Approval of Nebraska Air Quality Implementation Plans, Operating Permits Program, and 112(l) Program; Revision to Nebraska Administrative Code, 14762-14765 [2018-07091]
Download as PDF
14762
Federal Register / Vol. 83, No. 67 / Friday, April 6, 2018 / Rules and Regulations
G. Executive Order 13175: Consultation
and Coordination With Indian Tribal
Governments
This action does not have tribal
implications as specified in Executive
Order 13175. This rule finds that three
states have failed to submit SIP
revisions that satisfy the nonattainment
area planning requirements under
sections 172, 188 and 189 of the CAA
for the 2012 PM2.5 NAAQS. No tribe is
subject to the requirement to submit an
implementation plan under section 172,
or under subpart 4 of part D of Title I
of the CAA. Thus, Executive Order
13175 does not apply to this action.
H. Executive Order 13045: Protection of
Children From Environmental Health
and Safety Risks
EPA interprets Executive Order 13045
as applying only to those regulatory
actions that concern health or safety
risks that EPA has reason to believe may
disproportionately affect children, per
the definition of ‘‘covered regulatory
action’’ in section 2–202 of the
Executive Order. This action is not
subject to Executive Order 13045
because it is a finding that three states
have failed to submit SIP revisions that
satisfy the Moderate nonattainment area
planning requirements under sections
172, 188 and 189 of the CAA for the
2012 PM2.5 NAAQS and does not
directly or disproportionately affect
children.
I. Executive Order 13211: Actions That
Significantly Affect Energy Supply,
Distribution or Use
This action is not subject to Executive
Order 13211, because it is not a
significant regulatory action under
Executive Order 12866.
daltland on DSKBBV9HB2PROD with RULES
J. National Technology Transfer and
Advancement Act (NTTAA)
This rulemaking does not involve
technical standards.
K. Executive Order 12898: Federal
Actions To Address Environmental
Justice in Minority Populations and
Low-Income Populations
EPA believes the human health or
environmental risk addressed by this
action will not have potential
disproportionately high and adverse
human health or environmental effects
on minority, low-income, or indigenous
populations. In finding that three states
have failed to submit SIP revisions that
satisfy the Moderate nonattainment area
planning requirements under sections
172, 188 and 189 of the CAA for the
2012 PM2.5 NAAQS, this action does not
directly affect the level of protection
provided to human health or the
VerDate Sep<11>2014
20:57 Apr 05, 2018
Jkt 244001
environment. The results of this
evaluation are contained in Section V of
this preamble titled ‘‘Environmental
Justice Considerations.’’
L. Congressional Review Act (CRA)
This action is subject to the CRA, and
EPA will submit a rule report to each
House of the Congress and to the
Comptroller General of the United
States. This action is not a ‘‘major rule’’
as defined by 5 U.S.C. 804(2).
M. Judicial Review
Section 307(b)(l) of the CAA indicates
which Federal Courts of Appeal have
venue for petitions of review of final
agency actions by EPA under the CAA.
This section provides, in part, that
petitions for review must be filed in the
United States Court of Appeals for the
District of Columbia Circuit, (i) when
the agency action consists of ‘‘nationally
applicable regulations promulgated, or
final actions taken, by the
Administrator,’’ or (ii) when such action
is locally or regionally applicable, if
‘‘such action is based on a
determination of nationwide scope or
effect and if in taking such action the
Administrator finds and publishes that
such action is based on such a
determination.’’
EPA has determined that this final
rule consisting of findings of failure to
submit certain of the required SIP
revisions is ‘‘nationally applicable’’
within the meaning of section 307(b)(1)
of the CAA. This final agency action
affects three states with Moderate
nonattainment areas located in three of
the ten EPA Regional offices, and in two
different U.S. Federal Circuit Courts
(3rd Circuit for Pennsylvania and 9th
Circuit for California and Idaho).
In addition, EPA has determined that
this rule has nationwide scope or effect
because it addresses a common core of
knowledge and analysis involved in
formulating the decision and a common
interpretation of the requirements of 40
CFR part 51 appendix V applied to
determining the completeness of SIPs in
states across the country. This
determination is appropriate because, in
the 1977 CAA Amendments that revised
CAA section 307(b)(l), Congress noted
that the Administrator’s determination
that an action is of ‘‘nationwide scope
or effect’’ would be appropriate for any
action that has ‘‘scope or effect beyond
a single judicial circuit.’’ H.R. Rep. No.
95–294 at 323–324, reprinted in 1977
U.S.C.C.A.N. 1402–03. Here, the scope
and effect of this action extends to the
two judicial circuits that include the
states across the country affected by this
action. In these circumstances, CAA
section 307(b)(1) and its legislative
PO 00000
Frm 00030
Fmt 4700
Sfmt 4700
history authorize the Administrator to
find the rule to be of ‘‘nationwide scope
or effect’’ and, thus, to indicate that
venue for challenges lies in the District
of Columbia Circuit. Accordingly, EPA
is determining that this rule is of
nationwide scope or effect.
Under section 307(b)(1) of the CAA,
petitions for judicial review of this
action must be filed in the United States
Court of Appeals for the District of
Columbia Circuit within 60 days from
the date this final action is published in
the Federal Register. Filing a petition
for review by the Administrator of this
final action does not affect the finality
of the action for the purposes of judicial
review, nor does it extend the time
within which a petition for judicial
review must be filed, and shall not
postpone the effectiveness of such rule
or action.
List of Subjects in 40 CFR Part 52
Environmental protection, Approval
and promulgation of implementation
plans, Administrative practice and
procedures, Incorporation by reference,
Air pollution control, Intergovernmental
relations, and Reporting and
recordkeeping requirements.
Dated: March 26, 2018.
William L. Wehrum,
Assistant Administrator.
[FR Doc. 2018–06989 Filed 4–5–18; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Parts 52 and 70
[EPA–R07–OAR–2017–0485; FRL–9976–52–
Region 7]
Approval of Nebraska Air Quality
Implementation Plans, Operating
Permits Program, and 112(l) Program;
Revision to Nebraska Administrative
Code
Environmental Protection
Agency (EPA).
ACTION: Final rule.
AGENCY:
The Environmental Protection
Agency (EPA) is taking final action to
approve revisions to the State
Implementation Plan (SIP), Operating
Permits Program, and 112(l) Program
submitted on July 14, 2014, by the State
of Nebraska. This action amends the SIP
to revise two chapters, ‘‘Definitions’’
and ‘‘Operating Permit Modifications;
Reopening for Cause’’. Specifically,
these revisions incorporate by reference
the list of organic compounds exempt
from the definition of volatile organic
compound (VOC) found in the Code of
SUMMARY:
E:\FR\FM\06APR1.SGM
06APR1
Federal Register / Vol. 83, No. 67 / Friday, April 6, 2018 / Rules and Regulations
Federal Regulations; notification
requirements for the operating permit
program are being amended to be
consistent with the Federal operating
permit program requirements; the
definition of ‘‘solid waste’’ is being
revised by the state, however, because
the state’s definition is inconsistent
with the Federal definition, EPA is not
approving this definition into the SIP.
Finally, the state is extending the
process of ‘‘off-permit changes’’ to Class
I operating permits. Additional
grammatical and editorial changes are
being made in this revision. Approval of
these revisions will not impact air
quality, ensures consistency between
the state and Federally-approved rules,
and ensures Federal enforceability of
the state’s rules.
DATES: This final rule is effective on
May 7, 2018.
ADDRESSES: EPA has established a
docket for this action under Docket ID
No. EPA–R07–OAR–2017–0485. All
documents in the docket are listed on
the https://www.regulations.gov
website. 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, is not placed on
the internet and will be publicly
available only in hard copy form.
Publicly available docket materials are
available through https://
www.regulations.gov or please contact
the person identified in the FOR FURTHER
INFORMATION CONTACT section for
additional information.
FOR FURTHER INFORMATION CONTACT: Mr.
Gregory Crable, Environmental
Protection Agency, Air Planning and
Development Branch, 11201 Renner
Boulevard, Lenexa, Kansas 66219 at
(913) 551–7391, or by email at
crable.gregory@epa.gov.
SUPPLEMENTARY INFORMATION:
Throughout this document ‘‘we,’’ ‘‘us,’’
and ‘‘our’’ refer to EPA. This section
provides additional information by
addressing the following:
daltland on DSKBBV9HB2PROD with RULES
I. Background
II. What is being addressed in this document?
III. Have the requirements for approval of a
SIP revision been met?
IV. EPA’s Response to Comments
V. What action is EPA taking?
VI. Incorporation by Reference
VII. Statutory and Executive Order Reviews
I. Background
On October 5, 2017, EPA proposed to
approve revisions to the SIP, Operating
Permits Program, and 112(l) Program for
the State of Nebraska. See 82 FR 46453.
In conjunction with the October 5, 2017
VerDate Sep<11>2014
20:57 Apr 05, 2018
Jkt 244001
notice of proposed rulemaking (NPR),
EPA issued a direct final rule (DFR)
approving the revisions to the SIP,
Operating Permits Program, and the
112(l) Program. See 82 FR 46420. In the
DFR, EPA stated that if adverse
comments were submitted to EPA by
November 6, 2017, the action would be
withdrawn and not take effect. EPA
received one adverse comment prior to
the close of the comment period. EPA
withdrew the DFR on November 28,
2017. See 82 FR 56173. This action is
a final rule based on the NPR.
II. What is being addressed in this
document?
Nebraska’s July 14, 2014, submission
requested revisions to seven chapters of
‘‘Title 129-Nebraska Air Quality
Regulations’’. This action will amend
the SIP to include revisions to two of
those chapters, title 129 of the Nebraska
Administrative Code, chapter 1
‘‘Definitions’’, and chapter 15
‘‘Operating Permit Modifications;
Reopening for Cause’’. Of the remaining
five chapters, EPA previously approved
revisions to two of the chapters in
separate direct final rulemakings
published in the Federal Register.
Chapter 4, ‘‘Ambient Air Quality
Standards’’ was approved on October
11, 2016, and chapter 34 ‘‘Emission
Sources; Testing; Monitoring’’ was
approved on October 7, 2016. EPA will
take action separately on two other
chapters, chapter 20 ‘‘Particulate
Emissions; Limits and Standards’’ and
chapter 18 ‘‘New Performance
Standards’’. The final chapter, chapter
28 ‘‘Hazardous Air Pollutants;
Emissions Standards’’, submitted as part
of the July 14, 2014, SIP submission, is
not approved in the Nebraska SIP and
therefore EPA will take no further action
for this chapter.
EPA is approving revisions to the
Nebraska SIP and Operating Permits
Program in title 129, chapter 1
‘‘Definitions’’. The definition of VOC
contained in section 160 of chapter 1
‘‘Definitions’’ is being revised.
Specifically, section 160 of chapter 1
contains a definition of VOC that
provides exceptions to the definition
based upon a list of organic compounds,
which have been determined to have
negligible photochemical reactivity.
Because it is difficult to stay current in
regard to the list of compounds, the
revision EPA is approving removes the
list at section 160, and references the
list contained in the Code of Federal
Regulations at 40 CFR 51.100(s)(1) and
(5). In addition, revisions to chapter 1,
section 139, are being made to the SIP
and the Operating Permits Program to
change the notification requirements for
PO 00000
Frm 00031
Fmt 4700
Sfmt 4700
14763
‘‘section 502(b)(10) changes’’ to require
facilities to provide written notification
at least 7 days in advance, rather than
30 days. This revision makes the
notification requirements consistent
with the Federal operating permit
program requirements. In addition,
Nebraska requested revisions to the
definition of ‘‘solid waste’’ at chapter 1,
section 144, to make it consistent with
the definition of ‘‘solid waste’’ included
in the Nebraska Environmental
Protection Act and other applicable
regulations in Nebraska.1 Neb. Rev. Stat.
81–1502(26). The definition as proposed
by the Nebraska Department of
Environmental Quality (NDEQ) is not
consistent with the definition of ‘‘solid
waste’’ in Federal law and regulations.
Therefore, EPA is not approving
Nebraska’s proposed revision to the
definition of ‘‘solid waste’’ into the State
Implementation Plan or Operating
Permits Program. Finally, other
grammatical and numerical edits are
being made in this chapter.
EPA is approving revisions to the
Nebraska SIP, Operating Permits
Program and 112(l) Program for chapter
15 ‘‘Operating Permit Modifications;
Reopening for Cause’’, which extends
‘‘off-permit changes’’ to Class I and II
operating permits as allowed under the
Federal program. Section 007 of chapter
15 is being revised and updated
allowing changes within a permitted
facility without a permit revision if the
change meets certain specified criteria.
The revised process allows certain
minor revisions to be made without
requiring all applicable administrative
procedures for full permit issuance.
These changes ensure that chapter 15
conforms to applicable Federal
regulations. Finally, revisions to chapter
15 amend the minimum number of days
to submit a written notification of a
change from thirty days to seven days
under certain circumstances when
changing Class I and II operating
permits, and makes various grammatical
revisions for clarity and consistency
purposes.
III. Have the requirements for approval
of a SIP revision been met?
The state submission has met the
public notice requirements for SIP
submissions in accordance with 40 CFR
51.102. The submission also satisfied
the completeness criteria of 40 CFR part
51, appendix V. The revised chapters
were placed on public notice and a
1 The definition of ‘‘solid waste’’ in the Nebraska
Environmental Protection Act was updated in 2013
as a result of Legislative Bill 203 to exclude ‘‘slag’’
from the definition. This revision further clarifies
that ‘‘slag’’ is a by-product of value and therefore
is excluded from the definition of ‘‘solid waste.’’
E:\FR\FM\06APR1.SGM
06APR1
14764
Federal Register / Vol. 83, No. 67 / Friday, April 6, 2018 / Rules and Regulations
daltland on DSKBBV9HB2PROD with RULES
public hearing was held by the state on
January 6, 2014, where no comments
were received. In addition, as explained
in this preamble, the revision meets the
substantive SIP requirements of the
CAA, including section 110 and
implementing regulations.
IV. EPA’s Response to Comments
The public comment period on EPA’s
proposed rule opened October 5, 2017,
the date of its publication in the Federal
Register, and closed on November 6,
2017. During this period, EPA received
a comment from one commenter.
Comment 1: The commenter stated
that EPA must act on the state’s
submitted request to change the
definition of solid waste, and that EPA
does not have the discretionary
authority to not act on state’s
submission. The commenter stated that
EPA is required to act on the state’s
submission within a maximum of 18
months from the state’s submission and
stated that the state’s requested
revisions to the definition of solid waste
was submitted in 2014, greater than 36
months prior to the October 5, 2017,
Federal Register notice. The commenter
further stated that EPA must disapprove
the state’s submittal regarding the
definition of solid waste as it is
inconsistent with the Federal rules as
EPA outlined in its October 5, 2017,
Federal Register notice.
Response 1: Section 110(k)of the CAA
authorizes EPA to approve a SIP
submission in full, disapprove it in full,
or approve it in part and disapprove it
in part, or conditionally approve it in
full or in part, depending on the extent
to which such plan meets the
requirements of the CAA. This authority
to approve state SIP submissions in
separable parts was included in the
1990 Amendments to the CAA to
overrule a decision in the Court of
Appeals for the Ninth Circuit holding
that EPA could not approve individual
measures in a SIP submission without
either approving or disapproving the
plan as a whole. See S. Rep. No. 101–
228, at 22, 1990 U.S.C.C.A.N. 3385,
3408 (discussing the express overruling
of Abramowitz v. EPA, 832 F.2d 1071
(9th Cir. 1987)).
EPA interprets its authority under
section 110(k) of the CAA as affording
the Agency the discretion to approve,
disapprove, or conditionally approve,
individual portions of Nebraska’s SIP
revision. EPA views the SIP revisions to
the definition of solid waste, as
severable from other portions of the SIP
revision and interprets section 110(k) as
allowing it to act on individual
severable portions in a SIP submission.
In short, EPA believes it has the
VerDate Sep<11>2014
20:57 Apr 05, 2018
Jkt 244001
discretion under section 110(k) of the
CAA to act upon the various individual
portions of the state’s SIP revision,
separately or together, as appropriate.
This discretion exists even when the
deadline to act on the SIP submission as
a whole has passed. EPA will address
the definition of solid waste in a
separate rulemaking action.
V. What action is EPA taking?
EPA is taking final action to amend
the Nebraska SIP to approve revisions to
title 129, chapters 1 and 15. EPA is not
approving Nebraska’s revised definition
of ‘‘solid waste’’ in title 129, chapter 1.
VI. Incorporation by Reference
In this rule, EPA is finalizing
regulatory text that includes
incorporation by reference. In
accordance with requirements of 1 CFR
51.5, EPA is finalizing the incorporation
by reference of the Nebraska Regulations
described in the amendments to 40 CFR
part 52 set forth below. EPA has made,
and will continue to make, these
materials generally available through
www.regulations.gov and at the EPA
Region 7 Office (please contact the
person identified in the FOR FURTHER
INFORMATION CONTACT section of this
preamble for more information).
Therefore, these materials have been
approved by EPA for inclusion in the
State Implementation Plan, have been
incorporated by reference by EPA into
that plan, are fully Federally enforceable
under sections 110 and 113 of the CAA
as of the effective date of the final
rulemaking of EPA’s approval, and will
be incorporated by reference by the
Director of the Federal Register in the
next update to the SIP compilation.2
VII. Statutory and Executive Order
Reviews
Under the Clean Air Act, the
Administrator is required to approve a
SIP submission that complies with the
provisions of the Act 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 action:
• Is not a significant regulatory action
subject to review by the Office of
Management and Budget under
Executive Orders 12866 (58 FR 51735,
October 4, 1993) and 13563 (76 FR 3821,
January 21, 2011);
2 62
PO 00000
FR 27968 (May 22, 1997).
Frm 00032
Fmt 4700
Sfmt 4700
• Is not an Executive Order 13771 (82
FR 9339, February 2, 2017) regulatory
action because SIP approvals are
exempted under Executive Order 12866.
• 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 (Public Law 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 Clean Air Act;
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).
In addition, 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).
The Congressional Review Act, 5
U.S.C. 801 et seq., as added by the Small
Business Regulatory Enforcement
Fairness Act of 1996, generally provides
that before a rule may take effect, the
agency promulgating the rule must
submit a rule report, which includes a
copy of the rule, to each House of the
Congress and to the Comptroller General
of the United States. EPA will submit a
report containing this action and other
required information to the U.S. Senate,
the U.S. House of Representatives, and
the Comptroller General of the United
States prior to publication of the rule in
E:\FR\FM\06APR1.SGM
06APR1
14765
Federal Register / Vol. 83, No. 67 / Friday, April 6, 2018 / Rules and Regulations
the Federal Register. A major rule
cannot take effect until 60 days after it
is published in the Federal Register.
This action is not a ‘‘major rule’’ as
defined by 5 U.S.C. 804(2).
Under section 307(b)(1) of the Clean
Air Act, petitions for judicial review of
this action must be filed in the United
States Court of Appeals for the
appropriate circuit by June 5, 2018.
Filing a petition for reconsideration by
the Administrator of this final rule does
not affect the finality of this action for
the purposes of judicial review nor does
it extend the time within which a
petition for judicial review may be filed,
and shall not postpone the effectiveness
of such rule or action. This action may
not be challenged later in proceedings to
enforce its requirements. (See section
307(b)(2)).
List of Subjects
PART 52—APPROVAL AND
PROMULGATION OF
IMPLEMENTATION PLANS
40 CFR Part 52
Environmental protection, Air
pollution control, Carbon monoxide,
Incorporation by reference,
Intergovernmental relations, Lead,
Nitrogen dioxide, Ozone, Particulate
matter, Reporting and recordkeeping
requirements, Sulfur oxides, Volatile
organic compounds.
1. The authority citation for part 52
continues to read as follows:
■
Authority: 42 U.S.C. 7401 et seq.
Subpart CC—Nebraska
40 CFR Part 70
Environmental protection,
Administrative practice and procedure,
Air pollution control, Intergovernmental
relations, Operating permits, Reporting
and recordkeeping requirements.
2. In § 52.1420, revise the section
heading and in the table in paragraph (c)
the entries ‘‘129–1’’ and ‘‘129–15’’ to
read as follows:
■
§ 52.1420
*
Dated: March 27, 2018.
Karen A. Flournoy,
Acting Regional Administrator, Region 7.
Identification of plan.
*
*
(c) * * *
*
*
For the reasons stated in the
preamble, EPA amends 40 CFR parts 52
and 70 as set forth below:
EPA—APPROVED NEBRASKA REGULATIONS
Nebraska
citation
State
effective
date
Title
EPA approval date
Explanation
STATE OF NEBRASKA
Department of Environmental Quality
Title 129—Nebraska Air Quality Regulations
129–1 ........
Definitions ...........................
5/13/14
4/6/18, [insert Federal
Register citation].
*
129–15 ......
*
Operating Permit Modifications; Reopening for
Cause.
*
5/13/14
*
4/6/18, [insert Federal
Register citation].
*
*
*
*
*
*
*
*
PART 70—STATE OPERATING PERMIT
PROGRAMS
3. The authority citation for part 70
continues to read as follows:
■
4. In appendix A to part 70 add
paragraph (o) under ‘‘Nebraska; City of
daltland on DSKBBV9HB2PROD with RULES
■
VerDate Sep<11>2014
20:57 Apr 05, 2018
Jkt 244001
*
*
*
*
*
*
*
Omaha; Lincoln-Lancaster County
Health Department’’ to read as follows:
Appendix A to Part 70—Approval
Status of State and Local Operating
Permits Programs
*
Authority: 42 U.S.C. 7401, et seq.
The proposed definition of ‘‘solid waste’’ is not approved into the SIP. The second sentence beginning
at ‘‘Solid waste’’ and ending at ‘‘discarded material’’,
is not approved into the SIP.
*
*
*
*
(o) The Nebraska Department of
Environmental Quality submitted revisions
to the Nebraska Administrative Code, title
129, chapter 1, ‘‘Definitions’’ and chapter 15,
‘‘Operating Permit Modifications; Reopening
for Cause’’ on July 14, 2014. The state
effective date is May 13, 2014. This revision
is effective June 5, 2018.
Nebraska; City of Omaha; Lincoln-Lancaster
County Health Department
*
*
BILLING CODE 6560–50–P
PO 00000
*
*
Frm 00033
*
Fmt 4700
*
Sfmt 9990
*
*
*
*
[FR Doc. 2018–07091 Filed 4–5–18; 8:45 am]
E:\FR\FM\06APR1.SGM
06APR1
Agencies
[Federal Register Volume 83, Number 67 (Friday, April 6, 2018)]
[Rules and Regulations]
[Pages 14762-14765]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-07091]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 52 and 70
[EPA-R07-OAR-2017-0485; FRL-9976-52-Region 7]
Approval of Nebraska Air Quality Implementation Plans, Operating
Permits Program, and 112(l) Program; Revision to Nebraska
Administrative Code
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA) is taking final
action to approve revisions to the State Implementation Plan (SIP),
Operating Permits Program, and 112(l) Program submitted on July 14,
2014, by the State of Nebraska. This action amends the SIP to revise
two chapters, ``Definitions'' and ``Operating Permit Modifications;
Reopening for Cause''. Specifically, these revisions incorporate by
reference the list of organic compounds exempt from the definition of
volatile organic compound (VOC) found in the Code of
[[Page 14763]]
Federal Regulations; notification requirements for the operating permit
program are being amended to be consistent with the Federal operating
permit program requirements; the definition of ``solid waste'' is being
revised by the state, however, because the state's definition is
inconsistent with the Federal definition, EPA is not approving this
definition into the SIP. Finally, the state is extending the process of
``off-permit changes'' to Class I operating permits. Additional
grammatical and editorial changes are being made in this revision.
Approval of these revisions will not impact air quality, ensures
consistency between the state and Federally-approved rules, and ensures
Federal enforceability of the state's rules.
DATES: This final rule is effective on May 7, 2018.
ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-R07-OAR-2017-0485. All documents in the docket are listed on
the https://www.regulations.gov website. 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, is not placed on the internet
and will be publicly available only in hard copy form. Publicly
available docket materials are available through https://www.regulations.gov or please contact the person identified in the FOR
FURTHER INFORMATION CONTACT section for additional information.
FOR FURTHER INFORMATION CONTACT: Mr. Gregory Crable, Environmental
Protection Agency, Air Planning and Development Branch, 11201 Renner
Boulevard, Lenexa, Kansas 66219 at (913) 551-7391, or by email at
[email protected].
SUPPLEMENTARY INFORMATION: Throughout this document ``we,'' ``us,'' and
``our'' refer to EPA. This section provides additional information by
addressing the following:
I. Background
II. What is being addressed in this document?
III. Have the requirements for approval of a SIP revision been met?
IV. EPA's Response to Comments
V. What action is EPA taking?
VI. Incorporation by Reference
VII. Statutory and Executive Order Reviews
I. Background
On October 5, 2017, EPA proposed to approve revisions to the SIP,
Operating Permits Program, and 112(l) Program for the State of
Nebraska. See 82 FR 46453. In conjunction with the October 5, 2017
notice of proposed rulemaking (NPR), EPA issued a direct final rule
(DFR) approving the revisions to the SIP, Operating Permits Program,
and the 112(l) Program. See 82 FR 46420. In the DFR, EPA stated that if
adverse comments were submitted to EPA by November 6, 2017, the action
would be withdrawn and not take effect. EPA received one adverse
comment prior to the close of the comment period. EPA withdrew the DFR
on November 28, 2017. See 82 FR 56173. This action is a final rule
based on the NPR.
II. What is being addressed in this document?
Nebraska's July 14, 2014, submission requested revisions to seven
chapters of ``Title 129-Nebraska Air Quality Regulations''. This action
will amend the SIP to include revisions to two of those chapters, title
129 of the Nebraska Administrative Code, chapter 1 ``Definitions'', and
chapter 15 ``Operating Permit Modifications; Reopening for Cause''. Of
the remaining five chapters, EPA previously approved revisions to two
of the chapters in separate direct final rulemakings published in the
Federal Register. Chapter 4, ``Ambient Air Quality Standards'' was
approved on October 11, 2016, and chapter 34 ``Emission Sources;
Testing; Monitoring'' was approved on October 7, 2016. EPA will take
action separately on two other chapters, chapter 20 ``Particulate
Emissions; Limits and Standards'' and chapter 18 ``New Performance
Standards''. The final chapter, chapter 28 ``Hazardous Air Pollutants;
Emissions Standards'', submitted as part of the July 14, 2014, SIP
submission, is not approved in the Nebraska SIP and therefore EPA will
take no further action for this chapter.
EPA is approving revisions to the Nebraska SIP and Operating
Permits Program in title 129, chapter 1 ``Definitions''. The definition
of VOC contained in section 160 of chapter 1 ``Definitions'' is being
revised. Specifically, section 160 of chapter 1 contains a definition
of VOC that provides exceptions to the definition based upon a list of
organic compounds, which have been determined to have negligible
photochemical reactivity. Because it is difficult to stay current in
regard to the list of compounds, the revision EPA is approving removes
the list at section 160, and references the list contained in the Code
of Federal Regulations at 40 CFR 51.100(s)(1) and (5). In addition,
revisions to chapter 1, section 139, are being made to the SIP and the
Operating Permits Program to change the notification requirements for
``section 502(b)(10) changes'' to require facilities to provide written
notification at least 7 days in advance, rather than 30 days. This
revision makes the notification requirements consistent with the
Federal operating permit program requirements. In addition, Nebraska
requested revisions to the definition of ``solid waste'' at chapter 1,
section 144, to make it consistent with the definition of ``solid
waste'' included in the Nebraska Environmental Protection Act and other
applicable regulations in Nebraska.\1\ Neb. Rev. Stat. 81-1502(26). The
definition as proposed by the Nebraska Department of Environmental
Quality (NDEQ) is not consistent with the definition of ``solid waste''
in Federal law and regulations. Therefore, EPA is not approving
Nebraska's proposed revision to the definition of ``solid waste'' into
the State Implementation Plan or Operating Permits Program. Finally,
other grammatical and numerical edits are being made in this chapter.
---------------------------------------------------------------------------
\1\ The definition of ``solid waste'' in the Nebraska
Environmental Protection Act was updated in 2013 as a result of
Legislative Bill 203 to exclude ``slag'' from the definition. This
revision further clarifies that ``slag'' is a by-product of value
and therefore is excluded from the definition of ``solid waste.''
---------------------------------------------------------------------------
EPA is approving revisions to the Nebraska SIP, Operating Permits
Program and 112(l) Program for chapter 15 ``Operating Permit
Modifications; Reopening for Cause'', which extends ``off-permit
changes'' to Class I and II operating permits as allowed under the
Federal program. Section 007 of chapter 15 is being revised and updated
allowing changes within a permitted facility without a permit revision
if the change meets certain specified criteria. The revised process
allows certain minor revisions to be made without requiring all
applicable administrative procedures for full permit issuance. These
changes ensure that chapter 15 conforms to applicable Federal
regulations. Finally, revisions to chapter 15 amend the minimum number
of days to submit a written notification of a change from thirty days
to seven days under certain circumstances when changing Class I and II
operating permits, and makes various grammatical revisions for clarity
and consistency purposes.
III. Have the requirements for approval of a SIP revision been met?
The state submission has met the public notice requirements for SIP
submissions in accordance with 40 CFR 51.102. The submission also
satisfied the completeness criteria of 40 CFR part 51, appendix V. The
revised chapters were placed on public notice and a
[[Page 14764]]
public hearing was held by the state on January 6, 2014, where no
comments were received. In addition, as explained in this preamble, the
revision meets the substantive SIP requirements of the CAA, including
section 110 and implementing regulations.
IV. EPA's Response to Comments
The public comment period on EPA's proposed rule opened October 5,
2017, the date of its publication in the Federal Register, and closed
on November 6, 2017. During this period, EPA received a comment from
one commenter.
Comment 1: The commenter stated that EPA must act on the state's
submitted request to change the definition of solid waste, and that EPA
does not have the discretionary authority to not act on state's
submission. The commenter stated that EPA is required to act on the
state's submission within a maximum of 18 months from the state's
submission and stated that the state's requested revisions to the
definition of solid waste was submitted in 2014, greater than 36 months
prior to the October 5, 2017, Federal Register notice. The commenter
further stated that EPA must disapprove the state's submittal regarding
the definition of solid waste as it is inconsistent with the Federal
rules as EPA outlined in its October 5, 2017, Federal Register notice.
Response 1: Section 110(k)of the CAA authorizes EPA to approve a
SIP submission in full, disapprove it in full, or approve it in part
and disapprove it in part, or conditionally approve it in full or in
part, depending on the extent to which such plan meets the requirements
of the CAA. This authority to approve state SIP submissions in
separable parts was included in the 1990 Amendments to the CAA to
overrule a decision in the Court of Appeals for the Ninth Circuit
holding that EPA could not approve individual measures in a SIP
submission without either approving or disapproving the plan as a
whole. See S. Rep. No. 101-228, at 22, 1990 U.S.C.C.A.N. 3385, 3408
(discussing the express overruling of Abramowitz v. EPA, 832 F.2d 1071
(9th Cir. 1987)).
EPA interprets its authority under section 110(k) of the CAA as
affording the Agency the discretion to approve, disapprove, or
conditionally approve, individual portions of Nebraska's SIP revision.
EPA views the SIP revisions to the definition of solid waste, as
severable from other portions of the SIP revision and interprets
section 110(k) as allowing it to act on individual severable portions
in a SIP submission. In short, EPA believes it has the discretion under
section 110(k) of the CAA to act upon the various individual portions
of the state's SIP revision, separately or together, as appropriate.
This discretion exists even when the deadline to act on the SIP
submission as a whole has passed. EPA will address the definition of
solid waste in a separate rulemaking action.
V. What action is EPA taking?
EPA is taking final action to amend the Nebraska SIP to approve
revisions to title 129, chapters 1 and 15. EPA is not approving
Nebraska's revised definition of ``solid waste'' in title 129, chapter
1.
VI. Incorporation by Reference
In this rule, EPA is finalizing regulatory text that includes
incorporation by reference. In accordance with requirements of 1 CFR
51.5, EPA is finalizing the incorporation by reference of the Nebraska
Regulations described in the amendments to 40 CFR part 52 set forth
below. EPA has made, and will continue to make, these materials
generally available through www.regulations.gov and at the EPA Region 7
Office (please contact the person identified in the For Further
Information Contact section of this preamble for more information).
Therefore, these materials have been approved by EPA for inclusion
in the State Implementation Plan, have been incorporated by reference
by EPA into that plan, are fully Federally enforceable under sections
110 and 113 of the CAA as of the effective date of the final rulemaking
of EPA's approval, and will be incorporated by reference by the
Director of the Federal Register in the next update to the SIP
compilation.\2\
---------------------------------------------------------------------------
\2\ 62 FR 27968 (May 22, 1997).
---------------------------------------------------------------------------
VII. Statutory and Executive Order Reviews
Under the Clean Air Act, the Administrator is required to approve a
SIP submission that complies with the provisions of the Act 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 action:
Is not a significant regulatory action subject to review
by the Office of Management and Budget under Executive Orders 12866 (58
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
Is not an Executive Order 13771 (82 FR 9339, February 2,
2017) regulatory action because SIP approvals are exempted under
Executive Order 12866.
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 (Public Law 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 Clean Air Act; 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).
In addition, 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).
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this action and
other required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in
[[Page 14765]]
the Federal Register. A major rule cannot take effect until 60 days
after it is published in the Federal Register. This action is not a
``major rule'' as defined by 5 U.S.C. 804(2).
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by June 5, 2018. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this action for the purposes of
judicial review nor does it extend the time within which a petition for
judicial review may be filed, and shall not postpone the effectiveness
of such rule or action. This action may not be challenged later in
proceedings to enforce its requirements. (See section 307(b)(2)).
List of Subjects
40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen
dioxide, Ozone, Particulate matter, Reporting and recordkeeping
requirements, Sulfur oxides, Volatile organic compounds.
40 CFR Part 70
Environmental protection, Administrative practice and procedure,
Air pollution control, Intergovernmental relations, Operating permits,
Reporting and recordkeeping requirements.
Dated: March 27, 2018.
Karen A. Flournoy,
Acting Regional Administrator, Region 7.
For the reasons stated in the preamble, EPA amends 40 CFR parts 52
and 70 as set forth below:
PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart CC--Nebraska
0
2. In Sec. 52.1420, revise the section heading and in the table in
paragraph (c) the entries ``129-1'' and ``129-15'' to read as follows:
Sec. 52.1420 Identification of plan.
* * * * *
(c) * * *
EPA--Approved Nebraska Regulations
----------------------------------------------------------------------------------------------------------------
State
Nebraska citation Title effective EPA approval date Explanation
date
----------------------------------------------------------------------------------------------------------------
STATE OF NEBRASKA
----------------------------------------------------------------------------------------------------------------
Department of Environmental Quality
----------------------------------------------------------------------------------------------------------------
Title 129--Nebraska Air Quality Regulations
----------------------------------------------------------------------------------------------------------------
129-1................ Definitions............ 5/13/14 4/6/18, [insert The proposed definition of
Federal Register ``solid waste'' is not
citation]. approved into the SIP. The
second sentence beginning
at ``Solid waste'' and
ending at ``discarded
material'', is not
approved into the SIP.
* * * * * * *
129-15............... Operating Permit 5/13/14 4/6/18, [insert ...........................
Modifications; Federal Register
Reopening for Cause. citation].
* * * * * * *
----------------------------------------------------------------------------------------------------------------
* * * * *
PART 70--STATE OPERATING PERMIT PROGRAMS
0
3. The authority citation for part 70 continues to read as follows:
Authority: 42 U.S.C. 7401, et seq.
0
4. In appendix A to part 70 add paragraph (o) under ``Nebraska; City of
Omaha; Lincoln-Lancaster County Health Department'' to read as follows:
Appendix A to Part 70--Approval Status of State and Local Operating
Permits Programs
* * * * *
Nebraska; City of Omaha; Lincoln-Lancaster County Health Department
* * * * *
(o) The Nebraska Department of Environmental Quality submitted
revisions to the Nebraska Administrative Code, title 129, chapter 1,
``Definitions'' and chapter 15, ``Operating Permit Modifications;
Reopening for Cause'' on July 14, 2014. The state effective date is
May 13, 2014. This revision is effective June 5, 2018.
* * * * *
[FR Doc. 2018-07091 Filed 4-5-18; 8:45 am]
BILLING CODE 6560-50-P