[Federal Register Volume 83, Number 125 (Thursday, June 28, 2018)]
[Rules and Regulations]
[Pages 30352-30355]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-13723]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R07-OAR-2017-0386; FRL-9979-85--Region 7]


Approval of Nebraska Air Quality Implementation Plans; Adoption 
of a New Chapter Under the Nebraska Administrative Code

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is taking final 
action to approve the State Implementation Plan (SIP) revision 
submitted by the state of Nebraska on November 14, 2011. Nebraska is 
adding a new chapter titled ``Visibility Protection'' which provides 
Nebraska authority to implement Federal regulations relating to 
Regional Haze and Best Available Retrofit Technology (BART). The new 
chapter incorporates EPA's Guidelines for BART Determinations under the 
Regional Haze Rule. The revision to the SIP meets the visibility 
component of the Clean Air Act (CAA).

DATES: This final rule is effective on July 30, 2018.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-R07-OAR-2017-0386. All documents in the docket are listed on 
the https://www.regulations.gov website. Although listed in the index, 
some information is not publicly available, i.e., CBI or other 
information whose disclosure is restricted by statute. Certain other 
material, such as copyrighted material, is not placed on the internet 
and will be publicly available only in hard copy form. Publicly 
available docket materials are available through https://www.regulations.gov or please contact the person identified in the FOR 
FURTHER INFORMATION CONTACT section for additional information.

FOR FURTHER INFORMATION CONTACT: Greg Crable, Environmental Protection 
Agency, Air Planning and Development Branch, 11201 Renner Boulevard, 
Lenexa, Kansas 66219 at (913) 551-7391, or by email at 
[email protected].

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

I. Background
II. What is being addressed in this document?
III. Have the requirements for approval of a SIP revision been met?
IV. EPA's Response to Comments
V. What action is EPA taking?
VI. Incorporation by Reference
VII. Statutory and Executive Order Reviews

I. Background

    EPA received Nebraska's November 8, 2011, SIP submission. On 
October 5, 2017, EPA proposed to approve the SIP submission from the 
State of Nebraska. See 82 FR 46433. In conjunction with the October 5, 
2017 notice of proposed rulemaking (NPR), EPA issued a direct final 
rule (DFR) approving the same SIP submission. See 82 FR 46415. However, 
in the DFR, EPA stated that if EPA received adverse comments by 
November 6, 2017, the action would be withdrawn and not take effect. 
EPA received one set of adverse comments prior to the close of the 
comment period. EPA withdrew the DFR on November 27, 2017. See 82 FR 
55951.
    The revision to title 129, adding chapter 43, Visibility 
Protection, addressed in this action was originally proposed and 
approved during the September 8, 2006, Environmental Quality Council 
(ECQ) meeting. However, the revision was not approved by Attorney 
General's office. On August 17, 2007, an amended package was re-
submitted to the EQC, at which time it was approved by both the EQC and 
the Attorney General's office. After the Governor's signature, the 
revision adding chapter 43 became effective on February 6, 2008. 
Chapter 43 was submitted to the EPA, as part of a larger SIP package on 
November 8, 2011. Some of the revisions submitted in November 2011, 
were withdrawn by the State for various reasons. The remaining 
revisions to title 129, except for

[[Page 30353]]

revisions adding chapter 43, were approved on October 7, 2016, (81 FR 
69693). Chapter 43 is being addressed with this action.
    This final rule action will include the updated docket, address 
comments received, and finalize the approval of Nebraska's SIP 
submission.

II. What is being addressed in this document?

    EPA is taking action to approve revisions to Nebraska's SIP that 
will amend title 129 of the Nebraska Administrative Code to include a 
rule addressing certain requirements related to regional haze rule of 
1999 \1\. This proposed revision adds a new chapter, chapter 43, 
entitled ``Visibility Protection'', to title 129 which incorporates a 
portion of EPA Code of Federal Regulations under title 40 part 51 of 
EPA's Guidelines for BART determinations under the Regional Haze Rule. 
This new chapter provides the Nebraska Department of Environmental 
Quality (NDEQ) the authority to require sources to conduct BART 
determinations for the purpose of issuing BART permits. This revision 
to title 129 is consistent with Federal regulations related to Regional 
Haze and BART, adopting by reference the definitions for the Federal 
Regional Haze rule at 40 CFR 51.301 and adopting by reference, appendix 
Y to 40 CFR part 51, ``Guidelines for BART Determinations under the 
Regional Haze Rule.'' The revision to the SIP also meets the visibility 
component of the CAA section 110(a)(2)(J). Approval of these revisions 
will not impact air quality and will ensure consistency between the 
State and federally approved rules.
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    \1\ Title 40 Code of Federal Regulation (CFR) 51.308.
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III. Have the requirements for approval of a SIP revision been met?

    The state submission has met the public notice requirements for SIP 
submissions in accordance with 40 CFR 51.102. The submission also 
satisfied the completeness criteria of 40 CFR part 51, appendix V. The 
revised chapter was placed on public notice and a public hearing was 
held by the State on July 13, 2007, where no comments were received. In 
addition, the revision meets the substantive SIP requirements of the 
CAA, including section 110 and implementing regulations.

IV. EPA's Response to Comments

    The public comment period on EPA's proposed rule opened October 5, 
2017 the date of its publication in the Federal Register, and closed on 
November 6, 2017. During this period, EPA received one set of adverse 
comments, which are addressed below.
    Comment 1: The commenter stated that the EPA has improperly titled 
this action. The commenter elaborated by stating that if EPA is acting 
on a Regional Haze SIP from Nebraska, then it should not be calling 
this `New Chapter under Nebraska Code'. The commenter's concern was 
that the title was not descriptive or transparent. Finally, the 
commenter stated that the EPA's titling of this action could very well 
violate the administrative procedures act (APA), or at least the spirit 
of the APA.
    Response 1: By this action, EPA is not acting on a regional haze 
SIP. This rule gives NDEQ the authority to issue permits for best 
available retrofit technology or ``BART.'' EPA retained the title used 
by the state in describing its SIP, and that title accurately describes 
the action--addition of the new chapter 43.
    The Administrative Procedure Act at 5 U.S.C. 553(b)(1)-(3) states 
that the notification of the rule be published in the Federal Register 
and that the document shall include the time, place, and nature of the 
public rule making proceedings, the legal authority for the proposed 
rule, and either the terms or substance of the proposed rule or a 
description of the subjects and issues involved. This action meets the 
procedures outlined in the APA. The proposal document was published in 
the Federal Register. See 82 FR 46433. It provided a summary that 
clearly described that substance of the proposed rule, explaining that 
the addition of the new chapter provides Nebraska with ``authority to 
implement Federal regulations relating to Regional Haze and Best 
Available Retrofit Technology (BART) . . . [and] meets the visibility 
component of the Clean Air Act (CAA).'' Id. In addition, the document 
provided information on the process for submitting comments and 
explained the general rulemaking process EPA was using (i.e., the 
direct final rule with an accompany parallel proposal). That document 
also clearly stated that EPA ``explained our reasons for this action in 
the preamble to the direct final rule,'' id., thereby incorporating the 
information provided in the accompanying direct final rule preamble, 
and directing the reader where to find the document for the direct 
final rule within the Federal Register. In turn, the document for the 
direct final rule provided more detail on the substance of the SIP 
submittal and the legal authority for both Nebraska's submission and 
EPA's action on it. See 82 FR 46415 (which includes a section 
describing how the state's submission met various statutory and 
regulatory requirements and explaining that EPA could approve the 
submission because it is consistent with Federal Regional Haze 
regulations in 40 CFR part 51 and CAA section 110(a)(2)(j)).
    Comment 2: The commenter stated that EPA needs to repropose this 
action. The commenter stated that multiple documents in the docket were 
incomplete, specifically citing: ``1) the memo from NE that details the 
regional haze changes to chapter 43 has been cutoff, see docket 
document ending in 2017-0386-0012, page 4--this page ends in the middle 
of a sentence and does not include important information allowing me to 
evaluate and provide comment. 2) Document ending in 2017-0386-0016, 
page 5 is corrupt and page 6 is nonexistant [sic].'' The commenter was 
concerned that information was not able to be reviewed or commented on.
    Response 2: After review of the comments received and the EPA's 
docket for this action, the EPA agrees that the pages outlined by the 
commenter were missing. However, the missing pages highlighted by the 
commenter were not provided by the state as part of the state's SIP 
submission, was an administrative error, and were not used to support 
the EPA's action. To verify this statement, the EPA has followed up 
with the state of Nebraska. The state determined that the documents in 
the docket were the same as what was placed on review for public 
comment in Nebraska during the state's comment period. The referenced 
memorandum was a request for approval. It is not evidence of the 
governor's approval and therefore, is not relied upon for the approval 
of the SIP action. The attachment listed in the docket as 2017-0386-
0016 is a proposed SIP revision for chapter 5 of Nebraska's SIP. EPA 
took action on this portion of the submission on October 7, 2016 (see 
81 FR 69693). Therefore, attachment 2017-0386-0016 of the docket for 
this action is not relied upon to support this action.
    Additionally, the state's submission included additional revisions 
that are not being acted upon in this action.\2\ When the EPA uploaded 
the docket for this action, additional attachments were included. For 
this action, the EPA relied upon the following specific pages of the 
outlined attachments:
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    \2\ September 12, 2016, letter in the docket.

--EPA-R07-OAR-2017-0386-0003--pages 1 through 3;

[[Page 30354]]

--EPA-R07-OAR-2017-0386-0004--page 1;
--EPA-R07-OAR-2017-0386-0006--pages 1 through 12;
--EPA-R07-OAR-2017-0386-0010--pages 5 through 6;
--EPA-R07-OAR-2017-0386-0011--page 2;
--EPA-R07-OAR-2017-0386-0013--page 2;
--EPA-R07-OAR-2017-0386-0015--page 3; and
--EPA-R07-OAR-2017-0386-0019--pages 1 through 4.

All the documents EPA relied on were included in the docket at the time 
the Federal Register document was published.
    Comment 3: The commenter stated that the EPA failed to evaluate 
this action in regard to the March 27, 2017, executive order on energy 
independence and economic growth. EPA's requirement for states to adopt 
regional haze SIPs, and thus including chapter 43 in the SIP, will 
cause a significant impact on coal EGUs and eventually closure of coal 
EGUs in the state, causing economic hardship on the local communities. 
Nebraska's fiscal impact statement says, ``There is a substantial cost 
to BART-eligible sources for the required modeling under the BART 
program. As of now, it is unknown whether and what controls any source 
in Nebraska may have to install to comply with BART, but the cost of 
controls would be substantial.'' The requirement to comply with chapter 
43 is significant.
    Response 3: Under the CAA, the Administrator is required to approve 
a SIP submission that complies with the provisions of the Act and 
applicable federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). 
Thus, in reviewing SIP submissions, the EPA's role is to approve state 
actions, provided that they meet the criteria of the CAA. The EPA 
cannot consider disapproving a SIP submission or require any changes 
based on the March 27, 2017, executive order.
    Comment 4: The commenter stated that it is unclear from the action 
whether EPA is approving the other chapters and revisions to other 
chapters into the SIP. EPA included multiple other rules in the docket; 
however, the rule making action only discusses chapter 43, which is 
merely three provisions long.
    Response 4: EPA acknowledges that the state's submittal referenced 
multiple additional chapters and revisions to the state's rules. Within 
the proposal for this action, the EPA clearly stated that it was 
proposing ``to take action to add chapter 43, `Visibility Protection.' 
'' 82 FR 46433. Within the EPA's proposal, no additional chapters were 
referenced for approval. This action finalizes the proposed action \3\ 
and does not include any additional chapters beyond chapter 43. As the 
EPA stated earlier, additional portions of the state's submittal were 
included in the docket for the proposed rule. As outlined in Nebraska's 
September 12, 2016, letter, portions of the state's submission were 
withdrawn. However, the EPA has kept the docket intact and added the 
September 12, 2016, letter to provide additional clarity on which 
portions of the submission that the EPA was requested to approve. 
However, in response to comment number 2, the EPA has provided specific 
pages of the docket on which the EPA relied for this action.
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    \3\ 82 FR 46433
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    Comment 5: The commenter stated that the EPA did not evaluate the 
new regulation against the EPA's Regional Haze Rule nor did EPA show 
that this new rule meets the regional haze requirements. EPA also did 
not say whether or not approving this new rule means that Nebraska has 
an approved Regional Haze SIP.
    Response 5: This action is not specifically a Regional Haze SIP. 
This action is designed to show that NDEQ has the authority to 
implement BART procedures. This action was not required as part of 
Nebraska's Regional Haze SIP. The EPA partially approved and partially 
disapproved Nebraska's Regional Haze SIP on July 6, 2012. The full 
docket for that rulemaking can be found at EPA-R07-2012-0158-0051.
    Comment 6: The commenter stated that assuming this new rule is not 
a Regional Haze SIP and does not meet the requirements of the Regional 
Haze rule, EPA needs to require Nebraska to submit any permits issued 
to address BART under this new rule as source-specific SIP revisions as 
this rule is merely a generic-type rule that lays out a process by 
which sources will address BART related requirements.
    Response 6: As explained above, this action is not specifically a 
Regional Haze SIP, so the assumptions alleged in the comment are not 
relevant. This action is designed to show that NDEQ has the authority 
to implement BART procedures and it has been approved for that 
purposes. This action was not required as part of Nebraska's Regional 
Haze SIP, which the EPA partially approved and partially disapproved on 
July 6, 2012 (see rulemaking docket EPA-R07-2012-0158-0051).
    Comment 7: The commenter stated that the new chapter 43 and the 
revised chapter 1 do not include any Regional Haze related definitions 
such as the definition of BART, or the types of emission limitations or 
work practices which constitute BART for a given source. The commenter 
also stated that there was confusion on if EPA was acting on chapter 1 
as part of this action.
    Response 7: As the EPA outlined in its proposed rule and explained 
above in response to comment 4, the EPA is only acting on chapter 43 in 
this action. EPA is not acting on revisions to chapter 1 in this 
action. Chapter 43 references the Federal BART requirements. The state 
is incorporating a portion of the Federal requirements, including 
definitions related to BART.

V. What action is EPA taking?

    EPA is taking final action to revise the Nebraska SIP to add a new 
chapter, chapter 43.

VI. Incorporation by Reference

    In this rule, EPA is finalizing regulatory text that includes 
incorporation by reference. In accordance with requirements of 1 CFR 
51.5, EPA is finalizing the incorporation by reference of the Nebraska 
Regulations described in the amendments to 40 CFR part 52 set forth 
below. EPA has made, and will continue to make, these materials 
generally available through www.regulations.gov and at the EPA Region 7 
Office (please contact the person identified in the FOR FURTHER 
INFORMATION CONTACT section of this preamble for more information).
    Therefore, these materials have been approved by EPA for inclusion 
in the State implementation plan, have been incorporated by reference 
by EPA into that plan, are fully federally enforceable under sections 
110 and 113 of the CAA as of the effective date of the final rulemaking 
of EPA's approval, and will be incorporated by reference in the next 
update to the SIP compilation.\4\
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    \4\ 62 FR 27968 (May 22, 1997).
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VII. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the Act and applicable 
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
action merely approves state law as meeting Federal requirements and 
does not impose additional requirements beyond those imposed by state 
law. For that reason, this action:

[[Page 30355]]

     Is not a significant regulatory action subject to review 
by the Office of Management and Budget under Executive Orders 12866 (58 
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
     Is not an Executive Order 13771 (82 FR 9339, February 2, 
2017) regulatory action because SIP approvals are exempted under 
Executive Order 12866.
     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 (Public Law 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, the SIP is not approved to apply on any Indian 
reservation land or in any other area where EPA or an Indian tribe has 
demonstrated that a tribe has jurisdiction. In those areas of Indian 
country, the rule does not have tribal implications and will not impose 
substantial direct costs on tribal governments or preempt tribal law as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this action and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).
    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by August 27, 2018. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this action for the purposes of judicial review nor 
does it extend the time within which a petition for judicial review may 
be filed, and shall not postpone the effectiveness of such rule or 
action. This action may not be challenged later in proceedings to 
enforce its requirements. (See section 307(b)(2)).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Best available 
retrofit technology, Incorporation by reference, Intergovernmental 
relations, Nitrogen oxides, Particulate matter, Regional haze, 
Reporting and recordkeeping requirements, Sulfur dioxide, Visibility, 
Volatile organic compounds.


    Dated: June 13, 2018.
James B. Gulliford,
Regional Administrator, Region 7.

    For the reasons stated in the preamble, EPA 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 (c) is amended by revising 
the entry ``129-43'' to read as follows:


Sec.  52.1420  Identification of plan.

* * * * *
    (c) * * *

                                                            EPA-APPROVED NEBRASKA REGULATIONS
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                                                                   State
        Nebraska citation                    Title            effective date            EPA Approval date                        Explanation
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                                                                    STATE OF NEBRASKA
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                                                           Department of Environmental Quality
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                                                       Title 129--Nebraska Air Quality Regulations
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                                                                      * * * * * * *
129-43...........................  Visibility Protection....          2/6/08  6/28/18, [insert Federal Register     ....................................
                                                                               citation].
 
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[FR Doc. 2018-13723 Filed 6-27-18; 8:45 am]
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