Federal Register / Vol. 75, No. 247 / Monday, December 27, 2010 / Proposed Rules 81179 

number to provide advance notice shall 

be posted on the bridge so that it is 

plainly visible to vessel operators 

approaching the up or downstream side 

of the bridge. The owners of the bridge 

shall provide and keep in good legible 

condition two board gauges painted 

white with black figures to indicate the 

vertical clearance under the closed draw 

at all water levels. The gauges shall be 

so placed on the bridge that they are 

plainly visible to operators of vessels 

approaching the bridge either up or 

downstream. 

Dated: November 23, 2010. 

M.N. Parks, 

Rear Admiral, U.S. Coast Guard, Commander, 

Ninth Coast Guard District. 

[FR Doc. 2010–32381 Filed 12–23–10; 8:45 am] 

BILLING CODE 9110–04–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R07–OAR–2010–0945, FRL–9243–9] 

Approval and Promulgation of 

Implementation Plans; Nebraska: 

Prevention of Significant Deterioration; 

Greenhouse Gas Permitting Authority 

and Tailoring Rule Revision 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: EPA is proposing to approve 

revisions to the Nebraska State 

Implementation Plan (SIP), which were 

recently submitted by the Nebraska 

Department of Environmental Quality 

(NDEQ). These revisions include 

proposed changes to Nebraska’s 

Prevention of Significant Deterioration 

(PSD) program, submitted by NDEQ to 

EPA on November 19, 2010; and 

proposed changes to Nebraska’s 

greenhouse gas (GHG) construction 

permit related regulations, submitted by 

NDEQ to EPA on October 19, 2010 (that 

NDEQ requested parallel processing for 

on September 30, 2010). The proposed 

SIP revision (Chapters 1, 2, 5, 14, 15, 17 

and 19 of Title 129 of the Nebraska 

Administrative Code) to Nebraska’s 

Prevention of Significant Deterioration 

(PSD) program includes Nebraska’s 

adoption of portions of EPA’s 2002 new 

source review (NSR) rule, which we call 

the NSR Reform Rule, and which we 

issued by notice dated December 31, 

2002, 67 FR 80186. The proposed SIP 

revision also provides the state of 

Nebraska with authority to regulate 

GHG emissions under the PSD program 

and incorporates the GHG emission 

thresholds established in EPA’s ‘‘PSD 

and Title V Greenhouse Gas Tailoring 

Final Rule,’’ which EPA issued by notice 

dated June 3, 2010, 75 FR 31514. EPA 

is proposing approval of both submittals 

and is proposing approval of the GHG 

portion of the proposed SIP revision 

through a parallel processing action. In 

the alternative, EPA is soliciting 

comments from the public on whether 

it should initially only approve 

Nebraska’s October 19, 2010 submittal 

with respect to the revisions to the GHG 

construction permit regulations, and 

address Nebraska’s November 19, 2010 

submittal related to NSR Reform in a 

subsequent final action. 

DATES: Comments must be received on 

or before January 26, 2011. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R07– 

OAR–2010–0945, by one of the 

following methods: 

1. http://www.regulations.gov: Follow 

the on-line instructions for submitting 

comments. 

2. E-mail: gonzalez.larry@epa.gov. 

3. Fax: (913) 551–7844. 

4. Mail: Air Planning and 

Development Branch, Air and Waste 

Management Division, U.S. 

Environmental Protection Agency, 

Region 7, 901 North 5th Street, Kansas 

City, Kansas 66101. 

5. Hand Delivery or Courier: Mr. Larry 

Gonzalez, Air Planning and 

Development Branch, Air and Waste 

Management Division, U.S. 

Environmental Protection Agency, 

Region 7, 901 North 5th Street, Kansas 

City, Kansas 66101. Such deliveries are 

only accepted during the Regional 

Office’s normal hours of operation. The 

Regional Office’s official hours of 

business are Monday through Friday, 

8 a.m. to 4:30 p.m., excluding Federal 

holidays. 

Instructions: Direct your comments to 

Docket ID No. EPA–R07–OAR–2010– 

0945. 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 be free of any defects or 

viruses. For additional information 

about EPA’s public docket visit the EPA 

Docket Center homepage at http:// 

www.epa.gov/epahome/dockets.htm. 

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, 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 http:// 

www.regulations.gov or in hard copy at 

the Air Planning and Development 

Branch, Air and Waste Management 

Division, U.S. Environmental Protection 

Agency, Region 7, 901 North 5th Street, 

Kansas City, Kansas 66101. EPA 

requests that if at all possible, you 

contact the person listed in the FOR

FURTHER INFORMATION CONTACT section to 

schedule your inspection. The Regional 

Office’s official hours of business are 

Monday through Friday, 8:30 a.m. to 

4:30 p.m., excluding Federal holidays. 

FOR FURTHER INFORMATION CONTACT: For 

information regarding the Nebraska SIP, 

contact Mr. Larry Gonzalez, Air 

Planning and Development Branch, Air 

and Waste Management Division, U.S. 

Environmental Protection Agency, 

Region 7, 901 North 5th Street, Kansas 

City, Kansas 66101. Mr. Gonzalez’s 

telephone number is (913) 551–7041; email address: gonzalez.larry@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. What Action is EPA Proposing in Today’s 

Notice? 

II. What is the Background for the Action 

Proposed by EPA in Today’s Notice? 

A. What are GHGs and their sources? 

B. What are the general requirements of the 

PSD program? 


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81180 Federal Register / Vol. 75, No. 247 / Monday, December 27, 2010 / Proposed Rules 

1 In today’s proposal, EPA is also soliciting public 

comment on whether it should initially only 

approve the revisions related to GHGs into the 

Nebraska SIP in this rulemaking, and address the 

revisions related to NSR Reform in a subsequent 

final action. Under this alternative, Nebraska SIPapproved rules that are applicable to the State’s 

authority to regulate GHG would stem from the 

provisions of EPA’s Federal PSD rules as of July 1, 

1997, in conjunction with Nebraska’s revised 

regulations which change the definition of ‘‘NSR 

regulated pollutant’’ to provide NDEQ with the 

authority to regulate GHGs. 

C. What are the CAA requirements to 

include the PSD program in the SIP? 

D. What actions has EPA taken concerning 

PSD requirements for GHG-emitting 

sources? 

E. What is the background for EPA’s New 

Source Review (NSR) Reform Rule? 

III. What is EPA’s analysis of Nebraska’s 

proposed SIP revision? 

A. What does Nebraska’s proposed SIP 

revision do? 

B. Why is approval of Nebraska’s proposed 

SIP revision consistent with the Clean 

Air Act? 

IV. Proposed Action 

V. Statutory and Executive Order Reviews 

I. What action is EPA proposing in 

today’s notice? 

On October 19, 2010, NDEQ 

submitted draft revisions to the 

Nebraska Administrative Code to EPA 

for approval into the state of Nebraska’s 

SIP to (1) provide the state with the 

authority to regulate GHGs under its 

PSD program; and (2) establish 

appropriate emission thresholds and 

time-frames for determining which new 

or modified stationary sources become 

subject to Nebraska’s PSD permitting 

requirements for GHG emissions. These 

draft revisions submitted on October 19, 

2010 revise existing regulations that 

NDEQ had amended to adopt portions 

of EPA’s 2002 NSR Reform rules. 

Because NDEQ had not previously 

submitted these amendments, on 

November 19, 2010, NDEQ submitted 

revisions to the Nebraska 

Administrative Code to EPA for 

approval into the state of Nebraska’s SIP 

that adopt portions of the 2002 NSR 

Reform rules. The combination of the 

October 19, 2010 submittal and the 

November 19, 2010 submittal will be 

referred to as the submissions. 

With respect to Nebraska’s GHG 

revisions, the thresholds and timeframes are consistent with the ‘‘PSD and 

Title V Greenhouse Gas Tailoring Final 

Rule’’ (75 FR 31514) hereafter referred to 

as the ‘‘Tailoring Rule.’’ Final approval 

of Nebraska’s submissions into the SIP 

would make Nebraska’s SIP adequate 

with respect to PSD requirements for 

GHG-emitting sources. Furthermore, 

final approval of Nebraska’s 

submissions into the SIP would put in 

place the GHG emission thresholds for 

PSD applicability set forth in EPA’s 

Tailoring Rule, ensuring that smaller 

GHG sources emitting less than these 

thresholds will not be subject to 

permitting requirements when PSD 

requirements begin applying to GHGs 

on January 2, 2011. Finally, final 

approval of Nebraska’s submissions into 

the SIP would update the SIP to reflect 

Nebraska’s adoption of portions of 

EPA’s 2002 NSR Reform rules. Pursuant 

to section 110(k)(3) and 110(l) of the 

CAA, EPA is proposing to approve this 

revision into the Nebraska SIP.1

Due to the fact that the proposed rule 

revision relating to GHGs is not yet 

state-effective, on September 30, 2010, 

Nebraska requested that EPA ‘‘parallel 

process’’ this portion of the revisions. 

Under this procedure, the EPA Regional 

Office works closely with the state 

while developing new or revised 

regulations. Generally, the state submits 

a copy of the proposed regulation or 

other revisions to EPA before 

conducting its public hearing. EPA 

reviews this proposed state action and 

prepares a notice of proposed 

rulemaking. EPA publishes this notice 

of proposed rulemaking in the Federal 

Register and solicits public comment in 

approximately the same time frame 

during which the state is holding its 

public hearing. The state and EPA thus 

provide for public comment periods on 

both the state and the Federal actions in 

parallel. 

After Nebraska submits the formal 

state-effective rule and SIP revision 

request (including a response to all 

public comments raised during the 

state’s public participation process), 

EPA will prepare a final rulemaking 

notice for the SIP revision. If changes 

are made to the state’s proposed rule 

after EPA’s notice of proposed 

rulemaking, such changes must be 

acknowledged in EPA’s final 

rulemaking action. If the changes are 

significant, then EPA may be obliged to 

re-propose the action. In addition, if the 

changes render the SIP revision not 

approvable, EPA’s re-proposal of the 

action would be a disapproval of the 

revision. 

II. What is the background for the 

action proposed by EPA in today’s 

notice? 

Today’s proposed action on the 

Nebraska SIP relates to four distinct 

Federal rulemaking actions. The first 

rulemaking is EPA’s ‘‘Prevention of 

Significant Deterioration and Title V 

Greenhouse Gas Tailoring Rule,’’ Final 

Rule (the Tailoring Rule). 75 FR 31514 

(June 3, 2010). The second rulemaking 

is EPA’s ‘‘Action to Ensure Authority to 

Issue Permits Under the Prevention of 

Significant Deterioration Program to 

Sources of Greenhouse Gas Emissions: 

Finding of Substantial Inadequacy and 

SIP Call,’’ Final Rule (GHG SIP Call), 

which was signed by the EPA 

Administrator on December 1, 2010 (see 

http://www.epa.gov/nsr/documents/ 

20101201finalrule.pdf). The third 

rulemaking is EPA’s ‘‘Action to Ensure 

Authority to Issue Permits Under the 

Prevention of Significant Deterioration 

Program to Sources of Greenhouse Gas 

Emissions: Federal Implementation 

Plan,’’ Proposed Rule, 75 FR 53883 

(September 2, 2010) (GHG proposed 

FIP), which serves as a companion 

rulemaking to EPA’s GHG SIP Call, and 

which EPA has stated it intends to 

finalize for certain states as soon as 

December 23, 2010. The fourth 

rulemaking is EPA’s ‘‘Prevention of 

Significant Deterioration (PSD) and 

Nonattainment New Source Review 

(NSR): Baseline Emissions 

Determination, Actual-to-Future-Actual 

Methodology, Plantwide Applicability 

Limitations, Clean Units, Pollution 

Control Projects,’’ Final Rule, 67 FR 

80186 (December 31, 2002) (NSR 

Reform), which revised the applicability 

of the PSD requirements. A summary of 

each of these rulemakings is described 

below. 

In the first rulemaking, the Tailoring 

Rule, EPA established appropriate GHG 

emission thresholds for determining the 

applicability of PSD requirements to 

GHG-emitting sources. In the second 

rulemaking, the GHG SIP Call, EPA 

issued a finding that the EPA-approved 

PSD programs in 13 states (including 

Nebraska) are substantially inadequate 

to comply with CAA requirements 

because they do not apply PSD 

requirements to GHG-emitting sources. 

For each of these states, EPA required 

the state (through a ‘‘SIP Call’’) to revise 

its SIP as necessary to correct such 

inadequacies. EPA imposed an 

expedited schedule for these states, in 

most cases, to submit their corrective 

SIP revision, in light of the fact that as 

of January 2, 2011, certain GHG-emitting 

sources will become subject to the PSD 

requirements and, without an approved 

SIP or Federal Implementation Plan 

(FIP) in place in the state—which would 

authorize the State or EPA to act as the 

permitting authority—may not be able 

to obtain a PSD permit in order to 

construct or modify. In the third 

rulemaking, the proposed GHG FIP, EPA 

is proposing a FIP to apply in any state 

that is unable to submit, by its deadline, 

a corrective SIP revision. In the fourth 

rulemaking, NSR Reform, EPA 

promulgated certain revisions to the 


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PSD program to, among other things, 

provide administrative flexibility while 

retaining or enhancing environmental 

benefits of the permitting program. 

Nebraska has submitted a proposed 

SIP revision to make the SIP adequate 

with respect to federal PSD 

requirements for GHG-emitting sources. 

This SIP revision puts in place the GHG 

emission thresholds for PSD 

applicability set forth in EPA’s Tailoring 

Rule, thereby ensuring that smaller GHG 

sources emitting less than these 

thresholds will not be subject to 

applicable GHG permitting 

requirements as of January 2, 2011. The 

proposed SIP revision also makes other 

changes to the PSD program consistent 

with NSR Reform. 

Below is a brief overview of GHGs 

and GHG-emitting sources, the CAA 

PSD program, minimum SIP elements 

for a PSD program, and EPA’s recent 

actions regarding GHG permitting. 

Following this section, EPA discusses, 

in sections III and IV, the relationship 

between the proposed Nebraska SIP 

revision and EPA’s other national 

rulemakings as well as EPA’s analysis of 

Nebraska’s SIP revision. 

A. What are GHGs and their sources? 

A detailed explanation of GHGs, 

climate change and the impact on 

health, society, and the environment is 

included in EPA’s technical support 

document for EPA’s GHG endangerment 

finding final rule (Document ID No. 

EPA–HQ–OAR–2009–0472–11292 at 

http://www.regulations.gov). The 

endangerment finding rulemaking is 

discussed later in this rulemaking. A 

summary of the nature and sources of 

GHGs is provided below. 

GHGs trap the Earth’s heat that would 

otherwise escape from the atmosphere 

into space and form the greenhouse 

effect that helps keep the Earth warm 

enough for life. GHGs are naturally 

present in the atmosphere and are also 

emitted by human activities. Human 

activities are intensifying the naturally 

occurring greenhouse effect by 

increasing the amount of GHGs in the 

atmosphere, which is changing the 

climate in a way that endangers human 

health, society, and the natural 

environment. 

Some GHGs, such as carbon dioxide 

(CO2), are emitted to the atmosphere 

through natural processes as well as 

human activities. Other gases, such as 

fluorinated gases, are created and 

emitted solely through human activities. 

The well-mixed GHGs of concern 

directly emitted by human activities 

include CO2, methane (CH4), nitrous 

oxide (N2O), hydrofluorocarbons 

(HFCs), perfluorocarbons (PFCs), and 

sulfur hexafluoride (SF6), hereafter 

referred to collectively as ‘‘the six wellmixed GHGs,’’ or, simply, GHGs. 

Together these six well-mixed GHGs 

constitute the ‘‘air pollutant’’ upon 

which the GHG thresholds in EPA’s 

Tailoring Rule are based. These six 

gases remain in the atmosphere for 

decades to centuries where they become 

well-mixed globally in the atmosphere. 

When they are emitted more quickly 

than natural processes can remove them 

from the atmosphere, their 

concentrations increase, thus increasing 

the greenhouse effect. 

In the U.S., the combustion of fossil 

fuels (e.g., coal, oil, gas) is the largest 

source of CO2 emissions and accounts 

for 80 percent of the total GHG 

emissions by mass. Anthropogenic CO2

emissions released from a variety of 

sources, including through the use of 

fossil fuel combustion and cement 

production from geologically stored 

carbon (e.g., coal, oil, and natural gas) 

that is hundreds of millions of years old, 

as well as anthropogenic CO2 emissions 

from land-use changes such as 

deforestation, perturb the atmospheric 

concentration of CO2, and the 

distribution of carbon within different 

reservoirs readjusts. More than half of 

the energy-related emissions come from 

large stationary sources such as power 

plants, while about a third come from 

transportation. Of the six well-mixed 

GHGs, four (CO2, CH4, N2O, and HFCs) 

are emitted by motor vehicles. In the 

U.S., industrial processes (such as the 

production of cement, steel, and 

aluminum), agriculture, forestry, other 

land use, and waste management are 

also important sources of GHGs. 

Different GHGs have different heattrapping capacities. The concept of 

Global Warming Potential (GWP) was 

developed to compare the heat-trapping 

capacity and atmospheric lifetime of 

one GHG to another. The definition of 

a GWP for a particular GHG is the ratio 

of heat trapped by one unit mass of the 

GHG to that of one unit mass of CO2

over a specified time period. When 

quantities of the different GHGs are 

multiplied by their GWPs, the different 

GHGs can be summed and compared on 

a carbon dioxide equivalent (CO2e) 

basis. For example, CH4 has a GWP of 

21, meaning each ton of CH4 emissions 

would have 21 times as much impact on 

global warming over a 100-year time 

horizon as 1 ton of CO2 emissions. Thus, 

on the basis of heat-trapping capability, 

1 ton of CH4 would equal 21 tons of 

CO2e. The GWPs of the non-CO2 GHGs 

range from 21 (for CH4) up to 23,900 (for 

SF6). Aggregating all GHGs on a CO2e 

basis at the source level allows a facility 

to evaluate its total GHG emissions 

contribution to global warming based on 

a single metric. 

B. What are the general requirements of 

the PSD program? 

1. Overview of the PSD Program 

The PSD program is a preconstruction 

review and permitting program 

applicable to new major stationary 

sources and major modifications at 

existing stationary sources. The PSD 

program applies in areas that are 

designated ‘‘attainment’’ or 

‘‘unclassifiable’’ for a national ambient 

air quality standard (NAAQS). The PSD 

program is contained in part C of title 

I of the CAA. The ‘‘nonattainment NSR’’ 

program applies in areas not in 

attainment of a NAAQS or in the Ozone 

Transport Region, and it is implemented 

under the requirements of part D of title 

I of the CAA. Collectively, EPA 

commonly refers to these two programs 

as the major NSR program. The 

governing EPA rules are generally 

contained in 40 CFR 51.165, 51.166, 

52.21, 52.24, and part 51, Appendices S 

and W. There is no NAAQS for CO2 or 

any of the other well-mixed GHGs, nor 

has EPA proposed any such NAAQS; 

therefore, unless and until EPA takes 

further such action, the nonattainment 

NSR program does not apply to GHGs. 

The applicability of PSD to a 

particular source must be determined in 

advance of construction or modification 

and is pollutant-specific. The primary 

criterion in determining PSD 

applicability for a proposed new or 

modified source is whether the source is 

a ‘‘major emitting facility,’’ based on its 

estimated potential emissions of 

regulated pollutants within the meaning 

of CAA section 169(1), that either 

constructs or undertakes a modification. 

EPA has implemented these 

requirements in its regulations, which 

use somewhat different terminology 

than the CAA does, for determining PSD 

applicability. 

a. Major Stationary Source 

Under EPA’s regulations, PSD applies 

to a ‘‘major stationary source,’’ which is 

defined as any source belonging to a 

specified list of 28 source categories that 

emits or has the potential to emit 100 

tpy or more of any air pollutant or any 

other source type that emits or has the 

potential to emit any air pollutant in 

amounts equal to or greater than 250 

tpy. 40 CFR 51.166(a)(7)(i), 

51.166(b)(1)(i). We refer to these levels 

as the 100/250-tpy thresholds. A new 

source with a potential to emit (PTE) at 

or above the applicable ‘‘major 

stationary source threshold’’ is subject to 

major NSR. These limits originate from 


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2EPA notes that the PSD program has historically 

operated in this fashion for all pollutants—when 

new sources or modifications are ‘‘major,’’ PSD 

applies to all pollutants that are emitted in 

significant quantities from the source or project. 

This rule does not alter that for sources or 

modifications that are major due to their GHG 

emissions. 

3 In the Tailoring Rule, EPA noted that 

commenters argued, with some variations, that the 

PSD provisions applied only to NAAQS pollutants, 

and not GHG; and EPA responded that the PSD 

provisions apply to all pollutants subject to 

regulation, including GHG. See 75 FR31560–62 

(June 3, 2010). EPA maintains its position that the 

section 165(a)(1) of the CAA, which 

applies PSD to any ‘‘major emitting 

facility’’; and CAA section 169(l), which 

defines the term to include any source 

that emits or has a PTE of 100 or 250 

tpy, depending on the source category. 

EPA’s regulations have revised the 

terminology, by applying PSD to any 

‘‘major stationary source,’’ and have 

interpreted PSD applicability more 

narrowly by defining that term to 

include a source that emits at least one 

‘‘regulated NSR pollutant,’’ 40 CFR 

51.166(b)(1)(i)(a). The regulations define 

that term, in turn, to include pollutants 

regulated under specified provisions of 

the CAA; and to, as a catch-all category, 

‘‘[a]ny pollutant that otherwise is subject 

to regulation under the [CAA].’’ Id. at 

51.166(b)(49)(iv). This catch-all category 

will include GHGs on January 2, 2011, 

under our interpretation of the term 

‘‘subject to regulation under the [CAA],’’ 

as discussed in EPA’s recently issued 

memorandum entitled, 

‘‘Reconsideration of Interpretation of 

Regulations that Determine Pollutants 

Covered by Clean Air Act Permitting 

Programs.’’ 75 FR 17004 (April 2, 2010). 

b. Major Modifications 

Under EPA regulations, PSD also 

applies to existing sources that 

undertake a ‘‘major modification,’’ 

which occurs when: (1) There is a 

physical change in, or change in the 

method of operation of, a ‘‘major 

stationary source’’; (2) the change results 

in a ‘‘significant’’ emissions increase of 

a pollutant subject to regulation (equal 

to or above the significance level that 

EPA has set for the pollutant in 40 CFR 

51.166(b)(23)(i)); and (3) there is a 

‘‘significant net emissions increase’’ of a 

pollutant subject to regulation that is 

equal to or above the significance level 

40 CFR 51.166(b)(23)(i)). Significance 

levels, which EPA has promulgated for 

criteria pollutants and certain other 

pollutants, represent a de minimis 

contribution to air quality problems. 

When EPA has not set a significance 

level for a regulated NSR pollutant, PSD 

applies to an increase of the pollutant in 

any amount (that is, in effect, the 

significance level is treated as zero). 

2. General Requirements for PSD 

This section provides a very brief 

summary of the main requirements of 

the PSD program. One principal 

requirement is that a new major source 

or major modification must apply best 

available control technology (BACT), 

which is determined on a case-by-case 

basis taking into account, among other 

factors, the cost effectiveness of the 

control and energy and environmental 

impacts. EPA has developed a ‘‘topdown’’ approach for BACT review, 

which involves a decision process that 

includes identification of all available 

control technologies, elimination of 

technically infeasible options, ranking 

of remaining options by control and cost 

effectiveness, and then selection of 

BACT. Under PSD, once a source is 

determined to be major for any 

regulated NSR pollutant, a BACT review 

is performed for each pollutant that 

exceeds its PSD significance level as 

part of new construction or for 

modification projects at the source, 

where there is a significant increase and 

a significant net emissions increase of 

such pollutant.2

In addition to performing BACT, the 

source must analyze impacts on ambient 

air quality to assure that sources do not 

cause or contribute to violation of any 

NAAQS or PSD increments and must 

analyze impacts on soil, vegetation, and 

visibility. In addition, sources or 

modifications that would impact Class I 

areas (e.g., national parks) may be 

subject to additional requirements to 

protect air quality related values 

(AQRVs) that have been identified for 

such areas. Under PSD, if a source’s 

proposed project may impact a Class I 

area, the Federal Land Manager is 

notified and is responsible for 

evaluating a source’s projected impact 

on the AQRVs and recommending either 

approval or disapproval of the source’s 

permit application based on anticipated 

impacts. There are currently no NAAQS 

or PSD increments established for 

GHGs, and therefore these PSD 

requirements would not apply for 

GHGs, even when PSD is triggered for 

GHGs. However, if PSD is triggered for 

a GHG-emitting source, all regulated 

NSR pollutants that the new source 

emits in significant amounts would be 

subject to PSD requirements. Therefore, 

if a facility triggers PSD for non-GHG 

pollutants for which there are 

established NAAQS or increments, the 

air quality, additional impacts, and 

Class I requirements would apply to 

those pollutants. 

Pursuant to existing PSD 

requirements, the permitting authority 

must provide notice of its preliminary 

decision on a source’s application for a 

PSD permit and must provide an 

opportunity for comment by the public, 

industry, and other interested persons. 

After considering and responding to 

comments, the permitting authority 

must issue a final determination on the 

construction permit. Usually PSD 

permits are issued by a state or local air 

pollution control agency that has its 

own authority to issue PSD permits 

under a permit program that has been 

approved by EPA for inclusion in its 

SIP. In some areas, EPA has delegated 

its authority to issue PSD permits under 

federal regulations to the state or local 

agency. In other areas, EPA issues the 

permits under its own authority. 

C. What are the CAA requirements to 

include the PSD program in the SIP? 

The CAA contemplates that the PSD 

program be implemented in the first 

instance by the states and requires that 

states include PSD requirements in their 

SIPs. CAA section 110(a)(2)(C) requires 

that— 

Each implementation plan * * * shall 

* * * include a program to provide for 

* * * regulation of the modification and 

construction of any stationary source within 

the areas covered by the plan as necessary to 

assure that national ambient air quality 

standards are achieved, including a permit 

program as required in part C * * * of this 

subchapter. 

CAA section 110(a)(2)(J) requires that— 

Each implementation plan * * * shall 

* * * meet the applicable requirements of 

* * * part C of this subchapter (relating to 

significant deterioration of air quality and 

visibility protection). 

CAA section 161 provides that— 

Each applicable implementation plan shall 

contain emission limitations and such other 

measures as may be necessary, as determined 

under regulations promulgated under this 

part [C], to prevent significant deterioration 

of air quality for such region * * * 

designated * * * as attainment or 

unclassifiable. 

These provisions, read in conjunction 

with the PSD applicability provisions— 

which, as noted above, apply, by their 

terms, to ‘‘any air pollutant,’’ and which 

EPA has, through regulation, interpreted 

more narrowly as any ‘‘NSR regulated 

pollutant’’—and read in conjunction 

with other provisions, such as the BACT 

provision under CAA section 165(a)(4), 

mandate that SIPs include PSD 

programs that are applicable to, among 

other things, any air pollutant that is 

subject to regulation, including, as 

discussed below, GHGs on and after 

January 2, 2011.3


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PSD provisions apply to all pollutants subject to 

regulations, and the Agency incorporates by 

reference the discussion of this issue in the 

Tailoring Rule. 

4The Tailoring Rule also applies to the title V 

program, which requires operating permits for 

existing sources. However, today’s action does not 

affect Nebraska’s title V program. We plan to take 

action on Nebraska’s title V program in the future. 

5EPA adopted the Tailoring Rule after careful 

consideration of numerous public comments. On 

October 27, 2009 (74 FR 55292), EPA proposed the 

Tailoring Rule. EPA held two public hearings on 

the proposed rule, and received over 400,000 

written public comments. The public comment 

period ended on December 28, 2009. The comments 

provided detailed information that helped EPA 

understand better the issues and potential impacts 

of the Tailoring Rule. The preamble of EPA’s 

Tailoring Rule describes in detail the comments 

received and how some of these comments were 

incorporated in EPA’s fine rule. See 75 FR 31514 

for more detail. 

A number of states do not have PSD 

programs approved into their SIPs. In 

those states, EPA’s regulations at 40 CFR 

52.21 govern, and either EPA or the 

state acting as EPA’s delegatee serves as 

the permitting authority. On the other 

hand, most states have PSD programs 

that have been approved into their SIPs, 

and these states implement their PSD 

programs and act as the permitting 

authority. Nebraska has a SIP-approved 

PSD program. 

D. What actions has EPA taken 

concerning PSD requirements for GHGemitting sources? 

1. What are the Endangerment Finding, 

the Light Duty Vehicle Rule, and the 

Johnson Memo Reconsideration? 

By notice dated December 15, 2009, 

pursuant to CAA section 202(a), EPA 

issued, in a single final action, two 

findings regarding GHGs that are 

commonly referred to as the 

‘‘Endangerment Finding’’ and the ‘‘Cause 

or Contribute Finding.’’ ‘‘Endangerment 

and Cause or Contribute Findings for 

Greenhouse Gases Under Section 202(a) 

of the Clean Air Act,’’ 74 FR 66496. In 

the Endangerment Finding, the 

Administrator found that six long-lived 

and directly emitted GHGs—CO2, CH4, 

N2O, HFCs, PFCs, and SF6—may 

reasonably be anticipated to endanger 

public health and welfare. In the Cause 

or Contribute Finding, the 

Administrator ‘‘define[d] the air 

pollutant as the aggregate group of the 

same six * * * greenhouse gases,’’ 74 

FR 66536, and found that the combined 

emissions of this air pollutant from new 

motor vehicles and new motor vehicle 

engines contribute to the GHG air 

pollution that endangers public health 

and welfare. 

By notice dated May 7, 2010, EPA and 

the National Highway Traffic Safety 

Administration published what is 

commonly referred to as the ‘‘Light-Duty 

Vehicle Rule’’ (LDVR), which for the 

first time established Federal controls 

on GHGs emitted from light-duty 

vehicles. ‘‘Light-Duty Vehicle 

Greenhouse Gas Emission Standards 

and Corporate Average Fuel Economy 

Standards; Final Rule.’’ 75 FR 25324. In 

its applicability provisions, the LDVR 

specifies that it ‘‘contains standards and 

other regulations applicable to the 

emissions of six greenhouse gases,’’ 

including CO2, CH4, N2O, HFCs, PFCs, 

and SF6. 75 FR 25686 (40 CFR 86.1818– 

12(a)). 

Shortly before finalizing the LDVR, by 

notice dated April 2, 2010, EPA 

published an interpretation that we call 

the Johnson Memo Reconsideration. 

‘‘Reconsideration of Interpretation of 

Regulations that Determine Pollutants 

Covered by Clean Air Act Permitting 

Programs’’, 75 FR 17004. In this action, 

EPA stated that it would continue to 

apply its interpretation that a pollutant 

is ‘‘subject to regulation’’ only if it is 

subject to either a provision in the CAA 

or regulation adopted by EPA under the 

CAA that requires actual control of 

emissions of that pollutant. EPA added 

that a pollutant becomes subject to 

regulation at the time the first regulatory 

requirement to control emissions of that 

pollutant ‘‘takes effect’’ (rather than 

upon promulgation or the legal effective 

date of the regulation containing such a 

requirement). In addition, based on the 

anticipated promulgation of the LDVR, 

EPA stated that the GHG requirements 

of the vehicle rule would take effect on 

January 2, 2011, because that is the 

earliest date that a 2012 model year 

vehicle (the first model year in which 

the rule’s GHG requirements apply) may 

be introduced into commerce. 

2. What is EPA’s tailoring rule? 

By notice dated June 3, 2010, EPA 

published what we call the Tailoring 

Rule, which was a final rulemaking for 

the purpose of relieving overwhelming 

permitting burdens that would, in the 

absence of the rule, fall on permitting 

authorities and sources. 75 FR 31514. 

EPA accomplished this by tailoring the 

applicability criteria that determine 

which GHG emission sources become 

subject to the PSD program 4 of the 

CAA. In particular, EPA established in 

the Tailoring Rule a phase-in approach 

for PSD applicability and established 

the first two steps of the phase-in for the 

largest GHG-emitters. Additionally, EPA 

committed to certain follow-up actions 

regarding future steps beyond the first 

two, discussed in more detail later.5

For the first step of the Tailoring Rule, 

which will begin on January 2, 2011, 

PSD requirements will apply to major 

stationary source GHG emissions only if 

the sources are subject to PSD anyway 

due to their emissions of non-GHG 

pollutants. Therefore, in the first step, 

EPA will not require sources that newly 

construct or modify to apply PSD 

requirements solely on account of their 

GHG emissions. Specifically, for PSD, 

Step 1 requires that as of January 2, 

2011, the applicable requirements of 

PSD, most notably, the BACT 

requirement, will apply to projects that 

increase net GHG emissions by at least 

75,000 tpy CO2e, but only if the project 

also significantly increases emissions of 

at least one non-GHG pollutant and 

thereby trigger PSD anyway. 

The second step of the Tailoring Rule, 

beginning on July 1, 2011, will phase in 

additional large sources of GHG 

emissions. New sources that emit, or 

have the potential to emit, at least 

100,000 tpy CO2e will become subject to 

the PSD requirements. In addition, 

existing sources that emit or have the 

potential to emit at least 100,000 tpy 

CO2e and that undertake a modification 

that increases net GHG emissions by at 

least 75,000 tpy CO2e will also be 

subject to PSD requirements. For both 

steps, EPA notes that if sources or 

modifications exceed these CO2eadjusted GHG triggers, they are not 

covered by permitting requirements 

unless their GHG emissions also exceed 

the corresponding mass-based triggers 

in tpy. 

EPA believes that the costs to the 

sources and the administrative burdens 

to the permitting authorities of PSD 

permitting will be manageable at the 

levels in these initial two steps and that 

it would be administratively infeasible 

to subject additional sources to PSD 

requirements at those times. However, 

EPA also intends to issue a 

supplemental notice of proposed 

rulemaking in 2011, in which the 

Agency will propose or solicit comment 

on a third step of the phase-in that 

would include more sources, beginning 

on July 1, 2013. In the Tailoring Rule, 

EPA established an enforceable 

commitment that the Agency will 

complete this rulemaking by July 1, 

2012, which will allow for 1 year’s 

notice before Step 3 would take effect. 

In addition, EPA committed to 

explore streamlining techniques that 

may well make the permitting programs 

much more efficient to administer for 

GHGs, and that therefore may allow 

their expansion to smaller sources. EPA 

expects that the initial streamlining 

techniques will take several years to 

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6Narrowing EPA’s approval will ensure that for 

federal purposes, sources with GHG emissions that 

are less than the Tailoring Rule’s emission 

thresholds will not be obligated under federal law 

to obtain PSD permits during the gap between when 

GHG PSD requirements go into effect on January 2, 

2011 and when either (1) EPA approves a SIP 

revision adopting EPA’s tailoring approach, or (2) 

if a state opts to regulate smaller GHG-emitting 

sources, the state demonstrates to EPA that it has 

adequate resources to handle permitting for such 

sources. EPA expects to finalize the narrowing 

action prior to the January 2, 2011 deadline with 

respect to those states for which EPA will not have 

approved the Tailoring Rule thresholds in their SIPs 

by that time. 

7The term ‘‘greenhouse gases’’ is commonly used 

to refer generally to gases that have heat-trapping 

properties. However, in this notice, unless noted 

otherwise, we use it to refer specifically to the 

pollutant regulated in the LDVR. 

8The relevant thresholds are 100 tpy for title V, 

and 250 tpy for PSD, except for 28 categories listed 

in EPA regulations for which the PSD threshold is 

100 tpy. 

In the Tailoring Rule, EPA also 

included a provision, that no source 

with emissions below 50,000 tpy CO2e, 

and no modification resulting in net 

GHG increases of less than 50,000 tpy 

CO2e, will be subject to PSD permitting 

before at least 6 years (i.e., April 30, 

2016). This is because EPA has 

concluded that at the present time the 

administrative burdens that would 

accompany permitting sources below 

this level would be so great that even 

with the streamlining actions that EPA 

may be able to develop and implement 

in the next several years, and even with 

the increases in permitting resources 

that EPA can reasonably expect the 

permitting authorities to acquire, it 

would be impossible to administer the 

permit programs for these sources until 

at least 2016. 

As EPA explained in the Tailoring 

Rule, the threshold limitations are 

necessary because without them, PSD 

would apply to all stationary sources 

that emit or have the potential to emit 

more than 100 or 250 tons of GHG per 

year beginning on January 2, 2011. This 

is the date when EPA’s recently 

promulgated LDVR takes effect, 

imposing control requirements for the 

first time on CO2 and other GHGs. If this 

January 2, 2011, date were to pass 

without the Tailoring Rule being in 

effect, PSD requirements would apply to 

GHG emissions at the 100/250 tpy 

applicability levels provided under a 

literal reading of the CAA as of that 

date. From that point forward, a source 

owner proposing to construct any new 

major source that emits at or higher than 

the applicability levels (and which 

therefore may be referred to as a ‘‘major’’ 

source) or modify any existing major 

source in a way that would increase 

GHG emissions would need to obtain a 

permit under the PSD program that 

addresses these emissions before 

construction or modification could 

begin. 

Under these circumstances, many 

small sources would be burdened by the 

costs of the individualized PSD control 

technology requirements and permit 

applications that the PSD provisions, 

absent streamlining, require. 

Additionally, state and local permitting 

authorities would be burdened by the 

extraordinary number of these permit 

applications, which are orders of 

magnitude greater than the current 

inventory of permits and would vastly 

exceed the current administrative 

resources of the permitting authorities. 

Permit gridlock would result since the 

permitting authorities would likely be 

able to issue only a tiny fraction of the 

permits requested. 

In the Tailoring Rule, EPA adopted 

regulatory language codifying the phasein approach. As explained in that 

rulemaking, many state, local and tribal 

area programs will likely be able to 

immediately implement the approach 

without rule or statutory changes by, for 

example, interpreting the term ‘‘subject 

to regulation’’ that is part of the 

applicability provisions for PSD 

permitting. EPA has requested 

permitting authorities to confirm that 

they will follow this implementation 

approach for their programs, and if they 

cannot, then EPA has requested that 

they notify the Agency so that we can 

take appropriate follow-up action to 

narrow federal approval of their 

programs before GHGs become subject 

to PSD permitting on January 2, 2011.6

On September 30, 2010, the state of 

Nebraska provided a letter to EPA with 

the requested modification. See the 

docket for this proposed rulemaking for 

a copy of Nebraska’s letter. 

The thresholds that EPA established 

are based on CO2e for the aggregate sum 

of six GHGs that constitute the pollutant 

that will be subject to regulation, which 

we refer to as GHG.7 These gases are: 

CO2, CH4, N2O, HFCs, PFCs, and SF6. 

Thus, in EPA’s Tailoring Rule, EPA 

provided that PSD applicability is based 

on the quantity that results when the 

mass emissions of each of these gases is 

multiplied by the GWP of that gas, and 

then summed for all six gases. However, 

EPA further provided that in order for 

a source’s GHG emissions to trigger PSD 

requirements, the quantity of the GHG 

emissions must equal or exceed both the 

applicability thresholds established in 

the Tailoring Rule on a CO2e basis and 

the statutory thresholds of 100 or 250 

tpy on a mass basis.8 Similarly, in order 

for a source to be subject to the PSD 

modification requirements, the source’s 

net GHG emissions increase must 

exceed the applicable significance level 

on a CO2e basis and must also result in 

a net mass increase of the constituent 

gases combined. 

3. What is the GHG SIP Call and the 

proposed GHG FIP? 

On December 1, 2010, the EPA 

Administrator signed the final GHG SIP 

Call. In that action—along with the 

companion GHG FIP, which EPA 

proposed by notice dated September 2, 

2010 and expects to finalize for some 

states on December 23, 2010—EPA took 

steps to ensure that in the 13 states that 

do not have authority to issue PSD 

permits to GHG-emitting sources at 

present, either the state or EPA will 

have the authority to issue such permits 

by January 2, 2011 or soon thereafter. 

EPA explained that although for most 

states, either the state or EPA is already 

authorized to issue PSD permits for 

GHG-emitting sources as of that date, 

these 13 states have EPA-approved PSD 

programs that do not include GHGemitting sources and therefore do not 

authorize these states to issue PSD 

permits to such sources. Therefore, EPA 

issued a finding that these 13 states’ 

SIPs are substantially inadequate to 

comply with CAA requirements. 

Accordingly, and as part of the same 

action, EPA also issued a SIP Call to 

require a SIP revision that applies their 

SIP PSD programs to GHG-emitting 

sources. EPA also established a SIP 

submittal deadline. In the proposed SIP 

call, EPA had stated that the deadline 

could range from as little as three weeks 

after the final SIP call was signed to as 

long as 12 months after the final SIP call 

was signed, and that each affected state 

was authorized to indicate to EPA that 

it did not object to a deadline on the 

earlier end of that range. In the final SIP 

call, EPA established deadlines that 

ranged, for the various states, from 

December 23, 2010 (three weeks after 

signature) to December 1, 2011 (12 

months after signature), based, in 

general, on each state’s preference. In 

the companion GHG FIP rulemaking, 

EPA proposed a FIP that would give 

EPA authority to apply EPA’s PSD 

program to GHG-emitting sources in any 

state that is unable to submit a 

corrective SIP revision by its deadline. 

Nebraska was one of the states for 

which EPA proposed and finalized the 

SIP Call. The state’s comments 

regarding the proposed SIP call, 

submitted September 30, 2010, are 

included in the docket for this 

rulemaking. In the SIP call, EPA 

established a SIP submittal deadline for 

Nebraska of March 1, 2011, in 

accordance with Nebraska’s statement 


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9 ‘‘Light-Duty Vehicle Greenhouse Gas Emission 

Standards and Corporate Average Fuel Economy 

Standards; Final Rule.’’ 75 FR 25324 (May 7, 2010). 

in that letter that ‘‘Nebraska does not 

object to EPA’s establishment of a 

deadline of March 1, 2011 for submittal 

of Nebraska’s corrective SIP, although 

we are expeditiously working for an 

earlier submittal.’’ 

In addition, in the SIP call 

rulemaking, EPA stated certain 

requirements that the corrective SIP 

revision must meet, which are that the 

corrective SIP revision must— 

(i) apply the SIP PSD program to 

GHG-emitting sources; 

(ii) define GHGs as the same pollutant 

to which the Light-Duty Vehicle Rule 9

(LDVR) applies, that is, a single 

pollutant that is the aggregate of the 

group of six gases (carbon dioxide (CO2), 

methane (CH4), nitrous oxide (N2O), 

hydrofluorocarbons (HFCs), 

perfluorocarbons (PFCs), and sulfur 

hexafluoride (SF6)); and 

(iii) either limit PSD applicability to 

GHG-emitting sources by adopting the 

applicability thresholds included in the 

Tailoring Rule or adopt lower 

thresholds and show that the state has 

adequate personnel and funding to 

administer and implement those lower 

thresholds. 

GHG SIP Call, at 12–13. In addition, if 

the corrective SIP revision adopts the 

Tailoring Rule thresholds, then it must 

either adopt the CO2e metric and use 

short tons (as opposed to metric tons) 

for calculating GHG emissions in order 

to implement those thresholds, or assure 

that its approach is at least as stringent 

as under the Tailoring Rule, so that the 

state does not exclude more sources 

than under the Tailoring Rule. See id. at 

96. 

E. What is the background for EPA’s 

New Source Review (NSR) Reform rule? 

The 2002 NSR Reform rules made 

changes to five areas of the NSR 

programs (concerning both PSD and 

nonattainment NSR). In summary, the 

2002 rules: (1) Provide a new method 

for determining baseline actual 

emissions; (2) adopt an actual-toprojected-actual methodology for 

determining whether a major 

modification has occurred; (3) allow 

major stationary sources to comply with 

plantwide applicability limits (PALs) to 

avoid having a significant emission 

increase that triggers the requirements 

of the major NSR program; (4) provide 

a new applicability provision for 

emissions units that are designated 

clean units; and (5) exclude pollution 

control projects (PCPs) from the 

definition of physical change or change 

in the method of operation. 

After the 2002 NSR Reform rules were 

finalized and effective, various 

petitioners challenged numerous 

aspects of the 2002 NSR Reform rules, 

along with portions of EPA’s 1980 NSR 

rules (45 FR 5276 August 7, 1980). On 

June 24, 2005, the Court of Appeals for 

the District of Columbia issued a 

decision on the challenges to the 2002 

NSR Reform Rules. New York v. United 

States, 413 F.3d 3 (DC Cir. 2005). In 

summary, the Court vacated portions of 

the rules pertaining to clean units and 

pollution control projects, remanded a 

portion of the rules regarding exemption 

from recordkeeping, e.g., 40 CFR 

52.21(r)(6) and 40 CFR 51.166(r)(6), and 

let stand the other provisions included 

as part of the 2002 NSR Reform rules. 

III. What is EPA’s analysis of 

Nebraska’s proposed SIP revision? 

A. What does Nebraska’s proposed SIP 

revision do? 

In the submissions, Nebraska 

proposed a SIP revision to its GHG 

construction permit related regulations 

and submitted its proposal to EPA for 

parallel processing and eventual 

approval as the corrective SIP revision 

in anticipation of EPA’s SIP call. If and 

when EPA approves this SIP revision, 

Nebraska will have authority to issue 

PSD permits to GHG-emitting sources, 

and thereby assure that those sources 

will be able to construct or undertake 

modifications after January 1, 2011. In 

addition, this SIP revision establishes 

the Tailoring Rule thresholds for 

determining which stationary sources 

and modification projects become 

subject to permitting requirements for 

GHG emissions under the PSD program. 

Without these Tailoring Rule 

thresholds, PSD requirements would 

apply, as of January 2, 2011, at the 100- 

or 250-tpy levels provided under the 

CAA. This would greatly increase the 

number of required permits, would 

impose undue costs on small sources, 

and would overwhelm Nebraska’s 

permitting resources and severely 

impair the function of the program. 

Specifically, Nebraska’s proposed SIP 

revision includes changes to Chapter 1 

of Title 129 of the Nebraska 

Administrative Code—Definitions. 

These revisions update Nebraska’s air 

regulations by providing the state the 

authority to regulate GHGs and aligning 

the thresholds for GHG permitting 

applicability with those specified in the 

Tailoring Rule. The proposed SIP 

revisions also include a change to 

Chapter 5 of Title 129 of the Nebraska 

Administrative Code—Operating 

Permits—When Required. This revision 

allows sources to limit their potential to 

emit in order to become a synthetic 

minor source. 

The proposed SIP revision also adopts 

those portions of the NSR Reform rules 

which were not vacated or remanded by 

the Court, and includes changes to 

Chapter 2 of Title 129 of the Nebraska 

Administrative Code—Definition of 

Major Source, Chapter 14 of Title 129 of 

the Nebraska Administrative Code— 

Permits: Public Participation, Chapter 

15 of Title 129 of the Nebraska 

Administrative Code—Permit Revisions; 

Reopening for Cause, Chapter 17 of Title 

129 of the Nebraska Administrative 

Code—Construction Permits—When 

Required, and Chapter 19 of Title 129 of 

the Nebraska Administrative Code— 

Prevention of Significant Deterioration 

of Air Quality. These changes adopt 

portions of the 2002 NSR Reform rules. 

These revisions have already been 

adopted and are effective at the state 

level. Thus, unlike the Tailoring Rule 

revisions where the state is in the 

process of adopting the proposed 

revisions, these rules are not subject to 

parallel processing. Nebraska’s 

proposed SIP revision includes the 2002 

NSR Reform provisions for determining 

baseline actual emissions, adopting 

actual-to-projected actual methodology 

for determining whether a major 

modification has occurred, and allowing 

plantwide applicability limits (PALs). 

Nebraska’s proposed SIP revision does 

not include the 2002 NSR Reform 

provisions relating to clean units, 

pollution control projects (PCPs), and 

reasonable possibility recordkeeping 

provisions. In addition, Nebraska’s 

submittal does not include a change to 

the named source category list in 

Chapter 2, which changed the 

designation of ‘‘chemical processing 

plants’’ to exclude certain ethanol 

production facilities. Therefore, this 

proposed action does not propose to 

approve into the SIP EPA’s ‘‘ethanol 

rule’’ revision promulgated in May 2007. 

EPA is proposing in today’s action to 

simultaneously approve Nebraska’s 

proposed SIP revisions relating to GHGs 

and NSR Reform. In the alternative, EPA 

is also soliciting public comment on 

whether it should initially only approve 

the SIP revisions related to GHGs in this 

rulemaking, and address the proposed 

SIP revisions related to the NSR Reform 

provisions in a subsequent final action. 

Under this alternative, Nebraska’s SIPapproved rules that are applicable to the 

State’s authority to regulate GHG would 

stem from the provisions of EPA’s 

Federal PSD rules as of July 1, 1997, in 

conjunction with Nebraska’s revised 

regulations which change the definition 


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10As stated above, EPA is proposing in today’s 

action to simultaneously approve Nebraska’s 

proposed SIP revisions relating to GHGs and NSR 

Reform. In the alternative, EPA is also soliciting 

public comment on whether it should initially only 

approve the SIP revisions related to GHGs in this 

rulemaking, and address the proposed SIP revisions 

related to the NSR Reform provisions in a 

subsequent final action. 

of ‘‘NSR regulated pollutant’’ to provide 

NDEQ with the authority to regulate 

GHGs. 

B. Why is approval of Nebraska’s 

proposed SIP revision consistent with 

the Clean Air Act? 

With respect to the GHG part of the 

SIP submission, Nebraska has received 

a SIP call because its PSD program does 

not apply to GHGs, and as a result, 

Nebraska is required to submit, by 

March 1, 2010, a SIP revision that 

applies PSD to GHGs and does so either 

at the Tailoring Rule thresholds or at 

lower thresholds and, if the latter, then 

Nebraska is required to demonstrate that 

it has adequate resources for 

implementation. In its letter dated 

September 30, 2010, referenced above, 

Nebraska notified EPA that the state is 

in the process of revising its regulation 

(the subject of this proposed action) to 

provide this authority. It will do so by 

updating the definitions of ‘‘major 

source’’ and ‘‘regulated NSR pollutant’’ 

to explicitly include GHG as a regulated 

NSR pollutant. In addition, the 

Nebraska rules incorporate the same 

thresholds and phase-in schedule as the 

Tailoring Rule and they adopt the CO2e 

metric and use of short tons for 

determining the thresholds. 

EPA has preliminarily determined 

that this change to Nebraska’s regulation 

meets the requirements of the SIP call. 

Thus, this change is consistent with the 

CAA and its implementing regulations 

regarding GHG. The changes included 

in this submittal are substantively the 

same as EPA’s Tailoring Rule, and 

therefore comply with the requirements 

of the SIP call. The Nebraska rules have 

been formatted to conform to Nebraska’s 

rule drafting standards, but in 

substantive content the rules that 

address the Tailoring Rule provisions 

are the same as the federal rules. 

With respect to the NSR Reform part 

of the proposed SIP revision, Nebraska’s 

proposed SIP revision tracks the Federal 

NSR Reform Rules, and EPA previously 

determined that the implementation of 

the Federal NSR Reform Rules will be 

environmentally beneficial. (See 68 FR 

44620 and 63021). Section 110(k) of the 

CAA provides that EPA shall approve a 

SIP revision as a whole if it meets all the 

applicable requirements of the CAA. 

EPA’s Supplemental Analysis for the 

Federal NSR Reform Rules estimated 

that there are likely to be reductions in 

emissions of volatile organic 

compounds (VOC) due to the use of 

PALs. It is more difficult to assess the 

environmental impacts of the actual-toprojected-actual test and the ‘‘2 in 10’’ 

baseline provisions. The Supplemental 

Analysis determined that there is a 

slight national environmental benefit 

brought about by these NSR Reform 

provisions. Overall, we expect changes 

in air quality as a result of 

implementing PALs, the actual-toprojected-actual test, and the ‘‘2 in 10’’ 

baseline provisions in Nebraska to be 

somewhere between neutral and 

providing modest benefits toward air 

quality improvements. Accordingly, 

EPA believes that these changes are 

consistent with the requirements of 

section 110(l). 

In addition, the Nebraska NSR Reform 

rules are, in substantive content, the 

same as EPA’s December 2002 NSR 

Reform rule, as it relates to PALs, the 

‘‘actual to projected actual’’ test, and the 

calculation of baseline actual emissions. 

As stated previously, Nebraska has not 

adopted the other provisions of the 

federal rule vacated or remanded by the 

Court in the New York case.10

IV. Proposed Action 

Pursuant to sections 110(k)(3) and 

110(l) of the CAA, EPA is proposing to 

approve the state of Nebraska’s 

proposed revisions to the Nebraska 

Administrative Code that were 

submitted to EPA relating to PSD 

requirements for GHG-emitting sources. 

Specifically, Nebraska’s submissions 

meet the requirements of the GHG SIP 

Call because they (1) provide the state 

of Nebraska with the authority to 

regulate GHGs under its PSD program, 

and (2) establish appropriate emissions 

thresholds for determining PSD 

applicability to new and modified GHGemitting sources in accordance with 

EPA’s Tailoring Rule. EPA is also 

proposing to approve prior revisions to 

Nebraska’s PSD rule, identified above, 

which incorporate portions of EPA’s 

2002 NSR Reform rule. EPA has made 

the preliminary determination that this 

SIP revision is approvable because it is 

in accordance with the CAA and EPA 

regulations regarding PSD permitting for 

GHGs, and with the EPA regulations 

implementing NSR Reform. 

As noted above, at Nebraska’s request, 

EPA is ‘‘parallel processing’’ this 

proposed rule revision as it relates to 

GHGs. After Nebraska submits the 

formal state-effective rule revisions 

(including a response to all public 

comments raised during the state’s 

public participation process), EPA will 

prepare a final rulemaking notice for the 

SIP revision. If changes are made to the 

state’s proposed rule after EPA’s notice 

of proposed rulemaking, such changes 

must be acknowledged in EPA’s final 

rulemaking action. If the changes are 

significant, then EPA may be obliged to 

re-propose the action. In addition, if 

these changes render the SIP revision 

not approvable, EPA’s re-proposal of the 

action would be a disapproval of the 

revision. 

V. Statutory and Executive Order 

Reviews 

Under the CAA, the Administrator is 

required to approve a SIP submission 

that complies with the provisions of the 

Act and applicable federal regulations. 

42 U.S.C. 7410(k); 40 CFR 52.02(a). 

Thus, in reviewing SIP submissions, 

EPA’s role is to approve state choices, 

provided that they meet the criteria of 

the CAA. Accordingly, this proposed 

action merely approves the state’s law 

as meeting federal requirements and 

does not impose additional 

requirements beyond those imposed by 

the state’s 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 

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 


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Federal Register / Vol. 75, No. 247 / Monday, December 27, 2010 / Proposed Rules 81187 

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 of Nebraska, and 

EPA notes that it will not impose 

substantial direct costs on tribal 

governments or preempt tribal law. 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Intergovernmental relations, 

and Reporting and recordkeeping 

requirements. 

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

Dated: December 15, 2010. 

William W. Rice, 

Acting Regional Administrator, Region 7. 

[FR Doc. 2010–32456 Filed 12–23–10; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 271 

[EPA–R08–RCRA–2010–0933, FRL–9244–1] 

South Dakota: Final Authorization of 

State Hazardous Waste Management 

Program Revision 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed Rule. 

SUMMARY: The Solid Waste Disposal Act, 

as amended, commonly referred to as 

the Resource Conservation and 

Recovery Act (RCRA), allows the 

Environmental Protection Agency (EPA) 

to authorize states to operate their 

hazardous waste management programs 

in lieu of the federal program. South 

Dakota has applied to EPA for final 

authorization of the changes to its 

hazardous waste program under RCRA. 

EPA has determined that these changes 

satisfy all requirements needed to 

qualify for final authorization, and is 

proposing to authorize the State’s 

changes through this proposed final 

action. 

DATES: Comments must be received by 

January 26, 2011. 

ADDRESSES: Submit your comments by 

one of the following methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the on-line 

instructions for submitting comments. 

• E-mail: cosentini.christina@epa.gov. 

• Fax: (303) 312–6341 (prior to 

faxing, please notify the EPA contact 

listed below). 

• Mail, Hand Delivery or Courier: 

Deliver your comments to Christina 

Cosentini, Solid and Hazardous Waste 

Program, EPA Region 8, Mailcode 8P– 

HW, 1595 Wynkoop Street, Denver, 

Colorado 80202–1129. Courier or hand 

deliveries are only accepted during the 

Regional Office’s normal hours of 

operation. The public is advised to call 

in advance to verify the business hours. 

Special arrangements should be made 

for deliveries of boxed information. 

Instructions: Direct your comments to 

Docket ID No.: EPA–R08–RCRA–2010– 

0933. EPA’s policy is that all comments 

received will be included in the public 

docket without change, 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 regulations.gov, or email. The federal Web site http://www.

regulations.gov 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 be free of any defects 

or viruses. For additional information 

about EPA’s public docket, visit the EPA 

Docket Center homepage at http://www.

epa.gov/epahome/dockets.htm. 

Docket: All documents in the docket 

are listed in the http://www.regulations.

gov index. Although listed in the index, 

some information may not be publicly 

available, e.g., 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 through http://

www.regulations.gov or in hard copy at: 

EPA Region 8, from 8 a.m. to 4 p.m., 

1595 Wynkoop Street, Denver, 

Colorado, contact: Christina Cosentini, 

phone number (303) 312–6231, or the 

South Dakota Department of 

Environment and Natural Resources, 

from 9 a.m. to 5 p.m., Joe Foss Building, 

523 East Capitol Avenue, Pierre, SD 

57501, contact: Carrie Jacobson, phone 

number (605) 773–3153. The public is 

advised to call in advance to verify 

business hours. 

FOR FURTHER INFORMATION CONTACT: 

Christina Cosentini, Solid and 

Hazardous Waste Program, EPA Region 

8, 1595 Wynkoop Street, Denver, 

Colorado 80202, (303) 312–6231, 

cosentini.christina@epa.gov. 

SUPPLEMENTARY INFORMATION: 

A. Why are revisions to state programs 

necessary? 

States which have received final 

authorization from EPA under RCRA 

section 3006(b), 42 U.S.C. 6926(b), must 

maintain a hazardous waste program 

that is equivalent to, consistent with, 

and no less stringent than the federal 

program. As the federal program 

changes, states must change their 

programs and ask EPA to authorize the 

changes. Changes to state programs may 

be necessary when federal or state 

statutory or regulatory authority is 

modified or when certain other changes 

occur. Most commonly, states must 

change their programs because of 

changes to EPA’s regulations in 40 Code 

of Federal Regulations (CFR) parts 124, 

260 through 266, 268, 270, 273, and 279. 

B. What decisions have we made in this 

rule? 

We conclude that the State of South 

Dakota’s application to revise its 

authorized program meets all of the 

statutory and regulatory requirements 

established by RCRA. Therefore, we 

grant South Dakota final authorization 

to operate its hazardous waste program 

with the changes described in the 

authorization application. South Dakota 

has responsibility for permitting 

Treatment, Storage, and Disposal 

Facilities (TSDFs), and for carrying out 

the aspects of the RCRA program 

described in its revised program 

application, subject to the limitations of 

the Hazardous and Solid Waste 

Amendments of 1984 (HSWA) for all 

areas within the State except for lands 

located within formal Indian 

Reservations within or abutting the 

State of South Dakota, including the 

Cheyenne River Indian Reservation, 

Crow Creek Indian Reservation, 

Flandreau Indian Reservation, Lower 

Brule Indian Reservation, Pine Ridge 

Indian Reservation, Rosebud Indian 


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