Approval and Promulgation of Implementation Plans; State of Nebraska

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[NE 020-1020; FRL-5708-7]

Approval and Promulgation of Implementation Plans; State of

Nebraska

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: With this document, the EPA is approving the Omaha lead

emission control plan submitted by the state of Nebraska on August 28,

1996. This plan was submitted by the state to satisfy certain

requirements under the Clean Air Act (the Act) to reduce lead emissions

sufficient to bring portions of the Omaha area into attainment with the

lead National Ambient Air Quality Standard (NAAQS).

DATES: This rule is effective on April 21, 1997.

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 the EPA Air &

Radiation Docket and Information Center, 401 M Street, SW., Washington,

DC 20460.

FOR FURTHER INFORMATION CONTACT: Joshua A. Tapp at (913) 551-7606.

SUPPLEMENTARY INFORMATION:

I. Background and Purpose

A. Introduction

On January 6, 1992, the EPA designated portions of Omaha

surrounding the Asarco, Incorporated primary lead refinery as

nonattainment for the lead NAAQS. Specifically, the boundaries for the

nonattainment area are: Avenue H and the Iowa-Nebraska border on the

north, the Missouri River on the east, Eleventh Street on the west, and

Jones Street on the south. Pursuant to the designation, the Act

required the state of Nebraska to submit an attainment plan by July 6,

1993, which would bring the area into attainment by January 6, 1997.

On August 28, 1996, the state submitted a plan to the EPA which

consists of Compliance Order (Case Number) 1520 and associated work

practices. This plan meets the minimum requirements of sections 110 and

172 of the Act and in the ``Addendum to the General Preamble for the

Implementation of Title I of the Clean Air Act Amendments of 1990'' (58

FR 67748). The rationale regarding the EPA's approval of this plan can

be found in the December 4, 1996, Federal Register document (61 FR

64304) proposing the EPA's action on Nebraska's plan and in the

technical support document (TSD) for this action.

B. Response to Comments

The EPA received comments from only one commentor. On January 3,

1997, the state of Nebraska submitted the following two comments. The

state identified a typographical error made by the EPA in its December

4, 1996, proposal in subsection III.f., ``Contingency Measures.''

Specifically, the EPA's discussion of Nebraska's prohibition on causing

a violation of the lead ambient air quality standard should have

referenced paragraph 19 of Compliance Order (Case Number) 1520, instead

of paragraph 20.

The EPA agrees with this comment and wishes to make one additional

correction. The EPA's discussion of street sweeping and production cuts

in the same subsection should have referenced paragraph 18 of

Compliance Order (Case Number) 1520, instead of paragraph 19.

The EPA has determined that the proposal notice adequately

described the issues associated with the substance of the referenced

paragraphs. Therefore, despite the incorrect references to paragraph

numbers in the proposal, the EPA has determined that the proposal gives

adequate notice of the rationale for the EPA's proposed action on the

two paragraphs of the Compliance Order referenced above.

In its second comment, the state disagrees with the EPA's proposed

nonaction on the provisions pertaining to the direct enforcement of the

lead NAAQS contained in paragraph 19 of

[[Page 13330]]

the Compliance Order. In support of its comment, the state points to

certain provisions of section 110 of the Act which authorize the

Administrator to approve a broad spectrum of measures, means, or

techniques contained in the state's plan to the extent that they are

necessary and appropriate to meet the applicable requirements under the

Act. Nebraska indicates that other states use similar provisions to

achieve attainment. Nebraska also effectively describes the difficulty

in addressing individual sources at a facility of this nature through

its traditional regulatory process. Specifically, the large number and

variety of sources, the variability of the emissions rates, the weather

dependent nature of fugitive emissions, and the source's desire for

operational flexibility make it difficult for the state to develop

regulations for this source which are both protective of the NAAQS and

which are sufficiently flexible to meet Asarco's needs. According to

the state, paragraph 19 resolves this issue by protecting the NAAQS

while allowing Asarco increased flexibility.

The EPA acknowledges the state's reasons for developing the

provisions of paragraph 19. However, the EPA's concerns regarding this

provision specifically relate to its general enforceability and its

inconsistency with the criteria for contingency measures contained in

section 172(c)(9) of the Act, and in the ``Addendum to the General

Preamble for the Implementation of Title I of the Clean Air Act

Amendments of 1990'' (58 FR 67748). Specifically, paragraph 19 does not

require the source to implement specific measures which reduce ambient

lead concentrations when a violation of the standard occurs. The

state's remedy for a violation of this paragraph is to assess a penalty

or to seek injunctive relief. Neither of these options has a direct

impact on ambient lead concentrations. As noted in the proposal, other

provisions of the Order which require specific emission reductions (if

the NAAQS are violated) are sufficient to meet the contingency measure

requirements in section 172(c)(9). Secondly, the state has not defined

the methods by which it will demonstrate that Asarco is the sole source

of the ambient violation. Without predefining such methods, successful

enforcement of paragraph 19 will be difficult. For the reasons stated

above, and as explained in more detail in the TSD for this action, the

EPA will not take action on paragraph 19 of Compliance Order (Case

Number) 1520 at this time.

II. Final Action

In this document, the EPA takes final action to approve the

Nebraska Department of Environmental Quality's Compliance Order (Case

Number) 1520, signed June 6, 1996, and Appendix A to that Compliance

Order entitled, ``Work Practices Manual.'' Together, these documents,

submitted to the EPA on August 28, 1996, comprise the enforceable

portion of the Nebraska attainment plan. However, the EPA takes no

action on paragraph 19 of Compliance Order (Case Number) 1520 for the

reasons stated above.

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.

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, the Administrator

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 the 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)).

III. Administrative Requirements

A. Executive Order 12866

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 Executive Order 12866 review.

B. Unfunded Mandates

Under section 202 of the Unfunded Mandates Reform Act of 1995

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

must prepare a budgetary impact statement to accompany any proposed or

final rule that includes a Federal mandate that may result in estimated

costs to state, local, or tribal governments in the aggregate; or to

private sector, of $100 million or more. Under section 205, the EPA

must select the most cost-effective and least burdensome alternative

that achieves the objectives of the rule and is consistent with

statutory requirements. Section 203 requires the EPA to establish a

plan for informing and advising any small governments that may be

significantly or uniquely impacted by the rule.

The EPA has determined that the approval action promulgated does

not include a Federal mandate that may result in estimated costs of

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

the aggregate, or to the private sector. This Federal action approves

preexisting requirements under state or local law, and imposes no new

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

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

C. Submission to Congress and the General Accounting Office

Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business

Regulatory Enforcement Fairness Act of 1996, the EPA submitted 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

General Accounting Office prior to publication of this rule in today's

Federal Register. This rule is not a ``major rule'' as defined by 5

U.S.C. 804(2).

D. Petitions for Judicial Review

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 May 19, 1997. 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, Incorporation by

reference, Intergovernmental relations, Lead, Particulate matter,

Reporting and recordkeeping requirements.

[[Page 13331]]

Dated: February 27, 1997.

U. Gale Hutton,

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)(45) to read

as follows:

Sec. 52.1420 Identification of plan.

* * * * *

(c) * * *

(45) A revision to the Nebraska SIP to reduce lead emissions in the

Omaha lead nonattainment area sufficient to bring that area back into

attainment with the lead National Ambient Air Quality Standard.

(i) Incorporation by reference.

(A) Amended Complaint and Compliance Order Case No. 1520, signed

June 6, 1996, except for paragraph 19 and accompanying work practice

manual in Appendix A.

(ii) Additional material.

(A) Supplemental document entitled, ``Methods for Determining

Compliance'' submitted by the state to provide additional detail

regarding the compliance methods for this Order.

[FR Doc. 97-7097 Filed 3-19-97; 8:45 am]

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