[Federal Register Volume 85, Number 75 (Friday, April 17, 2020)]
[Rules and Regulations]
[Pages 21325-21329]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-07477]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R07-OAR-2019-0083; FRL-10007-78-Region 7]


Air Plan Approval; Nebraska; Infrastructure SIP Requirements for 
the 2015 Ozone National Ambient Air Quality Standards (NAAQS)

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is taking final 
action to approve elements of a State Implementation Plan (SIP) 
submission from the State of Nebraska addressing the applicable 
requirements of the Clean Air Act (CAA) section 110 for the 2015 Ozone 
(O3) National Ambient Air Quality Standards (NAAQS). 
Whenever the EPA promulgates a new or revised NAAQS, CAA section 110 
requires that each State adopt and submit a SIP submission to establish 
that the State's SIP meets infrastructure requirements for the 
implementation, maintenance, and enforcement of each such new or 
revised NAAQS. These SIP submissions 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.

DATES: This final rule is effective on May 18, 2020.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID No. EPA-R07-OAR-2019-0083. 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: Lachala Kemp, Environmental Protection 
Agency, Region 7 Office, Air Quality Planning Branch, 11201 Renner 
Boulevard, Lenexa, Kansas 66219; telephone number (913) 551-7214; email 
address [email protected].

SUPPLEMENTARY INFORMATION: Throughout this document ``we,'' ``us,'' and 
``our'' refer to EPA.

Table of Contents

I. Background
II. What is the EPA addressing in this document?
III. Has the State met the requirements for approval of the 
infrastructure SIP submission?
IV. What is the EPA's response to comments?
V. What sction is the EPA taking?
VI. Statutory and Executive Order Reviews

I. Background

    On May 9, 2019, the EPA proposed to approve Nebraska's 
infrastructure SIP submission for the 2015 O3 NAAQS in the 
Federal Register. 84 FR 20318 (May 9, 2019). The EPA solicited comments 
on the proposed approval of the infrastructure SIP submission and

[[Page 21326]]

received one set of comments that is addressed in this document.

II. What is the EPA addressing in this document?

    The EPA is approving the infrastructure SIP submission received 
from the State of Nebraska on September 24, 2018. Specifically, the EPA 
is approving the following infrastructure elements of section 
110(a)(2): (A) Through (C)(the permitting portion relevant to Part C), 
(D)(i)(I)--prongs 1 and 2, (D)(i)(II)--prong 3, (D)(ii), (E) through 
(H), and (J) through (M).
    A Technical Support Document (TSD) in the docket provides 
additional details of this action, including an analysis of how the 
infrastructure SIP submission meets the applicable 110(a)(1) and (2) 
requirements for infrastructure SIPs. The EPA plans to take separate 
action on the infrastructure elements under section 
110(a)(2)(D)(i)(II)--prong 4. The EPA is not addressing section 
110(a)(2)(I)--Nonattainment Area Plan or Plan Revisions under Part D, 
as it is the EPA's interpretation of the CAA that these elements do not 
need to be addressed in the context of an infrastructure SIP 
submission.

III. Has the State met the requirements for approval of the 
infrastructure SIP submission?

    The State met the public notice requirements for SIP submissions in 
accordance with 40 CFR 51.102. The EPA determined that the submission 
satisfied the completeness criteria of 40 CFR part 51, appendix V. The 
State provided a public comment period for this SIP revision from 
August 7, 2018 to September 7, 2018, and at the same time, offered an 
opportunity for a public hearing. The State received no comments and no 
requests for a public hearing. In addition, as explained in more detail 
in the TSD, the infrastructure SIP submission meets the substantive 
requirements of the CAA for SIP submissions, including section 110 and 
implementing regulations.

IV. What is the EPA's response to comments?

    The public comment period on the EPA's proposed rule opened May 9, 
2019, the date of its publication in the Federal Register and closed on 
June 10, 2019. During this period, the EPA received one comment which 
consisted of several observations as summarized below.
    Comment 1: The EPA states in the TSD that Nebraska's minor source 
new source review (NSR) program does not meet the requirements of CAA 
section 110(a)(2)(C) and therefore the EPA must make the State correct 
the deficiency or make a finding under CAA section 110(k).
    Response 1: The EPA's review of a State's infrastructure SIP 
submission focuses on assuring that the State's SIP meets basic 
structural requirements. Section 110(a)(2)(C) includes, inter alia, the 
requirement that States have a program to regulate minor new sources. 
The EPA evaluates whether the State has an EPA-approved minor NSR 
program and whether the program addresses the pollutants relevant to 
that NAAQS. As discussed in the TSD, the EPA approved Nebraska's minor 
NSR program into the SIP in 1972 and 1995. See 37 FR 10842 (May 31, 
1972) and 60 FR 372 (January 4, 1995).
    Notwithstanding the EPA statement from the TSD referenced by the 
commenter, the EPA does not currently see a deficiency in the Nebraska 
minor NSR program that warrants a disapproval of the infrastructure SIP 
submission with respect to section 110(a)(2)(C) or a finding under 
section 110(k) of the Act. In the TSD, the EPA stated that that 
Nebraska's minor NSR program adequately regulates construction and 
modification of stationary sources to protect the 2015 O3 
NAAQS. While the EPA also said that Nebraska's minor NSR program 
``likely does not meet'' all the requirements found in the EPA's 
regulations implementing that provision, this was not intended as a 
definitive determination that Nebraska's program did not in fact meet 
all requirements of the implementing regulations of 40 CFR 51.160 
through 51.164. This statement was made in error and was not the result 
of a comprehensive review of Nebraska's minor source NSR program, and 
the EPA did not identify a specific deficiency in Nebraska's minor 
source NSR program. The commenter does not identify a specific 
deficiency with the Nebraska regulations or any intervening change in 
the EPA regulations that Nebraska has failed to address with respect to 
its minor NSR program.
    Nebraska has an approved minor NSR program that addresses the 
relevant pollutants. After further review of this issue, the EPA 
reaffirms its position that the State's minor source NSR program 
adequately regulates the construction and modification of stationary 
sources to protect the 2015 O3 NAAQS. Because the EPA has 
determined that Nebraska's minor NSR program is not deficient, the EPA 
is not disapproving the SIP submission with respect to CAA section 
110(a)(2)(C) and is not compelled to issue a finding under CAA section 
110(k).
    Comment 2: Nebraska failed to assure that the appropriate modeling 
is being performed through the State's PSD and NSR permitting programs, 
as chapter 19, section 001 of Nebraska's regulations does not appear to 
allow for incorporation by reference on an ongoing basis. The EPA must 
demonstrate that Nebraska is able to incorporate 40 CFR part 51, 
appendix W modeling guidelines on an ongoing basis. In addition, for 
the reasons listed above, the State fails to meet CAA 110(a)(2)(k).
    Response 2: Appendix W was revised in 2017, and the EPA required 
States to integrate the revisions to 40 CFR part 51, appendix W, into 
regulatory processes and require applicants to follow the revisions by 
no later than January 17, 2018. 82 FR 5182 (January 17, 2017).
    The EPA has reviewed the title 129, chapter 19, section 001 of the 
Nebraska Administrative Code and has determined that this State rule 
neither applies to nor limits the incorporation by reference of 40 CFR 
part 51, appendix W, as it does not pertain to appendix W. As stated in 
the TSD, Nebraska's authority to require or perform air quality 
modeling for PSD construction permitting is in the SIP-approved State 
regulations at title 129, chapter 19, section 019, which requires air 
quality modeling to be based on the applicable models, data bases, and 
other requirements specified in 40 CFR part 51, appendix W (Guideline 
on Air Quality Models). Title 129, chapter 19, section 019 does not 
contain an incorporation by reference date.
    To the extent the commenter is concerned that title 129, chapter 
019, section 019.01 adopts an older version of appendix W and that the 
State therefore lacks the requisite authority to use the 2017 revision 
to appendix W in PSD modeling, title 129, chapter 19, section 019.02 
provides a process for modification or substitution with another model 
where an air quality model specified in 40 CFR part 51, appendix W, is 
inappropriate, and includes provisions for public comment concerning 
the modified or substituted model. The EPA interprets this provision to 
allow for Nebraska and it's sources to use updated appendix W models 
reflected in the most recent version of appendix W even if the undated 
reference in appendix W in title 129, chapter 19, section 019.02 could 
be interpreted to adopt a previous version of appendix W. These 
provisions are thus adequate to meet PSD and NSR requirements under 
section 110(a)(2)(C) and contribute to satisfying section 110(a)(2)(K).

[[Page 21327]]

    With respect to CAA section 110(a)(2)(K) more generally, the EPA 
explained in its TSD that Neb. Rev. Stat. section 81-1504(5) provides 
Nebraska with the authority to encourage, participate in, or conduct 
studies, investigations, research and demonstrations relating to air 
pollution and its causes and effects. This statute is interpreted by 
the EPA to give Nebraska broad authority to conduct air quality 
modeling to predict the effect on ambient air quality of any emission 
of any air pollutant for which a NAAQS has been promulgated. Nebraska's 
September 24, 2018 infrastructure SIP submission also references Neb. 
Rev. Stat. section 81-1527, which provides for public inspection of 
information furnished to or obtained by Nebraska related to air 
sources, including emissions data. Thus, considering this statutory 
authority and the Nebraska regulations described above, the EPA finds 
that Nebraska's SIP has the authority to provide air quality modelling 
data to the EPA upon request. For these reasons, the EPA finds that 
Nebraska's SIP satisfies the requirements of CAA section 110(a)(2)(K).
    Comment 3: Nebraska failed to identify ammonia as a precursor to 
Particulate Matter (PM) in its NSR and PSD permitting program. Because 
of this, the State fails to meet elements C, D and J (CAA sections 
110(a)(2)(C), (D), and (J)).
    Response 3: The EPA interprets the commenter's reference to 
Particulate Matter as Particulate Matter less than 2.5 microns in 
diameter (PM2.5) in accordance with the precursor language 
in the definition of ``regulated NSR pollutant'' in 40 CFR 
51.166(b)(49). Nebraska's PSD regulations at title 129, chapter 19, 
section 010 define the appropriate precursors for all NSR pollutants 
and mirror the EPA's definitions in 40 CFR 51.166(b)(49). In that 
provision, the EPA regulations define ``regulated NSR pollutant'' for 
purposes of the PSD permitting requirements to include precursors 
specifically identified by the Administrator in that paragraph. The 
provisions indicate that sulfur dioxide is a precursor to 
PM2.5, that nitrogen oxides are presumptively a precursor to 
PM2.5 (unless a demonstration is made to the contrary), and 
that volatile organic compounds are presumptively not a precursor to 
PM2.5 (unless a demonstration is made to the contrary). The 
provision does not identify ammonia as a precursor to PM2.5 
for purposes of the PSD permitting requirements, and thus Nebraska was 
not required to identify ammonia as a PM2.5 precursor in its 
SIP for purposes of satisfying the requirement to have an adequate PSD 
permitting program under CAA section 110(a)(2)(C), (D)(i)(II), or (J).
    To the extent the commenter suggests that the State's nonattainment 
NSR permitting program should regulate ammonia as a PM2.5 
precursor, the EPA interprets the portion of CAA section 110(a)(2)(C) 
that pertains to a permitting program that applies to nonattainment NSR 
within nonattainment areas is outside of the scope of this 
infrastructure SIP action. Because CAA section 110(a)(2)(C) refers to 
permit programs for purposes of nonattainment NSR under part D of the 
CAA that a State is required to submit to the EPA on a schedule that is 
separate from what is required for infrastructure SIP submissions, the 
State is not required to address nonattainment NSR requirements in the 
infrastructure SIP submission. In addition, as explained in the TSD, 
there are currently no nonattainment areas in the State of Nebraska, 
and thus, Nebraska is not at this time required to have an approved 
nonattainment NSR program addressing PM2.5.
    Accordingly, the EPA finds that Nebraska's 2015 O3 NAAQS 
Infrastructure SIP submission meets the requirements of CAA sections 
110(a)(2)(C), (D), and (J) as it is not required to identify ammonia as 
a precursor to PM2.5 in its PSD permitting program and any 
purported deficiencies related to the State's nonattainment NSR 
permitting program are outside of the scope of this action.
    Comment 4: In the TSD, the EPA discusses CAA 110(a)(2)(D)(ii) in 
its approval of CAA 110(a)(2)(D)(i)(I) prongs 1 and 2 and CAA 
110(a)(2)(D)(i)(II) prong 3, but it is not clear if 110(a)(2)(D)(ii) is 
the basis for approval of those prongs.
    Response 4: The TSD contains the EPA's analysis of whether the 
State meets the separate requirements found in CAA section 
110(a)(2)(D)(i)(I) (prongs 1 and 2), and CAA section 
110(a)(2)(D)(i)(II) (prong 3), as well as CAA section 110(a)(2)(D)(ii). 
Because the EPA did not reference CAA section 110(a)(2)(D)(ii) in its 
approval of CAA section 110(a)(2)(D)(i)(I) prongs 1 and 2 and CAA 
section 110(a)(2)(D)(i)(II) prong 3, the EPA is unable to determine the 
commenter's concern with the EPA's approval of these elements.
    Comment 5: The EPA should make periodic reviews of Nebraska's Air 
Quality program publicly available in order for the public to determine 
if Nebraska has adequate resources and personnel. The EPA should re-
propose approval of the Infrastructure SIP and should clearly state 
whether it has found that Nebraska has adequate funding to support the 
State's permitting programs in accordance with CAA section 
110(a)(2)(L).
    Response 5: The EPA's statement that it conducts periodic reviews 
of Nebraska's Air Quality Program was made in the section of the TSD 
that contained an analysis of whether Nebraska meets the requirements 
of CAA section 110(a)(2)(E). The basis for the EPA's approval of 
Nebraska's provisions for meeting the requirements of CAA section 
110(a)(2)(E) are fully articulated in the TSD, and the statement 
concerning periodic reviews of Nebraska's Air Quality Program was 
informational in nature and did not serve as a basis for approval of 
Nebraska's provisions that meet the requirements of CAA section 
110(a)(2)(E). As discussed in the TSD, the State has adopted 
requirements 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. The EPA therefore finds that Nebraska has adequate 
personnel, funding, and authority to carry out the state implementation 
plan with respect to the relevant NAAQS in accordance with CAA section 
110(a)(2)(E).
    Concerning the EPA's analysis of whether Nebraska has adequate 
infrastructure and adequate funding to address CAA section 
110(a)(2)(L), the EPA addressed the adequacy of Nebraska's Title V fee 
program, which was approved by the EPA on October 18, 1995. See 60 FR 
53872 (October 18, 1995). Nebraska included its environmental agency's 
2017 Annual Report to the Legislature with its September 24, 2018 
infrastructure SIP submission for the 2015 O3 NAAQS, which 
is available in the docket. The Annual Report details how emission fees 
are established in order to provide the minimum amount to pay the 
direct and indirect costs of developing and administering the air 
quality permit program, which includes an analysis of whether the fees 
support administration of the program.
    Because the EPA articulated its proposed finding in the TSD based 
on information that was available in the docket during the public 
comment period, the EPA disagrees with the commenter that it must re-
propose approval for its finding that Nebraska

[[Page 21328]]

has the adequate infrastructure to satisfy CAA section 110(a)(2)(L).

V. What action is the EPA taking?

    The EPA is approving elements of the September 24, 2018, 
infrastructure SIP submission from the State of Nebraska, which address 
the requirements of CAA sections 110(a)(1) and (2) as applicable to the 
2015 O3 NAAQS. Specifically, the EPA is approving the 
following infrastructure elements of 110(a)(2): (A) through (C) (the 
part C permitting portion), (D)(i)(I)-(prongs 1 and 2), (D)(i)(II)--
(prong 3), (D)(ii), (E) through (H), and (J) through (M). As explained 
in the TSD, the EPA intends to act on section 110(a)(2)(D)(i)(II)--
prong 4, in a subsequent rulemaking. The EPA is not addressing section 
110(a)(2)(I)-Nonattainment Area Plan or Plan Revisions under part D, as 
it is the EPA's interpretation of the CAA that these elements do not 
need to be addressed in the context of an infrastructure SIP 
submission.
    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, the EPA finds 
that Nebraska's SIP meets all applicable required elements of sections 
110(a)(1) and (2) (except as otherwise noted) with respect to the 2015 
O3 NAAQS.

VI. 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, the 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 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 (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 the National Technology 
Transfer and Advancement Act (NTTA) because this rulemaking does not 
involve technical standards; 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 the 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 June 16, 2020. 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, Incorporation by 
reference, Intergovernmental relations, Nitrogen dioxide, Ozone, 
Reporting and recordkeeping requirements, Sulfur oxides, Volatile 
organic compounds.

    Dated: April 3, 2020.
Edward Chu,
Acting Regional Administrator, Region 7.

    For the reasons stated in the preamble, the 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 (e) is amended by adding 
entry ``(35)'' in numerical order to read as follows:


Sec.  52.1420  Identification of plan.

* * * * *
    (e)* * *

[[Page 21329]]



                                 EPA-Approved Nebraska Nonregulatory Provisions
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                                     Applicable
  Name of non- regulatory SIP       geographic or         State       EPA approval date        Explanation
            revision             nonattainment area  submittal date
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
(35) Sections 110 (a)(1) and     Statewide.........       9/24/2018  4/17/2020, [insert  This action approves
 (2) Infrastructure                                                   Federal Register    for the O3 NAAQS: The
 Requirements for the 2015 O3                                         citation].          following CAA
 NAAQS.                                                                                   elements: 110(a)(1)
                                                                                          and (2): (A) through
                                                                                          (C), (D)(i)(I)--prongs
                                                                                          1 and 2, (D)(i)(II)--
                                                                                          prong 3, (D)(ii), (E)
                                                                                          through (H), and (J)
                                                                                          through (M). EPA-R07-
                                                                                          OAR-2019-0083; FRL-
                                                                                          10007-78-Region 7.
 
                                                  * * * * * * *
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[FR Doc. 2020-07477 Filed 4-16-20; 8:45 a.m.]
 BILLING CODE 6560-50-P