[Federal Register Volume 70, Number 61 (Thursday, March 31, 2005)]
[Rules and Regulations]
[Pages 16426-16430]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-6369]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 70

[R07-OAR-2005-NE-0001; FRL-7894-1]


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 approving revisions to the State Implementation Plan 
(SIP) and Operating Permits Program submitted by the state of Nebraska. 
These revisions provide or incorporate rules for predictive emissions 
monitoring (PEMS) in Chapter 34, delete obsolete footnotes from 
Appendix III (relating to emissions inventories for hazardous air 
pollutants under the state's operating permit program), correct a 
mistakenly worded rule in Chapter 20 (relating to process weight rates 
for particulate matter from certain sources), and improve understanding 
of Chapter 20 by consolidating the process weight rates into a single 
table. 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 May 31, 2005, without 
further notice, unless EPA receives adverse comment by May 2, 2005. If 
adverse comment is 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: Submit your comments, identified by Regional Material in 
EDocket (RME) ID Number R07-OAR-2005-NE-0001, by one of the following 
methods:
    1. Federal eRulemaking Portal: http://www.regulations.gov. Follow 
the on-line instructions for submitting comments.
    2. Agency Website: http://docket.epa.gov/rmepub/. RME, EPA's 
electronic public docket and comment system, is EPA's preferred method 
for receiving comments. Once in the system, select ``quick search;'' 
then key in the appropriate RME Docket identification number. Follow 
the on-line instructions for submitting comments.
    3. E-mail: [email protected].
    4. Mail: Shelly Rios-LaLuz, Environmental Protection Agency, Air 
Planning and Development Branch, 901 North 5th Street, Kansas City, 
Kansas 66101.
    5. Hand Delivery or Courier. Deliver your comments to Shelly Rios-
LaLuz, Environmental Protection Agency, Air Planning and Development 
Branch, 901 North 5th Street, Kansas City, Kansas 66101.
    Instructions: Direct your comments to RME ID No. R07-OAR-2005-NE-
0001. EPA's policy is that all comments received will be included in 
the public docket without change and may be made available online at 
http://docket.epa.gov/rmepub/, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through RME, regulations.gov,

[[Page 16427]]

or e-mail. The EPA RME Web site and the Federal regulations.gov Web 
site are ``anonymous access'' systems, which means EPA will not know 
your identity or contact information unless you provide it in the body 
of your comment. If you send an e-mail comment directly to EPA without 
going through RME or regulations.gov, your e-mail address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, EPA recommends that you include your name 
and other contact information in the body of your comment and with any 
disk or CD-ROM you submit. 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. Electronic files should avoid 
the use of special characters, any form of encryption, and be free of 
any defects or viruses.
    Docket: All documents in the electronic docket are listed in the 
RME index at http://docket.epa.gov/rmepub/. Although listed in the 
index, some information is not publicly available, i.e., CBI or other 
information whose disclosure is restricted by statute. Certain other 
material, such as copyrighted material, is not placed on the Internet 
and will be publicly available only in hard copy form. Publicly 
available docket materials are available either electronically in RME 
or in hard copy at the Environmental Protection Agency, Air Planning 
and Development Branch, 901 North 5th Street, Kansas City, Kansas 
66101. The Regional Office's official hours of business are Monday 
through Friday, 8 to 4:30 excluding Federal holidays. 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: Shelly Rios-LaLuz at (913) 551-7296 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 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 is being addressed in this document?
    What is EPA's analysis of the revisions?
    Have the requirements for approval of a SIP and Part 70 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, 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 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.
    Revision to the state and local agencies operating permits program 
are also subject to public notice, comment, and our approval.

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

    In order for state regulations to be included in 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,

[[Page 16428]]

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, including revisions to the state program, 
are included in 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 Is Being Addressed in This Document?

    On June 4, 2004, we received a request from the state of Nebraska 
to approve revisions to Nebraska's State Implementation Plan and Part 
70 Operating Permits Program. These revisions were adopted by the 
Nebraska Department of Environmental Quality (NDEQ) on June 6, 2003, 
and on September 4, 2003. This action addresses rule revisions to Title 
129--Nebraska Air Quality Regulations, Chapters 20 and 34 and Appendix 
III. The purpose of these revisions are to: (a) Provide or incorporate 
rules for Predictive Emissions Monitoring Systems (PEMS) in Chapter 34; 
(b) delete, from Appendix III, obsolete footnotes which described the 
uses of the various hazardous air pollutants listed in the appendix; 
(c) correct a mistakenly worded rule in Chapter 20 (which establishes 
emissions rates for particulates from certain industrial processes); 
and (d) improve understanding of Chapter 20 by consolidating various 
process weight rates into a single table.

What Is EPA's Analysis of the Revisions?

    The addition of regulations governing PEMS introduces regulatory 
requirements under which Predictive Emissions Monitoring may be used in 
the state of Nebraska. The Nebraska Department of Environmental Quality 
determined that the use of PEMS is an appropriate alternative to 
Continuous Emissions Monitoring in some instances. The rule allows the 
state to require PEMS under certain circumstances described in the 
rule. The rule, which is applicable to sources subject only to various 
implementation plan requirements (and not to federally promulgated 
requirements such as New Source Performance Standards (40 CFR Part 60)) 
requires that alternative PEMS monitoring be approved by the state and 
EPA. Because of the limitations and safeguards included in the rule, 
EPA believes that it is acceptable.
    The re-formatting of sections 002 and 003 in Chapter 20 resulted in 
a renumbering of these sections. The consolidation of the emissions 
rates in Chapter 20 does not change any of the emissions rates but only 
clarifies them.
    The changes in Appendix III relate to emission inventory reporting 
for Hazardous Air Pollutants (HAPs). Although these modifications 
include minor technical amendments to how emissions are reported, they 
do not change previous reporting requirements for HAPs. These changes 
are not substantive, thus we are approving these changes.
    For the reasons stated above, we have determined that the revisions 
to Nebraska's State Implementation Plan and to the Operating Permits 
Program described above should be approved. In this action, we are not 
acting on Title 129, Chapter 34, Section 005 relating to continuous 
emissions monitoring for certain sources subject to SIP requirements. 
NDEQ had revised this rule in a manner which is inconsistent with EPA 
requirements (40 CFR part 51, appendix P). As a result, NDEQ determined 
that this provision should be further revised to be consistent with the 
Federal rule and will submit a revision to its rulemaking council in 
the near future. EPA will act on this rule when it is revised, in a 
separate rulemaking. In this action we are also not acting on Title 
129, Chapter 42 relating to Permits-by-Rule. NDEQ has made revisions to 
this chapter and will be submitting them in the near future. Action on 
Chapter 42 will be taken at a future date.

Have the Requirements for Approval of a SIP and Part 70 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 revision meets the 
substantive SIP requirements of the CAA, including section 110 and 
implementing regulations. The revision also meets the applicable 
requirements of Title V and EPA regulations for revision to the 
operating permits program.

What Action Is EPA Taking?

    We are approving, as an amendment to the Nebraska SIP, revisions to 
Title 129, Chapters 20 and 34 (with the exception of Chapter 34, 
section 005) 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, Appendix III. Revisions to Title 129, Chapter 
20 became effective February 7, 2004, and revisions to Title 129, 
Chapter 34 and Appendix III became effective November 24. 2003. In this 
action we are not acting on Title 129, Chapter 42 relating to Permits-
by-Rule.
    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.

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 (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

[[Page 16429]]

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 state 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 Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by May 31, 2005. 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: March 21, 2005.
James B. Gulliford,
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 revising 
the entries for 129-20 and 129-34 to read as follows:


Sec.  52.1420  Identification of plan.

* * * * *
    (c) * * *

                                                            EPA-Approved Nebraska Regulations
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                           State
           Nebraska citation                         Title               effective          EPA approval date                    Explanation
                                                                            date
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                                                  State of Nebraska Department of Environmental Quality
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                                                       Title 129--Nebraska Air Quality Regulations
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129-20................................  Particulate Emissions;               2/7/04  3/31/05, [insert FR page
                                         Limitations and Standards                    number where the document
                                         (Exceptions Due to Breakdowns                begins].
                                         or Scheduled Maintenance: See
                                         Chapter 35).
---------------------------------------
 
                                                                      * * * * * * *
129-34................................  Emission Sources; Testing;         11/24/03  3/31/05, [insert FR page        Section 005 is not SIP approved.
                                         Monitoring.                                  number where the document
                                                                                      begins].
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------


[[Page 16430]]

* * * * *

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 (h) 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
* * * * *
    (h) The Nebraska Department of Environmental Quality approved a 
revision to NDEQ Title 129, appendix III, on November 19, 2003, 
which became effective November 24, 2003. This revision was 
submitted on June 4, 2004. We are approving this program revision 
effective May 31, 2005.
* * * * *
[FR Doc. 05-6369 Filed 3-30-05; 8:45 am]
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