Clean Air Act (CAA) Final Full Approval Of Operating Permits Programs; State of Nebraska, City of Omaha, and Lincoln-Lancaster County Health Department (LLCHD) and Delegation of 112(l) Authority

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 70

[AD-FRL-5316-2]

Clean Air Act (CAA) Final Full Approval Of Operating Permits

Programs; State of Nebraska, City of Omaha, and Lincoln-Lancaster

County Health Department (LLCHD) and Delegation of 112(l) Authority

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final full approval.

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SUMMARY: The EPA is promulgating full approval of the operating permits

programs submitted by the state of Nebraska, city of Omaha, and LLCHD

for the purpose of complying with Federal requirements for an

approvable state program to issue operating permits to all major

stationary sources and certain other sources. EPA is also approving,

under section 112(l), all three programs for accepting delegation of

section 112 standards to enforce air toxics regulations.

EFFECTIVE DATE: November 17, 1995.

ADDRESSES: Copies of the three submittals and other supporting

information used in developing the final full approval are available

for inspection during normal business hours at the following location:

Environmental Protection Agency, Region VII, 726 Minnesota Avenue,

Kansas City, Kansas 66101.

FOR FURTHER INFORMATION CONTACT: Christopher D. Hess at (913) 551-7213.

SUPPLEMENTARY INFORMATION:

I. Background and Purpose

A. Introduction

Title V of the 1990 Clean Air Act Amendments (sections 501-507 of

the Clean Air Act (``the Act'')), and implementing regulations at 40

Code of Federal Regulations (CFR) part 70, require that states develop

and submit operating permits programs to EPA by November 15, 1993, and

that EPA act to approve or disapprove each program within one year

after receiving the submittal. The EPA's program review occurs pursuant

to section 502 of the Act and the part 70 regulations, which together

outline criteria for approval or disapproval. Where a program

substantially, but not fully, meets the requirements of part 70, EPA

may grant the program interim approval for a period of up to two years.

If EPA has not fully approved a program by two years after the November

15, 1993, date (or by the end of an interim program), it must establish

and implement a Federal program.

On January 31, 1995, EPA proposed full approval of the operating

permits program for LLCHD (60 FR 5883-87). Furthermore, on April 3,

1995, EPA proposed approval of delegation for 112(l) for LLCHD (60 FR

16829-30). Public comments were received on (60 FR 5883-87) which are

addressed in section II of this notice. None were received on 60 FR

16829-30.

On March 7, 1995, EPA proposed full approval of the operating

permits program for the state of Nebraska and city of Omaha (60 FR

12521-24). The

[[Page 53873]]

EPA received public comments which are also addressed in section II of

this notice. In this notice, EPA is taking final action to promulgate

full approval of all three operating permit programs submitted within

Nebraska, including delegation of 112(l) authority.

II. Public Comments

One party submitted comments on both of the two proposal notices.

Although the letters are signed by different representatives, the same

interest is represented by each and the comments are largely identical.

A total of six comments will herein be addressed which answers all

comments.

Comment #1: The approval date for all three programs should be the

same, so that due dates for industry submissions triggered by the

approval date will be uniform throughout the state.

EPA Response: Although two separate proposal notices were used, the

EPA has combined the final action into one notice. Therefore, all three

programs have the same approval date. It should be noted, however, that

the effective date of the EPA approval is not necessarily the trigger

date for certain source obligations under the state and local programs.

For example, sources which apply for early permit processing under the

state and local rules must submit complete applications by dates

specified in the rules, which are not dependent on the effective date

of EPA approval.

Comment #2: The annual inventory submission dates should be uniform

for all three programs. The uniform date should be July 1 of each year,

to correspond to the reporting deadline for toxic release inventory

data under the Federal Emergency Planning and Community Right to Know

Act (EPCRA).

EPA Response: Under Title V of the Act and part 70, the minimum

requirements for EPA approval of state and local permitting programs

contain no specific provisions governing the submission of annual

emission inventory information, and no expressed or implied requirement

relating to dates for submission of emission inventories. A state has

the flexibility under part 70 to submit approvable programs which

contain different dates for submission of emission information, at the

discretion of the state.

EPA notes, in addition, that the inventory submission provisions

referenced by the commenter state that annual inventories showing

emissions for the prior calendar year must be submitted ``by'' July 1

(in the Nebraska rule) and ``by'' March 31 (in the Lincoln-Lancaster

rule). Thus, a source owner could submit inventories by March 31 in

each jurisdiction and be in compliance with both rules. Similarly, a

source owner could submit toxic release information by March 31, and be

in compliance with the applicable EPCRA deadline.

Comment #3: A uniform fee schedule should be established throughout

the state.

EPA Response: The city of Omaha and LLCHD have established fees of

$30.07 per ton of regulated air pollutant, while the state has adopted

a fee slightly above this at $30.69. Under 40 CFR 70.9(a), permitting

agencies must assess fees that adequately cover the costs of

administering the program, and must ensure that the fees will be used

solely to cover Title V permit program costs. There is no requirement

that fees be uniform within a state, so long as these minimum

requirements are met. In fact, since the statewide permit program in

Nebraska assesses fees on fewer pollutants (i.e., Nebraska, unlike the

local permitting authorities, assesses fees only on smaller particulate

emissions), EPA would anticipate that the amount per ton of pollutant

would be higher for the state than for the local programs. Therefore,

the EPA believes, for reasons detailed in the proposed rulemakings 60

FR 5883 and 60 FR 12521, that the fee requirements of section 70.9 have

been met.

Comment #4: None of Nebraska's programs allow ``off-permit''

changes without a permit revision. EPA should require that the

permitting authorities adopt criteria under which permitting

authorities will allow changes not covered by the permit, without the

need for a permit revision.

EPA Response: In 40 CFR 70.4(b)(14), EPA recognizes that permitting

authorities may, as a matter of state or local law, prohibit sources

from making certain changes which are not addressed in or prohibited by

a permit (``off-permit'' changes). EPA cannot require that states allow

off-permit changes. Thus, this matter is within the discretion of the

individual permitting agencies.

It is noted, however, that Title 129, Chapter 15:007 allows certain

types of changes within a permitted facility without a permit revision

(``Section 502(b)10'' changes). Interested sources should reference

that provision.

Comment #5: Permitting agencies might use Title V fees to

administer the Class II source program (the operating permit program

for non-Title V sources). Nebraska should provide assurance that such

fees will not be misdirected to non-Title V activities.

EPA Response: Fees collected under Title V may only be used for

Title V activities. As stated in EPA's proposals on the state and local

programs (at 60 FR 5885 and 60 FR 125223), the program submittals

include a demonstration that separate funds have been created for

handling the Title V fees. Permitting authorities will be expected to

keep appropriate records to show that the fees are used only for

activities relating to Title V.

There may be sources in the class II program, however, for which

the state and local agencies may utilize Title V funding in permit

processing (such as sources potentially subject to Title V, which take

restrictions in Class II permits so that they will not be required to

obtain Title V permits). EPA considers such permitting to be a valid

Title V activity. However, the state must use other funds for

permitting and other activities which have no relationship to the Title

V program.

Comment #6: If more funds are generated than required, are there

provisions to reduce future fee assessments?

EPA Response: In the program descriptions of all three submittals,

the respective agencies identified a fee schedule that is anticipated

to meet the costs of implementing the program(s). Furthermore, in each

instance, the respective agencies have committed to reviewing the fee

schedule on an annual basis once the actual costs of the program are

determined. The Federal requirements do not prevent a permitting

authority from later adjusting the fee schedule downward, as long as

the minimum fee demonstration requirements of 40 CFR 70.9 are met.

III. Final Action and Implications

A. Fulfillment of EPA Requested Modifications

The January 31, 1995, Federal Register notice proposing approval of

the LLCHD program outlined two requirements prior to final action: (1)

modifying the regulations to ensure that all ``applicable

requirements'' of the CAA (as defined in 40 CFR 70.2) are identified in

permit applications and throughout the permitting process; and (2)

modifying provisions relating to minor permit modifications to ensure

that certain changes, which may be modifications under Title I of the

CAA, would not qualify for minor permit revision processing. In the

proposal, EPA suggested that it could approve the LLCHD program if it

adopted changes substantially similar to those adopted by Nebraska in

the state's December 2, 1994, rule (see 60 FR 5885). On May 16,

[[Page 53874]]

1995, the Lincoln-Lancaster Board of Commissioners adopted these

modified amendments, based on the state's December 2, 1994, amendments,

and these were submitted to EPA on May 23, 1995.

The March 7, 1995, Federal Register notice proposing approval for

the state of Nebraska and city of Omaha programs also outlined two

requirements prior to final action: the state must submit the December

2, 1994, amendments to Title 129, and the city of Omaha must

incorporate these amendments by reference and submit them to EPA.

The state of Nebraska submitted these amendments on June 14, 1995,

following signature by the Governor on May 29, 1995. On March 21, 1995,

the city of Omaha adopted these amendments by reference to become

effective 15 days after the state's December 2, 1994, amendments became

effective (June 13, 1995--based on the May 29, 1995, approval by the

Governor). Thus, all three agencies have met the final requirements for

final full approval.

B. Variances

One issue of EPA concern with state programs is the ability of a

part 70 source to obtain a waiver from any applicable requirement. The

Nebraska Department of Environmental Quality (NDEQ) has the authority

to issue a variance from requirements imposed by state law in Nebraska

Revised Statute Sec. 81-1513.

However, the EPA regards the Nebraska variance provision, and

similar local agency regulatory provisions, as wholly external to the

programs submitted for approval under part 70, and EPA is consequently

taking no action on these variance provisions. The EPA has no authority

to approve provisions of state and local authority, such as the

variance provisions, which are inconsistent with the Act. The EPA does

not recognize the ability of a permitting authority to grant relief

from the duty to obtain and comply with the terms of a Federally

enforceable part 70 permit, except where such relief is granted through

procedures allowed by part 70.

The EPA reserves the right to enforce the terms of the part 70

permit where the permitting authority purports to grant relief from the

duty to obtain and comply with a part 70 permit in a manner

inconsistent with part 70 requirements.

C. Final Action

1. Regulations. The EPA is promulgating full approval of the

operating permits program submitted to EPA for the state of Nebraska,

city of Omaha, and LLCHD submitted on November 15, 1993. Each agency

has demonstrated its respective program will be adequate to meet the

minimum elements of an operating permits program as specified in 40 CFR

part 70.

This approval includes the following regulations adopted by each

agency:

a. NDEQ, Title 129, Nebraska Air Quality Regulations, amended May

29, 1995. This includes the following chapters of the regulations

insofar as they apply to Title V: 1, 2, 5-15, 29, 40-44.

b. 1993 Lincoln-Lancaster County Air Pollution Control Program,

Version March 1995, dated May 16, 1995. This includes the following

citations insofar as they apply to Title V: Article 1, Sections 1-2,

and 7; and Article 2, Sections 1, 2, 5-15, and 29.

c. Omaha Municipal Code, Section 41-2, 41-9 and 41-10; Ordinance

33506, dated March 21, 1995, which incorporates by reference Title 129.

2. Jurisdiction. The scope of the part 70 programs approved in this

notice applies to all part 70 sources (as defined in the approved

program), within the state of Nebraska, except any sources of air

pollution over which an Indian Tribe has jurisdiction. See 59 FR 55813,

55815-18 (November 9, 1994). The term ``Indian Tribe'' is defined under

the Act as ``any Indian Tribe, Band, Nation, or other organized group

or community, including any Alaska Native village, which is Federally

recognized as eligible for the special programs and services provided

by the United States to Indians, because of their status as Indians.''

See section 302(r) of the CAA; 59 FR 43956, 43962 (August 25, 1994); 58

FR 54364 (October 21, 1993).

3. 112(l). Requirements for approval, specified in 40 CFR 70.4(b),

encompass section 112(l)(5) requirements for approval of a program for

delegation of section 112 standards as promulgated by EPA as they apply

to part 70 sources, as well as sources not subject to part 70

requirements. Section 112(l)(5) requires that the state's program

contain adequate authorities, adequate resources for implementation,

and an expeditious compliance schedule, which are also requirements

under part 70. Therefore, the EPA is also promulgating full approval

under section 112(l)(5) and 40 CFR 63.91 of these programs for

receiving delegation of section 112 standards that are unchanged from

Federal standards as promulgated.

4. 112(g). The EPA issued an interpretive notice on February 14,

1995 (60 FR 8333), which outlines EPA's revised interpretation of

112(g) applicability. The notice postpones the effective date of 112(g)

until after EPA has promulgated a rule addressing that provision. The

notice sets forth in detail the rationale for the revised

interpretation.

The section 112(g) interpretive notice explains that EPA is still

considering whether the effective date of section 112(g) should be

delayed beyond the date of promulgation of the Federal rule so as to

allow states time to adopt rules implementing the Federal rule, and

that EPA will provide for any such additional delay in the final

section 112(g) rulemaking. Unless and until EPA provides for such an

additional postponement of section 112(g), Nebraska must have a

Federally enforceable mechanism for implementing section 112(g) during

the period between promulgation of the Federal section 112(g) rule and

adoption of implementing Federal regulations.

The EPA is aware that Nebraska lacks a program designed

specifically to implement section 112(g). However, Nebraska does have a

preconstruction review program that can serve as an adequate

implementation vehicle during the transition period, because it would

allow Nebraska to select control measures that would meet Maximum

Available Control Technology, as defined in section 112, and

incorporate these measures into a Federally enforceable preconstruction

permit.

EPA is approving Nebraska's preconstruction permitting program

under the authority of Title V and part 70, solely for the purpose of

implementing section 112(g) to the extent necessary, during the

transition period between 112(g) promulgation and adoption of a state

rule implementing EPA's section 112(g) regulations. Although section

112(l) generally provides authority for approval of state air programs

to implement section 112(g), Title V and section 112(g) provide for

this limited approval because of the direct linkage between the

implementation of section 112(g) and Title V.

The scope of this approval is narrowly limited to section 112(g),

and does not confer or imply approval for purposes of any other

provision under the Act (e.g., section 110). This approval will be

without effect, if EPA decides in the final section 112(g) rule that

sources are not subject to the requirements of the rule until state

regulations are adopted. The duration of this approval is limited to 18

months following promulgation by EPA of the 112(g) rule to provide

adequate time for the state to adopt regulations consistent with the

Federal requirements.

[[Page 53875]]

IV. Administrative Requirements

A. Docket

Copies of the three submittals and other information relied upon

for the final full approval, including public comments received and

reviewed by EPA on the proposal, are contained in a docket maintained

at the EPA Regional Office. The docket is an organized and complete

file of all the information submitted to, or otherwise considered by,

EPA in the development of this final full approval. The docket is

available for public inspection at the location listed under the

ADDRESSES section of this document.

B. Executive Order 12866

The Office of Management and Budget has exempted this action from

Executive Order 12866 review.

C. Regulatory Flexibility Act

The EPA's actions under section 502 of the Act do not create any

new requirements, but simply address operating permits programs

submitted to satisfy the requirements of 40 CFR part 70. Because this

action does not impose any new requirements, it does not have a

significant impact on a substantial number of small entities.

D. Unfunded Mandates

Under sections 202, 203, and 205 of the Unfunded Mandates Reform

Act of 1995 (``Unfunded Mandates Act''), signed into law on March 22,

1995, EPA must undertake various actions in association with proposed

or final rules that include a Federal mandate that may result in

estimated costs of $100 million or more to the private sector, or to

state, local, or tribal governments in the aggregate.

Through submission of these operating permit programs, the state of

Nebraska and two local agencies have elected to adopt the program

provided for under Title V of the CAA. These rules bind these entities

to perform certain actions and also require the private sector to

perform certain duties.

To the extent that the rules being proposed for approval by this

action will impose new requirements, sources are already subject to

these regulations under statelaw. EPA has determined that this proposed

action does not include a mandate that may result in estimated costs of

$100 million or more to state, local, or tribal governments in the

aggregate or to the private sector.

List of Subjects in 40 CFR Part 70

Environmental protection, Administrative practice and procedure,

Air pollution control, Intergovernmental relations, Operating permits,

and Reporting and recordkeeping requirements.

Dated: October 6, 1995.

Dennis Grams,

Regional Administrator.

Part 70, title 40 of the Code of Federal Regulations is amended as

follows:

PART 70--[AMENDED]

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

Authority: 42 U.S.C. 7401-7671q.

2. Appendix A to part 70 is amended by adding the entry for the

state of Nebraska, the city of Omaha, and LLCHD to read as follows:

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

Permits Programs

* * * * *

State of Nebraska; City of Omaha; Lincoln-Lancaster County Health

Department

(a) The Nebraska Department of Environmental Quality submitted on

November 15, 1993, supplemented by correspondence dated November 2,

1994, and August 29, 1995.

(b) Omaha Public Works Department submitted on November 15, 1993,

supplemented by correspondence dated April 18, 1994; May 13, 1994;

August 12, 1994; April 13, 1995; and April 19, 1995.

(c) Lincoln-Lancaster County Health Department submitted on

November 15, 1993, supplemented by correspondence dated June 27, 1994.

Full approval effective on: November 17, 1995.

(d) Reserved.

* * * * *

[FR Doc. 95-25844 Filed 10-17-95; 8:45 am]

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