[Federal Register: March 31, 2005 (Volume 70, Number 61)]
[Rules and Regulations]
[Page 16426-16430]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr31mr05-15]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 52 and 70
[R07-OAR-2005-NE-0001; FRL-7894-1]
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 approving revisions to the State Implementation Plan
(SIP) and Operating Permits Program submitted by the state of Nebraska.
These revisions provide or incorporate rules for predictive emissions
monitoring (PEMS) in Chapter 34, delete obsolete footnotes from
Appendix III (relating to emissions inventories for hazardous air
pollutants under the state's operating permit program), correct a
mistakenly worded rule in Chapter 20 (relating to process weight rates
for particulate matter from certain sources), and improve understanding
of Chapter 20 by consolidating the process weight rates into a single
table. Approval of these revisions 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 May 31, 2005, without
further notice, unless EPA receives adverse comment by May 2, 2005. If
adverse comment is 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: Submit your comments, identified by Regional Material in
EDocket (RME) ID Number R07-OAR-2005-NE-0001, by one of the following
methods:
1. Federal eRulemaking Portal: http://www.regulations.gov. Follow
the on-line instructions for submitting comments.
2. Agency Website: http://docket.epa.gov/rmepub/. RME, EPA's
electronic public docket and comment system, is EPA's preferred method
for receiving comments. Once in the system, select ``quick search;''
then key in the appropriate RME Docket identification number. Follow
the on-line instructions for submitting comments.
3. E-mail: rios.shelly@epa.gov.
4. Mail: Shelly Rios-LaLuz, Environmental Protection Agency, Air
Planning and Development Branch, 901 North 5th Street, Kansas City,
Kansas 66101.
5. Hand Delivery or Courier. Deliver your comments to Shelly Rios-
LaLuz, Environmental Protection Agency, Air Planning and Development
Branch, 901 North 5th Street, Kansas City, Kansas 66101.
Instructions: Direct your comments to RME ID No. R07-OAR-2005-NE-
0001. EPA's policy is that all comments received will be included in
the public docket without change and may be made available online at
http://docket.epa.gov/rmepub/, including any personal information
provided, unless the comment includes information claimed to be
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Do not submit information that you
consider to be CBI or otherwise protected through RME, regulations.gov,
[[Page 16427]]
or e-mail. The EPA RME Web site and the Federal regulations.gov Web
site are ``anonymous access'' systems, which means EPA will not know
your identity or contact information unless you provide it in the body
of your comment. If you send an e-mail comment directly to EPA without
going through RME or regulations.gov, your e-mail address will be
automatically captured and included as part of the comment that is
placed in the public docket and made available on the Internet. If you
submit an electronic comment, EPA recommends that you include your name
and other contact information in the body of your comment and with any
disk or CD-ROM you submit. If EPA cannot read your comment due to
technical difficulties and cannot contact you for clarification, EPA
may not be able to consider your comment. Electronic files should avoid
the use of special characters, any form of encryption, and be free of
any defects or viruses.
Docket: All documents in the electronic docket are listed in the
RME index at http://docket.epa.gov/rmepub/. 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 either electronically in RME
or in hard copy at the Environmental Protection Agency, Air Planning
and Development Branch, 901 North 5th Street, Kansas City, Kansas
66101. The Regional Office's official hours of business are Monday
through Friday, 8 to 4:30 excluding Federal holidays. 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: Shelly Rios-LaLuz at (913) 551-7296 or
by e-mail at rios.shelly@epa.gov.
SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,''
``us,'' or ``our'' is used, we mean EPA. This section provides
additional 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 is being addressed in this document?
What is EPA's analysis of the revisions?
Have the requirements for approval of a SIP and Part 70 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 EPA. 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 EPA
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
Promulgation 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
section 304 of 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.
Revision to the state and local agencies operating permits program
are also subject to public notice, comment, and our approval.
What Is the Federal Approval Process for an Operating Permits Program?
In order for state regulations to be included in 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,
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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, including revisions to the state program,
are included in 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 Is Being Addressed in This Document?
On June 4, 2004, we received a request from the state of Nebraska
to approve revisions to Nebraska's State Implementation Plan and Part
70 Operating Permits Program. These revisions were adopted by the
Nebraska Department of Environmental Quality (NDEQ) on June 6, 2003,
and on September 4, 2003. This action addresses rule revisions to Title
129--Nebraska Air Quality Regulations, Chapters 20 and 34 and Appendix
III. The purpose of these revisions are to: (a) Provide or incorporate
rules for Predictive Emissions Monitoring Systems (PEMS) in Chapter 34;
(b) delete, from Appendix III, obsolete footnotes which described the
uses of the various hazardous air pollutants listed in the appendix;
(c) correct a mistakenly worded rule in Chapter 20 (which establishes
emissions rates for particulates from certain industrial processes);
and (d) improve understanding of Chapter 20 by consolidating various
process weight rates into a single table.
What Is EPA's Analysis of the Revisions?
The addition of regulations governing PEMS introduces regulatory
requirements under which Predictive Emissions Monitoring may be used in
the state of Nebraska. The Nebraska Department of Environmental Quality
determined that the use of PEMS is an appropriate alternative to
Continuous Emissions Monitoring in some instances. The rule allows the
state to require PEMS under certain circumstances described in the
rule. The rule, which is applicable to sources subject only to various
implementation plan requirements (and not to federally promulgated
requirements such as New Source Performance Standards (40 CFR Part 60))
requires that alternative PEMS monitoring be approved by the state and
EPA. Because of the limitations and safeguards included in the rule,
EPA believes that it is acceptable.
The re-formatting of sections 002 and 003 in Chapter 20 resulted in
a renumbering of these sections. The consolidation of the emissions
rates in Chapter 20 does not change any of the emissions rates but only
clarifies them.
The changes in Appendix III relate to emission inventory reporting
for Hazardous Air Pollutants (HAPs). Although these modifications
include minor technical amendments to how emissions are reported, they
do not change previous reporting requirements for HAPs. These changes
are not substantive, thus we are approving these changes.
For the reasons stated above, we have determined that the revisions
to Nebraska's State Implementation Plan and to the Operating Permits
Program described above should be approved. In this action, we are not
acting on Title 129, Chapter 34, Section 005 relating to continuous
emissions monitoring for certain sources subject to SIP requirements.
NDEQ had revised this rule in a manner which is inconsistent with EPA
requirements (40 CFR part 51, appendix P). As a result, NDEQ determined
that this provision should be further revised to be consistent with the
Federal rule and will submit a revision to its rulemaking council in
the near future. EPA will act on this rule when it is revised, in a
separate rulemaking. In this action we are also not acting on Title
129, Chapter 42 relating to Permits-by-Rule. NDEQ has made revisions to
this chapter and will be submitting them in the near future. Action on
Chapter 42 will be taken at a future date.
Have the Requirements for Approval of a SIP and Part 70 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 revision meets the
substantive SIP requirements of the CAA, including section 110 and
implementing regulations. The revision also meets the applicable
requirements of Title V and EPA regulations for revision to the
operating permits program.
What Action Is EPA Taking?
We are approving, as an amendment to the Nebraska SIP, revisions to
Title 129, Chapters 20 and 34 (with the exception of Chapter 34,
section 005) 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, Appendix III. Revisions to Title 129, Chapter
20 became effective February 7, 2004, and revisions to Title 129,
Chapter 34 and Appendix III became effective November 24. 2003. In this
action we are not acting on Title 129, Chapter 42 relating to Permits-
by-Rule.
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.
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 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
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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 state 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 Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by May 31, 2005. 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: March 21, 2005.
James B. Gulliford,
Regional Administrator, Region 7.
0
Chapter I, title 40 of the Code of Federal Regulations is amended as
follows:
PART 52--[AMENDED]
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 entries for 129-20 and 129-34 to read as follows:
Sec. 52.1420 Identification of plan.
* * * * *
(c) * * *
EPA-Approved Nebraska Regulations
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State
Nebraska citation Title effective EPA approval date Explanation
date
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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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129-20................................ Particulate Emissions; 2/7/04 3/31/05, [insert FR page
Limitations and Standards number where the document
(Exceptions Due to Breakdowns begins].
or Scheduled Maintenance: See
Chapter 35).
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* * * * * * *
129-34................................ Emission Sources; Testing; 11/24/03 3/31/05, [insert FR page Section 005 is not SIP approved.
Monitoring. number where the document
begins].
* * * * * * *
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* * * * *
PART 70--[AMENDED]
0
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 (h) 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
* * * * *
(h) The Nebraska Department of Environmental Quality approved a
revision to NDEQ Title 129, appendix III, on November 19, 2003,
which became effective November 24, 2003. This revision was
submitted on June 4, 2004. We are approving this program revision
effective May 31, 2005.
* * * * *
[FR Doc. 05-6369 Filed 3-30-05; 8:45 am]
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