372 Federal Register / Vol. 60, No. 2 / Wednesday, January 4, 1995 / Rules and Regulations

receiving grants and contributing less

than the required minimum of two-fifths

of the approved program costs shall

have until November 15, 1993 to

increase their contribution to the

required level.

(b) Subject to the conditions set forth

below, the Regional Administrator may,

at the request of the Governor of a State

or the Governor’s designee, or in the

case of a local jurisdiction, the

authorized local official, waive, for a 1–

year period, all or a portion of the costsharing requirement of paragraph (a) of

this section. The Regional Administrator

may renew the waiver for no more than

2 years so long as the total waiver

period does not exceed 3 years from the

approval date of a state’s permit

program required under section 502 of

the Clean Air Act (Act).

(1) The waiver may be approved on a

case-by-case basis and only when a state

or local government’s nonfederal

contribution is reduced below the

required two-fifths minimum as a result

of the redirection of its nonfederal air

resources to meet the requirements of

section 502(b) of the Act.

(2) In applying for a waiver the

Governor or the Governor’s designee, or

in the case of a local jurisdiction, the

authorized local official, must:

(i) Describe the extent of fiscal and

programmatic impact on the agency’s

section 105 program as a result of the

transfer of nonfederal resources to

support the program approved by EPA

under section 502(b) of the Act.

(ii) Provide documentation of the

amount of the cost-sharing shortfall and

the programmatic activities that would

not be able to be carried out if the

section 105 grant is reduced or not

awarded as a result of a state or local air

pollution control agency’s inability to

meet the cost-sharing requirements.

(iii) Assure that there is no source of

funding that may reasonably be used to

meet the cost-sharing requirement for

the affected grant budget period; and

(iv) Assure that during the section 105

grant period the non-federal share of the

program costs will not be reduced in an

amount greater than that authorized by

the waiver.

6. Section 35.210 is amended by

adding a sentence at the end of

paragraph (a) to read as follows:

§35.210 Maintenance of effort.

(a) * * * In order for the Regional

Administrator to award grants in a

timely manner each fiscal year, the

Regional Administrator shall compare

an agency’s proposed expenditure level,

as detailed in the agency’s application

for grant assistance, to that agency’s

expenditure level in the second

preceding fiscal year.

* * * * *

[FR Doc. 95–150 Filed 1–3–95; 8:45 am]

BILLING CODE 6560–50–F

40 CFR Part 52

[NE–6–1–6445a; FRL–5115–3]

Approval and Promulgation of

Implementation Plans and Delegation

of 112(l) Authority; State of Nebraska

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Direct final rule.

SUMMARY: This final action approves the

State Implementation Plan (SIP)

submitted by the state of Nebraska. The

state’s revision includes the creation of

a Class II operating permit program, part

D (nonattainment) new source review

(NSR) rule changes, SO2 rule

corrections, and the use of enhanced

monitoring. The creation of a Class II

operating permit program enables

Nebraska to have a Federally

enforceable program for sources not

covered by the requirements for major

title V sources under the Clean Air Act

Amendments (CAAA) of 1990 and part

70 of the Code of Federal Regulations.

DATES: This final rule is effective March

6, 1995 unless by February 3, 1995

adverse or critical comments are

received. If the effective date is delayed

EPA will publish timely notice in the

Federal Register.

ADDRESSES: Copies of the documents

relevant to this action are available for

public inspection during normal

business hours at the: Environmental

Protection Agency, Air Branch, 726

Minnesota Avenue, Kansas City, Kansas

66101; and EPA Air & Radiation Docket

and Information Center, 401 M Street,

SW., Washington, DC 20460.

FOR FURTHER INFORMATION CONTACT:

Christopher D. Hess at (913) 551–7213.

SUPPLEMENTARY INFORMATION: The state

of Nebraska has operated a Federally

approved SIP that has implemented the

various requirements of the Clean Air

Act (Act) since 1972. During the past

two decades, numerous revisions and

updates have been made to the SIP in

response to new applicable

requirements, including those

requirements generated by the Act’s

1990 Amendments. Title 129,

Nebraska’s Air Quality Regulations, has

been the chief regulatory component of

the currently approved SIP framework

although it is supported by other state

rules.

Due to the Act’s title V requirements,

title 129 has been revised to include

permitting requirements for both title V

sources and other sources regulated by

the SIP. Those sources that will be

regulated by the SIP will be part of a

Class II operating permit program, while

those sources subject to title V will be

part of a Class I operating permit

program. Both programs will be

governed by title 129, December 17,

1993.

After submitting its title V program in

November 1993, and those aspects of

title 129 that support that program, the

state subsequently submitted a proposed

revision to the SIP on February 16,

1994. This revision specifically deals

with the Class II, SIP-based operating

permit program and those aspects of

title 129 that support it.

Nebraska’s request for a revision to

the SIP also includes Part D

(nonattainment) NSR changes, SO2 rule

corrections, use of enhanced

monitoring, and other miscellaneous

changes. The state has also requested

approval of the Class II operating permit

program pursuant to section 112(l) of

the Act, which governs state programs

for regulation of hazardous air

pollutants.

For a complete and thorough

understanding of the state’s submission

and EPA’s analysis, the reader should

consult the ‘‘Technical Support

Document (TSD) for a Revision to the

Nebraska State Implementation Plan

(SIP) and Request for Approval under

Section 112(l)’’ dated August 12, 1994.

Significant Features of the SIP Revision

A. Definitions

There are approximately 30 new

definitions in the revised title 129. Not

all of these new definitions affect the

SIP, however, as some have been added

for title V purposes. Nevertheless, all of

the definitions are being incorporated

into the SIP to ensure consistent use of

terms by the state and EPA.

New definitions or significant topical

changes include:

1. The definition of ‘‘Federally

Enforceable’’ now includes applicable

SIPs, permits, and any requirements in

title 129 which are enforceable by the

Administrator.

2. The definition of ‘‘Primary

standard’’ and ‘‘Secondary standard’’ no

longer directly reference section 109 of

the Act, but chapter 4 of title 129

instead. This is acceptable since chapter

4 incorporates the primary and

secondary standards outlined in 40 CFR

50.4–50.12.

3. The definition of ‘‘Significant’’ has

deleted four pollutants: Asbestos,
Federal Register / Vol. 60, No. 2 / Wednesday, January 4, 1995 / Rules and Regulations 373

Beryllium, Mercury and Vinyl Chloride.

These four pollutants will now be

regulated under section 112 (g) of the

Act. In accordance with 40 CFR

51.166(b)(23)(i), three categories of

pollutants have been added to this

definition: Municipal waste combuster

organics, Municipal waste combuster

metals, and Municipal waste combuster

acid gases.

4. The definition of ‘‘Major Source’’

incorporates the previously approved

definition, and expands it in accordance

with 40 CFR 70.2 and section 112 of the

Act. It also defines major source for

nonattainment areas and for emissions

offsets. Finally, in accordance with 40

CFR 52.21 which is incorporated by

reference, this also defines major source

for the purposes of prevention of

significant deterioration.

B. Ambient Air Quality Standards

Standards for total suspended

particulate (TSP) have been deleted. A

July 1, 1987, Federal Register document

changed the indicator for both the

primary and secondary standards from

TSP to PM10. The state of Nebraska

originally elected to maintain both

standards, although only the standard

for PM10 is required. The state now

deletes this TSP standard.

C. Class II Operating Permit Program

By making the Class II operating

permit program part of the SIP and

legally requiring in the SIP that

permittees comply with such permits,

any violation of such a permit will be

enforceable under the Clean Air Act and

subject to EPA enforcement. One effect

of this rule is that any limitation on

potential-to-emit (PTE) criteria

pollutants will be recognized and be

enforceable by EPA. Thus, sources may

voluntarily restrict their potential

emissions and be issued a Class II

permit to avoid the more extensive

requirements of title V.

In the Federal Register document

dated June 28, 1989 (54 FR 27281), EPA

outlines five criteria that a state must

meet in order to achieve a Federally

enforceable operating permit program

which is approved into the SIP. These

criteria apply to both the Class II

program and to the request for approval

under section 112(l). The state of

Nebraska has met this criteria by: (1)

Submitting this program for approval;

(2) imposing a legal obligation that

operating permit holders adhere to the

terms and limitations of their permits;

(3) requiring that all emissions

limitations, controls, and other

requirements imposed by permits will

be at least as stringent as any other

applicable limitations and requirements

contained in or enforceable under the

SIP; (4) further requiring the limitations,

controls, and requirements of the

permits to be permanent, quantifiable,

and otherwise enforceable as a practical

matter; and (5) providing that the

permits issued are subject to public

participation and EPA review. The

reader may consult the TSD for a fuller

description of how the state has met

these criteria.

D. Revised Thresholds

The state has revised the thresholds

for minor NSR permitting so that the

same thresholds apply for both Class II

operating permits as well as NSR.

Sources with the PTE equal to or greater

than these thresholds must obtain a

construction permit from the state.

Sources with a PTE below these

thresholds are still subject to state and

Federal regulations, but are not required

to have an operating or NSR permit. The

following chart outlines these threshold

changes (note: some thresholds have

been converted from pounds per hour to

an annual rate):

Previous SIP Current

SIP

TSP1 ........... 43.7 TPY ........... 25 TPY

PM10 ............ 10 TPY .............. 15 TPY

SO2 .............. 8.76 TPY ........... 40 TPY

NOX ............. 9.1 TPY ............. 40 TPY

VOC ............ 65.7 TPY ........... 40 TPY

CO ............... 100 TPY ............ 50 TPY

HAP ............. 2.5 TPY ............. 2.5 TPY

Lead ............ ........................... 0.6 TPY

1Although the national ambient air quality

standard for TSP has been changed to PM10

by EPA, Nebraska is retaining TSP increments. The threshold standard is based on 40

CFR 52.21 as are the other standards.

With respect to the three thresholds

which have been increased, the state has

indicated that air quality screen

modeling is routinely performed for

criteria pollutants before construction

permits are issued. In a letter from the

state dated November 7, 1994, Nebraska

indicates that the evidence available

from the cumulative pool of modeling

results clearly demonstrates that sources

with pollutant potentials, less than the

new thresholds, do not threaten the

maintenance of the ambient air quality

standards.

E. 112(l) Authority

The state has also requested that the

provisions of Title 129 that pertain to

Class II operating permits be approved

pursuant to section 112(l) of the Act. By

approving the Class II permit program

under section 112(l), permittees must

comply with such permits relating to

hazardous air pollutants, and any

violation of such a permit will be

enforceable under the Clean Air Act and

subject to EPA enforcement. One effect

of this rule is that any limitation on PTE

hazardous pollutants will be recognized

and be enforceable by EPA. Thus,

sources may voluntarily restrict their

potential emissions and be issued a

Class II permit and avoid the more

extensive requirements of Title V.

In addition to meeting the criteria of

the June 28, 1989, Federal Register

document, the state has also met

specific criteria for approval under

112(l) which include:

1. Adequate authority within the

program to ensure compliance by all

sources with each applicable standard,

regulation, or requirement established

by the Administrator. The state

provided an Attorney General’s

statement which ensures necessary legal

authority and compliance by all sources

within the state.

2. Adequate authority to implement

the program. The state has submitted

copies of state statutes, regulations, and

other requirements which contain the

appropriate provisions demonstrating

authority to implement and enforce the

state rule upon approval.

3. Adequate resources to implement

the program. The state has committed to

provide adequate resources for this part

of its program.

4. An expeditious schedule for

implementing the program and ensuring

compliance by the affected sources.

Class II permit applications are due

within 12 months of the effective date

of Title 129 (December 1994).

The reader may consult the TSD for

a fuller description of how the state

meets the criteria for approval under

112(l).

F. Emissions Reporting

The state is requiring an annual

emissions inventory by each July 1

which describes the emissions of the

past calendar year. These inventories

will include the source’s administrative

information (name, address, etc.), a

description of the facilities and hours of

operation, nature and amounts of fuel,

rate of discharge, and time duration of

contaminant emissions. Sources are

responsible to report the actual quantity

of emissions, including documentation

of the measurement method, for any

single regulated air pollutant in a greater

quantity than one ton and for any

combination of regulated air pollutants

in a quantity greater than two and onehalf tons.

G. Construction Permits

With respect to preconstruction

review, Title 129 contains provisions to

ensure that any construction or
374 Federal Register / Vol. 60, No. 2 / Wednesday, January 4, 1995 / Rules and Regulations

modification of stationary sources will

not interfere with the attainment or

maintenance of a national ambient air

quality standard, which meets the

requirements of 40 CFR 51.160(b)(2).

Title 129 also requires that sources

which have failed to obtain a

construction permit must meet the

standards which would have been

imposed if a permit had been issued.

This requirement is in addition to the

requirement to obtain a permit.

Therefore, a source could be in violation

of the requirement to obtain a permit,

and, to the extent identifiable, any

emission standards which would be

included in a permit for the source.

With respect to preconstruction

requirements in nonattainment areas,

the state has added provisions in

accordance with the 1990 Amendments

to part D of the Act. With respect to

section 173(a)(4), Title 129 provides that

no permit will be issued if the source is

not in compliance with the

requirements of the SIP, or if the

Administrator determines that the

Implementation Plan is not being

adequately implemented. Pursuant to

173(a)(5), the source must also complete

an analysis of alternative sites, sizes,

production processes, and

environmental control techniques

which demonstrate that the proposed

construction outweighs the

environmental and social costs imposed

by the source. The state has

demonstrated its commitment to

continue submitting information from

permits to the RACT/BACT/LAER

Clearinghouse as required in section

173(d) in its SIP request cover letter.

EPA has determined that the state meets

the relevant requirements for

nonattainment areas as identified in

section 173 of the Act.

H. Sulfur Compound Emissions;

Existing Sources Emissions Standards

The state has modified this portion of

the SIP in response to EPA’s request to

improve enforceability. Previously, heat

input was determined from the

aggregate of all fuel-burning equipment

on the source’s premises. Subsequently,

all fuel-burning equipment had to be

tested to determine compliance with the

plantwide SO2 emission limitation.

Routine or even periodic compliance

determinations were expensive, and in

some cases impracticable for sites with

more than two or three combustion

units. The state now establishes sourcespecific or source-category SO2 emission

limitations, using only the heat input

contribution from sulfur-bearing fuels.

This modification conforms to the

enforceability criteria methods

contained in EPA’s SO2 Guideline

document, EPA–452/R–94–008, chapter

8.

I. Open Fires Prohibitions and

Exceptions

Several modifications have been made

to the SIP with respect to open fires. In

title 129 the word ‘‘vegetation’’ replaces

the word ‘‘trees’’ to describe those

materials that should be destroyed to

prevent a fire hazard.

The previous SIP granted exceptions

to open burning for land clearing of

roads and construction activity. As an

enforcement matter, the state found its

previous language did not restrict the

types of materials that could be burned

pursuant to construction activity.

Thus, the state has promulgated two

distinct types of open burning: one for

land clearing for roads and one for

construction activity. This allows the

state to restrict construction burning to

trees, brush, vegetation, and untreated

lumber which strengthens the SIP.

With written permission of the

director, the state now allows the

burning of straw used as a winter

insulating cover on agricultural

products. This activity is concentrated

in the Scottsbluff area, which is

monitored for PM10. In the past a

variance was granted for this annual

activity, but the state now adopts this

new provision to recognize a practice

which has never led to a violation of a

PM10 standard.

The state has also modified the SIP to

allow the burning of materials after

cleanup from a natural disaster, again

with written permission of the director.

The director will ensure that these

activities do not contribute to violations

of any air quality standards.

J. Duty to Prevent Escape of Dust

The state has modified the SIP so that

normal farming practices, on-farm crop

drying and handling, and animal

feeding activities will not be regulated

by the state so long as reasonable and

practical measures are exercised to limit

particulate matter. This is consistent

with EPA’s rural fugitive dust policy.

This policy states that EPA does not

require SIP control strategies due to

contributions of activities such as

windblown dust, dirt, and agricultural

practices.

K. Emission Sources; Testing;

Monitoring

The SIP adds several new test

methods by incorporating by reference

EPA provisions that were published

since the last modification to the SIP.

The SIP also specifies that test methods

may also include those approved for the

source which are in their respective

permit; any contained in the SIP; any

issued under construction permits, PSD

permits, or pursuant to an MACT

standard; or any other method approved

under title 129. Inclusion of these

comprehensive test methods affords the

state a wide range of references to

address all types of emissions and

sources within the state.

L. Title 115

This title describes the rules of

practice and procedure within Nebraska

with respect to hearings, contested

cases, and rulemaking. To a large extent,

EPA does not regulate the manner in

which Nebraska conducts its internal

proceedings except to the degree which

the rules in title 115 may affect the

implementation of the SIP. Hence, the

rules of title 115 are approvable as part

of this request for a revision to the SIP.

EPA Action

EPA is taking final action to approve

revisions submitted February 16, 1994,

for the state of Nebraska.

EPA is publishing this action without

prior proposal because the Agency

views this as a noncontroversial

amendment and anticipates no adverse

comments. However, in a separate

document in the Federal Register

publication, EPA is proposing to

approve the SIP revision should adverse

or critical comments be filed.

If EPA receives such comments, this

action will be withdrawn before the

effective date by publishing a

subsequent document that will

withdraw the final action. All public

comments received will then be

addressed in a subsequent final rule

based on this action serving as a

proposed rule. EPA will not institute a

second comment period on this action.

Any parties interested in commenting

on this action should do so at this time.

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.

Under the Regulatory Flexibility Act,

5 U.S.C. 600 et seq., EPA must prepare

a regulatory flexibility analysis

assessing the impact of any proposed or

final rule on small entities (5 U.S.C. 603

and 604). Alternatively, EPA may certify

that the rule will not have a significant

impact on a substantial number of small

entities. Small entities include small

businesses, small not-for-profit

enterprises, and government entities
Federal Register / Vol. 60, No. 2 / Wednesday, January 4, 1995 / Rules and Regulations 375

with jurisdiction over populations of

less than 50,000.

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, EPA

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 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)).

The Office of Management and Budget

has exempted these actions from review

under Executive Order 12866.

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 March 6, 1995. 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, Carbon monoxide,

Hydrocarbons, Incorporation by

reference, Intergovernmental relations,

Lead, Nitrogen dioxide, Ozone,

Particulate matter, Reporting and

recordkeeping requirements, Sulfur

oxides, Volatile organic compounds.

Dated: November 10, 1994.

William Rice,

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)(41) to read as

follows:

§ 52.1420 Identification of plan.

* * * * *

(c) * * *

(41) On February 16, 1994, the

Director of the Nebraska Department of

Environmental Quality submitted

revisions to the State Implementation

Plan (SIP) to create a Class II operating

permit program, Part D NSR rule

changes, SO2 rule corrections, and the

use of enhanced monitoring.

(i) Incorporation by reference.

(A) Revised rules ‘‘Title 129—

Nebraska Air Quality Regulations,’’

effective December 17, 1993. This

revision approves all chapters except for

parts of Chapters 5, 7, 8, 9, 10, 11, 12,

13, 14, and 15 that pertain to Class I

permits; Chapter 17 as it relates to

hazardous air pollutants; and excludes

Chapters 23, 25, 26, 27, 28, 29, and 31.

(B) ‘‘Title 115—Rules of Practice and

Procedure,’’ effective August 8, 1993,

and submitted as an SIP revision on

February 16, 1994.

(ii) Additional material.

(A) Letter from Nebraska to EPA

Region VII dated February 16, 1994,

regarding a commitment to submit

information to the RACT/BACT/LAER

Clearinghouse as required in section

173(d) of the Clean Air Act.

(B) Letter from Nebraska to EPA

Region VII dated June 10, 1994,

regarding the availability of state

operating permits to EPA and specified

emissions limitations in permits.

(C) Letter from Nebraska to EPA

Region VII dated November 7, 1994,

regarding the increase in New Source

Review (NSR) permitting thresholds.

[FR Doc. 95–00146 Filed 1–3–95; 8:45 am]

BILLING CODE 6560–50–P

40 CFR Part 52

[IN43–3–6716; FRL–5133–4]

Approval and Promulgation of

Implementation Plan; State of Indiana

AGENCY: Environmental Protection

Agency.

ACTION: Final rule.

SUMMARY: On July 19, 1994, the United

States Environmental Protection Agency

(USEPA) published direct final

rulemaking approving a 1990 base year

ozone precursor emissions inventory for

Lake and Porter Counties, Indiana as a

revision to the Indiana State

Implementation Plan (SIP). On the same

day (July 19, 1994), a proposed rule was

also published which established a 30-

day public comment period, noting that,

if adverse comments were received

regarding the direct final rule, the

USEPA would withdraw the direct final

rule and publish an additional final rule

to address the public comments.

Adverse comments were received

during the public comment period and

the USEPA published a withdrawal of

the direct final rule on September 15,

1994. This revised final rule

summarizes the public comments and

USEPA’s responses and finalizes the

approval of the 1990 base year ozone

precursor emissions inventory for Lake

and Porter Counties as a revision to the

Indiana SIP.

EFFECTIVE DATE: This action will be

effective February 3, 1995.

ADDRESSES: Copies of the SIP revision,

public comments and USEPA’s response

are available for inspection at the

following address: (It is recommended

that you telephone Edward Doty at (312)

886–6057 before visiting the Region 5

office.) United States Environmental

Protection Agency, Region 5, Air and

Radiation Division, 77 West Jackson

Boulevard, Chicago, Illinois 60604.

FOR FURTHER INFORMATION CONTACT:

Edward Doty, Regulation Development

Section (AR–18J), Regulation

Development Branch, Air and Radiation

Division, United States Environmental

Protection Agency, Region 5, 77 West

Jackson Boulevard, Chicago, Illinois

60604, Telephone Number (312) 886–

6057.

SUPPLEMENTARY INFORMATION:

I. Background Information

The 1990 base year emissions

inventory for Lake and Porter Counties,

Indiana discussed in this rule was

submitted by the Indiana Department of

Environmental Management (IDEM) on

January 15, 1994. The emissions

inventory submittal covers the

emissions of Volatile Organic

Compounds (VOC), Oxides of Nitrogen

(NOx), and Carbon Monoxide (CO) for

the Indiana portion of the ChicagoNorthwest Indiana ozone nonattainment

area. In addition to emissions from the

nonattainment area, the submittal also

covers VOC, NOx, and CO emissions

from major stationary sources (with

actual emissions for any of the covered

pollutants equal to or in excess of 100

tons per year) in all counties located

within 25 miles of the ozone

nonattainment area.

On July 19, 1994 (59 FR 36700),

USEPA published a direct final rule

approving the emissions inventory as a

revision of the Indiana ozone SIP. On

the same day, USEPA published a

proposed rule noting that if adverse

comments were received regarding the

direct final rule, the USEPA would

withdraw the direct final rule and