[Federal Register Volume 79, Number 203 (Tuesday, October 21, 2014)]
[Rules and Regulations]
[Pages 62832-62844]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-24899]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R07-OAR-2014-0685; FRL-9918-13-Region 7]


Approval and Promulgation of Implementation Plans; State of 
Nebraska; Infrastructure SIP Requirements for the 2008 Lead National 
Ambient Air Quality Standards

AGENCY: Environmental Protection Agency.

ACTION: Direct final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is taking direct 
final action to approve two State Implementation Plan (SIP) submissions 
from the State of Nebraska. EPA is approving elements of a SIP 
submission from the State of Nebraska that addresses the applicable 
requirements of the Clean Air Act (CAA) section 110 for the 2008 
National Ambient Air Quality Standards (NAAQS) for Lead (Pb). Section 
110(a) of the CAA requires that each state adopt and submit a SIP to 
support implementation, maintenance, and enforcement of each new or 
revised NAAQS promulgated by EPA. These SIPs are commonly referred to 
as ``infrastructure'' SIPs. The infrastructure requirements are 
designed to ensure that the structural components of each state's air 
quality management program are adequate to meet the state's 
responsibilities under the CAA.
    EPA is also approving an additional SIP submission from the State 
of Nebraska that addresses section 128 of the CAA and supports 
requirements associated with infrastructure SIPs.

DATES: This direct final rule will be effective December 22, 2014, 
without further notice, unless EPA receives adverse comment by November 
20, 2014.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R07-
OAR-2014-0685, by one of the following methods:
    1. http://www.regulations.gov. Follow the on-line instructions for 
submitting comments.
    2. Email: [email protected].
    3. Mail: Mr. Gregory Crable, Air Planning and Development Branch, 
U.S. Environmental Protection Agency, Region 7, Air and Waste 
Management Division, 11201 Renner Boulevard, Lenexa, Kansas 66219.
    4. Hand Delivery or Courier: Deliver your comments to Mr. Gregory 
Crable, Air Planning and Development Branch, U.S. Environmental 
Protection Agency, Region 7, Air and Waste Management Division, 11201 
Renner Boulevard, Lenexa, Kansas 66219.
    Instructions: Direct your comments to Docket ID No. EPA-R07-OAR-
2014-0685. 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 email 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 email comment directly to EPA without 
going through http://www.regulations.gov, your email 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 
at http://www.regulations.gov or in hard copy at U.S. Environmental 
Protection Agency, Region 7, 11201 Renner Boulevard, Lenexa, Kansas 
66219 from 8:00 a.m. to 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.

[[Page 62833]]


FOR FURTHER INFORMATION CONTACT: Mr. Gregory Crable, Air Planning and 
Development Branch, U.S. Environmental Protection Agency, Region 7, 
11201 Renner Boulevard, Lenexa, KS 66219; telephone number: (913) 551-
7391; fax number: (913) 551-7065; email address: 
[email protected].

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

I. What is being addressed in this document?
II. What are the applicable elements under sections 110(a)(1) and 
(2) related to the 2008 Pb NAAQS?
III. What is EPA's approach to the review of infrastructure SIP 
submissions?
IV. What is EPA's evaluation of how the state addressed the relevant 
elements of sections 110(a)(1) and (2)?
V. What action is EPA taking?
VI. Statutory and Executive Order Review

I. What is being addressed in this document?

    EPA is taking direct final action to approve two Nebraska State 
Implementation Plan (SIP) submissions. First, EPA is approving an 
October 18, 2011, SIP submission from Nebraska that addresses the 
infrastructure requirements of CAA sections 110(a)(1) and (a)(2) for 
the 2008 Pb NAAQS. The requirement for states to make a SIP submission 
of this type arises out of CAA section 110(a)(1). Pursuant to section 
110(a)(1), states must make SIP submissions ``within 3 years (or such 
shorter period as the Administrator may prescribe) after the 
promulgation of a national primary ambient air quality standard (or any 
revision thereof),'' and these SIP submissions are to provide for the 
``implementation, maintenance, and enforcement'' of such NAAQS. The 
statute directly imposes on states the duty to make these SIP 
submissions, and the requirement to make the submissions is not 
conditioned upon EPA's taking any action other than promulgating a new 
or revised NAAQS. Section 110(a)(2) includes a list of specific 
elements that ``[e]ach such plan'' submission must address.
    EPA has historically referred to these SIP submissions made for the 
purpose of satisfying the requirements of CAA sections 110(a)(1) and 
(a)(2) as ``infrastructure SIP'' submissions. Although the term 
``infrastructure SIP'' does not appear in the CAA, EPA uses the term to 
distinguish this particular type of SIP submission from submissions 
that are intended to satisfy other SIP requirements under the CAA, such 
as ``nonattainment SIP'' or ``attainment plan SIP'' submissions to 
address the nonattainment planning requirements of part D of title I of 
the CAA, ``regional haze SIP'' submissions required by EPA rule to 
address the visibility protection requirements of CAA section 169A, and 
nonattainment new source review permit program submissions to address 
the permit requirements of CAA, title I, part D.
    EPA also is approving a March 11, 2014 request to include conflict 
of interest provisions into the Nebraska SIP. This submission addresses 
the conflict of interest provisions in section 128 of the CAA as it 
relates to element E of the infrastructure SIP.\1\
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    \1\ On August 22, 2013, Nebraska submitted provisions that 
address conflict of interest requirements in section 128 of the CAA 
as part of its infrastructure SIP submission for the 2010 Sulfur 
Dioxide (SO2) NAAQS. On March 11, 2014, Nebraska 
clarified its intent to include provisions that address section 128 
of the CAA for approval into Nebraska's SIP. EPA believes these 
conflict of interest provisions are applicable to all NAAQS. 
Therefore, as part of today's rulemaking for the 2008 Pb NAAQS, we 
are approving these provisions into the Nebraska SIP. See Section IV 
for further discussion.
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II. What are the applicable elements under sections 110(a)(1) and (2) 
related to the 2008 Pb NAAQS?

    On October 15, 2008, EPA revised the primary and secondary Pb NAAQS 
(hereafter the 2008 Pb NAAQS). The level of the primary (health-based) 
standard was revised to 0.15 micrograms per cubic meter ([micro]g/
m\3\), measured as total suspended particles (TSP) and not to be 
exceeded with an averaging time of a rolling 3-month period. EPA also 
revised the secondary (welfare-based) standard to be identical to the 
primary standard (73 FR 66964).\2\
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    \2\ Although the effective date of the Federal Register notice 
for the final rule was January 12, 2009, the rule was signed by the 
Administrator and publicly disseminated on October 15, 2008. 
Therefore, the deadline for submittal of infrastructure SIPs for the 
2008 Pb NAAQS was October 15, 2011.
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    For the 2008 Pb NAAQS, states typically have met many of the basic 
program elements required in section 110(a)(2) through earlier SIP 
submissions in connection with previous NAAQS. Nevertheless, pursuant 
to section 110(a)(1), states have to review and revise, as appropriate, 
their existing SIPs to ensure that they are adequate to address the 
2008 Pb NAAQS. To assist states in meeting this statutory requirement, 
EPA issued guidance on October 14, 2011, addressing the infrastructure 
SIP elements required under sections 110(a)(1) and (2) for the 2008 Pb 
NAAQS.\3\ 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; (J) Consultation with government officials, 
public notification, prevention of significant deterioration (PSD), and 
visibility protection; (K) Air quality and modeling/data; (L) 
Permitting fees; and (M) Consultation/participation by affected local 
entities.
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    \3\ Stephen D. Page, Director, Air Quality Policy Division, 
Office of Air Quality Planning and Standards, ``Guidance on 
Infrastructure State Implementation Plan (SIP) Elements Required 
Under Sections 110(a)(1) and 110(a)(2) for the 2008 Lead (Pb) 
National Ambient Air Quality Standards (NAAQS),'' Memorandum to EPA 
Regional Air Division Directors, Regions I-X, October 14, 2011 (2011 
Lead Infrastructure SIP Guidance).
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III. What is EPA's approach to the review of infrastructure SIP 
submissions?

    Section 110(a)(1) addresses the timing and general requirements for 
infrastructure SIP submissions, and section 110(a)(2) provides more 
details concerning the required contents of these submissions. The list 
of required elements provided in section 110(a)(2) contains a wide 
variety of disparate provisions, some of which pertain to required 
legal authority, some of which pertain to required substantive program 
provisions, and some of which pertain to requirements for both 
authority and substantive program provisions.\4\ EPA therefore believes 
that while the timing requirement in section 110(a)(1) is unambiguous, 
some of the other statutory provisions are ambiguous. In particular, 
EPA believes that the list of required elements for infrastructure SIP 
submissions provided in section 110(a)(2) contains ambiguities 
concerning what is required for

[[Page 62834]]

inclusion in an infrastructure SIP submission.
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    \4\ For example: section 110(a)(2)(E)(i) provides that states 
must provide assurances that they have adequate legal authority 
under state and local law to carry out the SIP; section 110(a)(2)(C) 
provides that states must have a SIP-approved program to address 
certain sources as required by part C of title I of the CAA; and 
section 110(a)(2)(G) provides that states must have legal authority 
to address emergencies as well as contingency plans that are 
triggered in the event of such emergencies.
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    The following examples of ambiguities illustrate the need for EPA 
to interpret some section 110(a)(1) and section 110(a)(2) requirements 
with respect to infrastructure SIP submissions for a given new or 
revised NAAQS. One example of ambiguity is that section 110(a)(2) 
requires that ``each'' SIP submission must meet the list of 
requirements therein, while EPA has long noted that this literal 
reading of the statute is internally inconsistent and would create a 
conflict with the nonattainment provisions in part D of title I of the 
Act, which specifically address nonattainment SIP requirements.\5\ 
Section 110(a)(2)(I) pertains to nonattainment SIP requirements and 
part D addresses when attainment plan SIP submissions to address 
nonattainment area requirements are due. For example, section 172(b) 
requires EPA to establish a schedule for submission of such plans for 
certain pollutants when the Administrator promulgates the designation 
of an area as nonattainment, and section 107(d)(1)(B) allows up to two 
years or in some cases three years, for such designations to be 
promulgated.\6\ This ambiguity illustrates that rather than apply all 
the stated requirements of section 110(a)(2) in a strict literal sense, 
EPA must determine which provisions of section 110(a)(2) are applicable 
for a particular infrastructure SIP submission.
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    \5\ See, e.g., ``Rule To Reduce Interstate Transport of Fine 
Particulate Matter and Ozone (Clean Air Interstate Rule); Revisions 
to Acid Rain Program; Revisions to the NOX SIP Call; 
Final Rule,'' 70 FR 25162, at 25163-65 (May 12, 2005) (explaining 
relationship between timing requirement of section 110(a)(2)(D) 
versus section 110(a)(2)(I)).
    \6\ EPA notes that this ambiguity within section 110(a)(2) is 
heightened by the fact that various subparts of part D set specific 
dates for submission of certain types of SIP submissions in 
designated nonattainment areas for various pollutants. Note, e.g., 
that section 182(a)(1) provides specific dates for submission of 
emissions inventories for the ozone NAAQS. Some of these specific 
dates are necessarily later than three years after promulgation of 
the new or revised NAAQS.
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    Another example of ambiguity within sections 110(a)(1) and 
110(a)(2) with respect to infrastructure SIPs pertains to whether 
states must meet all of the infrastructure SIP requirements in a single 
SIP submission, and whether EPA must act upon such SIP submission in a 
single action. Although section 110(a)(1) directs states to submit ``a 
plan'' to meet these requirements, EPA interprets the CAA to allow 
states to make multiple SIP submissions separately addressing 
infrastructure SIP elements for the same NAAQS. If states elect to make 
such multiple SIP submissions to meet the infrastructure SIP 
requirements, EPA can elect to act on such submissions either 
individually or in a larger combined action.\7\ Similarly, EPA 
interprets the CAA to allow it to take action on the individual parts 
of one larger, comprehensive infrastructure SIP submission for a given 
NAAQS without concurrent action on the entire submission. For example, 
EPA has sometimes elected to act at different times on various elements 
and sub-elements of the same infrastructure SIP submission.\8\
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    \7\ See, e.g., ``Approval and Promulgation of Implementation 
Plans; New Mexico; Revisions to the New Source Review (NSR) State 
Implementation Plan (SIP); Prevention of Significant Deterioration 
(PSD) and Nonattainment New Source Review (NNSR) Permitting,'' 78 FR 
4339 (January 22, 2013) (EPA's final action approving the structural 
PSD elements of the New Mexico SIP submitted by the State separately 
to meet the requirements of EPA's 2008 PM2.5 NSR rule), 
and ``Approval and Promulgation of Air Quality Implementation Plans; 
New Mexico; Infrastructure and Interstate Transport Requirements for 
the 2006 PM2.5 NAAQS,'' (78 FR 4337) (January 22, 2013) 
(EPA's final action on the infrastructure SIP for the 2006 
PM2.5 NAAQS).
    \8\ On December 14, 2007, the State of Tennessee, through the 
Tennessee Department of Environment and Conservation, made a SIP 
revision to EPA demonstrating that the State meets the requirements 
of sections 110(a)(1) and (2). EPA proposed action for 
infrastructure SIP elements (C) and (J) on January 23, 2012 (77 FR 
3213) and took final action on March 14, 2012 (77 FR 14976). On 
April 16, 2012 (77 FR 22533) and July 23, 2012 (77 FR 42997), EPA 
took separate proposed and final actions on all other section 
110(a)(2) infrastructure SIP elements of Tennessee's December 14, 
2007 submittal.
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    Ambiguities within sections 110(a)(1) and 110(a)(2) may also arise 
with respect to infrastructure SIP submission requirements for 
different NAAQS. Thus, EPA notes that not every element of section 
110(a)(2) would be relevant, or as relevant, or relevant in the same 
way, for each new or revised NAAQS. The states' attendant 
infrastructure SIP submissions for each NAAQS therefore could be 
different. For example, the monitoring requirements that a state might 
need to meet in its infrastructure SIP submission for purposes of 
section 110(a)(2)(B) could be very different for different pollutants, 
for example because the content and scope of a state's infrastructure 
SIP submission to meet this element might be very different for an 
entirely new NAAQS than for a minor revision to an existing NAAQS.\9\
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    \9\ For example, implementation of the 1997 PM2.5 
NAAQS required the deployment of a system of new monitors to measure 
ambient levels of that new indicator species for the new NAAQS.
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    EPA notes that interpretation of section 110(a)(2) is also 
necessary when EPA reviews other types of SIP submissions required 
under the CAA. Therefore, as with infrastructure SIP submissions, EPA 
also has to identify and interpret the relevant elements of section 
110(a)(2) that logically apply to these other types of SIP submissions. 
For example, section 172(c)(7) requires that attainment plan SIP 
submissions required by part D have to meet the ``applicable 
requirements'' of section 110(a)(2). Thus, for example, attainment plan 
SIP submissions must meet the requirements of section 110(a)(2)(A) 
regarding enforceable emission limits and control measures and section 
110(a)(2)(E)(i) regarding air agency resources and authority. By 
contrast, it is clear that attainment plan SIP submissions required by 
part D would not need to meet the portion of section 110(a)(2)(C) that 
pertains to the PSD program required in part C of title I of the CAA, 
because PSD does not apply to a pollutant for which an area is 
designated nonattainment and thus subject to part D planning 
requirements. As this example illustrates, each type of SIP submission 
may implicate some elements of section 110(a)(2) but not others.
    Given the potential for ambiguity in some of the statutory language 
of section 110(a)(1) and section 110(a)(2), EPA believes that it is 
appropriate to interpret the ambiguous portions of section 110(a)(1) 
and section 110(a)(2) in the context of acting on a particular SIP 
submission. In other words, EPA assumes that Congress could not have 
intended that each and every SIP submission, regardless of the NAAQS in 
question or the history of SIP development for the relevant pollutant, 
would meet each of the requirements, or meet each of them in the same 
way. Therefore, EPA has adopted an approach under which it reviews 
infrastructure SIP submissions against the list of elements in section 
110(a)(2), but only to the extent each element applies for that 
particular NAAQS. Historically, EPA has elected to use guidance 
documents to make recommendations to states for infrastructure SIPs, in 
some cases conveying needed interpretations on newly arising issues and 
in some cases conveying interpretations that have already been 
developed and applied to individual SIP submissions for particular 
elements.\10\ EPA most recently issued guidance for

[[Page 62835]]

infrastructure SIPs on September 13, 2013 (2013 Guidance).\11\ EPA 
developed this document to provide states with up-to-date guidance for 
infrastructure SIPs for any new or revised NAAQS. While today's 
proposed action relies on the specific guidance issued for the 2008 Pb 
NAAQS, we have also considered this more recent 2013 guidance where 
applicable (although not specifically issued for the 2008 Pb NAAQS) and 
have found no conflicts between the issued guidance and review of 
Nebraska's SIP submission. Within the 2013 guidance, EPA describes the 
duty of states to make infrastructure SIP submissions to meet basic 
structural SIP requirements within three years of promulgation of a new 
or revised NAAQS. EPA also made recommendations about many specific 
subsections of section 110(a)(2) that are relevant in the context of 
infrastructure SIP submissions.\12\ The guidance also discusses the 
substantively important issues that are germane to certain subsections 
of section 110(a)(2). Significantly, EPA interprets sections 110(a)(1) 
and 110(a)(2) such that infrastructure SIP submissions need to address 
certain issues and need not address others. Accordingly, EPA reviews 
each infrastructure SIP submission for compliance with the applicable 
statutory provisions of section 110(a)(2), as appropriate.
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    \10\ EPA notes, however, that nothing in the CAA requires EPA to 
provide guidance or to promulgate regulations for infrastructure SIP 
submissions. The CAA directly applies to states and requires the 
submission of infrastructure SIP submissions, regardless of whether 
or not EPA provides guidance or regulations pertaining to such 
submissions. EPA elects to issue such guidance in order to assist 
states, as appropriate.
    \11\ ``Guidance on Infrastructure State Implementation Plan 
(SIP) Elements under Clean Air Act Sections 110(a)(1) and 
110(a)(2),'' Memorandum from Stephen D. Page, September 13, 2013.
    \12\ EPA's September 13, 2013, guidance did not make 
recommendations with respect to infrastructure SIP submissions to 
address section 110(a)(2)(D)(i)(I). EPA issued the guidance shortly 
after the U.S. Supreme Court agreed to review the D.C. Circuit 
decision in EME Homer City, 696 F.3d7 (D.C. Cir. 2012) which had 
interpreted the requirements of section 110(a)(2)(D)(i)(I). In light 
of the uncertainty created by ongoing litigation, EPA elected not to 
provide additional guidance on the requirements of section 
110(a)(2)(D)(i)(I) at that time. As the guidance is neither binding 
nor required by statute, whether EPA elects to provide guidance on a 
particular section has no impact on a state's CAA obligations.
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    As an example, section 110(a)(2)(E)(ii) is a required element of 
section 110(a)(2) for infrastructure SIP submissions. Under this 
element, a state must meet the substantive requirements of section 128, 
which pertain to state boards that approve permits or enforcement 
orders and heads of executive agencies with similar powers. Thus, EPA 
reviews infrastructure SIP submissions to ensure that the state's SIP 
appropriately addresses the requirements of section 110(a)(2)(E)(ii) 
and section 128. The 2013 Guidance explains EPA's interpretation that 
there may be a variety of ways by which states can appropriately 
address these substantive statutory requirements, depending on the 
structure of an individual state's permitting or enforcement program 
(e.g., whether permits and enforcement orders are approved by a multi-
member board or by a head of an executive agency). However they are 
addressed by the state, the substantive requirements of section 128 are 
necessarily included in EPA's evaluation of infrastructure SIP 
submissions because section 110(a)(2)(E)(ii) explicitly requires that 
the state satisfy the provisions of section 128.
    As another example, EPA's review of infrastructure SIP submissions 
with respect to the PSD program requirements in sections 110(a)(2)(C), 
(D)(i)(II), and (J) focuses upon the structural PSD program 
requirements contained in part C and EPA's PSD regulations. Structural 
PSD program requirements include provisions necessary for the PSD 
program to address all regulated sources and New Source Review (NSR) 
pollutants, including greenhouse gases (GHGs). By contrast, structural 
PSD program requirements do not include provisions that are not 
required under EPA's regulations at 40 CFR 51.166 but are merely 
available as an option for the state, such as the option to provide 
grandfathering of complete permit applications with respect to the 2012 
PM2.5 NAAQS. Accordingly, the latter optional provisions are 
types of provisions EPA considers irrelevant in the context of an 
infrastructure SIP action.
    For other section 110(a)(2) elements, however, EPA's review of a 
state's infrastructure SIP submission focuses on assuring that the 
state's SIP meets basic structural requirements. For example, section 
110(a)(2)(C) includes, inter alia, the requirement that states have a 
program to regulate minor new sources. Thus, EPA evaluates whether the 
state has an EPA-approved minor NSR program and whether the program 
addresses the pollutants relevant to that NAAQS. In the context of 
acting on an infrastructure SIP submission, however, EPA does not think 
it is necessary to conduct a review of each and every provision of a 
state's existing minor source program (i.e., already in the existing 
SIP) for compliance with the requirements of the CAA and EPA's 
regulations that pertain to such programs.
    With respect to certain other issues, EPA does not believe that an 
action on a state's infrastructure SIP submission is necessarily the 
appropriate type of action in which to address possible deficiencies in 
a state's existing SIP. These issues include: (i) Existing provisions 
related to excess emissions from sources during periods of startup, 
shutdown, or malfunction that may be contrary to the CAA and EPA's 
policies addressing such excess emissions (``SSM''); (ii) existing 
provisions related to ``director's variance'' or ``director's 
discretion'' that may be contrary to the CAA because they purport to 
allow revisions to SIP-approved emissions limits while limiting public 
process or not requiring further approval by EPA; and (iii) existing 
provisions for PSD programs that may be inconsistent with current 
requirements of EPA's ``Final NSR Improvement Rule,'' 67 FR 80186 
(December 31, 2002), as amended by 72 FR 32526 (June 13, 2007) (``NSR 
Reform''). Thus, EPA believes it may approve an infrastructure SIP 
submission without scrutinizing the totality of the existing SIP for 
such potentially deficient provisions and may approve the submission 
even if it is aware of such existing provisions.\13\ It is important to 
note that EPA's approval of a state's infrastructure SIP submission 
should not be construed as explicit or implicit re-approval of any 
existing potentially deficient provisions that relate to the three 
specific issues just described.
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    \13\ By contrast, EPA notes that if a state were to include a 
new provision in an infrastructure SIP submission that contained a 
legal deficiency, such as a new exemption for excess emissions 
during SSM events, then EPA would need to evaluate that provision 
for compliance against the rubric of applicable CAA requirements in 
the context of the action on the infrastructure SIP.
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    EPA's approach to review of infrastructure SIP submissions is to 
identify the CAA requirements that are logically applicable to that 
submission. EPA believes that this approach to the review of a 
particular infrastructure SIP submission is appropriate, because it 
would not be reasonable to read the general requirements of section 
110(a)(1) and the list of elements in 110(a)(2) as requiring review of 
each and every provision of a state's existing SIP against all 
requirements in the CAA and EPA regulations merely for purposes of 
assuring that the state in question has the basic structural elements 
for a functioning SIP for a new or revised NAAQS. Because SIPs have 
grown by accretion over the decades as statutory and regulatory 
requirements under the CAA have evolved, they may include some outmoded 
provisions and historical artifacts. These provisions, while not fully 
up to date, nevertheless may not pose a significant problem for the 
purposes of ``implementation,

[[Page 62836]]

maintenance, and enforcement'' of a new or revised NAAQS when EPA 
evaluates adequacy of the infrastructure SIP submission. EPA believes 
that a better approach is for states and EPA to focus attention on 
those elements of section 110(a)(2) of the CAA most likely to warrant a 
specific SIP revision due to the promulgation of a new or revised NAAQS 
or other factors.
    For example, EPA's 2013 Guidance gives simpler recommendations with 
respect to carbon monoxide than other NAAQS pollutants to meet the 
visibility requirements of section 110(a)(2)(D)(i)(II), because carbon 
monoxide does not affect visibility. As a result, an infrastructure SIP 
submission for any future new or revised NAAQS for carbon monoxide need 
only state this fact in order to address the visibility prong of 
section 110(a)(2)(D)(i)(II).
    With respect to Element[s] C and (J) [as appropriate], EPA 
interprets the Clean Air Act to require each state to make an 
infrastructure SIP submission for a new or revised NAAQS that 
demonstrates that the air agency has a complete PSD permitting program 
meeting the current requirements for all regulated NSR pollutants. The 
requirements of Element D(i)(II) may also be satisfied by demonstrating 
the air agency has a complete PSD permitting program correctly 
addressing all regulated NSR pollutants. Nebraska has shown that it 
currently has a PSD program in place that covers all regulated NSR 
pollutants, including greenhouse gases (GHGs) [as appropriate: '' with 
the exception of the deficiencies described elsewhere in this 
notice''].
    On June 23, 2014, the United States Supreme Court issued a decision 
addressing the application of PSD permitting requirements to GHG 
emissions. Utility Air Regulatory Group v. Environmental Protection 
Agency, 134 S.Ct. 2427. The Supreme Court said that the EPA may not 
treat GHGs as an air pollutant for purposes of determining whether a 
source is a major source required to obtain a PSD permit. The Court 
also said that the EPA could continue to require that PSD permits, 
otherwise required based on emissions of pollutants other than GHGs, 
contain limitations on GHG emissions based on the application of Best 
Available Control Technology (BACT). In order to act consistently with 
its understanding of the Court's decision pending further judicial 
action to effectuate the decision, the EPA is not continuing to apply 
EPA regulations that would require that SIPs include permitting 
requirements that the Supreme Court found impermissible. Specifically, 
EPA is not applying the requirement that a state's SIP-approved PSD 
program require that sources obtain PSD permits when GHGs are the only 
pollutant (i) that the source emits or has the potential to emit above 
the major source thresholds, or (ii) for which there is a significant 
emissions increase and a significant net emissions increase from a 
modification (e.g. 40 CFR 51.166(b)(48)(v)). EPA anticipates a need to 
revise Federal PSD rules in light of the Supreme Court opinion. In 
addition, EPA anticipates that many states will revise their existing 
SIP-approved PSD programs in light of the Supreme Court's decision. The 
timing and content of subsequent EPA actions with respect to the EPA 
regulations and state PSD program approvals are expected to be informed 
by additional legal process before the United States Court of Appeals 
for the District of Columbia Circuit. At this juncture, EPA is not 
expecting states to have revised their PSD programs for purposes of 
infrastructure SIP submissions and is only evaluating such submissions 
to assure that the state's program correctly addresses GHGs consistent 
with the Supreme Court's decision.
    At present, EPA has determined the Nebraska SIP is sufficient to 
satisfy Element[s] C, D(i)(II), and J [as appropriate] with respect to 
GHGs because the PSD permitting program previously approved by EPA into 
the SIP continues to require that PSD permits (otherwise required based 
on emissions of pollutants other than GHGs) contain limitations on GHG 
emissions based on the application of BACT. Although the approved 
Nebraska PSD permitting program may currently contain provisions that 
are no longer necessary in light of the Supreme Court decision, this 
does not render the infrastructure SIP submission inadequate to satisfy 
Element[s] C, D(i)(II), and J [as appropriate]. The SIP contains the 
necessary PSD requirements at this time, and the application of those 
requirements is not impeded by the presence of other previously-
approved provisions regarding the permitting of sources of GHGs that 
EPA does not consider necessary at this time in light of the Supreme 
Court decision. Accordingly, the Supreme Court decision does not affect 
EPA's proposed approval of Nebraska's infrastructure SIP as to the 
requirements of Element[s] C, D(i)(II), and J.
    Finally, EPA believes that its approach with respect to 
infrastructure SIP requirements is based on a reasonable reading of 
sections 110(a)(1) and 110(a)(2) because the CAA provides other avenues 
and mechanisms to address specific substantive deficiencies in existing 
SIPs. These other statutory tools allow EPA to take appropriately 
tailored action, depending upon the nature and severity of the alleged 
SIP deficiency. Section 110(k)(5) authorizes EPA to issue a ``SIP 
call'' whenever the Agency determines that a state's SIP is 
substantially inadequate to attain or maintain the NAAQS, to mitigate 
interstate transport, or to otherwise comply with the CAA.\14\ Section 
110(k)(6) authorizes EPA to correct errors in past actions, such as 
past approvals of SIP submissions.\15\ Significantly, EPA's 
determination that an action on a state's infrastructure SIP submission 
is not the appropriate time and place to address all potential existing 
SIP deficiencies does not preclude EPA's subsequent reliance on 
provisions in section 110(a)(2) as part of the basis for action to 
correct those deficiencies at a later time. For example, although it 
may not be appropriate to require a state to eliminate all existing 
inappropriate director's discretion provisions in the course of acting 
on an infrastructure SIP submission, EPA believes that section 
110(a)(2)(A) may be among the statutory bases that EPA relies upon in 
the course of addressing such deficiency in a subsequent action.\16\
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    \14\ For example, EPA issued a SIP call to Utah to address 
specific existing SIP deficiencies related to the treatment of 
excess emissions during SSM events. See ``Finding of Substantial 
Inadequacy of Implementation Plan; Call for Utah State 
Implementation Plan Revisions,'' 74 FR 21639 (April 18, 2011).
    \15\ EPA has used this authority to correct errors in past 
actions on SIP submissions related to PSD programs. See ``Limitation 
of Approval of Prevention of Significant Deterioration Provisions 
Concerning Greenhouse Gas Emitting-Sources in State Implementation 
Plans; Final Rule,'' 75 FR 82536 (December 30, 2010). EPA has 
previously used its authority under CAA section 110(k)(6) to remove 
numerous other SIP provisions that the Agency determined it had 
approved in error. See, e.g., 61 FR 38664 (July 25, 1996) and 62 FR 
34641 (June 27, 1997) (corrections to American Samoa, Arizona, 
California, Hawaii, and Nevada SIPs); 69 FR 67062 (November 16, 
2004) (corrections to California SIP); and 74 FR 57051 (November 3, 
2009) (corrections to Arizona and Nevada SIPs).
    \16\ See, e.g., EPA's disapproval of a SIP submission from 
Colorado on the grounds that it would have included a director's 
discretion provision inconsistent with CAA requirements, including 
section 110(a)(2)(A). See, e.g., 75 FR 42342 at 42344 (July 21, 
2010) (proposed disapproval of director's discretion provisions); 76 
FR 4540 (January 26, 2011) (final disapproval of such provisions).
---------------------------------------------------------------------------

IV. What is EPA's evaluation of how the state addressed the relevant 
elements of sections 110(a)(1) and (2)?

    On October 18, 2011, EPA Region 7 received Nebraska's 
infrastructure SIP submission for the 2008 Pb standard. This SIP 
submission became complete

[[Page 62837]]

as a matter of law on April 18, 2012. EPA has reviewed Nebraska's 
infrastructure SIP submission and the relevant statutory and regulatory 
authorities and provisions referenced in that submission or referenced 
in Nebraska's SIP. During this review, Nebraska submitted a March 11, 
2014, request (available in the docket for today's action) that 
clarified its intent to formally include conflict of interest 
provisions in section 128 of the CAA as it relates to element E of the 
infrastructure SIP. Below is EPA's evaluation of how the state 
addressed the relevant elements of section 110(a)(2) for the 2008 Pb 
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.\17\
---------------------------------------------------------------------------

    \17\ The specific nonattainment area plan requirements of 
section 110(a)(2)(I) are subject to the timing requirements of 
section 172, not the timing requirement of section 110(a)(1). Thus, 
section 110(a)(2)(A) does not require that states submit regulations 
or emissions limits specifically for attaining the 2008 Pb NAAQS. 
Those SIP provisions are due as part of each state's attainment 
plan, and will be addressed separately from the requirements of 
section 110(a)(2)(A). In the context of an infrastructure SIP, EPA 
is not evaluating the existing SIP provisions for this purpose. 
Instead, EPA is only evaluating whether the state's SIP has basic 
structural provisions for the implementation of the 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.
    The 2008 Pb NAAQS specified in 40 CFR Part 50.16(a) was proposed 
and adopted into Nebraska title 129 chapter 4, section 006 of the 
Nebraska Administrative Code, by the EQC on June 20, 2013, with an 
effective date of December 9, 2013. Therefore, Pb is an air contaminant 
which may be regulated under Nebraska law.
    Based upon review of the state's infrastructure SIP submission for 
the 2008 Pb NAAQS, and relevant statutory and regulatory authorities 
and provisions referenced in the submission or referenced in Nebraska's 
SIP, EPA believes that the Nebraska SIP adequately addresses the 
requirements of section 110(a)(2)(A) for the 2008 Pb NAAQS and is 
approving this element of the October 18, 2011, SIP submission.
    (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 and Enforcement Program 
collects air monitoring data, quality assures the results, and reports 
the data.
    In accordance with the requirements of 40 CFR part 58 appendix D, 
section 4.5(b), Nebraska operates a lead monitor at its NCore 
monitoring site in Omaha. Based on the requirements of the 2008 Pb 
NAAQS (73 FR 66964, November 12, 2008) and the ``Revisions to Lead 
Ambient Monitoring Requirements,'' (75 FR 81126, December 27, 2010), 
Nebraska operates two source-oriented Pb monitors at sources that 
reported Pb emissions of more than 0.5 tons per year (tpy); one in 
Fremont and a second in Auburn, Nebraska.
    NDEQ submits annual monitoring network plans to EPA for approval, 
including plans for its Pb 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://deq.ne.gov/Publica.nsf/Pubs_Air_Amb.xsp, for NDEQ's 2013 Ambient Air Monitoring 
Network Plan. This Plan includes, among other things, the locations for 
the Pb monitoring network. On December 23, 2013, EPA approved 
Nebraska's 2013 ambient air network monitoring plan. NDEQ also conducts 
five-year monitoring network assessments, including the Pb monitoring 
network, as required by 40 CFR 58.10(d). Title 129, chapter 4, section 
006 of the NAC requires that attainment with the Pb standard be 
determined in accordance with the applicable Federal regulations in 40 
CFR part 50, appendix R. 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 upon review of the state's infrastructure SIP submission for 
the 2008 Pb NAAQS, and relevant statutory and regulatory authorities 
and provisions referenced in the submission or referenced in Nebraska's 
SIP, EPA believes that the Nebraska SIP meets the requirements of 
section 110(a)(2)(B) for the 2008 Pb NAAQS and is approving this 
element of the October 18, 2011 submission.
    (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 three 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 (i.e., state-wide permitting of minor sources); and 
(3) a permit program to meet the major source permitting requirements 
of the CAA (for areas designated as attainment or unclassifiable for 
the NAAQS in question).\18\
---------------------------------------------------------------------------

    \18\ As discussed previously, this infrastructure SIP rulemaking 
will not address the Nebraska program for nonattainment area related 
provisions, since EPA considers evaluation of these provisions to be 
outside the scope of infrastructure SIP actions.
---------------------------------------------------------------------------

    (1) Enforcement of SIP Measures. With respect to enforcement of 
requirements of the SIP, the Nebraska statutes provide authority to 
enforce the requirements of 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

[[Page 62838]]

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 81-1507(1) and 
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) Minor New Source Review. Section 110(a)(2)(C) also requires 
that the SIP include measures to regulate construction and modification 
of stationary sources to protect the NAAQS. With respect to smaller 
state-wide minor sources (Nebraska's major source permitting program is 
discussed in (3) below), 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 NAAQS pollutants. 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 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 approving Nebraska's infrastructure SIP for 
the 2008 Pb standard 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. In this action, EPA is not 
proposing to approve or disapprove the state's existing minor NSR 
program to the extent that it is inconsistent with EPA's regulations 
governing this program. EPA has maintained that the CAA does not 
require that new infrastructure SIP submissions correct any defects in 
existing EPA-approved provisions of minor NSR programs in order for EPA 
to approve the infrastructure SIP for element (C) (e.g., 76 FR 41076-
41079).
    (3) Prevention of Significant Deterioration (PSD) permit program. 
Nebraska also has a program approved by EPA as meeting the requirements 
of part C, relating to prevention of significant deterioration of air 
quality. In order to demonstrate that Nebraska has met this sub-
element, this PSD program must cover requirements not just for the 2008 
Pb NAAQS, but for all other regulated NSR pollutants as well. As stated 
in the October 14, 2011, Pb Infrastructure SIP guidance, EPA has not 
proposed to amend the PSD regulations with regard to the Pb NAAQS 
because it believes that, generally, there is sufficient guidance and 
regulations already in place to fully implement the revised Pb NAAQS.
    Nebraska's implementing rule, title 129, chapter 19, incorporates 
the relevant portions of the Federal rule, 40 CFR 52.21 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, 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, title 129, chapter 19, of the NAC 
provides for the permitting of construction of a new major stationary 
source or a major modification of an existing major stationary source. 
Further, chapter 19, section 010 of the NAC establishes threshold 
emissions for establishing whether the construction project is a major 
source of regulated NSR pollutants, including but not limited to Pb.
    Based upon review of the state's infrastructure SIP submission for 
the 2008 Pb NAAQS, and relevant statutory and regulatory authorities 
and provisions referenced in the submission or referenced in Nebraska's 
SIP, with respect to the requirements of section 110(a)(2)(C) for the 
2008 Pb NAAQS, EPA is approving this element of the October 18, 2011, 
submission.
    (D) Interstate and international transport: Section 110(a)(2)(D)(i) 
includes four requirements referred to as prongs 1 through 4. Prongs 1 
and 2 are provided at section 110(a)(2)(D)(i)(I); Prongs 3 and 4 are 
provided at section 110(a)(2)(D)(i)(II). Section 110(a)(2)(D)(i)(I) 
requires SIPs to include adequate provisions prohibiting any source or 
other type of emissions activity in one state from contributing 
significantly to nonattainment, or interfering with maintenance, of any 
NAAQS in another state. Section 110(a)(2)(D)(i)(II) requires SIPs to 
include adequate provisions prohibiting any source or other type of 
emissions activity in one state from interfering with measures required 
of any other state to prevent significant deterioration of air quality 
or to protect visibility.
    With respect to prongs 1 and 2, the physical properties of Pb 
prevent Pb emissions from experiencing a significant degree of travel 
in the ambient air. No complex chemistry is needed to form Pb or Pb 
compounds in the ambient air; therefore, concentrations of Pb are 
typically highest near Pb sources. More specifically, there is a sharp 
decrease in Pb concentrations as the distance from the source 
increases. According to EPA's report entitled Our Nation's Air: Status 
and Trends Through 2010, Pb concentrations that are not near a source 
of Pb are approximately 8 times less than the typical concentrations 
near the source (http://www.epa.gov/airtrends/2011/report/fullreport.pdf). EPA believes that the requirements of prongs 1 and 2 
can be satisfied through a state's assessment as to whether a lead 
source located within its state in close proximity to a state border 
has emissions that contribute significantly to the nonattainment in or 
interfere with

[[Page 62839]]

maintenance of the NAAQS in the neighboring state. Nebraska has no 
designated nonattainment areas for the 2008 Pb NAAQS, nor does it have 
any sources of Pb emissions over 0.5 tons per year that might have a 
potential impact on any other state. Monitoring indicates that there 
are no NAAQS violations. Further, since the facilities in Nebraska are 
not close in proximity to the state border transport is not a 
significant concern.
    With respect to the PSD requirements of section 
110(a)(2)(D)(i)(II)--prong 3, EPA notes that Nebraska's satisfaction of 
the applicable infrastructure SIP PSD requirements for attainment/
unclassifiable areas of the 2008 Pb NAAQS have been detailed in the 
section addressing section 110(a)(2)(C). As discussed above for element 
(C)(3), EPA has 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). EPA also notes 
that the proposed action in that section related to PSD is consistent 
with the proposed approval related to PSD for section 
110(a)(2)(D)(i)(II).
    With regard to the applicable requirements for visibility 
protection of section 110(a)(2)(D)(i)(II)--prong 4, significant impacts 
from Pb emissions from stationary sources are expected to be limited to 
short distances from the source and most, if not all, Pb stationary 
sources are located at distances from Class I areas such that 
visibility impacts would be negligible. Although Pb can be a component 
of coarse and fine particles, Pb generally comprises a small fraction 
of coarse and fine particles. Furthermore, when evaluating the extent 
that Pb could impact visibility, Pb-related visibility impacts were 
found to be insignificant (e.g., less than 0.10%).\19\
---------------------------------------------------------------------------

    \19\ Analysis by Mark Schmidt, OAQPS, ``Ambient Pb's 
Contribution to Class I Area Visibility Impairment,'' June 17, 2011.
---------------------------------------------------------------------------

    Section 110 (a)(2)(D)(ii) also requires that the SIP ensure 
compliance with the applicable requirements of sections 126 and 115 of 
the CAA, relating to interstate and international pollution abatement, 
respectively.
    Section 126(a) of the CAA requires new or modified sources to 
notify neighboring states of potential impacts from sources within the 
state. 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 2008 Pb NAAQS, 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 2008 Pb NAAQS.
    Section 115 of the CAA authorizes EPA to require a state to revise 
its SIP under certain conditions to alleviate international transport 
into another country. There are no final findings under section 115 of 
the CAA against Nebraska with respect to any air pollutant. Thus, the 
state's SIP does not need to include any provisions to meet the 
requirements of section 115.
    Based upon review of the state's infrastructure SIP submission for 
the 2008 Pb NAAQS, and relevant statutory and regulatory authorities 
and provisions referenced in the submission or referenced in Nebraska's 
SIP, EPA believes that Nebraska has the adequate infrastructure needed 
to address sections 110(a)(2)(D)(i)--Prongs 1 through 4 and 
110(a)(2)(D)(ii) for the 2008 Pb NAAQS and is approving this element of 
the October 18, 2011, submission.
    (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) will 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 
CAA; and (3) necessary assurances that the state has responsibility for 
ensuring adequate implementation of any plan provision for which it 
relies on local governments or other entities to carry out that portion 
of the plan.
    (1) Section 110(a)(2)(E)(i) requires states to establish that they 
have adequate personnel, funding and authority. With respect to 
adequate authority, we have previously discussed Nebraska's statutory 
and regulatory authority to implement the 2008 Pb NAAQS, primarily in 
the discussion of section 110(a)(2)(A) above. Neither Nebraska nor EPA 
has identified any legal impediments in the state's SIP to 
implementation of the NAAQS.
    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

[[Page 62840]]

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)(ii) requires that each state SIP meet the 
requirements of section 128 relating to potential conflicts of interest 
of certain boards, bodies, and personnel involved in approving permits 
or enforcement orders. Section 128(a)(1) requires that any board or 
body which approves permits or enforcement orders under the CAA must 
have at least a majority of members who represent the public interest 
and do not derive any ``significant portion'' of their income from 
persons subject to permits and enforcement orders under the CAA. 
Section 128(a)(2) requires that members of such a board or body, or the 
head of an agency with similar powers, adequately disclose any 
potential conflicts of interest.
    In 1978, EPA issued a guidance memorandum recommending ways that 
states could meet the requirements of section 128, including suggested 
interpretations of certain terms in section 128.\20\ EPA has not issued 
further guidance or regulations of general applicability on the subject 
since that time. However, EPA has recently proposed certain 
interpretations of section 128 as part of its actions on other 
infrastructure SIPs consistent with the statutory requirements (see, 
e.g., (77 FR 44555, July 30, 2012) and (77 FR 66398, November 5, 
2012)). We are now proposing these same interpretations in relation to 
the Nebraska SIP.
---------------------------------------------------------------------------

    \20\ See Memorandum from David O. Bickart to Regional Air 
Directors, ``Guidance to States for Meeting Conflict of Interest 
Requirements of Section 128,'' Suggested Definitions, March 2, 1978.
---------------------------------------------------------------------------

    On August 22, 2013, Nebraska included statute and rule that 
addresses section 128 as part of its 2010 SO2 NAAQS 
infrastructure SIP. On March 11, 2014, Nebraska clarified its intent 
that these provisions be approved by EPA as part of Nebraska's SIP for 
purposes of section 128.\21\ These provisions include section 49-
1493(13) of the Nebraska Revised Statutes and title 4, chapter 2 of the 
Nebraska Administrative Code. In today's action, we are approving 
Nebraska's August 22, 2013, submission related to sections 
110(a)(2)(E)(ii) and 128 of the CAA.
---------------------------------------------------------------------------

    \21\ Included in Nebraska's March 11, 2014 email to EPA was a 
request that Title 116 of the Nebraska Administrative Code be 
approved into the SIP as a clarification to the 2010 SO2 
NAAQS infrastructure SIP, to the extent it is deemed approvable by 
EPA. EPA has determined that the provisions that Nebraska submitted 
on August 22, 2013, as part of its 2010 SO2 NAAQS 
infrastructure SIP are sufficient for purposes of the disclosure 
requirements of Section 128(a)(2), and is therefore not addressing 
Title 116 of the Nebraska Administrative Code in today's action.
---------------------------------------------------------------------------

    EPA's analysis consisted of a review of Nebraska's August 22, 2013, 
SO2 NAAQS infrastructure SIP submission, and EPA's 
additional review of Nebraska's statutes and authorities. Nebraska 
concluded that section 128 (a)(1) is not an applicable requirement in 
Nebraska because the EQC is not a board of body that approves permits 
or enforcement orders. EPA confirms that section 81-1503(7) of the 
``Nebraska Environmental Protection Act'' does not grant the EQC the 
authority to approve permits or enforcement orders. Therefore, EPA 
believes that the requirements of section 128 (a)(1) do not apply to 
Nebraska.
    To satisfy section 128(a)(2) of the CAA, Nebraska submitted to EPA 
section 49-1493(13) of the Nebraska Revised Statutes and title 4, 
chapter 2 of the Nebraska Administrative Code. Section 49-1493(13) of 
the Nebraska Revised Statutes requires certain officials or employees 
of Nebraska who are responsible for taking or recommending official 
actions of a non-ministeraial nature to file a statement of financial 
interest on an annual basis. Nebraska Administrative Code title 4, 
chapter 2 designates public officials and employees who are required to 
file Statements of Financial Interests with the Nebraska Accountability 
and Disclosure Commission, and includes the Director of NDEQ, the 
Deputy Directors of NDEQ, and the Air Quality Division Administrator of 
the NDEQ. Consistent with the requirements of section 128(a)(2), EPA 
infers from Nebraska's August 22, 2013, SO2 NAAQS 
infrastructure submission that NDEQ's Director, Deputy Directors, and 
Air Quality Division Administrator approve permits or enforcement 
orders and must therefore adequately disclose any potential conflicts 
of interest by filing an annual statement of financial interest 
pursuant to section 49-1493(13) and title 4, chapter 2 of the Nebraska 
Administrative Code.
    Both section 49-1493 of the Nebraska Revised Statutes and title 4, 
chapter 2 of the Nebraska Administrative Code reference section 49-1496 
of the Nebraska Revised Statutes, which requires disclosure of any 
association with any business, entitles for which the person served as 
a trustee, and any income over one thousand dollars from a person or 
government body, with certain exceptions. In addition, section 49-1496 
also requires disclosure of any ownership interest that exceeds one 
thousand dollars of certain real property, accounts, investments and 
other property owned or held for the production of income. Section 49-
1496 also requires disclosure of loans in excess of one thousand 
dollars and gifts in excess of one hundred dollars. Thus, Nebraska law 
requires the disclosure of any potential conflicts of interest by the 
head of an executive agency responsible for approving permits or 
enforcement orders (i.e., NEDQ's Director, Deputy Directors, and Air 
Quality Division Administrator).
    EPA believes that section 49-1493(13) of the Nebraska Revised 
Statutes and title 4 chapter 2 of the Nebraska Administrative Code 
address the requirements of section 128(a)(2) of the CAA, and we are 
therefore approving those provisions into the Nebraska SIP with respect 
to the conflict of interest requirements of section 128 of the CAA.
    (3) With respect to assurances that the state has responsibility to 
implement the SIP adequately 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 CAA.
    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 upon review of the state's infrastructure SIP submission for 
the

[[Page 62841]]

2008 Pb NAAQS and relevant statutory and regulatory authorities and 
provisions referenced in the submission or referenced in Nebraska's 
SIP, EPA believes that Nebraska has the adequate infrastructure needed 
to address section 110(a)(2)(E) for the 2008 Pb NAAQS and is approving 
this element of the October 18, 2011 submission.
    (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. Each SIP 
shall require the installation, maintenance, and replacement of 
equipment, and the implementation of other necessary steps, by owners 
or operators of stationary sources, to monitor emissions from such 
sources. The SIP shall also require periodic reports on the nature and 
amounts of emissions and emissions-related data from such sources, and 
requires that the state correlate the source reports with emission 
limitations or standards established under the CAA. These reports must 
be made available for public inspection at reasonable times.
    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). 
Title 129 chapter 34, section 002 of the NAC incorporates various EPA 
reference methods for testing source emissions, including methods for 
Pb. Title 129, chapter 34 section 002.02. The Federal test methods are 
in 40 CFR part 60, appendix A.
    The Nebraska regulations also require that all Class I and Class II 
operating permits include requirements for monitoring of emissions. See 
title 129, chapter 8, sections 004.01 and 015 of the NAC. Furthermore, 
title 129, chapter 34, section 001 of the NAC allows NDEQ to order an 
emissions source to make or have tests 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 title 129, 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 title 129, 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.
    Based upon review of the state's infrastructure SIP submission for 
the 2008 Pb NAAQS, and relevant statutory and regulatory authorities 
and provisions referenced in the submission or referenced in Nebraska's 
SIP, EPA believes that Nebraska has the adequate infrastructure needed 
to address section 110(a)(2)(F) for the 2008 Pb NAAQS and is approving 
this element of the October 18, 2011, submission.
    (G) Emergency authority: Section 110(a)(2)(G) requires SIPs 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 CAA), and 
to include contingency plans to implement such authorities as 
necessary.
    Section 81-1507(4) 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. Title 129, 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. 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 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.
    Based on EPA's experience to date with the Pb NAAQS and designated 
Pb nonattainment areas, EPA expects that an emergency event involving 
Pb would be unlikely, and if it were to occur, would be the result of a 
malfunction or other emergency situation at a relatively large source 
of Pb. Accordingly, EPA believes that the central components of a 
contingency plan would be to reduce emissions from the source at issue 
(if necessary, by curtailing operations) and public communication as 
needed. EPA believes that Nebraska's statutes referenced above provide 
the requisite authority to NDEQ to address such situations.
    Based upon review of the state's infrastructure SIP submission for 
the 2008 Pb NAAQS, and relevant statutory and regulatory authorities 
and provisions referenced in that submission or referenced in 
Nebraska's SIP, EPA believes that the Nebraska SIP adequately addresses 
section 110(a)(2)(G) for the 2008 Pb NAAQS and is approving this 
element of the October 18, 2011, submission.
    (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 CAA. 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.
    Based upon review of the state's infrastructure SIP submission for 
the 2008 Pb NAAQS, and relevant statutory and regulatory authorities 
and provisions referenced in the submission or referenced in Nebraska's 
SIP, EPA believes that Nebraska has adequate authority to address 
section 110(a)(2)(H) for the 2008 Pb NAAQS and is approving this 
element of the October 18, 2011, submission.
    (I) Nonattainment areas: Section 110(a)(2)(I) requires that in the 
case of a plan or plan revision for areas

[[Page 62842]]

designated as nonattainment areas, states must meet applicable 
requirements of part D of the CAA, relating to SIP requirements for 
designated nonattainment areas.
    As noted earlier, EPA does not expect infrastructure SIP 
submissions to address subsection (I). The specific SIP submissions for 
designated nonattainment areas, as required under CAA title I, part D, 
are subject to different submission schedules than those for section 
110 infrastructure elements. Instead, EPA will take action on part D 
attainment plan SIP submissions through a separate rulemaking governed 
by the requirements for nonattainment areas, as described in part D.
    (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 CAA, relating to 
prevention of significant deterioration of air quality and visibility 
protection.
    (1) With respect to interagency consultation, the SIP should 
provide a process for consultation with general-purpose local 
governments, designated organizations of elected officials of local 
governments, and any Federal Land Manager having authority over Federal 
land to which the SIP applies. 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., title 129, 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, title 129 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/c4afc76e4e077e11862568770059b73f/a12a5ada6cce1c1686257a47004e0633!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), EPA recognizes that states are subject to visibility and 
regional haze program requirements under part C of the CAA. However, 
when EPA establishes or revises a NAAQS, these visibility and regional 
haze requirements under part C do not change. EPA believes that there 
are no new visibility protection requirements under part C as a result 
of a revised NAAQS. Therefore, there are no newly applicable visibility 
protection obligations pursuant to element J after the promulgation of 
a new or revised NAAQS.
    Based upon review of the state's infrastructure SIP submission for 
the 2008 Pb NAAQS, and relevant statutory and regulatory authorities 
and provisions referenced in the submission or referenced in Nebraska's 
SIP, EPA believes that Nebraska has met the applicable requirements of 
section 110(a)(2)(J) for the 2008 Pb NAAQS in the state and is 
therefore approving this element of the October 18, 2011, submission.
    (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 the effects on ambient air quality of any 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 title 129, chapter 19, section 019 provide for the use 
of EPA-approved air quality models (e.g., those found in 40 CFR part 
51, appendix W) for PSD 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. Title 129, 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.
    Based upon review of the state's infrastructure SIP submission for 
the 2008 Pb NAAQS, and relevant statutory and regulatory authorities 
and provisions referenced in the submission or referenced in Nebraska's 
SIP, EPA believes that Nebraska has the adequate infrastructure needed 
to address section 110(a)(2)(K) for the 2008 Pb NAAQS and is approving 
this element of the October 18, 2011, submission.
    (L) Permitting Fees: Section 110(a)(2)(L) requires SIPs to require 
each major stationary source to pay permitting fees to the permitting 
authority, as a condition of any permit required under the CAA, to 
cover the cost of reviewing and acting upon any application for such a 
permit, and, if the permit is issued, the costs of implementing and 
enforcing the terms of the permit. The fee requirement applies until a 
fee program established by the state pursuant to title V of the CAA, 
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(12)(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).

[[Page 62843]]

    Based upon review of the state's infrastructure SIP submission for 
the 2008 Pb NAAQS, and relevant statutory and regulatory authorities 
and provisions referenced in the submission or referenced in Nebraska's 
SIP, EPA believes that requirements of section 110(a)(2)(L) are met and 
is approving this element of the October 18, 2011, submission.
    (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(5) 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.
    Based upon review of the state's infrastructure SIP submission for 
the 2008 Pb NAAQS, and relevant statutory and regulatory authorities 
and provisions referenced in the submission or referenced in Nebraska's 
SIP, EPA believes that Nebraska has the adequate infrastructure needed 
to address section 110(a)(2)(M) for the 2008 Pb NAAQS and is approving 
this element of the October 18, 2011, submission.

V. What action is EPA taking?

    EPA is approving the October 18, 2011, infrastructure SIP 
submission from Nebraska which addresses the requirements of CAA 
sections 110(a)(1) and (2) as applicable to the 2008 Pb NAAQS. 
Specifically, EPA is approving the following infrastructure elements, 
or portions thereof: 110(a)(2)(A), (B), (C), (D)(i)(I), (D)(i)(II), 
(D)(ii), (E), (F), (G), (H), (J), (K), (L), and (M). As discussed in 
each applicable section of this rulemaking, EPA is not taking action on 
section 110(a)(2)(I)--Nonattainment Area Plan or Plan Revisions under 
part D and on the visibility protection portion of section 
110(a)(2)(J).
    Based upon review of the state's infrastructure SIP submissions and 
relevant statutory and regulatory authorities and provisions referenced 
in those submissions or referenced in Nebraska's SIP, EPA believes that 
Nebraska has the infrastructure to address all applicable required 
elements of sections 110(a)(1) and (2) (except otherwise noted to 
ensure that the 2008 Pb NAAQS are implemented in the state.
    At the same time EPA is approving Nebraska's March 11, 2014 request 
to include conflict of interest provisions into the Nebraska SIP.
    This direct final rule will be effective December 22, 2014 without 
further notice, unless EPA receives adverse comment by November 20, 
2014.
    In the ``Proposed Rules'' section of this Federal Register, we are 
publishing a separate document that will serve as the proposed rule if 
adverse comments are received on this direct final rule. We will not 
institute a second comment period on this action. Any parties 
interested in commenting must do so at this time. For further 
information about commenting on the rule, see the ADDRESSES section of 
this document.

VI. Statutory and Executive Order Review

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the CAA 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 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) and is therefore not subject to 
review under Executive Orders 12866 and 13563 (76 FR 3821, January 21, 
2011);
     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.

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, Incorporation by 
reference, Intergovernmental relations, Lead, Reporting and 
recordkeeping requirements.

    Dated: September 30, 2014.
Rebecca Weber,
Acting Regional Administrator, Region 7.
    For the reasons stated in the preamble, the Environmental 
Protection Agency amends 40 CFR part 52 as set forth below:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

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 (e) is amended by adding 
new entries

[[Page 62844]]

(26) and (27) in numerical order at the end of the table to read as 
follows:


Sec.  52.1420  Identification of Plan.

* * * * *
    (e) * * *

                                 EPA-Approved Nebraska Nonregulatory Provisions
----------------------------------------------------------------------------------------------------------------
                                                               State
   Name of non-regulatory SIP     Applicable geographic or   submittal    EPA approval date       Explanation
            provision                nonattainment area         date
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
(26) Section 110(a)(2)            Statewide...............     10/18/11  10/21/14 [Insert     This action
 Infrastructure Requirements for                                          Federal Register     addresses the
 the 2008 Pb NAAQS.                                                       citation].           following CAA
                                                                                               elements:
                                                                                               110(a)(2)(A),
                                                                                               (B), (C), (D),
                                                                                               (E), (F), (G),
                                                                                               (H), (J), (K),
                                                                                               (L), and (M).
(27) Section 128 Declaration:     Statewide...............      8/22/13  10/21/14 [Insert     This declaration
 Nebraska Department of                                                   Federal Register     is contained
 Environmental Quality                                                    citation].           within Nebraska's
 Representation and Conflicts of                                                               2010 Sulfur
 Interest Provisions, Section 49-                                                              Dioxide NAAQS
 1493(13) of the NE Political                                                                  Infrastructure
 Accountability and Disclosure                                                                 SIP submission
 Act and Chapter 2 of Title 4,                                                                 concerning
 NE Accountability and                                                                         Section
 Disclosure Commission.                                                                        110(a)(2)(E) of
                                                                                               the CAA.
----------------------------------------------------------------------------------------------------------------


[FR Doc. 2014-24899 Filed 10-20-14; 8:45 am]
BILLING CODE 6560-50-P