[Federal Register Volume 76, Number 61 (Wednesday, March 30, 2011)]
[Proposed Rules]
[Pages 17592-17599]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-7454]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R07-OAR-2011-0310; FRL-9287-8]
Approval and Promulgation of Implementation Plans; State of
Nebraska
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: EPA is proposing to approve the State Implementation Plan
(SIP) submittal from the state of Nebraska addressing the requirements
of Clean Air Act (CAA) sections 110(a)(1) and (2) for the 1997
revisions to the National Ambient Air Quality Standards (NAAQS) for
ozone. Section 110(a)(1) requires that each state adopt and submit a
SIP to support implementation of each new or revised NAAQS promulgated
by the EPA and these SIPs are commonly referred to as
``infrastructure'' SIPs. EPA believes that Nebraska's infrastructure
SIP adequately addresses the elements described in section 110(a)(2)
and further described in the October 2, 2007 guidance for
infrastructure SIPs issued by the EPA Office of Air Quality Planning
and Standards. However, because EPA already approved the portion of
Nebraska's SIP submittal relating to the interstate transport
infrastructure element, section 110(a)(2)(D)(i), this proposed
rulemaking does not address the interstate transport element, nor does
this proposal reopen any aspect of EPA's prior action on the interstate
transport element. Furthermore, this action does not address
infrastructure requirements with respect to the 1997 PM2.5
NAAQS or the 2006 revisions to the NAAQS. Those requirements will be
addressed in future rulemaking.
DATES: Comments must be received on or before April 29, 2011.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R07-
OAR-2011-0310 by one of the following methods:
1. http://www.regulations.gov. Follow the on-line instructions for
submitting comments.
2. E-mail: [email protected].
3. Mail: Ms. Elizabeth Kramer, Air Planning and Development Branch,
U.S. Environmental Protection Agency, Region 7, Air and Waste
Management Division, 901 North 5th Street, Kansas City, Kansas 66101.
4. Hand Delivery or Courier: Deliver your comments to Ms. Elizabeth
Kramer, Air Planning and Development Branch, U.S. Environmental
Protection Agency, Region 7, Air and Waste Management Division, 901
North 5th Street, Kansas City, Kansas 66101.
Instructions: Direct your comments to Docket ID No. EPA-R07-OAR-
2011-0310. 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://www.regulations.gov, 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 through http://www.regulations.gov or e-mail information that you consider to be CBI
or otherwise protected. The http://www.regulations.gov Web site is an
``anonymous access'' system, 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 http://www.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 should be
free of any defects or viruses.
Docket: All documents in the electronic docket are listed in the
http://www.regulations.gov index. 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, will be publicly available only in hard copy.
Publicly available docket materials are available either electronically
in http://www.regulations.gov or in hard copy at the U.S. Environmental
Protection Agency, Region 7, 901 North 5th Street, Kansas City, Kansas
66101, from 8 a.m. until 4:30 p.m., Monday through Friday, excluding
legal 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: Ms. Elizabeth Kramer, Air Planning
and Development Branch, U.S. Environmental Protection Agency, Region 7,
901 North 5th Street, Kansas City, Kansas 66101; telephone number:
(913) 551-7186; fax number: (913) 551-7844; e-mail address:
[email protected].
SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,''
``us,'' or ``our'' is used, we refer to EPA. This section provides
additional
[[Page 17593]]
information by addressing the following questions:
I. What is a section 110(a)(1) and (2) infrastructure SIP?
II. What elements are applicable under section 110(a)(1) and (2)?
III. What is EPA's evaluation of how the state addressed the
relevant elements of section 110(a)(1) and (2)?
IV. What action is EPA proposing?
V. Statutory and Executive Order Reviews
I. What is a section 110(a)(1) and (2) infrastructure SIP?
Section 110(a)(1) and (2) of the CAA require, in part, that states
submit to EPA plans to implement, maintain and enforce each of the
NAAQS promulgated by EPA. These provisions require states to address
basic SIP requirements including, for example, adequate provisions for
emission inventory development, monitoring, and modeling to assure
attainment and maintenance of the applicable standards. By statute,
SIPs meeting the requirements of section 110(a)(1) and (2) are to be
submitted by States within three years after promulgation of a new or
revised standard. These SIPs are commonly referred to as
``infrastructure'' SIPs.
II. What elements are applicable under section 110(a)(1) and (2)?
On October 2, 2007, EPA issued guidance to address infrastructure
SIP elements required under section 110(a)(1) and (2) for the 1997 8-
hour ozone and PM2.5 NAAQS.\1\ EPA will address these elements below
under the following headings: (A) Emission limits and other control
measures; (B) Ambient air quality monitoring/data system; (C) Program
for enforcement of control measures (PSD, New Source Review for
nonattainment areas, and construction and modification of all
stationary sources); (D) Interstate and international transport; (E)
Adequate authority, resources, implementation, and oversight; (F)
Stationary source monitoring system; (G) Emergency authority; (H)
Future SIP revisions; (I) Nonattainment areas; \2\ (J) Consultation
with government officials, public notification, prevention of
significant deterioration (PSD), and visibility protection; \3\ (K) Air
quality and modeling/data; (L) Permitting fees; and (M) Consultation/
participation by affected local entities.\4\
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\1\ William T. Harnett, Director, Air Quality Policy Division,
Office of Air Quality Planning and Standards. ``Guidance on SIP
Elements Required Under Sections 110(a)(1) and (2) for the 1997 8-
hour Ozone and PM2.5 National Ambient Air Quality
Standards.'' Memorandum to EPA Air Division Directors, Regions I-X,
October 2, 2007.
\2\ As discussed in further detail below, subsection
110(a)(2)(I) is not applicable for the infrastructure SIP approval
process and therefore EPA will take action on the requirements of
part D attainment plans separately.
\3\ As discussed in further detail below, subsection
110(a)(2)(J), as it relates to visibility protection, is also not
applicable for the infrastructure SIP approval process, and
therefore EPA is not addressing it in today's proposed rulemaking.
\4\ This action also does not address infrastructure
requirements with respect to the 1997 PM2.5 NAAQS or the
2006 revisions to the NAAQS. Those requirements will be addressed in
future rulemaking.
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III. What is EPA's evaluation of how the state addressed the relevant
elements of section 110(a)(1) and (2)?
On July 18, 1997, EPA promulgated new 8-hour ozone and new fine
particulate matter primary and secondary NAAQS. (62 FR 38894; 62 FR
38711). On December 7, 2007, EPA Region 7 received the state of
Nebraska's ozone infrastructure SIP submittal. EPA has reviewed the
state's formal submission and the relevant statutory and regulatory
authorities and provisions generally referenced in the submittal from
Nebraska.
As described below, today's proposed action only pertains to the
1997 ozone standard; it does not pertain to EPA's 1997 promulgation of
the PM2.5 standards. In addition, it does not address issues
relating to interstate transport under section 110(a)(2)(D)(i), which
have already been addressed for the 1997 ozone and PM2.5
NAAQS in prior rulemaking (72 FR 71245).
Nebraska's SIP submittal addresses the provisions of section
110(a)(1) and (2) as described below. EPA believes that Nebraska has
the adequate infrastructure needed to address all applicable elements
of section 110(a)(1) and (2) for the 1997 8-hour ozone NAAQS.
(A) Emission limits and other control measures: Section
110(a)(2)(A) requires SIPs to include enforceable emission limits and
other control measures, means or techniques, schedules for compliance
and other related matters as needed to implement, maintain and enforce
each NAAQS.
The state of Nebraska's statutes and Air Quality Regulations
authorize the Nebraska Department of Environmental Quality (NDEQ) to
regulate air quality and implement air quality control regulations.
Section 81-1504 of the Nebraska Revised Statutes authorizes NDEQ to
act, among other things, as the state air pollution control agency for
all purposes of the CAA and to develop comprehensive programs for the
prevention, control and abatement of new or existing pollution to the
air of the state. Air pollution is defined in Section 81-1502 of the
Nebraska Revised Statutes as the presence in the outdoor atmosphere of
one or more air contaminants or combinations thereof in such quantities
and of such duration as are or may tend to be injurious to human,
plant, or animal life, property, or the conduct of business.
Section 81-1505(1) of the Nebraska Revised Statutes authorizes the
Nebraska Environmental Quality Council (EQC) to adopt and promulgate
rules which set air standards that will protect public health and
welfare. The EQC is also authorized to classify air contaminant sources
according to levels and types of discharges, emissions or other
characteristics.
Chapter 4, Section 005 of Title 129 of the Nebraska Administrative
Code (NAC) (``Ambient Air Quality Standards'') adopts the 1997 ozone
standards promulgated by EPA (i.e., 0.08 parts per million). In
addition, the Nebraska rules incorporate, by reference, Appendix I in
40 CFR Part 50 for determining whether the ozone standards have been
attained. Therefore, ozone is an air contaminant which may be regulated
under Nebraska law.
EPA notes that Chapter 35, Section 001 of the NAC provides that
sources may submit information relating to excess emissions during a
startup, shutdown or malfunction (SSM) events. Nevertheless,
notwithstanding this provision, the regulations expressly give the
Director of NDEQ the ability to take appropriate enforcement action.
See chapter 35, Sections 001, 006, and 008 of the NAC. In today's
proposed rulemaking, EPA is not proposing to approve or disapprove any
existing state provisions with regard to excess emissions during a SSM
of operations at a facility. EPA believes that a number of states have
SSM provisions that are contrary to the Clean Air Act and existing EPA
guidance,\5\ and the Agency plans to address such state regulations in
the future. In the meantime, EPA encourages any state having a
deficient SSM provision to take steps to correct it as soon as
possible.
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\5\ Steven Herman, Assistant Administrator for Enforcement and
Compliance Assurance, and Robert Perciasepe, Assistant Administrator
for Air and Radiation. ``State Implementation Plans (SIPs): Policy
Regarding Excess Emissions During Malfunctions, Startup, and
Shutdown.'' Memorandum to EPA Air Division Directors, September 20,
1999.
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EPA notes that the Section 81-1513 of the Nebraska Revised Statutes
contain provisions that give the Director of NDEQ the authority, under
certain circumstances, to grant variances from rules and regulations
established
[[Page 17594]]
pursuant to the Clean Air Act.\6\ EPA also notes that the Nebraska
regulations contain provisions which allow the Director of NDEQ the
discretion to approve alternatives to the Nebraska regulations (see,
e.g., chapter 6, Section 004 of the NAC, which allows the Director to
approve alternate test methods and procedures for use in determining
actual emissions). In this action, EPA is not proposing to approve or
disapprove any existing state rules with regard to such ``variance'' or
``Director's discretion'' provisions. EPA believes that a number of
states have such provisions that are contrary to the Clean Air Act and
existing EPA guidance \7\, and the Agency plans to take action in the
future to address such state regulations. In the meantime, EPA
encourages any state having a ``variance'' or ``Director's discretion''
provision that is contrary to the Clean Air Act and EPA guidance to
take steps to correct the deficiency as soon as possible.
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\6\ The statutory variance provisions are not included in the
Nebraska SIP and are not recognized under federal law. In any event,
a variance from an EPA-approved SIP requirement would not be
recognized as a revision to the SIP unless approved by EPA under the
CAA requirements for SIP revisions (see, 40 CFR 51.104(d)).
\7\ J. Craig Potter, Assistant Administrator for Air and
Radiation, Thomas L. Adams, Jr., Assistant Administrator for
Enforcement and Compliance Monitoring, and Francis S. Blake, General
Counsel, Office of General Counsel. ``Review of State Implementation
Plans and Revisions for Enforceability and Legal Sufficiency.''
Memorandum, September 23, 1987. See also 52 FR 45109 (November 24,
1987).
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EPA believes that Nebraska has statutory and regulatory authority
to establish additional emissions limitations and other measures, as
necessary to address attainment and maintenance of the ozone standards.
Therefore, EPA believes that the Nebraska SIP adequately addresses the
requirements of section 110(a)(2)(A) for the 1997 8-hour ozone NAAQS.
(B) Ambient air quality monitoring/data system: Section
110(a)(2)(B) requires SIPs to include provisions to provide for
establishment and operation of ambient air quality monitors, collection
and analysis of ambient air quality data, and making these data
available to EPA upon request.
To address this element, section 81-1505(12)(o) of the Nebraska
Revised Statutes provides the enabling authority necessary for Nebraska
to fulfill the requirements of Section 110(a)(2)(B). This provision
gives the EQC the authority to promulgate rules and regulations
concerning the monitoring of emissions. The Air Quality Division within
NDEQ implements these requirements. Along with their other duties, the
monitoring program within NDEQ's Air Compliance & Enforcement Program
collects air monitoring data, quality assures the results, and reports
the data.
NDEQ submits annual monitoring network plans to EPA for approval,
including plans for its ozone monitoring network, as required by 40 CFR
58.10. Prior to submission to EPA, Nebraska makes the plans available
for public review on NDEQ's Web site. See, http://www.deq.state.ne.us/Publica.nsf/a9f87abbcc29fa1f8625687700625436/3f5f30d938b93ef38625730800516a57?OpenDocument, for NDEQ's 2009 Ambient
Air Monitoring Network Plan. This Plan includes, among other things,
the locations for the ozone monitoring network. On February 23, 2010,
EPA approved Nebraska's 2009 ambient air network monitoring plan.
According to this Plan (at page 15), NDEQ also plans to conduct five-
year monitoring network assessments, including the ozone monitoring
network, as required by 40 CFR 58.10(d). As mentioned previously under
element (A), Title 129, Chapter 4, Section 005 of the NAC requires that
attainment with the ozone standard be determined in accordance with the
applicable Federal regulations in 40 CFR Part 50, App. I. Nebraska
submits air quality data to EPA's Air Quality System (AQS) quarterly,
pursuant to the provisions of work plans developed in conjunction with
EPA grants to the state.
Based on the foregoing, EPA believes that the Nebraska SIP meets
the requirements of section 110(a)(2)(B) for the 1997 8-hour ozone
NAAQS.
(C) Program for enforcement of control measures (PSD, New Source
Review for nonattainment areas, and construction and modification of
all stationary sources): Section 110(a)(2)(C) requires states to
include the following elements in the SIP: (1) A program providing for
enforcement of all SIP measures described in Section 110(a)(2)(A); (2)
a program for the regulation of the modification and construction of
stationary sources as necessary to protect the applicable NAAQS; and
(3) a permit program to meet the major source permitting requirements
of the Act (including the program for areas designated as not attaining
the NAAQS, and a program for the prevention of significant
deterioration of air quality program in other areas). Note that all
areas of Nebraska are currently in attainment with the NAAQS. In
addition, as discussed in further detail below, this proposed
infrastructure SIP rulemaking will not address the Nebraska program for
nonattainment area-related provisions, since these submittals are not
applicable for the infrastructure SIP approval process.
(1) With respect to enforcement of requirements of the SIP, Section
81-1504(1) of the Nebraska Revised Statutes provide authority for NDEQ
to enforce the requirements of the Nebraska Environmental Protection
Act, and any regulations, permits, or final compliance orders issued
under the provisions of that law. In addition, Section 81-1504(7)
authorizes NDEQ to issue orders prohibiting or abating discharges of
waste into the air and requiring the modification, extension or
adoption of remedial measures to prevent, control, or abate air
pollution. Section 81-1507 authorizes NDEQ to commence an enforcement
action for any violations of the Environmental Protection Act, any
rules or regulations promulgated thereunder, or any orders issued by
NDEQ. This enforcement action can not only seek civil penalties, but
also require that the recipient take corrective action to address the
violation. See Section 81-1508.02. Section 81-1508.01 provides for
criminal penalties for knowing or willful violations of the statute,
regulations or permit conditions, in addition to other acts described
in that section.
(2) Section 110(a)(2)(C) also requires that the SIP include
measures to regulate construction and modification of stationary
sources to protect the NAAQS. Nebraska has a program under Title 129,
Chapter 17 of the NAC that requires such sources to first obtain a
construction permit from NDEQ. The permitting process is designed to
ensure that new and modified sources will not interfere with NAAQS
attainment. NDEQ has the authority to require the source applying for
the permit to undergo an air quality impact analysis. If NDEQ
determines that emissions from a constructed or modified source
interfere with attainment of the NAAQS, it may deny the permit until
the source makes the necessary changes to obviate the objections to the
permit issuance. See Chapter 17, Sections 008 and 009 of the NAC.
EPA has determined that Nebraska's minor new source review (NSR)
program adopted pursuant to section 110(a)(2)(C) of the Act regulates
emissions of ozone and its precursors. EPA has also determined that
certain provisions of the state's minor NSR program adopted pursuant to
section 110(a)(2)(C) of the Act likely do not meet all the requirements
found in EPA's regulations implementing that provision. See 40 CFR
51.160-51.164. EPA previously approved Nebraska's
[[Page 17595]]
minor NSR program into the SIP, and at the time there was no objection
to the provisions of this program. See 37 FR 10842 (May 31, 1972) and
60 FR 372 (January 4, 1995). Since then, the state and EPA have relied
on the existing state minor NSR program to assure that new and modified
sources not captured by the major NSR permitting programs do not
interfere with attainment and maintenance of the NAAQS.
In this action, EPA is proposing to approve Nebraska's
infrastructure SIP for ozone with respect to the general requirement in
Section 110(a)(2)(C) to include a program in the SIP that regulates the
modification and construction of any stationary source as necessary to
assure that the NAAQS are achieved. EPA is not proposing to approve or
disapprove the state's existing minor NSR program itself to the extent
that it is inconsistent with EPA's regulations governing this program.
EPA believes that a number of states may have minor NSR provisions that
are contrary to the existing EPA regulations for this program. EPA
intends to work with states to reconcile state minor NSR programs with
EPA's regulatory provisions for the program. The statutory requirements
of Section 110(a)(2)(C) provide for considerable flexibility in
designing minor NSR programs, and EPA believes it may be time to
revisit the regulatory requirements for this program to give the states
an appropriate level of flexibility to design a program that meets
their particular air quality concerns, while assuring reasonable
consistency across the country in protecting the NAAQS with respect to
new and modified minor sources.
(3) Nebraska also has a program approved by EPA which meets the
requirements of Part C, relating to prevention of significant
deterioration of air quality. Nebraska's implementing rule, Title 129,
Chapter 19, incorporates the relevant portions of the Federal rule, 40
CFR 52.21 (as of July 1, 2004), by reference. In this action, EPA is
not proposing to approve or disapprove any state rules with regard to
NSR reform requirements. EPA will act on NSR reform submittals through
a separate rulemaking process. For Nebraska, we have previously
approved Nebraska's NSR reform rules for attainment areas, and, as
previously stated, Nebraska currently has no nonattainment areas. See
76 FR 15852, March 22, 2011.
The Nebraska SIP also contains a permitting program for major
sources and modifications in nonattainment areas (see Title 129,
Chapter 17, Section 013). This section is currently not applicable to
Nebraska because all areas of Nebraska are currently in attainment with
the NAAQS. Even if it were applicable, the SIP's discussion of
nonattainment areas is not addressed in this rulemaking (see discussion
of the Section 110(a)(2)(I) requirements for nonattainment areas,
below).
With respect to the PSD program, the Nebraska SIP provides that
ozone precursors (volatile organic compounds--VOCs and oxides of
nitrogen--NOx) are regulated. For example, a stationary source that is
major for VOCs is also major for ozone, pursuant to Chapter 2, Section
005 of the NAC. In addition, a source that undergoes an emissions
increase or a net emissions increase of 40 tons per year of VOCs also
is considered to have undergone an emissions increase or net emissions
increase of 40 tons per year of ozone under the state's prevention of
significant deterioration of air quality program. See Chapter 19,
Section 010.06 of the NAC. In addition, because Nebraska defines
``regulated NSR pollutant'' to include pollutants for which a NAAQS has
been promulgated and any precursors for such pollutants that have been
identified by EPA,\8\ VOCs and NOx are therefore regulated by Nebraska
as precursors for ozone.
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\8\ The regulations at 40 CFR 52.21(b)(50) specifically state
that nitrogen oxides and VOCs are considered precursors for ozone.
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Finally, EPA notes that on March 22, 2011, in a separate
rulemaking, EPA approved the state of Nebraska's revisions to its SIP
to regulate GHGs under the Nebraska New Source Review Prevention of
Significant Deterioration program. 76 FR 15852. Thus, we have
previously determined that the Nebraska SIP meets the PSD requirements
with respect to GHGs.
On the basis of the foregoing, EPA believes that the Nebraska SIP
and underlying statutory authority are adequate to meet the
requirements of section 110(a)(2)(C) for the 1997 8-hour ozone NAAQS.
(D) Interstate and international transport: Section 110(a)(2)(D)(i)
requires SIPs to include provisions prohibiting any source or other
type of emissions activity in one state from contributing significantly
to nonattainment in, or interfering with maintenance by, another state
with respect to the NAAQS, or from interfering with measures required
in another state to prevent significant deterioration of air quality or
to protect visibility.
Nebraska addressed the provisions of Section 110(a)(2)(D)(i), as it
relates to the 1997 ozone and PM standards, in the SIP submission
received by EPA on May 18, 2007. EPA approved the portion of the
Nebraska SIP submittal relating to Section 110(a)(2)(D)(i), on December
17, 2007 (72 FR 71245). Therefore, the proposed action addressed in
this notice does not include the interstate transport elements, nor
does this rulemaking reopen any aspect of EPA's prior action on the
transport elements for Nebraska for the 1997 standards.
Section 110(a)(2)(D)(ii) requires that the SIP insure compliance
with the applicable requirements of sections 126 and 115, relating to
interstate and international pollution abatement.
Section 126(a) of the Act requires new or modified sources to
notify neighboring states of potential impacts from sources within the
state. Although Nebraska sources have not been identified by EPA as
having any interstate or international impacts under Section 126 or
Section 115 in any pending actions relating to the 1997 ozone
standards, the Nebraska regulations address abatement of the effects of
interstate pollution. Title 129, Chapter 14, Section 010.03 of the NAC
requires NDEQ, after receiving a complete PSD permit application, to
notify EPA, as well as officials and agencies having cognizance where
the proposed construction is to occur. This includes state or local air
pollution control agencies and the chief executives of the city and
county where the source would be located; any comprehensive regional
land use planning agency; and any state, Federal Land Manager, or
Indian governing body whose lands may be affected by emissions from the
source or modification. Finally, we believe that Nebraska could use the
same statutory authorities previously discussed, primarily Section 81-
1505 of the Nebraska Revised Statutes, to respond to any future
findings with respect to the 1997 ozone standards.
Based on the foregoing, EPA believes that Nebraska has the adequate
infrastructure needed to address Section 110(a)(2)(D)(ii) for the 1997
8-hour ozone NAAQS.
(E) Adequate authority, resources, implementation, and oversight:
Section 110(a)(2)(E) requires that SIPs provide for the following: (1)
Necessary assurances that the state (and other entities within the
state responsible for implementing the SIP) have adequate personnel,
funding, and authority under state or local law to implement the SIP,
and that there are no legal impediments to such implementation; (2)
requirements that the state comply with the requirements relating to
state boards, pursuant to Section 128 of the
[[Page 17596]]
Act; and (3) necessary assurances that the state has responsibility for
implementation of any plan provision for which it relies on local
governments or other entities to carry out that portion of the plan.
(1) With respect to adequate authority, we have previously
discussed Nebraska's authority to implement the SIP for the 1997 ozone
standards, primarily in the discussion of Section 110(a)(2)(A). Neither
Nebraska nor EPA has identified any legal impediments to implementation
of those standards.
With respect to adequate resources, NDEQ asserts that it has
adequate personnel to implement the SIP. State statutes provide NDEQ
the authority to establish bureaus, divisions and or sections to carry
out the duties and powers granted by the Nebraska state law to address
the control of air pollution, to be administered by full-time salaried,
bureau, division or section chiefs. See Nebraska Revised Statutes
Section 81-1504(14). NDEQ's Air Quality Division is currently divided
into the Permitting Section, the Compliance Section, and the Program
Planning and Development Unit.
With respect to funding, the Nebraska statutes require the EQC to
establish various fees for sources, in order to fund the reasonable
costs of implementing various air pollution control programs. For
example, Section 81-1505(12)(e) of the Nebraska Revised Statutes
requires the EQC to establish a requirement 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. See
Nebraska Revised Statutes Section 81-1505.04(2)(b). Similarly, Section
81-1505(12)(a) requires the EQC to establish application fees for air
contaminant sources seeking to obtain a permit prior to construction.
Section 81-1505.05 of the Nebraska Revised Statutes provides that
all fees collected pursuant to Section 81-1505.04 be credited to the
``Clean Air Title V Cash Fund'' to be used solely to pay for the direct
and indirect costs required to develop and administer the air quality
permit program. Similarly, Section 81-1505.06 provides that all fees
collected pursuant to Section 81-1505(12) be deposited in the ``Air
Quality Permit Cash Fund.''
Nebraska uses funds in the non-Title V subaccounts, along with
General Revenue funds and EPA grants under, for example, Sections 103
and 105 of the Act, to fund the programs. EPA conducts periodic program
reviews to ensure that the state has adequate resources and funding to,
among others, implement the SIP.
(2) Conflict of interest provisions--Section 128
Section 110(a)(2)(E) also provides that the state must meet the
requirements of Section 128, relating to representation on state boards
and conflicts of interest by members of such boards. We note that this
particular provision is not related to promulgation or revision of any
NAAQS, and we have not determined that Nebraska must show specifically
that it meets this requirement with respect to the ozone infrastructure
SIP for the 1997 standards. However, the following discussion shows how
Nebraska generally meets the requirements of Section 128.
Section 128 requires that a SIP-implementing body which approves
permits or enforcement orders under the Act must have at least a
majority of members who represent the public interest and do not derive
a ``significant portion'' of income from entities or individuals
subject to permits and enforcement orders under the Act. In addition,
Section 128 requires that members of such a body or the agency head
with similar authorities adequately disclose any potential conflicts of
interest.
Section 81-1503 of the Nebraska Revised Statutes generally tracks
the language of Section 128 of the Act. It provides guidelines on the
composition of the 17 members of the Environmental Quality Council. It
also requires that the Director of NDEQ (who is the person responsible
for issuing permits and enforcement orders in Nebraska), before he or
she enters the duty of his or her office, attest that he or she does
not receive a significant portion of his or her income from permit-
holders or applicants for a permit. Furthermore, Title 116 of the NAC
provides the Code of Ethics for NDEQ, which includes prohibitions on
conflicts of interest for all employees (including officers, employees,
and directors).
(3) With respect to assurances that the state has responsibility to
implement the SIP when it authorizes local or other agencies to carry
out portions of the plan, Section 81-1504(18) of the Nebraska Revised
Statutes grants NDEQ the authority to encourage local units of
government to handle air pollution problems within their own
jurisdictions. NDEQ may delegate, by contract with governmental
subdivisions which have adopted air pollution control programs, the
enforcement of state-adopted air pollution control regulations within a
specified region surrounding the jurisdictional area of the
governmental subdivision. See Section 81-1504(23). However, the
Nebraska statutes also retain authority in NDEQ to carry out the
provisions of state air pollution control law. Section 81-1504(1) gives
NDEQ ``exclusive general supervision'' of the administration and
enforcement of the Nebraska Environmental Protection Act. In addition,
Section 81-1504(4) designates NDEQ as the air pollution control agency
for the purposes of the Clean Air Act.
The state of Nebraska relies on two local agencies for assistance
in implementing portions of the air pollution control program: Lincoln/
Lancaster County Health Department and Omaha Air Quality Control. NDEQ
oversees the activities of these local agencies to ensure adequate
implementation of the plan. NDEQ utilizes subgrants to the local
agencies to provide adequate funding, and as an oversight mechanism.
EPA conducts reviews of the local program activities in conjunction
with its oversight of the state program. Based on the foregoing, EPA
believes that Nebraska has the adequate infrastructure needed to
address Section 110(a)(2)(E) for the 1997 8-hour ozone NAAQS.
(F) Stationary source monitoring system: Section 110(a)(2)(F)
requires states to establish a system to monitor emissions from
stationary sources and to submit periodic emission reports. That
section also requires that the state correlate the source reports with
emission limitations or standards established under the Act and make
reports available for public inspection.
To address this element, Section 81-1505(12)(o) of the Nebraska
Revised Statutes gives the EQC the authority to promulgate rules and
regulations for air pollution control, including requirements for owner
or operator testing and monitoring of emissions. It also gives the EQC
the authority to promulgate similar rules and regulations for the
periodic reporting of these emissions. See Section 81-1505(12)(l).
Chapter 34, Section 002 of the NAC incorporates various EPA reference
methods for testing source emissions, including methods for
NOX and VOCs. The Federal test methods are in 40 CFR Part
60, App. A.
The Nebraska regulations also require that all Class I and Class II
operating permits include requirements for monitoring of emissions. See
Chapter 8, Sections 004.01 and 015 of the NAC. Furthermore, Chapter 34,
Section 001 of the NAC allows NDEQ to order an emissions source to make
or have tests
[[Page 17597]]
made to determine the rate of contaminant emissions from the source
whenever NDEQ has reason to believe that the existing emissions from
the source exceed the applicable emissions limits.
The Nebraska regulations also impose reporting requirements on
sources subject to permitting requirements. See Chapter 6, Section 001;
Chapter 8, Sections 004.03 and 015 of the NAC. Nebraska makes all
monitoring reports submitted as part of Class I or Class II permit a
publicly available document. Although sources can submit a claim of
confidentiality for some of the information submitted, Nebraska
regulations specifically exclude emissions data from being entitled to
confidential protection. See Chapter 7, Section 004 of the NAC.
Nebraska uses this information to track progress towards maintaining
the NAAQS, developing control and maintenance strategies, identifying
sources and general emission levels, and determining compliance with
emission regulations and additional EPA requirements.
EPA believes that Nebraska has the adequate infrastructure needed
to address section 110(a)(2)(F) for the 1997 8-hour ozone NAAQS.
(G) Emergency authority: Section 110(a)(2)(G) requires states to
provide for authority to address activities causing imminent and
substantial endangerment to public health or welfare or the environment
(comparable to the authorities provided in Section 303 of the Act),
including contingency plans to implement the emergency authorities.
Section 81-1507 of the Nebraska Revised Statutes states that
whenever the Director of NDEQ finds that an emergency exists requiring
immediate action to protect the public health and welfare, he or she
may issue an order requiring that such action be taken as the Director
deems necessary to meet the emergency. Chapter 38, Section 003 of the
NAC states that the conditions justifying the proclamation of an air
pollution alert, air pollution warning, or air pollution emergency
exist whenever the Director determines that the accumulation of air
pollutants in any place is attaining or has attained levels which
could, if such levels are sustained or exceeded, lead to a substantial
threat to the health of persons. This regulation also establishes
action levels for various air pollutants, including ozone. The action
levels (which include ``Air Pollution Alert,'' ``Air Pollution
Warning,'' and ``Air Pollution Emergency'') and associated contingency
measures vary depending on the severity of the ozone concentrations.
Appendix I to Title 129 of the NAC provides an Emergency Response Plan
with actions to be taken under each of the severity levels. These steps
are designed to prevent the excessive build-up of air pollutants to
concentrations which can result in imminent and substantial danger to
public health. Both the regulation at Chapter 38 and the Emergency
Response Plan are contained in the federally approved SIP.
EPA believes that the Nebraska SIP adequately addresses section
110(a)(2)(G) for the 1997 8-hour ozone NAAQS.
(H) Future SIP revisions: Section 110(a)(2)(H) requires states to
have the authority to revise their SIPs in response to changes in the
NAAQS, availability of improved methods for attaining the NAAQS, or in
response to an EPA finding that the SIP is substantially inadequate to
attain the NAAQS.
As discussed previously, Section 81-1504 of the Nebraska Revised
Statutes authorizes NDEQ to regulate air quality and implement air
quality control regulations. It also authorizes NDEQ to act as the
state air pollution control agency for all purposes of the Clean Air
Act. Section 81-1505(1) gives the EQC the authority to adopt and
promulgate rules which set air standards that will protect public
health and welfare. This authority includes the authority to revise
rules as necessary to respond to a revised NAAQS (see, for example, the
discussion above regarding Nebraska's adoption of the 1997 ozone
NAAQS).
EPA believes that Nebraska has the adequate authority to address
section 110(a)(2)(H) for the 1997 8-hour ozone NAAQS.
(I) Nonattainment areas: Section 110(a)(2)(I) requires that in the
case of a plan or plan revision for areas designated as nonattainment
areas, states must meet applicable requirements of Part D of the Act,
relating to SIP requirements for designated nonattainment areas.
This section is currently not applicable to Nebraska because all
areas of Nebraska are currently in attainment with the NAAQS.
Nevertheless, EPA notes that the Nebraska regulations have provisions
in place which address construction or modification of sources in
nonattainment areas. See Chapter 17, Section 013 of the NAC. These
regulations are contained in the federally approved SIP.
EPA has not addressed section 110(a)(2)(I) in its recent
infrastructure SIP guidance because Part D SIPs are due on a different
schedule than the infrastructure SIP submittal schedule. (See, e.g.,
the infrastructure SIP guidance for the revised lead standard, 73 FR
67034, n. 113, Nov. 12, 2008, and the infrastructure SIP guidance for
the revised NO2 standards, 75 FR 6523, n. 27, Feb. 9, 2010.)
Therefore, this proposal does not address section 110(a)(2)(I). EPA
will take action on any part D nonattainment plans through a separate
rulemaking.
(J) Consultation with government officials, Public Notification,
PSD and visibility protection: Section 110(a)(2)(J) requires SIPs to
meet the applicable requirements of the following CAA provisions: (1)
Section 121, relating to interagency consultation regarding certain CAA
requirements; (2) Section 127, relating to public notification of NAAQS
exceedances and related issues; and (3) Part C of the Act, relating to
prevention of significant deterioration of air quality and visibility
protection.
(1) With respect to interagency consultation, Section 81-1504(3)
authorizes NDEQ to advise and consult and cooperate with other Nebraska
state agencies, the Federal government, other states, interstate
agencies, and with affected political subdivisions, for the purpose of
implementing its air pollution control responsibilities. Nebraska also
has appropriate interagency consultation provisions in its
preconstruction permit program. See, e.g., Chapter 14, Section 010 of
the NAC (requiring NDEQ to send a copy of a notice of public comment on
construction permit applications to any state or local air pollution
control agency; the chief executives of the city and county in which
the source would be located; any comprehensive regional land use
planning agency; and any state, Federal Land Manager, or Indian
governing body whose lands may be affected by emissions from the source
or modification).
(2) With respect to the requirements for public notification in CAA
Section 127, Chapter 38 of the NAC, discussed previously in connection
with the state's authority to address emergency episodes, contains
provisions for public notification of elevated ozone and other air
pollutant levels. Appendix I to Title 129 of the NAC includes measures
which can be taken by the public to reduce concentrations. In addition,
information regarding air pollution and related issues, is provided on
an NDEQ Web site, http://www.deq.state.ne.us/NDEQSite.nsf/AirDivSecProg?OpenView&Start=1&ExpandView&Count=500. NDEQ also prepares
an annual report on air quality in the state which is available to the
public on its Web site, at http://www.deq.state.ne.us/Publica.nsf/
c4afc76e4e077e1186256877
[[Page 17598]]
0059b73f/b278ea4efe682747862575e60050d633?OpenDocument.
(3) With respect to the applicable requirements of Part C, relating
to prevention of significant deterioration of air quality and
visibility protection, we previously noted in the discussion of Section
110(a)(2)(C) (relating to enforcement of control measures) how the
Nebraska SIP meets the PSD requirements, incorporating the Federal rule
by reference. With respect to the visibility component of Section
110(a)(2)(J), we reiterate the statutory requirement providing, in
relevant part, that each plan must meet the ``applicable requirements''
of Part C (of Title I of the Act) relating to visibility protection. We
note that the other Part C requirements specified in section
110(a)(2)(J) (applicable requirements relating to prevention of
significant deterioration of air quality), specifically relate to the
1997 and 2006 NAAQS (as well as other pollutants regulated under the
CAA), and a state must be able to implement those requirements with
respect to a new or revised NAAQS when promulgated. In contrast to the
PSD program, the visibility protection requirements are not directly
related to the promulgation of, or revision to, a NAAQS. While the SIP
must independently meet the visibility protection requirements of Part
C by virtue of the specific SIP requirements in sections 169A and 169B
of the Act, EPA believes that the visibility protection requirements
are not ``applicable requirements'' within the meaning of section
110(a)(2)(J) and that the infrastructure SIP is not required to be
revised with respect to visibility protection merely due to
promulgation of, or revision to, these 1997 ozone NAAQS.
For the reasons stated above, EPA believes that Nebraska has met
the applicable requirements of Section 110(a)(2)(J) for the 1997 8-hour
ozone NAAQS in the state.
(K) Air quality and modeling/data: Section 110(a)(2)(K) requires
that SIPs provide for performing air quality modeling, as prescribed by
EPA, to predict effects on ambient air quality of emissions of any
NAAQS pollutant, and for submission of such data to EPA upon request.
Nebraska has authority to conduct air quality modeling and report
the results of such modeling to EPA. Section 81-1504(5) provides NDEQ
with the authority to encourage, participate in, or conduct studies,
investigations, research and demonstrations relating to air pollution
and its causes and effects. As an example of regulatory authority to
perform modeling for purposes of determining NAAQS compliance, the
regulations at Chapter 19, Section 019 provide for the use of EPA-
approved air quality models (e.g., those found in 40 CFR Part 51, App.
W) for construction permitting. If the use of these models is
inappropriate, the model may be modified or an alternate model may be
used with the approval of NDEQ and EPA.
The Nebraska regulations also give NDEQ the authority to require
that modeling data be submitted for analysis. Chapter 19, Section
021.02 states that upon request by NDEQ, the owner or operator of a
proposed source or modification must provide information on the air
quality impact of the source or modification, including all
meteorological and topographical data necessary to estimate such
impact.
EPA believes that Nebraska has the adequate infrastructure needed
to address Section 110(a)(2)(K) for the 1997 8-hour ozone NAAQS.
(L) Permitting Fees: Section 110(a)(2)(L) requires SIPs to require
each major stationary source to pay permitting fees to the permitting
authority to cover the cost of reviewing, approving, implementing and
enforcing a permit. That section provides that the fee requirement
applies until a fee program established by the state pursuant to Title
V of the Act, relating to operating permits, is approved by EPA.
Section 81-1505 of the Nebraska Revised States provides authority
for NDEQ to collect permit fees, including Title V fees. For example,
Section 81-1505(e) requires that the EQC establish fees sufficient to
pay the reasonable direct and indirect of developing and administering
the air quality permit program. Nebraska's Title V program, including
the fee program addressing the requirements of the Act and 40 CFR 70.9
relating to Title V fees, was approved by EPA on October 18, 1995 (60
FR 53872). Therefore, EPA believes that the requirements of Section
110(a)(2)(L) are met.
(M) Consultation/participation by affected local entities: Section
110(a)(2)(M) requires SIPs to provide for consultation and
participation by local political subdivisions affected by the SIP.
Section 81-1504 of the Nebraska Revised Statutes gives NDEQ the
authority to encourage local governments to handle air pollution
problems within their respective jurisdictions and at the same time
provide them with technical and consultative assistance. NDEQ is also
authorized to delegate the enforcement of air pollution control
regulations down to governmental subdivisions which have adopted air
pollution control programs. As discussed previously, NDEQ currently
relies on two local agencies for assistance in implementing portions of
the air pollution control program: Lincoln/Lancaster County Health
Department and Omaha Air Quality Control.
In addition, as previously noted in the discussion about Section
110(a)(2)(J), Nebraska's statutes and regulations require that NDEQ
consult with local political subdivisions for the purposes of carrying
out its air pollution control responsibilities.
Therefore, EPA believes that Nebraska has the adequate
infrastructure needed to address Section 110(a)(2)(M) for the 1997 8-
hour ozone NAAQS.
IV. What action is EPA proposing?
EPA proposes to approve the State Implementation Plan (SIP)
submittal from the state of Nebraska which addresses the requirements
of Clean Air Act section 110(a)(2) for the 1997 revisions to the
National Ambient Air Quality Standards (NAAQS) for ozone. As described
above, EPA believes that Nebraska has the required infrastructure to
address all elements of section 110(a)(2) to ensure that the revised
ozone standards are implemented in the state.
We are hereby soliciting comment on this proposed action. Final
rulemaking will occur after consideration of any comments.
V. Statutory and Executive Order Reviews
Under the Clean Air Act, the Administrator is required to approve a
SIP submission that complies with the provisions of the Act and
applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a).
Thus, in reviewing SIP submissions, EPA's role is to approve state
choices, provided that they meet the criteria of the CAA. Accordingly,
this action merely approves state law as meeting Federal requirements
and does not impose additional requirements beyond those imposed by
state law. For that reason, this proposed action:
Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Order
12866 (58 FR 51735, October 4, 1993);
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
[[Page 17599]]
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 Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the CAA; and
Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this rule does not have tribal implications as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000),
because the SIP is not approved to apply in Indian country located in
the state, and EPA notes that it will not impose substantial direct
costs on tribal governments or preempt tribal law.
Statutory Authority
The statutory authority for this action is provided by Section 110
of the CAA, as amended (42 U.S.C. 7410).
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Intergovernmental
relations, Ozone.
Dated: March 23, 2011.
Karl Brooks,
Regional Administrator, Region 7.
[FR Doc. 2011-7454 Filed 3-29-11; 8:45 am]
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