[Federal Register Volume 89, Number 107 (Monday, June 3, 2024)]
[Proposed Rules]
[Pages 47504-47508]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-11649]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 70

[EPA-R07-OAR-2024-0025; FRL-11676-01-R7]


Air Plan Approval; Nebraska; Revisions to Title 129 of the 
Nebraska Administrative Code; Nebraska Air Quality Regulations

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve revisions to the Nebraska State Implementation Plan (SIP), 
Operating Permits Program, and 112(l) Plan. The revisions were 
submitted by the State of Nebraska on December 2, 2022. This proposed 
action will amend the SIP to revise Nebraska air quality regulations 
and will add specific definitions from a Nebraska statute. These 
proposed changes include new and renumbered rules, the consolidation of 
43 chapters into 16 chapters, replacement of duplicative language with 
references to state statute and federal regulation, revisions to 
reflect changes to state and federal law, and other changes to state 
regulations. The EPA's proposed approval of this rule revision is in 
accordance with the requirements of the Clean Air Act (CAA).

DATES: Comments must be received on or before July 3, 2024.

ADDRESSES: You may send comments, identified by Docket ID No. EPA-R07-
OAR-2024-0025 to https://www.regulations.gov. Follow the online 
instructions for submitting comments.
    Instructions: All submissions received must include the Docket ID 
No. for this rulemaking. Comments received will be posted without 
change to https://www.regulations.gov, including any personal 
information provided. For detailed instructions on sending comments and 
additional information on the rulemaking process, see the ``Written 
Comments'' heading of the SUPPLEMENTARY INFORMATION section of this 
document.

FOR FURTHER INFORMATION CONTACT: William Stone, Environmental 
Protection Agency, Region 7 Office, Air Permitting and Planning Branch, 
11201 Renner Boulevard, Lenexa, Kansas 66219; telephone number: (913) 
551-7714; email address: [email protected].

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

Table of Contents

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

I. Written Comments

    Submit your comments, identified by Docket ID No. EPA-R07-OAR-2024-
0025, at https://www.regulations.gov. Once submitted, comments cannot 
be edited or removed from Regulations.gov. The EPA may publish any 
comment received to its public docket. Do not submit electronically any 
information you consider to be Confidential Business Information (CBI) 
or other information whose disclosure is restricted by statute. 
Multimedia submissions (audio, video, etc.) must be accompanied by a 
written comment. The written comment is considered the official comment 
and should include discussion of all points you wish to make. The EPA 
will generally not consider comments or comment contents located 
outside of the primary submission (i.e. on the web, cloud, or other 
file sharing system). For additional submission methods, the full EPA 
public comment policy, information about CBI or multimedia submissions, 
and general guidance on making effective comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets.

II. What is being addressed in this document?

    The EPA is proposing to amend Nebraska's SIP and Operating Permits 
Program to include revisions to title 129 of the Nebraska 
Administrative Code and to add specific definitions from Nebraska 
Revised Statute 81-1502. The EPA is proposing to approve revisions to 
the Nebraska SIP received on December 2, 2022. The revisions are to 
Title 129--Nebraska Air Quality Regulations and include specific 
definitions from Nebraska Revised Statute 81-1502. These proposed 
changes include new and renumbered rules, the consolidation of 43 
chapters into 16 chapters, replacement of duplicative language with 
references to state statute and federal regulation, approval of 
specific definitions in state statute, revisions to reflect changes to 
state and federal law, and other changes to state regulations.
    In addition to the changes discussed above, the state's revision to 
title 129 includes state rules that allow small projects to start 
construction prior to receiving a construction permit. To be eligible 
for this program, the new source or modification to an existing source 
must not be subject to Nonattainment New Source Review (NSR), case-by-
case Maximum Achievable Control Technology (MACT) or Prevention of 
Significant Deterioration (PSD) or be a source seeking federally 
enforceable permit restrictions to avoid review under Nonattainment 
NSR, case-by-case MACT or PSD. The source is prohibited from operating 
until a construction permit has been issued. Since the source is not 
allowed to hook up the equipment to the exhaust stack or operate the 
equipment in any way that may emit any pollutant prior to receiving a 
construction permit, there is no change to emissions or air quality as 
a result of these revisions. Nebraska Department of Environment and 
Energy's (NDEE's) requirements for reviewing the permit application and 
protecting air quality are unchanged by these revisions. In the 
Technical Support Document (TSD) for Chapter 3 included in the docket 
for this action, we include more information about this change.
    This revision is in compliance with federal requirements, 
including: (1) CAA section 110(a)(2)(c), which requires states to 
include a minor NSR program in their SIP to regulate modifications and 
new construction of stationary sources within the area as necessary to 
assure the National Ambient Air Quality Standards (NAAQS) are achieved; 
(2) The regulatory requirements under 40 CFR 51.160, including Sec.  
51.160(b), which requires states to have legally enforceable procedures 
to prevent construction or modification of a source if it would violate 
any SIP control strategies or interfere with attainment or maintenance 
of the NAAQS; and (3) the statutory requirements under CAA section 
110(l), which provides that the EPA cannot approve a SIP revision if 
the revision would interfere with any applicable requirement concerning 
attainment and reasonable further

[[Page 47505]]

progress, or any other applicable requirement of the CAA.
    The state also revised the carbon monoxide threshold for minor 
construction permitting from 50 tons per year to 100 tons per year. In 
the TSD for Chapter 3 included in the docket for this action, we 
explain how allowing NDEE to increase the permitting threshold for 
Carbon Monoxide (CO) for minor construction permits meets the 
requirements of section 110(l) of the CAA. The summary includes the 
state's monitoring and emissions trends for CO and an explanation of 
how Nebraska's construction permitting program protects protect air 
quality in Nebraska from exceeding the NAAQS. In this analysis we also 
stated that the state of Nebraska operates two CO monitors and both are 
in attainment for the 1-hour and 8-hour 1971 CO NAAQS, with design 
values less than 16% of the 8-hour NAAQS.
    In addition, title 129 has been revised to include an exemption to 
emission standards for oxides of nitrogen at nitric acid production 
installations if the installation is subject to 40 CFR part 60 Subpart 
Ga Standards of Performance for Nitric Acid Plants for Which 
Construction, Reconstruction, or Modification Commenced After October 
14, 2011 or other more stringent federal standards or a more stringent 
permit limit. Section 110(l) of the CAA states that EPA cannot approve 
a SIP revision if the revision would interfere with any applicable 
requirement concerning attainment and reasonable further progress 
(RFP), or any other applicable requirement of the CAA. The new 
exemptions to the nitrogen oxide limit of this regulation only apply to 
sources subject to the NSPS or other more stringent limits. This means 
that any source that becomes exempt from the nitrogen oxide limit in 
title 129, is controlled for this pollutant by the NSPS or other more 
stringent limits. In addition to this regulatory backstop EPA 
acknowledges that the state of Nebraska in currently in attainment with 
all NAAQS. For these reasons, we find that this action will not 
interfere with any applicable requirement concerning attainment and 
reasonable further progress (as defined in section 171 of the CAA), or 
any other applicable requirement of the CAA as required under section 
110(l). This change is further explained the TSD for Chapter 16.
    This action also proposes to remove the total reduced sulfur (TRS) 
ambient standard from the SIP. On April 16, 2024, Nebraska requested 
that EPA not approve this portion of Chapter 2 from the December 2, 
2022 submission. This standard was approved into the SIP initially in 
Chapter 4, but has no federal basis, so the state has proposed to 
remove it from the SIP, but retain it as a state only standard. Because 
Nebraska's December 2, 2022 submission requested that the EPA replace 
rules that were approved in the SIP with the amended title 129 rules, 
and because Nebraska has withdrawn the amended title 129 rules related 
to TRS, the EPA proposes to remove rules related to TRS from the SIP. 
In the TSD for Chapter 2 included in the docket for this action, we 
explain how removing TRS from the SIP meets the requirements of section 
110(l) of the CAA.
    In Chapter 10 Permits--Public Participation, NDEE has removed 
language that is duplicated in Title 115 Chapter 3 Public Hearings 
which was approved into the SIP (86 FR 26843). In section 2 of Chapter 
10, NDEE has also removed language requiring public notice to be 
distributed to persons that have signed up for a department mailing 
list. The state continues to distribute public notices for air permits 
by email to person who provide and email to the department as required 
by 40 CFR 70.7(h)(2).
    In section 3 of Chapter 10, NDEE removed language that specifically 
requires the public notice to contain the emissions change involved in 
any permit modification. Title 115 Chapter 3 section 7 requires the 
public notice to contain a brief description of the business conducted 
at the facility or activity described in the permit application or the 
draft permit. The department considers any change in emissions to be an 
activity described in the permit application, and as such, continues to 
put any emission change in the public notice. The EPA agrees with NDEE 
that this requirement fulfills the requirement of 40 CFR 70.7(h)(2) to 
identify the emissions change involved in any permit modification.
    All of the revisions are described in detail in the technical 
support documents (TSD) included in the docket for this action.

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 
State provided public notice on this SIP revision from February 23, 
2022 to March 29, 2022, and held a public hearing on March 30, 2022 and 
received no comments. In addition, as explained above and in more 
detail in the TSD which is part of this docket, the revision meets the 
substantive SIP requirements of the CAA, including section 110 and 
implementing regulations.

IV. What action is the EPA taking?

    We are proposing to amend the Nebraska SIP by approving the State's 
request to revise Title 129--Nebraska Air Quality Regulations and 
certain definitions in Nebraska Revised Statute 81-1502. Approval of 
these revisions will ensure consistency between state and federally-
approved rules. The EPA has determined that these changes will not 
adversely impact air quality.
    The EPA is soliciting comment on the substantive revisions detailed 
in this proposal and the TSDs. The EPA is not soliciting comment on 
existing rule text, including existing rule text that has been 
reorganized, as these provisions have been previously approved by the 
EPA into the SIP or Operating Permits Program. Final rulemaking will 
occur after consideration of any comments.

V. Incorporation by Reference

    In this document, the EPA is proposing to include regulatory text 
in an EPA final rule that includes incorporation by reference. In 
accordance with requirements of 1 CFR 51.5, the EPA is finalizing the 
incorporation by reference of the Nebraska rules:
     Chapter 1--General Provisions; Definitions, which provides 
general provisions and definitions for air quality regulations;
     Chapter 2--Nebraska Air Quality Standards, which lists the 
ambient air quality standards;
     Chapter 3--Construction Permits, which regulates air 
construction permitting in Nebraska;
     Chapter 4--Prevention Of Significant Deterioration of Air 
Quality (PSD) which regulates PSD permitting in Nebraska;
     Chapter 6--Operating Permits which regulates air operating 
permitting in Nebraska;
     Chapter 7--General Permits which regulates air general 
permitting in Nebraska;
     Chapter 8--Permits-By-Rule which regulates air permit-by-
rule permitting in Nebraska;
     Chapter 9--Permit Revisions; Reopening For Cause which 
regulates air permit revisions in Nebraska;
     Chapter 10--Permits--Public Participation which regulates 
public notice requirements for air permitting in Nebraska;
     Chapter 11--Emissions Reporting, When Required which 
regulates air emissions inventory in Nebraska;

[[Page 47506]]

     Chapter 14--Incinerators, Emission Standards which 
regulates emissions from incinerators in Nebraska;
     Chapter 15--Compliance which regulates compliance with air 
regulations in Nebraska;
     Chapter 16--Sulfur Compound and Nitrogen Oxides Emissions 
Standards which regulates emissions of sulfur dioxide and nitrogen 
oxides in Nebraska;
     Appendix I--Hazardous Air Pollutants Sorted by CAS Number 
which lists the hazardous air pollutants;
     Appendix II--Air Pollution Emergency Episodes which 
explains Nebraska's emergency episode procedures; and
     Nebraska Revised Statute 81-1502--Terms, Defined which 
contains definitions for Nebraska's air quality regulations.
    The state effective date of these rules is September 28, 2022. The 
state effective date of Nebraska Revised Statute 81-1502 is March 21, 
2019. The EPA has made, and will continue to make, these materials 
generally available through https://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).
    Also, in this document, as described in the proposed amendments to 
40 CFR part 52 set forth below, EPA is proposing to remove provisions 
of the EPA-Approved Nebraska Regulations and Statutes from the Nebraska 
State Implementation Plan, which is incorporated by reference in 
accordance with the requirements of 1 CFR part 51.

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 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 Orders 12866 (58 
FR 51735, October 4, 1993) and 14094 (88 FR 21879, April 11, 2023);
     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 subject to Executive Order 13045 (62 FR 19885, 
April 23, 1997) because it approves a state program;
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001); and
     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.
    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).
    Executive Order 12898 (Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations, 59 FR 7629, 
February 16, 1994) directs Federal agencies to identify and address 
``disproportionately high and adverse human health or environmental 
effects'' of their actions on minority populations and low-income 
populations to the greatest extent practicable and permitted by law. 
EPA defines environmental justice (EJ) as ``the fair treatment and 
meaningful involvement of all people regardless of race, color, 
national origin, or income with respect to the development, 
implementation, and enforcement of environmental laws, regulations, and 
policies.'' EPA further defines the term fair treatment to mean that 
``no group of people should bear a disproportionate burden of 
environmental harms and risks, including those resulting from the 
negative environmental consequences of industrial, governmental, and 
commercial operations or programs and policies.''
    The NDEE did not evaluate environmental justice considerations as 
part of its SIP submittal; the CAA and applicable implementing 
regulations neither prohibit nor require such an evaluation. EPA did 
not perform an EJ analysis and did not consider EJ in this action. 
Consideration of EJ is not required as part of this action, and there 
is no information in the record inconsistent with the stated goal of 
E.O. 12898 of achieving environmental justice for people of color, low-
income populations, and Indigenous peoples.

List of Subjects

40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Particulate matter, Reporting 
and recordkeeping requirements, Volatile organic compounds.

40 CFR Part 70

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Intergovernmental relations, Operating permits, 
Reporting and recordkeeping requirements.

    Dated: May 21, 2024.
Meghan A. McCollister,
Regional Administrator, Region 7.

    For the reasons stated in the preamble, the EPA proposes to amend 
40 CFR parts 52 and 70 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, in the table in paragraph (c):
0
a. Revise the center heading ``Department of Environmental Quality'' to 
read ``Department of Environment and Energy''.
0
b. Revise the entries ``129-1'', ``129-2'', ``129-3'', and ``129-4'';
0
c. Remove the entry ``129-5'';
0
d. Revise the entries ``129-6'', ``129-7'', ``129-8'', ``129-9'', 
``129-10'', and ``129-11'';
0
e. Remove the entries ``129-12'' and ``129-13'';
0
f. Revise the entries ``129-14'', ``129-15'', and ``129-16'';
0
g. Remove the entries ``129-17'', ``129-19'', ``129-20'', ``129-21'', 
``129-22'', ``129-24'', ``129-25'', ``129-30'', ``129-32'', ``129-33'', 
``129-34'', ``129-35'', ``129-36'', ``129-37'', ``129-38'', ``129-41'', 
``129-42'', ``129-43'', and ``129-44'';

[[Page 47507]]

0
h. Revise the entries ``Appendix I'' and ``Appendix II''; and
0
i. Add the center heading ``Nebraska Revised Statute 81-1502 Terms 
Defined'' and the entry ``1502'' after the entry ``115-3''.
    The revisions and additions read as follows:


Sec.  52.1420  Identification of plan.

* * * * *
    (c) * * *

                                        EPA-Approved Nebraska Regulations
----------------------------------------------------------------------------------------------------------------
                                                    State
   Nebraska citation            Title          effective date       EPA approval date           Explanation
----------------------------------------------------------------------------------------------------------------
                                                State of Nebraska
----------------------------------------------------------------------------------------------------------------
                                      Department of Environment and Energy
                                   Title 129--Nebraska Air Quality Regulations
----------------------------------------------------------------------------------------------------------------
129-1.................  General Provisions;         9/28/2022  [Date of publication of
                         Definitions.                           the final rule in the
                                                                Federal Register],
                                                                [Federal Register
                                                                citation of the final
                                                                rule].
129-2.................  Nebraska Air Quality        9/28/2022  [Date of publication of     Section 002 Total
                         Standards.                             the final rule in the       reduced sulfur (TRS)
                                                                Federal Register],          is not approved into
                                                                [Federal Register           the SIP.
                                                                citation of the final
                                                                rule].
129-3.................  Construction Permits.       9/28/2022  [Date of publication of
                                                                the final rule in the
                                                                Federal Register],
                                                                [Federal Register
                                                                citation of the final
                                                                rule].
129-4.................  Prevention of               9/28/2022  [Date of publication of
                         Significant                            the final rule in the
                         Deterioration (PSD).                   Federal Register],
                                                                [Federal Register
                                                                citation of the final
                                                                rule].
129-6.................  Operating Permits....       9/28/2022  [Date of publication of
                                                                the final rule in the
                                                                Federal Register],
                                                                [Federal Register
                                                                citation of the final
                                                                rule].
129-7.................  General Permits......       9/28/2022  [Date of publication of
                                                                the final rule in the
                                                                Federal Register],
                                                                [Federal Register
                                                                citation of the final
                                                                rule].
129-8.................  Permits-By-Rule......       9/28/2022  [Date of publication of
                                                                the final rule in the
                                                                Federal Register],
                                                                [Federal Register
                                                                citation of the final
                                                                rule].
129-9.................  Permit Revisions;           9/28/2022  [Date of publication of
                         Reopening For Cause.                   the final rule in the
                                                                Federal Register],
                                                                [Federal Register
                                                                citation of the final
                                                                rule].
129-10................  Permits--Public             9/28/2022  [Date of publication of
                         Participation.                         the final rule in the
                                                                Federal Register],
                                                                [Federal Register
                                                                citation of the final
                                                                rule].
129-11................  Emissions Reporting,        9/28/2022  [Date of publication of
                         When Required.                         the final rule in the
                                                                Federal Register],
                                                                [Federal Register
                                                                citation of the final
                                                                rule].
129-14................  Incinerators,               9/28/2022  [Date of publication of
                         Emission Standards.                    the final rule in the
                                                                Federal Register],
                                                                [Federal Register
                                                                citation of the final
                                                                rule].
129-15................  Compliance...........       9/28/2022  [Date of publication of
                                                                the final rule in the
                                                                Federal Register],
                                                                [Federal Register
                                                                citation of the final
                                                                rule].
129-16................  Sulfur Compound and         9/28/2022  [Date of publication of
                         Nitrogen Dioxides                      the final rule in the
                         Emissions Standards.                   Federal Register],
                                                                [Federal Register
                                                                citation of the final
                                                                rule].
Appendix I............  Hazardous Air               9/28/2022  [Date of publication of
                         Pollutants Sorted by                   the final rule in the
                         CAS Number.                            Federal Register],
                                                                [Federal Register
                                                                citation of the final
                                                                rule].
Appendix II...........  Air Pollution               9/28/2022  [Date of publication of
                         Emergency Episodes.                    the final rule in the
                                                                Federal Register],
                                                                [Federal Register
                                                                citation of the final
                                                                rule].
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
                                 Nebraska Revised Statute 81-1502 Terms Defined
----------------------------------------------------------------------------------------------------------------
1502..................  Terms Defined........       3/21/2019  [Date of publication of     The following
                                                                the final rule in the       paragraphs of
                                                                Federal Register],          Nebraska Revised
                                                                [Federal Register           Statute 81-1502 are
                                                                citation of the final       approved into the
                                                                rule].                      SIP: (2) Air
                                                                                            pollution; (3)
                                                                                            Chairperson; and
                                                                                            (10) Person.
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------


[[Page 47508]]

* * * * *

PART 70--STATE OPERATING PERMIT PROGRAMS

0
3. The authority citation for part 70 continues to read as follows:

    Authority:  42 U.S.C. 7401, et seq.

0
4. Appendix A to part 70 is amended by adding paragraph (r) under 
``Nebraska; City of Omaha; Lincoln-Lancaster County Health Department'' 
to read as follows:

Appendix A to Part 70--Approval Status of State and Local Operating 
Permits Programs

* * * * *

Nebraska; City of Omaha; Lincoln-Lancaster County Health Department

* * * * *
    (r) The Nebraska Department of Environment and Energy submitted 
for program approval revisions to the Nebraska Administrative Code, 
title 129, chapters 1, 6, 7, 9, 10, 11, and appendix I on December 
2, 2022. Title 129 Chapter 8 ``Operating Permit Content'' has been 
renumbered and renamed Chapter 6 ``Operating Permits'' and Chapter 8 
is no longer part 70 approved. Appendix III has been repealed and is 
no longer part 70 approved. The state effective date is September 
28, 2022. The proposed revision effective date is [date 30 days 
after date of publication of the final rule in the Federal 
Register].
* * * * *

[FR Doc. 2024-11649 Filed 5-31-24; 8:45 am]
BILLING CODE 6560-50-P