[Federal Register Volume 83, Number 67 (Friday, April 6, 2018)]
[Rules and Regulations]
[Pages 14762-14765]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-07091]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 70

[EPA-R07-OAR-2017-0485; FRL-9976-52-Region 7]


Approval of Nebraska Air Quality Implementation Plans, Operating 
Permits Program, and 112(l) Program; Revision to Nebraska 
Administrative Code

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is taking final 
action to approve revisions to the State Implementation Plan (SIP), 
Operating Permits Program, and 112(l) Program submitted on July 14, 
2014, by the State of Nebraska. This action amends the SIP to revise 
two chapters, ``Definitions'' and ``Operating Permit Modifications; 
Reopening for Cause''. Specifically, these revisions incorporate by 
reference the list of organic compounds exempt from the definition of 
volatile organic compound (VOC) found in the Code of

[[Page 14763]]

Federal Regulations; notification requirements for the operating permit 
program are being amended to be consistent with the Federal operating 
permit program requirements; the definition of ``solid waste'' is being 
revised by the state, however, because the state's definition is 
inconsistent with the Federal definition, EPA is not approving this 
definition into the SIP. Finally, the state is extending the process of 
``off-permit changes'' to Class I operating permits. Additional 
grammatical and editorial changes are being made in this revision. 
Approval of these revisions will not impact air quality, ensures 
consistency between the state and Federally-approved rules, and ensures 
Federal enforceability of the state's rules.

DATES: This final rule is effective on May 7, 2018.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-R07-OAR-2017-0485. All documents in the docket are listed on 
the https://www.regulations.gov website. Although listed in the index, 
some information is not publicly available, i.e., CBI or other 
information whose disclosure is restricted by statute. Certain other 
material, such as copyrighted material, is not placed on the internet 
and will be publicly available only in hard copy form. Publicly 
available docket materials are available through https://www.regulations.gov or please contact the person identified in the FOR 
FURTHER INFORMATION CONTACT section for additional information.

FOR FURTHER INFORMATION CONTACT: Mr. Gregory Crable, Environmental 
Protection Agency, Air Planning and Development Branch, 11201 Renner 
Boulevard, Lenexa, Kansas 66219 at (913) 551-7391, or by email at 
[email protected].

SUPPLEMENTARY INFORMATION: Throughout this document ``we,'' ``us,'' and 
``our'' refer to EPA. This section provides additional information by 
addressing the following:

I. Background
II. What is being addressed in this document?
III. Have the requirements for approval of a SIP revision been met?
IV. EPA's Response to Comments
V. What action is EPA taking?
VI. Incorporation by Reference
VII. Statutory and Executive Order Reviews

I. Background

    On October 5, 2017, EPA proposed to approve revisions to the SIP, 
Operating Permits Program, and 112(l) Program for the State of 
Nebraska. See 82 FR 46453. In conjunction with the October 5, 2017 
notice of proposed rulemaking (NPR), EPA issued a direct final rule 
(DFR) approving the revisions to the SIP, Operating Permits Program, 
and the 112(l) Program. See 82 FR 46420. In the DFR, EPA stated that if 
adverse comments were submitted to EPA by November 6, 2017, the action 
would be withdrawn and not take effect. EPA received one adverse 
comment prior to the close of the comment period. EPA withdrew the DFR 
on November 28, 2017. See 82 FR 56173. This action is a final rule 
based on the NPR.

II. What is being addressed in this document?

    Nebraska's July 14, 2014, submission requested revisions to seven 
chapters of ``Title 129-Nebraska Air Quality Regulations''. This action 
will amend the SIP to include revisions to two of those chapters, title 
129 of the Nebraska Administrative Code, chapter 1 ``Definitions'', and 
chapter 15 ``Operating Permit Modifications; Reopening for Cause''. Of 
the remaining five chapters, EPA previously approved revisions to two 
of the chapters in separate direct final rulemakings published in the 
Federal Register. Chapter 4, ``Ambient Air Quality Standards'' was 
approved on October 11, 2016, and chapter 34 ``Emission Sources; 
Testing; Monitoring'' was approved on October 7, 2016. EPA will take 
action separately on two other chapters, chapter 20 ``Particulate 
Emissions; Limits and Standards'' and chapter 18 ``New Performance 
Standards''. The final chapter, chapter 28 ``Hazardous Air Pollutants; 
Emissions Standards'', submitted as part of the July 14, 2014, SIP 
submission, is not approved in the Nebraska SIP and therefore EPA will 
take no further action for this chapter.
    EPA is approving revisions to the Nebraska SIP and Operating 
Permits Program in title 129, chapter 1 ``Definitions''. The definition 
of VOC contained in section 160 of chapter 1 ``Definitions'' is being 
revised. Specifically, section 160 of chapter 1 contains a definition 
of VOC that provides exceptions to the definition based upon a list of 
organic compounds, which have been determined to have negligible 
photochemical reactivity. Because it is difficult to stay current in 
regard to the list of compounds, the revision EPA is approving removes 
the list at section 160, and references the list contained in the Code 
of Federal Regulations at 40 CFR 51.100(s)(1) and (5). In addition, 
revisions to chapter 1, section 139, are being made to the SIP and the 
Operating Permits Program to change the notification requirements for 
``section 502(b)(10) changes'' to require facilities to provide written 
notification at least 7 days in advance, rather than 30 days. This 
revision makes the notification requirements consistent with the 
Federal operating permit program requirements. In addition, Nebraska 
requested revisions to the definition of ``solid waste'' at chapter 1, 
section 144, to make it consistent with the definition of ``solid 
waste'' included in the Nebraska Environmental Protection Act and other 
applicable regulations in Nebraska.\1\ Neb. Rev. Stat. 81-1502(26). The 
definition as proposed by the Nebraska Department of Environmental 
Quality (NDEQ) is not consistent with the definition of ``solid waste'' 
in Federal law and regulations. Therefore, EPA is not approving 
Nebraska's proposed revision to the definition of ``solid waste'' into 
the State Implementation Plan or Operating Permits Program. Finally, 
other grammatical and numerical edits are being made in this chapter.
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    \1\ The definition of ``solid waste'' in the Nebraska 
Environmental Protection Act was updated in 2013 as a result of 
Legislative Bill 203 to exclude ``slag'' from the definition. This 
revision further clarifies that ``slag'' is a by-product of value 
and therefore is excluded from the definition of ``solid waste.''
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    EPA is approving revisions to the Nebraska SIP, Operating Permits 
Program and 112(l) Program for chapter 15 ``Operating Permit 
Modifications; Reopening for Cause'', which extends ``off-permit 
changes'' to Class I and II operating permits as allowed under the 
Federal program. Section 007 of chapter 15 is being revised and updated 
allowing changes within a permitted facility without a permit revision 
if the change meets certain specified criteria. The revised process 
allows certain minor revisions to be made without requiring all 
applicable administrative procedures for full permit issuance. These 
changes ensure that chapter 15 conforms to applicable Federal 
regulations. Finally, revisions to chapter 15 amend the minimum number 
of days to submit a written notification of a change from thirty days 
to seven days under certain circumstances when changing Class I and II 
operating permits, and makes various grammatical revisions for clarity 
and consistency purposes.

III. Have the requirements for approval of a SIP revision been met?

    The state submission has met the public notice requirements for SIP 
submissions in accordance with 40 CFR 51.102. The submission also 
satisfied the completeness criteria of 40 CFR part 51, appendix V. The 
revised chapters were placed on public notice and a

[[Page 14764]]

public hearing was held by the state on January 6, 2014, where no 
comments were received. In addition, as explained in this preamble, the 
revision meets the substantive SIP requirements of the CAA, including 
section 110 and implementing regulations.

IV. EPA's Response to Comments

    The public comment period on EPA's proposed rule opened October 5, 
2017, the date of its publication in the Federal Register, and closed 
on November 6, 2017. During this period, EPA received a comment from 
one commenter.
    Comment 1: The commenter stated that EPA must act on the state's 
submitted request to change the definition of solid waste, and that EPA 
does not have the discretionary authority to not act on state's 
submission. The commenter stated that EPA is required to act on the 
state's submission within a maximum of 18 months from the state's 
submission and stated that the state's requested revisions to the 
definition of solid waste was submitted in 2014, greater than 36 months 
prior to the October 5, 2017, Federal Register notice. The commenter 
further stated that EPA must disapprove the state's submittal regarding 
the definition of solid waste as it is inconsistent with the Federal 
rules as EPA outlined in its October 5, 2017, Federal Register notice.
    Response 1: Section 110(k)of the CAA authorizes EPA to approve a 
SIP submission in full, disapprove it in full, or approve it in part 
and disapprove it in part, or conditionally approve it in full or in 
part, depending on the extent to which such plan meets the requirements 
of the CAA. This authority to approve state SIP submissions in 
separable parts was included in the 1990 Amendments to the CAA to 
overrule a decision in the Court of Appeals for the Ninth Circuit 
holding that EPA could not approve individual measures in a SIP 
submission without either approving or disapproving the plan as a 
whole. See S. Rep. No. 101-228, at 22, 1990 U.S.C.C.A.N. 3385, 3408 
(discussing the express overruling of Abramowitz v. EPA, 832 F.2d 1071 
(9th Cir. 1987)).
    EPA interprets its authority under section 110(k) of the CAA as 
affording the Agency the discretion to approve, disapprove, or 
conditionally approve, individual portions of Nebraska's SIP revision. 
EPA views the SIP revisions to the definition of solid waste, as 
severable from other portions of the SIP revision and interprets 
section 110(k) as allowing it to act on individual severable portions 
in a SIP submission. In short, EPA believes it has the discretion under 
section 110(k) of the CAA to act upon the various individual portions 
of the state's SIP revision, separately or together, as appropriate. 
This discretion exists even when the deadline to act on the SIP 
submission as a whole has passed. EPA will address the definition of 
solid waste in a separate rulemaking action.

V. What action is EPA taking?

    EPA is taking final action to amend the Nebraska SIP to approve 
revisions to title 129, chapters 1 and 15. EPA is not approving 
Nebraska's revised definition of ``solid waste'' in title 129, chapter 
1.

VI. Incorporation by Reference

    In this rule, EPA is finalizing regulatory text that includes 
incorporation by reference. In accordance with requirements of 1 CFR 
51.5, EPA is finalizing the incorporation by reference of the Nebraska 
Regulations described in the amendments to 40 CFR part 52 set forth 
below. EPA has made, and will continue to make, these materials 
generally available through www.regulations.gov and at the EPA Region 7 
Office (please contact the person identified in the For Further 
Information Contact section of this preamble for more information).
    Therefore, these materials have been approved by EPA for inclusion 
in the State Implementation Plan, have been incorporated by reference 
by EPA into that plan, are fully Federally enforceable under sections 
110 and 113 of the CAA as of the effective date of the final rulemaking 
of EPA's approval, and will be incorporated by reference by the 
Director of the Federal Register in the next update to the SIP 
compilation.\2\
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    \2\ 62 FR 27968 (May 22, 1997).
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VII. Statutory and Executive Order Reviews

    Under the Clean Air Act, the Administrator is required to approve a 
SIP submission that complies with the provisions of the Act and 
applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). 
Thus, in reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the CAA. Accordingly, 
this action merely approves state law as meeting Federal requirements 
and does not impose additional requirements beyond those imposed by 
state law. For that reason, this action:
     Is not a significant regulatory action subject to review 
by the Office of Management and Budget under Executive Orders 12866 (58 
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
     Is not an Executive Order 13771 (82 FR 9339, February 2, 
2017) regulatory action because SIP approvals are exempted under 
Executive Order 12866.
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Public Law 104-4);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the Clean Air Act; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, the SIP is not approved to apply on any Indian 
reservation land or in any other area where EPA or an Indian tribe has 
demonstrated that a tribe has jurisdiction. In those areas of Indian 
country, the rule does not have tribal implications and will not impose 
substantial direct costs on tribal governments or preempt tribal law as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this action and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in

[[Page 14765]]

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 June 5, 2018. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this action for the purposes of 
judicial review nor does it extend the time within which a petition for 
judicial review may be filed, and shall not postpone the effectiveness 
of such rule or action. This action may not be challenged later in 
proceedings to enforce its requirements. (See section 307(b)(2)).

List of Subjects

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

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

    Dated: March 27, 2018.
Karen A. Flournoy,
Acting Regional Administrator, Region 7.
    For the reasons stated in the preamble, EPA amends 40 CFR parts 52 
and 70 as set forth below:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

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, revise the section heading and in the table in 
paragraph (c) the entries ``129-1'' and ``129-15'' to read as follows:


Sec.  52.1420  Identification of plan.

* * * * *
    (c) * * *

                                       EPA--Approved Nebraska Regulations
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                                                   State
  Nebraska citation             Title            effective      EPA approval date            Explanation
                                                    date
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                                                STATE OF NEBRASKA
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                                       Department of Environmental Quality
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                                   Title 129--Nebraska Air Quality Regulations
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129-1................  Definitions............      5/13/14  4/6/18, [insert         The proposed definition of
                                                              Federal Register        ``solid waste'' is not
                                                              citation].              approved into the SIP. The
                                                                                      second sentence beginning
                                                                                      at ``Solid waste'' and
                                                                                      ending at ``discarded
                                                                                      material'', is not
                                                                                      approved into the SIP.
 
                                                  * * * * * * *
129-15...............  Operating Permit             5/13/14  4/6/18, [insert         ...........................
                        Modifications;                        Federal Register
                        Reopening for Cause.                  citation].
 
                                                  * * * * * * *
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* * * * *

PART 70--STATE OPERATING PERMIT PROGRAMS

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

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


0
4. In appendix A to part 70 add paragraph (o) 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

* * * * *
    (o) The Nebraska Department of Environmental Quality submitted 
revisions to the Nebraska Administrative Code, title 129, chapter 1, 
``Definitions'' and chapter 15, ``Operating Permit Modifications; 
Reopening for Cause'' on July 14, 2014. The state effective date is 
May 13, 2014. This revision is effective June 5, 2018.
* * * * *
[FR Doc. 2018-07091 Filed 4-5-18; 8:45 am]
 BILLING CODE 6560-50-P


