule. Approval of these revised rules 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 November 4, 2003, 
unless EPA receives adverse comments by October 6, 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 submitted either by mail or electronically. 
Written comments should be submitted to Wayne Kaiser, Environmental 
Protection Agency, Air Planning and Development Branch, 901 North 5th 
Street, Kansas City, Kansas 66101. Electronic comments should be sent 
either to Wayne Kaiser at [email protected] or to http://www.regulations.gov, which is an alternative method for submitting 
electronic comments to EPA. To submit comments, please follow the 
detailed instructions described in ``What action is EPA taking'' in the 
SUPPLEMENTARY INFORMATION section.
    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 or by 
E-mail at [email protected].

SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,'' 
``us,'' or ``our'' is used, we mean EPA. This section provides 
additional

[[Page 52692]]

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 the Federal approval process for an operating permits 
program?
    What does Federal approval of a state operating permits program 
mean to me?
    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.

What Is the Federal Approval Process for an Operating Permits Program?

    In order for state regulations to be incorporated into the 
Federally-enforceable Title V operating permits program, states must 
formally adopt regulations 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 approved operating 
permits program. 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 502 of the CAA are incorporated into the Federally-
approved operating permits program. Records of such actions are 
maintained in the CFR at Title 40, part 70, appendix A, entitled 
``Approval Status of State and Local Operating Permits Programs.''

What Does Federal Approval of a State Operating Permits Program Mean to 
Me?

    Enforcement of the state regulation before and after it is 
incorporated into the Federally-approved operating permits program 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 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 program rule revisions adopted by the Nebraska 
Environmental Quality Council on September 5, 2002. In its submission, 
the state also requested that we not take action, at this time, on 
certain revisions, as discussed below, relating to the state's ``permit 
by rule.'' The revisions to Title 129--Nebraska Air Quality Regulations 
which we are approving in today's rule are:
    Chapter 1--Definitions, was revised to add new definitions for: Air 
Quality Control Region, AP-42, Insignificant activities, Low emitter, 
Method 9, Method 22, Mobile source, Speciation,

[[Page 52693]]

Synthetic minor, and UTM coordinates. Additionally, the existing 
definition for Interstate air pollution control agency was revised. 
These changes will help clarify and define other related requirements 
of the state's rules.
    Chapter 5--Operating Permits--When Required. Clarifying terms were 
added to the terms Class I and Class II permits. Class I also means 
major source, and Class II means minor source.
    Chapter 6--Emissions Reporting: When Required. The emissions 
reporting requirements were clarified to distinguish between non-
hazardous and hazardous pollutants, and a reference to Appendix III was 
added. This appendix, otherwise called the Insignificant Activities 
List, specifies the hazardous air pollutants and quantities required to 
be reported on the emission inventory form.
    Chapter 30--Open Fires, Prohibited; Exceptions. This revision 
broadens the range of groups that may be issued open burning permits 
for the purpose of plant and wildlife parks management when approved by 
the Director.
    Appendix III--Reporting Levels of Hazardous Air Pollutants for 
Emissions Inventory. This table (the Insignificant Activities List) has 
been used by the Department for some time, but now has been codified 
into Title 129 of the state rules.
    The state has also adopted a permit-by-rule provision in chapter 42 
of Title 129 of the state rules. Because the state is in the process of 
revising chapter 42, and we are working with the state to make 
appropriate revisions, Nebraska has requested that we not consider 
chapter 42 as part of its official submission at this time. In keeping 
with that request, we are also not acting on portions of the submission 
which reference chapter 42 identified below. This will avoid confusion 
by ensuring that the Federally-approved requirements do not cross-
reference other requirements which are not Federally approved at this 
time. We will be acting on these provisions when the state submits its 
revised chapter 42 for approval.
    The specific portions of the September 5, 2002, revisions which are 
not approved are as follows:

--The revision to chapter 5, rule 001.02;
--The revision to chapter 9, rule 011; and
--The revision to chapter 17, rule 001.

These provisions provide exemptions from certain construction and 
operating permit program requirements for sources operating under 
chapter 42. The result of our action is that these exemptions will not 
be recognized under the Federally-approved permitting programs until 
such time as we approve the state's chapter 42 permit-by-rule program.

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 document, the revisions approved 
today meet the substantive SIP requirements of the CAA, including 
section 110 and implementing regulations. Finally, the approved 
revisions meet the substantive requirements of Title V of the 1990 CAA 
Amendments and 40 CFR part 70.

What Action Is EPA Taking?

    We are approving as an amendment to the Nebraska SIP revisions to 
Title 129, chapters 1, 5, 6, and 30 as described in this rule. We are 
also approving as a program revision to the state's part 70 Operating 
Permits Program revisions to Title 129, chapters 1, 5, 6, and appendix 
III. Finally, we are approving pursuant to section 112(l) revisions to 
chapter 5. These revisions to the state rules became effective November 
20, 2002.
    EPA is 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 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.
    You may submit comments either electronically or by mail. To ensure 
proper receipt by EPA, identify the appropriate rulemaking 
identification number, NE 190-1190a, in the subject line on the first 
page of your comment. Please ensure that your comments are submitted 
within the specified comment period. Comments received after the close 
of the comment period will be marked ``late.'' EPA is not required to 
consider these late comments.
    1. Electronically. If you submit an electronic comment as 
prescribed below, EPA recommends that you include your name, mailing 
address, and an e-mail address or other contact information in the body 
of your comment. This ensures that you can be identified as the 
submitter of the comment and allows EPA to contact you in case EPA 
cannot read your comment due to technical difficulties or needs further 
information on the substance of your comment. EPA's policy is that EPA 
will not edit your comment, and any identifying or contact information 
provided in the body of a comment will be included as part of the 
comment that is placed in the official public docket. If EPA cannot 
read your comment due to technical difficulties and cannot contact you 
for clarification, EPA may not be able to consider your comment.
    a. Electronic mail. Comments may be sent by e-mail to Wayne Kaiser 
at [email protected]. Please include identification number NE 190-
1190a in the subject line. EPA's e-mail system is not an ``anonymous 
access'' system. If you send an e-mail comment directly without going 
through Regulations.gov, EPA's e-mail system automatically captures 
your e-mail address. E-mail addresses that are automatically captured 
by EPA's e-mail system are included as part of the comment that is 
placed in the official public docket.
    b. Regulations.gov. Your use of Regulations.gov is an alternative 
method of submitting electronic comments to EPA. Go directly to http://www.regulations.gov, click on ``To Search for Regulations,'' then 
select Environmental Protection Agency and use the ``go'' button. The 
list of current EPA actions available for comment will be listed. 
Please follow the online instructions for submitting comments. The 
system is an ``anonymous access'' system, which means EPA will not know 
your identity, e-mail address, or other contact information unless you 
provide it in the body of your comment.
    2. By Mail. Written comments should be sent to the name and address 
listed in the ADDRESSES section of this document.

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

[[Page 52694]]

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 
(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 November 4, 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: August 22, 2003.
Cecilia Tapia,
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. In Sec.  52.1420 the table in paragraph (c) is amended by:
0
a. Adding a heading for Title 129.
0
b. Revising the entries for 129-1, 129-5, 129-6, and 129-30.
    The addition and revisions read as follows:


Sec.  52.1420  Identification of plan.

* * * * *
    (c) * * *

                                        EPA-Approved Nebraska Regulations
----------------------------------------------------------------------------------------------------------------
                                                             State
        Nebraska citation                 Title         effective date   EPA approval date         Comments
----------------------------------------------------------------------------------------------------------------
                                                STATE OF NEBRASKA
                                       Department of Environmental Quality
----------------------------------------------------------------------------------------------------------------
                                   Title 129--Nebraska Air Quality Regulations
----------------------------------------------------------------------------------------------------------------
129-1............................  Definitions........        11/20/02  9/5/03 and FR page
                                                                         citation.
----------------------------------
 
                                                  * * * * * * *
----------------------------------
129-5............................  Operating Permit...        11/20/02  9/5/03 and FR page   Section 001.02 is
                                                                         citation.            not SIP approved.
129-6............................  Emissions Reporting        11/20/02  9/5/03 and FR page
                                                                         citation.
----------------------------------
 

[[Page 52695]]

 
                                                  * * * * * * *
----------------------------------
129-30...........................  Open Fires,                11/20/02  9/5/03 and FR page
                                    Prohibited;                          citation.
                                    Exceptions.
----------------------------------
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

* * * * *

PART 70--[AMENDED]

0
1. 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 (g) 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.
* * * * *
    (g) The Nebraska Department of Environmental Quality approved 
revisions to NDEQ Title 129, chapters 1, 5, 6, and appendix III 
(which codifies its prior Federally approved Insignificant 
Activities List) on September 5, 2002, which became effective on 
November 20, 2002. These revisions were submitted on May 1, 2003. We 
are approving these program revisions effective November 4, 2003.
* * * * *

[FR Doc. 03-22539 Filed 9-4-03; 8:45 am]
BILLING CODE 6560-50-P