62832 Federal Register / Vol. 79, No. 203 / Tuesday, October 21, 2014 / Rules and Regulations 

List of Subjects in 33 CFR Part 165 

Harbors, Marine safety, Navigation 

(water), Reporting and recordkeeping 

requirements, Security measures, 

Waterways. 

For the reasons discussed in the 

preamble, the Coast Guard amends 33 

CFR Part 165 as follows: 

PART 165—REGULATED NAVIGATION 

AREAS AND LIMITED ACCESS AREAS 

■ 1. The authority citation for Part 165 

continues to read as follows: 

Authority: 33 U.S.C. 1226; 1231; 46 U.S.C. 

Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; 

33 CFR 1.05–1, 6.04–1, 6.04–6, and 160.5; 

Pub. L. 107–295, 116 Stat. 2064; Department 

of Homeland Security Delegation No. 0170.1. 

■ 2. Add § 165.1341 to read as follows: 

§ 165.1341 Safety Zone; Portland Dragon 

Boat Races, Portland, OR. 

(a) Safety Zones. The following area is 

a designated safety zone: 

(1) Location. This safety zone is 

enclosed by four lines along the western 

side of the Willamette River extending 

from Tom McCall Waterfront Park 

between the Hawthorne and Marquam 

Bridges, Portland, OR: line one starting 

at 45–30′49′′ N/122–40′24′′ W then 

heading east to 45–30′49′′ N/122–40′22′′ 

W then heading south to 45–30′29′′ N/ 

122–40′08′′ W then heading west to 45– 

30′26′′ N/122–40′14′′ W then heading 

north ending at 45–30′49′′ 

N/122–40′24′′ W. 

(2) Enforcement Period. This safety 

zone will be enforced from 8:00 a.m. to 

6:00 p.m. on the first or second Saturday 

and Sunday of September. 

(b) Regulations. In accordance with 

the general regulations in 33 CFR Part 

165, subpart C, no person may enter or 

remain in the safety zone created in this 

section or bring, cause to be brought, or 

allow to remain in the safety zone 

created in this section any vehicle, 

vessel, or object unless authorized by 

the Captain of the Port or his designated 

representative. The Captain of the Port 

may be assisted by other Federal, State, 

or local agencies with the enforcement 

of the safety zone. 

Dated: September 4, 2014. 

D.J. Travers, 

Captain, U.S. Coast Guard, Captain of the 

Port, Sector Columbia River. 

[FR Doc. 2014–24908 Filed 10–20–14; 8:45 am] 

BILLING CODE 9110–04–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R07–OAR–2014–0685; FRL–9918–13– 

Region 7] 

Approval and Promulgation of 

Implementation Plans; State of 

Nebraska; Infrastructure SIP 

Requirements for the 2008 Lead 

National Ambient Air Quality 

Standards 

AGENCY: Environmental Protection 

Agency. 

ACTION: Direct final rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is taking direct final 

action to approve two State 

Implementation Plan (SIP) submissions 

from the State of Nebraska. EPA is 

approving elements of a SIP submission 

from the State of Nebraska that 

addresses the applicable requirements 

of the Clean Air Act (CAA) section 110 

for the 2008 National Ambient Air 

Quality Standards (NAAQS) for Lead 

(Pb). Section 110(a) of the CAA requires 

that each state adopt and submit a SIP 

to support implementation, 

maintenance, and enforcement of each 

new or revised NAAQS promulgated by 

EPA. These SIPs are commonly referred 

to as ‘‘infrastructure’’ SIPs. The 

infrastructure requirements are designed 

to ensure that the structural components 

of each state’s air quality management 

program are adequate to meet the state’s 

responsibilities under the CAA. 

EPA is also approving an additional 

SIP submission from the State of 

Nebraska that addresses section 128 of 

the CAA and supports requirements 

associated with infrastructure SIPs. 

DATES: This direct final rule will be 

effective December 22, 2014, without 

further notice, unless EPA receives 

adverse comment by November 20, 

2014. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R07– 

OAR–2014–0685, by one of the 

following methods: 

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

the on-line instructions for submitting 

comments. 

2. Email: crable.gregory@epa.gov. 

3. Mail: Mr. Gregory Crable, Air 

Planning and Development Branch, U.S. 

Environmental Protection Agency, 

Region 7, Air and Waste Management 

Division, 11201 Renner Boulevard, 

Lenexa, Kansas 66219. 

4. Hand Delivery or Courier: Deliver 

your comments to Mr. Gregory Crable, 

Air Planning and Development Branch, 

U.S. Environmental Protection Agency, 

Region 7, Air and Waste Management 

Division, 11201 Renner Boulevard, 

Lenexa, Kansas 66219. 

Instructions: Direct your comments to 

Docket ID No. EPA–R07–OAR–2014– 

0685. 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 email 

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 email comment directly 

to EPA without going through http://

www.regulations.gov, your email 

address will be automatically captured 

and included as part of the comment 

that is placed in the public docket and 

made available on the Internet. If you 

submit an electronic comment, EPA 

recommends that you include your 

name and other contact information in 

the body of your comment and with any 

disk or CD–ROM you submit. If EPA 

cannot read your comment due to 

technical difficulties and cannot contact 

you for clarification, EPA may not be 

able to consider your comment. 

Electronic files should avoid the use of 

special characters, any form of 

encryption, and should be free of any 

defects or viruses. 

Docket: All documents in the 

electronic docket are listed in the 

http://www.regulations.gov index. 

Although listed in the index, some 

information is not publicly available, 

i.e., CBI or other information whose 

disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, will be publicly 

available only in hard copy. Publicly 

available docket materials are available 

either electronically at http://

www.regulations.gov or in hard copy at 

U.S. Environmental Protection Agency, 

Region 7, 11201 Renner Boulevard, 

Lenexa, Kansas 66219 from 8:00 a.m. to 

4:30 p.m., Monday through Friday, 

excluding legal holidays. The interested 

persons wanting to examine these 

documents should make an 

appointment with the office at least 24 

hours in advance. 


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Federal Register / Vol. 79, No. 203 / Tuesday, October 21, 2014 / Rules and Regulations 62833 

1On August 22, 2013, Nebraska submitted 

provisions that address conflict of interest 

requirements in section 128 of the CAA as part of 

its infrastructure SIP submission for the 2010 Sulfur 

Dioxide (SO2) NAAQS. On March 11, 2014, 

Nebraska clarified its intent to include provisions 

that address section 128 of the CAA for approval 

into Nebraska’s SIP. EPA believes these conflict of 

interest provisions are applicable to all NAAQS. 

Therefore, as part of today’s rulemaking for the 

2008 Pb NAAQS, we are approving these provisions 

into the Nebraska SIP. See Section IV for further 

discussion. 

2Although the effective date of the Federal 

Register notice for the final rule was January 12, 

2009, the rule was signed by the Administrator and 

publicly disseminated on October 15, 2008. 

Therefore, the deadline for submittal of 

infrastructure SIPs for the 2008 Pb NAAQS was 

October 15, 2011. 

3Stephen D. Page, Director, Air Quality Policy 

Division, Office of Air Quality Planning and 

Standards, ‘‘Guidance on Infrastructure State 

Implementation Plan (SIP) Elements Required 

Under Sections 110(a)(1) and 110(a)(2) for the 2008 

Lead (Pb) National Ambient Air Quality Standards 

(NAAQS),’’ Memorandum to EPA Regional Air 

Division Directors, Regions I–X, October 14, 2011 

(2011 Lead Infrastructure SIP Guidance). 

4For example: section 110(a)(2)(E)(i) provides 

that states must provide assurances that they have 

adequate legal authority under state and local law 

to carry out the SIP; section 110(a)(2)(C) provides 

that states must have a SIP-approved program to 

address certain sources as required by part C of title 

I of the CAA; and section 110(a)(2)(G) provides that 

states must have legal authority to address 

emergencies as well as contingency plans that are 

triggered in the event of such emergencies. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Gregory Crable, Air Planning and 

Development Branch, U.S. 

Environmental Protection Agency, 

Region 7, 11201 Renner Boulevard, 

Lenexa, KS 66219; telephone number: 

(913) 551–7391; fax number: (913) 551– 

7065; email address: crable.gregory@

epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document whenever 

‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we refer 

to EPA. This section provides additional 

information by addressing the following 

questions: 

I. What is being addressed in this document? 

II. What are the applicable elements under 

sections 110(a)(1) and (2) related to the 

2008 Pb NAAQS? 

III. What is EPA’s approach to the review of 

infrastructure SIP submissions? 

IV. What is EPA’s evaluation of how the state 

addressed the relevant elements of 

sections 110(a)(1) and (2)? 

V. What action is EPA taking? 

VI. Statutory and Executive Order Review 

I. What is being addressed in this 

document? 

EPA is taking direct final action to 

approve two Nebraska State 

Implementation Plan (SIP) submissions. 

First, EPA is approving an October 18, 

2011, SIP submission from Nebraska 

that addresses the infrastructure 

requirements of CAA sections 110(a)(1) 

and (a)(2) for the 2008 Pb NAAQS. The 

requirement for states to make a SIP 

submission of this type arises out of 

CAA section 110(a)(1). Pursuant to 

section 110(a)(1), states must make SIP 

submissions ‘‘within 3 years (or such 

shorter period as the Administrator may 

prescribe) after the promulgation of a 

national primary ambient air quality 

standard (or any revision thereof),’’ and 

these SIP submissions are to provide for 

the ‘‘implementation, maintenance, and 

enforcement’’ of such NAAQS. The 

statute directly imposes on states the 

duty to make these SIP submissions, 

and the requirement to make the 

submissions is not conditioned upon 

EPA’s taking any action other than 

promulgating a new or revised NAAQS. 

Section 110(a)(2) includes a list of 

specific elements that ‘‘[e]ach such 

plan’’ submission must address. 

EPA has historically referred to these 

SIP submissions made for the purpose 

of satisfying the requirements of CAA 

sections 110(a)(1) and (a)(2) as 

‘‘infrastructure SIP’’ submissions. 

Although the term ‘‘infrastructure SIP’’ 

does not appear in the CAA, EPA uses 

the term to distinguish this particular 

type of SIP submission from 

submissions that are intended to satisfy 

other SIP requirements under the CAA, 

such as ‘‘nonattainment SIP’’ or 

‘‘attainment plan SIP’’ submissions to 

address the nonattainment planning 

requirements of part D of title I of the 

CAA, ‘‘regional haze SIP’’ submissions 

required by EPA rule to address the 

visibility protection requirements of 

CAA section 169A, and nonattainment 

new source review permit program 

submissions to address the permit 

requirements of CAA, title I, part D. 

EPA also is approving a March 11, 

2014 request to include conflict of 

interest provisions into the Nebraska 

SIP. This submission addresses the 

conflict of interest provisions in section 

128 of the CAA as it relates to element 

E of the infrastructure SIP.1

II. What are the applicable elements 

under sections 110(a)(1) and (2) related 

to the 2008 Pb NAAQS? 

On October 15, 2008, EPA revised the 

primary and secondary Pb NAAQS 

(hereafter the 2008 Pb NAAQS). The 

level of the primary (health-based) 

standard was revised to 0.15 

micrograms per cubic meter (mg/m3), 

measured as total suspended particles 

(TSP) and not to be exceeded with an 

averaging time of a rolling 3-month 

period. EPA also revised the secondary 

(welfare-based) standard to be identical 

to the primary standard (73 FR 66964).2

For the 2008 Pb NAAQS, states 

typically have met many of the basic 

program elements required in section 

110(a)(2) through earlier SIP 

submissions in connection with 

previous NAAQS. Nevertheless, 

pursuant to section 110(a)(1), states 

have to review and revise, as 

appropriate, their existing SIPs to 

ensure that they are adequate to address 

the 2008 Pb NAAQS. To assist states in 

meeting this statutory requirement, EPA 

issued guidance on October 14, 2011, 

addressing the infrastructure SIP 

elements required under sections 

110(a)(1) and (2) for the 2008 Pb 

NAAQS.3 EPA will address these 

elements below under the following 

headings: (A) Emission limits and other 

control measures; (B) Ambient air 

quality monitoring/data system; (C) 

Program for enforcement of control 

measures (PSD, New Source Review for 

nonattainment areas, and construction 

and modification of all stationary 

sources); (D) Interstate and international 

transport; (E) Adequate authority, 

resources, implementation, and 

oversight; (F) Stationary source 

monitoring system; (G) Emergency 

authority; (H) Future SIP revisions; (I) 

Nonattainment areas; (J) Consultation 

with government officials, public 

notification, prevention of significant 

deterioration (PSD), and visibility 

protection; (K) Air quality and 

modeling/data; (L) Permitting fees; and 

(M) Consultation/participation by 

affected local entities. 

III. What is EPA’s approach to the 

review of infrastructure SIP 

submissions? 

Section 110(a)(1) addresses the timing 

and general requirements for 

infrastructure SIP submissions, and 

section 110(a)(2) provides more details 

concerning the required contents of 

these submissions. The list of required 

elements provided in section 110(a)(2) 

contains a wide variety of disparate 

provisions, some of which pertain to 

required legal authority, some of which 

pertain to required substantive program 

provisions, and some of which pertain 

to requirements for both authority and 

substantive program provisions.4 EPA 

therefore believes that while the timing 

requirement in section 110(a)(1) is 

unambiguous, some of the other 

statutory provisions are ambiguous. In 

particular, EPA believes that the list of 

required elements for infrastructure SIP 

submissions provided in section 

110(a)(2) contains ambiguities 

concerning what is required for 


asabaliauskas on DSK5VPTVN1PROD with RULES
62834 Federal Register / Vol. 79, No. 203 / Tuesday, October 21, 2014 / Rules and Regulations 

5See, e.g., ‘‘Rule To Reduce Interstate Transport 

of Fine Particulate Matter and Ozone (Clean Air 

Interstate Rule); Revisions to Acid Rain Program; 

Revisions to the NOX SIP Call; Final Rule,’’ 70 FR 

25162, at 25163–65 (May 12, 2005) (explaining 

relationship between timing requirement of section 

110(a)(2)(D) versus section 110(a)(2)(I)). 

6EPA notes that this ambiguity within section 

110(a)(2) is heightened by the fact that various 

subparts of part D set specific dates for submission 

of certain types of SIP submissions in designated 

nonattainment areas for various pollutants. Note, 

e.g., that section 182(a)(1) provides specific dates 

for submission of emissions inventories for the 

ozone NAAQS. Some of these specific dates are 

necessarily later than three years after promulgation 

of the new or revised NAAQS. 

7See, e.g., ‘‘Approval and Promulgation of 

Implementation Plans; New Mexico; Revisions to 

the New Source Review (NSR) State 

Implementation Plan (SIP); Prevention of 

Significant Deterioration (PSD) and Nonattainment 

New Source Review (NNSR) Permitting,’’ 78 FR 

4339 (January 22, 2013) (EPA’s final action 

approving the structural PSD elements of the New 

Mexico SIP submitted by the State separately to 

meet the requirements of EPA’s 2008 PM2.5 NSR 

rule), and ‘‘Approval and Promulgation of Air 

Quality Implementation Plans; New Mexico; 

Infrastructure and Interstate Transport 

Requirements for the 2006 PM2.5 NAAQS,’’ (78 FR 

4337) (January 22, 2013) (EPA’s final action on the 

infrastructure SIP for the 2006 PM2.5 NAAQS). 

8On December 14, 2007, the State of Tennessee, 

through the Tennessee Department of Environment 

and Conservation, made a SIP revision to EPA 

demonstrating that the State meets the requirements 

of sections 110(a)(1) and (2). EPA proposed action 

for infrastructure SIP elements (C) and (J) on 

January 23, 2012 (77 FR 3213) and took final action 

on March 14, 2012 (77 FR 14976). On April 16, 

2012 (77 FR 22533) and July 23, 2012 (77 FR 

42997), EPA took separate proposed and final 

actions on all other section 110(a)(2) infrastructure 

SIP elements of Tennessee’s December 14, 2007 

submittal. 

9For example, implementation of the 1997 PM2.5

NAAQS required the deployment of a system of 

new monitors to measure ambient levels of that new 

indicator species for the new NAAQS. 

10EPA notes, however, that nothing in the CAA 

requires EPA to provide guidance or to promulgate 

regulations for infrastructure SIP submissions. The 

CAA directly applies to states and requires the 

submission of infrastructure SIP submissions, 

regardless of whether or not EPA provides guidance 

or regulations pertaining to such submissions. EPA 

elects to issue such guidance in order to assist 

states, as appropriate. 

inclusion in an infrastructure SIP 

submission. 

The following examples of 

ambiguities illustrate the need for EPA 

to interpret some section 110(a)(1) and 

section 110(a)(2) requirements with 

respect to infrastructure SIP 

submissions for a given new or revised 

NAAQS. One example of ambiguity is 

that section 110(a)(2) requires that 

‘‘each’’ SIP submission must meet the 

list of requirements therein, while EPA 

has long noted that this literal reading 

of the statute is internally inconsistent 

and would create a conflict with the 

nonattainment provisions in part D of 

title I of the Act, which specifically 

address nonattainment SIP 

requirements.5 Section 110(a)(2)(I) 

pertains to nonattainment SIP 

requirements and part D addresses 

when attainment plan SIP submissions 

to address nonattainment area 

requirements are due. For example, 

section 172(b) requires EPA to establish 

a schedule for submission of such plans 

for certain pollutants when the 

Administrator promulgates the 

designation of an area as nonattainment, 

and section 107(d)(1)(B) allows up to 

two years or in some cases three years, 

for such designations to be 

promulgated.6 This ambiguity illustrates 

that rather than apply all the stated 

requirements of section 110(a)(2) in a 

strict literal sense, EPA must determine 

which provisions of section 110(a)(2) 

are applicable for a particular 

infrastructure SIP submission. 

Another example of ambiguity within 

sections 110(a)(1) and 110(a)(2) with 

respect to infrastructure SIPs pertains to 

whether states must meet all of the 

infrastructure SIP requirements in a 

single SIP submission, and whether EPA 

must act upon such SIP submission in 

a single action. Although section 

110(a)(1) directs states to submit ‘‘a 

plan’’ to meet these requirements, EPA 

interprets the CAA to allow states to 

make multiple SIP submissions 

separately addressing infrastructure SIP 

elements for the same NAAQS. If states 

elect to make such multiple SIP 

submissions to meet the infrastructure 

SIP requirements, EPA can elect to act 

on such submissions either individually 

or in a larger combined action.7

Similarly, EPA interprets the CAA to 

allow it to take action on the individual 

parts of one larger, comprehensive 

infrastructure SIP submission for a 

given NAAQS without concurrent 

action on the entire submission. For 

example, EPA has sometimes elected to 

act at different times on various 

elements and sub-elements of the same 

infrastructure SIP submission.8

Ambiguities within sections 110(a)(1) 

and 110(a)(2) may also arise with 

respect to infrastructure SIP submission 

requirements for different NAAQS. 

Thus, EPA notes that not every element 

of section 110(a)(2) would be relevant, 

or as relevant, or relevant in the same 

way, for each new or revised NAAQS. 

The states’ attendant infrastructure SIP 

submissions for each NAAQS therefore 

could be different. For example, the 

monitoring requirements that a state 

might need to meet in its infrastructure 

SIP submission for purposes of section 

110(a)(2)(B) could be very different for 

different pollutants, for example 

because the content and scope of a 

state’s infrastructure SIP submission to 

meet this element might be very 

different for an entirely new NAAQS 

than for a minor revision to an existing 

NAAQS.9

EPA notes that interpretation of 

section 110(a)(2) is also necessary when 

EPA reviews other types of SIP 

submissions required under the CAA. 

Therefore, as with infrastructure SIP 

submissions, EPA also has to identify 

and interpret the relevant elements of 

section 110(a)(2) that logically apply to 

these other types of SIP submissions. 

For example, section 172(c)(7) requires 

that attainment plan SIP submissions 

required by part D have to meet the 

‘‘applicable requirements’’ of section 

110(a)(2). Thus, for example, attainment 

plan SIP submissions must meet the 

requirements of section 110(a)(2)(A) 

regarding enforceable emission limits 

and control measures and section 

110(a)(2)(E)(i) regarding air agency 

resources and authority. By contrast, it 

is clear that attainment plan SIP 

submissions required by part D would 

not need to meet the portion of section 

110(a)(2)(C) that pertains to the PSD 

program required in part C of title I of 

the CAA, because PSD does not apply 

to a pollutant for which an area is 

designated nonattainment and thus 

subject to part D planning requirements. 

As this example illustrates, each type of 

SIP submission may implicate some 

elements of section 110(a)(2) but not 

others. 

Given the potential for ambiguity in 

some of the statutory language of section 

110(a)(1) and section 110(a)(2), EPA 

believes that it is appropriate to 

interpret the ambiguous portions of 

section 110(a)(1) and section 110(a)(2) 

in the context of acting on a particular 

SIP submission. In other words, EPA 

assumes that Congress could not have 

intended that each and every SIP 

submission, regardless of the NAAQS in 

question or the history of SIP 

development for the relevant pollutant, 

would meet each of the requirements, or 

meet each of them in the same way. 

Therefore, EPA has adopted an 

approach under which it reviews 

infrastructure SIP submissions against 

the list of elements in section 110(a)(2), 

but only to the extent each element 

applies for that particular NAAQS. 

Historically, EPA has elected to use 

guidance documents to make 

recommendations to states for 

infrastructure SIPs, in some cases 

conveying needed interpretations on 

newly arising issues and in some cases 

conveying interpretations that have 

already been developed and applied to 

individual SIP submissions for 

particular elements.10 EPA most 

recently issued guidance for 


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Federal Register / Vol. 79, No. 203 / Tuesday, October 21, 2014 / Rules and Regulations 62835 

11 ‘‘Guidance on Infrastructure State 

Implementation Plan (SIP) Elements under Clean 

Air Act Sections 110(a)(1) and 110(a)(2),’’ 

Memorandum from Stephen D. Page, September 13, 

2013. 

12EPA’s September 13, 2013, guidance did not 

make recommendations with respect to 

infrastructure SIP submissions to address section 

110(a)(2)(D)(i)(I). EPA issued the guidance shortly 

after the U.S. Supreme Court agreed to review the 

D.C. Circuit decision in EME Homer City, 696 F.3d7 

(D.C. Cir. 2012) which had interpreted the 

requirements of section 110(a)(2)(D)(i)(I). In light of 

the uncertainty created by ongoing litigation, EPA 

elected not to provide additional guidance on the 

requirements of section 110(a)(2)(D)(i)(I) at that 

time. As the guidance is neither binding nor 

required by statute, whether EPA elects to provide 

guidance on a particular section has no impact on 

a state’s CAA obligations. 

13By contrast, EPA notes that if a state were to 

include a new provision in an infrastructure SIP 

submission that contained a legal deficiency, such 

as a new exemption for excess emissions during 

SSM events, then EPA would need to evaluate that 

provision for compliance against the rubric of 

applicable CAA requirements in the context of the 

action on the infrastructure SIP. 

infrastructure SIPs on September 13, 

2013 (2013 Guidance).11 EPA developed 

this document to provide states with upto-date guidance for infrastructure SIPs 

for any new or revised NAAQS. While 

today’s proposed action relies on the 

specific guidance issued for the 2008 Pb 

NAAQS, we have also considered this 

more recent 2013 guidance where 

applicable (although not specifically 

issued for the 2008 Pb NAAQS) and 

have found no conflicts between the 

issued guidance and review of 

Nebraska’s SIP submission. Within the 

2013 guidance, EPA describes the duty 

of states to make infrastructure SIP 

submissions to meet basic structural SIP 

requirements within three years of 

promulgation of a new or revised 

NAAQS. EPA also made 

recommendations about many specific 

subsections of section 110(a)(2) that are 

relevant in the context of infrastructure 

SIP submissions.12 The guidance also 

discusses the substantively important 

issues that are germane to certain 

subsections of section 110(a)(2). 

Significantly, EPA interprets sections 

110(a)(1) and 110(a)(2) such that 

infrastructure SIP submissions need to 

address certain issues and need not 

address others. Accordingly, EPA 

reviews each infrastructure SIP 

submission for compliance with the 

applicable statutory provisions of 

section 110(a)(2), as appropriate. 

As an example, section 110(a)(2)(E)(ii) 

is a required element of section 

110(a)(2) for infrastructure SIP 

submissions. Under this element, a state 

must meet the substantive requirements 

of section 128, which pertain to state 

boards that approve permits or 

enforcement orders and heads of 

executive agencies with similar powers. 

Thus, EPA reviews infrastructure SIP 

submissions to ensure that the state’s 

SIP appropriately addresses the 

requirements of section 110(a)(2)(E)(ii) 

and section 128. The 2013 Guidance 

explains EPA’s interpretation that there 

may be a variety of ways by which states 

can appropriately address these 

substantive statutory requirements, 

depending on the structure of an 

individual state’s permitting or 

enforcement program (e.g., whether 

permits and enforcement orders are 

approved by a multi-member board or 

by a head of an executive agency). 

However they are addressed by the 

state, the substantive requirements of 

section 128 are necessarily included in 

EPA’s evaluation of infrastructure SIP 

submissions because section 

110(a)(2)(E)(ii) explicitly requires that 

the state satisfy the provisions of section 

128. 

As another example, EPA’s review of 

infrastructure SIP submissions with 

respect to the PSD program 

requirements in sections 110(a)(2)(C), 

(D)(i)(II), and (J) focuses upon the 

structural PSD program requirements 

contained in part C and EPA’s PSD 

regulations. Structural PSD program 

requirements include provisions 

necessary for the PSD program to 

address all regulated sources and New 

Source Review (NSR) pollutants, 

including greenhouse gases (GHGs). By 

contrast, structural PSD program 

requirements do not include provisions 

that are not required under EPA’s 

regulations at 40 CFR 51.166 but are 

merely available as an option for the 

state, such as the option to provide 

grandfathering of complete permit 

applications with respect to the 2012 

PM2.5 NAAQS. Accordingly, the latter 

optional provisions are types of 

provisions EPA considers irrelevant in 

the context of an infrastructure SIP 

action. 

For other section 110(a)(2) elements, 

however, EPA’s review of a state’s 

infrastructure SIP submission focuses 

on assuring that the state’s SIP meets 

basic structural requirements. For 

example, section 110(a)(2)(C) includes, 

inter alia, the requirement that states 

have a program to regulate minor new 

sources. Thus, EPA evaluates whether 

the state has an EPA-approved minor 

NSR program and whether the program 

addresses the pollutants relevant to that 

NAAQS. In the context of acting on an 

infrastructure SIP submission, however, 

EPA does not think it is necessary to 

conduct a review of each and every 

provision of a state’s existing minor 

source program (i.e., already in the 

existing SIP) for compliance with the 

requirements of the CAA and EPA’s 

regulations that pertain to such 

programs. 

With respect to certain other issues, 

EPA does not believe that an action on 

a state’s infrastructure SIP submission is 

necessarily the appropriate type of 

action in which to address possible 

deficiencies in a state’s existing SIP. 

These issues include: (i) Existing 

provisions related to excess emissions 

from sources during periods of startup, 

shutdown, or malfunction that may be 

contrary to the CAA and EPA’s policies 

addressing such excess emissions 

(‘‘SSM’’); (ii) existing provisions related 

to ‘‘director’s variance’’ or ‘‘director’s 

discretion’’ that may be contrary to the 

CAA because they purport to allow 

revisions to SIP-approved emissions 

limits while limiting public process or 

not requiring further approval by EPA; 

and (iii) existing provisions for PSD 

programs that may be inconsistent with 

current requirements of EPA’s ‘‘Final 

NSR Improvement Rule,’’ 67 FR 80186 

(December 31, 2002), as amended by 72 

FR 32526 (June 13, 2007) (‘‘NSR 

Reform’’). Thus, EPA believes it may 

approve an infrastructure SIP 

submission without scrutinizing the 

totality of the existing SIP for such 

potentially deficient provisions and may 

approve the submission even if it is 

aware of such existing provisions.13 It is 

important to note that EPA’s approval of 

a state’s infrastructure SIP submission 

should not be construed as explicit or 

implicit re-approval of any existing 

potentially deficient provisions that 

relate to the three specific issues just 

described. 

EPA’s approach to review of 

infrastructure SIP submissions is to 

identify the CAA requirements that are 

logically applicable to that submission. 

EPA believes that this approach to the 

review of a particular infrastructure SIP 

submission is appropriate, because it 

would not be reasonable to read the 

general requirements of section 

110(a)(1) and the list of elements in 

110(a)(2) as requiring review of each 

and every provision of a state’s existing 

SIP against all requirements in the CAA 

and EPA regulations merely for 

purposes of assuring that the state in 

question has the basic structural 

elements for a functioning SIP for a new 

or revised NAAQS. Because SIPs have 

grown by accretion over the decades as 

statutory and regulatory requirements 

under the CAA have evolved, they may 

include some outmoded provisions and 

historical artifacts. These provisions, 

while not fully up to date, nevertheless 

may not pose a significant problem for 

the purposes of ‘‘implementation, 


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14For example, EPA issued a SIP call to Utah to 

address specific existing SIP deficiencies related to 

the treatment of excess emissions during SSM 

events. See ‘‘Finding of Substantial Inadequacy of 

Implementation Plan; Call for Utah State 

Implementation Plan Revisions,’’ 74 FR 21639 

(April 18, 2011). 

15EPA has used this authority to correct errors in 

past actions on SIP submissions related to PSD 

programs. See ‘‘Limitation of Approval of 

Prevention of Significant Deterioration Provisions 

Concerning Greenhouse Gas Emitting-Sources in 

State Implementation Plans; Final Rule,’’ 75 FR 

82536 (December 30, 2010). EPA has previously 

used its authority under CAA section 110(k)(6) to 

remove numerous other SIP provisions that the 

Agency determined it had approved in error. See, 

e.g., 61 FR 38664 (July 25, 1996) and 62 FR 34641 

(June 27, 1997) (corrections to American Samoa, 

Arizona, California, Hawaii, and Nevada SIPs); 69 

FR 67062 (November 16, 2004) (corrections to 

California SIP); and 74 FR 57051 (November 3, 

2009) (corrections to Arizona and Nevada SIPs). 

16See, e.g., EPA’s disapproval of a SIP submission 

from Colorado on the grounds that it would have 

included a director’s discretion provision 

inconsistent with CAA requirements, including 

section 110(a)(2)(A). See, e.g., 75 FR 42342 at 42344 

(July 21, 2010) (proposed disapproval of director’s 

discretion provisions); 76 FR 4540 (January 26, 

2011) (final disapproval of such provisions). 

maintenance, and enforcement’’ of a 

new or revised NAAQS when EPA 

evaluates adequacy of the infrastructure 

SIP submission. EPA believes that a 

better approach is for states and EPA to 

focus attention on those elements of 

section 110(a)(2) of the CAA most likely 

to warrant a specific SIP revision due to 

the promulgation of a new or revised 

NAAQS or other factors. 

For example, EPA’s 2013 Guidance 

gives simpler recommendations with 

respect to carbon monoxide than other 

NAAQS pollutants to meet the visibility 

requirements of section 

110(a)(2)(D)(i)(II), because carbon 

monoxide does not affect visibility. As 

a result, an infrastructure SIP 

submission for any future new or 

revised NAAQS for carbon monoxide 

need only state this fact in order to 

address the visibility prong of section 

110(a)(2)(D)(i)(II). 

With respect to Element[s] C and (J) 

[as appropriate], EPA interprets the 

Clean Air Act to require each state to 

make an infrastructure SIP submission 

for a new or revised NAAQS that 

demonstrates that the air agency has a 

complete PSD permitting program 

meeting the current requirements for all 

regulated NSR pollutants. The 

requirements of Element D(i)(II) may 

also be satisfied by demonstrating the 

air agency has a complete PSD 

permitting program correctly addressing 

all regulated NSR pollutants. Nebraska 

has shown that it currently has a PSD 

program in place that covers all 

regulated NSR pollutants, including 

greenhouse gases (GHGs) [as 

appropriate: ’’ with the exception of the 

deficiencies described elsewhere in this 

notice’’]. 

On June 23, 2014, the United States 

Supreme Court issued a decision 

addressing the application of PSD 

permitting requirements to GHG 

emissions. Utility Air Regulatory Group 

v. Environmental Protection Agency, 

134 S.Ct. 2427. The Supreme Court said 

that the EPA may not treat GHGs as an 

air pollutant for purposes of 

determining whether a source is a major 

source required to obtain a PSD permit. 

The Court also said that the EPA could 

continue to require that PSD permits, 

otherwise required based on emissions 

of pollutants other than GHGs, contain 

limitations on GHG emissions based on 

the application of Best Available 

Control Technology (BACT). In order to 

act consistently with its understanding 

of the Court’s decision pending further 

judicial action to effectuate the decision, 

the EPA is not continuing to apply EPA 

regulations that would require that SIPs 

include permitting requirements that 

the Supreme Court found 

impermissible. Specifically, EPA is not 

applying the requirement that a state’s 

SIP-approved PSD program require that 

sources obtain PSD permits when GHGs 

are the only pollutant (i) that the source 

emits or has the potential to emit above 

the major source thresholds, or (ii) for 

which there is a significant emissions 

increase and a significant net emissions 

increase from a modification (e.g. 40 

CFR 51.166(b)(48)(v)). EPA anticipates a 

need to revise Federal PSD rules in light 

of the Supreme Court opinion. In 

addition, EPA anticipates that many 

states will revise their existing SIPapproved PSD programs in light of the 

Supreme Court’s decision. The timing 

and content of subsequent EPA actions 

with respect to the EPA regulations and 

state PSD program approvals are 

expected to be informed by additional 

legal process before the United States 

Court of Appeals for the District of 

Columbia Circuit. At this juncture, EPA 

is not expecting states to have revised 

their PSD programs for purposes of 

infrastructure SIP submissions and is 

only evaluating such submissions to 

assure that the state’s program correctly 

addresses GHGs consistent with the 

Supreme Court’s decision. 

At present, EPA has determined the 

Nebraska SIP is sufficient to satisfy 

Element[s] C, D(i)(II), and J [as 

appropriate] with respect to GHGs 

because the PSD permitting program 

previously approved by EPA into the 

SIP continues to require that PSD 

permits (otherwise required based on 

emissions of pollutants other than 

GHGs) contain limitations on GHG 

emissions based on the application of 

BACT. Although the approved Nebraska 

PSD permitting program may currently 

contain provisions that are no longer 

necessary in light of the Supreme Court 

decision, this does not render the 

infrastructure SIP submission 

inadequate to satisfy Element[s] C, 

D(i)(II), and J [as appropriate]. The SIP 

contains the necessary PSD 

requirements at this time, and the 

application of those requirements is not 

impeded by the presence of other 

previously-approved provisions 

regarding the permitting of sources of 

GHGs that EPA does not consider 

necessary at this time in light of the 

Supreme Court decision. Accordingly, 

the Supreme Court decision does not 

affect EPA’s proposed approval of 

Nebraska’s infrastructure SIP as to the 

requirements of Element[s] C, D(i)(II), 

and J. 

Finally, EPA believes that its 

approach with respect to infrastructure 

SIP requirements is based on a 

reasonable reading of sections 110(a)(1) 

and 110(a)(2) because the CAA provides 

other avenues and mechanisms to 

address specific substantive deficiencies 

in existing SIPs. These other statutory 

tools allow EPA to take appropriately 

tailored action, depending upon the 

nature and severity of the alleged SIP 

deficiency. Section 110(k)(5) authorizes 

EPA to issue a ‘‘SIP call’’ whenever the 

Agency determines that a state’s SIP is 

substantially inadequate to attain or 

maintain the NAAQS, to mitigate 

interstate transport, or to otherwise 

comply with the CAA.14 Section 

110(k)(6) authorizes EPA to correct 

errors in past actions, such as past 

approvals of SIP submissions.15

Significantly, EPA’s determination that 

an action on a state’s infrastructure SIP 

submission is not the appropriate time 

and place to address all potential 

existing SIP deficiencies does not 

preclude EPA’s subsequent reliance on 

provisions in section 110(a)(2) as part of 

the basis for action to correct those 

deficiencies at a later time. For example, 

although it may not be appropriate to 

require a state to eliminate all existing 

inappropriate director’s discretion 

provisions in the course of acting on an 

infrastructure SIP submission, EPA 

believes that section 110(a)(2)(A) may be 

among the statutory bases that EPA 

relies upon in the course of addressing 

such deficiency in a subsequent 

action.16

IV. What is EPA’s evaluation of how the 

state addressed the relevant elements of 

sections 110(a)(1) and (2)? 

On October 18, 2011, EPA Region 7 

received Nebraska’s infrastructure SIP 

submission for the 2008 Pb standard. 

This SIP submission became complete 


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17The specific nonattainment area plan 

requirements of section 110(a)(2)(I) are subject to 

the timing requirements of section 172, not the 

timing requirement of section 110(a)(1). Thus, 

section 110(a)(2)(A) does not require that states 

submit regulations or emissions limits specifically 

for attaining the 2008 Pb NAAQS. Those SIP 

provisions are due as part of each state’s attainment 

plan, and will be addressed separately from the 

requirements of section 110(a)(2)(A). In the context 

of an infrastructure SIP, EPA is not evaluating the 

existing SIP provisions for this purpose. Instead, 

EPA is only evaluating whether the state’s SIP has 

basic structural provisions for the implementation 

of the NAAQS. 

18As discussed previously, this infrastructure SIP 

rulemaking will not address the Nebraska program 

for nonattainment area related provisions, since 

EPA considers evaluation of these provisions to be 

outside the scope of infrastructure SIP actions. 

as a matter of law on April 18, 2012. 

EPA has reviewed Nebraska’s 

infrastructure SIP submission and the 

relevant statutory and regulatory 

authorities and provisions referenced in 

that submission or referenced in 

Nebraska’s SIP. During this review, 

Nebraska submitted a March 11, 2014, 

request (available in the docket for 

today’s action) that clarified its intent to 

formally include conflict of interest 

provisions in section 128 of the CAA as 

it relates to element E of the 

infrastructure SIP. Below is EPA’s 

evaluation of how the state addressed 

the relevant elements of section 

110(a)(2) for the 2008 Pb NAAQS. 

(A) Emission limits and other control 

measures: Section 110(a)(2)(A) requires 

SIPs to include enforceable emission 

limits and other control measures, 

means or techniques, schedules for 

compliance and other related matters as 

needed to implement, maintain and 

enforce each NAAQS.17

The state of Nebraska’s statutes and 

Air Quality Regulations authorize the 

Nebraska Department of Environmental 

Quality (NDEQ) to regulate air quality 

and implement air quality control 

regulations. Section 81–1504 of the 

Nebraska Revised Statutes authorizes 

NDEQ to act, among other things, as the 

state air pollution control agency for all 

purposes of the CAA and to develop 

comprehensive programs for the 

prevention, control and abatement of 

new or existing pollution to the air of 

the state. Air pollution is defined in 

section 81–1502 of the Nebraska 

Revised Statutes as the presence in the 

outdoor atmosphere of one or more air 

contaminants or combinations thereof in 

such quantities and of such duration as 

are or may tend to be injurious to 

human, plant, or animal life, property, 

or the conduct of business. 

Section 81–1505(1) of the Nebraska 

Revised Statutes authorizes the 

Nebraska Environmental Quality 

Council (EQC) to adopt and promulgate 

rules which set air standards that will 

protect public health and welfare. The 

EQC is also authorized to classify air 

contaminant sources according to levels 

and types of discharges, emissions or 

other characteristics. 

The 2008 Pb NAAQS specified in 40 

CFR Part 50.16(a) was proposed and 

adopted into Nebraska title 129 chapter 

4, section 006 of the Nebraska 

Administrative Code, by the EQC on 

June 20, 2013, with an effective date of 

December 9, 2013. Therefore, Pb is an 

air contaminant which may be regulated 

under Nebraska law. 

Based upon review of the state’s 

infrastructure SIP submission for the 

2008 Pb NAAQS, and relevant statutory 

and regulatory authorities and 

provisions referenced in the submission 

or referenced in Nebraska’s SIP, EPA 

believes that the Nebraska SIP 

adequately addresses the requirements 

of section 110(a)(2)(A) for the 2008 Pb 

NAAQS and is approving this element 

of the October 18, 2011, SIP submission. 

(B) Ambient air quality monitoring/

data system: Section 110(a)(2)(B) 

requires SIPs to include provisions to 

provide for establishment and operation 

of ambient air quality monitors, 

collection and analysis of ambient air 

quality data, and making these data 

available to EPA upon request. 

To address this element, section 81– 

1505(12)(o) of the Nebraska Revised 

Statutes provides the enabling authority 

necessary for Nebraska to fulfill the 

requirements of Section 110(a)(2)(B). 

This provision gives the EQC the 

authority to promulgate rules and 

regulations concerning the monitoring 

of emissions. The Air Quality Division 

within NDEQ implements these 

requirements. Along with their other 

duties, the monitoring program within 

NDEQ’s Air Compliance and 

Enforcement Program collects air 

monitoring data, quality assures the 

results, and reports the data. 

In accordance with the requirements 

of 40 CFR part 58 appendix D, section 

4.5(b), Nebraska operates a lead monitor 

at its NCore monitoring site in Omaha. 

Based on the requirements of the 2008 

Pb NAAQS (73 FR 66964, November 12, 

2008) and the ‘‘Revisions to Lead 

Ambient Monitoring Requirements,’’ (75 

FR 81126, December 27, 2010), 

Nebraska operates two source-oriented 

Pb monitors at sources that reported Pb 

emissions of more than 0.5 tons per year 

(tpy); one in Fremont and a second in 

Auburn, Nebraska. 

NDEQ submits annual monitoring 

network plans to EPA for approval, 

including plans for its Pb monitoring 

network, as required by 40 CFR 58.10. 

Prior to submission to EPA, Nebraska 

makes the plans available for public 

review on NDEQ’s Web site. See, 

http://deq.ne.gov/Publica.nsf/Pubs_Air_

Amb.xsp, for NDEQ’s 2013 Ambient Air 

Monitoring Network Plan. This Plan 

includes, among other things, the 

locations for the Pb monitoring network. 

On December 23, 2013, EPA approved 

Nebraska’s 2013 ambient air network 

monitoring plan. NDEQ also conducts 

five-year monitoring network 

assessments, including the Pb 

monitoring network, as required by 40 

CFR 58.10(d). Title 129, chapter 4, 

section 006 of the NAC requires that 

attainment with the Pb standard be 

determined in accordance with the 

applicable Federal regulations in 40 

CFR part 50, appendix R. Nebraska 

submits air quality data to EPA’s Air 

Quality System (AQS) quarterly, 

pursuant to the provisions of work plans 

developed in conjunction with EPA 

grants to the state. 

Based upon review of the state’s 

infrastructure SIP submission for the 

2008 Pb NAAQS, and relevant statutory 

and regulatory authorities and 

provisions referenced in the submission 

or referenced in Nebraska’s SIP, EPA 

believes that the Nebraska SIP meets the 

requirements of section 110(a)(2)(B) for 

the 2008 Pb NAAQS and is approving 

this element of the October 18, 2011 

submission. 

(C) Program for enforcement of 

control measures (PSD, New Source 

Review for nonattainment areas, and 

construction and modification of all 

stationary sources): Section 110(a)(2)(C) 

requires states to include the following 

three elements in the SIP: (1) A program 

providing for enforcement of all SIP 

measures described in section 

110(a)(2)(A); (2) a program for the 

regulation of the modification and 

construction of stationary sources as 

necessary to protect the applicable 

NAAQS (i.e., state-wide permitting of 

minor sources); and (3) a permit 

program to meet the major source 

permitting requirements of the CAA (for 

areas designated as attainment or 

unclassifiable for the NAAQS in 

question).18

(1) Enforcement of SIP Measures. 

With respect to enforcement of 

requirements of the SIP, the Nebraska 

statutes provide authority to enforce the 

requirements of Section 81–1504(1) of 

the Nebraska Revised Statutes provide 

authority for NDEQ to enforce the 

requirements of the Nebraska 

Environmental Protection Act, and any 

regulations, permits, or final compliance 

orders issued under the provisions of 

that law. In addition, section 81–1504(7) 

authorizes NDEQ to issue orders 


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prohibiting or abating discharges of 

waste into the air and requiring the 

modification, extension or adoption of 

remedial measures to prevent, control, 

or abate air pollution. Section 81–1507 

authorizes NDEQ to commence an 

enforcement action for any violations of 

the Environmental Protection Act, any 

rules or regulations promulgated 

thereunder, or any orders issued by 

NDEQ. This enforcement action can not 

only seek civil penalties, but also 

require that the recipient take corrective 

action to address the violation. See 

Section 81–1507(1) and 81–1508.02. 

Section 81–1508.01 provides for 

criminal penalties for knowing or 

willful violations of the statute, 

regulations or permit conditions, in 

addition to other acts described in that 

section. 

(2) Minor New Source Review. Section 

110(a)(2)(C) also requires that the SIP 

include measures to regulate 

construction and modification of 

stationary sources to protect the 

NAAQS. With respect to smaller statewide minor sources (Nebraska’s major 

source permitting program is discussed 

in (3) below), Nebraska has a program 

under Title 129, Chapter 17 of the NAC 

that requires such sources to first obtain 

a construction permit from NDEQ. The 

permitting process is designed to ensure 

that new and modified sources will not 

interfere with NAAQS attainment. 

NDEQ has the authority to require the 

source applying for the permit to 

undergo an air quality impact analysis. 

If NDEQ determines that emissions from 

a constructed or modified source 

interfere with attainment of the NAAQS, 

it may deny the permit until the source 

makes the necessary changes to obviate 

the objections to the permit issuance. 

See Chapter 17, sections 008 and 009 of 

the NAC. 

EPA has determined that Nebraska’s 

minor new source review (NSR) 

program adopted pursuant to section 

110(a)(2)(C) of the Act regulates 

emissions of NAAQS pollutants. EPA 

has also determined that certain 

provisions of the state’s minor NSR 

program adopted pursuant to section 

110(a)(2)(C) of the Act likely do not 

meet all the requirements found in 

EPA’s regulations implementing that 

provision. See 40 CFR 51.160–51.164. 

EPA previously approved Nebraska’s 

minor NSR program into the SIP, and at 

the time there was no objection to the 

provisions of this program. See 37 FR 

10842 (May 31, 1972) and 60 FR 372 

(January 4, 1995). Since then, the state 

and EPA have relied on the existing 

state minor NSR program to assure that 

new and modified sources not captured 

by the major NSR permitting programs 

do not interfere with attainment and 

maintenance of the NAAQS. 

In this action, EPA is approving 

Nebraska’s infrastructure SIP for the 

2008 Pb standard with respect to the 

general requirement in section 

110(a)(2)(C) to include a program in the 

SIP that regulates the modification and 

construction of any stationary source as 

necessary to assure that the NAAQS are 

achieved. In this action, EPA is not 

proposing to approve or disapprove the 

state’s existing minor NSR program to 

the extent that it is inconsistent with 

EPA’s regulations governing this 

program. EPA has maintained that the 

CAA does not require that new 

infrastructure SIP submissions correct 

any defects in existing EPA-approved 

provisions of minor NSR programs in 

order for EPA to approve the 

infrastructure SIP for element (C) (e.g., 

76 FR 41076–41079). 

(3) Prevention of Significant 

Deterioration (PSD) permit program. 

Nebraska also has a program approved 

by EPA as meeting the requirements of 

part C, relating to prevention of 

significant deterioration of air quality. 

In order to demonstrate that Nebraska 

has met this sub-element, this PSD 

program must cover requirements not 

just for the 2008 Pb NAAQS, but for all 

other regulated NSR pollutants as well. 

As stated in the October 14, 2011, Pb 

Infrastructure SIP guidance, EPA has 

not proposed to amend the PSD 

regulations with regard to the Pb 

NAAQS because it believes that, 

generally, there is sufficient guidance 

and regulations already in place to fully 

implement the revised Pb NAAQS. 

Nebraska’s implementing rule, title 

129, chapter 19, incorporates the 

relevant portions of the Federal rule, 40 

CFR 52.21 by reference. In this action, 

EPA is not proposing to approve or 

disapprove any state rules with regard 

to NSR reform requirements. EPA will 

act on NSR reform submittals through a 

separate rulemaking process. For 

Nebraska, we have previously approved 

Nebraska’s NSR reform rules for 

attainment areas, see 76 FR 15852, 

March 22, 2011. 

The Nebraska SIP also contains a 

permitting program for major sources 

and modifications in nonattainment 

areas (see title 129, chapter 17, section 

013). This section is currently not 

applicable to Nebraska because all areas 

of Nebraska are currently in attainment 

with the NAAQS. Even if it were 

applicable, the SIP’s discussion of 

nonattainment areas is not addressed in 

this rulemaking (see discussion of the 

section 110(a)(2)(I) requirements for 

nonattainment areas, below). 

With respect to the PSD program, title 

129, chapter 19, of the NAC provides for 

the permitting of construction of a new 

major stationary source or a major 

modification of an existing major 

stationary source. Further, chapter 19, 

section 010 of the NAC establishes 

threshold emissions for establishing 

whether the construction project is a 

major source of regulated NSR 

pollutants, including but not limited to 

Pb. 

Based upon review of the state’s 

infrastructure SIP submission for the 

2008 Pb NAAQS, and relevant statutory 

and regulatory authorities and 

provisions referenced in the submission 

or referenced in Nebraska’s SIP, with 

respect to the requirements of section 

110(a)(2)(C) for the 2008 Pb NAAQS, 

EPA is approving this element of the 

October 18, 2011, submission. 

(D) Interstate and international 

transport: Section 110(a)(2)(D)(i) 

includes four requirements referred to 

as prongs 1 through 4. Prongs 1 and 2 

are provided at section 110(a)(2)(D)(i)(I); 

Prongs 3 and 4 are provided at section 

110(a)(2)(D)(i)(II). Section 

110(a)(2)(D)(i)(I) requires SIPs to include 

adequate provisions prohibiting any 

source or other type of emissions 

activity in one state from contributing 

significantly to nonattainment, or 

interfering with maintenance, of any 

NAAQS in another state. Section 

110(a)(2)(D)(i)(II) requires SIPs to 

include adequate provisions prohibiting 

any source or other type of emissions 

activity in one state from interfering 

with measures required of any other 

state to prevent significant deterioration 

of air quality or to protect visibility. 

With respect to prongs 1 and 2, the 

physical properties of Pb prevent Pb 

emissions from experiencing a 

significant degree of travel in the 

ambient air. No complex chemistry is 

needed to form Pb or Pb compounds in 

the ambient air; therefore, 

concentrations of Pb are typically 

highest near Pb sources. More 

specifically, there is a sharp decrease in 

Pb concentrations as the distance from 

the source increases. According to 

EPA’s report entitled Our Nation’s Air: 

Status and Trends Through 2010, Pb 

concentrations that are not near a source 

of Pb are approximately 8 times less 

than the typical concentrations near the 

source (http://www.epa.gov/airtrends/

2011/report/fullreport.pdf). EPA 

believes that the requirements of prongs 

1 and 2 can be satisfied through a state’s 

assessment as to whether a lead source 

located within its state in close 

proximity to a state border has 

emissions that contribute significantly 

to the nonattainment in or interfere with 


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19Analysis by Mark Schmidt, OAQPS, ‘‘Ambient 

Pb’s Contribution to Class I Area Visibility 

Impairment,’’ June 17, 2011. 

maintenance of the NAAQS in the 

neighboring state. Nebraska has no 

designated nonattainment areas for the 

2008 Pb NAAQS, nor does it have any 

sources of Pb emissions over 0.5 tons 

per year that might have a potential 

impact on any other state. Monitoring 

indicates that there are no NAAQS 

violations. Further, since the facilities in 

Nebraska are not close in proximity to 

the state border transport is not a 

significant concern. 

With respect to the PSD requirements 

of section 110(a)(2)(D)(i)(II)—prong 3, 

EPA notes that Nebraska’s satisfaction of 

the applicable infrastructure SIP PSD 

requirements for attainment/

unclassifiable areas of the 2008 Pb 

NAAQS have been detailed in the 

section addressing section 110(a)(2)(C). 

As discussed above for element (C)(3), 

EPA has previously approved 

Nebraska’s NSR reform rules for 

attainment areas, and, as previously 

stated, Nebraska currently has no 

nonattainment areas (See 76 FR 15852, 

March 22, 2011). EPA also notes that the 

proposed action in that section related 

to PSD is consistent with the proposed 

approval related to PSD for section 

110(a)(2)(D)(i)(II). 

With regard to the applicable 

requirements for visibility protection of 

section 110(a)(2)(D)(i)(II)—prong 4, 

significant impacts from Pb emissions 

from stationary sources are expected to 

be limited to short distances from the 

source and most, if not all, Pb stationary 

sources are located at distances from 

Class I areas such that visibility impacts 

would be negligible. Although Pb can be 

a component of coarse and fine 

particles, Pb generally comprises a small 

fraction of coarse and fine particles. 

Furthermore, when evaluating the 

extent that Pb could impact visibility, 

Pb-related visibility impacts were found 

to be insignificant (e.g., less than 

0.10%).19

Section 110 (a)(2)(D)(ii) also requires 

that the SIP ensure compliance with the 

applicable requirements of sections 126 

and 115 of the CAA, relating to 

interstate and international pollution 

abatement, respectively. 

Section 126(a) of the CAA requires 

new or modified sources to notify 

neighboring states of potential impacts 

from sources within the state. Section 

126(a) of the Act requires new or 

modified sources to notify neighboring 

states of potential impacts from sources 

within the state. Although Nebraska 

sources have not been identified by EPA 

as having any interstate or international 

impacts under section 126 or section 

115 in any pending actions relating to 

the 2008 Pb NAAQS, the Nebraska 

regulations address abatement of the 

effects of interstate pollution. Title 129, 

chapter 14, section 010.03 of the NAC 

requires NDEQ, after receiving a 

complete PSD permit application, to 

notify EPA, as well as officials and 

agencies having cognizance where the 

proposed construction is to occur. This 

includes state or local air pollution 

control agencies and the chief 

executives of the city and county where 

the source would be located; any 

comprehensive regional land use 

planning agency; and any state, Federal 

Land Manager, or Indian governing 

body whose lands may be affected by 

emissions from the source or 

modification. Finally, we believe that 

Nebraska could use the same statutory 

authorities previously discussed, 

primarily section 81–1505 of the 

Nebraska Revised Statutes, to respond to 

any future findings with respect to the 

2008 Pb NAAQS. 

Section 115 of the CAA authorizes 

EPA to require a state to revise its SIP 

under certain conditions to alleviate 

international transport into another 

country. There are no final findings 

under section 115 of the CAA against 

Nebraska with respect to any air 

pollutant. Thus, the state’s SIP does not 

need to include any provisions to meet 

the requirements of section 115. 

Based upon review of the state’s 

infrastructure SIP submission for the 

2008 Pb NAAQS, and relevant statutory 

and regulatory authorities and 

provisions referenced in the submission 

or referenced in Nebraska’s SIP, EPA 

believes that Nebraska has the adequate 

infrastructure needed to address 

sections 110(a)(2)(D)(i)—Prongs 1 

through 4 and 110(a)(2)(D)(ii) for the 

2008 Pb NAAQS and is approving this 

element of the October 18, 2011, 

submission. 

(E) Adequate authority, resources, 

implementation, and oversight: Section 

110(a)(2)(E) requires that SIPs provide 

for the following: (1) necessary 

assurances that the state (and other 

entities within the state responsible for 

implementing the SIP) will have 

adequate personnel, funding, and 

authority under state or local law to 

implement the SIP, and that there are no 

legal impediments to such 

implementation; (2) requirements that 

the state comply with the requirements 

relating to state boards, pursuant to 

section 128 of the CAA; and (3) 

necessary assurances that the state has 

responsibility for ensuring adequate 

implementation of any plan provision 

for which it relies on local governments 

or other entities to carry out that portion 

of the plan. 

(1) Section 110(a)(2)(E)(i) requires 

states to establish that they have 

adequate personnel, funding and 

authority. With respect to adequate 

authority, we have previously discussed 

Nebraska’s statutory and regulatory 

authority to implement the 2008 Pb 

NAAQS, primarily in the discussion of 

section 110(a)(2)(A) above. Neither 

Nebraska nor EPA has identified any 

legal impediments in the state’s SIP to 

implementation of the NAAQS. 

With respect to adequate resources, 

NDEQ asserts that it has adequate 

personnel to implement the SIP. State 

statutes provide NDEQ the authority to 

establish bureaus, divisions and/or 

sections to carry out the duties and 

powers granted by the Nebraska state 

law to address the control of air 

pollution, to be administered by fulltime salaried, bureau, division or 

section chiefs. See Nebraska Revised 

Statutes section 81–1504(14). NDEQ’s 

Air Quality Division is currently 

divided into the Permitting Section, the 

Compliance Section, and the Program 

Planning and Development Unit. 

With respect to funding, the Nebraska 

statutes require the EQC to establish 

various fees for sources, in order to fund 

the reasonable costs of implementing 

various air pollution control programs. 

For example, section 81–1505(12)(e) of 

the Nebraska Revised Statutes requires 

the EQC to establish a requirement for 

sources to pay fees sufficient to pay the 

reasonable direct and indirect costs of 

developing and administering the air 

quality operating permit program. These 

costs include overhead charges for 

personnel, equipment, buildings and 

vehicles; enforcement costs; costs of 

emissions and ambient monitoring; and 

modeling analyses and demonstrations. 

See Nebraska Revised Statutes section 

81–1505.04(2)(b). Similarly, section 81– 

1505(12)(a) requires the EQC to 

establish application fees for air 

contaminant sources seeking to obtain a 

permit prior to construction. 

Section 81–1505.05 of the Nebraska 

Revised Statutes provides that all fees 

collected pursuant to section 81– 

1505.04 be credited to the ‘‘Clean Air 

Title V Cash Fund’’ to be used solely to 

pay for the direct and indirect costs 

required to develop and administer the 

air quality permit program. Similarly, 

section 81–1505.06 provides that all fees 

collected pursuant to section 81– 

1505(12) be deposited in the ‘‘Air 

Quality Permit Cash Fund.’’ 

Nebraska uses funds in the non-Title 

V subaccounts, along with General 

Revenue funds and EPA grants under, 

for example, sections 103 and 105 of the 


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20See Memorandum from David O. Bickart to 

Regional Air Directors, ‘‘Guidance to States for 

Meeting Conflict of Interest Requirements of 

Section 128,’’ Suggested Definitions, March 2, 1978. 

21 Included in Nebraska’s March 11, 2014 email 

to EPA was a request that Title 116 of the Nebraska 

Administrative Code be approved into the SIP as a 

clarification to the 2010 SO2 NAAQS infrastructure 

SIP, to the extent it is deemed approvable by EPA. 

EPA has determined that the provisions that 

Nebraska submitted on August 22, 2013, as part of 

its 2010 SO2 NAAQS infrastructure SIP are 

sufficient for purposes of the disclosure 

requirements of Section 128(a)(2), and is therefore 

not addressing Title 116 of the Nebraska 

Administrative Code in today’s action. 

Act, to fund the programs. EPA 

conducts periodic program reviews to 

ensure that the state has adequate 

resources and funding to, among others, 

implement the SIP. 

(2) Conflict of interest provisions— 

Section 128. 

Section 110(a)(2)(E)(ii) requires that 

each state SIP meet the requirements of 

section 128 relating to potential 

conflicts of interest of certain boards, 

bodies, and personnel involved in 

approving permits or enforcement 

orders. Section 128(a)(1) requires that 

any board or body which approves 

permits or enforcement orders under the 

CAA must have at least a majority of 

members who represent the public 

interest and do not derive any 

‘‘significant portion’’ of their income 

from persons subject to permits and 

enforcement orders under the CAA. 

Section 128(a)(2) requires that members 

of such a board or body, or the head of 

an agency with similar powers, 

adequately disclose any potential 

conflicts of interest. 

In 1978, EPA issued a guidance 

memorandum recommending ways that 

states could meet the requirements of 

section 128, including suggested 

interpretations of certain terms in 

section 128.20 EPA has not issued 

further guidance or regulations of 

general applicability on the subject 

since that time. However, EPA has 

recently proposed certain 

interpretations of section 128 as part of 

its actions on other infrastructure SIPs 

consistent with the statutory 

requirements (see, e.g., (77 FR 44555, 

July 30, 2012) and (77 FR 66398, 

November 5, 2012)). We are now 

proposing these same interpretations in 

relation to the Nebraska SIP. 

On August 22, 2013, Nebraska 

included statute and rule that addresses 

section 128 as part of its 2010 SO2

NAAQS infrastructure SIP. On March 

11, 2014, Nebraska clarified its intent 

that these provisions be approved by 

EPA as part of Nebraska’s SIP for 

purposes of section 128.21 These 

provisions include section 49–1493(13) 

of the Nebraska Revised Statutes and 

title 4, chapter 2 of the Nebraska 

Administrative Code. In today’s action, 

we are approving Nebraska’s August 22, 

2013, submission related to sections 

110(a)(2)(E)(ii) and 128 of the CAA. 

EPA’s analysis consisted of a review 

of Nebraska’s August 22, 2013, SO2

NAAQS infrastructure SIP submission, 

and EPA’s additional review of 

Nebraska’s statutes and authorities. 

Nebraska concluded that section 128 

(a)(1) is not an applicable requirement 

in Nebraska because the EQC is not a 

board of body that approves permits or 

enforcement orders. EPA confirms that 

section 81–1503(7) of the ‘‘Nebraska 

Environmental Protection Act’’ does not 

grant the EQC the authority to approve 

permits or enforcement orders. 

Therefore, EPA believes that the 

requirements of section 128 (a)(1) do not 

apply to Nebraska. 

To satisfy section 128(a)(2) of the 

CAA, Nebraska submitted to EPA 

section 49–1493(13) of the Nebraska 

Revised Statutes and title 4, chapter 2 of 

the Nebraska Administrative Code. 

Section 49–1493(13) of the Nebraska 

Revised Statutes requires certain 

officials or employees of Nebraska who 

are responsible for taking or 

recommending official actions of a nonministeraial nature to file a statement of 

financial interest on an annual basis. 

Nebraska Administrative Code title 4, 

chapter 2 designates public officials and 

employees who are required to file 

Statements of Financial Interests with 

the Nebraska Accountability and 

Disclosure Commission, and includes 

the Director of NDEQ, the Deputy 

Directors of NDEQ, and the Air Quality 

Division Administrator of the NDEQ. 

Consistent with the requirements of 

section 128(a)(2), EPA infers from 

Nebraska’s August 22, 2013, SO2

NAAQS infrastructure submission that 

NDEQ’s Director, Deputy Directors, and 

Air Quality Division Administrator 

approve permits or enforcement orders 

and must therefore adequately disclose 

any potential conflicts of interest by 

filing an annual statement of financial 

interest pursuant to section 49–1493(13) 

and title 4, chapter 2 of the Nebraska 

Administrative Code. 

Both section 49–1493 of the Nebraska 

Revised Statutes and title 4, chapter 2 of 

the Nebraska Administrative Code 

reference section 49–1496 of the 

Nebraska Revised Statutes, which 

requires disclosure of any association 

with any business, entitles for which the 

person served as a trustee, and any 

income over one thousand dollars from 

a person or government body, with 

certain exceptions. In addition, section 

49–1496 also requires disclosure of any 

ownership interest that exceeds one 

thousand dollars of certain real 

property, accounts, investments and 

other property owned or held for the 

production of income. Section 49–1496 

also requires disclosure of loans in 

excess of one thousand dollars and gifts 

in excess of one hundred dollars. Thus, 

Nebraska law requires the disclosure of 

any potential conflicts of interest by the 

head of an executive agency responsible 

for approving permits or enforcement 

orders (i.e., NEDQ’s Director, Deputy 

Directors, and Air Quality Division 

Administrator). 

EPA believes that section 49–1493(13) 

of the Nebraska Revised Statutes and 

title 4 chapter 2 of the Nebraska 

Administrative Code address the 

requirements of section 128(a)(2) of the 

CAA, and we are therefore approving 

those provisions into the Nebraska SIP 

with respect to the conflict of interest 

requirements of section 128 of the CAA. 

(3) With respect to assurances that the 

state has responsibility to implement 

the SIP adequately when it authorizes 

local or other agencies to carry out 

portions of the plan, section 81– 

1504(18) of the Nebraska Revised 

Statutes grants NDEQ the authority to 

encourage local units of government to 

handle air pollution problems within 

their own jurisdictions. NDEQ may 

delegate, by contract with governmental 

subdivisions which have adopted air 

pollution control programs, the 

enforcement of state-adopted air 

pollution control regulations within a 

specified region surrounding the 

jurisdictional area of the governmental 

subdivision. See section 81–1504(23). 

However, the Nebraska statutes also 

retain authority in NDEQ to carry out 

the provisions of state air pollution 

control law. Section 81–1504(1) gives 

NDEQ ‘‘exclusive general supervision’’ 

of the administration and enforcement 

of the Nebraska Environmental 

Protection Act. In addition, section 81– 

1504(4) designates NDEQ as the air 

pollution control agency for the 

purposes of the CAA. 

The State of Nebraska relies on two 

local agencies for assistance in 

implementing portions of the air 

pollution control program: Lincoln/

Lancaster County Health Department 

and Omaha Air Quality Control. NDEQ 

oversees the activities of these local 

agencies to ensure adequate 

implementation of the plan. NDEQ 

utilizes subgrants to the local agencies 

to provide adequate funding, and as an 

oversight mechanism. EPA conducts 

reviews of the local program activities 

in conjunction with its oversight of the 

state program. 

Based upon review of the state’s 

infrastructure SIP submission for the 


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2008 Pb NAAQS and relevant statutory 

and regulatory authorities and 

provisions referenced in the submission 

or referenced in Nebraska’s SIP, EPA 

believes that Nebraska has the adequate 

infrastructure needed to address section 

110(a)(2)(E) for the 2008 Pb NAAQS and 

is approving this element of the October 

18, 2011 submission. 

(F) Stationary source monitoring 

system: Section 110(a)(2)(F) requires 

states to establish a system to monitor 

emissions from stationary sources and 

to submit periodic emission reports. 

Each SIP shall require the installation, 

maintenance, and replacement of 

equipment, and the implementation of 

other necessary steps, by owners or 

operators of stationary sources, to 

monitor emissions from such sources. 

The SIP shall also require periodic 

reports on the nature and amounts of 

emissions and emissions-related data 

from such sources, and requires that the 

state correlate the source reports with 

emission limitations or standards 

established under the CAA. These 

reports must be made available for 

public inspection at reasonable times. 

To address this element, section 81– 

1505(12)(o) of the Nebraska Revised 

Statutes gives the EQC the authority to 

promulgate rules and regulations for air 

pollution control, including 

requirements for owner or operator 

testing and monitoring of emissions. It 

also gives the EQC the authority to 

promulgate similar rules and regulations 

for the periodic reporting of these 

emissions. See section 81–1505(12)(l). 

Title 129 chapter 34, section 002 of the 

NAC incorporates various EPA reference 

methods for testing source emissions, 

including methods for Pb. Title 129, 

chapter 34 section 002.02. The Federal 

test methods are in 40 CFR part 60, 

appendix A. 

The Nebraska regulations also require 

that all Class I and Class II operating 

permits include requirements for 

monitoring of emissions. See title 129, 

chapter 8, sections 004.01 and 015 of 

the NAC. Furthermore, title 129, chapter 

34, section 001 of the NAC allows 

NDEQ to order an emissions source to 

make or have tests made to determine 

the rate of contaminant emissions from 

the source whenever NDEQ has reason 

to believe that the existing emissions 

from the source exceed the applicable 

emissions limits. 

The Nebraska regulations also impose 

reporting requirements on sources 

subject to permitting requirements. See 

title 129, chapter 6, section 001; chapter 

8, sections 004.03 and 015 of the NAC. 

Nebraska makes all monitoring reports 

submitted as part of Class I or Class II 

permit a publicly available document. 

Although sources can submit a claim of 

confidentiality for some of the 

information submitted, Nebraska 

regulations specifically exclude 

emissions data from being entitled to 

confidential protection. See title 129, 

chapter 7, section 004 of the NAC. 

Nebraska uses this information to track 

progress towards maintaining the 

NAAQS, developing control and 

maintenance strategies, identifying 

sources and general emission levels, and 

determining compliance with emission 

regulations and additional EPA 

requirements. 

Based upon review of the state’s 

infrastructure SIP submission for the 

2008 Pb NAAQS, and relevant statutory 

and regulatory authorities and 

provisions referenced in the submission 

or referenced in Nebraska’s SIP, EPA 

believes that Nebraska has the adequate 

infrastructure needed to address section 

110(a)(2)(F) for the 2008 Pb NAAQS and 

is approving this element of the October 

18, 2011, submission. 

(G) Emergency authority: Section 

110(a)(2)(G) requires SIPs to provide for 

authority to address activities causing 

imminent and substantial endangerment 

to public health or welfare or the 

environment (comparable to the 

authorities provided in section 303 of 

the CAA), and to include contingency 

plans to implement such authorities as 

necessary. 

Section 81–1507(4) of the Nebraska 

Revised Statutes states that whenever 

the Director of NDEQ finds that an 

emergency exists requiring immediate 

action to protect the public health and 

welfare, he or she may issue an order 

requiring that such action be taken as 

the Director deems necessary to meet 

the emergency. Title 129, chapter 38, 

section 003 of the NAC states that the 

conditions justifying the proclamation 

of an air pollution alert, air pollution 

warning, or air pollution emergency 

exist whenever the Director determines 

that the accumulation of air pollutants 

in any place is attaining or has attained 

levels which could, if such levels are 

sustained or exceeded, lead to a 

substantial threat to the health of 

persons. This regulation also establishes 

action levels for various air pollutants. 

The action levels (which include ‘‘Air 

Pollution Alert,’’ ‘‘Air Pollution 

Warning,’’ and ‘‘Air Pollution 

Emergency’’) and associated 

contingency measures vary depending 

on the severity of the concentrations. 

Appendix I to title 129 of the NAC 

provides an Emergency Response Plan 

with actions to be taken under each of 

the severity levels. These steps are 

designed to prevent the excessive buildup of air pollutants to concentrations 

which can result in imminent and 

substantial danger to public health. Both 

the regulation at chapter 38 and the 

Emergency Response Plan are contained 

in the Federally approved SIP. 

Based on EPA’s experience to date 

with the Pb NAAQS and designated Pb 

nonattainment areas, EPA expects that 

an emergency event involving Pb would 

be unlikely, and if it were to occur, 

would be the result of a malfunction or 

other emergency situation at a relatively 

large source of Pb. Accordingly, EPA 

believes that the central components of 

a contingency plan would be to reduce 

emissions from the source at issue (if 

necessary, by curtailing operations) and 

public communication as needed. EPA 

believes that Nebraska’s statutes 

referenced above provide the requisite 

authority to NDEQ to address such 

situations. 

Based upon review of the state’s 

infrastructure SIP submission for the 

2008 Pb NAAQS, and relevant statutory 

and regulatory authorities and 

provisions referenced in that 

submission or referenced in Nebraska’s 

SIP, EPA believes that the Nebraska SIP 

adequately addresses section 

110(a)(2)(G) for the 2008 Pb NAAQS and 

is approving this element of the October 

18, 2011, submission. 

(H) Future SIP revisions: Section 

110(a)(2)(H) requires states to have the 

authority to revise their SIPs in response 

to changes in the NAAQS, availability of 

improved methods for attaining the 

NAAQS, or in response to an EPA 

finding that the SIP is substantially 

inadequate to attain the NAAQS. 

As discussed previously, section 81– 

1504 of the Nebraska Revised Statutes 

authorizes NDEQ to regulate air quality 

and implement air quality control 

regulations. It also authorizes NDEQ to 

act as the state air pollution control 

agency for all purposes of the CAA. 

Section 81–1505(1) gives the EQC the 

authority to adopt and promulgate rules 

which set air standards that will protect 

public health and welfare. This 

authority includes the authority to 

revise rules as necessary to respond to 

a revised NAAQS. 

Based upon review of the state’s 

infrastructure SIP submission for the 

2008 Pb NAAQS, and relevant statutory 

and regulatory authorities and 

provisions referenced in the submission 

or referenced in Nebraska’s SIP, EPA 

believes that Nebraska has adequate 

authority to address section 110(a)(2)(H) 

for the 2008 Pb NAAQS and is 

approving this element of the October 

18, 2011, submission. 

(I) Nonattainment areas: Section 

110(a)(2)(I) requires that in the case of 

a plan or plan revision for areas 


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designated as nonattainment areas, 

states must meet applicable 

requirements of part D of the CAA, 

relating to SIP requirements for 

designated nonattainment areas. 

As noted earlier, EPA does not expect 

infrastructure SIP submissions to 

address subsection (I). The specific SIP 

submissions for designated 

nonattainment areas, as required under 

CAA title I, part D, are subject to 

different submission schedules than 

those for section 110 infrastructure 

elements. Instead, EPA will take action 

on part D attainment plan SIP 

submissions through a separate 

rulemaking governed by the 

requirements for nonattainment areas, 

as described in part D. 

(J) Consultation with government 

officials, public notification, PSD and 

visibility protection: Section 110(a)(2)(J) 

requires SIPs to meet the applicable 

requirements of the following CAA 

provisions: (1) Section 121, relating to 

interagency consultation regarding 

certain CAA requirements; (2) section 

127, relating to public notification of 

NAAQS exceedances and related issues; 

and (3) part C of the CAA, relating to 

prevention of significant deterioration of 

air quality and visibility protection. 

(1) With respect to interagency 

consultation, the SIP should provide a 

process for consultation with generalpurpose local governments, designated 

organizations of elected officials of local 

governments, and any Federal Land 

Manager having authority over Federal 

land to which the SIP applies. Section 

81–1504(3) authorizes NDEQ to advise 

and consult and cooperate with other 

Nebraska state agencies, the Federal 

government, other states, interstate 

agencies, and with affected political 

subdivisions, for the purpose of 

implementing its air pollution control 

responsibilities. Nebraska also has 

appropriate interagency consultation 

provisions in its preconstruction permit 

program. See, e.g., title 129, chapter 14 

section 010 of the NAC (requiring NDEQ 

to send a copy of a notice of public 

comment on construction permit 

applications to any state or local air 

pollution control agency; the chief 

executives of the city and county in 

which the source would be located; any 

comprehensive regional land use 

planning agency; and any state, Federal 

Land Manager, or Indian governing 

body whose lands may be affected by 

emissions from the source or 

modification). 

(2) With respect to the requirements 

for public notification in CAA section 

127, title 129 chapter 38 of the NAC, 

discussed previously in connection with 

the state’s authority to address 

emergency episodes, contains 

provisions for public notification of 

elevated ozone and other air pollutant 

levels. Appendix I to title 129 of the 

NAC includes measures which can be 

taken by the public to reduce 

concentrations. In addition, information 

regarding air pollution and related 

issues, is provided on an NDEQ Web 

site, http://www.deq.state.ne.us/

NDEQSite.nsf/AirDivSecProg?Open

View&Start=1&ExpandView&

Count=500. NDEQ also prepares an 

annual report on air quality in the state 

which is available to the public on its 

Web site, at http://www.deq.state.ne.us/ 

Publica.nsf/c4afc76e4e077e118

62568770059b73f/

a12a5ada6cce1c1686257

a47004e0633!OpenDocument. 

(3) With respect to the applicable 

requirements of part C, relating to 

prevention of significant deterioration of 

air quality and visibility protection, we 

previously noted in the discussion of 

section 110(a)(2)(C) (relating to 

enforcement of control measures) how 

the Nebraska SIP meets the PSD 

requirements, incorporating the Federal 

rule by reference. With respect to the 

visibility component of section 

110(a)(2)(J), EPA recognizes that states 

are subject to visibility and regional 

haze program requirements under part C 

of the CAA. However, when EPA 

establishes or revises a NAAQS, these 

visibility and regional haze 

requirements under part C do not 

change. EPA believes that there are no 

new visibility protection requirements 

under part C as a result of a revised 

NAAQS. Therefore, there are no newly 

applicable visibility protection 

obligations pursuant to element J after 

the promulgation of a new or revised 

NAAQS. 

Based upon review of the state’s 

infrastructure SIP submission for the 

2008 Pb NAAQS, and relevant statutory 

and regulatory authorities and 

provisions referenced in the submission 

or referenced in Nebraska’s SIP, EPA 

believes that Nebraska has met the 

applicable requirements of section 

110(a)(2)(J) for the 2008 Pb NAAQS in 

the state and is therefore approving this 

element of the October 18, 2011, 

submission. 

(K) Air quality and modeling/data: 

Section 110(a)(2)(K) requires that SIPs 

provide for performing air quality 

modeling, as prescribed by EPA, to 

predict the effects on ambient air quality 

of any emissions of any NAAQS 

pollutant, and for submission of such 

data to EPA upon request. 

Nebraska has authority to conduct air 

quality modeling and report the results 

of such modeling to EPA. Section 81– 

1504(5) provides NDEQ with the 

authority to encourage, participate in, or 

conduct studies, investigations, research 

and demonstrations relating to air 

pollution and its causes and effects. As 

an example of regulatory authority to 

perform modeling for purposes of 

determining NAAQS compliance, the 

regulations at title 129, chapter 19, 

section 019 provide for the use of EPAapproved air quality models (e.g., those 

found in 40 CFR part 51, appendix W) 

for PSD construction permitting. If the 

use of these models is inappropriate, the 

model may be modified or an alternate 

model may be used with the approval of 

NDEQ and EPA. 

The Nebraska regulations also give 

NDEQ the authority to require that 

modeling data be submitted for analysis. 

Title 129, chapter 19, section 021.02 

states that upon request by NDEQ, the 

owner or operator of a proposed source 

or modification must provide 

information on the air quality impact of 

the source or modification, including all 

meteorological and topographical data 

necessary to estimate such impact. 

Based upon review of the state’s 

infrastructure SIP submission for the 

2008 Pb NAAQS, and relevant statutory 

and regulatory authorities and 

provisions referenced in the submission 

or referenced in Nebraska’s SIP, EPA 

believes that Nebraska has the adequate 

infrastructure needed to address section 

110(a)(2)(K) for the 2008 Pb NAAQS and 

is approving this element of the October 

18, 2011, submission. 

(L) Permitting Fees: Section 

110(a)(2)(L) requires SIPs to require 

each major stationary source to pay 

permitting fees to the permitting 

authority, as a condition of any permit 

required under the CAA, to cover the 

cost of reviewing and acting upon any 

application for such a permit, and, if the 

permit is issued, the costs of 

implementing and enforcing the terms 

of the permit. The fee requirement 

applies until a fee program established 

by the state pursuant to title V of the 

CAA, relating to operating permits, is 

approved by EPA. 

Section 81–1505 of the Nebraska 

Revised States provides authority for 

NDEQ to collect permit fees, including 

title V fees. For example, section 81– 

1505(12)(e) requires that the EQC 

establish fees sufficient to pay the 

reasonable direct and indirect of 

developing and administering the air 

quality permit program. Nebraska’s title 

V program, including the fee program 

addressing the requirements of the Act 

and 40 CFR 70.9 relating to title V fees, 

was approved by EPA on October 18, 

1995 (60 FR 53872). 


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Based upon review of the state’s 

infrastructure SIP submission for the 

2008 Pb NAAQS, and relevant statutory 

and regulatory authorities and 

provisions referenced in the submission 

or referenced in Nebraska’s SIP, EPA 

believes that requirements of section 

110(a)(2)(L) are met and is approving 

this element of the October 18, 2011, 

submission. 

(M) Consultation/participation by 

affected local entities: Section 

110(a)(2)(M) requires SIPs to provide for 

consultation and participation by local 

political subdivisions affected by the 

SIP. 

Section 81–1504(5) of the Nebraska 

Revised Statutes gives NDEQ the 

authority to encourage local 

governments to handle air pollution 

problems within their respective 

jurisdictions and at the same time 

provide them with technical and 

consultative assistance. NDEQ is also 

authorized to delegate the enforcement 

of air pollution control regulations 

down to governmental subdivisions 

which have adopted air pollution 

control programs. As discussed 

previously, NDEQ currently relies on 

two local agencies for assistance in 

implementing portions of the air 

pollution control program: Lincoln/

Lancaster County Health Department 

and Omaha Air Quality Control. 

In addition, as previously noted in the 

discussion about section 110(a)(2)(J), 

Nebraska’s statutes and regulations 

require that NDEQ consult with local 

political subdivisions for the purposes 

of carrying out its air pollution control 

responsibilities. 

Based upon review of the state’s 

infrastructure SIP submission for the 

2008 Pb NAAQS, and relevant statutory 

and regulatory authorities and 

provisions referenced in the submission 

or referenced in Nebraska’s SIP, EPA 

believes that Nebraska has the adequate 

infrastructure needed to address section 

110(a)(2)(M) for the 2008 Pb NAAQS 

and is approving this element of the 

October 18, 2011, submission. 

V. What action is EPA taking? 

EPA is approving the October 18, 

2011, infrastructure SIP submission 

from Nebraska which addresses the 

requirements of CAA sections 110(a)(1) 

and (2) as applicable to the 2008 Pb 

NAAQS. Specifically, EPA is approving 

the following infrastructure elements, or 

portions thereof: 110(a)(2)(A), (B), (C), 

(D)(i)(I), (D)(i)(II), (D)(ii), (E), (F), (G), 

(H), (J), (K), (L), and (M). As discussed 

in each applicable section of this 

rulemaking, EPA is not taking action on 

section 110(a)(2)(I)—Nonattainment 

Area Plan or Plan Revisions under part 

D and on the visibility protection 

portion of section 110(a)(2)(J). 

Based upon review of the state’s 

infrastructure SIP submissions and 

relevant statutory and regulatory 

authorities and provisions referenced in 

those submissions or referenced in 

Nebraska’s SIP, EPA believes that 

Nebraska has the infrastructure to 

address all applicable required elements 

of sections 110(a)(1) and (2) (except 

otherwise noted to ensure that the 2008 

Pb NAAQS are implemented in the 

state. 

At the same time EPA is approving 

Nebraska’s March 11, 2014 request to 

include conflict of interest provisions 

into the Nebraska SIP. 

This direct final rule will be effective 

December 22, 2014 without further 

notice, unless EPA receives adverse 

comment by November 20, 2014. 

In the ‘‘Proposed Rules’’ section of 

this Federal Register, we are publishing 

a separate document that will serve as 

the proposed rule if adverse comments 

are received on this direct final rule. We 

will not institute a second comment 

period on this action. Any parties 

interested in commenting must do so at 

this time. For further information about 

commenting on the rule, see the 

ADDRESSES section of this document. 

VI. Statutory and Executive Order 

Review 

Under the CAA, the Administrator is 

required to approve a SIP submission 

that complies with the provisions of the 

CAA 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) and is therefore not 

subject to review under Executive 

Orders 12866 and 13563 (76 FR 3821, 

January 21, 2011); 

• 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. 

Statutory Authority 

The statutory authority for this action 

is provided by section 110 of the CAA, 

as amended (42 U.S.C. 7410). 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Intergovernmental relations, 

Lead, Reporting and recordkeeping 

requirements. 

Dated: September 30, 2014. 

Rebecca Weber, 

Acting Regional Administrator, Region 7. 

For the reasons stated in the 

preamble, the Environmental Protection 

Agency amends 40 CFR part 52 as set 

forth below: 

PART 52—APPROVAL AND 

PROMULGATION OF 

IMPLEMENTATION PLANS 

■ 1. The authority citation for part 52 

continues to read as follows: 

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

Subpart CC—Nebraska 

■ 2. In § 52.1420, the table in paragraph 

(e) is amended by adding new entries 


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62844 Federal Register / Vol. 79, No. 203 / Tuesday, October 21, 2014 / Rules and Regulations 

(26) and (27) in numerical order at the 

end of the table to read as follows: 

§ 52.1420 Identification of Plan. 

* * * * * 

(e) * * * 

EPA-APPROVED NEBRASKA NONREGULATORY PROVISIONS

Name of non-regulatory SIP provision 

Applicable 

geographic or 

nonattainment 

area 

State 

submittal 

date 

EPA approval date Explanation 

*******

(26) Section 110(a)(2) Infrastructure 

Requirements for the 2008 Pb 

NAAQS.

Statewide .......... 10/18/11 10/21/14 [Insert Federal Register 

citation].

This action addresses the following 

CAA elements: 110(a)(2)(A), (B), 

(C), (D), (E), (F), (G), (H), (J), 

(K), (L), and (M). 

(27) Section 128 Declaration: Nebraska Department of Environmental Quality Representation 

and Conflicts of Interest Provisions, Section 49–1493(13) of 

the NE Political Accountability 

and Disclosure Act and Chapter 

2 of Title 4, NE Accountability 

and Disclosure Commission.

Statewide .......... 8/22/13 10/21/14 [Insert Federal Register 

citation].

This declaration is contained within 

Nebraska’s 2010 Sulfur Dioxide 

NAAQS Infrastructure SIP submission concerning Section 

110(a)(2)(E) of the CAA. 

[FR Doc. 2014–24899 Filed 10–20–14; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R07–OAR–2014–0687; FRL–9918–17– 

Region 7] 

Approval and Promulgation of 

Implementation Plans; State of 

Missouri, Restriction of Emissions of 

Particulate Matter From Industrial 

Processes 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Direct final rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is taking direct final 

action to approve revisions to the State 

Implementation Plan (SIP) submitted by 

the State of Missouri on May 8, 2012, 

and October 17, 2013, related to a 

Missouri rule titled ‘‘Restriction of 

Emission of Particulate Matter from 

Industrial Processes.’’ This action 

amends the SIP in four ways. The first 

is it updates an outdated reference in 

the current SIP approved rule. Second, 

it provides a hierarchy of compliance 

measurement approaches for Particulate 

Matter (PM) emissions from industrial 

processes. Third, it provides a 

clarification on applicability of the 

provisions. And fourth, it deletes 

redundant definitions. 

DATES: This direct final rule will be 

effective December 22, 2014, without 

further notice, unless EPA receives 

adverse comment by November 20, 

2014. If EPA receives adverse comment, 

we 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–2014–0687, by one of the 

following methods: 

1. www.regulations.gov. Follow the 

on-line instructions for submitting 

comments. 

2. Email: gonzalez.larry@epa.gov. 

3. Mail or Hand Delivery: Larry 

Gonzalez, Environmental Protection 

Agency, Air Planning and Development 

Branch, 11201 Renner Boulevard, 

Lenexa, Kansas 66219. 

Instructions: Direct your comments to 

Docket ID No. EPA–R07–OAR–2014– 

0687. 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 email 

information that you consider to be CBI 

or otherwise protected. The 

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 email comment directly 

to EPA without going through 

www.regulations.gov, your email 

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, 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, 

11201 Renner Boulevard, Lenexa, 

Kansas 66219. The Regional Office’s 

official hours of business are Monday 

through Friday, 8:00 to 4:30 excluding 

legal holidays. The interested persons 

wanting to examine these documents 

should make an appointment with the 

office at least 24 hours in advance. 

FOR FURTHER INFORMATION CONTACT: 

Larry Gonzalez, Environmental 

Protection Agency, Air Planning and 

Development Branch, 11201 Renner 

Boulevard, Lenexa, Kansas 66219 at 


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