[Federal Register Volume 76, Number 55 (Tuesday, March 22, 2011)]
[Rules and Regulations]
[Pages 15852-15855]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-6419]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R07-OAR-2010-0945; FRL-9281-6]


Approval and Promulgation of Implementation Plans; Nebraska: 
Prevention of Significant Deterioration; Greenhouse Gas Permitting 
Authority and Tailoring Rule Revision

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is taking final action to approve revisions to the State 
Implementation Plan (SIP) for Nebraska, submitted by the Nebraska 
Department of Environmental Quality (NDEQ) to EPA for final processing 
on January 14, 2011. These revisions cover two broad categories under 
Nebraska's prevention of significant deterioration (PSD) 
preconstruction permitting program. The first applies to revisions 
relating to permitting of greenhouse gas (GHG) emissions under the PSD 
program. The second applies to revisions incorporating relevant aspects 
of EPA's 2002 new source review (NSR) reform rules, submitted by letter 
dated November 19, 2010.
    The GHG SIP revision, which incorporates updates to NDEQ's air 
quality regulations, includes two significant changes impacting the 
regulation of GHGs under Nebraska's PSD program. First, the SIP 
revision provides the State of Nebraska with authority to issue PSD 
permits governing GHGs. Second, the SIP revision establishes emission 
thresholds for determining which new stationary sources and 
modification projects become subject to Nebraska's PSD permitting 
requirements for their GHG emissions. The first provision is required 
under the GHG PSD SIP call, which EPA published on December 13, 2010, 
and which required the State of Nebraska to apply its PSD program to 
GHG-emitting sources. The second provision is consistent with the 
thresholds EPA established in the Tailoring Rule, published on June 3, 
2010. EPA is approving this SIP revision because this SIP revision 
meets the requirements of the GHG PSD SIP Call.
    In addition, in today's action, EPA is also taking final action to 
approve Nebraska's adoption of portions of EPA's 2002 NSR Reform rules, 
published December 31, 2002. EPA has determined that Nebraska's 
revisions track the Federal NSR Reform Rules. EPA previously determined 
that the implementation of the Federal NSR Reform Rules will be 
environmentally beneficial.

DATES: This rule will be effective March 22, 2011.

ADDRESSES: EPA has established a docket for this action under Docket 
Identification No. EPA-R07-OAR-2010-0945. All documents in the docket 
are listed on the http://www.regulations.gov Web site. Although listed 
in the index, some information is not publicly available, i.e., 
Confidential Business Information 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 through http://www.regulations.gov or 
in hard copy at the Air Planning and Development Branch, Air and Waste 
Management Division, U.S. Environmental Protection Agency, Region 7, 
901 North 5th Street, Kansas City, KS 66101. EPA requests that if at 
all possible, you contact the person listed in the FOR FURTHER 
INFORMATION CONTACT section for further information. The Regional 
Office's official hours of business are Monday through Friday, 8:30 to 
4:30, excluding Federal holidays.

FOR FURTHER INFORMATION CONTACT: For information regarding the Nebraska 
SIP, contact Mr. Larry Gonzalez, Air Planning and Development Branch, 
Air and Waste Management Division, U.S. Environmental Protection 
Agency, Region 7, 901 North 5th Street, Kansas City, Kansas 66101. Mr. 
Gonzalez's telephone number is (913) 551-7041; e-mail address: 
[email protected].

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. What is the background for today's final action?
II. Analysis of Nebraska's SIP Revision
III. What is EPA's response to comments received on the proposed 
action?
IV. What is the effect of today's final action?
V. When is today's action effective?
VI. Final Action
VII. Statutory and Executive Order Reviews

I. What is the background for today's final action?

    EPA has recently undertaken a series of actions pertaining to the 
regulation of GHGs that, although for the most part distinct from one 
another, establish the overall framework for today's final action for 
the Nebraska SIP. The first four of these actions include, as they are 
commonly called, the ``Endangerment Finding'' and ``Cause or Contribute 
Finding,'' which EPA issued in a single final action,\1\ the ``Johnson 
Memo Reconsideration,'' \2\ the ``Light-Duty Vehicle Rule,'' \3\ and 
the ``Tailoring Rule.'' \4\ Taken together, these actions established 
regulatory requirements for GHGs emitted from new motor vehicles and 
new motor vehicle engines; determined that such regulations, when they 
took effect on January 2, 2011, subject GHGs emitted from stationary 
sources to PSD requirements; and limited the applicability of PSD 
requirements to GHG sources on a phased-in basis.
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    \1\ ``Endangerment and Cause or Contribute Findings for 
Greenhouse Gases Under Section 202(a) of the Clean Air Act.'' 74 FR 
66496 (December 15, 2009).
    \2\ ``Endangerment and Cause or Contribute Findings for 
Greenhouse Gases Under Section 202(a) of the Clean Air Act.'' 74 FR 
66496 (December 15, 2009).
    \3\ ``Light-Duty Vehicle Greenhouse Gas Emission Standards and 
Corporate Average Fuel Economy Standards; Final Rule.'' 75 FR 25324 
(May 7, 2010).
    \4\ ``Prevention of Significant Deterioration and Title V 
Greenhouse Gas Tailoring Rule; Final Rule.'' 75 FR 31514 (June 3, 
2010).
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    In a separate action, the ``GHG PSD SIP Call,'' \5\ EPA called on 
the State of Nebraska and 12 other States with SIPs that do not provide 
authority to issue PSD permits governing GHGs to revise their SIPs to 
provide such authority. In that action, EPA took steps to ensure that 
in the 13 States that do not have authority to issue PSD permits to 
GHG-emitting sources at present, either the State or EPA would have the 
authority to issue such permits by January 2, 2011, or soon thereafter. 
EPA explained that although for most States, either the State or EPA is 
already authorized to issue PSD permits for GHG-emitting sources as of 
that date, Nebraska and the other 12 States have EPA-approved PSD 
programs that do not include GHG-emitting sources and therefore do not 
authorize these States to issue PSD permits to such sources. 
Accordingly, EPA issued the GHG PSD SIP Call to require a SIP revision 
that applies Nebraska's SIP PSD programs to GHG-emitting sources. EPA 
also established a SIP submittal deadline. In the proposed SIP call, 
EPA had stated that the deadline could range from as little as three 
weeks after the final SIP call was signed to as long as 12 months after 
the

[[Page 15853]]

final SIP call was signed, and that each affected State was authorized 
to indicate to EPA a deadline to which it did not object. In the final 
SIP call, EPA established deadlines that ranged, for the various 
States, from December 22, 2010 (three weeks after signature), to 
December 1, 2011 (12 months after signature), based, in general, on 
each State's preference. Nebraska was one of the States for which EPA 
proposed and finalized the SIP Call. The State's comments regarding the 
proposed SIP call, submitted September 30, 2010, are included in the 
docket for this rulemaking. In the SIP call, EPA established a SIP 
submittal deadline for Nebraska of March 1, 2011, in accordance with 
Nebraska's preferences in that letter. As stated previously, Nebraska 
met this deadline by submitting a final rule addressing the SIP 
deficiency by letter dated January 14, 2011.
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    \5\ ``Action to Ensure Authority to Issue Permits Under the 
Prevention of Significant Deterioration Program to Sources of 
Greenhouse Gas Emissions: Finding of Substantial Inadequacy and SIP 
Call; Final Rule.'' 75 FR 77698 (December 13, 2010).
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    In addition, in the SIP call rulemaking, EPA stated certain 
requirements that the corrective SIP revision must meet, which are that 
the corrective SIP revision must--
    (i) Apply the SIP PSD program to GHG-emitting sources;
    (ii) Define GHGs as the same pollutant to which the Light-Duty 
Vehicle Rule \6\ (LDVR) applies, that is, a single pollutant that is 
the aggregate of the group of six gases (carbon dioxide 
(CO2), methane (CH4), nitrous oxide 
(N2O), hydrofluorocarbons (HFCs), perfluorocarbons (PFCs), 
and sulfur hexafluoride (SF6)); and
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    \6\ ``Light-Duty Vehicle Greenhouse Gas Emission Standards and 
Corporate Average Fuel Economy Standards; Final Rule.'' 75 FR 25324 
(May 7, 2010).
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    (iii) Either limit PSD applicability to GHG-emitting sources by 
adopting the applicability thresholds included in the Tailoring Rule or 
adopt lower thresholds and show that the State has adequate personnel 
and funding to administer and implement those lower thresholds.
    In addition, if the corrective SIP revision adopts the Tailoring 
Rule thresholds, then it must either adopt the CO2e metric 
and use short tons (as opposed to metric tons) for calculating GHG 
emissions in order to implement those thresholds, or assure that its 
approach is at least as stringent as under the Tailoring Rule, so that 
the State does not exclude more sources than under the Tailoring Rule. 
75 FR 77713 to 77715.
    On October 19, 2010, in response to the Tailoring Rule and earlier 
GHG-related EPA rules, and in anticipation of the GHG PSD SIP Call 
rulemaking, NDEQ submitted a draft revision of its air quality 
regulations to EPA for approval into the Nebraska SIP to: (1) Provide 
the State of Nebraska with the authority to regulate GHGs under its PSD 
program; and (2) establish appropriate emission thresholds and time-
frames for determining which new or modified stationary sources become 
subject to Nebraska's PSD permitting requirements for GHG emissions. 
Subsequently, on December 27, 2010, EPA published a proposed rulemaking 
to approve NDEQ's October 19, 2010, SIP revision under parallel 
processing (see 75 FR 81179).
    EPA's December 27, 2010, proposed approval was contingent upon the 
State of Nebraska providing a final SIP revision that was substantially 
the same as the draft revision proposed for approval. On January 14, 
2011, Nebraska submitted its final SIP revision. This SIP revision is 
the same as the proposed revision NDEQ submitted on October 19, 2010, 
for parallel processing. EPA is approving the final SIP revision in 
today's action.
    In the December 27, 2010, proposed rulemaking, EPA also proposed to 
approve updates to Nebraska's SIP that reflected Nebraska's adoption of 
portions of EPA's 2002 NSR Reform Rules. In today's action EPA is also 
approving these NSR Reform updates.

II. Analysis of Nebraska's SIP Revision

    Section 110(k)(3) of the CAA provides that EPA shall approve a SIP 
revision as a whole if it meets all of the applicable requirements of 
the CAA. Nebraska received a SIP call because its PSD program does not 
apply to GHGs, and as a result, Nebraska is required to submit a SIP 
revision that applies PSD to GHGs and does so either at the Tailoring 
Rule thresholds or at lower thresholds, and, if the latter, then 
Nebraska is required to demonstrate that it has adequate resources for 
implementation.
    Nebraska has submitted a SIP revision that provides this authority. 
Nebraska's SIP revision updates the definition in its regulations of 
``regulated NSR pollutant'' to explicitly include GHGs as a regulated 
NSR pollutant. In addition, the Nebraska rules incorporate the same 
thresholds and phase-in schedule as the Tailoring Rule and they adopt 
the carbon dioxide equivalent (CO2e) metric and use of short 
tons for determining the thresholds.
    EPA has determined that Nebraska's GHG revisions meet the 
requirements of the SIP call and are consistent with the CAA and its 
implementing regulations regarding GHG.
    In addition, EPA is also approving the portion of Nebraska's SIP 
revisions which address portions of EPA's 2002 NSR Reform rules. As EPA 
explained in the proposed rulemaking, Nebraska had previously made 
changes to its existing State regulations to adopt portions of the NSR 
Reform rules. 75 FR 81185.\7\ Although these revisions were effective 
at the State level, NDEQ had not previously submitted these changes to 
EPA for approval into the Nebraska SIP. Thus, on November 19, 2010, 
NDEQ submitted these revisions to the Nebraska Administrative Code 
relating to NSR Reform to EPA for approval. These revisions included 
changes to the following Chapters of Title 129 of the Nebraska 
Administrative Code: Chapter 1 (Definitions), Chapter 2 (Definition of 
Major Source), Chapter 14 (Permits: Public Participation), Chapter 15 
(Permit Revisions; Reopening for Cause), Chapter 17 (Construction 
Permits--When Required),\8\ and Chapter 19 (Prevention of Significant 
Deterioration of Air Quality).
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    \7\ EPA also explained that Nebraska did not adopt the portions 
of EPA's NSR reform rule which were vacated or remanded by the Court 
in New York v. United States, 413 F.3d3 (DC Cir. 2005). 75 FR 81186.
    \8\ EPA notes that in a subsequent letter dated February 1, 
2011, NDEQ withdrew Chapter 17 (Construction Permits--When 
Required), sections 001.02T and 013.04T from the November 19, 2010 
submittal. Those revisions, relating to construction permitting of 
minor (non-PSD) sources, define the term ``chemical processing 
plant'' as excluding ethanol production facilities. EPA is not 
acting on those provisions in this action.
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    Nebraska's proposed SIP revision addressing NSR reform tracks the 
Federal NSR Reform Rules, and as stated previously, EPA has determined 
that the implementation of the Federal NSR Reform Rules will be 
environmentally beneficial. See 68 FR 44620 and 63021. EPA explained 
its analysis of the Nebraska revisions in detail in the proposal, at 75 
FR 81186, and incorporates that explanation by reference in this final 
action. Accordingly, EPA determines that these changes are consistent 
with the requirements of section 110(l).

III. What is EPA's response to comments received on the proposed 
action?

    EPA received a single comment letter in response to the December 
27, 2010, proposed rulemaking to approve revisions to Nebraska's SIP. 
These comments, provided by the Sierra Club, were supportive of 
Nebraska's proposed revisions and EPA's actions with respect to GHGs 
and the PSD and Title V GHG Tailoring Rule (75 FR 31514). The comments 
are provided in the docket for today's final action. EPA did not 
receive any comments on its proposal to approve the NSR reform 
revisions.

[[Page 15854]]

IV. What is the effect of today's final action?

    Final approval of Nebraska's January 14, 2011, SIP revision will 
make Nebraska's SIP adequate with respect to PSD requirements for GHG-
emitting sources. Today's approval will incorporate into the SIP the 
GHG emission thresholds for PSD applicability that were set forth in 
EPA's Tailoring Rule, ensuring that smaller GHG sources emitting below 
these thresholds will continue to not be subject to permitting 
requirements. Today's approval will also incorporate portions of EPA's 
2002 NSR Reform Rules, as adopted by Nebraska, into the SIP. Pursuant 
to section 110 of the CAA, EPA is approving the changes made in 
Nebraska's January 14, 2011, proposed SIP revision into the State's 
SIP. However, as we noted in the proposed approval of Nebraska's 
submittal, 75 FR 81183, this action only addresses the State's 
revisions as they relate to the PSD program, including regulation of 
GHGs under the State's PSD program. We intend to act separately on the 
State's revisions to its Title V program, as well as Nebraska's 
separate submittal of changes to the applicability of the PSD program 
to contain ethanol production facilities (the ``Ethanol Rule'').\9\
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    \9\ See note 9.
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    The GHG revisions to Nebraska's SIP-approved PSD program that EPA 
is approving today have been reviewed and determined to be consistent 
with the Tailoring Rule. EPA has also determined that the GHG revisions 
are adequate to correct the deficiencies which EPA found for Nebraska 
in the GHG SIP call. Finally, EPA has also determined that the Nebraska 
SIP revisions relating to NSR Reform are, in substantive content, the 
same as EPA's December 2002 NSR reform rule, as it relates to PALs, the 
``actual to projected actual'' test, and the calculation of baseline 
actual emissions. Thus, EPA has determined that the January revisions 
to Nebraska's SIP are consistent with section 110 of the CAA.

V. When is today's action effective?

    The effective date of today's final action is the date that this 
rule is published in the Federal Register. In accordance with 5 U.S.C. 
553(d), a rule cannot be made effective less than 30 days from the date 
of publication unless it qualifies for an exception under that 
provision. Under 5 U.S.C. 553(d)(1), one such exception is ``a 
substantive rule which grants or recognizes an exemption or relieves a 
restriction.'' Today's final action relieves a restriction because it 
allows Nebraska to issue permits, under the Federally approved SIP, to 
sources which are already required to have PSD permits covering GHGs, 
but which previously did not have a permit issuing authority available 
from which to seek such a permit. In addition, 5 U.S.C. 553(d)(3) 
allows an effective date less than 30 days after publication ``as 
otherwise provided by the agency for good cause found and published 
with the rule.'' Because, as stated above, this rule allows Nebraska to 
issue PSD permits under the approved SIP for sources of GHGs already 
required to seek such permits, it avoids disruption in the State's 
permitting process which might otherwise occur. Additionally, the 
State's permitting process would potentially be disrupted if the NSR 
Reform provisions do not have the same effective date as the other 
provisions being approved today. Therefore, EPA finds good cause under 
5 U.S.C. 553(d)(3) for this action to become effective immediately upon 
publication. For these reasons, the effective date of this rule is the 
date of publication.

VI. Final Action

    EPA is taking final action to approve the State of Nebraska's SIP 
revisions, which adopt changes to Title 129 the Nebraska Administrative 
Code. The SIP revisions: (1) Provide the State with the authority to 
regulate GHGs under its PSD program, and (2) establish appropriate 
emissions thresholds, and timing, for determining PSD applicability 
with respect to new or modified GHG-emitting stationary sources in 
accordance with EPA's Tailoring Rule. The SIP revisions also adopt 
portions of EPA's 2002 NSR Reform rule as identified above. EPA has 
made the determination that the SIP revisions are approvable because 
they are in accordance with the CAA and EPA regulations, including 
regulations pertaining to PSD permitting.

VII. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the Act and applicable 
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, EPA's role is to approve State choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
action merely approves State law as meeting Federal requirements and 
does not impose additional requirements beyond those imposed by State 
law. For those reasons, this action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     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);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this rule does not have Tribal implications as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 
because the SIP is not approved to apply in Indian country located in 
the State, and EPA notes that it will not impose substantial direct 
costs on Tribal governments or preempt Tribal law.
    The Congressional Review Act, 5 U.S.C. 801 et seq., as amended 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 
action 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

[[Page 15855]]

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 May 23, 2011. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this action 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 in 40 CFR Part 52

    Environmental protection, Air pollution control, NSR Reform, 
Greenhouse gases, Incorporation by reference, Intergovernmental 
relations, Reporting and recordkeeping requirements.

    Dated: March 7, 2011.
Karl Brooks,
Regional Administrator, Region 7.
    40 CFR part 52 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(c) under ``Title 129--Nebraska Air Quality 
Regulations'' is amended as follows:
0
a. Revise the entries for 129-1, 129-14, 129-15, 129-17, and 129-19.
0
b. Add a new entry for 129-2.
    The revisions and additions read as follows:


Sec.  52.1420  Identification of plan.

* * * * *
    (c) * * *

                                        EPA-Approved Nebraska Regulations
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                                                             State
        Nebraska citation                 Title         effective date   EPA approval date       Explanation
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
                                   Title 129--Nebraska Air Quality Regulations
----------------------------------------------------------------------------------------------------------------
129-1............................  Definitions........      01/09/2011  03/22/2011 [Insert
                                                                         citation of
                                                                         publication].
129-2............................  Definition of Major      03/14/2006  03/22/2011 [Insert
                                    Source.                              citation of
                                                                         publication].
 
                                                  * * * * * * *
129-14...........................  Permits: Public          02/06/2008  03/22/2011 [Insert
                                    Participation.                       citation of
                                                                         publication].
129-15...........................  Permit Revisions;        02/06/2008  03/22/2011 [Insert
                                    Reopening for                        citation of
                                    Cause.                               publication].
 
                                                  * * * * * * *
129-17...........................  Construction             02/06/2008  03/22/2011 [Insert   Approval does not
                                    Permits--When                        citation of          include Nebraska's
                                    Required.                            publication].        revisions to
                                                                                              sections 001.02T
                                                                                              and 013.04T
                                                                                              pertaining to
                                                                                              ethanol production
                                                                                              facilities, which
                                                                                              were not submitted
                                                                                              by the State.
129-19...........................  Prevention of            02/06/2008  03/22/2011 [Insert
                                    Significant                          citation of
                                    Deterioration of                     publication].
                                    Air Quality.
 
                                                  * * * * * * *
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[FR Doc. 2011-6419 Filed 3-21-11; 8:45 am]
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