[Federal Register Volume 76, Number 61 (Wednesday, March 30, 2011)]
[Proposed Rules]
[Pages 17592-17599]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-7454]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R07-OAR-2011-0310; FRL-9287-8]


Approval and Promulgation of Implementation Plans; State of 
Nebraska

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to approve the State Implementation Plan 
(SIP) submittal from the state of Nebraska addressing the requirements 
of Clean Air Act (CAA) sections 110(a)(1) and (2) for the 1997 
revisions to the National Ambient Air Quality Standards (NAAQS) for 
ozone. Section 110(a)(1) requires that each state adopt and submit a 
SIP to support implementation of each new or revised NAAQS promulgated 
by the EPA and these SIPs are commonly referred to as 
``infrastructure'' SIPs. EPA believes that Nebraska's infrastructure 
SIP adequately addresses the elements described in section 110(a)(2) 
and further described in the October 2, 2007 guidance for 
infrastructure SIPs issued by the EPA Office of Air Quality Planning 
and Standards. However, because EPA already approved the portion of 
Nebraska's SIP submittal relating to the interstate transport 
infrastructure element, section 110(a)(2)(D)(i), this proposed 
rulemaking does not address the interstate transport element, nor does 
this proposal reopen any aspect of EPA's prior action on the interstate 
transport element. Furthermore, this action does not address 
infrastructure requirements with respect to the 1997 PM2.5 
NAAQS or the 2006 revisions to the NAAQS. Those requirements will be 
addressed in future rulemaking.

DATES: Comments must be received on or before April 29, 2011.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R07-
OAR-2011-0310 by one of the following methods:
    1. http://www.regulations.gov. Follow the on-line instructions for 
submitting comments.
    2. E-mail: [email protected].
    3. Mail: Ms. Elizabeth Kramer, Air Planning and Development Branch, 
U.S. Environmental Protection Agency, Region 7, Air and Waste 
Management Division, 901 North 5th Street, Kansas City, Kansas 66101.
    4. Hand Delivery or Courier: Deliver your comments to Ms. Elizabeth 
Kramer, Air Planning and Development Branch, U.S. Environmental 
Protection Agency, Region 7, Air and Waste Management Division, 901 
North 5th Street, Kansas City, Kansas 66101.
    Instructions: Direct your comments to Docket ID No. EPA-R07-OAR-
2011-0310. 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://www.regulations.gov, 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 through http://www.regulations.gov or e-mail information that you consider to be CBI 
or otherwise protected. The http://www.regulations.gov Web site is an 
``anonymous access'' system, 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 http://www.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 should be 
free of any defects or viruses.
    Docket: All documents in the electronic docket are listed in the 
http://www.regulations.gov index. 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, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in http://www.regulations.gov or in hard copy at the U.S. Environmental 
Protection Agency, Region 7, 901 North 5th Street, Kansas City, Kansas 
66101, from 8 a.m. until 4:30 p.m., Monday through Friday, excluding 
legal 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:  Ms. Elizabeth Kramer, Air Planning 
and Development Branch, U.S. Environmental Protection Agency, Region 7, 
901 North 5th Street, Kansas City, Kansas 66101; telephone number: 
(913) 551-7186; fax number: (913) 551-7844; e-mail address: 
[email protected].

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

[[Page 17593]]

information by addressing the following questions:

I. What is a section 110(a)(1) and (2) infrastructure SIP?
II. What elements are applicable under section 110(a)(1) and (2)?
III. What is EPA's evaluation of how the state addressed the 
relevant elements of section 110(a)(1) and (2)?
IV. What action is EPA proposing?
V. Statutory and Executive Order Reviews

I. What is a section 110(a)(1) and (2) infrastructure SIP?

    Section 110(a)(1) and (2) of the CAA require, in part, that states 
submit to EPA plans to implement, maintain and enforce each of the 
NAAQS promulgated by EPA. These provisions require states to address 
basic SIP requirements including, for example, adequate provisions for 
emission inventory development, monitoring, and modeling to assure 
attainment and maintenance of the applicable standards. By statute, 
SIPs meeting the requirements of section 110(a)(1) and (2) are to be 
submitted by States within three years after promulgation of a new or 
revised standard. These SIPs are commonly referred to as 
``infrastructure'' SIPs.

II. What elements are applicable under section 110(a)(1) and (2)?

    On October 2, 2007, EPA issued guidance to address infrastructure 
SIP elements required under section 110(a)(1) and (2) for the 1997 8-
hour ozone and PM2.5 NAAQS.\1\ EPA will address these elements below 
under the following headings: (A) Emission limits and other control 
measures; (B) Ambient air quality monitoring/data system; (C) Program 
for enforcement of control measures (PSD, New Source Review for 
nonattainment areas, and construction and modification of all 
stationary sources); (D) Interstate and international transport; (E) 
Adequate authority, resources, implementation, and oversight; (F) 
Stationary source monitoring system; (G) Emergency authority; (H) 
Future SIP revisions; (I) Nonattainment areas; \2\ (J) Consultation 
with government officials, public notification, prevention of 
significant deterioration (PSD), and visibility protection; \3\ (K) Air 
quality and modeling/data; (L) Permitting fees; and (M) Consultation/
participation by affected local entities.\4\
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    \1\ William T. Harnett, Director, Air Quality Policy Division, 
Office of Air Quality Planning and Standards. ``Guidance on SIP 
Elements Required Under Sections 110(a)(1) and (2) for the 1997 8-
hour Ozone and PM2.5 National Ambient Air Quality 
Standards.'' Memorandum to EPA Air Division Directors, Regions I-X, 
October 2, 2007.
    \2\ As discussed in further detail below, subsection 
110(a)(2)(I) is not applicable for the infrastructure SIP approval 
process and therefore EPA will take action on the requirements of 
part D attainment plans separately.
    \3\ As discussed in further detail below, subsection 
110(a)(2)(J), as it relates to visibility protection, is also not 
applicable for the infrastructure SIP approval process, and 
therefore EPA is not addressing it in today's proposed rulemaking.
    \4\ This action also does not address infrastructure 
requirements with respect to the 1997 PM2.5 NAAQS or the 
2006 revisions to the NAAQS. Those requirements will be addressed in 
future rulemaking.
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III. What is EPA's evaluation of how the state addressed the relevant 
elements of section 110(a)(1) and (2)?

    On July 18, 1997, EPA promulgated new 8-hour ozone and new fine 
particulate matter primary and secondary NAAQS. (62 FR 38894; 62 FR 
38711). On December 7, 2007, EPA Region 7 received the state of 
Nebraska's ozone infrastructure SIP submittal. EPA has reviewed the 
state's formal submission and the relevant statutory and regulatory 
authorities and provisions generally referenced in the submittal from 
Nebraska.
    As described below, today's proposed action only pertains to the 
1997 ozone standard; it does not pertain to EPA's 1997 promulgation of 
the PM2.5 standards. In addition, it does not address issues 
relating to interstate transport under section 110(a)(2)(D)(i), which 
have already been addressed for the 1997 ozone and PM2.5 
NAAQS in prior rulemaking (72 FR 71245).
    Nebraska's SIP submittal addresses the provisions of section 
110(a)(1) and (2) as described below. EPA believes that Nebraska has 
the adequate infrastructure needed to address all applicable elements 
of section 110(a)(1) and (2) for the 1997 8-hour ozone NAAQS.
    (A) Emission limits and other control measures: Section 
110(a)(2)(A) requires SIPs to include enforceable emission limits and 
other control measures, means or techniques, schedules for compliance 
and other related matters as needed to implement, maintain and enforce 
each NAAQS.
    The state of Nebraska's statutes and Air Quality Regulations 
authorize the Nebraska Department of Environmental Quality (NDEQ) to 
regulate air quality and implement air quality control regulations. 
Section 81-1504 of the Nebraska Revised Statutes authorizes NDEQ to 
act, among other things, as the state air pollution control agency for 
all purposes of the CAA and to develop comprehensive programs for the 
prevention, control and abatement of new or existing pollution to the 
air of the state. Air pollution is defined in Section 81-1502 of the 
Nebraska Revised Statutes as the presence in the outdoor atmosphere of 
one or more air contaminants or combinations thereof in such quantities 
and of such duration as are or may tend to be injurious to human, 
plant, or animal life, property, or the conduct of business.
    Section 81-1505(1) of the Nebraska Revised Statutes authorizes the 
Nebraska Environmental Quality Council (EQC) to adopt and promulgate 
rules which set air standards that will protect public health and 
welfare. The EQC is also authorized to classify air contaminant sources 
according to levels and types of discharges, emissions or other 
characteristics.
    Chapter 4, Section 005 of Title 129 of the Nebraska Administrative 
Code (NAC) (``Ambient Air Quality Standards'') adopts the 1997 ozone 
standards promulgated by EPA (i.e., 0.08 parts per million). In 
addition, the Nebraska rules incorporate, by reference, Appendix I in 
40 CFR Part 50 for determining whether the ozone standards have been 
attained. Therefore, ozone is an air contaminant which may be regulated 
under Nebraska law.
    EPA notes that Chapter 35, Section 001 of the NAC provides that 
sources may submit information relating to excess emissions during a 
startup, shutdown or malfunction (SSM) events. Nevertheless, 
notwithstanding this provision, the regulations expressly give the 
Director of NDEQ the ability to take appropriate enforcement action. 
See chapter 35, Sections 001, 006, and 008 of the NAC. In today's 
proposed rulemaking, EPA is not proposing to approve or disapprove any 
existing state provisions with regard to excess emissions during a SSM 
of operations at a facility. EPA believes that a number of states have 
SSM provisions that are contrary to the Clean Air Act and existing EPA 
guidance,\5\ and the Agency plans to address such state regulations in 
the future. In the meantime, EPA encourages any state having a 
deficient SSM provision to take steps to correct it as soon as 
possible.
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    \5\ Steven Herman, Assistant Administrator for Enforcement and 
Compliance Assurance, and Robert Perciasepe, Assistant Administrator 
for Air and Radiation. ``State Implementation Plans (SIPs): Policy 
Regarding Excess Emissions During Malfunctions, Startup, and 
Shutdown.'' Memorandum to EPA Air Division Directors, September 20, 
1999.
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    EPA notes that the Section 81-1513 of the Nebraska Revised Statutes 
contain provisions that give the Director of NDEQ the authority, under 
certain circumstances, to grant variances from rules and regulations 
established

[[Page 17594]]

pursuant to the Clean Air Act.\6\ EPA also notes that the Nebraska 
regulations contain provisions which allow the Director of NDEQ the 
discretion to approve alternatives to the Nebraska regulations (see, 
e.g., chapter 6, Section 004 of the NAC, which allows the Director to 
approve alternate test methods and procedures for use in determining 
actual emissions). In this action, EPA is not proposing to approve or 
disapprove any existing state rules with regard to such ``variance'' or 
``Director's discretion'' provisions. EPA believes that a number of 
states have such provisions that are contrary to the Clean Air Act and 
existing EPA guidance \7\, and the Agency plans to take action in the 
future to address such state regulations. In the meantime, EPA 
encourages any state having a ``variance'' or ``Director's discretion'' 
provision that is contrary to the Clean Air Act and EPA guidance to 
take steps to correct the deficiency as soon as possible.
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    \6\ The statutory variance provisions are not included in the 
Nebraska SIP and are not recognized under federal law. In any event, 
a variance from an EPA-approved SIP requirement would not be 
recognized as a revision to the SIP unless approved by EPA under the 
CAA requirements for SIP revisions (see, 40 CFR 51.104(d)).
    \7\ J. Craig Potter, Assistant Administrator for Air and 
Radiation, Thomas L. Adams, Jr., Assistant Administrator for 
Enforcement and Compliance Monitoring, and Francis S. Blake, General 
Counsel, Office of General Counsel. ``Review of State Implementation 
Plans and Revisions for Enforceability and Legal Sufficiency.'' 
Memorandum, September 23, 1987. See also 52 FR 45109 (November 24, 
1987).
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    EPA believes that Nebraska has statutory and regulatory authority 
to establish additional emissions limitations and other measures, as 
necessary to address attainment and maintenance of the ozone standards. 
Therefore, EPA believes that the Nebraska SIP adequately addresses the 
requirements of section 110(a)(2)(A) for the 1997 8-hour ozone NAAQS.
    (B) Ambient air quality monitoring/data system: Section 
110(a)(2)(B) requires SIPs to include provisions to provide for 
establishment and operation of ambient air quality monitors, collection 
and analysis of ambient air quality data, and making these data 
available to EPA upon request.
    To address this element, section 81-1505(12)(o) of the Nebraska 
Revised Statutes provides the enabling authority necessary for Nebraska 
to fulfill the requirements of Section 110(a)(2)(B). This provision 
gives the EQC the authority to promulgate rules and regulations 
concerning the monitoring of emissions. The Air Quality Division within 
NDEQ implements these requirements. Along with their other duties, the 
monitoring program within NDEQ's Air Compliance & Enforcement Program 
collects air monitoring data, quality assures the results, and reports 
the data.
    NDEQ submits annual monitoring network plans to EPA for approval, 
including plans for its ozone monitoring network, as required by 40 CFR 
58.10. Prior to submission to EPA, Nebraska makes the plans available 
for public review on NDEQ's Web site. See, http://www.deq.state.ne.us/Publica.nsf/a9f87abbcc29fa1f8625687700625436/3f5f30d938b93ef38625730800516a57?OpenDocument, for NDEQ's 2009 Ambient 
Air Monitoring Network Plan. This Plan includes, among other things, 
the locations for the ozone monitoring network. On February 23, 2010, 
EPA approved Nebraska's 2009 ambient air network monitoring plan. 
According to this Plan (at page 15), NDEQ also plans to conduct five-
year monitoring network assessments, including the ozone monitoring 
network, as required by 40 CFR 58.10(d). As mentioned previously under 
element (A), Title 129, Chapter 4, Section 005 of the NAC requires that 
attainment with the ozone standard be determined in accordance with the 
applicable Federal regulations in 40 CFR Part 50, App. I. Nebraska 
submits air quality data to EPA's Air Quality System (AQS) quarterly, 
pursuant to the provisions of work plans developed in conjunction with 
EPA grants to the state.
    Based on the foregoing, EPA believes that the Nebraska SIP meets 
the requirements of section 110(a)(2)(B) for the 1997 8-hour ozone 
NAAQS.
    (C) Program for enforcement of control measures (PSD, New Source 
Review for nonattainment areas, and construction and modification of 
all stationary sources): Section 110(a)(2)(C) requires states to 
include the following elements in the SIP: (1) A program providing for 
enforcement of all SIP measures described in Section 110(a)(2)(A); (2) 
a program for the regulation of the modification and construction of 
stationary sources as necessary to protect the applicable NAAQS; and 
(3) a permit program to meet the major source permitting requirements 
of the Act (including the program for areas designated as not attaining 
the NAAQS, and a program for the prevention of significant 
deterioration of air quality program in other areas). Note that all 
areas of Nebraska are currently in attainment with the NAAQS. In 
addition, as discussed in further detail below, this proposed 
infrastructure SIP rulemaking will not address the Nebraska program for 
nonattainment area-related provisions, since these submittals are not 
applicable for the infrastructure SIP approval process.
    (1) With respect to enforcement of requirements of the SIP, Section 
81-1504(1) of the Nebraska Revised Statutes provide authority for NDEQ 
to enforce the requirements of the Nebraska Environmental Protection 
Act, and any regulations, permits, or final compliance orders issued 
under the provisions of that law. In addition, Section 81-1504(7) 
authorizes NDEQ to issue orders prohibiting or abating discharges of 
waste into the air and requiring the modification, extension or 
adoption of remedial measures to prevent, control, or abate air 
pollution. Section 81-1507 authorizes NDEQ to commence an enforcement 
action for any violations of the Environmental Protection Act, any 
rules or regulations promulgated thereunder, or any orders issued by 
NDEQ. This enforcement action can not only seek civil penalties, but 
also require that the recipient take corrective action to address the 
violation. See Section 81-1508.02. Section 81-1508.01 provides for 
criminal penalties for knowing or willful violations of the statute, 
regulations or permit conditions, in addition to other acts described 
in that section.
    (2) Section 110(a)(2)(C) also requires that the SIP include 
measures to regulate construction and modification of stationary 
sources to protect the NAAQS. Nebraska has a program under Title 129, 
Chapter 17 of the NAC that requires such sources to first obtain a 
construction permit from NDEQ. The permitting process is designed to 
ensure that new and modified sources will not interfere with NAAQS 
attainment. NDEQ has the authority to require the source applying for 
the permit to undergo an air quality impact analysis. If NDEQ 
determines that emissions from a constructed or modified source 
interfere with attainment of the NAAQS, it may deny the permit until 
the source makes the necessary changes to obviate the objections to the 
permit issuance. See Chapter 17, Sections 008 and 009 of the NAC.
    EPA has determined that Nebraska's minor new source review (NSR) 
program adopted pursuant to section 110(a)(2)(C) of the Act regulates 
emissions of ozone and its precursors. EPA has also determined that 
certain provisions of the state's minor NSR program adopted pursuant to 
section 110(a)(2)(C) of the Act likely do not meet all the requirements 
found in EPA's regulations implementing that provision. See 40 CFR 
51.160-51.164. EPA previously approved Nebraska's

[[Page 17595]]

minor NSR program into the SIP, and at the time there was no objection 
to the provisions of this program. See 37 FR 10842 (May 31, 1972) and 
60 FR 372 (January 4, 1995). Since then, the state and EPA have relied 
on the existing state minor NSR program to assure that new and modified 
sources not captured by the major NSR permitting programs do not 
interfere with attainment and maintenance of the NAAQS.
    In this action, EPA is proposing to approve Nebraska's 
infrastructure SIP for ozone with respect to the general requirement in 
Section 110(a)(2)(C) to include a program in the SIP that regulates the 
modification and construction of any stationary source as necessary to 
assure that the NAAQS are achieved. EPA is not proposing to approve or 
disapprove the state's existing minor NSR program itself to the extent 
that it is inconsistent with EPA's regulations governing this program. 
EPA believes that a number of states may have minor NSR provisions that 
are contrary to the existing EPA regulations for this program. EPA 
intends to work with states to reconcile state minor NSR programs with 
EPA's regulatory provisions for the program. The statutory requirements 
of Section 110(a)(2)(C) provide for considerable flexibility in 
designing minor NSR programs, and EPA believes it may be time to 
revisit the regulatory requirements for this program to give the states 
an appropriate level of flexibility to design a program that meets 
their particular air quality concerns, while assuring reasonable 
consistency across the country in protecting the NAAQS with respect to 
new and modified minor sources.
    (3) Nebraska also has a program approved by EPA which meets the 
requirements of Part C, relating to prevention of significant 
deterioration of air quality. Nebraska's implementing rule, Title 129, 
Chapter 19, incorporates the relevant portions of the Federal rule, 40 
CFR 52.21 (as of July 1, 2004), by reference. In this action, EPA is 
not proposing to approve or disapprove any state rules with regard to 
NSR reform requirements. EPA will act on NSR reform submittals through 
a separate rulemaking process. For Nebraska, we have previously 
approved Nebraska's NSR reform rules for attainment areas, and, as 
previously stated, Nebraska currently has no nonattainment areas. See 
76 FR 15852, March 22, 2011.
    The Nebraska SIP also contains a permitting program for major 
sources and modifications in nonattainment areas (see Title 129, 
Chapter 17, Section 013). This section is currently not applicable to 
Nebraska because all areas of Nebraska are currently in attainment with 
the NAAQS. Even if it were applicable, the SIP's discussion of 
nonattainment areas is not addressed in this rulemaking (see discussion 
of the Section 110(a)(2)(I) requirements for nonattainment areas, 
below).
    With respect to the PSD program, the Nebraska SIP provides that 
ozone precursors (volatile organic compounds--VOCs and oxides of 
nitrogen--NOx) are regulated. For example, a stationary source that is 
major for VOCs is also major for ozone, pursuant to Chapter 2, Section 
005 of the NAC. In addition, a source that undergoes an emissions 
increase or a net emissions increase of 40 tons per year of VOCs also 
is considered to have undergone an emissions increase or net emissions 
increase of 40 tons per year of ozone under the state's prevention of 
significant deterioration of air quality program. See Chapter 19, 
Section 010.06 of the NAC. In addition, because Nebraska defines 
``regulated NSR pollutant'' to include pollutants for which a NAAQS has 
been promulgated and any precursors for such pollutants that have been 
identified by EPA,\8\ VOCs and NOx are therefore regulated by Nebraska 
as precursors for ozone.
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    \8\ The regulations at 40 CFR 52.21(b)(50) specifically state 
that nitrogen oxides and VOCs are considered precursors for ozone.
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    Finally, EPA notes that on March 22, 2011, in a separate 
rulemaking, EPA approved the state of Nebraska's revisions to its SIP 
to regulate GHGs under the Nebraska New Source Review Prevention of 
Significant Deterioration program. 76 FR 15852. Thus, we have 
previously determined that the Nebraska SIP meets the PSD requirements 
with respect to GHGs.
    On the basis of the foregoing, EPA believes that the Nebraska SIP 
and underlying statutory authority are adequate to meet the 
requirements of section 110(a)(2)(C) for the 1997 8-hour ozone NAAQS.
    (D) Interstate and international transport: Section 110(a)(2)(D)(i) 
requires SIPs to include provisions prohibiting any source or other 
type of emissions activity in one state from contributing significantly 
to nonattainment in, or interfering with maintenance by, another state 
with respect to the NAAQS, or from interfering with measures required 
in another state to prevent significant deterioration of air quality or 
to protect visibility.
    Nebraska addressed the provisions of Section 110(a)(2)(D)(i), as it 
relates to the 1997 ozone and PM standards, in the SIP submission 
received by EPA on May 18, 2007. EPA approved the portion of the 
Nebraska SIP submittal relating to Section 110(a)(2)(D)(i), on December 
17, 2007 (72 FR 71245). Therefore, the proposed action addressed in 
this notice does not include the interstate transport elements, nor 
does this rulemaking reopen any aspect of EPA's prior action on the 
transport elements for Nebraska for the 1997 standards.
    Section 110(a)(2)(D)(ii) requires that the SIP insure compliance 
with the applicable requirements of sections 126 and 115, relating to 
interstate and international pollution abatement.
    Section 126(a) of the Act requires new or modified sources to 
notify neighboring states of potential impacts from sources within the 
state. Although Nebraska sources have not been identified by EPA as 
having any interstate or international impacts under Section 126 or 
Section 115 in any pending actions relating to the 1997 ozone 
standards, the Nebraska regulations address abatement of the effects of 
interstate pollution. Title 129, Chapter 14, Section 010.03 of the NAC 
requires NDEQ, after receiving a complete PSD permit application, to 
notify EPA, as well as officials and agencies having cognizance where 
the proposed construction is to occur. This includes state or local air 
pollution control agencies and the chief executives of the city and 
county where the source would be located; any comprehensive regional 
land use planning agency; and any state, Federal Land Manager, or 
Indian governing body whose lands may be affected by emissions from the 
source or modification. Finally, we believe that Nebraska could use the 
same statutory authorities previously discussed, primarily Section 81-
1505 of the Nebraska Revised Statutes, to respond to any future 
findings with respect to the 1997 ozone standards.
    Based on the foregoing, EPA believes that Nebraska has the adequate 
infrastructure needed to address Section 110(a)(2)(D)(ii) for the 1997 
8-hour ozone NAAQS.
    (E) Adequate authority, resources, implementation, and oversight: 
Section 110(a)(2)(E) requires that SIPs provide for the following: (1) 
Necessary assurances that the state (and other entities within the 
state responsible for implementing the SIP) have adequate personnel, 
funding, and authority under state or local law to implement the SIP, 
and that there are no legal impediments to such implementation; (2) 
requirements that the state comply with the requirements relating to 
state boards, pursuant to Section 128 of the

[[Page 17596]]

Act; and (3) necessary assurances that the state has responsibility for 
implementation of any plan provision for which it relies on local 
governments or other entities to carry out that portion of the plan.
    (1) With respect to adequate authority, we have previously 
discussed Nebraska's authority to implement the SIP for the 1997 ozone 
standards, primarily in the discussion of Section 110(a)(2)(A). Neither 
Nebraska nor EPA has identified any legal impediments to implementation 
of those standards.
    With respect to adequate resources, NDEQ asserts that it has 
adequate personnel to implement the SIP. State statutes provide NDEQ 
the authority to establish bureaus, divisions and or sections to carry 
out the duties and powers granted by the Nebraska state law to address 
the control of air pollution, to be administered by full-time salaried, 
bureau, division or section chiefs. See Nebraska Revised Statutes 
Section 81-1504(14). NDEQ's Air Quality Division is currently divided 
into the Permitting Section, the Compliance Section, and the Program 
Planning and Development Unit.
    With respect to funding, the Nebraska statutes require the EQC to 
establish various fees for sources, in order to fund the reasonable 
costs of implementing various air pollution control programs. For 
example, Section 81-1505(12)(e) of the Nebraska Revised Statutes 
requires the EQC to establish a requirement for sources to pay fees 
sufficient to pay the reasonable direct and indirect costs of 
developing and administering the air quality operating permit program. 
These costs include overhead charges for personnel, equipment, 
buildings and vehicles; enforcement costs; costs of emissions and 
ambient monitoring; and modeling analyses and demonstrations. See 
Nebraska Revised Statutes Section 81-1505.04(2)(b). Similarly, Section 
81-1505(12)(a) requires the EQC to establish application fees for air 
contaminant sources seeking to obtain a permit prior to construction.
    Section 81-1505.05 of the Nebraska Revised Statutes provides that 
all fees collected pursuant to Section 81-1505.04 be credited to the 
``Clean Air Title V Cash Fund'' to be used solely to pay for the direct 
and indirect costs required to develop and administer the air quality 
permit program. Similarly, Section 81-1505.06 provides that all fees 
collected pursuant to Section 81-1505(12) be deposited in the ``Air 
Quality Permit Cash Fund.''
    Nebraska uses funds in the non-Title V subaccounts, along with 
General Revenue funds and EPA grants under, for example, Sections 103 
and 105 of the Act, to fund the programs. EPA conducts periodic program 
reviews to ensure that the state has adequate resources and funding to, 
among others, implement the SIP.
    (2) Conflict of interest provisions--Section 128
    Section 110(a)(2)(E) also provides that the state must meet the 
requirements of Section 128, relating to representation on state boards 
and conflicts of interest by members of such boards. We note that this 
particular provision is not related to promulgation or revision of any 
NAAQS, and we have not determined that Nebraska must show specifically 
that it meets this requirement with respect to the ozone infrastructure 
SIP for the 1997 standards. However, the following discussion shows how 
Nebraska generally meets the requirements of Section 128.
    Section 128 requires that a SIP-implementing body which approves 
permits or enforcement orders under the Act must have at least a 
majority of members who represent the public interest and do not derive 
a ``significant portion'' of income from entities or individuals 
subject to permits and enforcement orders under the Act. In addition, 
Section 128 requires that members of such a body or the agency head 
with similar authorities adequately disclose any potential conflicts of 
interest.
    Section 81-1503 of the Nebraska Revised Statutes generally tracks 
the language of Section 128 of the Act. It provides guidelines on the 
composition of the 17 members of the Environmental Quality Council. It 
also requires that the Director of NDEQ (who is the person responsible 
for issuing permits and enforcement orders in Nebraska), before he or 
she enters the duty of his or her office, attest that he or she does 
not receive a significant portion of his or her income from permit-
holders or applicants for a permit. Furthermore, Title 116 of the NAC 
provides the Code of Ethics for NDEQ, which includes prohibitions on 
conflicts of interest for all employees (including officers, employees, 
and directors).
    (3) With respect to assurances that the state has responsibility to 
implement the SIP when it authorizes local or other agencies to carry 
out portions of the plan, Section 81-1504(18) of the Nebraska Revised 
Statutes grants NDEQ the authority to encourage local units of 
government to handle air pollution problems within their own 
jurisdictions. NDEQ may delegate, by contract with governmental 
subdivisions which have adopted air pollution control programs, the 
enforcement of state-adopted air pollution control regulations within a 
specified region surrounding the jurisdictional area of the 
governmental subdivision. See Section 81-1504(23). However, the 
Nebraska statutes also retain authority in NDEQ to carry out the 
provisions of state air pollution control law. Section 81-1504(1) gives 
NDEQ ``exclusive general supervision'' of the administration and 
enforcement of the Nebraska Environmental Protection Act. In addition, 
Section 81-1504(4) designates NDEQ as the air pollution control agency 
for the purposes of the Clean Air Act.
    The state of Nebraska relies on two local agencies for assistance 
in implementing portions of the air pollution control program: Lincoln/
Lancaster County Health Department and Omaha Air Quality Control. NDEQ 
oversees the activities of these local agencies to ensure adequate 
implementation of the plan. NDEQ utilizes subgrants to the local 
agencies to provide adequate funding, and as an oversight mechanism. 
EPA conducts reviews of the local program activities in conjunction 
with its oversight of the state program. Based on the foregoing, EPA 
believes that Nebraska has the adequate infrastructure needed to 
address Section 110(a)(2)(E) for the 1997 8-hour ozone NAAQS.
    (F) Stationary source monitoring system: Section 110(a)(2)(F) 
requires states to establish a system to monitor emissions from 
stationary sources and to submit periodic emission reports. That 
section also requires that the state correlate the source reports with 
emission limitations or standards established under the Act and make 
reports available for public inspection.
    To address this element, Section 81-1505(12)(o) of the Nebraska 
Revised Statutes gives the EQC the authority to promulgate rules and 
regulations for air pollution control, including requirements for owner 
or operator testing and monitoring of emissions. It also gives the EQC 
the authority to promulgate similar rules and regulations for the 
periodic reporting of these emissions. See Section 81-1505(12)(l). 
Chapter 34, Section 002 of the NAC incorporates various EPA reference 
methods for testing source emissions, including methods for 
NOX and VOCs. The Federal test methods are in 40 CFR Part 
60, App. A.
    The Nebraska regulations also require that all Class I and Class II 
operating permits include requirements for monitoring of emissions. See 
Chapter 8, Sections 004.01 and 015 of the NAC. Furthermore, Chapter 34, 
Section 001 of the NAC allows NDEQ to order an emissions source to make 
or have tests

[[Page 17597]]

made to determine the rate of contaminant emissions from the source 
whenever NDEQ has reason to believe that the existing emissions from 
the source exceed the applicable emissions limits.
    The Nebraska regulations also impose reporting requirements on 
sources subject to permitting requirements. See Chapter 6, Section 001; 
Chapter 8, Sections 004.03 and 015 of the NAC. Nebraska makes all 
monitoring reports submitted as part of Class I or Class II permit a 
publicly available document. Although sources can submit a claim of 
confidentiality for some of the information submitted, Nebraska 
regulations specifically exclude emissions data from being entitled to 
confidential protection. See Chapter 7, Section 004 of the NAC. 
Nebraska uses this information to track progress towards maintaining 
the NAAQS, developing control and maintenance strategies, identifying 
sources and general emission levels, and determining compliance with 
emission regulations and additional EPA requirements.
    EPA believes that Nebraska has the adequate infrastructure needed 
to address section 110(a)(2)(F) for the 1997 8-hour ozone NAAQS.
    (G) Emergency authority: Section 110(a)(2)(G) requires states to 
provide for authority to address activities causing imminent and 
substantial endangerment to public health or welfare or the environment 
(comparable to the authorities provided in Section 303 of the Act), 
including contingency plans to implement the emergency authorities.
    Section 81-1507 of the Nebraska Revised Statutes states that 
whenever the Director of NDEQ finds that an emergency exists requiring 
immediate action to protect the public health and welfare, he or she 
may issue an order requiring that such action be taken as the Director 
deems necessary to meet the emergency. Chapter 38, Section 003 of the 
NAC states that the conditions justifying the proclamation of an air 
pollution alert, air pollution warning, or air pollution emergency 
exist whenever the Director determines that the accumulation of air 
pollutants in any place is attaining or has attained levels which 
could, if such levels are sustained or exceeded, lead to a substantial 
threat to the health of persons. This regulation also establishes 
action levels for various air pollutants, including ozone. The action 
levels (which include ``Air Pollution Alert,'' ``Air Pollution 
Warning,'' and ``Air Pollution Emergency'') and associated contingency 
measures vary depending on the severity of the ozone concentrations. 
Appendix I to Title 129 of the NAC provides an Emergency Response Plan 
with actions to be taken under each of the severity levels. These steps 
are designed to prevent the excessive build-up of air pollutants to 
concentrations which can result in imminent and substantial danger to 
public health. Both the regulation at Chapter 38 and the Emergency 
Response Plan are contained in the federally approved SIP.
    EPA believes that the Nebraska SIP adequately addresses section 
110(a)(2)(G) for the 1997 8-hour ozone NAAQS.
    (H) Future SIP revisions: Section 110(a)(2)(H) requires states to 
have the authority to revise their SIPs in response to changes in the 
NAAQS, availability of improved methods for attaining the NAAQS, or in 
response to an EPA finding that the SIP is substantially inadequate to 
attain the NAAQS.
    As discussed previously, Section 81-1504 of the Nebraska Revised 
Statutes authorizes NDEQ to regulate air quality and implement air 
quality control regulations. It also authorizes NDEQ to act as the 
state air pollution control agency for all purposes of the Clean Air 
Act. Section 81-1505(1) gives the EQC the authority to adopt and 
promulgate rules which set air standards that will protect public 
health and welfare. This authority includes the authority to revise 
rules as necessary to respond to a revised NAAQS (see, for example, the 
discussion above regarding Nebraska's adoption of the 1997 ozone 
NAAQS).
    EPA believes that Nebraska has the adequate authority to address 
section 110(a)(2)(H) for the 1997 8-hour ozone NAAQS.
    (I) Nonattainment areas: Section 110(a)(2)(I) requires that in the 
case of a plan or plan revision for areas designated as nonattainment 
areas, states must meet applicable requirements of Part D of the Act, 
relating to SIP requirements for designated nonattainment areas.
    This section is currently not applicable to Nebraska because all 
areas of Nebraska are currently in attainment with the NAAQS. 
Nevertheless, EPA notes that the Nebraska regulations have provisions 
in place which address construction or modification of sources in 
nonattainment areas. See Chapter 17, Section 013 of the NAC. These 
regulations are contained in the federally approved SIP.
    EPA has not addressed section 110(a)(2)(I) in its recent 
infrastructure SIP guidance because Part D SIPs are due on a different 
schedule than the infrastructure SIP submittal schedule. (See, e.g., 
the infrastructure SIP guidance for the revised lead standard, 73 FR 
67034, n. 113, Nov. 12, 2008, and the infrastructure SIP guidance for 
the revised NO2 standards, 75 FR 6523, n. 27, Feb. 9, 2010.) 
Therefore, this proposal does not address section 110(a)(2)(I). EPA 
will take action on any part D nonattainment plans through a separate 
rulemaking.
    (J) Consultation with government officials, Public Notification, 
PSD and visibility protection: Section 110(a)(2)(J) requires SIPs to 
meet the applicable requirements of the following CAA provisions: (1) 
Section 121, relating to interagency consultation regarding certain CAA 
requirements; (2) Section 127, relating to public notification of NAAQS 
exceedances and related issues; and (3) Part C of the Act, relating to 
prevention of significant deterioration of air quality and visibility 
protection.
    (1) With respect to interagency consultation, Section 81-1504(3) 
authorizes NDEQ to advise and consult and cooperate with other Nebraska 
state agencies, the Federal government, other states, interstate 
agencies, and with affected political subdivisions, for the purpose of 
implementing its air pollution control responsibilities. Nebraska also 
has appropriate interagency consultation provisions in its 
preconstruction permit program. See, e.g., Chapter 14, Section 010 of 
the NAC (requiring NDEQ to send a copy of a notice of public comment on 
construction permit applications to any state or local air pollution 
control agency; the chief executives of the city and county in which 
the source would be located; any comprehensive regional land use 
planning agency; and any state, Federal Land Manager, or Indian 
governing body whose lands may be affected by emissions from the source 
or modification).
    (2) With respect to the requirements for public notification in CAA 
Section 127, Chapter 38 of the NAC, discussed previously in connection 
with the state's authority to address emergency episodes, contains 
provisions for public notification of elevated ozone and other air 
pollutant levels. Appendix I to Title 129 of the NAC includes measures 
which can be taken by the public to reduce concentrations. In addition, 
information regarding air pollution and related issues, is provided on 
an NDEQ Web site, http://www.deq.state.ne.us/NDEQSite.nsf/AirDivSecProg?OpenView&Start=1&ExpandView&Count=500. NDEQ also prepares 
an annual report on air quality in the state which is available to the 
public on its Web site, at http://www.deq.state.ne.us/Publica.nsf/
c4afc76e4e077e1186256877

[[Page 17598]]

0059b73f/b278ea4efe682747862575e60050d633?OpenDocument.
    (3) With respect to the applicable requirements of Part C, relating 
to prevention of significant deterioration of air quality and 
visibility protection, we previously noted in the discussion of Section 
110(a)(2)(C) (relating to enforcement of control measures) how the 
Nebraska SIP meets the PSD requirements, incorporating the Federal rule 
by reference. With respect to the visibility component of Section 
110(a)(2)(J), we reiterate the statutory requirement providing, in 
relevant part, that each plan must meet the ``applicable requirements'' 
of Part C (of Title I of the Act) relating to visibility protection. We 
note that the other Part C requirements specified in section 
110(a)(2)(J) (applicable requirements relating to prevention of 
significant deterioration of air quality), specifically relate to the 
1997 and 2006 NAAQS (as well as other pollutants regulated under the 
CAA), and a state must be able to implement those requirements with 
respect to a new or revised NAAQS when promulgated. In contrast to the 
PSD program, the visibility protection requirements are not directly 
related to the promulgation of, or revision to, a NAAQS. While the SIP 
must independently meet the visibility protection requirements of Part 
C by virtue of the specific SIP requirements in sections 169A and 169B 
of the Act, EPA believes that the visibility protection requirements 
are not ``applicable requirements'' within the meaning of section 
110(a)(2)(J) and that the infrastructure SIP is not required to be 
revised with respect to visibility protection merely due to 
promulgation of, or revision to, these 1997 ozone NAAQS.
    For the reasons stated above, EPA believes that Nebraska has met 
the applicable requirements of Section 110(a)(2)(J) for the 1997 8-hour 
ozone NAAQS in the state.
    (K) Air quality and modeling/data: Section 110(a)(2)(K) requires 
that SIPs provide for performing air quality modeling, as prescribed by 
EPA, to predict effects on ambient air quality of emissions of any 
NAAQS pollutant, and for submission of such data to EPA upon request.
    Nebraska has authority to conduct air quality modeling and report 
the results of such modeling to EPA. Section 81-1504(5) provides NDEQ 
with the authority to encourage, participate in, or conduct studies, 
investigations, research and demonstrations relating to air pollution 
and its causes and effects. As an example of regulatory authority to 
perform modeling for purposes of determining NAAQS compliance, the 
regulations at Chapter 19, Section 019 provide for the use of EPA-
approved air quality models (e.g., those found in 40 CFR Part 51, App. 
W) for construction permitting. If the use of these models is 
inappropriate, the model may be modified or an alternate model may be 
used with the approval of NDEQ and EPA.
    The Nebraska regulations also give NDEQ the authority to require 
that modeling data be submitted for analysis. Chapter 19, Section 
021.02 states that upon request by NDEQ, the owner or operator of a 
proposed source or modification must provide information on the air 
quality impact of the source or modification, including all 
meteorological and topographical data necessary to estimate such 
impact.
    EPA believes that Nebraska has the adequate infrastructure needed 
to address Section 110(a)(2)(K) for the 1997 8-hour ozone NAAQS.
    (L) Permitting Fees: Section 110(a)(2)(L) requires SIPs to require 
each major stationary source to pay permitting fees to the permitting 
authority to cover the cost of reviewing, approving, implementing and 
enforcing a permit. That section provides that the fee requirement 
applies until a fee program established by the state pursuant to Title 
V of the Act, relating to operating permits, is approved by EPA.
    Section 81-1505 of the Nebraska Revised States provides authority 
for NDEQ to collect permit fees, including Title V fees. For example, 
Section 81-1505(e) requires that the EQC establish fees sufficient to 
pay the reasonable direct and indirect of developing and administering 
the air quality permit program. Nebraska's Title V program, including 
the fee program addressing the requirements of the Act and 40 CFR 70.9 
relating to Title V fees, was approved by EPA on October 18, 1995 (60 
FR 53872). Therefore, EPA believes that the requirements of Section 
110(a)(2)(L) are met.
    (M) Consultation/participation by affected local entities: Section 
110(a)(2)(M) requires SIPs to provide for consultation and 
participation by local political subdivisions affected by the SIP.
    Section 81-1504 of the Nebraska Revised Statutes gives NDEQ the 
authority to encourage local governments to handle air pollution 
problems within their respective jurisdictions and at the same time 
provide them with technical and consultative assistance. NDEQ is also 
authorized to delegate the enforcement of air pollution control 
regulations down to governmental subdivisions which have adopted air 
pollution control programs. As discussed previously, NDEQ currently 
relies on two local agencies for assistance in implementing portions of 
the air pollution control program: Lincoln/Lancaster County Health 
Department and Omaha Air Quality Control.
    In addition, as previously noted in the discussion about Section 
110(a)(2)(J), Nebraska's statutes and regulations require that NDEQ 
consult with local political subdivisions for the purposes of carrying 
out its air pollution control responsibilities.
    Therefore, EPA believes that Nebraska has the adequate 
infrastructure needed to address Section 110(a)(2)(M) for the 1997 8-
hour ozone NAAQS.

IV. What action is EPA proposing?

    EPA proposes to approve the State Implementation Plan (SIP) 
submittal from the state of Nebraska which addresses the requirements 
of Clean Air Act section 110(a)(2) for the 1997 revisions to the 
National Ambient Air Quality Standards (NAAQS) for ozone. As described 
above, EPA believes that Nebraska has the required infrastructure to 
address all elements of section 110(a)(2) to ensure that the revised 
ozone standards are implemented in the state.
    We are hereby soliciting comment on this proposed action. Final 
rulemaking will occur after consideration of any comments.

V. Statutory and Executive Order Reviews

    Under the Clean Air Act, 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 that reason, this proposed 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

[[Page 17599]]

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.

Statutory Authority

    The statutory authority for this action is provided by Section 110 
of the CAA, as amended (42 U.S.C. 7410).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Intergovernmental 
relations, Ozone.

    Dated: March 23, 2011.
Karl Brooks,
Regional Administrator, Region 7.
[FR Doc. 2011-7454 Filed 3-29-11; 8:45 am]
BILLING CODE 6560-50-P