83 FR 30352 - Approval of Nebraska Air Quality Implementation Plans; Adoption of a New Chapter Under the Nebraska Administrative Code
ENVIRONMENTAL PROTECTION AGENCY Federal Register Volume 83, Issue 125 (June 28, 2018)
Federal Register Volume 83, Issue 125 (June 28, 2018)
| Page Range | 30352-30355 | |
| FR Document | 2018-13723 |
[Federal Register Volume 83, Number 125 (Thursday, June 28, 2018)] [Rules and Regulations] [Pages 30352-30355] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2018-13723] ----------------------------------------------------------------------- ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R07-OAR-2017-0386; FRL-9979-85--Region 7] Approval of Nebraska Air Quality Implementation Plans; Adoption of a New Chapter Under the Nebraska Administrative Code AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule. ----------------------------------------------------------------------- SUMMARY: The Environmental Protection Agency (EPA) is taking final action to approve the State Implementation Plan (SIP) revision submitted by the state of Nebraska on November 14, 2011. Nebraska is adding a new chapter titled ``Visibility Protection'' which provides Nebraska authority to implement Federal regulations relating to Regional Haze and Best Available Retrofit Technology (BART). The new chapter incorporates EPA's Guidelines for BART Determinations under the Regional Haze Rule. The revision to the SIP meets the visibility component of the Clean Air Act (CAA). DATES: This final rule is effective on July 30, 2018. ADDRESSES: EPA has established a docket for this action under Docket ID No. EPA-R07-OAR-2017-0386. 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: Greg 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 EPA received Nebraska's November 8, 2011, SIP submission. On October 5, 2017, EPA proposed to approve the SIP submission from the State of Nebraska. See 82 FR 46433. In conjunction with the October 5, 2017 notice of proposed rulemaking (NPR), EPA issued a direct final rule (DFR) approving the same SIP submission. See 82 FR 46415. However, in the DFR, EPA stated that if EPA received adverse comments by November 6, 2017, the action would be withdrawn and not take effect. EPA received one set of adverse comments prior to the close of the comment period. EPA withdrew the DFR on November 27, 2017. See 82 FR 55951. The revision to title 129, adding chapter 43, Visibility Protection, addressed in this action was originally proposed and approved during the September 8, 2006, Environmental Quality Council (ECQ) meeting. However, the revision was not approved by Attorney General's office. On August 17, 2007, an amended package was re- submitted to the EQC, at which time it was approved by both the EQC and the Attorney General's office. After the Governor's signature, the revision adding chapter 43 became effective on February 6, 2008. Chapter 43 was submitted to the EPA, as part of a larger SIP package on November 8, 2011. Some of the revisions submitted in November 2011, were withdrawn by the State for various reasons. The remaining revisions to title 129, except for [[Page 30353]] revisions adding chapter 43, were approved on October 7, 2016, (81 FR 69693). Chapter 43 is being addressed with this action. This final rule action will include the updated docket, address comments received, and finalize the approval of Nebraska's SIP submission. II. What is being addressed in this document? EPA is taking action to approve revisions to Nebraska's SIP that will amend title 129 of the Nebraska Administrative Code to include a rule addressing certain requirements related to regional haze rule of 1999 \1\. This proposed revision adds a new chapter, chapter 43, entitled ``Visibility Protection'', to title 129 which incorporates a portion of EPA Code of Federal Regulations under title 40 part 51 of EPA's Guidelines for BART determinations under the Regional Haze Rule. This new chapter provides the Nebraska Department of Environmental Quality (NDEQ) the authority to require sources to conduct BART determinations for the purpose of issuing BART permits. This revision to title 129 is consistent with Federal regulations related to Regional Haze and BART, adopting by reference the definitions for the Federal Regional Haze rule at 40 CFR 51.301 and adopting by reference, appendix Y to 40 CFR part 51, ``Guidelines for BART Determinations under the Regional Haze Rule.'' The revision to the SIP also meets the visibility component of the CAA section 110(a)(2)(J). Approval of these revisions will not impact air quality and will ensure consistency between the State and federally approved rules. --------------------------------------------------------------------------- \1\ Title 40 Code of Federal Regulation (CFR) 51.308. --------------------------------------------------------------------------- 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 chapter was placed on public notice and a public hearing was held by the State on July 13, 2007, where no comments were received. In addition, 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 one set of adverse comments, which are addressed below. Comment 1: The commenter stated that the EPA has improperly titled this action. The commenter elaborated by stating that if EPA is acting on a Regional Haze SIP from Nebraska, then it should not be calling this `New Chapter under Nebraska Code'. The commenter's concern was that the title was not descriptive or transparent. Finally, the commenter stated that the EPA's titling of this action could very well violate the administrative procedures act (APA), or at least the spirit of the APA. Response 1: By this action, EPA is not acting on a regional haze SIP. This rule gives NDEQ the authority to issue permits for best available retrofit technology or ``BART.'' EPA retained the title used by the state in describing its SIP, and that title accurately describes the action--addition of the new chapter 43. The Administrative Procedure Act at 5 U.S.C. 553(b)(1)-(3) states that the notification of the rule be published in the Federal Register and that the document shall include the time, place, and nature of the public rule making proceedings, the legal authority for the proposed rule, and either the terms or substance of the proposed rule or a description of the subjects and issues involved. This action meets the procedures outlined in the APA. The proposal document was published in the Federal Register. See 82 FR 46433. It provided a summary that clearly described that substance of the proposed rule, explaining that the addition of the new chapter provides Nebraska with ``authority to implement Federal regulations relating to Regional Haze and Best Available Retrofit Technology (BART) . . . [and] meets the visibility component of the Clean Air Act (CAA).'' Id. In addition, the document provided information on the process for submitting comments and explained the general rulemaking process EPA was using (i.e., the direct final rule with an accompany parallel proposal). That document also clearly stated that EPA ``explained our reasons for this action in the preamble to the direct final rule,'' id., thereby incorporating the information provided in the accompanying direct final rule preamble, and directing the reader where to find the document for the direct final rule within the Federal Register. In turn, the document for the direct final rule provided more detail on the substance of the SIP submittal and the legal authority for both Nebraska's submission and EPA's action on it. See 82 FR 46415 (which includes a section describing how the state's submission met various statutory and regulatory requirements and explaining that EPA could approve the submission because it is consistent with Federal Regional Haze regulations in 40 CFR part 51 and CAA section 110(a)(2)(j)). Comment 2: The commenter stated that EPA needs to repropose this action. The commenter stated that multiple documents in the docket were incomplete, specifically citing: ``1) the memo from NE that details the regional haze changes to chapter 43 has been cutoff, see docket document ending in 2017-0386-0012, page 4--this page ends in the middle of a sentence and does not include important information allowing me to evaluate and provide comment. 2) Document ending in 2017-0386-0016, page 5 is corrupt and page 6 is nonexistant [sic].'' The commenter was concerned that information was not able to be reviewed or commented on. Response 2: After review of the comments received and the EPA's docket for this action, the EPA agrees that the pages outlined by the commenter were missing. However, the missing pages highlighted by the commenter were not provided by the state as part of the state's SIP submission, was an administrative error, and were not used to support the EPA's action. To verify this statement, the EPA has followed up with the state of Nebraska. The state determined that the documents in the docket were the same as what was placed on review for public comment in Nebraska during the state's comment period. The referenced memorandum was a request for approval. It is not evidence of the governor's approval and therefore, is not relied upon for the approval of the SIP action. The attachment listed in the docket as 2017-0386- 0016 is a proposed SIP revision for chapter 5 of Nebraska's SIP. EPA took action on this portion of the submission on October 7, 2016 (see 81 FR 69693). Therefore, attachment 2017-0386-0016 of the docket for this action is not relied upon to support this action. Additionally, the state's submission included additional revisions that are not being acted upon in this action.\2\ When the EPA uploaded the docket for this action, additional attachments were included. For this action, the EPA relied upon the following specific pages of the outlined attachments: --------------------------------------------------------------------------- \2\ September 12, 2016, letter in the docket. --EPA-R07-OAR-2017-0386-0003--pages 1 through 3; [[Page 30354]] --EPA-R07-OAR-2017-0386-0004--page 1; --EPA-R07-OAR-2017-0386-0006--pages 1 through 12; --EPA-R07-OAR-2017-0386-0010--pages 5 through 6; --EPA-R07-OAR-2017-0386-0011--page 2; --EPA-R07-OAR-2017-0386-0013--page 2; --EPA-R07-OAR-2017-0386-0015--page 3; and --EPA-R07-OAR-2017-0386-0019--pages 1 through 4. All the documents EPA relied on were included in the docket at the time the Federal Register document was published. Comment 3: The commenter stated that the EPA failed to evaluate this action in regard to the March 27, 2017, executive order on energy independence and economic growth. EPA's requirement for states to adopt regional haze SIPs, and thus including chapter 43 in the SIP, will cause a significant impact on coal EGUs and eventually closure of coal EGUs in the state, causing economic hardship on the local communities. Nebraska's fiscal impact statement says, ``There is a substantial cost to BART-eligible sources for the required modeling under the BART program. As of now, it is unknown whether and what controls any source in Nebraska may have to install to comply with BART, but the cost of controls would be substantial.'' The requirement to comply with chapter 43 is significant. Response 3: Under the CAA, 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, the EPA's role is to approve state actions, provided that they meet the criteria of the CAA. The EPA cannot consider disapproving a SIP submission or require any changes based on the March 27, 2017, executive order. Comment 4: The commenter stated that it is unclear from the action whether EPA is approving the other chapters and revisions to other chapters into the SIP. EPA included multiple other rules in the docket; however, the rule making action only discusses chapter 43, which is merely three provisions long. Response 4: EPA acknowledges that the state's submittal referenced multiple additional chapters and revisions to the state's rules. Within the proposal for this action, the EPA clearly stated that it was proposing ``to take action to add chapter 43, `Visibility Protection.' '' 82 FR 46433. Within the EPA's proposal, no additional chapters were referenced for approval. This action finalizes the proposed action \3\ and does not include any additional chapters beyond chapter 43. As the EPA stated earlier, additional portions of the state's submittal were included in the docket for the proposed rule. As outlined in Nebraska's September 12, 2016, letter, portions of the state's submission were withdrawn. However, the EPA has kept the docket intact and added the September 12, 2016, letter to provide additional clarity on which portions of the submission that the EPA was requested to approve. However, in response to comment number 2, the EPA has provided specific pages of the docket on which the EPA relied for this action. --------------------------------------------------------------------------- \3\ 82 FR 46433 --------------------------------------------------------------------------- Comment 5: The commenter stated that the EPA did not evaluate the new regulation against the EPA's Regional Haze Rule nor did EPA show that this new rule meets the regional haze requirements. EPA also did not say whether or not approving this new rule means that Nebraska has an approved Regional Haze SIP. Response 5: This action is not specifically a Regional Haze SIP. This action is designed to show that NDEQ has the authority to implement BART procedures. This action was not required as part of Nebraska's Regional Haze SIP. The EPA partially approved and partially disapproved Nebraska's Regional Haze SIP on July 6, 2012. The full docket for that rulemaking can be found at EPA-R07-2012-0158-0051. Comment 6: The commenter stated that assuming this new rule is not a Regional Haze SIP and does not meet the requirements of the Regional Haze rule, EPA needs to require Nebraska to submit any permits issued to address BART under this new rule as source-specific SIP revisions as this rule is merely a generic-type rule that lays out a process by which sources will address BART related requirements. Response 6: As explained above, this action is not specifically a Regional Haze SIP, so the assumptions alleged in the comment are not relevant. This action is designed to show that NDEQ has the authority to implement BART procedures and it has been approved for that purposes. This action was not required as part of Nebraska's Regional Haze SIP, which the EPA partially approved and partially disapproved on July 6, 2012 (see rulemaking docket EPA-R07-2012-0158-0051). Comment 7: The commenter stated that the new chapter 43 and the revised chapter 1 do not include any Regional Haze related definitions such as the definition of BART, or the types of emission limitations or work practices which constitute BART for a given source. The commenter also stated that there was confusion on if EPA was acting on chapter 1 as part of this action. Response 7: As the EPA outlined in its proposed rule and explained above in response to comment 4, the EPA is only acting on chapter 43 in this action. EPA is not acting on revisions to chapter 1 in this action. Chapter 43 references the Federal BART requirements. The state is incorporating a portion of the Federal requirements, including definitions related to BART. V. What action is EPA taking? EPA is taking final action to revise the Nebraska SIP to add a new chapter, chapter 43. 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 in the next update to the SIP compilation.\4\ --------------------------------------------------------------------------- \4\ 62 FR 27968 (May 22, 1997). --------------------------------------------------------------------------- VII. Statutory and Executive Order Reviews Under the CAA, 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: [[Page 30355]]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 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). 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 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 CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by August 27, 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 in 40 CFR Part 52 Environmental protection, Air pollution control, Best available retrofit technology, Incorporation by reference, Intergovernmental relations, Nitrogen oxides, Particulate matter, Regional haze, Reporting and recordkeeping requirements, Sulfur dioxide, Visibility, Volatile organic compounds. Dated: June 13, 2018. James B. Gulliford, Regional Administrator, Region 7. For the reasons stated in the preamble, EPA amends 40 CFR part 52 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, the table in paragraph (c) is amended by revising the entry ``129-43'' to read as follows: Sec. 52.1420 Identification of plan. * * * * * (c) * * * EPA-APPROVED NEBRASKA REGULATIONS -------------------------------------------------------------------------------------------------------------------------------------------------------- State Nebraska citation Title effective date EPA Approval date Explanation -------------------------------------------------------------------------------------------------------------------------------------------------------- STATE OF NEBRASKA -------------------------------------------------------------------------------------------------------------------------------------------------------- Department of Environmental Quality -------------------------------------------------------------------------------------------------------------------------------------------------------- Title 129--Nebraska Air Quality Regulations -------------------------------------------------------------------------------------------------------------------------------------------------------- * * * * * * * 129-43........................... Visibility Protection.... 2/6/08 6/28/18, [insert Federal Register .................................... citation]. * * * * * * * -------------------------------------------------------------------------------------------------------------------------------------------------------- * * * * * [FR Doc. 2018-13723 Filed 6-27-18; 8:45 am] BILLING CODE 6560-50-P
![30352 Federal Register / Vol. 83, No. 125 / Thursday, June 28, 2018 / Rules and Regulations
affect the finality of this action for the Reporting and recordkeeping Authority: 42 U.S.C. 7401 et seq.
purposes of judicial review nor does it requirements, Sulfur oxides, Volatile
extend the time within which a petition organic compounds. ■ 2. In § 52.1220, the table in paragraph
for judicial review may be filed, and (e) is amended by adding an entry for
Dated: June 18, 2018.
shall not postpone the effectiveness of ‘‘Regional Haze Progress Report’’ to
Cathy Stepp, follow the entry titled ‘‘Regional Haze
such rule or action. This action may not
Regional Administrator, Region 5. Plan’’ to read as follows:
be challenged later in proceedings to
enforce its requirements. (See section 40 CFR part 52 is amended as follows:
§ 52.1220 Identification of plan.
307(b)(2).)
PART 52—APPROVAL AND * * * * *
List of Subjects in 40 CFR Part 52 PROMULGATION OF (e) * * *
Environmental protection, Air IMPLEMENTATION PLANS
pollution control, Incorporation by
reference, Intergovernmental relations, ■ 1. The authority citation for part 52
Nitrogen dioxide, Particulate matter, continues to read as follows:
EPA—APPROVED MINNESOTA NONREGULATORY PROVISIONS
State
Applicable submittal
geographic or
Name of nonregulatory SIP provision date/ EPA approved date Comments
nonattainment effective
area date
* * * * * * *
Regional Haze Progress Report .................... statewide .......... 12/30/2014 6/28/2018, [insert Federal Register citation]
* * * * * * *
* * * * * ADDRESSES: EPA has established a I. Background
[FR Doc. 2018–13825 Filed 6–27–18; 8:45 am] docket for this action under Docket ID EPA received Nebraska’s November 8,
BILLING CODE 6560–50–P No. EPA–R07–OAR–2017–0386. All 2011, SIP submission. On October 5,
documents in the docket are listed on 2017, EPA proposed to approve the SIP
the https://www.regulations.gov submission from the State of Nebraska.
ENVIRONMENTAL PROTECTION website. Although listed in the index, See 82 FR 46433. In conjunction with
AGENCY some information is not publicly the October 5, 2017 notice of proposed
available, i.e., CBI or other information rulemaking (NPR), EPA issued a direct
40 CFR Part 52 whose disclosure is restricted by statute. final rule (DFR) approving the same SIP
Certain other material, such as submission. See 82 FR 46415. However,
[EPA–R07–OAR–2017–0386; FRL–9979–
85—Region 7]
copyrighted material, is not placed on in the DFR, EPA stated that if EPA
the internet and will be publicly received adverse comments by
Approval of Nebraska Air Quality available only in hard copy form. November 6, 2017, the action would be
Implementation Plans; Adoption of a Publicly available docket materials are withdrawn and not take effect. EPA
New Chapter Under the Nebraska available through https:// received one set of adverse comments
Administrative Code www.regulations.gov or please contact prior to the close of the comment
the person identified in the FOR FURTHER period. EPA withdrew the DFR on
AGENCY: Environmental Protection INFORMATION CONTACT section for November 27, 2017. See 82 FR 55951.
Agency (EPA). additional information. The revision to title 129, adding
ACTION: Final rule. FOR FURTHER INFORMATION CONTACT: Greg chapter 43, Visibility Protection,
Crable, Environmental Protection addressed in this action was originally
SUMMARY: The Environmental Protection Agency, Air Planning and Development proposed and approved during the
Agency (EPA) is taking final action to Branch, 11201 Renner Boulevard, September 8, 2006, Environmental
approve the State Implementation Plan Lenexa, Kansas 66219 at (913) 551– Quality Council (ECQ) meeting.
(SIP) revision submitted by the state of 7391, or by email at crable.gregory@ However, the revision was not approved
Nebraska on November 14, 2011. epa.gov. by Attorney General’s office. On August
Nebraska is adding a new chapter titled 17, 2007, an amended package was re-
‘‘Visibility Protection’’ which provides SUPPLEMENTARY INFORMATION:
Throughout this document ‘‘we,’’ ‘‘us,’’ submitted to the EQC, at which time it
Nebraska authority to implement was approved by both the EQC and the
Federal regulations relating to Regional and ‘‘our’’ refer to EPA. This section
Attorney General’s office. After the
Haze and Best Available Retrofit provides additional information by
Governor’s signature, the revision
Technology (BART). The new chapter addressing the following:
adding chapter 43 became effective on
incorporates EPA’s Guidelines for BART I. Background February 6, 2008. Chapter 43 was
amozie on DSK3GDR082PROD with RULES
Determinations under the Regional Haze II. What is being addressed in this document? submitted to the EPA, as part of a larger
Rule. The revision to the SIP meets the III. Have the requirements for approval of a
SIP revision been met?
SIP package on November 8, 2011. Some
visibility component of the Clean Air of the revisions submitted in November
IV. EPA’s Response to Comments
Act (CAA). V. What action is EPA taking? 2011, were withdrawn by the State for
DATES: This final rule is effective on July VI. Incorporation by Reference various reasons. The remaining
30, 2018. VII. Statutory and Executive Order Reviews revisions to title 129, except for
VerDate Sep<11>2014 16:02 Jun 27, 2018 Jkt 244001 PO 00000 Frm 00068 Fmt 4700 Sfmt 4700 E:\FR\FM\28JNR1.SGM 28JNR1](https://thefederalregister.org/doc/83_FR_30477/page/1.svg)
![Federal Register / Vol. 83, No. 125 / Thursday, June 28, 2018 / Rules and Regulations 30353
revisions adding chapter 43, were Register, and closed on November 6, submission and EPA’s action on it. See
approved on October 7, 2016, (81 FR 2017. During this period, EPA received 82 FR 46415 (which includes a section
69693). Chapter 43 is being addressed one set of adverse comments, which are describing how the state’s submission
with this action. addressed below. met various statutory and regulatory
This final rule action will include the Comment 1: The commenter stated requirements and explaining that EPA
updated docket, address comments that the EPA has improperly titled this could approve the submission because it
received, and finalize the approval of action. The commenter elaborated by is consistent with Federal Regional Haze
Nebraska’s SIP submission. stating that if EPA is acting on a regulations in 40 CFR part 51 and CAA
Regional Haze SIP from Nebraska, then section 110(a)(2)(j)).
II. What is being addressed in this it should not be calling this ‘New
document? Comment 2: The commenter stated
Chapter under Nebraska Code’. The that EPA needs to repropose this action.
EPA is taking action to approve commenter’s concern was that the title The commenter stated that multiple
revisions to Nebraska’s SIP that will was not descriptive or transparent. documents in the docket were
amend title 129 of the Nebraska Finally, the commenter stated that the incomplete, specifically citing: ‘‘1) the
Administrative Code to include a rule EPA’s titling of this action could very memo from NE that details the regional
addressing certain requirements related well violate the administrative haze changes to chapter 43 has been
to regional haze rule of 1999 1. This procedures act (APA), or at least the cutoff, see docket document ending in
proposed revision adds a new chapter, spirit of the APA. 2017–0386–0012, page 4—this page
chapter 43, entitled ‘‘Visibility Response 1: By this action, EPA is not ends in the middle of a sentence and
Protection’’, to title 129 which acting on a regional haze SIP. This rule does not include important information
incorporates a portion of EPA Code of gives NDEQ the authority to issue allowing me to evaluate and provide
Federal Regulations under title 40 part permits for best available retrofit comment. 2) Document ending in 2017–
51 of EPA’s Guidelines for BART technology or ‘‘BART.’’ EPA retained 0386–0016, page 5 is corrupt and page
determinations under the Regional Haze the title used by the state in describing 6 is nonexistant [sic].’’ The commenter
Rule. This new chapter provides the its SIP, and that title accurately was concerned that information was not
Nebraska Department of Environmental describes the action—addition of the able to be reviewed or commented on.
Quality (NDEQ) the authority to require new chapter 43. Response 2: After review of the
sources to conduct BART The Administrative Procedure Act at
comments received and the EPA’s
determinations for the purpose of 5 U.S.C. 553(b)(1)–(3) states that the
docket for this action, the EPA agrees
issuing BART permits. This revision to notification of the rule be published in
that the pages outlined by the
title 129 is consistent with Federal the Federal Register and that the
commenter were missing. However, the
regulations related to Regional Haze and document shall include the time, place,
missing pages highlighted by the
BART, adopting by reference the and nature of the public rule making
commenter were not provided by the
definitions for the Federal Regional proceedings, the legal authority for the
state as part of the state’s SIP
Haze rule at 40 CFR 51.301 and proposed rule, and either the terms or
substance of the proposed rule or a submission, was an administrative error,
adopting by reference, appendix Y to 40 and were not used to support the EPA’s
CFR part 51, ‘‘Guidelines for BART description of the subjects and issues
involved. This action meets the action. To verify this statement, the EPA
Determinations under the Regional Haze has followed up with the state of
Rule.’’ The revision to the SIP also procedures outlined in the APA. The
proposal document was published in Nebraska. The state determined that the
meets the visibility component of the documents in the docket were the same
CAA section 110(a)(2)(J). Approval of the Federal Register. See 82 FR 46433.
It provided a summary that clearly as what was placed on review for public
these revisions will not impact air comment in Nebraska during the state’s
quality and will ensure consistency described that substance of the
proposed rule, explaining that the comment period. The referenced
between the State and federally memorandum was a request for
approved rules. addition of the new chapter provides
Nebraska with ‘‘authority to implement approval. It is not evidence of the
III. Have the requirements for approval Federal regulations relating to Regional governor’s approval and therefore, is not
of a SIP revision been met? Haze and Best Available Retrofit relied upon for the approval of the SIP
Technology (BART) . . . [and] meets the action. The attachment listed in the
The state submission has met the docket as 2017–0386–0016 is a
public notice requirements for SIP visibility component of the Clean Air
Act (CAA).’’ Id. In addition, the proposed SIP revision for chapter 5 of
submissions in accordance with 40 CFR Nebraska’s SIP. EPA took action on this
51.102. The submission also satisfied document provided information on the
process for submitting comments and portion of the submission on October 7,
the completeness criteria of 40 CFR part 2016 (see 81 FR 69693). Therefore,
51, appendix V. The revised chapter explained the general rulemaking
process EPA was using (i.e., the direct attachment 2017–0386–0016 of the
was placed on public notice and a docket for this action is not relied upon
public hearing was held by the State on final rule with an accompany parallel
proposal). That document also clearly to support this action.
July 13, 2007, where no comments were Additionally, the state’s submission
received. In addition, the revision meets stated that EPA ‘‘explained our reasons
for this action in the preamble to the included additional revisions that are
the substantive SIP requirements of the not being acted upon in this action.2
CAA, including section 110 and direct final rule,’’ id., thereby
incorporating the information provided When the EPA uploaded the docket for
implementing regulations. this action, additional attachments were
in the accompanying direct final rule
IV. EPA’s Response to Comments preamble, and directing the reader included. For this action, the EPA relied
amozie on DSK3GDR082PROD with RULES
The public comment period on EPA’s where to find the document for the upon the following specific pages of the
proposed rule opened October 5, 2017 direct final rule within the Federal outlined attachments:
the date of its publication in the Federal Register. In turn, the document for the —EPA–R07–OAR–2017–0386–0003—
direct final rule provided more detail on pages 1 through 3;
1 Title 40 Code of Federal Regulation (CFR) the substance of the SIP submittal and
51.308. the legal authority for both Nebraska’s 2 September 12, 2016, letter in the docket.
VerDate Sep<11>2014 16:02 Jun 27, 2018 Jkt 244001 PO 00000 Frm 00069 Fmt 4700 Sfmt 4700 E:\FR\FM\28JNR1.SGM 28JNR1](https://thefederalregister.org/doc/83_FR_30477/page/2.svg)
![Federal Register / Vol. 83, No. 125 / Thursday, June 28, 2018 / Rules and Regulations 30355
• Is not a significant regulatory action health or environmental effects, using extend the time within which a petition
subject to review by the Office of practicable and legally permissible for judicial review may be filed, and
Management and Budget under methods, under Executive Order 12898 shall not postpone the effectiveness of
Executive Orders 12866 (58 FR 51735, (59 FR 7629, February 16, 1994). such rule or action. This action may not
October 4, 1993) and 13563 (76 FR 3821, In addition, the SIP is not approved be challenged later in proceedings to
January 21, 2011); to apply on any Indian reservation land enforce its requirements. (See section
• Is not an Executive Order 13771 (82 or in any other area where EPA or an 307(b)(2)).
FR 9339, February 2, 2017) regulatory Indian tribe has demonstrated that a
action because SIP approvals are tribe has jurisdiction. In those areas of List of Subjects in 40 CFR Part 52
exempted under Executive Order 12866. Indian country, the rule does not have Environmental protection, Air
• Does not impose an information tribal implications and will not impose pollution control, Best available retrofit
collection burden under the provisions substantial direct costs on tribal technology, Incorporation by reference,
of the Paperwork Reduction Act (44 governments or preempt tribal law as Intergovernmental relations, Nitrogen
U.S.C. 3501 et seq.); specified by Executive Order 13175 (65
oxides, Particulate matter, Regional
• Is certified as not having a FR 67249, November 9, 2000).
haze, Reporting and recordkeeping
significant economic impact on a The Congressional Review Act, 5
requirements, Sulfur dioxide, Visibility,
substantial number of small entities U.S.C. 801 et seq., as added by the Small
Volatile organic compounds.
under the Regulatory Flexibility Act (5 Business Regulatory Enforcement
U.S.C. 601 et seq.); Fairness Act of 1996, generally provides Dated: June 13, 2018.
• Does not contain any unfunded that before a rule may take effect, the James B. Gulliford,
mandate or significantly or uniquely agency promulgating the rule must
Regional Administrator, Region 7.
affect small governments, as described submit a rule report, which includes a
in the Unfunded Mandates Reform Act copy of the rule, to each House of the For the reasons stated in the
of 1995 (Public Law 104–4); Congress and to the Comptroller General preamble, EPA amends 40 CFR part 52
• Does not have Federalism of the United States. EPA will submit a as set forth below:
implications as specified in Executive report containing this action and other
Order 13132 (64 FR 43255, August 10, required information to the U.S. Senate, PART 52—APPROVAL AND
1999); the U.S. House of Representatives, and PROMULGATION OF
• Is not an economically significant the Comptroller General of the United IMPLEMENTATION PLANS
regulatory action based on health or States prior to publication of the rule in
safety risks subject to Executive Order the Federal Register. A major rule ■ 1. The authority citation for part 52
13045 (62 FR 19885, April 23, 1997); cannot take effect until 60 days after it continues to read as follows:
• Is not a significant regulatory action is published in the Federal Register.
subject to Executive Order 13211 (66 FR This action is not a ‘‘major rule’’ as Authority: 42 U.S.C. 7401 et seq.
28355, May 22, 2001); defined by 5 U.S.C. 804(2).
• Is not subject to requirements of Under section 307(b)(1) of the CAA, Subpart CC—Nebraska
section 12(d) of the National petitions for judicial review of this
Technology Transfer and Advancement action must be filed in the United States ■ 2. In § 52.1420, the table in paragraph
Act of 1995 (15 U.S.C. 272 note) because Court of Appeals for the appropriate (c) is amended by revising the entry
application of those requirements would circuit by August 27, 2018. Filing a ‘‘129–43’’ to read as follows:
be inconsistent with the CAA; and petition for reconsideration by the § 52.1420 Identification of plan.
• Does not provide EPA with the Administrator of this final rule does not
discretionary authority to address, as affect the finality of this action for the * * * * *
appropriate, disproportionate human purposes of judicial review nor does it (c) * * *
EPA-APPROVED NEBRASKA REGULATIONS
State effective
Nebraska citation Title EPA Approval date Explanation
date
STATE OF NEBRASKA
Department of Environmental Quality
Title 129—Nebraska Air Quality Regulations
* * * * * * *
129–43 ....................... Visibility Protection ........................................ 2/6/08 6/28/18, [insert Federal
Register citation].
* * * * * * *
amozie on DSK3GDR082PROD with RULES
* * * * *
[FR Doc. 2018–13723 Filed 6–27–18; 8:45 am]
BILLING CODE 6560–50–P
VerDate Sep<11>2014 16:02 Jun 27, 2018 Jkt 244001 PO 00000 Frm 00071 Fmt 4700 Sfmt 4700 E:\FR\FM\28JNR1.SGM 28JNR1](https://thefederalregister.org/doc/83_FR_30477/page/4.svg)
Document Created: 2018-11-06 09:55:18
Document Modified: 2018-11-06 09:55:18
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Rules and Regulations | |
| Action | Final rule. | |
| Dates | This final rule is effective on July 30, 2018. | |
| Contact | Greg 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] | |
| FR Citation | 83 FR 30352 | |
| CFR Associated | Environmental Protection; Air Pollution Control; Best Available Retrofit Technology; Incorporation by Reference; Intergovernmental Relations; Nitrogen Oxides; Particulate Matter; Regional Haze; Reporting and Recordkeeping Requirements; Sulfur Dioxide; Visibility and Volatile Organic Compounds |
2025 Federal Register | Disclaimer | Privacy Policy
USC | CFR | eCFR