Partial Approval and Disapproval of Air Quality State Implementation Plans (SIP); State of Nebraska; Infrastructure SIP Requirements for the 2008 Ozone National Ambient Air Quality Standard, 35284-35295 [2015-14336]
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Federal Register / Vol. 80, No. 118 / Friday, June 19, 2015 / Proposed Rules
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R07–OAR–2015–0270; FRL–9929–05–
Region 7]
Partial Approval and Disapproval of Air
Quality State Implementation Plans
(SIP); State of Nebraska; Infrastructure
SIP Requirements for the 2008 Ozone
National Ambient Air Quality Standard
Environmental Protection
Agency.
ACTION: Proposed rule.
AGENCY:
The Environmental Protection
Agency (EPA) is proposing to partially
approve and partially disapprove
elements of a State Implementation Plan
(SIP) submission from the State of
Nebraska addressing the applicable
requirements of Clean Air Act (CAA)
section 110 for the 2008 National
Ambient Air Quality Standards
(NAAQS) for Ozone (O3), which
requires that each state adopt and
submit a SIP to support implementation,
maintenance, and enforcement of each
new or revised NAAQS promulgated by
EPA. These SIPs are commonly referred
to as ‘‘infrastructure’’ SIPs. The
infrastructure requirements are designed
to ensure that the structural components
of each state’s air quality management
program are adequate to meet the state’s
responsibilities under the CAA. EPA is
proposing to disapprove Nebraska’s SIP
as it relates to section 110 with respect
to visibility, for the 2008 O3 NAAQS.
DATES: Comments must be received on
or before July 20, 2015.
ADDRESSES: Submit your comments,
identified by Docket ID No. EPA–R07–
OAR–2015–0270, by one of the
following methods:
1. https://www.regulations.gov. Follow
the on-line instructions for submitting
comments.
2. Email: crable.gregory@epa.gov.
3. Mail: Mr. Gregory Crable, Air
Planning and Development Branch, U.S.
Environmental Protection Agency,
Region 7, Air and Waste Management
Division, 11201 Renner Boulevard,
Lenexa, Kansas 66219.
4. Hand Delivery or Courier: Deliver
your comments to Mr. Gregory Crable,
Air Planning and Development Branch,
U.S. Environmental Protection Agency,
Region 7, Air and Waste Management
Division, 11201 Renner Boulevard,
Lenexa, Kansas 66219.
Instructions: Direct your comments to
Docket ID No. EPA–R07–OAR–2015–
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SUMMARY:
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0270. EPA’s policy is that all comments
received will be included in the public
docket without change and may be
made available online at https://
www.regulations.gov, including any
personal information provided, unless
the comment includes information
claimed to be Confidential Business
Information (CBI) or other information
whose disclosure is restricted by statute.
Do not submit through https://
www.regulations.gov or email
information that you consider to be CBI
or otherwise protected. The https://
www.regulations.gov Web site is an
‘‘anonymous access’’ system, which
means EPA will not know your identity
or contact information unless you
provide it in the body of your comment.
If you send an email comment directly
to EPA without going through https://
www.regulations.gov, your email
address will be automatically captured
and included as part of the comment
that is placed in the public docket and
made available on the Internet. If you
submit an electronic comment, EPA
recommends that you include your
name and other contact information in
the body of your comment and with any
disk or CD–ROM you submit. If EPA
cannot read your comment due to
technical difficulties and cannot contact
you for clarification, EPA may not be
able to consider your comment.
Electronic files should avoid the use of
special characters, any form of
encryption, and should be free of any
defects or viruses.
Docket: All documents in the
electronic docket are listed in the
https://www.regulations.gov index.
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, will be publicly
available only in hard copy. Publicly
available docket materials are available
either electronically at https://
www.regulations.gov or in hard copy at
U.S. Environmental Protection Agency,
Region 7, 11201 Renner Boulevard,
Lenexa, Kansas 66219 from 8:00 a.m. to
4:30 p.m., Monday through Friday,
excluding legal holidays. The interested
persons wanting to examine these
documents should make an
appointment with the office at least 24
hours in advance.
FOR FURTHER INFORMATION CONTACT: Mr.
Gregory Crable, Air Planning and
Development Branch, U.S.
Environmental Protection Agency,
Region 7, 11201 Renner Boulevard,
PO 00000
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Lenexa, KS 66219; telephone number:
(913) 551–7391; fax number: (913) 551–
7065; email address: crable.gregory@
epa.gov.
SUPPLEMENTARY INFORMATION:
Throughout this document whenever
‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we refer
to EPA. This section provides additional
information by addressing the following
questions:
I. What is a section 110(a)(1) and (2)
infrastructure SIP?
II. What are the applicable elements under
sections 110(a)(1) and (2)?
III. What is EPA’s approach to the review of
Infrastructure SIP submissions?
IV. What is EPA’s evaluation of how the State
addressed the relevant elements of
Sections 110(a)(1) and (2)?
V. What action is EPA proposing?
VI. Statutory and Executive Order Review
I. What is a section 110(a)(1) and (2)
infrastructure SIP?
Section 110(a)(1) of the CAA requires,
in part, that states make a SIP
submission to EPA to implement,
maintain and enforce each of the
NAAQS promulgated by EPA after
reasonable notice and public hearings.
Section 110(a)(2) includes a list of
specific elements that such
infrastructure SIP submissions must
address. SIPs meeting the requirements
of sections 110(a)(1) and (2) are to be
submitted by states within three years
after promulgation of a new or revised
NAAQS. These SIP submissions are
commonly referred to as
‘‘infrastructure’’ SIPs.
II. What are the applicable elements
under sections 110(a)(1) and (2)?
On March 12, 2008, EPA promulgated
a revised NAAQS for ozone based on 8hour average concentrations. The level
of the 2008 8-hour ozone NAAQS
(hereafter the 2008 O3 NAAQS) was
revised from 0.08 parts per million
(ppm) to 0.075 ppm (73 FR 16436).
For the 2008 O3 NAAQS, states
typically have met many of the basic
program elements required in section
110(a)(2) through earlier SIP
submissions in connection with
previous NAAQS. Nevertheless,
pursuant to section 110(a)(1), states
must review and revise, as appropriate,
their existing SIPs to ensure that the
SIPs are adequate to address the 2008 O3
NAAQS. To assist states in meeting this
statutory requirement, EPA issued
guidance on September 13, 2013 (2013
Guidance), addressing the infrastructure
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SIP elements required under section
110(a)(1) and (2) for the 2008 O3
NAAQS.1 EPA will address these
elements below under the following
headings: (A) Emission limits and other
control measures; (B) Ambient air
quality monitoring/data system; (C)
Program for enforcement of control
measures (prevention of significant
deterioration) (PSD)), New Source
Review for nonattainment areas, and
construction and modification of all
stationary sources; (D) Interstate and
international transport; (E) Adequate
authority, resources, implementation,
and oversight; (F) Stationary source
monitoring system; (G) Emergency
authority; (H) Future SIP revisions; (I)
Nonattainment areas; (J) Consultation
with government officials, public
notification, prevention of significant
deterioration (PSD), and visibility
protection; (K) Air quality and
modeling/data; (L) Permitting fees; and
(M) Consultation/participation by
affected local entities.
III. What is EPA’s approach to the
review of infrastructure SIP
submissions?
EPA is acting upon the February 11,
2013, SIP submission from Nebraska
that addresses the infrastructure
requirements of CAA sections 110(a)(1)
and 110(a)(2) for the 2008 O3 NAAQS.
The requirement for states to make a SIP
submission of this type arises out of
CAA section 110(a)(1). Pursuant to
section 110(a)(1), states must make SIP
submissions ‘‘within 3 years (or such
shorter period as the Administrator may
prescribe) after the promulgation of a
national primary ambient air quality
standard (or any revision thereof),’’ and
these SIP submissions are to provide for
the ‘‘implementation, maintenance, and
enforcement’’ of such NAAQS. The
statute directly imposes on states the
duty to make these SIP submissions,
and the requirement to make the
submissions is not conditioned upon
EPA taking any action other than
promulgating a new or revised NAAQS.
Section 110(a)(2) includes a list of
specific elements that ‘‘[e]ach such
plan’’ submission must address.
EPA has historically referred to these
SIP submissions made for the purpose
of satisfying the requirements of CAA
sections 110(a)(1) and 110(a)(2) as
‘‘infrastructure SIP’’ submissions.
Although the term ‘‘infrastructure SIP’’
1 Stephen D. Page, Director, Air Quality Policy
Division, Office of Air Quality Planning and
Standards, ‘‘Guidance on Infrastructure State
Implementation Plan (SIP) Elements Under Clean
Air Act Sections 110(a)(1) and 110(a)(2),’’
Memorandum to EPA Regional Air Division
Directors, Regions I–X, September 13, 2013.
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does not appear in the CAA, EPA uses
the term to distinguish this particular
type of SIP submission from
submissions that are intended to satisfy
other SIP requirements under the CAA,
such as ‘‘nonattainment SIP’’ or
‘‘attainment plan SIP’’ submissions to
address the nonattainment planning
requirements of part D of title I of the
CAA, ‘‘regional haze SIP’’ submissions
required by EPA rule to address the
visibility protection requirements of
CAA section 169A, and nonattainment
new source review permit program
submissions to address the permit
requirements of CAA, title I, part D.
Section 110(a)(1) addresses the timing
and general requirements for
infrastructure SIP submissions, and
section 110(a)(2) provides more details
concerning the required contents of
these submissions. The list of required
elements provided in section 110(a)(2)
contains a wide variety of disparate
provisions, some of which pertain to
required legal authority, some of which
pertain to required substantive program
provisions, and some of which pertain
to requirements for both authority and
substantive program provisions.2 EPA
therefore believes that while the timing
requirement in section 110(a)(1) is
unambiguous, some of the other
statutory provisions are ambiguous. In
particular, EPA believes that the list of
required elements for infrastructure SIP
submissions provided in section
110(a)(2) contains ambiguities
concerning what is required for
inclusion in an infrastructure SIP
submission.
The following examples of
ambiguities illustrate the need for EPA
to interpret some section 110(a)(1) and
section 110(a)(2) requirements with
respect to infrastructure SIP
submissions for a given new or revised
NAAQS. One example of ambiguity is
that section 110(a)(2) requires that
‘‘each’’ SIP submission must meet the
list of requirements therein, while EPA
has long noted that this literal reading
of the statute is internally inconsistent
and would create a conflict with the
nonattainment provisions in part D of
title I of the Act, which specifically
address nonattainment SIP
requirements.3 Section 110(a)(2)(I)
2 For example: Section 110(a)(2)(E)(i) provides
that states must provide assurances that they have
adequate legal authority under state and local law
to carry out the SIP; section 110(a)(2)(C) provides
that states must have a SIP-approved program to
address certain sources as required by part C of title
I of the CAA; and section 110(a)(2)(G) provides that
states must have legal authority to address
emergencies as well as contingency plans that are
triggered in the event of such emergencies.
3 See, e.g., ‘‘Rule To Reduce Interstate Transport
of Fine Particulate Matter and Ozone (Clean Air
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pertains to nonattainment SIP
requirements and part D addresses
when attainment plan SIP submissions
to address nonattainment area
requirements are due. For example,
section 172(b) requires EPA to establish
a schedule for submission of such plans
for certain pollutants when the
Administrator promulgates the
designation of an area as nonattainment,
and section 107(d)(1)(B) allows up to
two years, or in some cases three years,
for such designations to be
promulgated.4 This ambiguity illustrates
that rather than apply all the stated
requirements of section 110(a)(2) in a
strict literal sense, EPA must determine
which provisions of section 110(a)(2)
are applicable for a particular
infrastructure SIP submission.
Another example of ambiguity within
sections 110(a)(1) and 110(a)(2) with
respect to infrastructure SIPs pertains to
whether states must meet all of the
infrastructure SIP requirements in a
single SIP submission, and whether EPA
must act upon such SIP submission in
a single action. Although section
110(a)(1) directs states to submit ‘‘a
plan’’ to meet these requirements, EPA
interprets the CAA to allow states to
make multiple SIP submissions
separately addressing infrastructure SIP
elements for the same NAAQS. If states
elect to make such multiple SIP
submissions to meet the infrastructure
SIP requirements, EPA can elect to act
on such submissions either individually
or in a larger combined action.5
Similarly, EPA interprets the CAA to
allow it to take action on the individual
parts of one larger, comprehensive
infrastructure SIP submission for a
Interstate Rule); Revisions to Acid Rain Program;
Revisions to the NOX SIP Call; Final Rule,’’ 70 FR
25162, at 25163–65 (May 12, 2005) (explaining
relationship between timing requirement of section
110(a)(2)(D) versus section 110(a)(2)(I)).
4 EPA notes that this ambiguity within section
110(a)(2) is heightened by the fact that various
subparts of part D set specific dates for submission
of certain types of SIP submissions in designated
nonattainment areas for various pollutants. Note,
e.g., that section 182(a)(1) provides specific dates
for submission of emissions inventories for the
ozone NAAQS. Some of these specific dates are
necessarily later than three years after promulgation
of the new or revised NAAQS.
5 See, e.g., ‘‘Approval and Promulgation of
Implementation Plans; New Mexico; Revisions to
the New Source Review (NSR) State
Implementation Plan (SIP); Prevention of
Significant Deterioration (PSD) and Nonattainment
New Source Review (NNSR) Permitting,’’ 78 FR
4339 (January 22, 2013) (EPA’s final action
approving the structural PSD elements of the New
Mexico SIP submitted by the State separately to
meet the requirements of EPA’s 2008 PM2.5 NSR
rule), and ‘‘Approval and Promulgation of Air
Quality Implementation Plans; New Mexico;
Infrastructure and Interstate Transport
Requirements for the 2006 PM2.5 NAAQS,’’ (78 FR
4337) (January 22, 2013) (EPA’s final action on the
infrastructure SIP for the 2006 PM2.5 NAAQS).
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given NAAQS without concurrent
action on the entire submission. For
example, EPA has sometimes elected to
act at different times on various
elements and sub-elements of the same
infrastructure SIP submission.6
Ambiguities within sections 110(a)(1)
and 110(a)(2) may also arise with
respect to infrastructure SIP submission
requirements for different NAAQS.
Thus, EPA notes that not every element
of section 110(a)(2) would be relevant,
or as relevant, or relevant in the same
way, for each new or revised NAAQS.
The states’ attendant infrastructure SIP
submissions for each NAAQS therefore
could be different. For example, the
monitoring requirements that a state
might need to meet in its infrastructure
SIP submission for purposes of section
110(a)(2)(B) could be very different for
different pollutants, for example
because the content and scope of a
state’s infrastructure SIP submission to
meet this element might be very
different for an entirely new NAAQS
than for a minor revision to an existing
NAAQS.7
EPA notes that interpretation of
section 110(a)(2) is also necessary when
EPA reviews other types of SIP
submissions required under the CAA.
Therefore, as with infrastructure SIP
submissions, EPA also has to identify
and interpret the relevant elements of
section 110(a)(2) that logically apply to
these other types of SIP submissions.
For example, section 172(c)(7) requires
that attainment plan SIP submissions
required by part D have to meet the
‘‘applicable requirements’’ of section
110(a)(2). Thus, for example, attainment
plan SIP submissions must meet the
requirements of section 110(a)(2)(A)
regarding enforceable emission limits
and control measures and section
110(a)(2)(E)(i) regarding air agency
resources and authority. By contrast, it
is clear that attainment plan SIP
submissions required by part D would
not need to meet the portion of section
110(a)(2)(C) that pertains to the PSD
program required in part C of title I of
the CAA, because PSD does not apply
6 On December 14, 2007, the State of Tennessee,
through the Tennessee Department of Environment
and Conservation, made a SIP revision to EPA
demonstrating that the State meets the requirements
of sections 110(a)(1) and (2). EPA proposed action
for infrastructure SIP elements (C) and (J) on
January 23, 2012 (77 FR 3213) and took final action
on March 14, 2012 (77 FR 14976). On April 16,
2012 (77 FR 22533) and July 23, 2012 (77 FR
42997), EPA took separate proposed and final
actions on all other section 110(a)(2) infrastructure
SIP elements of Tennessee’s December 14, 2007
submittal.
7 For example, implementation of the 1997 PM
2.5
NAAQS required the deployment of a system of
new monitors to measure ambient levels of that new
indicator species for the new NAAQS.
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to a pollutant for which an area is
designated nonattainment and thus
subject to part D planning requirements.
As this example illustrates, each type of
SIP submission may implicate some
elements of section 110(a)(2) but not
others.
Given the potential for ambiguity in
some of the statutory language of section
110(a)(1) and section 110(a)(2), EPA
believes that it is appropriate to
interpret the ambiguous portions of
section 110(a)(1) and section 110(a)(2)
in the context of acting on a particular
SIP submission. In other words, EPA
assumes that Congress could not have
intended that each and every SIP
submission, regardless of the NAAQS in
question or the history of SIP
development for the relevant pollutant,
would meet each of the requirements, or
meet each of them in the same way.
Therefore, EPA has adopted an
approach under which it reviews
infrastructure SIP submissions against
the list of elements in section 110(a)(2),
but only to the extent each element
applies for that particular NAAQS.
Historically, EPA has elected to use
guidance documents to make
recommendations to states for
infrastructure SIPs, in some cases
conveying needed interpretations on
newly arising issues and in some cases
conveying interpretations that have
already been developed and applied to
individual SIP submissions for
particular elements.8 EPA most recently
issued guidance for infrastructure SIPs
on September 13, 2013 (2013
Guidance).9 EPA developed the 2013
Guidance document to provide states
with up-to-date guidance for
infrastructure SIPs for any new or
revised NAAQS. Within the 2013
guidance, EPA describes the duty of
states to make infrastructure SIP
submissions to meet basic structural SIP
requirements within three years of
promulgation of a new or revised
NAAQS. EPA also made
recommendations about many specific
subsections of section 110(a)(2) that are
relevant in the context of infrastructure
SIP submissions.10 The guidance also
8 EPA notes, however, that nothing in the CAA
requires EPA to provide guidance or to promulgate
regulations for infrastructure SIP submissions. The
CAA directly applies to states and requires the
submission of infrastructure SIP submissions,
regardless of whether or not EPA provides guidance
or regulations pertaining to such submissions. EPA
elects to issue such guidance in order to assist
states, as appropriate.
9 ‘‘Guidance on Infrastructure State
Implementation Plan (SIP) Elements under Clean
Air Act Sections 110(a)(1) and 110(a)(2),’’
Memorandum from Stephen D. Page, September 13,
2013.
10 EPA’s September 13, 2013, guidance did not
make recommendations with respect to
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discusses the substantively important
issues that are germane to certain
subsections of section 110(a)(2).
Significantly, EPA interprets sections
110(a)(1) and 110(a)(2) such that
infrastructure SIP submissions need to
address certain issues and need not
address others. Accordingly, EPA
reviews each infrastructure SIP
submission for compliance with the
applicable statutory provisions of
section 110(a)(2), as appropriate.
As an example, section 110(a)(2)(E)(ii)
is a required element of section
110(a)(2) for infrastructure SIP
submissions. Under this element, a state
must meet the substantive requirements
of section 128, which pertain to state
boards that approve permits or
enforcement orders and heads of
executive agencies with similar powers.
Thus, EPA reviews infrastructure SIP
submissions to ensure that the state’s
SIP appropriately addresses the
requirements of section 110(a)(2)(E)(ii)
and section 128. The 2013 Guidance
explains EPA’s interpretation that there
may be a variety of ways by which states
can appropriately address these
substantive statutory requirements,
depending on the structure of an
individual state’s permitting or
enforcement program (e.g., whether
permits and enforcement orders are
approved by a multi-member board or
by a head of an executive agency).
However they are addressed by the
state, the substantive requirements of
section 128 are necessarily included in
EPA’s evaluation of infrastructure SIP
submissions because section
110(a)(2)(E)(ii) explicitly requires that
the state satisfy the provisions of section
128.
As another example, EPA’s review of
infrastructure SIP submissions with
respect to the PSD program
requirements in sections 110(a)(2)(C),
(D)(i)(II), and (J) focuses upon the
structural PSD program requirements
contained in part C and EPA’s PSD
regulations. Structural PSD program
requirements include provisions
necessary for the PSD program to
address all regulated sources and New
Source Review (NSR) pollutants,
infrastructure SIP submissions to address section
110(a)(2)(D)(i)(I). EPA issued the guidance shortly
after the U.S. Supreme Court agreed to review the
D.C. Circuit decision in EME Homer City, 696 F.3d
7 (D.C. Cir. 2012) which had interpreted the
requirements of section 110(a)(2)(D)(i)(I). In light of
the uncertainty created by this litigation (which
culminated in the Supreme Court’s recent decision,
134 SCt. 1584), EPA elected not to provide
additional guidance on the requirements of section
110(a)(2)(D)(i)(I) at that time. As the guidance is
neither binding nor required by statute, whether
EPA elects to provide guidance on a particular
section has no impact on a state’s CAA obligations.
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including greenhouse gases (GHGs). By
contrast, structural PSD program
requirements do not include provisions
that are not required under EPA’s
regulations at 40 CFR 51.166 but are
merely available as an option for the
state, such as the option to provide
grandfathering of complete permit
applications with respect to the 2012
PM2.5 NAAQS. Accordingly, the latter
optional provisions are types of
provisions EPA considers irrelevant in
the context of an infrastructure SIP
action.
For other section 110(a)(2) elements,
however, EPA’s review of a state’s
infrastructure SIP submission focuses
on assuring that the state’s SIP meets
basic structural requirements. For
example, section 110(a)(2)(C) includes,
inter alia, the requirement that states
have a program to regulate minor new
sources. Thus, EPA evaluates whether
the state has an EPA-approved minor
NSR program and whether the program
addresses the pollutants relevant to that
NAAQS. In the context of acting on an
infrastructure SIP submission, however,
EPA does not think it is necessary to
conduct a review of each and every
provision of a state’s existing minor
source program (i.e., already in the
existing SIP) for compliance with the
requirements of the CAA and EPA’s
regulations that pertain to such
programs.
With respect to certain other issues,
EPA does not believe that an action on
a state’s infrastructure SIP submission is
necessarily the appropriate type of
action in which to address possible
deficiencies in a state’s existing SIP.
These issues include: (i) Existing
provisions related to excess emissions
from sources during periods of startup,
shutdown, or malfunction that may be
contrary to the CAA and EPA’s policies
addressing such excess emissions
(‘‘SSM’’); (ii) existing provisions related
to ‘‘director’s variance’’ or ‘‘director’s
discretion’’ that may be contrary to the
CAA because they purport to allow
revisions to SIP-approved emissions
limits while limiting public process or
not requiring further approval by EPA;
and (iii) existing provisions for PSD
programs that may be inconsistent with
current requirements of EPA’s ‘‘Final
NSR Improvement Rule,’’ 67 FR 80186
(December 31, 2002), as amended by 72
FR 32526 (June 13, 2007) (‘‘NSR
Reform’’). Thus, EPA believes it may
approve an infrastructure SIP
submission without scrutinizing the
totality of the existing SIP for such
potentially deficient provisions and may
approve the submission even if it is
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aware of such existing provisions 11. It is
important to note that EPA’s approval of
a state’s infrastructure SIP submission
should not be construed as explicit or
implicit re-approval of any existing
potentially deficient provisions that
relate to the three specific issues just
described.
EPA’s approach to review of
infrastructure SIP submissions is to
identify the CAA requirements that are
logically applicable to that submission.
EPA believes that this approach to the
review of a particular infrastructure SIP
submission is appropriate, because it
would not be reasonable to read the
general requirements of section
110(a)(1) and the list of elements in
110(a)(2) as requiring review of each
and every provision of a state’s existing
SIP against all requirements in the CAA
and EPA regulations merely for
purposes of assuring that the state in
question has the basic structural
elements for a functioning SIP for a new
or revised NAAQS. Because SIPs have
grown by accretion over the decades as
statutory and regulatory requirements
under the CAA have evolved, they may
include some outmoded provisions and
historical artifacts. These provisions,
while not fully up to date, nevertheless
may not pose a significant problem for
the purposes of ‘‘implementation,
maintenance, and enforcement’’ of a
new or revised NAAQS when EPA
evaluates adequacy of the infrastructure
SIP submission. EPA believes that a
better approach is for states and EPA to
focus attention on those elements of
section 110(a)(2) of the CAA most likely
to warrant a specific SIP revision due to
the promulgation of a new or revised
NAAQS or other factors.
For example, EPA’s 2013 Guidance
gives simpler recommendations with
respect to carbon monoxide than other
NAAQS pollutants to meet the visibility
requirements of section
110(a)(2)(D)(i)(II), because carbon
monoxide does not affect visibility. As
a result, an infrastructure SIP
submission for any future new or
revised NAAQS for carbon monoxide
need only state this fact in order to
address the visibility prong of section
110(a)(2)(D)(i)(II).
With respect to element[s] C and J,
EPA interprets the CAA to require each
state to make an infrastructure SIP
submission for a new or revised NAAQS
11 By contrast, EPA notes that if a state were to
include a new provision in an infrastructure SIP
submission that contained a legal deficiency, such
as a new exemption for excess emissions during
SSM events, then EPA would need to evaluate that
provision for compliance against the rubric of
applicable CAA requirements in the context of the
action on the infrastructure SIP.
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that demonstrates that the air agency
has a complete PSD permitting program
meeting the current requirements for all
regulated NSR pollutants. The
requirements of element D(i)(II) may
also be satisfied by demonstrating the
air agency has a complete PSD
permitting program correctly addressing
all regulated NSR pollutants. Nebraska
has shown that it currently has a PSD
program in place that covers all
regulated NSR pollutants, including
greenhouse gases (GHGs).
On June 23, 2014, the United States
Supreme Court issued a decision
addressing the application of PSD
permitting requirements to GHG
emissions. Utility Air Regulatory Group
v. Environmental Protection Agency,
134 S.Ct. 2427. The Supreme Court said
that the EPA may not treat GHGs as an
air pollutant for purposes of
determining whether a source is a major
source required to obtain a PSD permit.
The Court also said that the EPA could
continue to require that PSD permits,
otherwise required based on emissions
of pollutants other than GHGs, contain
limitations on GHG emissions based on
the application of Best Available
Control Technology (BACT). In order to
act consistently with its understanding
of the Court’s decision pending further
judicial action to effectuate the decision,
the EPA is not continuing to apply EPA
regulations that would require that SIPs
include permitting requirements that
the Supreme Court found
impermissible. Specifically, EPA is not
applying the requirement that a state’s
SIP-approved PSD program require that
sources obtain PSD permits when GHGs
are the only pollutant (i) that the source
emits or has the potential to emit above
the major source thresholds, or (ii) for
which there is a significant emissions
increase and a significant net emissions
increase from a modification (e.g. 40
CFR 51.166(b)(48)(v)). EPA anticipates a
need to revise Federal PSD rules in light
of the Supreme Court opinion. In
addition, EPA anticipates that many
states will revise their existing SIPapproved PSD programs in light of the
Supreme Court’s decision. The timing
and content of subsequent EPA actions
with respect to the EPA regulations and
state PSD program approvals are
expected to be informed by additional
legal process before the United States
Court of Appeals for the District of
Columbia Circuit. At this juncture, EPA
is not expecting states to have revised
their PSD programs for purposes of
infrastructure SIP submissions and is
only evaluating such submissions to
assure that the state’s program correctly
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addresses GHGs consistent with the
Supreme Court’s decision.
At present, EPA has determined the
Nebraska’s SIP is sufficient to satisfy
elements C, D(i)(II), and J with respect
to GHGs because the PSD permitting
program previously approved by EPA
into the SIP continues to require that
PSD permits (otherwise required based
on emissions of pollutants other than
GHGs) contain limitations on GHG
emissions based on the application of
BACT. Although the approved
Nebraska’s PSD permitting program may
currently contain provisions that are no
longer necessary in light of the Supreme
Court decision, this does not render the
infrastructure SIP submission
inadequate to satisfy elements C,
(D)(i)(II), and J. The SIP contains the
necessary PSD requirements at this
time, and the application of those
requirements is not impeded by the
presence of other previously-approved
provisions regarding the permitting of
sources of GHGs that EPA does not
consider necessary at this time in light
of the Supreme Court decision.
Accordingly, the Supreme Court
decision does not affect EPA’s proposed
approval of Nebraska’s infrastructure
SIP as to the requirements of elements
C, D(i)(II), and J.
Finally, EPA believes that its
approach with respect to infrastructure
SIP requirements is based on a
reasonable reading of sections 110(a)(1)
and 110(a)(2) because the CAA provides
other avenues and mechanisms to
address specific substantive deficiencies
in existing SIPs. These other statutory
tools allow EPA to take appropriately
tailored action, depending upon the
nature and severity of the alleged SIP
deficiency. Section 110(k)(5) authorizes
EPA to issue a ‘‘SIP call’’ whenever the
Agency determines that a state’s SIP is
substantially inadequate to attain or
maintain the NAAQS, to mitigate
interstate transport, or to otherwise
comply with the CAA.12 Section
110(k)(6) authorizes EPA to correct
errors in past actions, such as past
approvals of SIP submissions.13
12 For example, EPA issued a SIP call to Utah to
address specific existing SIP deficiencies related to
the treatment of excess emissions during SSM
events. See ‘‘Finding of Substantial Inadequacy of
Implementation Plan; Call for Utah State
Implementation Plan Revisions,’’ 74 FR 21639
(April 18, 2011).
13 EPA has used this authority to correct errors in
past actions on SIP submissions related to PSD
programs. See ‘‘Limitation of Approval of
Prevention of Significant Deterioration Provisions
Concerning Greenhouse Gas Emitting-Sources in
State Implementation Plans; Final Rule,’’ 75 FR
82536 (December 30, 2010). EPA has previously
used its authority under CAA section 110(k)(6) to
remove numerous other SIP provisions that the
Agency determined it had approved in error. See,
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Significantly, EPA’s determination that
an action on a state’s infrastructure SIP
submission is not the appropriate time
and place to address all potential
existing SIP deficiencies does not
preclude EPA’s subsequent reliance on
provisions in section 110(a)(2) as part of
the basis for action to correct those
deficiencies at a later time. For example,
although it may not be appropriate to
require a state to eliminate all existing
inappropriate director’s discretion
provisions in the course of acting on an
infrastructure SIP submission, EPA
believes that section 110(a)(2)(A) may be
among the statutory bases that EPA
relies upon in the course of addressing
such deficiency in a subsequent
action.14
IV. What is EPA’s evaluation of how the
State addressed the relevant elements
of sections 110(a)(1) and (2)?
EPA Region 7 received Nebraska’s
infrastructure SIP submission for the
2008 O3 standard on February 11, 2013.
The SIP submission became complete as
a matter of law on August 11, 2013. EPA
has reviewed Nebraska’s infrastructure
SIP submission and the applicable
statutory and regulatory authorities and
provisions referenced in those
submissions or referenced in Nebraska’s
SIP. Below is EPA’s evaluation of how
the state addressed the relevant
elements of section 110(a)(2) for the
2008 O3 NAAQS.
(A) Emission limits and other control
measures: Section 110(a)(2)(A) requires
SIPs to include enforceable emission
limits and other control measures,
means or techniques, schedules for
compliance, and other related matters as
needed to implement, maintain and
enforce each NAAQS.15
e.g., 61 FR 38664 (July 25, 1996) and 62 FR 34641
(June 27, 1997) (corrections to American Samoa,
Arizona, California, Hawaii, and Nevada SIPs); 69
FR 67062 (November 16, 2004) (corrections to
California SIP); and 74 FR 57051 (November 3,
2009) (corrections to Arizona and Nevada SIPs).
14 See, e.g., EPA’s disapproval of a SIP submission
from Colorado on the grounds that it would have
included a director’s discretion provision
inconsistent with CAA requirements, including
section 110(a)(2)(A). See, e.g., 75 FR 42342 at 42344
(July 21, 2010) (proposed disapproval of director’s
discretion provisions); 76 FR 4540 (January 26,
2011) (final disapproval of such provisions).
15 The specific nonattainment area plan
requirements of section 110(a)(2)(I) are subject to
the timing requirements of section 172, not the
timing requirement of section 110(a)(1). Thus,
section 110(a)(2)(A) does not require that states
submit regulations or emissions limits specifically
for attaining the 2010 SO2 NAAQS. Those SIP
provisions are due as part of each state’s attainment
plan, and will be addressed separately from the
requirements of section 110(a)(2)(A). In the context
of an infrastructure SIP, EPA is not evaluating the
existing SIP provisions for this purpose. Instead,
EPA is only evaluating whether the state’s SIP has
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The State of Nebraska’s statutes and
Air Quality Regulations authorize the
Nebraska Department of Environmental
Quality (NDEQ) to regulate air quality
and implement air quality control
regulations. Section 81–1504 of the
Nebraska Revised Statutes authorizes
NDEQ to act, among other things, as the
state air pollution control agency for all
purposes of the CAA and to develop
comprehensive programs for the
prevention, control and abatement of
new or existing pollution to the air of
the state. Air pollution is defined in
Section 81–1502 of the Nebraska
Revised Statutes as the presence in the
outdoor atmosphere of one or more air
contaminants or combinations thereof in
such quantities and of such duration as
are or may tend to be injurious to
human, plant, or animal life, property,
or the conduct of business.
Section 81–1505(1) of the Nebraska
Revised Statutes authorizes the
Nebraska Environmental Quality
Council (EQC) to adopt and promulgate
rules which set air standards that will
protect public health and welfare. The
EQC is also authorized to classify air
contaminant sources according to levels
and types of discharges, emissions or
other characteristics.
The 2008 O3 NAAQS specified in 40
CFR part 50.10 was proposed and
adopted into Nebraska title 129 chapter
4, section 005 of the Nebraska
Administrative Code, by the EQC on
June 20, 2013, with an effective date of
December 9, 2013.
Based upon review of the state’s
infrastructure SIP submission for the
2008 O3 NAAQS, and relevant statutory
and regulatory authorities and
provisions referenced in the submission
or referenced in Nebraska’s SIP, EPA
believes that the Nebraska SIP
adequately addresses the requirements
of section 110(a)(2)(A) for the 2008 O3
NAAQS and is proposing to approve
this element of the February 11, 2013,
SIP submission.
(B) Ambient air quality monitoring/
data system: Section 110(a)(2)(B)
requires SIPs to include provisions to
provide for establishment and operation
of ambient air quality monitors,
collection and analysis of ambient air
quality data, and making these data
available to EPA upon request.
To address this element, section 81–
1505(12)(o) of the Nebraska Revised
Statutes provides the enabling authority
necessary for Nebraska to fulfill the
requirements of section 110(a)(2)(B).
This provision gives the EQC the
authority to promulgate rules and
basic structural provisions for the implementation
of the NAAQS.
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regulations concerning the monitoring
of emissions. Nebraska complies with
40 CFR part 50, appendix P with regards
to the regulatory monitoring, compiling,
and analysis of data on ambient air
quality relative to the 2008 ozone 8-hour
NAAQS. The Air Quality Division
within NDEQ implements these
requirements. Along with their other
duties, the monitoring program within
NDEQ’s Air Compliance and
Enforcement Program collects air
monitoring data, quality assures the
results, and reports the data. In
accordance with the requirements of 40
CFR part 58 appendix D, section 4.1(a),
Nebraska operates four O3 monitors,
three in the Omaha MSA and one in the
Lincoln MSA.
NDEQ develops and administers the
ambient air monitoring network plan
and submits it annually to EPA for
approval, including the plan for its O3
monitoring network, as required by 40
CFR 58.10. Prior to submission to EPA,
Nebraska makes the plans available for
public review on NDEQ’s Web site. See,
https://deq.ne.gov/Publica.nsf/Pubs_Air_
Amb.xsp, for NDEQ’s 2014 Ambient Air
Monitoring Network Plan. This Plan
includes, among other things, the
locations for the O3 monitoring network.
On February 9, 2015, EPA approved
Nebraska’s 2014 ambient air network
monitoring plan. NDEQ also conducts
five-year monitoring network
assessments, including the O3
monitoring network, as required by 40
CFR 58.10(d). Title 129, chapter 4,
section 005 of the NAC requires that
attainment with the O3 standard be
determined in accordance with the
applicable Federal regulations in 40
CFR part 50, appendix S. Nebraska
submits air quality data to EPA’s Air
Quality System (AQS) quarterly,
pursuant to the provisions of work plans
developed in conjunction with EPA
grants to the state.
Based upon review of the state’s
infrastructure SIP submission for the
2008 O3 NAAQS, and relevant statutory
and regulatory authorities and
provisions referenced in the submission
or referenced in Nebraska’s SIP, EPA
believes that the Nebraska SIP
adequately addresses the requirements
of section 110(a)(2)(B) for the 2008 O3
NAAQS and is proposing to approve
this element of the February 11, 2013,
SIP submission.
(C) Program for enforcement of
control measures (PSD, New Source
Review for nonattainment areas, and
construction and modification of all
stationary sources): Section 110(a)(2)(C)
requires states to include the following
three elements in the SIP: (1) A program
providing for enforcement of all SIP
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measures described in section
110(a)(2)(A); (2) a program for the
regulation of the modification and
construction of stationary sources as
necessary to protect the applicable
NAAQS (i.e., state-wide permitting of
minor sources); and (3) a permit
program to meet the major source
permitting requirements of the CAA (for
areas designated as attainment or
unclassifiable for the NAAQS in
question).16
(1) Enforcement of SIP Measures.
With respect to enforcement of
requirements of the SIP, the Nebraska
statutes provide authority to enforce the
requirements of section 81–1504(1) of
the Nebraska Revised Statutes provide
authority for NDEQ to enforce the
requirements of the Nebraska
Environmental Protection Act, and any
regulations, permits, or final compliance
orders issued under the provisions of
that law. In addition, section 81–1504(7)
authorizes NDEQ to issue orders
prohibiting or abating discharges of
waste into the air and requiring the
modification, extension or adoption of
remedial measures to prevent, control,
or abate air pollution. Section 81–1507
authorizes NDEQ to commence an
enforcement action for any violations of
the Environmental Protection Act, any
rules or regulations promulgated
thereunder, or any orders issued by
NDEQ. This enforcement action can not
only seek civil penalties, but also
require that the recipient take corrective
action to address the violation. See
section 81–1507(1) and 81–1508.02.
Section 81–1508.01 provides for
criminal penalties for knowing or
willful violations of the statute,
regulations or permit conditions, in
addition to other acts described in that
section.
(2) Minor New Source Review. Section
110(a)(2)(C) also requires that the SIP
include measures to regulate
construction and modification of
stationary sources to protect the
NAAQS. With respect to smaller statewide minor sources (Nebraska’s major
source permitting program is discussed
in (3) below), Nebraska has a program
under title 129, chapter 17 of the NAC
that requires such sources to first obtain
a construction permit from NDEQ. The
permitting process is designed to ensure
that new and modified sources will not
interfere with NAAQS attainment.
NDEQ has the authority to require the
source applying for the permit to
16 As discussed in further detail below, this
infrastructure SIP rulemaking will not address the
Kansas program for nonattainment area related
provisions, since EPA considers evaluation of these
provisions to be outside the scope of infrastructure
SIP actions.
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undergo an air quality impact analysis.
If NDEQ determines that emissions from
a constructed or modified source
interfere with attainment of the NAAQS,
it may deny the permit until the source
makes the necessary changes to obviate
the objections to the permit issuance.
See chapter 17, sections 008 and 009 of
the NAC.
EPA has determined that Nebraska’s
minor new source review (NSR)
program adopted pursuant to section
110(a)(2)(C) of the Act regulates
emissions of NAAQS pollutants. EPA
has also determined that certain
provisions of the state’s minor NSR
program adopted pursuant to section
110(a)(2)(C) of the Act likely do not
meet all the requirements found in
EPA’s regulations implementing that
provision. See 40 CFR 51.160–51.164.
EPA previously approved Nebraska’s
minor NSR program into the SIP, and at
the time there was no objection to the
provisions of this program. See 37 FR
10842 (May 31, 1972) and 60 FR 372
(January 4, 1995). Since then, the state
and EPA have relied on the existing
state minor NSR program to assure that
new and modified sources not captured
by the major NSR permitting programs
do not interfere with attainment and
maintenance of the NAAQS.
In this action, EPA is proposing to
approve Nebraska’s infrastructure SIP
for the 2008 O3 NAAQS with respect to
the general requirement in section
110(a)(2)(C) to include a program in the
SIP that regulates the modification and
construction of any stationary source as
necessary to assure that the NAAQS are
achieved. In this action, EPA is not
proposing to approve or disapprove the
state’s existing minor NSR program to
the extent that it is inconsistent with
EPA’s regulations governing this
program. EPA has maintained that the
CAA does not require that new
infrastructure SIP submissions correct
any defects in existing EPA-approved
provisions of minor NSR programs in
order for EPA to approve the
infrastructure SIP for element (C) (e.g.,
76 FR 41076–76 FR 41079).
(3) Prevention of Significant
Deterioration (PSD) permit program.
Nebraska also has a program approved
by EPA as meeting the requirements of
part C, relating to prevention of
significant deterioration of air quality.
In order to demonstrate that Nebraska
has met this sub-element, this PSD
program must cover requirements not
just for the 2008 O3 NAAQS, but for all
other regulated NSR pollutants as well.
Nebraska’s implementing rule, title
129, chapter 19, Prevention of
Significant Deterioration of Air Quality,
incorporates the relevant portions of the
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Federal rule, 40 CFR 52.21 by reference.
In this action, EPA is not proposing to
approve or disapprove any state rules
with regard to NSR reform
requirements. EPA will act on NSR
reform submittals through a separate
rulemaking process. For Nebraska, we
have previously approved Nebraska’s
NSR reform rules for attainment areas,
see 76 FR 15852, March 22, 2011.
The Nebraska SIP also contains a
permitting program for major sources
and modifications in nonattainment
areas (see title 129, chapter 17, section
013). This section is currently not
applicable to Nebraska because all areas
of Nebraska are currently in attainment
with the NAAQS. Even if it were
applicable, the SIP’s discussion of
nonattainment areas is not addressed in
this rulemaking (see discussion of the
section 110(a)(2)(I) requirements for
nonattainment areas, below).
With respect to the PSD program, title
129, chapter 19, of the NAC provides for
the permitting of construction of a new
major stationary source or a major
modification of an existing major
stationary source. Further, chapter 19,
section 010 of the NAC establishes
threshold emissions for establishing
whether the construction project is a
major source of regulated NSR
pollutants, including but not limited to
O3.
Based upon review of the state’s
infrastructure SIP submission for the
2008 O3 NAAQS, and relevant statutory
and regulatory authorities and
provisions referenced in the submission
or referenced in Nebraska’s SIP, EPA
believes that the Nebraska SIP
adequately addresses the requirements
of section 110(a)(2)(C) for the 2008 O3
NAAQS and is proposing to approve
this element of the February 11, 2013,
SIP submission.
(D) Interstate and international
transport: Section 110(a)(2)(D)(i)
includes four requirements referred to
as prongs 1 through 4. Prongs 1 and 2
are provided at section 110(a)(2)(D)(i)(I);
Prongs 3 and 4 are provided at section
110(a)(2)(D)(i)(II). Section
110(a)(2)(D)(i)(I) requires SIPs to include
adequate provisions prohibiting any
source or other type of emissions
activity in one state from contributing
significantly to nonattainment, or
interfering with maintenance, of any
NAAQS in another state. Section
110(a)(2)(D)(i)(II) requires SIPs to
include adequate provisions prohibiting
any source or other type of emissions
activity in one state from interfering
with measures required of any other
state to prevent significant deterioration
of air quality or to protect visibility.
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With regard to 110(a)(2)(D)(i)(I)—
prongs 1 and 2, EPA is not proposing
action at this time. The Agency plans to
take action on this portion of the SIP
consistent with Consent Decree 4:14-cv03198–YGR.
With respect to the PSD requirements
of section 110(a)(2)(D)(i)(II)—prong 3,
EPA notes that Nebraska’s satisfaction of
the applicable infrastructure SIP PSD
requirements for attainment/
unclassifiable areas of the 1997 and
2006 PM2.5 NAAQS have been detailed
in the section addressing section
110(a)(2)(C). As discussed above for
element (C)(3), EPA has previously
approved Nebraska’s NSR reform rules
for attainment areas, and, as previously
stated, Nebraska currently has no
nonattainment areas (See 76 FR 15852,
March 22, 2011). EPA also notes that the
proposed action in that section related
to PSD is consistent with the proposed
approval related to PSD for section
110(a)(2)(D)(i)(II). Therefore, EPA is
proposing to approve the PSD
requirements of section
110(a)(2)(D)(i)(II)—prong 3.
EPA is proposing to disapprove
Nebraska’s SIP as it relates to section
110(a)(2)(D)(i)(II) with respect to
visibility, or ‘‘prong 4’’ of the
requirements of section 110(a)(2)(D). In
its SIP submittal, Nebraska refers to its
submittal of a SIP revision in July 2011
addressing the regional haze
requirements. An approved regional
haze SIP that fully meets the regional
haze requirements in 40 CFR 51.308
would satisfy the requirements of
section 110(a)(2)(D)(i)(II) for visibility
protection as such a SIP would ensure
that emissions from the state will not
interfere with measures required to be
included in other state SIPs to protect
visibility. EPA has not, however, fully
approved Nebraska’s Regional Haze SIP.
On July 6, 2012, after reviewing
Nebraska’s submittal of a Regional Haze
SIP, EPA published the ‘‘Approval,
Disapproval and Promulgation of
Implementation Plans; State of
Nebraska; Regional Haze State
Implementation Plan; Federal
Implementation Plan for Best Available
Retrofit Technology Determination;
Final Rule’’ (77 FR 40150). In that
action, EPA partially approved the SIP
revision as meeting the applicable
regional haze requirements set forth in
sections 169A and 169B of the Act and
in the Federal regulations codified at 40
CFR 51. 308, and the requirements of 40
CFR part 51, subpart F and appendices
V and Y. EPA disapproved the SO2
BART determinations for units 1 and 2
of the Gerald Gentleman Station (GGS)
because they do not comply with EPA’s
regulations. EPA also disapproved
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Nebraska’s long-term strategy insofar as
it relied on the deficient SO2 BART
determination at GGS. Instead, EPA
finalized a FIP relying on the Transport
Rule as an alternative to BART for SO2
emissions from GGS to address these
deficiencies. EPA approved Nebraska’s
NOX BART determination at GGS as
SIP-strengthening and approved the
CSAPR FIP as satisfying the
requirements for the Regional Haze Rule
with respect to NOX. Given this, EPA
cannot approve Nebraska’s SIP as
meeting the prong 4 requirements based
on the absence of a fully approved
Regional Haze SIP.
In the absence of a fully approved
Regional Haze SIP, a state may meet the
requirements of prong 4 by showing that
its SIP contains adequate provisions to
prevent emission from within the state
from interfering with other states’
measures to protect visibility. See, e.g.
76 FR 8326 (February 14, 2011).
Nebraska did not, however, provide a
demonstration in its infrastructure SIP
that emissions within its jurisdiction do
not interfere with other states’ plans to
protect visibility.
Section 110(a)(2)(D)(ii) also requires
that the SIP insure compliance with the
applicable requirements of sections 126
and 115 of the CAA, relating to
interstate and international pollution
abatement, respectively. Section 126(a)
of the CAA requires new or modified
sources to notify neighboring states of
potential impacts from sources within
the state. Although Nebraska sources
have not been identified by EPA as
having any interstate or international
impacts under section 126 or section
115 in any pending actions relating to
the 2008 O3 NAAQS, the Nebraska
regulations address abatement of the
effects of interstate pollution. Title 129,
chapter 14, section 010.03 of the NAC
requires NDEQ, after receiving a
complete PSD permit application, to
notify EPA, as well as officials and
agencies having cognizance where the
proposed construction is to occur. This
includes state or local air pollution
control agencies and the chief
executives of the city and county where
the source would be located; any
comprehensive regional land use
planning agency; and any state, Federal
Land Manager, or Indian governing
body whose lands may be affected by
emissions from the source or
modification. Finally, we believe that
Nebraska could use the same statutory
authorities previously discussed,
primarily section 81–1505 of the
Nebraska Revised Statutes, to respond to
any future findings with respect to the
2008 O3 NAAQS.
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Section 115 of the CAA authorizes
EPA to require a state to revise its SIP
under certain conditions to alleviate
international transport into another
country. There are no final findings
under section 115 of the CAA against
Nebraska with respect to any air
pollutant. Thus, the state’s SIP does not
need to include any provisions to meet
the requirements of section 115.
Based upon review of the state’s
infrastructure SIP submission for the
2008 O3 NAAQS, and relevant statutory
and regulatory authorities and
provisions referenced in the submission
or referenced in Nebraska’s SIP, EPA is
not proposing action on section
110(a)(2)(D)(i)(I)—prongs 1 and 2 and is
disapproving 110(a)(2)(D)(i)(II)—prong
4. However, EPA believes that Nebraska
has the adequate infrastructure needed
to address, 110(a)(2)(D)(i)(II)—prong 3
and 110 (a)(2)(D)(ii) for the 2008 O3
NAAQS and is proposing to approve the
February 11, 2013, submission regarding
the 2008 O3 infrastructure SIP
requirements for those elements as
indicated above.
(E) Adequate authority, resources,
implementation, and oversight: Section
110(a)(2)(E) requires that SIPs provide
for the following: (1) Necessary
assurances that the state (and other
entities within the state responsible for
implementing the SIP) will have
adequate personnel, funding, and
authority under state or local law to
implement the SIP, and that there are no
legal impediments to such
implementation; (2) requirements that
the state comply with the requirements
relating to state boards, pursuant to
section 128 of the CAA; and (3)
necessary assurances that the state has
responsibility for ensuring adequate
implementation of any plan provision
for which it relies on local governments
or other entities to carry out that portion
of the plan.
(1) Section 110(a)(2)(E)(i) requires
states to establish that they have
adequate personnel, funding and
authority. With respect to adequate
authority, we have previously discussed
Nebraska’s statutory and regulatory
authority to implement the 2008 O3
NAAQS, primarily in the discussion of
section 110(a)(2)(A) above. Neither
Nebraska nor EPA has identified any
legal impediments in the state’s SIP to
implementation of the NAAQS.
With respect to adequate resources,
NDEQ asserts that it has adequate
personnel to implement the SIP. State
statutes provide NDEQ the authority to
establish bureaus, divisions and/or
sections to carry out the duties and
powers granted by the Nebraska state
law to address the control of air
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pollution, to be administered by fulltime salaried, bureau, division or
section chiefs. See Nebraska Revised
Statutes section 81–1504(14). NDEQ’s
Air Quality Division is currently
divided into the Permitting Section, the
Compliance Section, and the Program
Planning and Development Unit.
With respect to funding, the Nebraska
statutes require the EQC to establish
various fees for sources, in order to fund
the reasonable costs of implementing
various air pollution control programs.
For example, section 81–1505(12)(e) of
the Nebraska Revised Statutes requires
the EQC to establish a requirement for
sources to pay fees sufficient to pay the
reasonable direct and indirect costs of
developing and administering the air
quality operating permit program. These
costs include overhead charges for
personnel, equipment, buildings and
vehicles; enforcement costs; costs of
emissions and ambient monitoring; and
modeling analyses and demonstrations.
See Nebraska Revised Statutes section
81–1505.04(2)(b). Similarly, section 81–
1505(12)(a) requires the EQC to
establish application fees for air
contaminant sources seeking to obtain a
permit prior to construction.
Section 81–1505.05 of the Nebraska
Revised Statutes provides that all fees
collected pursuant to section 81–
1505.04 be credited to the ‘‘Clean Air
Title V Cash Fund’’ to be used solely to
pay for the direct and indirect costs
required to develop and administer the
air quality permit program. Similarly,
section 81–1505.06 provides that all fees
collected pursuant to section 81–
1505(12) be deposited in the ‘‘Air
Quality Permit Cash Fund.’’
Nebraska uses funds in the non-Title
V subaccounts, along with General
Revenue funds and EPA grants under,
for example, sections 103 and 105 of the
Act, to fund the programs. EPA
conducts periodic program reviews to
ensure that the state has adequate
resources and funding to, among others,
implement the SIP.
(2) Conflict of interest provisions—
section 128. Section 110(a)(2)(E)(ii)
requires that each state SIP meet the
requirements of section 128, relating to
representation on state boards and
conflicts of interest by members of such
boards. Section 128(a)(1) requires that
any board or body which approves
permits or enforcement orders under the
CAA must have at least a majority of
members who represent the public
interest and do not derive any
‘‘significant portion’’ of their income
from persons subject to permits and
enforcement orders under the CAA.
Section 128(a)(2) requires that members
of such a board or body, or the head of
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an agency with similar powers,
adequately disclose any potential
conflicts of interest.
On October 21, 2014, EPA approved
Nebraska’s SIP revision addressing
section 128 requirements. For a detailed
analysis concerning Nebraska’s section
128 provisions, see EPA’s approval of
Nebraska’s 2008 Lead infrastructure SIP
(79 FR 62832).
(3) With respect to assurances that the
state has responsibility to implement
the SIP adequately when it authorizes
local or other agencies to carry out
portions of the plan, section 81–
1504(18) of the Nebraska Revised
Statutes grants NDEQ the authority to
encourage local units of government to
handle air pollution problems within
their own jurisdictions. NDEQ may
delegate, by contract with governmental
subdivisions which have adopted air
pollution control programs, the
enforcement of state-adopted air
pollution control regulations within a
specified region surrounding the
jurisdictional area of the governmental
subdivision. See section 81–1504(23).
However, the Nebraska statutes also
retain authority in NDEQ to carry out
the provisions of state air pollution
control law. Section 81–1504(1) gives
NDEQ ‘‘exclusive general supervision’’
of the administration and enforcement
of the Nebraska Environmental
Protection Act. In addition, section 81–
1504(4) designates NDEQ as the air
pollution control agency for the
purposes of the CAA.
The State of Nebraska relies on two
local agencies for assistance in
implementing portions of the air
pollution control program: Lincoln/
Lancaster County Health Department
and Omaha Air Quality Control. NDEQ
oversees the activities of these local
agencies to ensure adequate
implementation of the plan. NDEQ
utilizes sub-grants to the local agencies
to provide adequate funding, and as an
oversight mechanism. EPA conducts
reviews of the local program activities
in conjunction with its oversight of the
state program.
Based upon review of the state’s
infrastructure SIP submission for the
2008 O3 NAAQS and relevant statutory
and regulatory authorities and
provisions referenced in these
submissions or referenced in Nebraska’s
SIP, EPA believes that Nebraska has the
adequate infrastructure needed to
address section 110(a)(2)(E) for the 2008
O3 NAAQS submitted and is proposing
to approve the February 11, 2013
submission regarding the 2008 O3
infrastructure SIP requirements for this
element.
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(F) Stationary source monitoring
system: Section 110(a)(2)(F) requires
states to establish a system to monitor
emissions from stationary sources and
to submit periodic emission reports.
Each SIP shall require the installation,
maintenance, and replacement of
equipment, and the implementation of
other necessary steps, by owners or
operators of stationary sources, to
monitor emissions from such sources.
The SIP shall also require periodic
reports on the nature and amounts of
emissions and emissions-related data
from such sources, and requires that the
state correlate the source reports with
emission limitations or standards
established under the CAA. These
reports must be made available for
public inspection at reasonable times.
To address this element, section 81–
1505(12)(o) of the Nebraska Revised
Statutes gives the EQC the authority to
promulgate rules and regulations for air
pollution control, including
requirements for owner or operator
testing and monitoring of emissions. It
also gives the EQC the authority to
promulgate similar rules and regulations
for the periodic reporting of these
emissions. See section 81–1505(12)(l).
Title 129 chapter 34, section 002 of the
NAC incorporates various EPA reference
methods for testing source emissions,
including methods for O3. The Federal
test methods in 40 CFR part 60,
appendix A are referenced in title 129,
chapter 34 section 002.02.
The Nebraska regulations also require
that all Class I and Class II operating
permits include requirements for
monitoring of emissions. See title 129,
chapter 8, sections 004.01 and 015 of
the NAC. Furthermore, title 129, chapter
34, section 001 of the NAC allows
NDEQ to order an emissions source to
make or have tests made to determine
the rate of contaminant emissions from
the source whenever NDEQ has reason
to believe that the existing emissions
from the source exceed the applicable
emissions limits.
The Nebraska regulations also impose
reporting requirements on sources
subject to permitting requirements. See
title 129, chapter 6, section 001; chapter
8, sections 004.03 and 015 of the NAC.
Nebraska makes all monitoring reports
submitted as part of Class I or Class II
permit a publicly available document.
Although sources can submit a claim of
confidentiality for some of the
information submitted, Nebraska
regulations specifically exclude
emissions data from being entitled to
confidential protection. See title 129,
chapter 7, section 004 of the NAC.
Nebraska uses this information to track
progress towards maintaining the
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NAAQS, developing control and
maintenance strategies, identifying
sources and general emission levels, and
determining compliance with emission
regulations and additional EPA
requirements.
Based upon review of the state’s
infrastructure SIP submission for the
2008 O3 NAAQS, and relevant statutory
and regulatory authorities and
provisions referenced in the submission
or referenced in Nebraska’s SIP, EPA
believes that Nebraska has the adequate
infrastructure needed to address section
110(a)(2)(F) for the 2008 O3 NAAQS
submitted and is proposing to approve
the February 11, 2013, submission
regarding the infrastructure SIP
requirements for this element.
(G) Emergency authority: Section
110(a)(2)(G) requires SIPs to provide for
authority to address activities causing
imminent and substantial endangerment
to public health or welfare or the
environment (comparable to the
authorities provided in section 303 of
the CAA), and to include contingency
plans to implement such authorities as
necessary.
Section 81–1507(4) of the Nebraska
Revised Statutes states that whenever
the Director of NDEQ finds that an
emergency exists requiring immediate
action to protect the public health and
welfare, he or she may issue an order
requiring that such action be taken as
the Director deems necessary to meet
the emergency. Title 129, chapter 38,
section 003 of the NAC states that the
conditions justifying the proclamation
of an air pollution alert, air pollution
warning, or air pollution emergency
exist whenever the Director determines
that the accumulation of air pollutants
in any place is attaining or has attained
levels which could, if such levels are
sustained or exceeded, lead to a
substantial threat to the health of
persons. This regulation also establishes
action levels for various air pollutants.
The action levels (which include ‘‘Air
Pollution Alert,’’ ‘‘Air Pollution
Warning,’’ and ‘‘Air Pollution
Emergency’’) and associated
contingency measures vary depending
on the severity of the concentrations.
Appendix I to title 129 of the NAC
provides an Emergency Response Plan
with actions to be taken under each of
the severity levels. These steps are
designed to prevent the excessive buildup of air pollutants to concentrations
which can result in imminent and
substantial danger to public health. Both
the regulation at chapter 38 and the
Emergency Response Plan are contained
in the Federally approved SIP.
Based upon review of the state’s
infrastructure SIP submission for the
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2008 O3 NAAQS, and relevant statutory
and regulatory authorities and
provisions referenced in that
submission or referenced in Nebraska’s
SIP, EPA believes that the Nebraska SIP
adequately addresses section
110(a)(2)(G) for the 2008 O3 NAAQS
submitted and is proposing to approve
the February 11, 2013, submission
regarding the 2008 O3 infrastructure SIP
requirements for this element.
(H) Future SIP revisions: Section
110(a)(2)(H) requires states to have the
authority to revise their SIPs in response
to changes in the NAAQS, availability of
improved methods for attaining the
NAAQS, or in response to an EPA
finding that the SIP is substantially
inadequate to attain the NAAQS.
As discussed previously, section 81–
1504 of the Nebraska Revised Statutes
authorizes NDEQ to regulate air quality
and implement air quality control
regulations. It also authorizes NDEQ to
act as the state air pollution control
agency for all purposes of the CAA.
Section 81–1505(1) gives the EQC the
authority to adopt and promulgate rules
which set air standards that will protect
public health and welfare. This
authority includes the authority to
revise rules as necessary to respond to
a revised NAAQS.
Based upon review of the state’s
infrastructure SIP submission for the
2008 O3 NAAQS, and relevant statutory
and regulatory authorities and
provisions referenced in the submission
or referenced in Nebraska’s SIP, EPA
believes that Nebraska has adequate
authority to address section 110(a)(2)(H)
for the 2008 O3 NAAQS submitted and
is proposing to approve this element in
regard to the February 11, 2013,
submission regarding the 2008 O3
infrastructure SIP requirements for this
element.
(I) Nonattainment areas: Section
110(a)(2)(I) requires that in the case of
a plan or plan revision for areas
designated as nonattainment areas,
states must meet applicable
requirements of part D of the CAA,
relating to SIP requirements for
designated nonattainment areas.
As noted earlier, EPA does not expect
infrastructure SIP submissions to
address subsection (I). The specific SIP
submissions for designated
nonattainment areas, as required under
CAA title I, part D, are subject to
different submission schedules than
those for section 110 infrastructure
elements. Instead, EPA will take action
on part D attainment plan SIP
submissions through a separate
rulemaking governed by the
requirements for nonattainment areas,
as described in part D.
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(J) Consultation with government
officials, public notification, PSD and
visibility protection: Section 110(a)(2)(J)
requires SIPs to meet the applicable
requirements of the following CAA
provisions: (1) Section 121, relating to
interagency consultation regarding
certain CAA requirements; (2) section
127, relating to public notification of
NAAQS exceedances and related issues;
and (3) part C of the CAA, relating to
prevention of significant deterioration of
air quality and visibility protection.
(1) With respect to interagency
consultation, the SIP should provide a
process for consultation with generalpurpose local governments, designated
organizations of elected officials of local
governments, and any Federal Land
Manager having authority over Federal
land to which the SIP applies. Section
81–1504(3) authorizes NDEQ to advise
and consult and cooperate with other
Nebraska state agencies, the Federal
government, other states, interstate
agencies, and with affected political
subdivisions, for the purpose of
implementing its air pollution control
responsibilities. Nebraska also has
appropriate interagency consultation
provisions in its preconstruction permit
program. See, e.g., title 129, chapter 14
section 010 of the NAC (requiring NDEQ
to send a copy of a notice of public
comment on construction permit
applications to any state or local air
pollution control agency; the chief
executives of the city and county in
which the source would be located; any
comprehensive regional land use
planning agency; and any state, Federal
Land Manager, or Indian governing
body whose lands may be affected by
emissions from the source or
modification).
(2) With respect to the requirements
for public notification in section 127,
the infrastructure SIP should provide
citations to regulations in the SIP
requiring the air agency to regularly
notify the public of instances or areas in
which any NAAQS are exceeded; advise
the public of the health hazard
associated with such exceedances; and
enhance public awareness of measures
that can prevent such exceedances and
of ways in which the public can
participate in the regulatory and other
efforts to improve air quality.
Title 129, chapter 38 of the NAC,
discussed previously in connection with
the state’s authority to address
emergency episodes at element (G),
contains provisions for public
notification of elevated ozone and other
air pollutant levels. Appendix I to title
129 of the NAC includes measures
which can be taken by the public to
reduce concentrations. In addition,
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information regarding air pollution and
related issues, is provided on an NDEQ
Web site, https://www.deq.state.ne.us/
NDEQSite.nsf/AirDivSecProg?
OpenView&Start=
1&ExpandView&Count=500. NDEQ also
prepares an annual report on air quality
in the state which is available to the
public on its Web site, at https://
www.deq.state.ne.us/Publica.nsf/
c4afc76e4e077e11862568770059b73f/
a12a5ada6cce1c1686257a47004e0633
!OpenDocument.
(3) With respect to the applicable
requirements of part C of the CAA,
relating to prevention of significant
deterioration of air quality and visibility
protection, we previously noted in the
discussion of section 110(a)(2)(C)
(relating to enforcement of control
measures) how the Nebraska SIP meets
the PSD requirements, incorporating the
Federal rule by reference. Regarding the
prevention of significant deterioration
requirements, EPA previously approved
Nebraska’s PM2.5 PSD program as found
at 79 FR 45108. On January 22, 2013,
the U.S. Court of Appeals for the District
of Columbia vacated and remanded the
provisions at 40 CFR 51.166(k)(2) and
52.21(k)(2) concerning implementation
of the PM2.5 SILs and vacated the
provisions at 40 CFR 51.166(i)(5)(i)(c)
and 52.21 (i)(5)(i)(c) (adding the PM2.5
SMCs) that were promulgated as part of
the October 20, 2010, rule, Prevention of
Significant Deterioration (PSD) for
Particulate Matter less than 2.5
Micrometers (PM2.5)—Increments,
Significant Impact Levels and
Significant Monitoring Concentrations,
75 CFR 64864. Consistent with the
court’s ruling, on June 27, 2013,
Nebraska submitted a request to not
include the SIP provisions relating the
Significant Impact Levels (SILs) and
Significant Monitoring Concentrations
(SMCs).
With respect to the visibility
component of section 110(a)(2)(J),
Nebraska stated in its 2008 O3
infrastructure SIP submittals that the
‘‘Visibility Protection’’ requirements of
chapter 43 of title 129 of the Nebraska
Administrative Code met part C
visibility requirements of element J. The
‘‘Visibility Protection’’ requirements of
chapter 43 were submitted by Nebraska
for incorporation into the Nebraska SIP
on November 8, 2011, and will be
addressed in a separate rulemaking.
EPA recognizes that states are subject
to visibility and regional haze program
requirements under part C of the CAA.
However, when EPA establishes or
revises a NAAQS, these visibility and
regional haze requirements under part C
do not change. EPA believes that there
are no new visibility protection
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requirements under part C as a result of
a revised NAAQS. Therefore, there are
no newly applicable visibility
protection obligations pursuant to
element J after the promulgation of a
new or revised NAAQS. As such, EPA
is proposing to find that Nebraska’s SIP
meets the visibility requirements of
element J with respect to the 2008 O3
NAAQS as there are no new applicable
requirements triggered by the 2008 O3
NAAQS.
Based upon review of the state’s
infrastructure SIP submission for the
2008 O3 NAAQS, and relevant statutory
and regulatory authorities and
provisions referenced in the submission
or referenced in Nebraska’s SIP, EPA
believes that Nebraska has met the
applicable requirements of section
110(a)(2)(J) for the 2008 O3 NAAQS in
the state and is therefore proposing to
approve this element of the February 11,
2013, submission.
(K) Air quality and modeling/data:
Section 110(a)(2)(K) requires that SIPs
provide for performing air quality
modeling, as prescribed by EPA, to
predict the effects on ambient air quality
of any emissions of any NAAQS
pollutant, and for submission of such
data to EPA upon request.
Nebraska has authority to conduct air
quality modeling and report the results
of such modeling to EPA. Section 81–
1504(5) provides NDEQ with the
authority to encourage, participate in, or
conduct studies, investigations, research
and demonstrations relating to air
pollution and its causes and effects. As
an example of regulatory authority to
perform modeling for purposes of
determining NAAQS compliance, the
regulations at title 129, chapter 19,
section 019 provide for the use of EPAapproved air quality models (e.g., those
found in 40 CFR part 51, appendix W)
for PSD construction permitting. If the
use of these models is inappropriate, the
model may be modified or an alternate
model may be used with the approval of
NDEQ and EPA.
The Nebraska regulations also give
NDEQ the authority to require that
modeling data be submitted for analysis.
Title 129, chapter 19, section 021.02
states that upon request by NDEQ, the
owner or operator of a proposed source
or modification must provide
information on the air quality impact of
the source or modification, including all
meteorological and topographical data
necessary to estimate such impact.
Based upon review of the state’s
infrastructure SIP submission for the
2008 O3 NAAQS, and relevant statutory
and regulatory authorities and
provisions referenced in the submission
or referenced in Nebraska’s SIP, EPA
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believes that Nebraska has the adequate
infrastructure needed to address section
110(a)(2)(K) for the 2008 O3 NAAQS and
is proposing to approve the February 11,
2013, submission regarding the 2008 O3
infrastructure SIP requirements for this
element.
(L) Permitting Fees: Section
110(a)(2)(L) requires SIPs to require
each major stationary source to pay
permitting fees to the permitting
authority, as a condition of any permit
required under the CAA, to cover the
cost of reviewing and acting upon any
application for such a permit, and, if the
permit is issued, the costs of
implementing and enforcing the terms
of the permit. The fee requirement
applies until a fee program established
by the state pursuant to title V of the
CAA, relating to operating permits, is
approved by EPA.
Section 81–1505 of the Nebraska
Revised States provides authority for
NDEQ to collect permit fees, including
title V fees. For example, section 81–
1505(12)(e) requires that the EQC
establish fees sufficient to pay the
reasonable direct and indirect of
developing and administering the air
quality permit program. Nebraska’s title
V program, including the fee program
addressing the requirements of the Act
and 40 CFR 70.9 relating to title V fees,
was approved by EPA on October 18,
1995 (60 FR 53872).
Based upon review of the state’s
infrastructure SIP submission for the
2008 O3 NAAQS, and relevant statutory
and regulatory authorities and
provisions referenced in the submission
or referenced in Nebraska’s SIP, EPA
believes that Nebraska has the adequate
infrastructure needed to address section
110(a)(2)(L) for the 2008 O3 NAAQS and
is proposing to approve the February 11,
2013, submission regarding the 2008 O3
infrastructure SIP requirements for this
element.
(M) Consultation/participation by
affected local entities: Section
110(a)(2)(M) requires SIPs to provide for
consultation and participation by local
political subdivisions affected by the
SIP.
Section 81–1504(5) of the Nebraska
Revised Statutes gives NDEQ the
authority to encourage local
governments to handle air pollution
problems within their respective
jurisdictions and at the same time
provide them with technical and
consultative assistance. NDEQ is also
authorized to delegate the enforcement
of air pollution control regulations
down to governmental subdivisions
which have adopted air pollution
control programs. As discussed
previously, NDEQ currently relies on
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two local agencies for assistance in
implementing portions of the air
pollution control program: Lincoln/
Lancaster County Health Department
and Omaha Air Quality Control.
In addition, as previously noted in the
discussion about section 110(a)(2)(J),
Nebraska’s statutes and regulations
require that NDEQ consult with local
political subdivisions for the purposes
of carrying out its air pollution control
responsibilities.
Based upon review of the state’s
infrastructure SIP submission for the
2008 O3 NAAQS, and relevant statutory
and regulatory authorities and
provisions referenced in the submission
or referenced in Nebraska’s SIP, EPA
believes that Nebraska has the adequate
infrastructure needed to address section
110(a)(2)(M) for the 2008 O3 NAAQS
and is proposing to approve the April 3,
2008, submission regarding the 2008 O3
infrastructure SIP requirements for this
element.
V. What action is EPA proposing?
EPA is proposing to approve the
infrastructure SIP submissions from
Nebraska which address the
requirements of CAA sections 110(a)(1)
and (2) as applicable to the 2008 O3
NAAQS. Specifically, EPA is proposing
to approve the following infrastructure
elements, or portions thereof:
110(a)(2)(A), (B), (C), (D)(i)(II)—prong
3, (D)(ii), (E), (F), (G), (H), (J), (K), (L),
and (M). As discussed in each
applicable section of this rulemaking,
EPA is not proposing action on section
110(a)(2)(D)(i)(I)—prongs 1 and 2 and
section 110(a)(2)(I)—Nonattainment
Area Plan or Plan Revisions under part
D. And finally, EPA is proposing to
disapprove 110(a)(2)(D)(i)(II)—prong 4,
as it relates to the protection of
visibility.
Based upon review of the state’s
infrastructure SIP submissions and
relevant statutory and regulatory
authorities and provisions referenced in
the submission or referenced in
Nebraska’s SIP, EPA believes that
Nebraska has the infrastructure to
address all applicable required elements
of sections 110(a)(1) and (2) (except
otherwise noted) to ensure that the 2008
O3 NAAQS are implemented in the
state.
We are hereby soliciting comment on
this proposed action. Final rulemaking
will occur after consideration of any
comments.
VI. Statutory and Executive Order
Review
Under the CAA, the Administrator is
required to approve a SIP submission
that complies with the provisions of the
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CAA 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 proposed action:
• Is not a ‘‘significant regulatory
action’’ under the terms of Executive
Order 12866 (58 FR 51735, October 4,
1993) and is therefore not subject to
review under Executive Orders 12866
and 13563 (76 FR 3821, January 21,
2011).
• 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 (Pub. L. 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 CAA; 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).
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).
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Statutory Authority
The statutory authority for this action
is provided by section 110 of the CAA,
as amended (42 U.S.C. 7410).
List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Incorporation by
reference, Intergovernmental relations,
Sulfur dioxide, Reporting and
recordkeeping requirements.
Dated: June 1, 2015.
Mark Hague,
Acting Regional Administrator, Region 7.
[FR Doc. 2015–14336 Filed 6–18–15; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R08–OAR–2015–0085; FRL–9929–35–
Region 8]
Approval and Promulgation of State
Implementation Plan Revisions; Rules,
General Requirements and Test
Methods; Utah
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
The Environmental Protection
Agency (EPA) is proposing to approve
State Implementation Plan (SIP)
revisions submitted by the State of Utah
on January 28, 2010, September 16,
2010, June 18, 2013, and August 29,
2014. These submittals revise the rules,
general requirements and test methods
for the State of Utah. The amendments
also update the version of the Code of
Federal Regulations (CFR) incorporated
by reference into the rules of the State
of Utah. EPA is not taking action on an
April 26, 2012 submittal or a November
4, 2013 submittal because they have
been superseded by the August 29, 2014
submittal. EPA is taking this action in
accordance with section 110 of the
Clean Air Act (CAA).
DATES: Written comments must be
received on or before July 20, 2015.
ADDRESSES: Submit your comments,
identified by Docket ID No. EPA–R08–
OAR–2015–0085, by one of the
following methods:
• https://www.regulations.gov. Follow
the on-line instructions for submitting
comments.
• Email: ostendorf.jody@epa.gov
• Fax: (303) 312–6064 (please alert
the individual listed in the FOR FURTHER
INFORMATION CONTACT if you are faxing
comments).
rmajette on DSK2TPTVN1PROD with PROPOSALS
SUMMARY:
VerDate Sep<11>2014
15:19 Jun 18, 2015
Jkt 235001
• Mail: Director, Air Program,
Environmental Protection Agency
(EPA), Region 8, Mail Code 8P–AR,
1595 Wynkoop Street, Denver, Colorado
80202–1129.
• Hand Delivery: Director, Air
Program, Environmental Protection
Agency (EPA), Region 8, Mail Code 8P–
AR, 1595 Wynkoop Street, Denver,
Colorado 80202–1129. Such deliveries
are only accepted Monday through
Friday, 8:00 a.m. to 4:30 p.m., excluding
federal holidays. Special arrangements
should be made for deliveries of boxed
information.
Instructions: Direct your comments to
Docket ID No. EPA–R08–OAR–2015–
0085. EPA’s policy is that all comments
received will be included in the public
docket without change and may be
made available online at
www.regulations.gov, including any
personal information provided, unless
the comment includes information
claimed to be Confidential Business
Information (CBI) or other information
whose disclosure is restricted by statute.
Do not submit information that you
consider to be CBI or otherwise
protected through www.regulations.gov
or email. The www.regulations.gov Web
site is an ‘‘anonymous access’’ system,
which means EPA will not know your
identity or contact information unless
you provide it in the body of your
comment. If you send an email
comment directly to EPA, without going
through www.regulations.gov your email
address will be automatically captured
and included as part of the comment
that is placed in the public docket and
made available on the Internet. If you
submit an electronic comment, EPA
recommends that you include your
name and other contact information in
the body of your comment and with any
disk or CD–ROM you submit. If EPA
cannot read your comment due to
technical difficulties and cannot contact
you for clarification, EPA may not be
able to consider your comment.
Electronic files should avoid the use of
special characters, any form of
encryption, and be free of any defects or
viruses. For additional information
about EPA’s public docket visit the EPA
Docket Center homepage at https://
www.epa.gov/epahome/dockets.htm.
For additional instructions on
submitting comments, go to section I,
General Information, of the
SUPPLEMENTARY INFORMATION section of
this document.
Docket: All documents in the docket
are listed in the www.regulations.gov
index. Although listed in the index,
some information is not publicly
available, e.g., CBI or other information
whose disclosure is restricted by statute.
PO 00000
Frm 00036
Fmt 4702
Sfmt 4702
35295
Certain other material, such as
copyrighted material, will be publicly
available only in hard copy. Publicly
available docket materials are available
either electronically in
www.regulations.gov or in hard copy at
the Air Program, Environmental
Protection Agency (EPA), Region 8,
1595 Wynkoop Street, Denver, Colorado
80202–1129. EPA requests that if at all
possible, you contact the individual
listed in the FOR FURTHER INFORMATION
CONTACT section to view the hard copy
of the docket. You may view the hard
copy of the docket Monday through
Friday, 8:00 a.m. to 4:00 p.m., excluding
federal holidays.
FOR FURTHER INFORMATION CONTACT: Jody
Ostendorf, Air Program, U.S.
Environmental Protection Agency
(EPA), Region 8, Mail Code 8P–AR,
1595 Wynkoop Street, Denver, Colorado
80202–1129. 303–312–7814,
ostendorf.jody@epa.gov.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. General Information
II. Analysis of the State Submittals
III. What Action is EPA Taking Today?
IV. Incorporation by Reference
V. Statutory and Executive Orders Reviews
I. General Information
What should I consider as I prepare my
comments for EPA?
1. Submitting Confidential Business
Information (CBI). Do not submit CBI to
EPA through https://www.regulations.gov
or email. Clearly mark the part or all of
the information that you claim to be
CBI. For CBI information on a disk or
CD–ROM that you mail to EPA, mark
the outside of the disk or CD–ROM as
CBI and then identify electronically
within the disk or CD–ROM the specific
information that is claimed as CBI. In
addition to one complete version of the
comment that includes information
claimed as CBI, a copy of the comment
that does not contain the information
claimed as CBI must be submitted for
inclusion in the public docket.
Information so marked will not be
disclosed except in accordance with
procedures set forth in 40 CFR part 2.
2. Tips for preparing your comments.
When submitting comments, remember
to:
• Identify the rulemaking by docket
number and other identifying
information (subject heading, Federal
Register volume, date, and page
number);
• Follow directions and organize your
comments;
• Explain why you agree or disagree;
• Suggest alternatives and substitute
language for your requested changes;
E:\FR\FM\19JNP1.SGM
19JNP1
]]>Agencies
[Federal Register Volume 80, Number 118 (Friday, June 19, 2015)]
[Proposed Rules]
[Pages 35284-35295]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-14336]
[[Page 35284]]
=======================================================================
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R07-OAR-2015-0270; FRL-9929-05-Region 7]
Partial Approval and Disapproval of Air Quality State
Implementation Plans (SIP); State of Nebraska; Infrastructure SIP
Requirements for the 2008 Ozone National Ambient Air Quality Standard
AGENCY: Environmental Protection Agency.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA) is proposing to
partially approve and partially disapprove elements of a State
Implementation Plan (SIP) submission from the State of Nebraska
addressing the applicable requirements of Clean Air Act (CAA) section
110 for the 2008 National Ambient Air Quality Standards (NAAQS) for
Ozone (O3), which requires that each state adopt and submit
a SIP to support implementation, maintenance, and enforcement of each
new or revised NAAQS promulgated by EPA. These SIPs are commonly
referred to as ``infrastructure'' SIPs. The infrastructure requirements
are designed to ensure that the structural components of each state's
air quality management program are adequate to meet the state's
responsibilities under the CAA. EPA is proposing to disapprove
Nebraska's SIP as it relates to section 110 with respect to visibility,
for the 2008 O3 NAAQS.
DATES: Comments must be received on or before July 20, 2015.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R07-
OAR-2015-0270, by one of the following methods:
1. https://www.regulations.gov. Follow the on-line instructions for
submitting comments.
2. Email: crable.gregory@epa.gov.
3. Mail: Mr. Gregory Crable, Air Planning and Development Branch,
U.S. Environmental Protection Agency, Region 7, Air and Waste
Management Division, 11201 Renner Boulevard, Lenexa, Kansas 66219.
4. Hand Delivery or Courier: Deliver your comments to Mr. Gregory
Crable, Air Planning and Development Branch, U.S. Environmental
Protection Agency, Region 7, Air and Waste Management Division, 11201
Renner Boulevard, Lenexa, Kansas 66219.
Instructions: Direct your comments to Docket ID No. EPA-R07-OAR-
2015-0270. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
https://www.regulations.gov, including any personal information
provided, unless the comment includes information claimed to be
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Do not submit through https://www.regulations.gov or email information that you consider to be CBI or
otherwise protected. The https://www.regulations.gov Web site is an
``anonymous access'' system, which means EPA will not know your
identity or contact information unless you provide it in the body of
your comment. If you send an email comment directly to EPA without
going through https://www.regulations.gov, your email address will be
automatically captured and included as part of the comment that is
placed in the public docket and made available on the Internet. If you
submit an electronic comment, EPA recommends that you include your name
and other contact information in the body of your comment and with any
disk or CD-ROM you submit. If EPA cannot read your comment due to
technical difficulties and cannot contact you for clarification, EPA
may not be able to consider your comment. Electronic files should avoid
the use of special characters, any form of encryption, and should be
free of any defects or viruses.
Docket: All documents in the electronic docket are listed in the
https://www.regulations.gov index. 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, will be publicly available only in hard copy.
Publicly available docket materials are available either electronically
at https://www.regulations.gov or in hard copy at U.S. Environmental
Protection Agency, Region 7, 11201 Renner Boulevard, Lenexa, Kansas
66219 from 8:00 a.m. to 4:30 p.m., Monday through Friday, excluding
legal holidays. The interested persons wanting to examine these
documents should make an appointment with the office at least 24 hours
in advance.
FOR FURTHER INFORMATION CONTACT: Mr. Gregory Crable, Air Planning and
Development Branch, U.S. Environmental Protection Agency, Region 7,
11201 Renner Boulevard, Lenexa, KS 66219; telephone number: (913) 551-
7391; fax number: (913) 551-7065; email address:
crable.gregory@epa.gov.
SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,''
``us,'' or ``our'' is used, we refer to EPA. This section provides
additional information by addressing the following questions:
I. What is a section 110(a)(1) and (2) infrastructure SIP?
II. What are the applicable elements under sections 110(a)(1) and
(2)?
III. What is EPA's approach to the review of Infrastructure SIP
submissions?
IV. What is EPA's evaluation of how the State addressed the relevant
elements of Sections 110(a)(1) and (2)?
V. What action is EPA proposing?
VI. Statutory and Executive Order Review
I. What is a section 110(a)(1) and (2) infrastructure SIP?
Section 110(a)(1) of the CAA requires, in part, that states make a
SIP submission to EPA to implement, maintain and enforce each of the
NAAQS promulgated by EPA after reasonable notice and public hearings.
Section 110(a)(2) includes a list of specific elements that such
infrastructure SIP submissions must address. SIPs meeting the
requirements of sections 110(a)(1) and (2) are to be submitted by
states within three years after promulgation of a new or revised NAAQS.
These SIP submissions are commonly referred to as ``infrastructure''
SIPs.
II. What are the applicable elements under sections 110(a)(1) and (2)?
On March 12, 2008, EPA promulgated a revised NAAQS for ozone based
on 8-hour average concentrations. The level of the 2008 8-hour ozone
NAAQS (hereafter the 2008 O3 NAAQS) was revised from 0.08
parts per million (ppm) to 0.075 ppm (73 FR 16436).
For the 2008 O3 NAAQS, states typically have met many of
the basic program elements required in section 110(a)(2) through
earlier SIP submissions in connection with previous NAAQS.
Nevertheless, pursuant to section 110(a)(1), states must review and
revise, as appropriate, their existing SIPs to ensure that the SIPs are
adequate to address the 2008 O3 NAAQS. To assist states in
meeting this statutory requirement, EPA issued guidance on September
13, 2013 (2013 Guidance), addressing the infrastructure
[[Page 35285]]
SIP elements required under section 110(a)(1) and (2) for the 2008
O3 NAAQS.\1\ EPA will address these elements below under the
following headings: (A) Emission limits and other control measures; (B)
Ambient air quality monitoring/data system; (C) Program for enforcement
of control measures (prevention of significant deterioration) (PSD)),
New Source Review for nonattainment areas, and construction and
modification of all stationary sources; (D) Interstate and
international transport; (E) Adequate authority, resources,
implementation, and oversight; (F) Stationary source monitoring system;
(G) Emergency authority; (H) Future SIP revisions; (I) Nonattainment
areas; (J) Consultation with government officials, public notification,
prevention of significant deterioration (PSD), and visibility
protection; (K) Air quality and modeling/data; (L) Permitting fees; and
(M) Consultation/participation by affected local entities.
---------------------------------------------------------------------------
\1\ Stephen D. Page, Director, Air Quality Policy Division,
Office of Air Quality Planning and Standards, ``Guidance on
Infrastructure State Implementation Plan (SIP) Elements Under Clean
Air Act Sections 110(a)(1) and 110(a)(2),'' Memorandum to EPA
Regional Air Division Directors, Regions I-X, September 13, 2013.
---------------------------------------------------------------------------
III. What is EPA's approach to the review of infrastructure SIP
submissions?
EPA is acting upon the February 11, 2013, SIP submission from
Nebraska that addresses the infrastructure requirements of CAA sections
110(a)(1) and 110(a)(2) for the 2008 O3 NAAQS. The
requirement for states to make a SIP submission of this type arises out
of CAA section 110(a)(1). Pursuant to section 110(a)(1), states must
make SIP submissions ``within 3 years (or such shorter period as the
Administrator may prescribe) after the promulgation of a national
primary ambient air quality standard (or any revision thereof),'' and
these SIP submissions are to provide for the ``implementation,
maintenance, and enforcement'' of such NAAQS. The statute directly
imposes on states the duty to make these SIP submissions, and the
requirement to make the submissions is not conditioned upon EPA taking
any action other than promulgating a new or revised NAAQS. Section
110(a)(2) includes a list of specific elements that ``[e]ach such
plan'' submission must address.
EPA has historically referred to these SIP submissions made for the
purpose of satisfying the requirements of CAA sections 110(a)(1) and
110(a)(2) as ``infrastructure SIP'' submissions. Although the term
``infrastructure SIP'' does not appear in the CAA, EPA uses the term to
distinguish this particular type of SIP submission from submissions
that are intended to satisfy other SIP requirements under the CAA, such
as ``nonattainment SIP'' or ``attainment plan SIP'' submissions to
address the nonattainment planning requirements of part D of title I of
the CAA, ``regional haze SIP'' submissions required by EPA rule to
address the visibility protection requirements of CAA section 169A, and
nonattainment new source review permit program submissions to address
the permit requirements of CAA, title I, part D.
Section 110(a)(1) addresses the timing and general requirements for
infrastructure SIP submissions, and section 110(a)(2) provides more
details concerning the required contents of these submissions. The list
of required elements provided in section 110(a)(2) contains a wide
variety of disparate provisions, some of which pertain to required
legal authority, some of which pertain to required substantive program
provisions, and some of which pertain to requirements for both
authority and substantive program provisions.\2\ EPA therefore believes
that while the timing requirement in section 110(a)(1) is unambiguous,
some of the other statutory provisions are ambiguous. In particular,
EPA believes that the list of required elements for infrastructure SIP
submissions provided in section 110(a)(2) contains ambiguities
concerning what is required for inclusion in an infrastructure SIP
submission.
---------------------------------------------------------------------------
\2\ For example: Section 110(a)(2)(E)(i) provides that states
must provide assurances that they have adequate legal authority
under state and local law to carry out the SIP; section 110(a)(2)(C)
provides that states must have a SIP-approved program to address
certain sources as required by part C of title I of the CAA; and
section 110(a)(2)(G) provides that states must have legal authority
to address emergencies as well as contingency plans that are
triggered in the event of such emergencies.
---------------------------------------------------------------------------
The following examples of ambiguities illustrate the need for EPA
to interpret some section 110(a)(1) and section 110(a)(2) requirements
with respect to infrastructure SIP submissions for a given new or
revised NAAQS. One example of ambiguity is that section 110(a)(2)
requires that ``each'' SIP submission must meet the list of
requirements therein, while EPA has long noted that this literal
reading of the statute is internally inconsistent and would create a
conflict with the nonattainment provisions in part D of title I of the
Act, which specifically address nonattainment SIP requirements.\3\
Section 110(a)(2)(I) pertains to nonattainment SIP requirements and
part D addresses when attainment plan SIP submissions to address
nonattainment area requirements are due. For example, section 172(b)
requires EPA to establish a schedule for submission of such plans for
certain pollutants when the Administrator promulgates the designation
of an area as nonattainment, and section 107(d)(1)(B) allows up to two
years, or in some cases three years, for such designations to be
promulgated.\4\ This ambiguity illustrates that rather than apply all
the stated requirements of section 110(a)(2) in a strict literal sense,
EPA must determine which provisions of section 110(a)(2) are applicable
for a particular infrastructure SIP submission.
---------------------------------------------------------------------------
\3\ See, e.g., ``Rule To Reduce Interstate Transport of Fine
Particulate Matter and Ozone (Clean Air Interstate Rule); Revisions
to Acid Rain Program; Revisions to the NOX SIP Call;
Final Rule,'' 70 FR 25162, at 25163-65 (May 12, 2005) (explaining
relationship between timing requirement of section 110(a)(2)(D)
versus section 110(a)(2)(I)).
\4\ EPA notes that this ambiguity within section 110(a)(2) is
heightened by the fact that various subparts of part D set specific
dates for submission of certain types of SIP submissions in
designated nonattainment areas for various pollutants. Note, e.g.,
that section 182(a)(1) provides specific dates for submission of
emissions inventories for the ozone NAAQS. Some of these specific
dates are necessarily later than three years after promulgation of
the new or revised NAAQS.
---------------------------------------------------------------------------
Another example of ambiguity within sections 110(a)(1) and
110(a)(2) with respect to infrastructure SIPs pertains to whether
states must meet all of the infrastructure SIP requirements in a single
SIP submission, and whether EPA must act upon such SIP submission in a
single action. Although section 110(a)(1) directs states to submit ``a
plan'' to meet these requirements, EPA interprets the CAA to allow
states to make multiple SIP submissions separately addressing
infrastructure SIP elements for the same NAAQS. If states elect to make
such multiple SIP submissions to meet the infrastructure SIP
requirements, EPA can elect to act on such submissions either
individually or in a larger combined action.\5\ Similarly, EPA
interprets the CAA to allow it to take action on the individual parts
of one larger, comprehensive infrastructure SIP submission for a
[[Page 35286]]
given NAAQS without concurrent action on the entire submission. For
example, EPA has sometimes elected to act at different times on various
elements and sub-elements of the same infrastructure SIP submission.\6\
---------------------------------------------------------------------------
\5\ See, e.g., ``Approval and Promulgation of Implementation
Plans; New Mexico; Revisions to the New Source Review (NSR) State
Implementation Plan (SIP); Prevention of Significant Deterioration
(PSD) and Nonattainment New Source Review (NNSR) Permitting,'' 78 FR
4339 (January 22, 2013) (EPA's final action approving the structural
PSD elements of the New Mexico SIP submitted by the State separately
to meet the requirements of EPA's 2008 PM2.5 NSR rule),
and ``Approval and Promulgation of Air Quality Implementation Plans;
New Mexico; Infrastructure and Interstate Transport Requirements for
the 2006 PM2.5 NAAQS,'' (78 FR 4337) (January 22, 2013)
(EPA's final action on the infrastructure SIP for the 2006
PM2.5 NAAQS).
\6\ On December 14, 2007, the State of Tennessee, through the
Tennessee Department of Environment and Conservation, made a SIP
revision to EPA demonstrating that the State meets the requirements
of sections 110(a)(1) and (2). EPA proposed action for
infrastructure SIP elements (C) and (J) on January 23, 2012 (77 FR
3213) and took final action on March 14, 2012 (77 FR 14976). On
April 16, 2012 (77 FR 22533) and July 23, 2012 (77 FR 42997), EPA
took separate proposed and final actions on all other section
110(a)(2) infrastructure SIP elements of Tennessee's December 14,
2007 submittal.
---------------------------------------------------------------------------
Ambiguities within sections 110(a)(1) and 110(a)(2) may also arise
with respect to infrastructure SIP submission requirements for
different NAAQS. Thus, EPA notes that not every element of section
110(a)(2) would be relevant, or as relevant, or relevant in the same
way, for each new or revised NAAQS. The states' attendant
infrastructure SIP submissions for each NAAQS therefore could be
different. For example, the monitoring requirements that a state might
need to meet in its infrastructure SIP submission for purposes of
section 110(a)(2)(B) could be very different for different pollutants,
for example because the content and scope of a state's infrastructure
SIP submission to meet this element might be very different for an
entirely new NAAQS than for a minor revision to an existing NAAQS.\7\
---------------------------------------------------------------------------
\7\ For example, implementation of the 1997 PM2.5
NAAQS required the deployment of a system of new monitors to measure
ambient levels of that new indicator species for the new NAAQS.
---------------------------------------------------------------------------
EPA notes that interpretation of section 110(a)(2) is also
necessary when EPA reviews other types of SIP submissions required
under the CAA. Therefore, as with infrastructure SIP submissions, EPA
also has to identify and interpret the relevant elements of section
110(a)(2) that logically apply to these other types of SIP submissions.
For example, section 172(c)(7) requires that attainment plan SIP
submissions required by part D have to meet the ``applicable
requirements'' of section 110(a)(2). Thus, for example, attainment plan
SIP submissions must meet the requirements of section 110(a)(2)(A)
regarding enforceable emission limits and control measures and section
110(a)(2)(E)(i) regarding air agency resources and authority. By
contrast, it is clear that attainment plan SIP submissions required by
part D would not need to meet the portion of section 110(a)(2)(C) that
pertains to the PSD program required in part C of title I of the CAA,
because PSD does not apply to a pollutant for which an area is
designated nonattainment and thus subject to part D planning
requirements. As this example illustrates, each type of SIP submission
may implicate some elements of section 110(a)(2) but not others.
Given the potential for ambiguity in some of the statutory language
of section 110(a)(1) and section 110(a)(2), EPA believes that it is
appropriate to interpret the ambiguous portions of section 110(a)(1)
and section 110(a)(2) in the context of acting on a particular SIP
submission. In other words, EPA assumes that Congress could not have
intended that each and every SIP submission, regardless of the NAAQS in
question or the history of SIP development for the relevant pollutant,
would meet each of the requirements, or meet each of them in the same
way. Therefore, EPA has adopted an approach under which it reviews
infrastructure SIP submissions against the list of elements in section
110(a)(2), but only to the extent each element applies for that
particular NAAQS.
Historically, EPA has elected to use guidance documents to make
recommendations to states for infrastructure SIPs, in some cases
conveying needed interpretations on newly arising issues and in some
cases conveying interpretations that have already been developed and
applied to individual SIP submissions for particular elements.\8\ EPA
most recently issued guidance for infrastructure SIPs on September 13,
2013 (2013 Guidance).\9\ EPA developed the 2013 Guidance document to
provide states with up-to-date guidance for infrastructure SIPs for any
new or revised NAAQS. Within the 2013 guidance, EPA describes the duty
of states to make infrastructure SIP submissions to meet basic
structural SIP requirements within three years of promulgation of a new
or revised NAAQS. EPA also made recommendations about many specific
subsections of section 110(a)(2) that are relevant in the context of
infrastructure SIP submissions.\10\ The guidance also discusses the
substantively important issues that are germane to certain subsections
of section 110(a)(2). Significantly, EPA interprets sections 110(a)(1)
and 110(a)(2) such that infrastructure SIP submissions need to address
certain issues and need not address others. Accordingly, EPA reviews
each infrastructure SIP submission for compliance with the applicable
statutory provisions of section 110(a)(2), as appropriate.
---------------------------------------------------------------------------
\8\ EPA notes, however, that nothing in the CAA requires EPA to
provide guidance or to promulgate regulations for infrastructure SIP
submissions. The CAA directly applies to states and requires the
submission of infrastructure SIP submissions, regardless of whether
or not EPA provides guidance or regulations pertaining to such
submissions. EPA elects to issue such guidance in order to assist
states, as appropriate.
\9\ ``Guidance on Infrastructure State Implementation Plan (SIP)
Elements under Clean Air Act Sections 110(a)(1) and 110(a)(2),''
Memorandum from Stephen D. Page, September 13, 2013.
\10\ EPA's September 13, 2013, guidance did not make
recommendations with respect to infrastructure SIP submissions to
address section 110(a)(2)(D)(i)(I). EPA issued the guidance shortly
after the U.S. Supreme Court agreed to review the D.C. Circuit
decision in EME Homer City, 696 F.3d 7 (D.C. Cir. 2012) which had
interpreted the requirements of section 110(a)(2)(D)(i)(I). In light
of the uncertainty created by this litigation (which culminated in
the Supreme Court's recent decision, 134 SCt. 1584), EPA elected not
to provide additional guidance on the requirements of section
110(a)(2)(D)(i)(I) at that time. As the guidance is neither binding
nor required by statute, whether EPA elects to provide guidance on a
particular section has no impact on a state's CAA obligations.
---------------------------------------------------------------------------
As an example, section 110(a)(2)(E)(ii) is a required element of
section 110(a)(2) for infrastructure SIP submissions. Under this
element, a state must meet the substantive requirements of section 128,
which pertain to state boards that approve permits or enforcement
orders and heads of executive agencies with similar powers. Thus, EPA
reviews infrastructure SIP submissions to ensure that the state's SIP
appropriately addresses the requirements of section 110(a)(2)(E)(ii)
and section 128. The 2013 Guidance explains EPA's interpretation that
there may be a variety of ways by which states can appropriately
address these substantive statutory requirements, depending on the
structure of an individual state's permitting or enforcement program
(e.g., whether permits and enforcement orders are approved by a multi-
member board or by a head of an executive agency). However they are
addressed by the state, the substantive requirements of section 128 are
necessarily included in EPA's evaluation of infrastructure SIP
submissions because section 110(a)(2)(E)(ii) explicitly requires that
the state satisfy the provisions of section 128.
As another example, EPA's review of infrastructure SIP submissions
with respect to the PSD program requirements in sections 110(a)(2)(C),
(D)(i)(II), and (J) focuses upon the structural PSD program
requirements contained in part C and EPA's PSD regulations. Structural
PSD program requirements include provisions necessary for the PSD
program to address all regulated sources and New Source Review (NSR)
pollutants,
[[Page 35287]]
including greenhouse gases (GHGs). By contrast, structural PSD program
requirements do not include provisions that are not required under
EPA's regulations at 40 CFR 51.166 but are merely available as an
option for the state, such as the option to provide grandfathering of
complete permit applications with respect to the 2012 PM2.5
NAAQS. Accordingly, the latter optional provisions are types of
provisions EPA considers irrelevant in the context of an infrastructure
SIP action.
For other section 110(a)(2) elements, however, EPA's review of a
state's infrastructure SIP submission focuses on assuring that the
state's SIP meets basic structural requirements. For example, section
110(a)(2)(C) includes, inter alia, the requirement that states have a
program to regulate minor new sources. Thus, EPA evaluates whether the
state has an EPA-approved minor NSR program and whether the program
addresses the pollutants relevant to that NAAQS. In the context of
acting on an infrastructure SIP submission, however, EPA does not think
it is necessary to conduct a review of each and every provision of a
state's existing minor source program (i.e., already in the existing
SIP) for compliance with the requirements of the CAA and EPA's
regulations that pertain to such programs.
With respect to certain other issues, EPA does not believe that an
action on a state's infrastructure SIP submission is necessarily the
appropriate type of action in which to address possible deficiencies in
a state's existing SIP. These issues include: (i) Existing provisions
related to excess emissions from sources during periods of startup,
shutdown, or malfunction that may be contrary to the CAA and EPA's
policies addressing such excess emissions (``SSM''); (ii) existing
provisions related to ``director's variance'' or ``director's
discretion'' that may be contrary to the CAA because they purport to
allow revisions to SIP-approved emissions limits while limiting public
process or not requiring further approval by EPA; and (iii) existing
provisions for PSD programs that may be inconsistent with current
requirements of EPA's ``Final NSR Improvement Rule,'' 67 FR 80186
(December 31, 2002), as amended by 72 FR 32526 (June 13, 2007) (``NSR
Reform''). Thus, EPA believes it may approve an infrastructure SIP
submission without scrutinizing the totality of the existing SIP for
such potentially deficient provisions and may approve the submission
even if it is aware of such existing provisions \11\. It is important
to note that EPA's approval of a state's infrastructure SIP submission
should not be construed as explicit or implicit re-approval of any
existing potentially deficient provisions that relate to the three
specific issues just described.
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\11\ By contrast, EPA notes that if a state were to include a
new provision in an infrastructure SIP submission that contained a
legal deficiency, such as a new exemption for excess emissions
during SSM events, then EPA would need to evaluate that provision
for compliance against the rubric of applicable CAA requirements in
the context of the action on the infrastructure SIP.
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EPA's approach to review of infrastructure SIP submissions is to
identify the CAA requirements that are logically applicable to that
submission. EPA believes that this approach to the review of a
particular infrastructure SIP submission is appropriate, because it
would not be reasonable to read the general requirements of section
110(a)(1) and the list of elements in 110(a)(2) as requiring review of
each and every provision of a state's existing SIP against all
requirements in the CAA and EPA regulations merely for purposes of
assuring that the state in question has the basic structural elements
for a functioning SIP for a new or revised NAAQS. Because SIPs have
grown by accretion over the decades as statutory and regulatory
requirements under the CAA have evolved, they may include some outmoded
provisions and historical artifacts. These provisions, while not fully
up to date, nevertheless may not pose a significant problem for the
purposes of ``implementation, maintenance, and enforcement'' of a new
or revised NAAQS when EPA evaluates adequacy of the infrastructure SIP
submission. EPA believes that a better approach is for states and EPA
to focus attention on those elements of section 110(a)(2) of the CAA
most likely to warrant a specific SIP revision due to the promulgation
of a new or revised NAAQS or other factors.
For example, EPA's 2013 Guidance gives simpler recommendations with
respect to carbon monoxide than other NAAQS pollutants to meet the
visibility requirements of section 110(a)(2)(D)(i)(II), because carbon
monoxide does not affect visibility. As a result, an infrastructure SIP
submission for any future new or revised NAAQS for carbon monoxide need
only state this fact in order to address the visibility prong of
section 110(a)(2)(D)(i)(II).
With respect to element[s] C and J, EPA interprets the CAA to
require each state to make an infrastructure SIP submission for a new
or revised NAAQS that demonstrates that the air agency has a complete
PSD permitting program meeting the current requirements for all
regulated NSR pollutants. The requirements of element D(i)(II) may also
be satisfied by demonstrating the air agency has a complete PSD
permitting program correctly addressing all regulated NSR pollutants.
Nebraska has shown that it currently has a PSD program in place that
covers all regulated NSR pollutants, including greenhouse gases (GHGs).
On June 23, 2014, the United States Supreme Court issued a decision
addressing the application of PSD permitting requirements to GHG
emissions. Utility Air Regulatory Group v. Environmental Protection
Agency, 134 S.Ct. 2427. The Supreme Court said that the EPA may not
treat GHGs as an air pollutant for purposes of determining whether a
source is a major source required to obtain a PSD permit. The Court
also said that the EPA could continue to require that PSD permits,
otherwise required based on emissions of pollutants other than GHGs,
contain limitations on GHG emissions based on the application of Best
Available Control Technology (BACT). In order to act consistently with
its understanding of the Court's decision pending further judicial
action to effectuate the decision, the EPA is not continuing to apply
EPA regulations that would require that SIPs include permitting
requirements that the Supreme Court found impermissible. Specifically,
EPA is not applying the requirement that a state's SIP-approved PSD
program require that sources obtain PSD permits when GHGs are the only
pollutant (i) that the source emits or has the potential to emit above
the major source thresholds, or (ii) for which there is a significant
emissions increase and a significant net emissions increase from a
modification (e.g. 40 CFR 51.166(b)(48)(v)). EPA anticipates a need to
revise Federal PSD rules in light of the Supreme Court opinion. In
addition, EPA anticipates that many states will revise their existing
SIP-approved PSD programs in light of the Supreme Court's decision. The
timing and content of subsequent EPA actions with respect to the EPA
regulations and state PSD program approvals are expected to be informed
by additional legal process before the United States Court of Appeals
for the District of Columbia Circuit. At this juncture, EPA is not
expecting states to have revised their PSD programs for purposes of
infrastructure SIP submissions and is only evaluating such submissions
to assure that the state's program correctly
[[Page 35288]]
addresses GHGs consistent with the Supreme Court's decision.
At present, EPA has determined the Nebraska's SIP is sufficient to
satisfy elements C, D(i)(II), and J with respect to GHGs because the
PSD permitting program previously approved by EPA into the SIP
continues to require that PSD permits (otherwise required based on
emissions of pollutants other than GHGs) contain limitations on GHG
emissions based on the application of BACT. Although the approved
Nebraska's PSD permitting program may currently contain provisions that
are no longer necessary in light of the Supreme Court decision, this
does not render the infrastructure SIP submission inadequate to satisfy
elements C, (D)(i)(II), and J. The SIP contains the necessary PSD
requirements at this time, and the application of those requirements is
not impeded by the presence of other previously-approved provisions
regarding the permitting of sources of GHGs that EPA does not consider
necessary at this time in light of the Supreme Court decision.
Accordingly, the Supreme Court decision does not affect EPA's proposed
approval of Nebraska's infrastructure SIP as to the requirements of
elements C, D(i)(II), and J.
Finally, EPA believes that its approach with respect to
infrastructure SIP requirements is based on a reasonable reading of
sections 110(a)(1) and 110(a)(2) because the CAA provides other avenues
and mechanisms to address specific substantive deficiencies in existing
SIPs. These other statutory tools allow EPA to take appropriately
tailored action, depending upon the nature and severity of the alleged
SIP deficiency. Section 110(k)(5) authorizes EPA to issue a ``SIP
call'' whenever the Agency determines that a state's SIP is
substantially inadequate to attain or maintain the NAAQS, to mitigate
interstate transport, or to otherwise comply with the CAA.\12\ Section
110(k)(6) authorizes EPA to correct errors in past actions, such as
past approvals of SIP submissions.\13\ Significantly, EPA's
determination that an action on a state's infrastructure SIP submission
is not the appropriate time and place to address all potential existing
SIP deficiencies does not preclude EPA's subsequent reliance on
provisions in section 110(a)(2) as part of the basis for action to
correct those deficiencies at a later time. For example, although it
may not be appropriate to require a state to eliminate all existing
inappropriate director's discretion provisions in the course of acting
on an infrastructure SIP submission, EPA believes that section
110(a)(2)(A) may be among the statutory bases that EPA relies upon in
the course of addressing such deficiency in a subsequent action.\14\
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\12\ For example, EPA issued a SIP call to Utah to address
specific existing SIP deficiencies related to the treatment of
excess emissions during SSM events. See ``Finding of Substantial
Inadequacy of Implementation Plan; Call for Utah State
Implementation Plan Revisions,'' 74 FR 21639 (April 18, 2011).
\13\ EPA has used this authority to correct errors in past
actions on SIP submissions related to PSD programs. See ``Limitation
of Approval of Prevention of Significant Deterioration Provisions
Concerning Greenhouse Gas Emitting-Sources in State Implementation
Plans; Final Rule,'' 75 FR 82536 (December 30, 2010). EPA has
previously used its authority under CAA section 110(k)(6) to remove
numerous other SIP provisions that the Agency determined it had
approved in error. See, e.g., 61 FR 38664 (July 25, 1996) and 62 FR
34641 (June 27, 1997) (corrections to American Samoa, Arizona,
California, Hawaii, and Nevada SIPs); 69 FR 67062 (November 16,
2004) (corrections to California SIP); and 74 FR 57051 (November 3,
2009) (corrections to Arizona and Nevada SIPs).
\14\ See, e.g., EPA's disapproval of a SIP submission from
Colorado on the grounds that it would have included a director's
discretion provision inconsistent with CAA requirements, including
section 110(a)(2)(A). See, e.g., 75 FR 42342 at 42344 (July 21,
2010) (proposed disapproval of director's discretion provisions); 76
FR 4540 (January 26, 2011) (final disapproval of such provisions).
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IV. What is EPA's evaluation of how the State addressed the relevant
elements of sections 110(a)(1) and (2)?
EPA Region 7 received Nebraska's infrastructure SIP submission for
the 2008 O3 standard on February 11, 2013. The SIP
submission became complete as a matter of law on August 11, 2013. EPA
has reviewed Nebraska's infrastructure SIP submission and the
applicable statutory and regulatory authorities and provisions
referenced in those submissions or referenced in Nebraska's SIP. Below
is EPA's evaluation of how the state addressed the relevant elements of
section 110(a)(2) for the 2008 O3 NAAQS.
(A) Emission limits and other control measures: Section
110(a)(2)(A) requires SIPs to include enforceable emission limits and
other control measures, means or techniques, schedules for compliance,
and other related matters as needed to implement, maintain and enforce
each NAAQS.\15\
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\15\ The specific nonattainment area plan requirements of
section 110(a)(2)(I) are subject to the timing requirements of
section 172, not the timing requirement of section 110(a)(1). Thus,
section 110(a)(2)(A) does not require that states submit regulations
or emissions limits specifically for attaining the 2010
SO2 NAAQS. Those SIP provisions are due as part of each
state's attainment plan, and will be addressed separately from the
requirements of section 110(a)(2)(A). In the context of an
infrastructure SIP, EPA is not evaluating the existing SIP
provisions for this purpose. Instead, EPA is only evaluating whether
the state's SIP has basic structural provisions for the
implementation of the NAAQS.
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The State of Nebraska's statutes and Air Quality Regulations
authorize the Nebraska Department of Environmental Quality (NDEQ) to
regulate air quality and implement air quality control regulations.
Section 81-1504 of the Nebraska Revised Statutes authorizes NDEQ to
act, among other things, as the state air pollution control agency for
all purposes of the CAA and to develop comprehensive programs for the
prevention, control and abatement of new or existing pollution to the
air of the state. Air pollution is defined in Section 81-1502 of the
Nebraska Revised Statutes as the presence in the outdoor atmosphere of
one or more air contaminants or combinations thereof in such quantities
and of such duration as are or may tend to be injurious to human,
plant, or animal life, property, or the conduct of business.
Section 81-1505(1) of the Nebraska Revised Statutes authorizes the
Nebraska Environmental Quality Council (EQC) to adopt and promulgate
rules which set air standards that will protect public health and
welfare. The EQC is also authorized to classify air contaminant sources
according to levels and types of discharges, emissions or other
characteristics.
The 2008 O3 NAAQS specified in 40 CFR part 50.10 was
proposed and adopted into Nebraska title 129 chapter 4, section 005 of
the Nebraska Administrative Code, by the EQC on June 20, 2013, with an
effective date of December 9, 2013.
Based upon review of the state's infrastructure SIP submission for
the 2008 O3 NAAQS, and relevant statutory and regulatory
authorities and provisions referenced in the submission or referenced
in Nebraska's SIP, EPA believes that the Nebraska SIP adequately
addresses the requirements of section 110(a)(2)(A) for the 2008
O3 NAAQS and is proposing to approve this element of the
February 11, 2013, SIP submission.
(B) Ambient air quality monitoring/data system: Section
110(a)(2)(B) requires SIPs to include provisions to provide for
establishment and operation of ambient air quality monitors, collection
and analysis of ambient air quality data, and making these data
available to EPA upon request.
To address this element, section 81-1505(12)(o) of the Nebraska
Revised Statutes provides the enabling authority necessary for Nebraska
to fulfill the requirements of section 110(a)(2)(B). This provision
gives the EQC the authority to promulgate rules and
[[Page 35289]]
regulations concerning the monitoring of emissions. Nebraska complies
with 40 CFR part 50, appendix P with regards to the regulatory
monitoring, compiling, and analysis of data on ambient air quality
relative to the 2008 ozone 8-hour NAAQS. The Air Quality Division
within NDEQ implements these requirements. Along with their other
duties, the monitoring program within NDEQ's Air Compliance and
Enforcement Program collects air monitoring data, quality assures the
results, and reports the data. In accordance with the requirements of
40 CFR part 58 appendix D, section 4.1(a), Nebraska operates four
O3 monitors, three in the Omaha MSA and one in the Lincoln
MSA.
NDEQ develops and administers the ambient air monitoring network
plan and submits it annually to EPA for approval, including the plan
for its O3 monitoring network, as required by 40 CFR 58.10.
Prior to submission to EPA, Nebraska makes the plans available for
public review on NDEQ's Web site. See, https://deq.ne.gov/Publica.nsf/Pubs_Air_Amb.xsp, for NDEQ's 2014 Ambient Air Monitoring Network Plan.
This Plan includes, among other things, the locations for the
O3 monitoring network. On February 9, 2015, EPA approved
Nebraska's 2014 ambient air network monitoring plan. NDEQ also conducts
five-year monitoring network assessments, including the O3
monitoring network, as required by 40 CFR 58.10(d). Title 129, chapter
4, section 005 of the NAC requires that attainment with the
O3 standard be determined in accordance with the applicable
Federal regulations in 40 CFR part 50, appendix S. Nebraska submits air
quality data to EPA's Air Quality System (AQS) quarterly, pursuant to
the provisions of work plans developed in conjunction with EPA grants
to the state.
Based upon review of the state's infrastructure SIP submission for
the 2008 O3 NAAQS, and relevant statutory and regulatory
authorities and provisions referenced in the submission or referenced
in Nebraska's SIP, EPA believes that the Nebraska SIP adequately
addresses the requirements of section 110(a)(2)(B) for the 2008
O3 NAAQS and is proposing to approve this element of the
February 11, 2013, SIP submission.
(C) Program for enforcement of control measures (PSD, New Source
Review for nonattainment areas, and construction and modification of
all stationary sources): Section 110(a)(2)(C) requires states to
include the following three elements in the SIP: (1) A program
providing for enforcement of all SIP measures described in section
110(a)(2)(A); (2) a program for the regulation of the modification and
construction of stationary sources as necessary to protect the
applicable NAAQS (i.e., state-wide permitting of minor sources); and
(3) a permit program to meet the major source permitting requirements
of the CAA (for areas designated as attainment or unclassifiable for
the NAAQS in question).\16\
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\16\ As discussed in further detail below, this infrastructure
SIP rulemaking will not address the Kansas program for nonattainment
area related provisions, since EPA considers evaluation of these
provisions to be outside the scope of infrastructure SIP actions.
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(1) Enforcement of SIP Measures. With respect to enforcement of
requirements of the SIP, the Nebraska statutes provide authority to
enforce the requirements of section 81-1504(1) of the Nebraska Revised
Statutes provide authority for NDEQ to enforce the requirements of the
Nebraska Environmental Protection Act, and any regulations, permits, or
final compliance orders issued under the provisions of that law. In
addition, section 81-1504(7) authorizes NDEQ to issue orders
prohibiting or abating discharges of waste into the air and requiring
the modification, extension or adoption of remedial measures to
prevent, control, or abate air pollution. Section 81-1507 authorizes
NDEQ to commence an enforcement action for any violations of the
Environmental Protection Act, any rules or regulations promulgated
thereunder, or any orders issued by NDEQ. This enforcement action can
not only seek civil penalties, but also require that the recipient take
corrective action to address the violation. See section 81-1507(1) and
81-1508.02. Section 81-1508.01 provides for criminal penalties for
knowing or willful violations of the statute, regulations or permit
conditions, in addition to other acts described in that section.
(2) Minor New Source Review. Section 110(a)(2)(C) also requires
that the SIP include measures to regulate construction and modification
of stationary sources to protect the NAAQS. With respect to smaller
state-wide minor sources (Nebraska's major source permitting program is
discussed in (3) below), Nebraska has a program under title 129,
chapter 17 of the NAC that requires such sources to first obtain a
construction permit from NDEQ. The permitting process is designed to
ensure that new and modified sources will not interfere with NAAQS
attainment. NDEQ has the authority to require the source applying for
the permit to undergo an air quality impact analysis. If NDEQ
determines that emissions from a constructed or modified source
interfere with attainment of the NAAQS, it may deny the permit until
the source makes the necessary changes to obviate the objections to the
permit issuance. See chapter 17, sections 008 and 009 of the NAC.
EPA has determined that Nebraska's minor new source review (NSR)
program adopted pursuant to section 110(a)(2)(C) of the Act regulates
emissions of NAAQS pollutants. EPA has also determined that certain
provisions of the state's minor NSR program adopted pursuant to section
110(a)(2)(C) of the Act likely do not meet all the requirements found
in EPA's regulations implementing that provision. See 40 CFR 51.160-
51.164. EPA previously approved Nebraska's minor NSR program into the
SIP, and at the time there was no objection to the provisions of this
program. See 37 FR 10842 (May 31, 1972) and 60 FR 372 (January 4,
1995). Since then, the state and EPA have relied on the existing state
minor NSR program to assure that new and modified sources not captured
by the major NSR permitting programs do not interfere with attainment
and maintenance of the NAAQS.
In this action, EPA is proposing to approve Nebraska's
infrastructure SIP for the 2008 O3 NAAQS with respect to the
general requirement in section 110(a)(2)(C) to include a program in the
SIP that regulates the modification and construction of any stationary
source as necessary to assure that the NAAQS are achieved. In this
action, EPA is not proposing to approve or disapprove the state's
existing minor NSR program to the extent that it is inconsistent with
EPA's regulations governing this program. EPA has maintained that the
CAA does not require that new infrastructure SIP submissions correct
any defects in existing EPA-approved provisions of minor NSR programs
in order for EPA to approve the infrastructure SIP for element (C)
(e.g., 76 FR 41076-76 FR 41079).
(3) Prevention of Significant Deterioration (PSD) permit program.
Nebraska also has a program approved by EPA as meeting the requirements
of part C, relating to prevention of significant deterioration of air
quality. In order to demonstrate that Nebraska has met this sub-
element, this PSD program must cover requirements not just for the 2008
O3 NAAQS, but for all other regulated NSR pollutants as
well.
Nebraska's implementing rule, title 129, chapter 19, Prevention of
Significant Deterioration of Air Quality, incorporates the relevant
portions of the
[[Page 35290]]
Federal rule, 40 CFR 52.21 by reference. In this action, EPA is not
proposing to approve or disapprove any state rules with regard to NSR
reform requirements. EPA will act on NSR reform submittals through a
separate rulemaking process. For Nebraska, we have previously approved
Nebraska's NSR reform rules for attainment areas, see 76 FR 15852,
March 22, 2011.
The Nebraska SIP also contains a permitting program for major
sources and modifications in nonattainment areas (see title 129,
chapter 17, section 013). This section is currently not applicable to
Nebraska because all areas of Nebraska are currently in attainment with
the NAAQS. Even if it were applicable, the SIP's discussion of
nonattainment areas is not addressed in this rulemaking (see discussion
of the section 110(a)(2)(I) requirements for nonattainment areas,
below).
With respect to the PSD program, title 129, chapter 19, of the NAC
provides for the permitting of construction of a new major stationary
source or a major modification of an existing major stationary source.
Further, chapter 19, section 010 of the NAC establishes threshold
emissions for establishing whether the construction project is a major
source of regulated NSR pollutants, including but not limited to
O3.
Based upon review of the state's infrastructure SIP submission for
the 2008 O3 NAAQS, and relevant statutory and regulatory
authorities and provisions referenced in the submission or referenced
in Nebraska's SIP, EPA believes that the Nebraska SIP adequately
addresses the requirements of section 110(a)(2)(C) for the 2008
O3 NAAQS and is proposing to approve this element of the
February 11, 2013, SIP submission.
(D) Interstate and international transport: Section 110(a)(2)(D)(i)
includes four requirements referred to as prongs 1 through 4. Prongs 1
and 2 are provided at section 110(a)(2)(D)(i)(I); Prongs 3 and 4 are
provided at section 110(a)(2)(D)(i)(II). Section 110(a)(2)(D)(i)(I)
requires SIPs to include adequate provisions prohibiting any source or
other type of emissions activity in one state from contributing
significantly to nonattainment, or interfering with maintenance, of any
NAAQS in another state. Section 110(a)(2)(D)(i)(II) requires SIPs to
include adequate provisions prohibiting any source or other type of
emissions activity in one state from interfering with measures required
of any other state to prevent significant deterioration of air quality
or to protect visibility.
With regard to 110(a)(2)(D)(i)(I)--prongs 1 and 2, EPA is not
proposing action at this time. The Agency plans to take action on this
portion of the SIP consistent with Consent Decree 4:14-cv-03198-YGR.
With respect to the PSD requirements of section
110(a)(2)(D)(i)(II)--prong 3, EPA notes that Nebraska's satisfaction of
the applicable infrastructure SIP PSD requirements for attainment/
unclassifiable areas of the 1997 and 2006 PM2.5 NAAQS have
been detailed in the section addressing section 110(a)(2)(C). As
discussed above for element (C)(3), EPA has previously approved
Nebraska's NSR reform rules for attainment areas, and, as previously
stated, Nebraska currently has no nonattainment areas (See 76 FR 15852,
March 22, 2011). EPA also notes that the proposed action in that
section related to PSD is consistent with the proposed approval related
to PSD for section 110(a)(2)(D)(i)(II). Therefore, EPA is proposing to
approve the PSD requirements of section 110(a)(2)(D)(i)(II)--prong 3.
EPA is proposing to disapprove Nebraska's SIP as it relates to
section 110(a)(2)(D)(i)(II) with respect to visibility, or ``prong 4''
of the requirements of section 110(a)(2)(D). In its SIP submittal,
Nebraska refers to its submittal of a SIP revision in July 2011
addressing the regional haze requirements. An approved regional haze
SIP that fully meets the regional haze requirements in 40 CFR 51.308
would satisfy the requirements of section 110(a)(2)(D)(i)(II) for
visibility protection as such a SIP would ensure that emissions from
the state will not interfere with measures required to be included in
other state SIPs to protect visibility. EPA has not, however, fully
approved Nebraska's Regional Haze SIP.
On July 6, 2012, after reviewing Nebraska's submittal of a Regional
Haze SIP, EPA published the ``Approval, Disapproval and Promulgation of
Implementation Plans; State of Nebraska; Regional Haze State
Implementation Plan; Federal Implementation Plan for Best Available
Retrofit Technology Determination; Final Rule'' (77 FR 40150). In that
action, EPA partially approved the SIP revision as meeting the
applicable regional haze requirements set forth in sections 169A and
169B of the Act and in the Federal regulations codified at 40 CFR 51.
308, and the requirements of 40 CFR part 51, subpart F and appendices V
and Y. EPA disapproved the SO2 BART determinations for units
1 and 2 of the Gerald Gentleman Station (GGS) because they do not
comply with EPA's regulations. EPA also disapproved Nebraska's long-
term strategy insofar as it relied on the deficient SO2 BART
determination at GGS. Instead, EPA finalized a FIP relying on the
Transport Rule as an alternative to BART for SO2 emissions
from GGS to address these deficiencies. EPA approved Nebraska's
NOX BART determination at GGS as SIP-strengthening and
approved the CSAPR FIP as satisfying the requirements for the Regional
Haze Rule with respect to NOX. Given this, EPA cannot
approve Nebraska's SIP as meeting the prong 4 requirements based on the
absence of a fully approved Regional Haze SIP.
In the absence of a fully approved Regional Haze SIP, a state may
meet the requirements of prong 4 by showing that its SIP contains
adequate provisions to prevent emission from within the state from
interfering with other states' measures to protect visibility. See,
e.g. 76 FR 8326 (February 14, 2011). Nebraska did not, however, provide
a demonstration in its infrastructure SIP that emissions within its
jurisdiction do not interfere with other states' plans to protect
visibility.
Section 110(a)(2)(D)(ii) also requires that the SIP insure
compliance with the applicable requirements of sections 126 and 115 of
the CAA, relating to interstate and international pollution abatement,
respectively. Section 126(a) of the CAA requires new or modified
sources to notify neighboring states of potential impacts from sources
within the state. Although Nebraska sources have not been identified by
EPA as having any interstate or international impacts under section 126
or section 115 in any pending actions relating to the 2008
O3 NAAQS, the Nebraska regulations address abatement of the
effects of interstate pollution. Title 129, chapter 14, section 010.03
of the NAC requires NDEQ, after receiving a complete PSD permit
application, to notify EPA, as well as officials and agencies having
cognizance where the proposed construction is to occur. This includes
state or local air pollution control agencies and the chief executives
of the city and county where the source would be located; any
comprehensive regional land use planning agency; and any state, Federal
Land Manager, or Indian governing body whose lands may be affected by
emissions from the source or modification. Finally, we believe that
Nebraska could use the same statutory authorities previously discussed,
primarily section 81-1505 of the Nebraska Revised Statutes, to respond
to any future findings with respect to the 2008 O3 NAAQS.
[[Page 35291]]
Section 115 of the CAA authorizes EPA to require a state to revise
its SIP under certain conditions to alleviate international transport
into another country. There are no final findings under section 115 of
the CAA against Nebraska with respect to any air pollutant. Thus, the
state's SIP does not need to include any provisions to meet the
requirements of section 115.
Based upon review of the state's infrastructure SIP submission for
the 2008 O3 NAAQS, and relevant statutory and regulatory
authorities and provisions referenced in the submission or referenced
in Nebraska's SIP, EPA is not proposing action on section
110(a)(2)(D)(i)(I)--prongs 1 and 2 and is disapproving
110(a)(2)(D)(i)(II)--prong 4. However, EPA believes that Nebraska has
the adequate infrastructure needed to address, 110(a)(2)(D)(i)(II)--
prong 3 and 110 (a)(2)(D)(ii) for the 2008 O3 NAAQS and is
proposing to approve the February 11, 2013, submission regarding the
2008 O3 infrastructure SIP requirements for those elements
as indicated above.
(E) Adequate authority, resources, implementation, and oversight:
Section 110(a)(2)(E) requires that SIPs provide for the following: (1)
Necessary assurances that the state (and other entities within the
state responsible for implementing the SIP) will have adequate
personnel, funding, and authority under state or local law to implement
the SIP, and that there are no legal impediments to such
implementation; (2) requirements that the state comply with the
requirements relating to state boards, pursuant to section 128 of the
CAA; and (3) necessary assurances that the state has responsibility for
ensuring adequate implementation of any plan provision for which it
relies on local governments or other entities to carry out that portion
of the plan.
(1) Section 110(a)(2)(E)(i) requires states to establish that they
have adequate personnel, funding and authority. With respect to
adequate authority, we have previously discussed Nebraska's statutory
and regulatory authority to implement the 2008 O3 NAAQS,
primarily in the discussion of section 110(a)(2)(A) above. Neither
Nebraska nor EPA has identified any legal impediments in the state's
SIP to implementation of the NAAQS.
With respect to adequate resources, NDEQ asserts that it has
adequate personnel to implement the SIP. State statutes provide NDEQ
the authority to establish bureaus, divisions and/or sections to carry
out the duties and powers granted by the Nebraska state law to address
the control of air pollution, to be administered by full-time salaried,
bureau, division or section chiefs. See Nebraska Revised Statutes
section 81-1504(14). NDEQ's Air Quality Division is currently divided
into the Permitting Section, the Compliance Section, and the Program
Planning and Development Unit.
With respect to funding, the Nebraska statutes require the EQC to
establish various fees for sources, in order to fund the reasonable
costs of implementing various air pollution control programs. For
example, section 81-1505(12)(e) of the Nebraska Revised Statutes
requires the EQC to establish a requirement for sources to pay fees
sufficient to pay the reasonable direct and indirect costs of
developing and administering the air quality operating permit program.
These costs include overhead charges for personnel, equipment,
buildings and vehicles; enforcement costs; costs of emissions and
ambient monitoring; and modeling analyses and demonstrations. See
Nebraska Revised Statutes section 81-1505.04(2)(b). Similarly, section
81-1505(12)(a) requires the EQC to establish application fees for air
contaminant sources seeking to obtain a permit prior to construction.
Section 81-1505.05 of the Nebraska Revised Statutes provides that
all fees collected pursuant to section 81-1505.04 be credited to the
``Clean Air Title V Cash Fund'' to be used solely to pay for the direct
and indirect costs required to develop and administer the air quality
permit program. Similarly, section 81-1505.06 provides that all fees
collected pursuant to section 81-1505(12) be deposited in the ``Air
Quality Permit Cash Fund.''
Nebraska uses funds in the non-Title V subaccounts, along with
General Revenue funds and EPA grants under, for example, sections 103
and 105 of the Act, to fund the programs. EPA conducts periodic program
reviews to ensure that the state has adequate resources and funding to,
among others, implement the SIP.
(2) Conflict of interest provisions--section 128. Section
110(a)(2)(E)(ii) requires that each state SIP meet the requirements of
section 128, relating to representation on state boards and conflicts
of interest by members of such boards. Section 128(a)(1) requires that
any board or body which approves permits or enforcement orders under
the CAA must have at least a majority of members who represent the
public interest and do not derive any ``significant portion'' of their
income from persons subject to permits and enforcement orders under the
CAA. Section 128(a)(2) requires that members of such a board or body,
or the head of an agency with similar powers, adequately disclose any
potential conflicts of interest.
On October 21, 2014, EPA approved Nebraska's SIP revision
addressing section 128 requirements. For a detailed analysis concerning
Nebraska's section 128 provisions, see EPA's approval of Nebraska's
2008 Lead infrastructure SIP (79 FR 62832).
(3) With respect to assurances that the state has responsibility to
implement the SIP adequately when it authorizes local or other agencies
to carry out portions of the plan, section 81-1504(18) of the Nebraska
Revised Statutes grants NDEQ the authority to encourage local units of
government to handle air pollution problems within their own
jurisdictions. NDEQ may delegate, by contract with governmental
subdivisions which have adopted air pollution control programs, the
enforcement of state-adopted air pollution control regulations within a
specified region surrounding the jurisdictional area of the
governmental subdivision. See section 81-1504(23). However, the
Nebraska statutes also retain authority in NDEQ to carry out the
provisions of state air pollution control law. Section 81-1504(1) gives
NDEQ ``exclusive general supervision'' of the administration and
enforcement of the Nebraska Environmental Protection Act. In addition,
section 81-1504(4) designates NDEQ as the air pollution control agency
for the purposes of the CAA.
The State of Nebraska relies on two local agencies for assistance
in implementing portions of the air pollution control program: Lincoln/
Lancaster County Health Department and Omaha Air Quality Control. NDEQ
oversees the activities of these local agencies to ensure adequate
implementation of the plan. NDEQ utilizes sub-grants to the local
agencies to provide adequate funding, and as an oversight mechanism.
EPA conducts reviews of the local program activities in conjunction
with its oversight of the state program.
Based upon review of the state's infrastructure SIP submission for
the 2008 O3 NAAQS and relevant statutory and regulatory
authorities and provisions referenced in these submissions or
referenced in Nebraska's SIP, EPA believes that Nebraska has the
adequate infrastructure needed to address section 110(a)(2)(E) for the
2008 O3 NAAQS submitted and is proposing to approve the
February 11, 2013 submission regarding the 2008 O3
infrastructure SIP requirements for this element.
[[Page 35292]]
(F) Stationary source monitoring system: Section 110(a)(2)(F)
requires states to establish a system to monitor emissions from
stationary sources and to submit periodic emission reports. Each SIP
shall require the installation, maintenance, and replacement of
equipment, and the implementation of other necessary steps, by
