[Federal Register: September 5, 2003 (Volume 68, Number 172)]
[Rules and Regulations]
[Page 52691-52695]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr05se03-6]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 52 and 70
[NE 190-1190a; FRL-7552-9]
Approval and Promulgation of Implementation Plans and Operating
Permits Program; State of Nebraska
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: EPA is announcing approval of revisions to the Nebraska State
Implementation Plan (SIP) and Operating Permits Program. On September
5, 2002, the state updated its air program construction and operating
permitting rules, its definitions rule, and emission inventory
reporting rule. Approval of these revised rules will ensure consistency
between the state and Federally-approved rules, and ensure Federal
enforceability of the state's revised air program rules.
DATES: This direct final rule will be effective November 4, 2003,
unless EPA receives adverse comments by October 6, 2003. If adverse
comments are received, EPA will publish a timely withdrawal of the
direct final rule in the Federal Register informing the public that the
rule will not take effect.
ADDRESSES: Comments may be submitted either by mail or electronically.
Written comments should be submitted to Wayne Kaiser, Environmental
Protection Agency, Air Planning and Development Branch, 901 North 5th
Street, Kansas City, Kansas 66101. Electronic comments should be sent
either to Wayne Kaiser at kaiser.wayne@epa.gov or to http://
www.regulations.gov, which is an alternative method for submitting
electronic comments to EPA. To submit comments, please follow the
detailed instructions described in ``What action is EPA taking'' in the
SUPPLEMENTARY INFORMATION section.
Copies of documents relative to this action are available for
public inspection during normal business hours at the above-listed
Region 7 location. The interested persons wanting to examine these
documents should make an appointment with the office at least 24 hours
in advance.
FOR FURTHER INFORMATION CONTACT: Wayne Kaiser at (913) 551-7603 or by
E-mail at kaiser.wayne@epa.gov.
SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,''
``us,'' or ``our'' is used, we mean EPA. This section provides
additional
[[Page 52692]]
information by addressing the following questions:
What is a SIP?
What is the Federal approval process for a SIP?
What does Federal approval of a state regulation mean to me?
What is the part 70 Operating Permits Program?
What is the Federal approval process for an operating permits
program?
What does Federal approval of a state operating permits program
mean to me?
What is being addressed in this document?
Have the requirements for approval of a SIP revision and part 70
program revision been met?
What action is EPA taking?
What Is a SIP?
Section 110 of the Clean Air Act (CAA) requires states to develop
air pollution regulations and control strategies to ensure that state
air quality meets the national ambient air quality standards
established by us. These ambient standards are established under
section 109 of the CAA, and they currently address six criteria
pollutants. These pollutants are: Carbon monoxide, nitrogen dioxide,
ozone, lead, particulate matter, and sulfur dioxide.
Each state must submit these regulations and control strategies to
us for approval and incorporation into the Federally-enforceable SIP.
Each Federally-approved SIP protects air quality primarily by
addressing air pollution at its point of origin. These SIPs can be
extensive, containing state regulations or other enforceable documents
and supporting information such as emission inventories, monitoring
networks, and modeling demonstrations.
What Is the Federal Approval Process for a SIP?
In order for state regulations to be incorporated into the
Federally-enforceable SIP, states must formally adopt the regulations
and control strategies consistent with state and Federal requirements.
This process generally includes a public notice, public hearing, public
comment period, and a formal adoption by a state-authorized rulemaking
body.
Once a state rule, regulation, or control strategy is adopted, the
state submits it to us for inclusion into the SIP. We must provide
public notice and seek additional public comment regarding the proposed
Federal action on the state submission. If adverse comments are
received, they must be addressed prior to any final Federal action by
us.
All state regulations and supporting information approved by us
under section 110 of the CAA are incorporated into the Federally-
approved SIP. Records of such SIP actions are maintained in the Code of
Federal Regulations (CFR) at Title 40, part 52, entitled ``Approval and
Promulgations of Implementation Plans.'' The actual state regulations
which are approved are not reproduced in their entirety in the CFR
outright but are ``incorporated by reference,'' which means that we
have approved a given state regulation with a specific effective date.
What Does Federal Approval of a State Regulation Mean to Me?
Enforcement of the state regulation before and after it is
incorporated into the Federally-approved SIP is primarily a state
responsibility. However, after the regulation is Federally approved, we
are authorized to take enforcement action against violators. Citizens
are also offered legal recourse to address violations as described in
the CAA.
What Is the Part 70 Operating Permits Program?
The CAA Amendments of 1990 require all states to develop operating
permits programs that meet certain Federal criteria. In implementing
this program, the states are to require certain sources of air
pollution to obtain permits that contain all applicable requirements
under the CAA. One purpose of the part 70 operating permits program is
to improve enforcement by issuing each source a single permit that
consolidates all of the applicable CAA requirements into a Federally-
enforceable document. By consolidating all of the applicable
requirements for a facility into one document, the source, the public,
and the permitting authorities can more easily determine what CAA
requirements apply and how compliance with those requirements is
determined.
Sources required to obtain an operating permit under this program
include ``major'' sources of air pollution and certain other sources
specified in the CAA or in our implementing regulations. For example,
all sources regulated under the acid rain program, regardless of size,
must obtain permits. Examples of major sources include those that emit
100 tons per year or more of volatile organic compounds, carbon
monoxide, lead, sulfur dioxide, nitrogen dioxide, or PM10;
those that emit 10 tons per year of any single hazardous air pollutant
(HAP) (specifically listed under the CAA); or those that emit 25 tons
per year or more of a combination of HAPs.
What Is the Federal Approval Process for an Operating Permits Program?
In order for state regulations to be incorporated into the
Federally-enforceable Title V operating permits program, states must
formally adopt regulations consistent with state and Federal
requirements. This process generally includes a public notice, public
hearing, public comment period, and a formal adoption by a state-
authorized rulemaking body.
Once a state rule, regulation, or control strategy is adopted, the
state submits it to us for inclusion into the approved operating
permits program. We must provide public notice and seek additional
public comment regarding the proposed Federal action on the state
submission. If adverse comments are received, they must be addressed
prior to any final Federal action by us.
All state regulations and supporting information approved by EPA
under section 502 of the CAA are incorporated into the Federally-
approved operating permits program. Records of such actions are
maintained in the CFR at Title 40, part 70, appendix A, entitled
``Approval Status of State and Local Operating Permits Programs.''
What Does Federal Approval of a State Operating Permits Program Mean to
Me?
Enforcement of the state regulation before and after it is
incorporated into the Federally-approved operating permits program is
primarily a state responsibility. However, after the regulation is
Federally approved, we are authorized to take enforcement action
against violators. Citizens are also offered legal recourse to address
violations as described in section 304 of the CAA.
What Is Being Addressed in This Document?
The state of Nebraska has requested that we approve as a revision
to the Nebraska SIP, part 70 Operating Permits Program, and section
112(l) air toxics program rule revisions adopted by the Nebraska
Environmental Quality Council on September 5, 2002. In its submission,
the state also requested that we not take action, at this time, on
certain revisions, as discussed below, relating to the state's ``permit
by rule.'' The revisions to Title 129--Nebraska Air Quality Regulations
which we are approving in today's rule are:
Chapter 1--Definitions, was revised to add new definitions for: Air
Quality Control Region, AP-42, Insignificant activities, Low emitter,
Method 9, Method 22, Mobile source, Speciation,
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Synthetic minor, and UTM coordinates. Additionally, the existing
definition for Interstate air pollution control agency was revised.
These changes will help clarify and define other related requirements
of the state's rules.
Chapter 5--Operating Permits--When Required. Clarifying terms were
added to the terms Class I and Class II permits. Class I also means
major source, and Class II means minor source.
Chapter 6--Emissions Reporting: When Required. The emissions
reporting requirements were clarified to distinguish between non-
hazardous and hazardous pollutants, and a reference to Appendix III was
added. This appendix, otherwise called the Insignificant Activities
List, specifies the hazardous air pollutants and quantities required to
be reported on the emission inventory form.
Chapter 30--Open Fires, Prohibited; Exceptions. This revision
broadens the range of groups that may be issued open burning permits
for the purpose of plant and wildlife parks management when approved by
the Director.
Appendix III--Reporting Levels of Hazardous Air Pollutants for
Emissions Inventory. This table (the Insignificant Activities List) has
been used by the Department for some time, but now has been codified
into Title 129 of the state rules.
The state has also adopted a permit-by-rule provision in chapter 42
of Title 129 of the state rules. Because the state is in the process of
revising chapter 42, and we are working with the state to make
appropriate revisions, Nebraska has requested that we not consider
chapter 42 as part of its official submission at this time. In keeping
with that request, we are also not acting on portions of the submission
which reference chapter 42 identified below. This will avoid confusion
by ensuring that the Federally-approved requirements do not cross-
reference other requirements which are not Federally approved at this
time. We will be acting on these provisions when the state submits its
revised chapter 42 for approval.
The specific portions of the September 5, 2002, revisions which are
not approved are as follows:
--The revision to chapter 5, rule 001.02;
--The revision to chapter 9, rule 011; and
--The revision to chapter 17, rule 001.
These provisions provide exemptions from certain construction and
operating permit program requirements for sources operating under
chapter 42. The result of our action is that these exemptions will not
be recognized under the Federally-approved permitting programs until
such time as we approve the state's chapter 42 permit-by-rule program.
Have the Requirements for Approval of a SIP Revision and Part 70
Program Revision Been Met?
The state submittal has met the public notice requirements for SIP
submissions in accordance with 40 CFR 51.102. The submittal also
satisfied the completeness criteria of 40 CFR part 51, appendix V. In
addition, as explained above and in more detail in the technical
support document which is part of this document, the revisions approved
today meet the substantive SIP requirements of the CAA, including
section 110 and implementing regulations. Finally, the approved
revisions meet the substantive requirements of Title V of the 1990 CAA
Amendments and 40 CFR part 70.
What Action Is EPA Taking?
We are approving as an amendment to the Nebraska SIP revisions to
Title 129, chapters 1, 5, 6, and 30 as described in this rule. We are
also approving as a program revision to the state's part 70 Operating
Permits Program revisions to Title 129, chapters 1, 5, 6, and appendix
III. Finally, we are approving pursuant to section 112(l) revisions to
chapter 5. These revisions to the state rules became effective November
20, 2002.
EPA is processing this action as a direct final action because the
revisions make routine changes to the existing rules which are
noncontroversial. Therefore, we do not anticipate any adverse comments.
Please note that if EPA receives adverse comment on part of this rule
and if that part can be severed from the remainder of the rule, EPA may
adopt as final those parts of the rule that are not the subject of an
adverse comment.
You may submit comments either electronically or by mail. To ensure
proper receipt by EPA, identify the appropriate rulemaking
identification number, NE 190-1190a, in the subject line on the first
page of your comment. Please ensure that your comments are submitted
within the specified comment period. Comments received after the close
of the comment period will be marked ``late.'' EPA is not required to
consider these late comments.
1. Electronically. If you submit an electronic comment as
prescribed below, EPA recommends that you include your name, mailing
address, and an e-mail address or other contact information in the body
of your comment. This ensures that you can be identified as the
submitter of the comment and allows EPA to contact you in case EPA
cannot read your comment due to technical difficulties or needs further
information on the substance of your comment. EPA's policy is that EPA
will not edit your comment, and any identifying or contact information
provided in the body of a comment will be included as part of the
comment that is placed in the official public docket. 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.
a. Electronic mail. Comments may be sent by e-mail to Wayne Kaiser
at kaiser.wayne@epa.gov. Please include identification number NE 190-
1190a in the subject line. EPA's e-mail system is not an ``anonymous
access'' system. If you send an e-mail comment directly without going
through Regulations.gov, EPA's e-mail system automatically captures
your e-mail address. E-mail addresses that are automatically captured
by EPA's e-mail system are included as part of the comment that is
placed in the official public docket.
b. Regulations.gov. Your use of Regulations.gov is an alternative
method of submitting electronic comments to EPA. Go directly to http://www.regulations.gov
, click on ``To Search for Regulations,'' then
select Environmental Protection Agency and use the ``go'' button. The
list of current EPA actions available for comment will be listed.
Please follow the online instructions for submitting comments. The
system is an ``anonymous access'' system, which means EPA will not know
your identity, e-mail address, or other contact information unless you
provide it in the body of your comment.
2. By Mail. Written comments should be sent to the name and address
listed in the ADDRESSES section of this document.
Statutory and Executive Order Reviews
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
action is not a ``significant regulatory action'' and therefore is not
subject to review by the Office of Management and Budget. For this
reason, this action is also not subject to Executive Order 13211,
``Actions Concerning Regulations That Significantly Affect Energy
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This action
merely approves state law as meeting Federal requirements and imposes
no additional requirements beyond those imposed by state law.
Accordingly, the Administrator certifies that this rule will not have a
significant economic impact on a substantial number of small entities
under the Regulatory Flexibility
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Act (5 U.S.C. 601 et seq.). Because this rule approves pre-existing
requirements under state law and does not impose any additional
enforceable duty beyond that required by state law, it 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).
This rule also does not have tribal implications because it will
not have a substantial direct effect on one or more Indian tribes, on
the relationship between the Federal Government and Indian tribes, or
on the distribution of power and responsibilities between the Federal
Government and Indian tribes, as specified by Executive Order 13175 (65
FR 67249, November 9, 2000). This action also does not have Federalism
implications because it does not have substantial direct effects on the
States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government, as specified in Executive Order 13132 (64
FR 43255, August 10, 1999). This action merely approves a state rule
implementing a Federal standard, and does not alter the relationship or
the distribution of power and responsibilities established in the CAA.
This rule also is not subject to Executive Order 13045 ``Protection of
Children from Environmental Health Risks and Safety Risks'' (62 FR
19885, April 23, 1997), because it is not economically significant.
In reviewing SIP submissions, EPA's role is to approve state
choices, provided that they meet the criteria of the CAA. In this
context, in the absence of a prior existing requirement for the State
to use voluntary consensus standards (VCS), EPA has no authority to
disapprove a SIP submission for failure to use VCS. It would thus be
inconsistent with applicable law for EPA, when it reviews a SIP
submission, to use VCS in place of a SIP submission that otherwise
satisfies the provisions of the CAA. Thus, the requirements of section
12(d) of the National Technology Transfer and Advancement Act of 1995
(15 U.S.C. 272 note) do not apply. This rule does not impose an
information collection burden under the provisions of the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
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 rule 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 November 4, 2003. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of this rule 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
40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen
dioxide, Ozone, Particulate matter, Reporting and recordkeeping
requirements, Sulfur oxides, Volatile organic compounds.
40 CFR Part 70
Administrative practice and procedure, Air pollution control,
Intergovernmental relations, Operating permits, Reporting and
recordkeeping requirements.
Dated: August 22, 2003.
Cecilia Tapia,
Acting Regional Administrator, Region 7.
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Chapter I, title 40 of the Code of Federal Regulations is amended as
follows:
PART 52--[AMENDED]
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1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart CC--Nebraska
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2. In Sec. 52.1420 the table in paragraph (c) is amended by:
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a. Adding a heading for Title 129.
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b. Revising the entries for 129-1, 129-5, 129-6, and 129-30.
The addition and revisions 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 Comments
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STATE OF NEBRASKA
Department of Environmental Quality
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Title 129--Nebraska Air Quality Regulations
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129-1............................ Definitions........ 11/20/02 9/5/03 and FR page
citation.
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129-5............................ Operating Permit... 11/20/02 9/5/03 and FR page Section 001.02 is
citation. not SIP approved.
129-6............................ Emissions Reporting 11/20/02 9/5/03 and FR page
citation.
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* * * * * * *
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129-30........................... Open Fires, 11/20/02 9/5/03 and FR page
Prohibited; citation.
Exceptions.
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PART 70--[AMENDED]
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1. The authority citation for part 70 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Appendix A--[Amended]
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2. Appendix A to part 70 is amended by adding paragraph (g) 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.
* * * * *
(g) The Nebraska Department of Environmental Quality approved
revisions to NDEQ Title 129, chapters 1, 5, 6, and appendix III
(which codifies its prior Federally approved Insignificant
Activities List) on September 5, 2002, which became effective on
November 20, 2002. These revisions were submitted on May 1, 2003. We
are approving these program revisions effective November 4, 2003.
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[FR Doc. 03-22539 Filed 9-4-03; 8:45 am]
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