[Federal Register Volume 60, Number 2 (Wednesday, January 4, 1995)]
[Rules and Regulations]
[Pages 372-375]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-00146]



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ENVIRONMENTAL PROTECTION AGENCY
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.

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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, SO<INF>2 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, SO<INF>2 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, [[Page 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 PM<INF>10. The 
state of Nebraska originally elected to maintain both standards, 
although only the standard for PM<INF>10 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 
------------------------------------------------------------------------
TSP\1\.............................  43.7 TPY............  25 TPY       
PM<INF>10...............................  10 TPY..............  15 TPY       
SO<INF>2................................  8.76 TPY............  40 TPY       
NO<INF>X................................  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      
------------------------------------------------------------------------
\1\Although the national ambient air quality standard for TSP has been  
  changed to PM<INF>10 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 one-half tons.

G. Construction Permits

    With respect to preconstruction review, Title 129 contains 
provisions to ensure that any construction or [[Page 374]] 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 SO<INF>2 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 source-specific or 
source-category SO<INF>2 emission limitations, using only the heat 
input contribution from sulfur-bearing fuels.
    This modification conforms to the enforceability criteria methods 
contained in EPA's SO<INF>2 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 PM<INF>10. 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 PM<INF>10 
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 [[Page 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:


Sec. 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, SO<INF>2 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]
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