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Approval and Promulgation of Air Quality Implementation Plans; Nebraska Update to Materials Incorporated by Reference

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Environmental Protection Agency (EPA).


Final rule; notice of administrative change.


EPA is updating the materials submitted by Nebraska that are incorporated by reference (IBR) into the state implementation plan (SIP). The regulations affected by this update have been previously submitted by the state agency and approved by EPA. This update affects the SIP materials that are available for public inspection at the Office of the Federal Register (OFR), Office of Air and Radiation Docket and Information Center, and the Regional Office.


This action is effective December 1, 2003.


SIP materials which are incorporated by reference into 40 CFR part 52 are available for inspection at the following locations: Environmental Protection Agency, Region VII, 901 North 5th Street, Kansas City, Kansas 66101; Office of Air and Radiation Docket and Information Center, Room B-108, 1301 Constitution Avenue, NW (Mail Code 6102T), Washington, DC 20460, and Office of the Federal Register, 800 North Capitol Street NW., Suite 700, Washington, DC.

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Evelyn VanGoethem at (913) 551-7659, or by e-mail at

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The SIP is a living document which the state can revise as necessary to address the unique air pollution problems in the state. Therefore, EPA from time to time Start Printed Page 67046must take action on SIP revisions containing new and/or revised regulations as being part of the SIP. On May 22, 1997 (62 FR 27968), EPA revised the procedures for incorporating by reference Federally-approved SIPs, as a result of consultations between EPA and the Office of Federal Register (OFR). The description of the revised SIP document, IBR procedures and “Identification of plan” format are discussed in further detail in the May 22, 1997, Federal Register document.

On February 12, 1999, EPA published a document in the Federal Register (64 FR 7091) beginning the new IBR procedure for Nebraska. Today EPA is updating the IBR material.

EPA is also making minor corrections to the table in § 52.1420(c) as follows:

On February 14, 1996 (61 FR 5701), EPA approved and incorporated by reference revisions to Lincoln-Lancaster County Air Pollution Control Program, Article 2, Section 9. We are correcting the state effective date for Section 9, Article 2 to reflect that previous approval.

On February 14, 1996 (61 FR 5701), EPA approved and incorporated by reference revisions to City of Omaha, Chapter 41, Article IV, for 41-61. We are correcting the entries for 41-61 to reflect that previous approval.

EPA has determined that today's rule falls under the “good cause” exemption in section 553(b)(3)(B) of the Administrative Procedures Act (APA) which, upon finding “good cause,” authorizes agencies to dispense with public participation and section 553(d)(3) which allows an agency to make a rule effective immediately (thereby avoiding the 30-day delayed effective date otherwise provided for in the APA). Today's rule simply codifies provisions which are already in effect as a matter of law in Federal and approved State programs. Under section 553 of the APA, an agency may find good cause where procedures are “impractical, unnecessary, or contrary to the public interest.” Public comment is “unnecessary” and “contrary to the public interest” since the codification only reflects existing law. Immediate notice in the CFR benefits the public by updating citations.

Statutory and Executive Order Reviews

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it 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).

This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045, “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant.

In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

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 rule 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 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 January 30, 2004. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

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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
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Dated: November 17, 2003.

Martha R. Steincamp,

Acting Regional Administrator, Region 7.

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Chapter I, title 40, Code of Federal Regulations, is amended as follows:

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1. The authority for citation for part 52 continues to read as follows:

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Authority: 42 U.S.C. 7401 et seq.

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Subpart CC—Nebraska

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2. In § 52.1420 paragraphs (b), (c), (d) and (e) are revised to read as follows:

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Identification of plan.
* * * * *
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(b) Incorporation by reference. (1) Material listed in paragraphs (c), (d) and (e) of this section with an EPA approval date prior to November 5, 2003, was approved for incorporation by reference by the Director of the Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Material is incorporated as it exists on the date of the approval, and notice of any change in the material will be published in the Federal Register. Entries in paragraphs (c), (d) and (e) of this section with EPA approval dates after November 5, 2003, will be incorporated by reference in the next update to the SIP compilation.

(2) EPA Region VII certifies that the rules/regulations provided by EPA in the SIP compilation at the addresses in paragraph (b)(3) are an exact duplicate of the officially promulgated state rules/regulations which have been approved as part of the SIP as of November 5, 2003.

(3) Copies of the materials incorporated by reference may be inspected at the Environmental Protection Agency, Region VII, Air Planning and Development Branch, 901 North 5th Street, Kansas City, Kansas 66101; the Office of the Federal Register, 800 North Capitol Street, NW., Suite 700, Washington, DC.; or at the EPA, Air and Radiation Docket and Information Center, Room B-108, 1301 Constitution Avenue, NW. (Mail Code 6102T), Washington, DC 20460.

(c) EPA-approved regulations.

EPA-Approved Nebraska Regulations

Nebraska citationTitleState effective dateEPA approval dateExplanation
Department of Environmental Quality
Title 129—Nebraska Air Quality Regulations
129-1Definitions11/20/0209/05/03, 68 FR 52694
129-2Definition of Major Source07/10/0207/08/03, 68 FR 40530
129-3Region and Subregions6/26/941/04/95, 60 FR 372
129-4Ambient Air Quality Standards04/01/02 07/10/0207/08/03, 68 FR 40530
129-5Operating Permit11/20/0209/05/03, 68 FR 52694Section 001.02 is not SIP approved.
129-6Emissions Reporting11/20/0209/05/03, 68 FR 52694
129-7Operating Permits—Application8/22/20005/29/02, 67 FR 37327
129-8Operating Permit Content8/22/20005/29/02, 67 FR 37327
129-9General Operating Permits for Class I and II Sources5/29/9510/18/95, 60 FR 53872
129-10Operating Permits for Temporary Sources9/7/971/20/00, 65 FR 3134
129-11Operating Permits—Emergency; Defense5/29/9510/18/95, 60 FR 53872
129-12Operating Permit Renewal and Expiration5/29/952/09/96, 61 FR 4899
129-13Class I Operating Permit—EPA Review; Affected States Review; Class II Permit5/29/9510/18/95, 60 FR 53872
129-14Permits—Public Participation5/29/9510/18/95, 60 FR 53872
129-15Operating Permit Modification; Reopening for Cause5/29/9510/18/95, 60 FR 53872
129-16Stack Heights; Good Engineering Practice (GEP)12/15/19985/29/02, 67 FR 37327
129-17Construction Permits—When Required07/10/0207/08/03, 68 FR 40530Refer to January 23, 2002, NDEQ letter to EPA regarding change to 129-17-014. Approved by EPA on May 29, 2002.
129-19Prevention of Significant Deterioration of Air Quality12/15/19985/29/02, 67 FR 37327
129-20Particulate Emissions; Limitations and Standards (Exceptions Due to Breakdowns or Scheduled Maintenance: See Chapter 35)04/01/02 07/10/0207/08/03, 68 FR 40530
129-21Controls for Transferring, Conveying, Railcar and Truck Loading at Rock Processing Operations in Cass County07/10/0207/08/03, 68 FR 40530
129-22Incinerators; Emission Standards9/7/971/20/00, 65 FR 3134
129-24Sulfur Compound Emissions, Existing Sources Emission Standards6/26/941/04/95, 60 FR 372
129-25Nitrogen Oxides (Calculated as Nitrogen Dioxide); Emissions Standards for Existing Stationary Sources9/7/971/20/00, 65 FR 3134
129-30Open Fires, Prohibited; Exceptions11/20/0209/05/03, 68 FR 52694
129-32Dust; Duty to Prevent Escape of6/26/941/04/95, 60 FR 372
129-33Compliance; Time Schedule for6/26/941/04/95, 60 FR 372
129-34Emission Sources; Testing; Monitoring8/22/20005/29/02, 67 FR 37327
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129-35Compliance; Exceptions Due to Startup, Shutdown, or Malfunction9/7/971/20/00, 65 FR 3134
129-36Control Regulations; Circumvention, When Excepted6/26/941/04/95, 60 FR 372
129-37Compliance; Responsibility6/26/941/04/95, 60 FR 372
129-38Emergency Episodes; Occurrence and Control, Contingency Plans6/26/941/04/95, 60 FR 372
129-39Visible Emissions from Diesel-powered Motor Vehicles6/26/941/04/95, 60 FR 372
129-40General Conformity5/29/952/12/96, 61 FR 5297
129-41General Provision12/15/19985/29/02, 67 FR 37327
129-42Consolidated with Chapter 415/29/952/09/96, 61 FR 4899
129-43Consolidated with Chapter 415/29/952/09/96, 61 FR 4899
129-44Consolidated with Chapter 415/29/952/09/96, 61 FR 4899
Appendix IEmergency Emission Reductions6/26/941/04/94, 60 FR 372
Appendix IIHazardous Air Pollutants (HAPS)9/7/971/20/00, 65 FR 3134
Title 115—Rules of Practice and Procedure
115-1Definitions of Terms8/08/931/04/95, 60 FR 372
115-2Filing and Correspondence8/08/931/04/95, 60 FR 372
115-3Public Records Availability8/08/931/04/95, 60 FR 372
115-4Public Records Confidentiality8/08/931/04/95, 60 FR 372
115-5Public Hearings8/08/931/04/95, 60 FR 372
115-6Voluntary Compliance8/08/931/04/95, 60 FR 372
115-7Contested Cases8/08/931/04/95, 60 FR 372
115-8Emergency Proceeding Hearings8/08/931/04/95, 60 FR 372
115-9Declaratory Rulings8/08/931/04/95, 60 FR 372
115-10Rulemaking8/08/931/04/95, 60 FR 372
115-11Variances8/08/931/04/95, 60 FR 372
Lincoln-Lancaster County Air Pollution Control Program Article 1—Administration and Enforcement
Section 1Intent5/16/952/14/96, 61 FR 5701
Section 2Unlawful Acts—Permits Required5/16/952/14/96, 61 FR 5701
Section 3Violations—Hearing—Orders5/16/952/14/96, 61 FR 5701
Section 4Appeal Procedure5/16/952/14/96, 61 FR 5701
Section 5Variance5/16/952/14/96, 61 FR 5701
Section 7Compliance—Actions to Enforce—Penalties for Non-Compliance5/16/952/14/96, 61 FR 5701
Section 8Procedure for Abatement5/16/952/14/96, 61 FR 5701
Section 9Severability5/16/952/14/96, 61 FR 5701
Article 2—Regulations and Standards
Section 1Definitions8/11/981/20/00, 65 FR 3134
Section 2Major Sources—Defined8/11/981/20/00, 65 FR 3134
Section 4Ambient Air Quality Standards5/16/952/14/96, 61 FR 5701
Section 5Operating Permits—When Required8/11/981/20/00, 65 FR 3134
Section 6Emissions Reporting—When Required8/11/981/20/00, 65 FR 3134
Section 7Operating Permits—Application8/11/981/20/00, 65 FR 3135
Section 8Operating Permit—Content8/11/981/20/00, 65 FR 3135
Section 9General Operating Permits for Class I and II Sources5/16/952/14/96, 61 FR 5701
Section 10Operating Permits for Temporary Services5/16/952/14/96, 61 FR 5701
Section 11Emergency Operating Permits—Defense5/16/952/14/96, 61 FR 5701
Section 12Operating Permit Renewal and Expiration5/16/952/14/96, 61 FR 5701
Section 14Permits—Public Participation5/16/952/14/96, 61 FR 5701
Section 15Operating Permit Modifications—Reopening for Cause8/11/981/20/00, 65 FR 3135
Section 16Stack—Heights—Good Engineering Practice (GEP)5/16/952/14/96, 61 FR 5701
Section 17Construction Permits—When Required8/11/981/20/00, 65 FR 3135
Section 19Prevention of Significant Deterioration of Air Quality5/16/952/14/96, 61 FR 5701
Section 20Particulate Emissions—Limitations and Standards3/31/971/20/00, 65 FR 3135
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Section 22Incinerator Emissions5/16/952/14/96, 61 FR 5701
Section 24Sulfur Compound Emissions—Existing Sources—Emission Standards5/16/952/14/96, 61 FR 5701
Section 25Nitrogen Oxides (Calculated as Nitrogen Dioxide)—Emissions Standards for Existing Stationary Sources5/16/952/14/96, 61 FR 5701
Section 32Dust—Duty to Prevent Escape of3/31/971/20/00, 65 FR 3135
Section 33Compliance—Time Schedule for5/16/952/14/96, 61 FR 5701
Section 34Emission Sources—Testing—Monitoring5/16/952/14/96, 61 FR 5701
Section 35Compliance—Exceptions Due to Startup Shutdown or Malfunction5/16/952/14/96, 61 FR 5701
Section 36Control Regulations—Circumvention—When Expected5/16/952/14/96, 61 FR 5701
Section 37Compliance—Responsibility of Owner/Operator Pending Review by Director5/16/952/14/96, 61 FR 5701
Section 38Emergency Episodes—Occurrence and Control— Contingency Plans5/16/952/14/96, 61 FR 5701
AppendixEmergency Emission Reduction Regulations5/16/952/14/96, 61 FR 5701
City of Omaha
Chapter 41—Air Quality Control
Article I In General
41-2Adoption of State Regulations with Exceptions4/1/981/20/00, 65 FR 3135
41-4Enforcement—Generally5/29/952/14/96, 61 FR 5701
41-5Same Health Department5/29/952/14/96, 61 FR 5701
41-6Residential Exemptions5/29/952/14/96, 61 FR 5701
41-9Penalties5/29/952/14/96, 61 FR 5701
41-10Civil Enforcement5/29/952/14/96, 61 FR 5701
Article II—Permitting of Air Contaminant Sources
41-23Prerequisite to Approval5/29/952/14/96, 61 FR 5701
41-27Signature Required; Guarantee5/29/952/14/96, 61 FR 5701
41-38Funds5/29/952/14/96, 61 FR 5701
41-40Fees—When Delinquent5/29/952/14/96, 61 FR 5701
Article IV—Waste Incinerators Division 1. Generally
41-60Definitions5/29/952/14/96, 61 FR 5701
41-61Violations5/29/952/14/96, 61 FR 5701
Article IV—Waste Incinerators Division 2. Emissions
41-70New or Modified Facilities5/29/952/14/96, 61 FR 5701
41-71Existing Facilities5/29/952/14/96, 61 FR 5701
41-72Emission Testing5/29/952/14/96, 61 FR 5701
Article IV—Waste Incinerators Division 3. Design
41-80New or Modified Waste Incinerators5/29/952/14/96, 61 FR 5701
41-81Existing Incinerators5/29/952/14/96, 61 FR 5701

(d) EPA-approved state source-specific permits.

Epa-Approved Nebraska Source—Specific Permits

Name of sourcePermit No.State effective dateEPA approval dateExplanation
(1) Gould, Inc.67711/9/831/31/85, 50 FR 4510
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(2) Asarco, Inc.15206/6/963/20/97, 62 FR 13329The EPA did not approve paragraph 19.

(e) EPA-approved nonregulatory provisions and quasi-regulatory measures.

EPA-Approved Nebraska Nonregulatory Provisions

Name of nonregulatory SIP provisionApplicable geographic or nonattainment areaState submittal dateEPA approval dateExplanation
(1) Air Quality Implementation PlanStatewide1/28/725/31/72, 37 FR 10842
(2) Confirmation That the State Does Not Have Air Quality Control Standards Based on Attorney General's Disapproval.Statewide4/25/725/31/72, 37 FR 10842
(3) Request for Two-Year Extension to Meet the Primary NOX Standard.Omaha1/24/727/27/72, 37 FR 15080
(4) Clarification of Section 11 of the State's Plan.Statewide2/16/727/27/72, 37 FR 15080
(5) Letters Clarifying the Application of the States Emergency Episode Rule.Omaha10/2/725/14/73, 38 FR 12696
(6) Analysis of Ambient Air Quality in Standard Metropolitan Statistical Areas and Recommendations for Air Quality Maintenance AreasOmaha, Lincoln, Sioux City5/9/746/2/75, 40 FR 23746
(7) Amended State Law (LB1029) Giving the Department of Environmental Quality Authority to Require Monitoring of Emissions, Reporting of Emissions and Release of Emissions DataStatewide2/10/766/23/76, 41 FR 25898
(8) Air Monitoring PlanStatewide6/19/8110/6/81, 46 FR 49122
(9) TSP Nonattainment PlanDouglas and Cass Counties9/25/80 8/9/823/28/83, 48 FR 12715
(10) Plan for Intergovernmental Consultation and Coordination and for Public Notification.Statewide8/9/827/5/83, 48 FR 30631
(11) Lead PlanStatewide except Omaha1/9/81 8/5/81 1/11/8311/29/83, 48 FR 53697The plan was approved except that portion pertaining to Omaha.
(12) Lead Nonattainment PlanOmaha7/24/84 11/17/83 8/1/841/31/85, 50 FR 4510
(13) CO Nonattainment PlanOmaha4/3/859/15/86, 51 FR 32640
(14) CO Nonattainment PlanLincoln4/3/859/19/86, 51 FR 33264
(15) Revised Lead Nonattainment PlanOmaha2/2/878/3/87, 52 FR 28694
(16) Letter Pertaining to NOX Rules and Analysis Which Certifies the Material Became Effective on February 20, 1991.Statewide3/8/917/2/91, 56 FR 30335State submittal date is date of the letter.
(17) Small Business Assistance ProgramStatewide11/12/928/30/93, 58 FR 45452
(18) Class II Operating Permit Program Including Letter Committing to Submit Information to RACT/BACT/LAER Clearinghouse, Letter Regarding Availability of State Operating Permits to the EPA and Specified Emissions Limits in Permits, and Letter Regarding the Increase in New Source Review Thresholds.Statewide2/16/941/4/95, 60 FR 372
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(19) Letter from City of Omaha Regarding Authority to Implement Section 112(l) and Letter from the State Regarding Rule Omissions and PSD Program Implementation.Omaha, Lincoln9/13/95, 11/9/952/14/96, 61 FR 5725State submittal dates are dates of letters.
(20) Lincoln Municipal Code, Chapter 8.06.140 and 8.06.145.City of Lincoln2/5/991/20/00, 65 FR 3135
(21) Lancaster Co. Resolution 5069, Sections 12 and 13.Lancaster County2/5/991/20/00, 65 FR 3135
(22) Nebraska Lead Maintenance SIPOmaha1/18/014/20/01, 66 FR 20199
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[FR Doc. 03-29692 Filed 11-28-03; 8:45 am]