30352 Federal Register / Vol. 83, No. 125 / Thursday, June 28, 2018 / Rules and Regulations 

affect the finality of this action for the 

purposes of judicial review nor does it 

extend the time within which a petition 

for judicial review may be filed, and 

shall not postpone the effectiveness of 

such rule or action. This action may not 

be challenged later in proceedings to 

enforce its requirements. (See section 

307(b)(2).) 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Intergovernmental relations, 

Nitrogen dioxide, Particulate matter, 

Reporting and recordkeeping 

requirements, Sulfur oxides, Volatile 

organic compounds. 

Dated: June 18, 2018. 

Cathy Stepp, 

Regional Administrator, Region 5. 

40 CFR part 52 is amended as follows: 

PART 52—APPROVAL AND 

PROMULGATION OF 

IMPLEMENTATION PLANS 

■ 1. The authority citation for part 52 

continues to read as follows: 

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

■ 2. In § 52.1220, the table in paragraph 

(e) is amended by adding an entry for 

‘‘Regional Haze Progress Report’’ to 

follow the entry titled ‘‘Regional Haze 

Plan’’ to read as follows: 

§ 52.1220 Identification of plan. 

* * * * * 

(e) * * * 

EPA—APPROVED MINNESOTA NONREGULATORY PROVISIONS

Name of nonregulatory SIP provision 

Applicable 

geographic or 

nonattainment 

area 

State 

submittal 

date/ 

effective 

date 

EPA approved date Comments 

*******

Regional Haze Progress Report .................... statewide .......... 12/30/2014 6/28/2018, [insert Federal Register citation] 

* * * * * * * 

* * * * * 

[FR Doc. 2018–13825 Filed 6–27–18; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R07–OAR–2017–0386; FRL–9979– 

85—Region 7] 

Approval of Nebraska Air Quality 

Implementation Plans; Adoption of a 

New Chapter Under the Nebraska 

Administrative Code 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is taking final action to 

approve the State Implementation Plan 

(SIP) revision submitted by the state of 

Nebraska on November 14, 2011. 

Nebraska is adding a new chapter titled 

‘‘Visibility Protection’’ which provides 

Nebraska authority to implement 

Federal regulations relating to Regional 

Haze and Best Available Retrofit 

Technology (BART). The new chapter 

incorporates EPA’s Guidelines for BART 

Determinations under the Regional Haze 

Rule. The revision to the SIP meets the 

visibility component of the Clean Air 

Act (CAA). 

DATES: This final rule is effective on July 

30, 2018. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

No. EPA–R07–OAR–2017–0386. All 

documents in the docket are listed on 

the https://www.regulations.gov 

website. Although listed in the index, 

some information is not publicly 

available, i.e., CBI or other information 

whose disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, is not placed on 

the internet and will be publicly 

available only in hard copy form. 

Publicly available docket materials are 

available through https://

www.regulations.gov or please contact 

the person identified in the FOR FURTHER

INFORMATION CONTACT section for 

additional information. 

FOR FURTHER INFORMATION CONTACT: Greg 

Crable, Environmental Protection 

Agency, Air Planning and Development 

Branch, 11201 Renner Boulevard, 

Lenexa, Kansas 66219 at (913) 551– 

7391, or by email at crable.gregory@

epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document ‘‘we,’’ ‘‘us,’’ 

and ‘‘our’’ refer to EPA. This section 

provides additional information by 

addressing the following: 

I. Background 

II. What is being addressed in this document? 

III. Have the requirements for approval of a 

SIP revision been met? 

IV. EPA’s Response to Comments 

V. What action is EPA taking? 

VI. Incorporation by Reference 

VII. Statutory and Executive Order Reviews 

I. Background 

EPA received Nebraska’s November 8, 

2011, SIP submission. On October 5, 

2017, EPA proposed to approve the SIP 

submission from the State of Nebraska. 

See 82 FR 46433. In conjunction with 

the October 5, 2017 notice of proposed 

rulemaking (NPR), EPA issued a direct 

final rule (DFR) approving the same SIP 

submission. See 82 FR 46415. However, 

in the DFR, EPA stated that if EPA 

received adverse comments by 

November 6, 2017, the action would be 

withdrawn and not take effect. EPA 

received one set of adverse comments 

prior to the close of the comment 

period. EPA withdrew the DFR on 

November 27, 2017. See 82 FR 55951. 

The revision to title 129, adding 

chapter 43, Visibility Protection, 

addressed in this action was originally 

proposed and approved during the 

September 8, 2006, Environmental 

Quality Council (ECQ) meeting. 

However, the revision was not approved 

by Attorney General’s office. On August 

17, 2007, an amended package was resubmitted to the EQC, at which time it 

was approved by both the EQC and the 

Attorney General’s office. After the 

Governor’s signature, the revision 

adding chapter 43 became effective on 

February 6, 2008. Chapter 43 was 

submitted to the EPA, as part of a larger 

SIP package on November 8, 2011. Some 

of the revisions submitted in November 

2011, were withdrawn by the State for 

various reasons. The remaining 

revisions to title 129, except for 


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1Title 40 Code of Federal Regulation (CFR) 

51.308. 2September 12, 2016, letter in the docket. 

revisions adding chapter 43, were 

approved on October 7, 2016, (81 FR 

69693). Chapter 43 is being addressed 

with this action. 

This final rule action will include the 

updated docket, address comments 

received, and finalize the approval of 

Nebraska’s SIP submission. 

II. What is being addressed in this 

document? 

EPA is taking action to approve 

revisions to Nebraska’s SIP that will 

amend title 129 of the Nebraska 

Administrative Code to include a rule 

addressing certain requirements related 

to regional haze rule of 1999 1. This 

proposed revision adds a new chapter, 

chapter 43, entitled ‘‘Visibility 

Protection’’, to title 129 which 

incorporates a portion of EPA Code of 

Federal Regulations under title 40 part 

51 of EPA’s Guidelines for BART 

determinations under the Regional Haze 

Rule. This new chapter provides the 

Nebraska Department of Environmental 

Quality (NDEQ) the authority to require 

sources to conduct BART 

determinations for the purpose of 

issuing BART permits. This revision to 

title 129 is consistent with Federal 

regulations related to Regional Haze and 

BART, adopting by reference the 

definitions for the Federal Regional 

Haze rule at 40 CFR 51.301 and 

adopting by reference, appendix Y to 40 

CFR part 51, ‘‘Guidelines for BART 

Determinations under the Regional Haze 

Rule.’’ The revision to the SIP also 

meets the visibility component of the 

CAA section 110(a)(2)(J). Approval of 

these revisions will not impact air 

quality and will ensure consistency 

between the State and federally 

approved rules. 

III. Have the requirements for approval 

of a SIP revision been met? 

The state submission has met the 

public notice requirements for SIP 

submissions in accordance with 40 CFR 

51.102. The submission also satisfied 

the completeness criteria of 40 CFR part 

51, appendix V. The revised chapter 

was placed on public notice and a 

public hearing was held by the State on 

July 13, 2007, where no comments were 

received. In addition, the revision meets 

the substantive SIP requirements of the 

CAA, including section 110 and 

implementing regulations. 

IV. EPA’s Response to Comments 

The public comment period on EPA’s 

proposed rule opened October 5, 2017 

the date of its publication in the Federal 

Register, and closed on November 6, 

2017. During this period, EPA received 

one set of adverse comments, which are 

addressed below. 

Comment 1: The commenter stated 

that the EPA has improperly titled this 

action. The commenter elaborated by 

stating that if EPA is acting on a 

Regional Haze SIP from Nebraska, then 

it should not be calling this ‘New 

Chapter under Nebraska Code’. The 

commenter’s concern was that the title 

was not descriptive or transparent. 

Finally, the commenter stated that the 

EPA’s titling of this action could very 

well violate the administrative 

procedures act (APA), or at least the 

spirit of the APA. 

Response 1: By this action, EPA is not 

acting on a regional haze SIP. This rule 

gives NDEQ the authority to issue 

permits for best available retrofit 

technology or ‘‘BART.’’ EPA retained 

the title used by the state in describing 

its SIP, and that title accurately 

describes the action—addition of the 

new chapter 43. 

The Administrative Procedure Act at 

5 U.S.C. 553(b)(1)–(3) states that the 

notification of the rule be published in 

the Federal Register and that the 

document shall include the time, place, 

and nature of the public rule making 

proceedings, the legal authority for the 

proposed rule, and either the terms or 

substance of the proposed rule or a 

description of the subjects and issues 

involved. This action meets the 

procedures outlined in the APA. The 

proposal document was published in 

the Federal Register. See 82 FR 46433. 

It provided a summary that clearly 

described that substance of the 

proposed rule, explaining that the 

addition of the new chapter provides 

Nebraska with ‘‘authority to implement 

Federal regulations relating to Regional 

Haze and Best Available Retrofit 

Technology (BART) . . . [and] meets the 

visibility component of the Clean Air 

Act (CAA).’’ Id. In addition, the 

document provided information on the 

process for submitting comments and 

explained the general rulemaking 

process EPA was using (i.e., the direct 

final rule with an accompany parallel 

proposal). That document also clearly 

stated that EPA ‘‘explained our reasons 

for this action in the preamble to the 

direct final rule,’’ id., thereby 

incorporating the information provided 

in the accompanying direct final rule 

preamble, and directing the reader 

where to find the document for the 

direct final rule within the Federal 

Register. In turn, the document for the 

direct final rule provided more detail on 

the substance of the SIP submittal and 

the legal authority for both Nebraska’s 

submission and EPA’s action on it. See 

82 FR 46415 (which includes a section 

describing how the state’s submission 

met various statutory and regulatory 

requirements and explaining that EPA 

could approve the submission because it 

is consistent with Federal Regional Haze 

regulations in 40 CFR part 51 and CAA 

section 110(a)(2)(j)). 

Comment 2: The commenter stated 

that EPA needs to repropose this action. 

The commenter stated that multiple 

documents in the docket were 

incomplete, specifically citing: ‘‘1) the 

memo from NE that details the regional 

haze changes to chapter 43 has been 

cutoff, see docket document ending in 

2017–0386–0012, page 4—this page 

ends in the middle of a sentence and 

does not include important information 

allowing me to evaluate and provide 

comment. 2) Document ending in 2017– 

0386–0016, page 5 is corrupt and page 

6 is nonexistant [sic].’’ The commenter 

was concerned that information was not 

able to be reviewed or commented on. 

Response 2: After review of the 

comments received and the EPA’s 

docket for this action, the EPA agrees 

that the pages outlined by the 

commenter were missing. However, the 

missing pages highlighted by the 

commenter were not provided by the 

state as part of the state’s SIP 

submission, was an administrative error, 

and were not used to support the EPA’s 

action. To verify this statement, the EPA 

has followed up with the state of 

Nebraska. The state determined that the 

documents in the docket were the same 

as what was placed on review for public 

comment in Nebraska during the state’s 

comment period. The referenced 

memorandum was a request for 

approval. It is not evidence of the 

governor’s approval and therefore, is not 

relied upon for the approval of the SIP 

action. The attachment listed in the 

docket as 2017–0386–0016 is a 

proposed SIP revision for chapter 5 of 

Nebraska’s SIP. EPA took action on this 

portion of the submission on October 7, 

2016 (see 81 FR 69693). Therefore, 

attachment 2017–0386–0016 of the 

docket for this action is not relied upon 

to support this action. 

Additionally, the state’s submission 

included additional revisions that are 

not being acted upon in this action.2

When the EPA uploaded the docket for 

this action, additional attachments were 

included. For this action, the EPA relied 

upon the following specific pages of the 

outlined attachments: 

—EPA–R07–OAR–2017–0386–0003— 

pages 1 through 3; 


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3 82 FR 46433 4 62 FR 27968 (May 22, 1997). 

—EPA–R07–OAR–2017–0386–0004— 

page 1; 

—EPA–R07–OAR–2017–0386–0006— 

pages 1 through 12; 

—EPA–R07–OAR–2017–0386–0010— 

pages 5 through 6; 

—EPA–R07–OAR–2017–0386–0011— 

page 2; 

—EPA–R07–OAR–2017–0386–0013— 

page 2; 

—EPA–R07–OAR–2017–0386–0015— 

page 3; and 

—EPA–R07–OAR–2017–0386–0019— 

pages 1 through 4. 

All the documents EPA relied on were 

included in the docket at the time the 

Federal Register document was 

published. 

Comment 3: The commenter stated 

that the EPA failed to evaluate this 

action in regard to the March 27, 2017, 

executive order on energy independence 

and economic growth. EPA’s 

requirement for states to adopt regional 

haze SIPs, and thus including chapter 

43 in the SIP, will cause a significant 

impact on coal EGUs and eventually 

closure of coal EGUs in the state, 

causing economic hardship on the local 

communities. Nebraska’s fiscal impact 

statement says, ‘‘There is a substantial 

cost to BART-eligible sources for the 

required modeling under the BART 

program. As of now, it is unknown 

whether and what controls any source 

in Nebraska may have to install to 

comply with BART, but the cost of 

controls would be substantial.’’ The 

requirement to comply with chapter 43 

is significant. 

Response 3: Under the CAA, the 

Administrator is required to approve a 

SIP submission that complies with the 

provisions of the Act and applicable 

federal regulations. 42 U.S.C. 7410(k); 

40 CFR 52.02(a). Thus, in reviewing SIP 

submissions, the EPA’s role is to 

approve state actions, provided that 

they meet the criteria of the CAA. The 

EPA cannot consider disapproving a SIP 

submission or require any changes 

based on the March 27, 2017, executive 

order. 

Comment 4: The commenter stated 

that it is unclear from the action 

whether EPA is approving the other 

chapters and revisions to other chapters 

into the SIP. EPA included multiple 

other rules in the docket; however, the 

rule making action only discusses 

chapter 43, which is merely three 

provisions long. 

Response 4: EPA acknowledges that 

the state’s submittal referenced multiple 

additional chapters and revisions to the 

state’s rules. Within the proposal for 

this action, the EPA clearly stated that 

it was proposing ‘‘to take action to add 

chapter 43, ‘Visibility Protection.’ ’’ 82 

FR 46433. Within the EPA’s proposal, 

no additional chapters were referenced 

for approval. This action finalizes the 

proposed action 3 and does not include 

any additional chapters beyond chapter 

43. As the EPA stated earlier, additional 

portions of the state’s submittal were 

included in the docket for the proposed 

rule. As outlined in Nebraska’s 

September 12, 2016, letter, portions of 

the state’s submission were withdrawn. 

However, the EPA has kept the docket 

intact and added the September 12, 

2016, letter to provide additional clarity 

on which portions of the submission 

that the EPA was requested to approve. 

However, in response to comment 

number 2, the EPA has provided 

specific pages of the docket on which 

the EPA relied for this action. 

Comment 5: The commenter stated 

that the EPA did not evaluate the new 

regulation against the EPA’s Regional 

Haze Rule nor did EPA show that this 

new rule meets the regional haze 

requirements. EPA also did not say 

whether or not approving this new rule 

means that Nebraska has an approved 

Regional Haze SIP. 

Response 5: This action is not 

specifically a Regional Haze SIP. This 

action is designed to show that NDEQ 

has the authority to implement BART 

procedures. This action was not 

required as part of Nebraska’s Regional 

Haze SIP. The EPA partially approved 

and partially disapproved Nebraska’s 

Regional Haze SIP on July 6, 2012. The 

full docket for that rulemaking can be 

found at EPA–R07–2012–0158–0051. 

Comment 6: The commenter stated 

that assuming this new rule is not a 

Regional Haze SIP and does not meet 

the requirements of the Regional Haze 

rule, EPA needs to require Nebraska to 

submit any permits issued to address 

BART under this new rule as sourcespecific SIP revisions as this rule is 

merely a generic-type rule that lays out 

a process by which sources will address 

BART related requirements. 

Response 6: As explained above, this 

action is not specifically a Regional 

Haze SIP, so the assumptions alleged in 

the comment are not relevant. This 

action is designed to show that NDEQ 

has the authority to implement BART 

procedures and it has been approved for 

that purposes. This action was not 

required as part of Nebraska’s Regional 

Haze SIP, which the EPA partially 

approved and partially disapproved on 

July 6, 2012 (see rulemaking docket 

EPA–R07–2012–0158–0051). 

Comment 7: The commenter stated 

that the new chapter 43 and the revised 

chapter 1 do not include any Regional 

Haze related definitions such as the 

definition of BART, or the types of 

emission limitations or work practices 

which constitute BART for a given 

source. The commenter also stated that 

there was confusion on if EPA was 

acting on chapter 1 as part of this action. 

Response 7: As the EPA outlined in 

its proposed rule and explained above 

in response to comment 4, the EPA is 

only acting on chapter 43 in this action. 

EPA is not acting on revisions to chapter 

1 in this action. Chapter 43 references 

the Federal BART requirements. The 

state is incorporating a portion of the 

Federal requirements, including 

definitions related to BART. 

V. What action is EPA taking? 

EPA is taking final action to revise the 

Nebraska SIP to add a new chapter, 

chapter 43. 

VI. Incorporation by Reference 

In this rule, EPA is finalizing 

regulatory text that includes 

incorporation by reference. In 

accordance with requirements of 1 CFR 

51.5, EPA is finalizing the incorporation 

by reference of the Nebraska Regulations 

described in the amendments to 40 CFR 

part 52 set forth below. EPA has made, 

and will continue to make, these 

materials generally available through 

www.regulations.gov and at the EPA 

Region 7 Office (please contact the 

person identified in the FOR FURTHER

INFORMATION CONTACT section of this 

preamble for more information). 

Therefore, these materials have been 

approved by EPA for inclusion in the 

State implementation plan, have been 

incorporated by reference by EPA into 

that plan, are fully federally enforceable 

under sections 110 and 113 of the CAA 

as of the effective date of the final 

rulemaking of EPA’s approval, and will 

be incorporated by reference in the next 

update to the SIP compilation.4

VII. Statutory and Executive Order 

Reviews 

Under the CAA, the Administrator is 

required to approve a SIP submission 

that complies with the provisions of the 

Act and applicable Federal regulations. 

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

Thus, in reviewing SIP submissions, 

EPA’s role is to approve state choices, 

provided that they meet the criteria of 

the CAA. Accordingly, this action 

merely approves state law as meeting 

Federal requirements and does not 

impose additional requirements beyond 

those imposed by state law. For that 

reason, this action: 


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• Is not a significant regulatory action 

subject to review by the Office of 

Management and Budget under 

Executive Orders 12866 (58 FR 51735, 

October 4, 1993) and 13563 (76 FR 3821, 

January 21, 2011); 

• Is not an Executive Order 13771 (82 

FR 9339, February 2, 2017) regulatory 

action because SIP approvals are 

exempted under Executive Order 12866. 

• 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 (Public Law 104–4); 

• Does not have Federalism 

implications as specified in Executive 

Order 13132 (64 FR 43255, August 10, 

1999); 

• Is not an economically significant 

regulatory action based on health or 

safety risks subject to Executive Order 

13045 (62 FR 19885, April 23, 1997); 

• Is not a significant regulatory action 

subject to Executive Order 13211 (66 FR 

28355, May 22, 2001); 

• Is not subject to requirements of 

section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (15 U.S.C. 272 note) because 

application of those requirements would 

be inconsistent with the CAA; and 

• Does not provide EPA with the 

discretionary authority to address, as 

appropriate, disproportionate human 

health or environmental effects, using 

practicable and legally permissible 

methods, under Executive Order 12898 

(59 FR 7629, February 16, 1994). 

In addition, 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). 

The Congressional Review Act, 5 

U.S.C. 801 et seq., as added by the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. EPA will submit a 

report containing this action and other 

required information to the U.S. Senate, 

the U.S. House of Representatives, and 

the Comptroller General of the United 

States prior to publication of the rule in 

the Federal Register. A major rule 

cannot take effect until 60 days after it 

is published in the Federal Register. 

This action is not a ‘‘major rule’’ as 

defined by 5 U.S.C. 804(2). 

Under section 307(b)(1) of the CAA, 

petitions for judicial review of this 

action must be filed in the United States 

Court of Appeals for the appropriate 

circuit by August 27, 2018. Filing a 

petition for reconsideration by the 

Administrator of this final rule does not 

affect the finality of this action for the 

purposes of judicial review nor does it 

extend the time within which a petition 

for judicial review may be filed, and 

shall not postpone the effectiveness of 

such rule or action. This action may not 

be challenged later in proceedings to 

enforce its requirements. (See section 

307(b)(2)). 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Best available retrofit 

technology, Incorporation by reference, 

Intergovernmental relations, Nitrogen 

oxides, Particulate matter, Regional 

haze, Reporting and recordkeeping 

requirements, Sulfur dioxide, Visibility, 

Volatile organic compounds. 

Dated: June 13, 2018. 

James B. Gulliford, 

Regional Administrator, Region 7. 

For the reasons stated in the 

preamble, EPA amends 40 CFR part 52 

as set forth below: 

PART 52—APPROVAL AND 

PROMULGATION OF 

IMPLEMENTATION PLANS 

■ 1. The authority citation for part 52 

continues to read as follows: 

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

Subpart CC—Nebraska 

■ 2. In § 52.1420, the table in paragraph 

(c) is amended by revising the entry 

‘‘129–43’’ to read as follows: 

§ 52.1420 Identification of plan. 

* * * * * 

(c) * * * 

EPA-APPROVED NEBRASKA REGULATIONS 

Nebraska citation Title State effective 

date EPA Approval date Explanation 

STATE OF NEBRASKA 

Department of Environmental Quality 

Title 129—Nebraska Air Quality Regulations 

*******

129–43 ....................... Visibility Protection ........................................ 2/6/08 6/28/18, [insert Federal 

Register citation].

* * * * * * * 

* * * * * 

[FR Doc. 2018–13723 Filed 6–27–18; 8:45 am] 

BILLING CODE 6560–50–P 


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