[Federal Register Volume 62, Number 54 (Thursday, March 20, 1997)]
[Rules and Regulations]
[Pages 13329-13331]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-7097]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[NE 020-1020; FRL-5708-7]


Approval and Promulgation of Implementation Plans; State of 
Nebraska

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: With this document, the EPA is approving the Omaha lead 
emission control plan submitted by the state of Nebraska on August 28, 
1996. This plan was submitted by the state to satisfy certain 
requirements under the Clean Air Act (the Act) to reduce lead emissions 
sufficient to bring portions of the Omaha area into attainment with the 
lead National Ambient Air Quality Standard (NAAQS).

DATES: This rule is effective on April 21, 1997.

ADDRESSES: Copies of the documents relevant to this action are 
available for public inspection during normal business hours at the: 
Environmental Protection Agency, Air Planning and Development Branch, 
726 Minnesota Avenue, Kansas City, Kansas 66101; and the EPA Air & 
Radiation Docket and Information Center, 401 M Street, SW., Washington, 
DC 20460.

FOR FURTHER INFORMATION CONTACT: Joshua A. Tapp at (913) 551-7606.

SUPPLEMENTARY INFORMATION:

I. Background and Purpose

A. Introduction

    On January 6, 1992, the EPA designated portions of Omaha 
surrounding the Asarco, Incorporated primary lead refinery as 
nonattainment for the lead NAAQS. Specifically, the boundaries for the 
nonattainment area are: Avenue H and the Iowa-Nebraska border on the 
north, the Missouri River on the east, Eleventh Street on the west, and 
Jones Street on the south. Pursuant to the designation, the Act 
required the state of Nebraska to submit an attainment plan by July 6, 
1993, which would bring the area into attainment by January 6, 1997.
    On August 28, 1996, the state submitted a plan to the EPA which 
consists of Compliance Order (Case Number) 1520 and associated work 
practices. This plan meets the minimum requirements of sections 110 and 
172 of the Act and in the ``Addendum to the General Preamble for the 
Implementation of Title I of the Clean Air Act Amendments of 1990'' (58 
FR 67748). The rationale regarding the EPA's approval of this plan can 
be found in the December 4, 1996, Federal Register document (61 FR 
64304) proposing the EPA's action on Nebraska's plan and in the 
technical support document (TSD) for this action.

B. Response to Comments

    The EPA received comments from only one commentor. On January 3, 
1997, the state of Nebraska submitted the following two comments. The 
state identified a typographical error made by the EPA in its December 
4, 1996, proposal in subsection III.f., ``Contingency Measures.'' 
Specifically, the EPA's discussion of Nebraska's prohibition on causing 
a violation of the lead ambient air quality standard should have 
referenced paragraph 19 of Compliance Order (Case Number) 1520, instead 
of paragraph 20.
    The EPA agrees with this comment and wishes to make one additional 
correction. The EPA's discussion of street sweeping and production cuts 
in the same subsection should have referenced paragraph 18 of 
Compliance Order (Case Number) 1520, instead of paragraph 19.
    The EPA has determined that the proposal notice adequately 
described the issues associated with the substance of the referenced 
paragraphs. Therefore, despite the incorrect references to paragraph 
numbers in the proposal, the EPA has determined that the proposal gives 
adequate notice of the rationale for the EPA's proposed action on the 
two paragraphs of the Compliance Order referenced above.
    In its second comment, the state disagrees with the EPA's proposed 
nonaction on the provisions pertaining to the direct enforcement of the 
lead NAAQS contained in paragraph 19 of

[[Page 13330]]

the Compliance Order. In support of its comment, the state points to 
certain provisions of section 110 of the Act which authorize the 
Administrator to approve a broad spectrum of measures, means, or 
techniques contained in the state's plan to the extent that they are 
necessary and appropriate to meet the applicable requirements under the 
Act. Nebraska indicates that other states use similar provisions to 
achieve attainment. Nebraska also effectively describes the difficulty 
in addressing individual sources at a facility of this nature through 
its traditional regulatory process. Specifically, the large number and 
variety of sources, the variability of the emissions rates, the weather 
dependent nature of fugitive emissions, and the source's desire for 
operational flexibility make it difficult for the state to develop 
regulations for this source which are both protective of the NAAQS and 
which are sufficiently flexible to meet Asarco's needs. According to 
the state, paragraph 19 resolves this issue by protecting the NAAQS 
while allowing Asarco increased flexibility.
    The EPA acknowledges the state's reasons for developing the 
provisions of paragraph 19. However, the EPA's concerns regarding this 
provision specifically relate to its general enforceability and its 
inconsistency with the criteria for contingency measures contained in 
section 172(c)(9) of the Act, and in the ``Addendum to the General 
Preamble for the Implementation of Title I of the Clean Air Act 
Amendments of 1990'' (58 FR 67748). Specifically, paragraph 19 does not 
require the source to implement specific measures which reduce ambient 
lead concentrations when a violation of the standard occurs. The 
state's remedy for a violation of this paragraph is to assess a penalty 
or to seek injunctive relief. Neither of these options has a direct 
impact on ambient lead concentrations. As noted in the proposal, other 
provisions of the Order which require specific emission reductions (if 
the NAAQS are violated) are sufficient to meet the contingency measure 
requirements in section 172(c)(9). Secondly, the state has not defined 
the methods by which it will demonstrate that Asarco is the sole source 
of the ambient violation. Without predefining such methods, successful 
enforcement of paragraph 19 will be difficult. For the reasons stated 
above, and as explained in more detail in the TSD for this action, the 
EPA will not take action on paragraph 19 of Compliance Order (Case 
Number) 1520 at this time.

II. Final Action

    In this document, the EPA takes final action to approve the 
Nebraska Department of Environmental Quality's Compliance Order (Case 
Number) 1520, signed June 6, 1996, and Appendix A to that Compliance 
Order entitled, ``Work Practices Manual.'' Together, these documents, 
submitted to the EPA on August 28, 1996, comprise the enforceable 
portion of the Nebraska attainment plan. However, the EPA takes no 
action on paragraph 19 of Compliance Order (Case Number) 1520 for the 
reasons stated above.
    Nothing in this action should be construed as permitting or 
allowing or establishing a precedent for any future request for 
revision to any SIP. Each request for revision to the SIP shall be 
considered separately in light of specific technical, economic, and 
environmental factors, and in relation to relevant statutory and 
regulatory requirements.
    SIP approvals under section 110 and subchapter I, Part D of the CAA 
do not create any new requirements but simply approve requirements that 
the state is already imposing. Therefore, because the Federal SIP 
approval does not impose any new requirements, the Administrator 
certifies that it does not have a significant impact on any small 
entities affected. Moreover, due to the nature of the Federal-state 
relationship under the CAA, preparation of a regulatory flexibility 
analysis would constitute Federal inquiry into the economic 
reasonableness of state action. The CAA forbids the EPA to base its 
actions concerning SIPs on such grounds (Union Electric Co. v. U.S. 
E.P.A., 427 U.S. 246, 256-66 (S.Ct. 1976); 42 U.S.C. 7410(a)(2)).

III. Administrative Requirements

A. Executive Order 12866

    This action has been classified as a Table 3 action for signature 
by the Regional Administrator under the procedures published in the 
Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by a 
July 10, 1995, memorandum from Mary Nichols, Assistant Administrator 
for Air and Radiation. The Office of Management and Budget has exempted 
this regulatory action from Executive Order 12866 review.

B. Unfunded Mandates

    Under section 202 of the Unfunded Mandates Reform Act of 1995 
(``Unfunded Mandates Act''), signed into law on March 22, 1995, the EPA 
must prepare a budgetary impact statement to accompany any proposed or 
final rule that includes a Federal mandate that may result in estimated 
costs to state, local, or tribal governments in the aggregate; or to 
private sector, of $100 million or more. Under section 205, the EPA 
must select the most cost-effective and least burdensome alternative 
that achieves the objectives of the rule and is consistent with 
statutory requirements. Section 203 requires the EPA to establish a 
plan for informing and advising any small governments that may be 
significantly or uniquely impacted by the rule.
    The EPA has determined that the approval action promulgated does 
not include a Federal mandate that may result in estimated costs of 
$100 million or more to either state, local, or tribal governments in 
the aggregate, or to the private sector. This Federal action approves 
preexisting requirements under state or local law, and imposes no new 
requirements. Accordingly, no additional costs to state, local, or 
tribal governments, or to the private sector, result from this action.

C. Submission to Congress and the General Accounting Office

    Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business 
Regulatory Enforcement Fairness Act of 1996, the EPA submitted a report 
containing this rule and other required information to the U.S. Senate, 
the U.S. House of Representatives, and the Comptroller General of the 
General Accounting Office prior to publication of this rule in today's 
Federal Register. This rule is not a ``major rule'' as defined by 5 
U.S.C. 804(2).

D. Petitions for Judicial Review

    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 May 19, 1997. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this rule 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, Lead, Particulate matter, 
Reporting and recordkeeping requirements.


[[Page 13331]]


    Dated: February 27, 1997.
U. Gale Hutton,
Acting Regional Administrator.
    Part 52, chapter I, title 40 of the Code of Federal Regulations is 
amended as follows:

PART 52--[AMENDED]

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

    Authority: 42 U.S.C. 7401--7671q.

Subpart CC--Nebraska

    2. Section 52.1420 is amended by adding paragraph (c)(45) to read 
as follows:


Sec. 52.1420  Identification of plan.

* * * * *
    (c) * * *
    (45) A revision to the Nebraska SIP to reduce lead emissions in the 
Omaha lead nonattainment area sufficient to bring that area back into 
attainment with the lead National Ambient Air Quality Standard.
    (i) Incorporation by reference.
    (A) Amended Complaint and Compliance Order Case No. 1520, signed 
June 6, 1996, except for paragraph 19 and accompanying work practice 
manual in Appendix A.
    (ii) Additional material.
    (A) Supplemental document entitled, ``Methods for Determining 
Compliance'' submitted by the state to provide additional detail 
regarding the compliance methods for this Order.

[FR Doc. 97-7097 Filed 3-19-97; 8:45 am]
BILLING CODE 6560-50-P