35284 Federal Register / Vol. 80, No. 118 / Friday, June 19, 2015 / Proposed Rules 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R07–OAR–2015–0270; FRL–9929–05– 

Region 7] 

Partial Approval and Disapproval of Air 

Quality State Implementation Plans 

(SIP); State of Nebraska; Infrastructure 

SIP Requirements for the 2008 Ozone 

National Ambient Air Quality Standard 

AGENCY: Environmental Protection 

Agency. 

ACTION: Proposed rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is proposing to partially 

approve and partially disapprove 

elements of a State Implementation Plan 

(SIP) submission from the State of 

Nebraska addressing the applicable 

requirements of Clean Air Act (CAA) 

section 110 for the 2008 National 

Ambient Air Quality Standards 

(NAAQS) for Ozone (O3), which 

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 

proposing to disapprove Nebraska’s SIP 

as it relates to section 110 with respect 

to visibility, for the 2008 O3 NAAQS. 

DATES: Comments must be received on 

or before July 20, 2015. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R07– 

OAR–2015–0270, 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–2015– 

0270. 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. 

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

infrastructure SIP? 

II. What are the applicable elements under 

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

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 proposing? 

VI. Statutory and Executive Order Review 

I. What is a section 110(a)(1) and (2) 

infrastructure SIP? 

Section 110(a)(1) of the CAA requires, 

in part, that states make a SIP 

submission to EPA to implement, 

maintain and enforce each of the 

NAAQS promulgated by EPA after 

reasonable notice and public hearings. 

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

specific elements that such 

infrastructure SIP submissions must 

address. SIPs meeting the requirements 

of sections 110(a)(1) and (2) are to be 

submitted by states within three years 

after promulgation of a new or revised 

NAAQS. These SIP submissions are 

commonly referred to as 

‘‘infrastructure’’ SIPs. 

II. What are the applicable elements 

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

On March 12, 2008, EPA promulgated 

a revised NAAQS for ozone based on 8- 

hour average concentrations. The level 

of the 2008 8-hour ozone NAAQS 

(hereafter the 2008 O3 NAAQS) was 

revised from 0.08 parts per million 

(ppm) to 0.075 ppm (73 FR 16436). 

For the 2008 O3 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 

must review and revise, as appropriate, 

their existing SIPs to ensure that the 

SIPs are adequate to address the 2008 O3

NAAQS. To assist states in meeting this 

statutory requirement, EPA issued 

guidance on September 13, 2013 (2013 

Guidance), addressing the infrastructure 


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1Stephen D. Page, Director, Air Quality Policy 

Division, Office of Air Quality Planning and 

Standards, ‘‘Guidance on Infrastructure State 

Implementation Plan (SIP) Elements Under Clean 

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

Memorandum to EPA Regional Air Division 

Directors, Regions I–X, September 13, 2013. 

2For 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. 

3See, 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)). 4EPA 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. 

5See, 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). 

SIP elements required under section 

110(a)(1) and (2) for the 2008 O3

NAAQS.1 EPA will address these 

elements below under the following 

headings: (A) Emission limits and other 

control measures; (B) Ambient air 

quality monitoring/data system; (C) 

Program for enforcement of control 

measures (prevention of significant 

deterioration) (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? 

EPA is acting upon the February 11, 

2013, SIP submission from Nebraska 

that addresses the infrastructure 

requirements of CAA sections 110(a)(1) 

and 110(a)(2) for the 2008 O3 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 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 110(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. 

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.2 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 

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.3 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.4 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.5

Similarly, EPA interprets the CAA to 

allow it to take action on the individual 

parts of one larger, comprehensive 

infrastructure SIP submission for a 


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6On 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. 

7For 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. 

8EPA 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. 

9 ‘‘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. 

10EPA’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.3d 

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

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

the uncertainty created by this litigation (which 

culminated in the Supreme Court’s recent decision, 

134 SCt. 1584), 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. 

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.6

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.7

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.8 EPA most recently 

issued guidance for infrastructure SIPs 

on September 13, 2013 (2013 

Guidance).9 EPA developed the 2013 

Guidance document to provide states 

with up-to-date guidance for 

infrastructure SIPs for any new or 

revised NAAQS. 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.10 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, 


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11By 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. 

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 11. 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, 

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, 

EPA interprets the CAA 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). 

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 


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12For 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). 

13EPA 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). 

14See, 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). 

15The 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 2010 SO2 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. 

addresses GHGs consistent with the 

Supreme Court’s decision. 

At present, EPA has determined the 

Nebraska’s SIP is sufficient to satisfy 

elements C, D(i)(II), and J 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’s 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 elements C, 

(D)(i)(II), and J. 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 elements 

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.12 Section 

110(k)(6) authorizes EPA to correct 

errors in past actions, such as past 

approvals of SIP submissions.13

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.14

IV. What is EPA’s evaluation of how the 

State addressed the relevant elements 

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

EPA Region 7 received Nebraska’s 

infrastructure SIP submission for the 

2008 O3 standard on February 11, 2013. 

The SIP submission became complete as 

a matter of law on August 11, 2013. EPA 

has reviewed Nebraska’s infrastructure 

SIP submission and the applicable 

statutory and regulatory authorities and 

provisions referenced in those 

submissions or referenced in Nebraska’s 

SIP. Below is EPA’s evaluation of how 

the state addressed the relevant 

elements of section 110(a)(2) for the 

2008 O3 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.15

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 O3 NAAQS specified in 40 

CFR part 50.10 was proposed and 

adopted into Nebraska title 129 chapter 

4, section 005 of the Nebraska 

Administrative Code, by the EQC on 

June 20, 2013, with an effective date of 

December 9, 2013. 

Based upon review of the state’s 

infrastructure SIP submission for the 

2008 O3 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 O3

NAAQS and is proposing to approve 

this element of the February 11, 2013, 

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 


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16As discussed in further detail below, this 

infrastructure SIP rulemaking will not address the 

Kansas program for nonattainment area related 

provisions, since EPA considers evaluation of these 

provisions to be outside the scope of infrastructure 

SIP actions. 

regulations concerning the monitoring 

of emissions. Nebraska complies with 

40 CFR part 50, appendix P with regards 

to the regulatory monitoring, compiling, 

and analysis of data on ambient air 

quality relative to the 2008 ozone 8-hour 

NAAQS. 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 4.1(a), 

Nebraska operates four O3 monitors, 

three in the Omaha MSA and one in the 

Lincoln MSA. 

NDEQ develops and administers the 

ambient air monitoring network plan 

and submits it annually to EPA for 

approval, including the plan for its O3

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 2014 Ambient Air 

Monitoring Network Plan. This Plan 

includes, among other things, the 

locations for the O3 monitoring network. 

On February 9, 2015, EPA approved 

Nebraska’s 2014 ambient air network 

monitoring plan. NDEQ also conducts 

five-year monitoring network 

assessments, including the O3

monitoring network, as required by 40 

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

section 005 of the NAC requires that 

attainment with the O3 standard be 

determined in accordance with the 

applicable Federal regulations in 40 

CFR part 50, appendix S. 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 O3 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)(B) for the 2008 O3

NAAQS and is proposing to approve 

this element of the February 11, 2013, 

SIP 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).16

(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 

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 proposing to 

approve Nebraska’s infrastructure SIP 

for the 2008 O3 NAAQS 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 41076–76 FR 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 O3 NAAQS, but for all 

other regulated NSR pollutants as well. 

Nebraska’s implementing rule, title 

129, chapter 19, Prevention of 

Significant Deterioration of Air Quality, 

incorporates the relevant portions of the 


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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 

O3.

Based upon review of the state’s 

infrastructure SIP submission for the 

2008 O3 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)(C) for the 2008 O3

NAAQS and is proposing to approve 

this element of the February 11, 2013, 

SIP 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 regard to 110(a)(2)(D)(i)(I)— 

prongs 1 and 2, EPA is not proposing 

action at this time. The Agency plans to 

take action on this portion of the SIP 

consistent with Consent Decree 4:14-cv03198–YGR. 

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 1997 and 

2006 PM2.5 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). Therefore, EPA is 

proposing to approve the PSD 

requirements of section 

110(a)(2)(D)(i)(II)—prong 3. 

EPA is proposing to disapprove 

Nebraska’s SIP as it relates to section 

110(a)(2)(D)(i)(II) with respect to 

visibility, or ‘‘prong 4’’ of the 

requirements of section 110(a)(2)(D). In 

its SIP submittal, Nebraska refers to its 

submittal of a SIP revision in July 2011 

addressing the regional haze 

requirements. An approved regional 

haze SIP that fully meets the regional 

haze requirements in 40 CFR 51.308 

would satisfy the requirements of 

section 110(a)(2)(D)(i)(II) for visibility 

protection as such a SIP would ensure 

that emissions from the state will not 

interfere with measures required to be 

included in other state SIPs to protect 

visibility. EPA has not, however, fully 

approved Nebraska’s Regional Haze SIP. 

On July 6, 2012, after reviewing 

Nebraska’s submittal of a Regional Haze 

SIP, EPA published the ‘‘Approval, 

Disapproval and Promulgation of 

Implementation Plans; State of 

Nebraska; Regional Haze State 

Implementation Plan; Federal 

Implementation Plan for Best Available 

Retrofit Technology Determination; 

Final Rule’’ (77 FR 40150). In that 

action, EPA partially approved the SIP 

revision as meeting the applicable 

regional haze requirements set forth in 

sections 169A and 169B of the Act and 

in the Federal regulations codified at 40 

CFR 51. 308, and the requirements of 40 

CFR part 51, subpart F and appendices 

V and Y. EPA disapproved the SO2

BART determinations for units 1 and 2 

of the Gerald Gentleman Station (GGS) 

because they do not comply with EPA’s 

regulations. EPA also disapproved 

Nebraska’s long-term strategy insofar as 

it relied on the deficient SO2 BART 

determination at GGS. Instead, EPA 

finalized a FIP relying on the Transport 

Rule as an alternative to BART for SO2

emissions from GGS to address these 

deficiencies. EPA approved Nebraska’s 

NOX BART determination at GGS as 

SIP-strengthening and approved the 

CSAPR FIP as satisfying the 

requirements for the Regional Haze Rule 

with respect to NOX. Given this, EPA 

cannot approve Nebraska’s SIP as 

meeting the prong 4 requirements based 

on the absence of a fully approved 

Regional Haze SIP. 

In the absence of a fully approved 

Regional Haze SIP, a state may meet the 

requirements of prong 4 by showing that 

its SIP contains adequate provisions to 

prevent emission from within the state 

from interfering with other states’ 

measures to protect visibility. See, e.g. 

76 FR 8326 (February 14, 2011). 

Nebraska did not, however, provide a 

demonstration in its infrastructure SIP 

that emissions within its jurisdiction do 

not interfere with other states’ plans to 

protect visibility. 

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

that the SIP insure 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. 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 O3 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 O3 NAAQS. 


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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 O3 NAAQS, and relevant statutory 

and regulatory authorities and 

provisions referenced in the submission 

or referenced in Nebraska’s SIP, EPA is 

not proposing action on section 

110(a)(2)(D)(i)(I)—prongs 1 and 2 and is 

disapproving 110(a)(2)(D)(i)(II)—prong 

4. However, EPA believes that Nebraska 

has the adequate infrastructure needed 

to address, 110(a)(2)(D)(i)(II)—prong 3 

and 110 (a)(2)(D)(ii) for the 2008 O3

NAAQS and is proposing to approve the 

February 11, 2013, submission regarding 

the 2008 O3 infrastructure SIP 

requirements for those elements as 

indicated above. 

(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 O3

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 

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 

representation on state boards and 

conflicts of interest by members of such 

boards. 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. 

On October 21, 2014, EPA approved 

Nebraska’s SIP revision addressing 

section 128 requirements. For a detailed 

analysis concerning Nebraska’s section 

128 provisions, see EPA’s approval of 

Nebraska’s 2008 Lead infrastructure SIP 

(79 FR 62832). 

(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 sub-grants 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 

2008 O3 NAAQS and relevant statutory 

and regulatory authorities and 

provisions referenced in these 

submissions 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 

O3 NAAQS submitted and is proposing 

to approve the February 11, 2013 

submission regarding the 2008 O3

infrastructure SIP requirements for this 

element. 


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(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 O3. The Federal 

test methods in 40 CFR part 60, 

appendix A are referenced in title 129, 

chapter 34 section 002.02. 

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 O3 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 O3 NAAQS 

submitted and is proposing to approve 

the February 11, 2013, submission 

regarding the infrastructure SIP 

requirements for this element. 

(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 upon review of the state’s 

infrastructure SIP submission for the 

2008 O3 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 O3 NAAQS 

submitted and is proposing to approve 

the February 11, 2013, submission 

regarding the 2008 O3 infrastructure SIP 

requirements for this element. 

(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 O3 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 O3 NAAQS submitted and 

is proposing to approve this element in 

regard to the February 11, 2013, 

submission regarding the 2008 O3

infrastructure SIP requirements for this 

element. 

(I) Nonattainment areas: Section 

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

a plan or plan revision for areas 

designated as nonattainment areas, 

states must meet applicable 

requirements of part D of the 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. 


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(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 section 127, 

the infrastructure SIP should provide 

citations to regulations in the SIP 

requiring the air agency to regularly 

notify the public of instances or areas in 

which any NAAQS are exceeded; advise 

the public of the health hazard 

associated with such exceedances; and 

enhance public awareness of measures 

that can prevent such exceedances and 

of ways in which the public can 

participate in the regulatory and other 

efforts to improve air quality. 

Title 129, chapter 38 of the NAC, 

discussed previously in connection with 

the state’s authority to address 

emergency episodes at element (G), 

contains provisions for public 

notification of elevated ozone and other 

air pollutant levels. Appendix I to title 

129 of the NAC includes measures 

which can be taken by the public to 

reduce concentrations. In addition, 

information regarding air pollution and 

related issues, is provided on an NDEQ 

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

NDEQSite.nsf/AirDivSecProg?

OpenView&Start=

1&ExpandView&Count=500. NDEQ also 

prepares an annual report on air quality 

in the state which is available to the 

public on its Web site, at http://

www.deq.state.ne.us/Publica.nsf/

c4afc76e4e077e11862568770059b73f/

a12a5ada6cce1c1686257a47004e0633

!OpenDocument. 

(3) With respect to the applicable 

requirements of part C of the CAA, 

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. Regarding the 

prevention of significant deterioration 

requirements, EPA previously approved 

Nebraska’s PM2.5 PSD program as found 

at 79 FR 45108. On January 22, 2013, 

the U.S. Court of Appeals for the District 

of Columbia vacated and remanded the 

provisions at 40 CFR 51.166(k)(2) and 

52.21(k)(2) concerning implementation 

of the PM2.5 SILs and vacated the 

provisions at 40 CFR 51.166(i)(5)(i)(c) 

and 52.21 (i)(5)(i)(c) (adding the PM2.5

SMCs) that were promulgated as part of 

the October 20, 2010, rule, Prevention of 

Significant Deterioration (PSD) for 

Particulate Matter less than 2.5 

Micrometers (PM2.5)—Increments, 

Significant Impact Levels and 

Significant Monitoring Concentrations, 

75 CFR 64864. Consistent with the 

court’s ruling, on June 27, 2013, 

Nebraska submitted a request to not 

include the SIP provisions relating the 

Significant Impact Levels (SILs) and 

Significant Monitoring Concentrations 

(SMCs). 

With respect to the visibility 

component of section 110(a)(2)(J), 

Nebraska stated in its 2008 O3

infrastructure SIP submittals that the 

‘‘Visibility Protection’’ requirements of 

chapter 43 of title 129 of the Nebraska 

Administrative Code met part C 

visibility requirements of element J. The 

‘‘Visibility Protection’’ requirements of 

chapter 43 were submitted by Nebraska 

for incorporation into the Nebraska SIP 

on November 8, 2011, and will be 

addressed in a separate rulemaking. 

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. As such, EPA 

is proposing to find that Nebraska’s SIP 

meets the visibility requirements of 

element J with respect to the 2008 O3

NAAQS as there are no new applicable 

requirements triggered by the 2008 O3

NAAQS. 

Based upon review of the state’s 

infrastructure SIP submission for the 

2008 O3 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 O3 NAAQS in 

the state and is therefore proposing to 

approve this element of the February 11, 

2013, 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 O3 NAAQS, and relevant statutory 

and regulatory authorities and 

provisions referenced in the submission 

or referenced in Nebraska’s SIP, EPA 


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35294 Federal Register / Vol. 80, No. 118 / Friday, June 19, 2015 / Proposed Rules 

believes that Nebraska has the adequate 

infrastructure needed to address section 

110(a)(2)(K) for the 2008 O3 NAAQS and 

is proposing to approve the February 11, 

2013, submission regarding the 2008 O3

infrastructure SIP requirements for this 

element. 

(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). 

Based upon review of the state’s 

infrastructure SIP submission for the 

2008 O3 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)(L) for the 2008 O3 NAAQS and 

is proposing to approve the February 11, 

2013, submission regarding the 2008 O3

infrastructure SIP requirements for this 

element. 

(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 O3 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 O3 NAAQS 

and is proposing to approve the April 3, 

2008, submission regarding the 2008 O3

infrastructure SIP requirements for this 

element. 

V. What action is EPA proposing? 

EPA is proposing to approve the 

infrastructure SIP submissions from 

Nebraska which address the 

requirements of CAA sections 110(a)(1) 

and (2) as applicable to the 2008 O3

NAAQS. Specifically, EPA is proposing 

to approve the following infrastructure 

elements, or portions thereof: 

110(a)(2)(A), (B), (C), (D)(i)(II)—prong 

3, (D)(ii), (E), (F), (G), (H), (J), (K), (L), 

and (M). As discussed in each 

applicable section of this rulemaking, 

EPA is not proposing action on section 

110(a)(2)(D)(i)(I)—prongs 1 and 2 and 

section 110(a)(2)(I)—Nonattainment 

Area Plan or Plan Revisions under part 

D. And finally, EPA is proposing to 

disapprove 110(a)(2)(D)(i)(II)—prong 4, 

as it relates to the protection of 

visibility. 

Based upon review of the state’s 

infrastructure SIP submissions and 

relevant statutory and regulatory 

authorities and provisions referenced in 

the submission 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 

O3 NAAQS are implemented in the 

state. 

We are hereby soliciting comment on 

this proposed action. Final rulemaking 

will occur after consideration of any 

comments. 

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 proposed action: 

• Is not a ‘‘significant regulatory 

action’’ under the terms of 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). 

The SIP is not approved to apply on 

any Indian reservation land or in any 

other area where EPA or an Indian tribe 

has demonstrated that a tribe has 

jurisdiction. In those areas of Indian 

country, the rule does not have tribal 

implications and will not impose 

substantial direct costs on tribal 

governments or preempt tribal law as 

specified by Executive Order 13175 (65 

FR 67249, November 9, 2000). 


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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, 

Sulfur dioxide, Reporting and 

recordkeeping requirements. 

Dated: June 1, 2015. 

Mark Hague, 

Acting Regional Administrator, Region 7. 

[FR Doc. 2015–14336 Filed 6–18–15; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R08–OAR–2015–0085; FRL–9929–35– 

Region 8] 

Approval and Promulgation of State 

Implementation Plan Revisions; Rules, 

General Requirements and Test 

Methods; Utah 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is proposing to approve 

State Implementation Plan (SIP) 

revisions submitted by the State of Utah 

on January 28, 2010, September 16, 

2010, June 18, 2013, and August 29, 

2014. These submittals revise the rules, 

general requirements and test methods 

for the State of Utah. The amendments 

also update the version of the Code of 

Federal Regulations (CFR) incorporated 

by reference into the rules of the State 

of Utah. EPA is not taking action on an 

April 26, 2012 submittal or a November 

4, 2013 submittal because they have 

been superseded by the August 29, 2014 

submittal. EPA is taking this action in 

accordance with section 110 of the 

Clean Air Act (CAA). 

DATES: Written comments must be 

received on or before July 20, 2015. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R08– 

OAR–2015–0085, by one of the 

following methods: 

• http://www.regulations.gov. Follow 

the on-line instructions for submitting 

comments. 

• Email: ostendorf.jody@epa.gov 

• Fax: (303) 312–6064 (please alert 

the individual listed in the FOR FURTHER

INFORMATION CONTACT if you are faxing 

comments). 

• Mail: Director, Air Program, 

Environmental Protection Agency 

(EPA), Region 8, Mail Code 8P–AR, 

1595 Wynkoop Street, Denver, Colorado 

80202–1129. 

• Hand Delivery: Director, Air 

Program, Environmental Protection 

Agency (EPA), Region 8, Mail Code 8P– 

AR, 1595 Wynkoop Street, Denver, 

Colorado 80202–1129. Such deliveries 

are only accepted Monday through 

Friday, 8:00 a.m. to 4:30 p.m., excluding 

federal holidays. Special arrangements 

should be made for deliveries of boxed 

information. 

Instructions: Direct your comments to 

Docket ID No. EPA–R08–OAR–2015– 

0085. 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 information that you 

consider to be CBI or otherwise 

protected through www.regulations.gov 

or email. 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. For additional information 

about EPA’s public docket visit the EPA 

Docket Center homepage at http://

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

For additional instructions on 

submitting comments, go to section I, 

General Information, of the 

SUPPLEMENTARY INFORMATION section of 

this document. 

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, e.g., CBI or other information 

whose disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, will be publicly 

available only in hard copy. Publicly 

available docket materials are available 

either electronically in 

www.regulations.gov or in hard copy at 

the Air Program, Environmental 

Protection Agency (EPA), Region 8, 

1595 Wynkoop Street, Denver, Colorado 

80202–1129. EPA requests that if at all 

possible, you contact the individual 

listed in the FOR FURTHER INFORMATION

CONTACT section to view the hard copy 

of the docket. You may view the hard 

copy of the docket Monday through 

Friday, 8:00 a.m. to 4:00 p.m., excluding 

federal holidays. 

FOR FURTHER INFORMATION CONTACT: Jody 

Ostendorf, Air Program, U.S. 

Environmental Protection Agency 

(EPA), Region 8, Mail Code 8P–AR, 

1595 Wynkoop Street, Denver, Colorado 

80202–1129. 303–312–7814, 

ostendorf.jody@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. General Information 

II. Analysis of the State Submittals 

III. What Action is EPA Taking Today? 

IV. Incorporation by Reference 

V. Statutory and Executive Orders Reviews 

I. General Information 

What should I consider as I prepare my 

comments for EPA? 

1. Submitting Confidential Business 

Information (CBI). Do not submit CBI to 

EPA through http://www.regulations.gov 

or email. Clearly mark the part or all of 

the information that you claim to be 

CBI. For CBI information on a disk or 

CD–ROM that you mail to EPA, mark 

the outside of the disk or CD–ROM as 

CBI and then identify electronically 

within the disk or CD–ROM the specific 

information that is claimed as CBI. In 

addition to one complete version of the 

comment that includes information 

claimed as CBI, a copy of the comment 

that does not contain the information 

claimed as CBI must be submitted for 

inclusion in the public docket. 

Information so marked will not be 

disclosed except in accordance with 

procedures set forth in 40 CFR part 2. 

2. Tips for preparing your comments. 

When submitting comments, remember 

to: 

• Identify the rulemaking by docket 

number and other identifying 

information (subject heading, Federal 

Register volume, date, and page 

number); 

• Follow directions and organize your 

comments; 

• Explain why you agree or disagree; 

• Suggest alternatives and substitute 

language for your requested changes; 


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