```

[Federal Register: August 11, 2010 (Volume 75, Number 154)]
[Rules and Regulations]               
[Page 48582-48585]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr11au10-12]                         

-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 70

[EPA-R07-OAR-2009-0913; FRL-9186-5]

 
Approval and Promulgation of Implementation Plans and Operating 
Permits Program; State of Nebraska

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

-----------------------------------------------------------------------

SUMMARY: EPA is taking direct final action to approve revisions to the 
State Implementation Plan (SIP) and Operating Permits Program to revise 
the state definition of volatile organic compounds; clarify language 
and incorporate rules related to construction permits to incorporate 
application fees and include a mechanism to use construction permits to 
accomplish other permitting needs; and clarify language related to open 
fires and explicitly include an exemption for fires used for religious 
activities. Approval of these revisions will ensure consistency between 
the state and Federally-approved rules.

DATES: This direct final rule will be effective October 12, 2010, 
without further notice, unless EPA receives adverse comment by 
September 10, 2010. If adverse comment is received, EPA will publish a 
timely withdrawal of the direct final rule in the Federal Register 
informing the public that the rule will not take effect.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R07-
OAR-2009-0913, by one of the following methods:
    1. www.regulations.gov. Follow the on-line instructions for 
submitting comments.
    2. E-mail: wolfersberger.chris@epa.gov.
    3. Mail or Hand Delivery: Chrissy Wolfersberger, Environmental 
Protection Agency, Air Planning and Development Branch, 901 North 5th 
Street, Kansas City, Kansas 66101.
    Instructions: Direct your comments to Docket ID No. EPA-R07-OAR-
2009-0913. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
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 www.regulations.gov or e-
mail information that you consider to be CBI or otherwise protected. 
The

[[Page 48583]]

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 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.
    Docket: All documents in the docket are listed in the 
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 www.regulations.gov or 
in hard copy at the Environmental Protection Agency, Air Planning and 
Development Branch, 901 North 5th Street, Kansas City, Kansas 66101. 
The Regional Office's official hours of business are Monday through 
Friday, 8 to 4:30 excluding Federal holidays. The interested persons 
wanting to examine these documents should make an appointment with the 
office at least 24 hours in advance.

FOR FURTHER INFORMATION CONTACT: Chrissy Wolfersberger at (913) 551-
7864, or by e-mail at wolfersberger.chris@epa.gov.

SUPPLEMENTARY INFORMATION: Throughout this document ``we,'' ``us,'' or 
``our'' refer to EPA. This section provides additional information by 
addressing the following questions:

What is being addressed in this document?
What action is EPA taking?
What does Federal approval of a state regulation mean to me?

What is being addressed in this document?

    EPA is approving revisions to the Nebraska SIP and Operating 
Permits Program which revise the state definition of volatile organic 
compounds; incorporate rules related to construction permit application 
fees and include a mechanism to use construction permits to accomplish 
other permitting needs; and clarify language related to open fires.
    Changes to Chapter 1 revise the definition of volatile organic 
compounds (VOCs) to adopt changes that EPA made on November 29, 2004. 
In the first action (69 FR 69298), EPA added four chemicals to the list 
of excluded compounds at 40 CFR 51.100(s)(1), on the basis that these 
compounds make a negligible contribution to tropospheric ozone 
formation. These are: 1,1,1,2,2,3,3-heptafluoro-3-methoxy-propane;3-
ethoxy-1,1,1,2,3,4,4,5,5,6,6,6-dodecafluoro-2-(trifluoromethyl) hexane; 
1,1,1,2,3,3,3-heptafluoropropane; and Methyl formate.
    In the second action (69 FR 69304), EPA modified the definition of 
VOC at 40 CFR 51.100(s)(5) to exclude t-butyl acetate as a VOC for 
purposes of VOC emission limitations or VOC content requirements. While 
EPA determined that t-butyl acetate has a negligible contribution to 
tropospheric ozone formation, and need not be considered in determining 
source compliance with restrictions on VOC emissions, it also concluded 
that the compound should still be subject to all recordkeeping, 
emissions reporting, modeling, and inventory VOC requirements. The EPA 
final rule was effective December 29, 2004. The Nebraska regulation 
does not retain the recordkeeping, emissions reporting, modeling, and 
inventory VOC requirements.
    EPA has communicated with the state regarding this issue, and 
expects that Nebraska will revise its rule to retain the recordkeeping, 
emissions reporting, modeling, and inventory VOC requirements specified 
in the federal rule for sources using t-butyl acetate. Pending the 
state's revision of the rule, EPA is not approving the current 
submittal as it relates to t-butyl acetate. EPA is, however, approving 
the revision as it relates to the other compounds discussed above.
    Changes to Chapter 17, construction permits, clarify various terms 
in the regulation, add cross-references, and delete redundant language. 
Additionally, Chapter 17, 003.01 adopts into Title 129 the construction 
permit application fee structure adopted by the Nebraska Legislature in 
2004 at Neb. Rev. Stat. Sec.  81-1505.06. EPA had determined that these 
primarily administrative changes are consistent with Federal 
requirements.
    Changes to Chapter 17, 015 delineates the construction permit 
process to be used as a vehicle to accomplish other permitting needs 
when a construction permit is not actually required, including to 
establish enforceable limits to avoid otherwise applicable regulatory 
provisions, or to modify existing construction permits to incorporate 
modifications that cannot be processed otherwise. While EPA is 
approving this regulatory change as part of this SIP submission as 
consistent with EPA requirements, it should be noted that if this 
provision is used to establish requirements relating to another 
regulatory program required to be included in the SIP, such as a best 
available retrofit technology requirement to address Regional Haze, 
Nebraska would need to submit such requirements to EPA for SIP 
approval, in order to meet the requirements of the particular 
regulatory program. Therefore, EPA approval of this regulation does not 
imply approval of permit requirements which may be issued under the 
regulation.
    Changes to Chapter 30 clarify language related to open fires, 
exemptions, and permits. Additionally, Chapter 30, 002.01 expands 
allowable exceptions to the Nebraska Department of Environmental 
Quality open fire ban to include fires set solely for religious 
activities. According to the state's documentation, this change was 
intended to end confusion about the allowability of fires used in 
Native American sweat lodge ceremonies in those areas where the state 
has jurisdiction. EPA believes that fires set solely for religious 
purposes are similar in terms of size, frequency, and emissions to 
fires set for recreational purposes, which are already exempted from 
the open fire ban. Therefore, this change is considered a 
clarification, and it is not expected to result in additional emissions 
increases or a SIP relaxation.
    Changes to Chapter 30, 002.08 alter the wording to state that 
burning materials not authorized under a burn permit may result in 
withdrawal of the permit. The existing wording stating that burning 
unauthorized materials ``will result in immediate withdrawal of the 
permit'' is inconsistent with normal state enforcement procedures, 
which allow for case-by-case discretion. EPA notes that, in any event, 
burning of material not authorized under the permit would not be exempt 
from the open burning ban in the rule, and would, therefore, be a 
violation of the rule. Therefore, the change regarding withdrawal of 
permits does not affect the enforceability of the rule. EPA is

[[Page 48584]]

approving the rule revision on this basis.

What action is EPA taking?

    With the exception of the exemption of t-butyl acetate as discussed 
above, we are taking final action to approve revisions to the Nebraska 
SIP and Operating Permits Program. Approval of this revision will 
ensure consistency between the state and the Federally-approved rules. 
EPA has determined that these changes will not relax the SIP or 
adversely impact air emissions and will not substantively change the 
operating permits program.
    We are processing this action as a direct final action because the 
revisions make noncontroversial changes to the existing rules. 
Therefore, we do not anticipate any adverse comments. Please note that 
if EPA receives adverse comment on part of this rule and if that part 
can be severed from the remainder of the rule, EPA may adopt as final 
those parts of the rule that are not the subject of an adverse comment.

What does Federal approval of a state regulation mean to me?

    Enforcement of the state regulation before and after it is 
incorporated into the Federally-approved SIP is primarily a state 
responsibility. However, after the regulation is Federally approved, we 
are authorized to take enforcement action against violators. Citizens 
are also offered legal recourse to address violations as described in 
section 304 of the CAA.

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 
action merely approves state law as meeting Federal requirements and 
does not impose additional requirements beyond those imposed by state 
law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive 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 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.
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this action and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).
    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by October 12, 2010. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this action for the purposes of judicial review nor 
does it extend the time within which a petition for judicial review may 
be filed, and shall not postpone the effectiveness of such rule or 
action. Parties with objections to this direct final rule are 
encouraged to file a comment in response to the parallel notice of 
proposed rulemaking for this action published in the proposed rules 
section of today's Federal Register, rather than file an immediate 
petition for judicial review of this direct final rule, so that EPA can 
withdraw this direct final rule and address the comment in the proposed 
rulemaking. This action may not be challenged later in proceedings to 
enforce its requirements. (See section 307(b)(2).)

List of Subjects

40 CFR Part 52

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

40 CFR Part 70

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

    Dated: July 21, 2010.
William Rice,
Acting Regional Administrator, Region 7.

0
Chapter I, Title 40 of the Code of Federal Regulations is amended as 
follows:

PART 52--[AMENDED]

0
1. The authority citation for Part 52 continues to read as follows:

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

Subpart CC--Nebraska

0
2. In Sec.  52.1420(c) the table is amended by revising the entries for 
129-1, 129-17, and 129-30 to read as follows:

Sec.  52.1420  Identification of plan.

* * * * *
    (c) * * *

[[Page 48585]]

                                        EPA-Approved Nebraska Regulations
----------------------------------------------------------------------------------------------------------------
                                                          State
       Nebraska  citation                Title          effective      EPA approval date         Explanation
                                                          date
----------------------------------------------------------------------------------------------------------------
                                                STATE OF NEBRASKA
                                       Department of Environmental Quality
                                   Title 129--Nebraska Air Quality Regulations
----------------------------------------------------------------------------------------------------------------
129-1...........................  Definitions........     9/25/05  8/11/10 [insert FR page   Requirements for t-
                                                                    number where the          butyl acetate are
                                                                    document begins].         still in effect.

                                                  * * * * * * *
129-17..........................  Construction            9/25/05  8/11/10 [insert FR page   ...................
                                   Permits--When                    number where the
                                   Required.                        document begins].

                                                  * * * * * * *
129-30..........................  Open Fires,             9/25/05  8/11/10 [insert FR page   ...................
                                   Prohibited;                      number where the
                                   Exceptions.                      document begins].

                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

* * * * *

PART 70--[AMENDED]

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

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

Appendix A--[Amended]

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

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

* * * * *

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

* * * * *
    (j) The Nebraska Department of Environmental Quality approved a 
revision to NDEQ Title 129, Chapter 1 on June 2, 2005, which became 
effective September 25, 2005. This revision was submitted on May 27, 
2009. We are approving this program revision effective October 12, 
2010.
* * * * *
[FR Doc. 2010-19566 Filed 8-10-10; 8:45 am]
BILLING CODE 6560-50-P
```