( 

" 

STATE OF NEBRASKA 

.' Pa~e' tIeln~man Governor DEPARTMENT OF ENVIRONMENTAL QUAJlTY ' 

To: 

From: 

Date: 

RE: 

, Michael J.Linder 

MEMORANDUM 

Jon Bruning, Attorney Gen al 

Shelley KadeS~r Quality 

August 28, 2007 

Dir{!ctqr 

Suite 400, Th{! Atrium 

1200 eN' Street 

P.O. Bol< 989~2 

Lincoln, Nebraskil 68509-8922 

Phone (402) 471-218~ 

FAX (402) 471-2909 

website: www.deq.state.ne.us 

Title 129 - Nebraska Air Quality Regulations, Concise Explanatory 

Statement for Rules Related to PSD and Regional H~e, for August 2007 

EQCHearing 

SHORT DESCRIPTION: The purpose of this memorandum is to provide an explanation 

of additions and revisions to Title 129 that were adopted by the Environmental Quality 

Council (EQC) on August 17,2007. A major part bfthis package is the same package of 

rules adopted by the C01:lncil on September 8, 2006. Subsequent to its adoption by the 

EQC, the package was submitted to the Attorney General for review. In a letter dated 

December 15, 2006 (capy attached), the A_ttorney General rejected the entire package. 

Therefore the entire package was, with changes required by the Attorney General plus 

some additional changes. 

The package was adopted 'by the EQC with only minor typographical amendments as 

shownin the amendments listed on page 8 of this document. The numbers changed by the 

ameridments were not valid, NArCS codes, so the meaning of the amended sections was 

not altered. ", 

The.changes originally adopted by the EQC in September 2006 that were adopted again 

on August 17, 2007 (a) revised Chapter Ito respond to comments received from the 

U.S. Environmental Protection Agency(EP A) regarding Prevention of Sigillficant 

Deterioration (PSD) rules, corrected an omission and typographical errors, and corrected 

an error in alphabetical ordering of terms; (b) revised Chapter 14 to clarify language in , 

response to EP A's request; (c) revised Chapter 15 to respond to comm~nts from EP A and 

clarify language describIng a source's ohligation when a facility's equipment--~'------.. -.. ",--

configura,tion is changed but th~ change does not result in, increased emis~ions; (d) 

revised Chapter 17 to correct language, to clarify the policy requiring sources to pay a 

construction permit application fee when reqvesting a significant revIsion to a ' 

, construction permit, and to allow the construction perniitting process to be used to 

An Equal Opportunit!lAf/irmative Action Employer 

@ Printed with soy'lnk on 'recycled paper ~ 

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establish Best Available Retrofit Teclmology (BART) permits; (e) revised Chapter 19 to 

correct psb rules adopted in September 2005 and eliminate the option for early . 

termination of a Plantwide Applicability Liinitation (PAL); (f) cOrrected references in 

Chapter 27; (g) revised Chapter 34 to clarify NDEQ's authority to require re-testing; and 

(h) adopted a new Chapter 43 in Title 129 to include rules regulating iegiomil haze: 

Besides re-adoptingthepackage alr~ady adopted in September 2006, three additional 

categories of revisions and additional were adopted by the Council. 'The first category· 

was the change~Hequired by theAttomey General. They included (a) adding, in Chapter 

17, the provision that the construction pemlit applicatioh fee maybe based either on 

direct ermssions or oli the potential to emit; and (b) in Chapter 28, asecti.on infonning the 

reader that the federal regWatlons referred to iri this chapter may be obtained upon 

request from the Department. . 

The second additional category incorporated changes to the definition of "major source" 

in Chapter 2. These changes bring Title 129 into alignment with changes to fedetalrules 

issued on May 5,.2007. The changes remove ethanol plants from the list of speCific 

sources subject to the Prevention of Significant Deterioration (PSD) program if they emit 

100 tons or more per year of a regulated NSR pollutant. Ethanol plants that emit 250 tons 

or more per year of a regulated NSR pollutant will continue to be subject toPSD. The 

federal rule change and out rule also remove ethanol plants from the list of sources for 

which fugitive emissions must be included when measuring the amount of emissions for 

PSD or operating pemiit purposes. The EQC also changed the lists in Chapter 17 of 

sources that must count fugitiv~ emissions for non-PSD construction pennits. 

The third additional category changed Chapter 15 to allow pennittees· requesting a mihor 

permit revision 'to do so by submitting a written request rather than by submitting a 

permit application. . 

RATIONALE: Following adoption of major revisions to the PSD program in September 

2005,NDEQ and the Region 7 office of the EPA worked together on several minor 

revisions to asSUre EPA approval ofNDEQ;S State Implementation Plan (SIP)revision. 

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Most of the revisions adopted in September 2006 were related to this effort. The federal 

rule revision that relaxes the PSD requirements for ethanol plants were Issued in May , 

2007. The chEinge in the EQC meeting date from June :to August allqwedthe Departplent 

additional time to prepare rule change proposals' for the EQC's consideration, it was ' 

decided to ~cludethe .change affecting ethart.ol plants .. 

Additionally, in 2007, NDEQ must submit to EPA a SIP revision describing how 

Nebraska will meet its obligations under federal Regional. Haze rules to protect visibility .. 

, in Class 1 fed~ral areas, including ntlescoveringBest Available Retrofit TechD.ology 

(BART). As part of preparing the SIP, it is' necessary to establish, ~ithin Title 129, the 

Department's iegalauthority'to operate the program. For that reasoil,:the EQC adopted a 

new Chapter 43 on Visibiljty Protection and also adopted a provision in Chapter 17 . 

allowing the establlshrrient of BART pern1its under the constructionpennitting'process; \, 

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Significant revisions of construction pennits require a substantial expenditure of staff 

time. Therefore, a revision to the rules related to construction pennit application fees 

were adopted clarifying that theapplicati6n fee requirement for initial construction 

pennits extends to significant revisions as well. Minor revisions, on the other hand, 

shollld be as simple as possible to make which prompts the proposed change in the 

application procedure in Chapter 15 .. 

The Att.orney General is required to assure that rules in the Nebraska Administrative 

Cod~ are internally cop.sistent and consistent with ~tate .and fooeralstatu.tes .and 

coristitutions, For that reason, the Attorney General advised and we are implementing the 

changes describeEi in the description section above. 

SECTION-BY-SECTION DESCRIPTION: 

Chapter 1, 005: Clarifiesdefinitionof"Administnitor" as relating to the Administrator of 

the UIiitedStates Envitoi:1lnental Protection Agency rather than of the "Agency". 

Chapter 1, 010: Removes definition of "Agency" and leaves section 010 as "reserved". 

Chapter 1, 0 18.11: Adds phrase to assUre coverage by the definition of "applicable 

requirement" of all pennits ever issued under the PSD program .. 

Chapter 1, 024:. Revises definition of "a est Available Control Technology" to include all 

definitions of this t~nn as used in different programs. 

Chapter 1, 031: Add the word "or" at the end of the sectiOh. 

Chapter 1, 033: Adds a phrase stating that, for PSD purposes, the definition does not 

include the word "actual". 

Chapter 1, 051: Adds omitted section to rlefmitionof "emissions unit" 

Chapter 1, 076.02El: Adds back language related to prohibiting use of certain alternative 

fuel or raw material under pertnit.requirements established pursuant t040 CFR 52.21 or 

40 CFR 51.166 in addition to Chapter 19 . . 

Chapter 1, 076~02E2: Adds back language related to prohibiting use of certain alternative 

fuel onaw material undetpennit requ,lrements established pursuant to 40 CPR 52.21 or 

40 CFR 51.166 ip. addition to Chapter 19. . . 

Chapter 1, 076.02F: Adds. back langu~ge related to prohibiting use of certain alternative 

fuel or raw material under pennit requirements established pursuant to 40CFR 5221 or 

40 CFR 51-.166 in addition to Chapter 19. . .. . 

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Chapter 1, 083: Adds back the phrase "subject to 40 CFR 52.21 or rules approved by 

EP A-under 40 CFR '5 L 166." 

Chapter 1, 088: Renumbers and refoi:mats section to chlrlfy meaning of definition 

Chapter 1, 088:01C(cilrrently 088.03): Changes definitionof"contemporaneous" to 

match definitionm Chapter 19, seCtion 009.Ot· 

Chapter 1, 088.05C (currently would be 088,07C): Adds hack language inadvertently 

omitted which assures that double counting of any emissions reductions previously 

considered by the Department (or ill a prior EPA permit) is not allowed'for a netting 

exercise; 

Chapter 1, 090: Changes definition of "non-attainment. area" by substituting United 

States Environmental Protection Agency for the "Agency". ' 

Chapter 1, 099 through 110: Ren1.l11lbers terins to cortect errors in alphabetical ordering. 

Other changes to terms in these sections ru;e as follows: 

Chapter 1, 101 (now proposed as 100): ·Changes definition of "particulate matter 

emissions" by substituting United States Environmental Protection Agency for the 

"Agency". ' . 

Chapter 1, 102 (now proposed as 1.Q2): Changes definitioh of"PMIO emissions" by· 

substituting United States Environmental Protection Agency for the "Agency". 

Chapter. 1, 1 03: Removes "permit modification" because it is an obsolete term no longer 

used in Title 129. . 

Chapter 1, 105 (now proposed as 103): Changes definitiOIl O'f"permit revision" to apply 

to both operating andconstructlon permits as described iIi Chapter ,1 5. . 

Chapter 1, 130: Adds defmitjon of~'rephicemeIit unit" as used in the PSD progr~: 

Chapter 1, 131 throug!iJ34: Renumbered due to insertion of.new term as' sectiori'130~ 

Chapter 1, 135: . RenumbGrs, revises and clarifies definition of "section 502(b)(1O) , changes" '. . , 

Chapter 1, 136 through 149: Rehuplbered que to insertion of-new term as section :130.' 

Chapter 1, 149: Removes defiirition of "State·agency". 

Chapter 2, 002.20: Adds language from the federal nile excluding ethanol plants from the 

,definition of"chymical processplants''; thereby no longer requiqngethanol plants to . 

include fugitive emissions when measuring air emissions. ' 

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Chapter 2, 008.01: Removes ethanol plants emitting less than 250 tons per year of a 

regulat({d air pollut~t from being 'subj ect to P SD . 

. Chapter 14, 001: Clarifies that both.administrative and minor permit revisions are 

exempt from public participation requirements. Clfirifies that, unless otherwise provided 

"by rule", all constructiohpemiits shall provide for public notice, opporfunity for 

comment, . and, if requested, a hearing. 

Chapter i5, 001.01C:Changes '~and" to "or" at end of section. 

Chapter 15, 001.01E: Adds section specifying that for a PAL permit only, the minor 

revision process may be used to correct.either a typographical or a calculation error. 

Chapter 15, 002: Changes the term "modification" to "revision" to fit recently changed 

definitions. 

Chapter 15, 003.01C: Adds a phrase clarifying that the rtiinorrevision process Clll1110t be 

used to revise a plantwide applicability limit contained in a·P AL permit and clarifies. that 

the determinations mentioned include Best Available Control Technology (BACT) 

determinations. 

Chapter 15, 003.03: Change to allow permittees requesting a minor permit revision to do 

so by submitting a written request rather than by SUbmitting a permit application. 

Chapter 15, 005.02: Changes the instructions for submittihg a request for a ·significant 

permit revision by directing the source to Chapter 7 for operating permits and· Chapter 17 

for construction permits, rather than directing them to instructions within Chapter 15. 

Chapter 15, 006.01A: Revises wording to clarify that reopening a permit for additional 

applicable requirements is applicable only to sources holding a Class I or Class II .. 

operating permit. . . 

Chapter 15; 007: Removes "Class I" from second to last sentence. Clarifies language 

describing source's obligation to provide notification when facility's equipment is 

reconfigured but change does not result in increased emissions. 

Chapter IS, 007.01: Allows changes in the facility's equipment configuration without a 

permit revision, if the changes fit the Chapter 1 definition ()f a "502(b)(1 0) change". The 

Chapter 1. definition is changed to reflectsection 502{b )(10) of the Clean Air Act. 

Chapter 17, 001: Adds reference 'to. Chapter 19 to indicate that a source may be subject to 

permitting under Chapters 19 or 42 il1stead of under Chapter 17. 

Chapter 17, 001.02T: Excludes ethanol plants from the list 6f sources required to include 

fugitive emissions in measuring emis~iops. .. . 

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Chapter 17, 003: Adds therequireinentthat a sourc~ pay a constru~tion pennit 

application fee when requesting a significant pennit revision. 

Chapter '17, 003.01: li1 response to the Attorney General's d,irectiori, this section is reworded to clanfythat, in describing the criteria for detennining the constniction pennit 

application fee, the source is subject to the fee based on either direct emissions or the ' 

. potential to emit. The table beneath this section also reflects this change. . ' 

Chapter 17, 013.04T: Excludes ethanol plants froni,the list of sources required to include 

fugitive emissions in measuring emissions. ' 

Chapter 17, 014.02: Corrects tenninology regarding instructions for processing ' 

si~ficant revisions to constiuction pennits. ' 

Chapter 17, 014.04: Adds section to establish the construction pennitting process as the 

me¢hft!lism for BART pennits. 

Chapter 19, 001: Deletes adoption by reference to 40 CPR 52.21 sections (b) (2) (iii) (i), 

(j), and (k), related to clean coal technology demonstration projects. The rules contained 

in t:hesesectionsare already included in Chapter 1, section 076, within the definition of 

"major modification ". 

Chapter 19, 002: Adds sentence to clarify that projects not subject to PSD penpitting 

may still require a construction pennit pursuant to Chapter 17. 

Chapter 19, OOS.OSA: Arilends detennination.ofwhether fugitive emissions are 

quantifiable, to include .other means of measurement acceptable to the Department, in 

addition to the use of emission factors or mass balance equations. 

Chapter 1.9, 005.09: Adds phrase to clarify that, in calculating baseline actual emissions, . 

the average rate perUnit cannot be based on any period for which there is inadequate 

" infonnation ooncerriing non~cOmpliant emissions or the effect on emissions of new 

regulatory requirements. ' . . . . . . . , . 

Chapter 19, 006.03A: Ame~ds determination of whether fugitive emissions are 

quantifiable, to ip.clude other;Pleans of measurement acceptable to the Department, in 

addition to the use of emission factors. or mass balance equations. ' 

Chapter 19, 007: Adds sentence ini~dvertent1yomitted from definition of "potentiaito 

emit", ' . 

Chapter 19, 008.02: Adds section to clarify that "potential toerilif' may be used to 

calculate emissions increases for existing units as an alternative to using the "actual-toprojected-actual" meth6d~ ',. . ' 

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Chapter 19, 008.03: Renumb~red due to insertion ofriew section 008.02. 

Chapter 19, ·008.04: Renumbered due to insertion ofnyw section 008.02~ Also adds 

reference to new section 008.02. . . 

Chapter 19, 008.05: Renumbered due to insertion of new section 008.02. 

Ch~pter 19, 011.18: In accordance with direction from EPA, removes provision for early 

. termination of a PAL. Early termination is riot included in the federal PSD 'rule and EPA 

advised that ~dding it to our rule could constitute a disallowable relaxation of our State 

Implementation Plan. 

Chapter 19, 014.01: Reinove the inappropriate phrase "provided, that" from the end of 

the sentence. 

Chapter 19, 024.03A3:Eliminate reference to electric utility steam generating units 

because the requirements regarding emissions due to demand growth apply: to all 

categories of sources. 

Chapter 27, 002 and 003: Corrects references and adds clarifying acronyms . 

. Chapter 28, 002: Adds section, as required by the Attorney General, to inform the 

regulated conimunity that the federal regulations referred to in Chapter 28 may be 

obtained upon request from the Department. 

Chapter 34, .001: Change clarifies authorityofNDEQ to order sources to do testing when 

I?epartment authorities deem it necessary. 

Chapter 43: Adds ch~pter entitled Visibility Protection to add authority for the 

Department to comply with federal rules related to Regional Haze and Best Available 

. Retrofit Technology (BART). 

Chapter 43, 001:· Adopts by reference the definitions for the federal Regional Haze rule 

at 40 CPR 51.301. Also adopts Appendix Y(Guidelines for BART Determinations Under 

the Regional Haze Rule) ·~o 40 CFR 51 by reference. 

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Chapter 43, 002: Specifies the Departinent's authorityto require sources to conduct 

, . BART determinations .and submit them: to the Deparb:llent for review~ Requires the . 

Department to·issue a BARtpennit based on its review of the BART detemiination. 

Chapter 43, 003: Specifies that BARr pennits will hfi"issued through the. cdnstructio~ 

permitting proce~s described in Chapter 17. 

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Amendments to Title 129 Public Noticed Proposed Revisions 

PSDIBART package 

Proposed and Adopted by the EQC on August 17, 2007 

1. Chapter 2, section 00220: change NAICS code "313140" to "312140". 

2. Chapter 2, section 008.01: changeNAICS code "215193" to "325193". 

3. Chapter 17, section 001.02T:'change NAICS code "313140" to "312140". 

4. Chapter 17, section 013.04T: change NAICS qode "313140" to "312140". 

These proposed amendments are typographical corrections only, The incorrect numbers 

are not valid NAICS codes. 

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FISCAL IMPACT STATEMENT 

Agency: Environrn:ental Quality Prepared by: 

Title: 129 pate Prepared: 

Chapter 1, 2,14,15,17,19~27,34,43 Phone: 

Title Nam~: Title 129 . Statement Status: 

Nebraska Air Quality Regulations 

Type of Fiscal Impact: 

State Agency 

No Fiscal Impact 

Increase Costs 

Decrease Costs 

(X) BART 

( X)PSD 

( ) 

Estimated Quantification of Impact: 

State Agency: 

Political 

Subdivision 

(X) 

( ) 

( ) 

Shelley Kadedy 

June 26, 2007 . 

471-4299 

( ) Draft 

(X) Final 

Regulated Public 

. (X)BART 

( } 

(X) PSD 

There may be some cost to the agency due to requests to modify permits for existing ethanol 

plants, but the cost is not expected to be significant. 

Political Subdivision: 

Regulated Public: 

The requirement already existed in Chapter 17, section 014;02 that the Gonstruction permitting 

process was the means of processing significant revisions to construction permits: The language 

.and instructions are clarified in Chapters 15 and 17 in this proposal. Therefore, . the requirement 

for sources to pay the permit. application fee for significant revisions is .not an increased cost to 

the reg1Jlatedpublic. . 

There is a substantial cost to .BART-eligible sources· for the required modeling under the BART 

program. As ofnow~ it is unknown whether and what cqntrols any soUrce in Nebraska ~ay have 

to insta1~ to cOniply with BART, but the cost for controls could also be substantial (A portion of 

IP1 analysis ·preparedby EPA of projected costs and benefitS of the BARTprogram nationally is 

attached). However, these sOurces would be subject to these requirenients and costs whether the 

. state adopts the proposed rules and the program is admiiris.tered by NDEQ~ or whethedhe 

.. program is adininistered in Nebraska by EPA. Therefore, there are no additional costs to the 

regulated public incurred through adoption of these rules .. 

There may be a some savings to new and existing ethanol plants due to the chaIi.ges in ethanol 

rules, but the change is' not expected to be significant. .. 
NEBRASKA ADMINISTRATIVE CODE 

Title 129 - Department of Environmental Quality 

Chapter 27 - HAZARDOUS AIR POLLUTANTS, MAXIMUM ACHIEVABLE 

CONTROL TECHNOLOGY (MACT) 

001 Notwithstanding any other provisions of these regulations, Sections 63.70 

through 63.81 of Title 40 Code of Federal Regulations (CFR) Part 63, Subpart D, 

effective December 29, 1992, pertaining to compliance extensions for early 

reductions, are hereby adopted and incorporated by reference. 

002 Requirement for new, modified, or reconstructed sources of hazardous air 

pollutants. A permit as required under section OOl.OIHG of Chapter 17 will be 

issued for construction, reconstruction, or modification of a source with the 

potential to emit any hazardous air pollutant in an amount equal to or in excess of 

two and one-half (2.5) tons/year or more of any hazardous air pollutant or an 

aggregate of ten (10.0) tons/year or more of any hazardous air pollutants only if 

best available control technology (BACT), as determined by the Director, is 

applied for each hazardous air pollutant and the source will comply with all other 

requirements of these regulations. In no event shall application of best available 

control technology result in emissions of any pollutant which would exceed the 

emissions allowed by any applicable standard under Chapters 18,23,27, or 28. 

003 Requirements for new or reconstructed major sources of hazardous air 

pollutants. A permit as required under section 00I.01HG of Chapter 17 for 

construction or reconstruction of a source with the potential to emit an amount 

equal to or in excess of 10 tons per year of any hazardous air pollutant or 25 tons 

per year or more of any combination of hazardous air pollutants, will only be 

issued if maximum achievable control technology (MACT), as determined by the 

Director, is applied, and the source is required to comply with all other 

requirements of these regulations. 

003 .01 For purposes of this section, 40 CFR Pari 63, sections 63.40(b); 

63.41; 63.42(c); 63.43(a), (b), and (d); and 63.44, as in effect on 

December 27, 1996, are hereby adopted and incorporated by reference. 

Proposed changes to August 2007 on page 1. 

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27-1 
Title 129 

Chapter 27 

003.02 Except as provided in 003.01, the provisions and procedures of 

Chapter 17 and 002 above apply. 

004 This section is reserved for requirements to be established under Section 

112(i) of the Act. 

005 Notwithstanding any other provisions of these regulations, Sections 63.50 

through 63 .56 of Title 40 Code of Federal Regulations (CFR) Part 63, Subpart B, 

as amended at 67 Federal Register 16582 on April 5, 2002, pertaining to 

maximum achievable control technology determinations for emission units subject 

to case-by-case determination of equivalent emission limitations, are hereby 

adopted and incorporated by reference. 

006 This section is reserved for requirements to be established under Section 

112(r) of the Act. 

Enabling Legislation: Neb. Rev. Stat. §§81-1504(1)(2); 81-1505(12)(16) 

Legal Citation: Title 129, Ch. 27, Nebraska Department of Environmental 

Quality 

27-2 Proposed changes to August 2007 on page 1. 
NEBRASKA ADMINISTRATIVE CODE 

Title 129 - Department of Environmental Quality 

Chapter 43 - VISIBILITY PROTECTION 

001 Code of Federal Regulations, Title 40, pmi 51.301 (Definitions), as amended, is 

incorporated by reference. Appendix Y (Guidelines for BART Detenllinations Under 

the Regional Haze Rule) of 40 CFR 51, is incorporated by reference. 

002 The owner or operator of a stationary source shall submit a Best Available 

Retrofit Technology (BART) detel111ination to the Department if the Department 

detenllines the stationary source is subject to BART according to 40 CFR 51, 

Appendix Y. The owner or operator shall prepare the BART determination in 

accordance with Appendix Y of 40 CFR 51 as directed by the Director. The owner or 

operator of a stationary source shall submit the BART detennination to the 

Depmiment for review. The Depmiment will issue a pennit to the source, pursuant to 

section 003, giving consideration to the source's BART determination. 

003 The BART requirements for any BART-eligible source that is subject to BART 

shall be incorporated into a construction penni t in accordance with Chapter 17, 

section 014.04. 

Enabling Legislation: Neb. Rev. Stat. §§81-1504(1)(2); 81-1505(12)(16) 

Legal Citation: Title 129, Ch. 43, Nebraska Department of Environmental Quality 

Proposed addition of entirely new chapter for August 2007 EQC 43-1 

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