Approval and Promulgation of Implementation Plans; State of Nebraska

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[NE-7-1-71549; FRL-5399-7]

Approval and Promulgation of Implementation Plans; State of

Nebraska

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: By this action the EPA gives full approval to the State

Implementation Plan (SIP) submitted by the state of Nebraska for the

purpose of fulfilling the requirements set forth in the EPA's General

Conformity rule. The SIP was submitted by the state to satisfy the

Federal requirements in 40 CFR 51.852 and 93.151.

DATES: This action is effective April 12, 1996 unless by March 13, 1996

adverse or critical comments are received.

ADDRESSES: Copies of the documents relevant to this action are

available for public inspection during normal business hours at the:

Environmental Protection Agency, Air Planning and Development 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: Lisa V. Haugen at (913) 551-7877.

SUPPLEMENTARY INFORMATION: Section 176(c) of the Clean Air Act, as

amended (the Act), requires the EPA to promulgate criteria and

procedures for demonstrating and ensuring conformity of Federal actions

to an applicable implementation plan developed pursuant to section 110

and Part D of the Act. Conformity to an SIP is defined in the Act as

meaning conformity to an SIP's purpose of eliminating or reducing the

severity and number of violations of

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the National Ambient Air Quality Standards (NAAQS), and achieving

expeditious attainment of such standards. The Federal agency

responsible for the action is required to determine if its actions

conform to the applicable SIP. On November 30, 1993, the EPA

promulgated the final rule (hereafter referred to as the General

Conformity rule), which establishes the criteria and procedures

governing the determination of conformity for all Federal actions,

except Federal highway and transit actions.

The General Conformity rule also establishes the criteria for EPA

approval of SIPs. See 40 CFR 51.851 and 93.151. These criteria provide

that the state provisions must be at least as stringent as the

requirements specified in EPA's General Conformity rule, and that they

can be more stringent only if they apply equally to Federal and non-

Federal entities (section 51.851(b)).

On November 6, 1991, the EPA promulgated a nonattainment

designation for the area surrounding the Asarco lead refinery in Omaha,

Nebraska, in response to violations of the lead NAAQS. Sections 51.851

and 93.151 of the General Conformity rule require that states submit an

SIP revision containing the criteria and procedures for assessing the

conformity of Federal actions to the applicable SIP, within 12 months

after November 30, 1993. As the rule applies to all nonattainment areas

and maintenance areas, an SIP revision which addresses the requirements

of the General Conformity rule became due on November 30, 1994.

On June 14, 1995, the state of Nebraska submitted an SIP revision

meeting the requirements of Secs. 51.851 and 93.151 of the General

Conformity rule. The submission adopts by reference 40 CFR part 93,

subpart B, except 40 CFR 93.151. The omitted section contains the

criteria for EPA approval of General Conformity SIP revisions, and also

states the effect of EPA approval of an SIP revision. It is not a

necessary component of the state's substantive rules governing general

conformity determinations.

The Nebraska rule also modifies 40 CFR 93.160(f) and 40 CFR

93.160(g) to adapt the language in the Federal regulations to the state

rule. It deletes the language in 93.160(f) stating that the

``implementation plan revision required in Sec. 93.151 shall provide

that,'' and retains the substantive requirement in paragraph (f). It

also revises paragraph (g) to refer to adoption and approval of the

Nebraska SIP revision, in place of the reference in EPA's rule to SIP

revisions generally.

This SIP revision was adopted by the Nebraska Environmental Council

on December 2, 1994. The rule was signed by the Governor on May 24,

1995, and became effective on May 29, 1995.

Because the Nebraska rule adopts the substantive requirements of

EPA's rule by reference, it meets the criteria in Secs. 51.851 and

93.151 for approval of General Conformity SIP revisions.

EPA Action

By this action EPA grants full approval of Nebraska's June 14,

1995, submittal. This SIP revision meets all of the requirements set

forth in 40 CFR 51.851 and 93.151.

The 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, the EPA is proposing to approve the SIP revision

should adverse or critical comments be filed.

If the EPA receives such comments, this action will be withdrawn

before the effective date by publishing a subsequent notice 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. The 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 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)).

This action has been classified as a Table 3 action for signature

by the Regional Administrator under the procedures published in the

Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by a

July 10, 1995, memorandum from Mary Nichols, Assistant Administrator

for Air and Radiation. The Office of Management and Budget has exempted

this regulatory action from E.O. 12866 review.

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 this SIP, the state has elected to adopt the program

provided for under section 110 of the CAA. These rules may bind state

and local governments to perform certain actions and also require the

private sector to perform certain duties. To the extent that the rules

being finalized for approval by this action will impose new

requirements, sources are already subject to these regulations under

state law. Accordingly, no additional costs to state or local

governments, or to the private sector, result from this final action.

EPA has also determined that this final action does not include a

mandate that may result in estimated costs of $100 million or more to

state or local governments in the aggregate or to the private sector.

EPA has determined that these rules result in no additional costs to

tribal government.

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 April 12, 1996. 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

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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, Incorporation by

reference, Intergovernmental relations, Lead, Reporting and

recordkeeping requirements.

Dated: November 14, 1996.

Dennis Grams,

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)(42) to read

as follows:

Sec. 52.1420 Identification of plan.

* * * * *

(c) * * *

(42) A Plan revision was submitted by the Nebraska Department of

Environmental Quality on June 14, 1995, which incorporates by reference

EPA's regulations relating to determining conformity of general Federal

actions to State or Federal Implementation Plans.

(i) Incorporation by reference.

(A) A revision to title 129, adding chapter 40, entitled ``General

Conformity'' was adopted by the Environmental Quality Council on

December 2, 1994, and became effective on May 29, 1995.

[FR Doc. 96-2975 Filed 2-9-96; 8:45 am]

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