Approval and Promulgation of Implementation Plans and Delegation of 112(l) Authority; State of Nebraska

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.

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

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, [[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 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

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

TSP\1\............................. 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

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

\1\Although 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 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 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 source-specific 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 [[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, 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