

[Federal Register: July 10, 2006 (Volume 71, Number 131)]
[Rules and Regulations]               
[Page 38776-38780]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr10jy06-6]                         

-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 70

[EPA-R07-OAR-2006-0476; FRL-8192-5]

 
Approval and Promulgation of Implementation Plans and Operating 
Permits Program; State of Nebraska

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

-----------------------------------------------------------------------

SUMMARY: EPA is approving revisions to the State Implementation Plan 
(SIP) and Operating Permits Programs submitted by the state of 
Nebraska. This action revises monitoring requirements which were found 
to be less stringent than the applicable Federal rule; adds permits-by-
rule provisions, which would provide a streamlined approach for issuing 
construction/operating permits for hot mix asphalt plants and small 
animal incinerators; and deletes the chemical compound ethylene glycol 
monobutyl ether from the list of regulated hazardous air pollutants in 
Appendices II and III. Approval of these revisions will ensure 
consistency between the state and Federally-approved rules, and ensure 
Federal enforceability of the state's revised air program rules.

DATES: This direct final rule will be effective September 8, 2006, 
without further notice, unless EPA receives adverse comment by August 
9, 2006. If adverse comment is received, EPA will publish a timely 
withdrawal of the direct final rule in the Federal Register informing 
the public that the rule will not take effect.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R07-
OAR-2006-0476, by one of the following methods:
    1. http://www.regulations.gov. Follow the on-line instructions for 

submitting comments.
    2. E-mail: rios.shelly@epa.gov.
    3. Mail: Shelly Rios-LaLuz, Environmental Protection Agency, Air 
Planning and Development Branch, 901 North 5th Street, Kansas City, 
Kansas 66101.
    4. Hand Delivery or Courier: Deliver your comments to Shelly Rios-
LaLuz, Environmental Protection Agency, Air Planning and Development 
Branch, 901 North 5th Street, Kansas City, Kansas 66101.
    Instructions: Direct your comments to Docket ID No. EPA-R07-OAR-
2006-0476. 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 e-mail 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 e-mail comment directly to EPA without 
going through http://www.regulations.gov, your e-mail 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.
    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, is not placed on the Internet and will be 
publicly available only in hard copy form. Publicly available docket 
materials are available either electronically in http://www.regulations.gov
 or in hard copy at the Environmental Protection 

Agency, Air Planning and Development Branch, 901 North 5th Street, 
Kansas City, Kansas 66101. The Regional Office's official hours of 
business are Monday through Friday, 8 a.m. to 4:30 p.m. excluding 
Federal 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: Shelly Rios-LaLuz at (913) 551-7296, 
or by e-mail at rios.shelly@epa.gov.

SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,'' 
``us,'' or ``our'' is used, we mean EPA. This section provides 
additional information by addressing the following questions:

What Is A SIP?
What Is The Federal Approval Process for a SIP?
What Does Federal Approval of a State Regulation Mean to Me?
What Is the Part 70 Operating Permits Program?
What Is the Federal Approval Process for an Operating Permits 
Program?
What Is Being Addressed in This Document?
What Is EPA's Analysis of These Revisions?
Have the Requirements for Approval of a SIP and Part 70 Revision 
Been Met?
What Action Is EPA Taking?

What Is a SIP?

    Section 110 of the Clean Air Act (CAA or Act) requires states to 
develop air

[[Page 38777]]

pollution regulations and control strategies to ensure that state air 
quality meets the national ambient air quality standards established by 
EPA. These ambient standards are established under section 109 of the 
CAA, and they currently address six criteria pollutants. These 
pollutants are: carbon monoxide, nitrogen dioxide, ozone, lead, 
particulate matter, and sulfur dioxide.
    Each state must submit these regulations and control strategies to 
us for approval and incorporation into the Federally-enforceable SIP.
    Each Federally-approved SIP protects air quality primarily by 
addressing air pollution at its point of origin. These SIPs can be 
extensive, containing state regulations or other enforceable documents 
and supporting information such as emission inventories, monitoring 
networks, and modeling demonstrations.

What Is the Federal Approval Process for a SIP?

    In order for state regulations to be incorporated into the 
Federally-enforceable SIP, states must formally adopt the regulations 
and control strategies consistent with State and Federal requirements. 
This process generally includes a public notice, public hearing, public 
comment period, and a formal adoption by a state-authorized rulemaking 
body.
    Once a state rule, regulation, or control strategy is adopted, the 
state submits it to us for inclusion into the SIP. We must provide 
public notice and seek additional public comment regarding the proposed 
Federal action on the state submission. If adverse comments are 
received, they must be addressed prior to any final Federal action by 
us.
    All state regulations and supporting information approved by EPA 
under section 110 of the CAA are incorporated into the Federally-
approved SIP. Records of such SIP actions are maintained in the Code of 
Federal Regulations (CFR) at title 40, part 52, entitled ``Approval and 
Promulgation of Implementation Plans.'' The actual state regulations 
which are approved are not reproduced in their entirety in the CFR 
outright but are ``incorporated by reference,'' which means that we 
have approved a given state regulation with a specific effective date.

What Does Federal Approval of a State Regulation Mean to Me?

    Enforcement of the state regulation before and after it is 
incorporated into the Federally-approved SIP is primarily a state 
responsibility. However, after the regulation is Federally approved, we 
are authorized to take enforcement action against violators. Citizens 
are also offered legal recourse to address violations as described in 
section 304 of the CAA.

What Is the Part 70 Operating Permits Program?

    The CAA Amendments of 1990 require all states to develop operating 
permits programs that meet certain Federal criteria. In implementing 
this program, the states are to require certain sources of air 
pollution to obtain permits that contain all applicable requirements 
under the CAA. One purpose of the part 70 operating permits program is 
to improve enforcement by issuing each source a single permit that 
consolidates all of the applicable CAA requirements into a Federally-
enforceable document. By consolidating all of the applicable 
requirements for a facility into one document, the source, the public, 
and the permitting authorities can more easily determine what CAA 
requirements apply and how compliance with those requirements is 
determined.
    Sources required to obtain an operating permit under this program 
include ``major'' sources of air pollution and certain other sources 
specified in the CAA or in our implementing regulations. For example, 
all sources regulated under the acid rain program, regardless of size, 
must obtain permits. Examples of major sources include those that emit 
100 tons per year or more of volatile organic compounds, carbon 
monoxide, lead, sulfur dioxide, nitrogen dioxide, or PM10; 
those that emit 10 tons per year of any single hazardous air pollutant 
(HAP) (specifically listed under the CAA); or those that emit 25 tons 
per year or more of a combination of HAPs.
    Revision to the State and local agencies operating permits program 
are also subject to public notice, comment, and our approval.

What Is the Federal Approval Process for an Operating Permits Program?

    In order for state regulations to be included in the Federally-
enforceable Title V operating permits program, states must formally 
adopt regulations consistent with state and Federal requirements. This 
process generally includes a public notice, public hearing, public 
comment period, and a formal adoption by a state-authorized rulemaking 
body.
    Once a state rule, regulation, or control strategy is adopted, the 
state submits it to us for inclusion into the approved operating 
permits program. We must provide public notice and seek additional 
public comment regarding the proposed Federal action on the state 
submission. If adverse comments are received, they must be addressed 
prior to any final Federal action by us.
    All state regulations and supporting information approved by EPA 
under section 502 of the CAA, including revisions to the state program, 
are included in the Federally-approved operating permits program. 
Records of such actions are maintained in the CFR at Title 40, part 70, 
appendix A, entitled ``Approval Status of State and Local Operating 
Permits Programs.''

What Is Being Addressed in This Document?

    On October 20, 2005, we received a request from the State of 
Nebraska to approve revisions to Nebraska's State Implementation Plan 
and Part 70 Operating Permits Program. This request amends Nebraska's 
SIP to replace or update provisions currently found in Title 129, 
Chapter 34--Emission Sources; Testing; Monitoring; Appendix II--
Hazardous Air Pollutants. This request also amends Nebraska's Part 70--
Operating Permits Program to update Appendix III--Reporting Levels of 
Hazardous Air Pollutants for Emissions Inventory. Furthermore, this 
submittal requests the addition of Title 129, Chapter 42--Permits-By-
Rule to the SIP. Proposed revisions to Nebraska's SIP were approved by 
the Nebraska Department of Environmental Quality (NDEQ) on September 5, 
2002, December 5, 2002 and March 4, 2005. Revisions to Title 129 
adopted on September 5, 2002, and December 5, 2002, were first 
submitted to EPA on June 4, 2004; however, approvability issues were 
identified, and we did not act on the request to add Chapter 42 to 
Nebraska's SIP at that time. Subsequently, we worked with NDEQ to 
resolve the approvability issues so that Nebraska could resubmit 
Chapter 42 for inclusion into the SIP.
    This action also addresses revisions to Title 129--Nebraska Air 
Quality Regulations, Chapter 34, Appendix II and Appendix III. The 
purpose of these revisions is to revise monitoring requirements in 
Chapter 34 which were found to be less stringent than the Federal 
requirements, to delete the chemical compound ethylene glycol monobutyl 
ether from the list of regulated hazardous air pollutants in Appendices 
II and III.
    The purpose of Chapter 42--Permits-by-Rule is to provide a 
streamlined approach for issuing construction/operating permits to 
certain minor source categories such as hot mix

[[Page 38778]]

asphalt plants and small animal incinerators.

What Is EPA's Analysis of These Revisions?

    The revision to Chapter 34.005 makes the rule consistent with 40 
CFR part 51 appendix P, paragraph 2.1.1.2. This provision establishes 
continuous monitoring requirements for certain sources. The Federal 
rule also exempts sources from monitoring requirements if they burn 
certain types of fuel and if a source has never been out of compliance 
with applicable particulate emission standards or visibility standards 
in a state rule. Prior to this revisions of section 005, the state rule 
allowed the exemption if the source has not been out of compliance with 
these standards in the preceding five years. This rule was not 
incorporated into the Nebraska SIP because it was less stringent than 
the Federal requirement. Because NDEQ has now revised its rule to be 
consistent with the Federal rule, EPA is approving it into the SIP.
    Revisions to Title 129--Appendices II and III, which list hazardous 
air pollutants and reporting levels for emissions inventory purposes, 
were made in response to the delisting by EPA of the chemical compound 
ethylene glycol monobutyl ether from the regulated lists of Hazardous 
Air Pollutants.
    The addition of Chapter 42 will offer Permits-by-Rule provisions 
which will provide a streamlined approach for issuing permits to 
various categories of sources. Nebraska's rule applies to minor sources 
in these source categories, including new, existing and temporary 
sources that have been approved by NDEQ for coverage under a permit-by-
rule. Under these provisions, sources that are approved for a permit by 
rule are considered to have fulfilled the duty to obtain a construction 
and/or operating permit as required by Title 129, Chapter 17 and 
Chapter 5, respectively, unless required to do so by any other legal 
requirement. This is expected to significantly reduce NDEQ's resource 
burden by allowing sources in specified categories to operate under 
these provisions, as opposed to requiring them to apply for individual 
permits.
    In addition, this will allow for resources to be spent in oversight 
of sources covered by the rule and in issuing individual permits to 
larger and more diverse sources not covered under these provisions.
    The industry categories that are eligible to apply for a permit-by-
rule include hot mix asphalt plants and small animal incinerators. A 
hot mix asphalt plant is defined in this rule as a facility that is 
comprised of generators; heaters; dryers; systems for screening, 
handling, storing and weighing hot aggregate; systems for loading, 
transferring and storing aggregate materials; system for mixing hot mix 
asphalt; and associated emission control systems. A small animal 
incinerator is defined as a facility that is used to burn deceased 
animal remains and is comprised of a dual-chamber design, consisting of 
a primary charging chamber and a secondary chamber (or after burner) 
with burners located in each burner.
    NDEQ has ensured that provisions included in this rule are 
protective of human health and of the NAAQS by:
     Not allowing sources and/or emission units that are 
subject to the prevention of significant deterioration (PSD) program or 
that will be operated as a major source pursuant to the Class I 
operating permit program under Title 129, Chapter 5, to be eligible for 
a permit-by-rule.
     Not allowing provisions established in this rule to 
supersede any other applicable Federal requirements or a previously 
issued construction or operating permit (unless a technical 
demonstration is submitted which shows that the prior requirements are 
unnecessary to protect the NAAQS or PSD increment).
     Prohibiting a source that obtains a permit-by-rule to 
locate in or relocate to a nonattainment area.
     Including provisions which require that the owner or 
operator of any new, existing or temporary sources intended to be 
covered under a permit-by-rule notify NDEQ before construction begins 
(in the case of construction permits) or before operation begins (in 
the case of operating permits).
     Including provisions that require the source to submit the 
necessary information to conduct an air quality impact assessment as 
requested or as deemed appropriate by the Director of NDEQ.
     Establishing actions that will be taken against sources 
that have not complied with the permit-by-rule.
     Requiring that the source provide annual emissions 
inventory data or other necessary information to determine the impact 
of sources under a permit-by-rule to maintain the ambient air quality 
standards.
     Requiring notification to NDEQ and the local agencies, as 
applicable, of a change in location for temporary sources and 
determination of new hourly limits.
     Including record keeping requirements that would allow 
evaluation and enforcement of the limits and conditions contained in 
the rule.
     Establishing performance testing to evaluate compliance 
with provisions of the permit-by-rule.
     For hot mix asphalt plants, requiring the use of an air 
emissions computation program provided by NDEQ to establish hourly 
production limits and hourly generator combustion limits which will be 
used to conduct dispersion modeling to establish hourly limits that 
comply with the NAAQS.
     For hot mix asphalt plants, limiting the amount of diesel 
fuel that can be used on a monthly and a consecutive 12-month basis.
     For hot mix asphalt plants, requiring that the appropriate 
emissions control technology be installed.
     For small animal incinerators, establishing a restriction 
of the percent of medical/infectious waste that can be included per 
load to be incinerated.
    In addition, NDEQ submitted a demonstration showing that, for each 
category covered by the rule, emission limits established in the rule 
are protective of the NAAQS accounting for the worst-case scenario for 
each source category.

Have the Requirements for Approval of a SIP and Part 70 Revision Been 
Met?

    The state submittal has met the public notice requirements for SIP 
submissions in accordance with 40 CFR 51.102. The submittal also 
satisfied the completeness criteria of 40 CFR part 51, appendix V. In 
addition, as explained above and in more detail in the technical 
support document which is part of this document, the revision meets the 
substantive SIP requirements of the CAA, including section 110 and 
implementing regulations. The revision also meets the applicable 
requirements of Title V and EPA regulations for revision to the 
operating permit program.

What Action Is EPA Taking?

    We are processing this action as a direct final action because the 
revisions make routine changes to the existing rules and other changes 
which are noncontroversial. Therefore, we do not anticipate any adverse 
comments. Please note that if EPA receives adverse comment on part of 
this rule and if that part can be severed from the remainder of the 
rule, EPA may adopt as final those parts of the rule that are not the 
subject of an adverse comment.

Statutory and Executive Order Reviews

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action'' and

[[Page 38779]]

therefore is not subject to review by the Office of Management and 
Budget. For this reason, this action is also not subject to Executive 
Order 13211, ``Actions Concerning Regulations That Significantly Affect 
Energy Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This 
action merely approves state law as meeting Federal requirements and 
imposes no additional requirements beyond those imposed by state law. 
Accordingly, the Administrator certifies that this rule will not have a 
significant economic impact on a substantial number of small entities 
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because 
this rule approves pre-existing requirements under state law and does 
not impose any additional enforceable duty beyond that required by 
state law, it 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).
    This rule also does not have tribal implications because it will 
not have a substantial direct effect on one or more Indian tribes, on 
the relationship between the Federal Government and Indian tribes, or 
on the distribution of power and responsibilities between the Federal 
Government and Indian tribes, as specified by Executive Order 13175 (65 
FR 67249, November 9, 2000). This action also does not have Federalism 
implications because it does not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government, as specified in Executive Order 13132 (64 
FR 43255, August 10, 1999). This action merely approves a state rule 
implementing a Federal standard, and does not alter the relationship or 
the distribution of power and responsibilities established in the CAA. 
This rule also is not subject to Executive Order 13045, ``Protection of 
Children from Environmental Health Risks and Safety Risks'' (62 FR 
19885, April 23, 1997), because it is not economically significant.
    In reviewing State submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the CAA. In this 
context, in the absence of a prior existing requirement for the State 
to use voluntary consensus standards (VCS), EPA has no authority to 
disapprove a SIP submission for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews a SIP 
submission, to use VCS in place of a SIP submission that otherwise 
satisfies the provisions of the CAA. Thus, the requirements of section 
12(d) of the National Technology Transfer and Advancement Act of 1995 
(15 U.S.C. 272 note) do not apply. This rule does not impose an 
information collection burden under the provisions of the Paperwork 
Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
    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 rule 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 Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by September 8, 2006. 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

40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen 
dioxide, Ozone, Particulate matter, Reporting and recordkeeping 
requirements, Sulfur oxides, Volatile organic compounds.

40 CFR Part 70

    Administrative practice and procedure, Air pollution control, 
Intergovernmental relations, Operating permits, Reporting and 
recordkeeping requirements.

    Dated: June 19, 2006.
William W. Rice,
Acting Regional Administrator, Region 7.

0
Chapter I, title 40 of the Code of Federal Regulations is amended as 
follows:

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart CC--Nebraska

0
2. In Sec.  52.1420 the table in paragraph (c) is amended by revising 
the entries for 129-34, 129-42, and Appendix II to read as follows:


Sec.  52.1420  Identification of plan.

* * * * *
    (c) * * *

                                        EPA-Approved Nebraska Regulations
----------------------------------------------------------------------------------------------------------------
                                                        State effective
        Nebraska citation                Title               date          EPA approval date      Explanation
----------------------------------------------------------------------------------------------------------------
                              State of Nebraska Department of Environmental Quality
                                   Title 129--Nebraska Air Quality Regulations
----------------------------------------------------------------------------------------------------------------

                                                  * * * * * * *
129-34..........................  Emission Sources;   5/7/2005..........  7/10/2006 [insert
                                   Testing;                                FR page number
                                   Monitoring.                             where the
                                                                           document begins].
                                                  * * * * * * *
129-42..........................  Permits-By-Rule...  11/20/2002, 4/8/    7/10/2006 [insert
                                                       2003, 5/7/2005.     FR page number
                                                                           where the
                                                                           document begins].

[[Page 38780]]


                                                  * * * * * * *
Appendix II.....................  Hazardous Air       5/7/2005..........  7/10/2006 [insert
                                   Pollutants (HAPs).                      FR page number
                                                                           where the
                                                                           document begins].
----------------------------------------------------------------------------------------------------------------

* * * * *

PART 70--[AMENDED]

0
1. The authority citation for part 70 continues to read as follows:

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

Appendix A--[Amended]

0
2. Appendix A to Part 70 is amended by adding paragraph (i) under 
Nebraska; City of Omaha; Lincoln-Lancaster County Health Department to 
read as follows:

Appendix A to Part 70--Approval Status of State and Local Operating 
Permits Programs

* * * * *
    Nebraska; City of Omaha; Lincoln-Lancaster County Health 
Department.
* * * * *
    (i) The Nebraska Department of Environmental Quality approved a 
revision to NDEQ Title 129, Appendix III on May 2, 2005, which 
became effective May 7, 2005. This revision was submitted on October 
20, 2005. We are approving this program revision effective September 
8, 2006.
* * * * *
 [FR Doc. E6-10730 Filed 7-7-06; 8:45 am]

BILLING CODE 6560-50-P
