[Federal Register Volume 62, Number 197 (Friday, October 10, 1997)]
[Rules and Regulations]
[Pages 52948-52951]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-27017]
[[Page 52948]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[LA-14-1-7239; FRL-5905-7]
Approval and Promulgation of Air Quality Implementation Plans of
New Source Review (NSR) Implementation Plan Addressing NSR in
Nonattainment Areas; Louisiana; Louisiana Administrative Code (LAC),
Title 33, Environmental Quality, Part III. Air, Chapter 5. Permit
Procedures, Section 504, Nonattainment NSR Procedures
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The EPA is approving the State Implementation Plan (SIP)
revision, submitted by the State of Louisiana for the purpose of
meeting requirements of the Clean Air Act (the Act), as amended in
1990, with regard to NSR in areas that have not attained the National
Ambient Air Quality Standards (NAAQS). This approval action was
proposed in the Federal Register (FR) on October 6, 1995, and no
comments were received on the proposal.
EFFECTIVE DATE: This action is effective on November 10, 1997.
ADDRESSES: Copies of the documents relevant to this action are
available for public inspection during normal business hours at the
following locations. The interested persons wanting to examine these
documents should make an appointment with the appropriate office at
least 24 hours before the visiting day.
Environmental Protection Agency, Region 6, Multimedia Planning and
Permitting Division (6PD), 1445 Ross Avenue, suite 700, Dallas, Texas
75202-2733
Louisiana Department of Environmental Quality, H. B. Garlock Building,
7290 Bluebonnet Boulevard, Baton Rouge, Louisiana 70810
FOR FURTHER INFORMATION CONTACT: Mr. Richard A. Barrett, Air Permits
Section (6PD-R), Multimedia Planning and Permitting Division, EPA
Region 6, 1445 Ross Avenue, Dallas, Texas 75202-2733, telephone (214)
665-7227.
SUPPLEMENTARY INFORMATION:
I. Background
The air quality planning requirements for nonattainment new source
review are set out in part D of Title I of the Act, as amended in 1990.
The EPA has issued a ``General Preamble'' describing EPA's preliminary
views on how EPA intends to review SIPs and SIP revisions submitted
under part D; including those State submittals containing nonattainment
area NSR SIP requirements (see 57 FR 13498 (April 16, 1992)) and (57 FR
18070 (April 28, 1992)). Because EPA is describing its interpretations
here only in broad terms, the reader should refer to the General
Preamble for a more detailed discussion of the interpretations of part
D advanced in this action and the supporting rationale.
Prior to EPA approval of a State's NSR SIP submission, the State
may continue permitting only in accordance with the new statutory
requirements for permit applications completed after the relevant SIP
submittal date. This policy was explained in transition guidance
memoranda from John Seitz dated March 11, 1991, ``New Source Review
(NSR) Program Transitional Guidance,'' and September 3, 1992, ``New
Source Review (NSR) Program Supplemental Transitional Guidance on
Applicability of New Part D NSR Permit Requirements.''
II. Rulemaking Action
A. Procedural Background
The Act requires States to observe certain procedural requirements
in developing implementation plans and plan revisions for submission to
EPA. Section 110(a)(2) of the Act, 42 U.S.C. 7410(a)(2), provides that
each implementation plan submitted by a State must be adopted after
reasonable notice and public hearing. 1 Section 110(l) of
the Act similarly provides that each revision to an implementation plan
submitted by a State under the Act must be adopted by such State after
reasonable notice and public hearing.
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\1\ Section 172(c)(7) of the Act provides that plan provisions
for nonattainment areas shall meet the applicable provisions of
section 110(a)(2).
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After adequate public notice, the State of Louisiana held a public
hearing on December 30, 1992, to entertain public comment on the NSR
implementation plan, which replaced the emergency rules submitted to
EPA on November 10, 1992. Following the public hearing, the plan was
adopted by the State on February 20, 1993, and submitted to EPA on
March 3, 1993, as a proposed revision to the SIP. The State submitted
to EPA revisions for the Louisiana SIP to implement the NSR
requirements of the Act in nonattainment areas in Louisiana. Louisiana
made the SIP revision to LAC Title 33, Part III, Chapter 5. Permit
Procedures, by the addition of section 504. Nonattainment New Source
Review Procedures. The SIP revision was reviewed by EPA to determine
administrative completeness shortly after its submittal. The
completeness review was based upon the criteria as set out at 40 CFR
part 51, Appendix V. The submittal was found to be complete on July 10,
1993, and a letter dated August 3, 1993, was forwarded to the Governor
indicating the completeness of the submittal and the next steps to be
taken in the review process. Prior to EPA acting on these revisions,
the State submitted a notice of adoption and final rule on Regulation
LAC 33:III. Chapter 5, on November 15, 1993. That submittal included an
amended Section 504 in order to meet the requirements mandated by
sections 173 and 182 of the Act. This action applies to Section 504 of
the LAC.
In this action, EPA approves the Louisiana nonattainment NSR SIP
rules identified in this notice. Those sections submitted to EPA not
included in the revisions specifically addressed in this action will be
the subject of a future rulemaking. In this rulemaking action on the
Louisiana nonattainment NSR SIP, EPA has applied its interpretations,
taking into consideration the specific factual issues presented.
B. General Nonattainment NSR Requirements
The statutory requirements for nonattainment NSR SIPs and
permitting are found at sections 172 and 173.
The Act requires all States to have submitted, at a minimum, the
following nonattainment NSR provisions by November 15, 1992:
1. Provisions to assure that calculation of emissions offsets, as
required by section 173(a)(1)(A), are based on the same emissions
baseline used in the demonstration of reasonable further progress.
Louisiana has established provisions to satisfy this requirement in LAC
sections 504.F.4 and 504.F.5.
2. Provisions to allow, according to section 173(c)(1), offsets to
be obtained in another nonattainment area if: the area in which the
offsets are obtained has an equal or higher nonattainment
classification; and emissions from the nonattainment area, in which the
offsets are obtained, contribute to an NAAQS violation, in the area in
which the source would construct. Louisiana has established provisions
to satisfy this requirement in LAC Section 504.F.9.
3. Provisions to assure, according to section 173(c)(1), that any
emissions offsets obtained in conjunction with the issuance of a permit
to a new or modified source must be in effect and enforceable by the
time the new or modified source is to commence
[[Page 52949]]
operation. Louisiana has established provisions to satisfy this section
in LAC Section 504.F.3.
4. Provisions to assure that emissions increases, from new or
modified major stationary sources, are offset by real reductions in
actual emissions, as required by section 173(c)(1). Louisiana has
established provisions to satisfy this requirement in LAC Sections
504.D.3 and 504.F.7.
5. Provisions, according to section 173(c)(2), to prevent emissions
reductions otherwise required by the Act from being credited for
purposes of satisfying the part D offset requirements. Louisiana has
established provisions to satisfy this section in LAC Sections 504.F.5.
and 504.F.10.
6. Provisions, according to section 173(a)(5) that, as a
prerequisite to issuing any part D permit, the State will require an
analysis of alternative sites, sizes, production processes, and
environmental control techniques for proposed sources that demonstrates
the benefits of the proposed source significantly outweigh the
environmental and social costs imposed as a result of its location,
construction, or modification. Louisiana has established provisions to
satisfy this requirement in LAC Section 504.D.6.
7. Provisions, according to section 173(e), that allow any existing
or modified source that tests rocket engines or motors to use
alternative or innovative means to offset emissions increases from
firing and related cleaning, if four conditions are met: (a) the
proposed modification is for expansion of a facility already permitted
for such purposes; (b) the source has used all available offsets and
all reasonable means to obtain offsets and sufficient offsets are not
available; (c) the source has obtained a written finding by the
appropriate, sponsoring Federal agency that the testing is essential to
national security; and (d) the source will comply with an alternative
measure designed to offset any emissions increases not directly offset
by the source.
In lieu of imposing any alternative offset measures, the permitting
authority may impose an emission offset amounting to no more than 1.5
times the average cost of stationary control measures adopted in that
area during the previous three years. Louisiana has established
provisions to satisfy this requirement at LAC Section 504.D.7.
8. Provisions, according to section 173(a)(3), to assure that
owners or operators, of each proposed new or modified major stationary
source, demonstrate that all other major stationary sources, under the
same ownership in the State, are in compliance with the Act. Louisiana
has established provisions to satisfy this section at LAC Section
504.D.1. This provision is recodified and rewritten from LAC 33:III,
Chapter 5, Section 505.H.8., which was previously approved in the
Federal Register (47 FR 6015, February 10, 1982).
9. Provisions, according to section 173(a)(2), to assure that
permits for new and modified major stationary sources to construct and
operate may be issued if the proposed source is required to comply with
the lowest achievable emission rate. Louisiana has established
provisions to satisfy this requirement in LAC Section 504.D.2. This
provision is recodified and rewritten from LAC 33:III, Chapter 5,
Section 505.H.8., which was previously approved in the Federal Register
(47 FR 6015, February 10, 1982).
10. Additionally, the State must assure that no interpollutant
trading is allowed as defined in 40 CFR part 51, Appendix S, section
IV, condition 3. Louisiana has established provisions to satisfy this
requirement in LAC Section 504.F.1.
11. The public notice and participation requirements, previously
located in Section 504, have now been placed in LAC 33:III. Chapter 5.
Section 531, which will be acted on by EPA in a future rulemaking
action. These requirements were located in the March 3, 1993, submittal
and were subsequently moved in the November 15, 1993, submittal to
Section 531. Public participation requirements have previously been
approved in the SIP.
C. Ozone
The general nonattainment NSR requirements are found in sections
172 and 173 of the Act and must be met by all nonattainment areas.
Requirements for ozone that supplement or supersede these requirements
are found in subpart 2 of part D. In addition, subpart 2 includes
section 182(f) which states that requirements for major stationary
sources of volatile organic compounds (VOC) shall apply to major
stationary sources of oxides of nitrogen (NOx) unless the Administrator
makes certain determinations related to the benefits or contribution of
NOx control to air quality, ozone attainment, or ozone air quality.
States were required under section 182(a)(2)(C) to adopt new NSR rules
for ozone nonattainment areas by November 15, 1992.
Louisiana has established major source thresholds and offset ratios
for VOC and included provisions for NOX major stationary
sources as follows:
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Area classification Major source threshold Offset ratio minimum NOX provisions
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Marginal............................. 100 tpy................ 1.10 to 1.............. See paragraph below.
Moderate............................. 100 tpy................ 1.15 to 1.............. Identical to VOC.
Serious.............................. 50 tpy................. 1.20 to 1.............. See paragraph below.
Severe............................... 25 tpy................. 1.30 to 1.............. Identical to VOC.
Extreme.............................. Not applicable......... Not applicable......... Not applicable.
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The EPA approved a petition for exemption from NOX
requirements pursuant to section 182(f), for the marginal ozone
nonattainment area of Lake Charles (Calcasieu Parish), on May 22, 1997,
and which was published on May 29, 1997 (see 62 FR 29062); therefore,
NOX nonattainment NSR will not be required in that area.
Further, EPA approved the redesignation of the marginal ozone
nonattainment area of Lake Charles (Calcasieu Parish), to attainment
for ozone on April 10, 1997, and which was published on May 2, 1997
(see 62 FR 24036).
The EPA approved a petition for exemption from NOX
requirements pursuant to section 182(f), for the serious ozone
nonattainment area of Baton Rouge, on January 18, 1996, and which was
published on January 26, 1996 (see 61 FR 2438); therefore,
NOX nonattainment NSR will not be required in that area.
Louisiana has established all of the above requirements for all
other ozone nonattainment areas.
Additionally, for nonclassifiable (transitional or incomplete data)
ozone nonattainment areas, State rules for the marginal area
classification apply. For further information on nonclassifiable areas
see, ``General Preamble'' 57 FR 55624 (April 16, 1992), and the
``NOX supplement to the General Preamble'' 57 FR 13523
(November 25, 1993).
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In addition, Louisiana's plan submittal reflects appropriate
modification provisions, including a de minimis level of 25 tons.
D. Carbon Monoxide (CO)
The general part D NSR permit requirements apply in CO
nonattainment areas, and are supplemented by the CO requirements in
subpart 3 of part D.
Louisiana has established a major source threshold of 100 tons per
year, and a minimum offset ratio of greater than 1.00 to 1 for moderate
CO nonattainment areas. Louisiana has established a major source
threshold of 50 tpy, and a minimum offset ratio of greater than 1.00 to
1 for serious nonattainment areas.
Louisiana has no areas designated as nonattainment for CO at this
time.
E. Particulate Matter Less Than 10 Micrometers In Diameter (PM-10)
Pursuant to section 189(a)(2) 42 U.S.C. 7513a(a)(2), all States,
with a PM-10 nonattainment area classified as moderate, were required
to submit an NSR permit program SIP revision by June 30, 1992, or 18
months after the designation of such an area.
Louisiana has established major source thresholds, offset ratios,
modification significance levels, and PM-10 precursor provisions as
follows:
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Major source Offset ratio Precursor
Area classification threshold minimum Significance level provisions
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Moderate........................ 100 tpy........... Greater than 1 to 15 tpy............ See paragraph
1. below.
Serious......................... 50 tpy............ Greater than 1 to 15 tpy............ See paragraph
1. below.
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Since Louisiana has no areas designated as nonattainment for PM-10
at this time, EPA is approving the PM-10 NSR provisions for the limited
purpose of strengthening the SIP and not for satisfying the part D NSR
requirements for PM-10. If an area is designated nonattainment for PM-
10, then the State would be required to submit provisions for PM-10
precursors unless it has sought and obtained a determination by the EPA
under section 189(e).
F. Sulfur Dioxide (SO2)
States with SO2 nonattainment areas were required to
submit NSR implementation plans by May 15, 1992. States with areas that
are designated or redesignated as nonattainment after the Amendments
have 18 months to submit such plans.
Louisiana has established a major source threshold of 100 tpy, a
minimum offset ratio of greater than 1 to 1, and a modification
significance level of 40 tpy.
Louisiana has no areas designated as nonattainment for
SO2 at this time.
G. Lead
Generally, the date by which a plan must be submitted for an area
is triggered by the area's nonattainment designation. For areas
designated nonattainment for the primary lead NAAQS in effect at
enactment of the 1990 Amendments; under section 171(b), States must
submit SIPs which meet the applicable requirements of part D within 18
months of the date of enactment of the 1990 Amendments.
Louisiana has established a major source threshold of 100 tpy, a
minimum offset ratio of greater than 1 to 1, and a modification
significance level of 0.6 tpy.
Louisiana has no areas designated as nonattainment for Lead at this
time.
III. Final Action
The EPA is approving the plan revisions submitted on March 3, 1993,
as amended on November 15, 1993, regarding NSR. The State of Louisiana
has submitted a complete plan to implement the NSR provisions of part
D. Each of the program elements mentioned above were properly
addressed, with the exception of PM-10 precursor requirements. Since
Louisiana has no areas designated as nonattainment for PM-10 at this
time, EPA is approving the PM-10 NSR provisions for the limited purpose
of strengthening the SIP and not for satisfying the part D NSR
requirements for PM-10. If an area is designated nonattainment for PM-
10, then the State would be required to submit provisions for PM-10
precursors unless it has sought and obtained a determination by EPA
under section 189(e).
Those sections submitted to EPA, not included in the revisions
specifically addressed in this action, will be the subject of a future
rulemaking.
Louisiana LAC 33:III.Chapter 5.Section 504 is approvable under the
requirements for nonattainment area permitting regulations as outlined
in 40 CFR part 51 and in part D. These revisions incorporate
requirements of the Act for the construction and operation of new and
modified major stationary sources of air pollutants.
Nothing in this action should be construed as permitting or
allowing or establishing a precedent for any future request for
revision to any SIP. Each request for revision to the SIP shall be
considered separately in light of specific technical, economic, and
environmental factors and in relation to relevant statutory and
regulatory requirements.
IV. Executive Order (E.O.) 12866
The Office of Management and Budget has exempted this regulatory
action from E.O. 12866 review.
V. Regulatory Flexibility
Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA
must prepare a regulatory flexibility analysis assessing the impact of
any proposed or final rule on small entities. See 5 U.S.C. 603 and 604.
Alternatively, EPA may certify that the rule will not have a
significant impact on a substantial number of small entities. Small
entities include small businesses, small not-for-profit enterprises,
and government entities with jurisdiction over populations of less than
50,000.
The SIP approvals under section 110 and subchapter I, part D of the
Act do not create any new requirements but simply approve requirements
that the State is already imposing. Therefore, because the Federal SIP
approval does not impose any new requirements, I certify that it does
not have a significant impact on any small entities affected. Moreover,
due to the nature of the Federal-State relationship under the Act,
preparation of a flexibility analysis would constitute Federal inquiry
into the economic reasonableness of State action. The Act forbids EPA
to base its actions concerning SIPs on such grounds. See Union Electric
Co. v. U.S. EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C. 7410(a)(2).
VI. Unfunded Mandates
Under section 202 of the Unfunded Mandates Reform Act of 1995,
signed into law on March 22, 1995, EPA must prepare a budgetary impact
statement to accompany any proposed or final rule that includes a
Federal mandate that may result in estimated costs to State,
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local, or tribal governments in the aggregate; or to the private
sector, of $100 million or more. Under section 205, EPA must select the
most cost-effective and least burdensome alternative that achieves the
objectives of the rule and is consistent with statutory requirements.
Section 203 requires EPA to establish a plan for informing and advising
any small governments that may be significantly or uniquely impacted by
the rule.
The EPA has determined that this action does not include a Federal
mandate that may result in estimated costs of $100 million or more to
either State, local, or tribal governments in the aggregate, or to the
private sector. This Federal action approves preexisting requirements
under State or local law, and imposes no new requirements. Accordingly,
no additional costs to State, local, or tribal governments, or to the
private sector, result from this action.
VII. Submission to Congress and the General Accounting Office
Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business
Regulatory Enforcement Fairness Act of 1996, EPA submitted a report
containing this rule and other required information to the U.S. Senate,
the U.S. House of Representatives, and the Comptroller General of the
General Accounting Office prior to publication of this rule in today's
Federal Register. This rule is not a ``major rule'' as defined by 5
U.S.C. 804(2).
VIII. Petitions for Judicial Review
Under section 307(b)(1) of the Act, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by December 9, 1997. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of this rule for the purposes of judicial review nor does
it extend the time within which a petition for judicial review may be
filed, and shall not postpone the effectiveness of such rule or action.
This action may not be challenged later in proceedings to enforce its
requirements. See section 307(b)(2).
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Hydrocarbons, Incorporation by reference, Intergovernmental relations,
Lead, Nitrogen dioxide, Ozone, Particulate matter, Rreporting and
recordkeeping requirements, Sulfur dioxide, Volatile organic compounds.
Dated: September 30, 1997.
Jerry Clifford,
Acting Regional Administrator.
40 CFR part 52 is amended as follows:
PART 52--[AMENDED]
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401-7671q.
Subpart T--Louisiana
2. Section 52.970 is amended by adding paragraph (c)(68) to read as
follows:
Sec. 52.970 Identification of plan.
* * * * *
(c) * * *
(68) A revision to the Louisiana SIP addressing the nonattainment
NSR program for Louisiana was submitted by the Governor of Louisiana on
March 3, 1993, and November 15, 1993.
(i) Incorporation by reference.
(A) Revision to LAC, Title 33, Part III. Air, Chapter 5. Permit
Procedures, by the addition of Section 504. Nonattainment New Source
Review Procedures, as promulgated in the Louisiana Register, Volume 19,
Number 2, 176-183, February 20, 1993; effective February 20, 1993, and
submitted by the Governor on March 3, 1993.
(B) Revisions to LAC, Title 33, Part III. Air, Chapter 5. Permit
Procedures, Section 504. Nonattainment New Source Review Procedures,
Subsections: A., Applicability, Paragraphs A(1), A(2), A(3), A(4); D.,
Nonattainment New Source Requirements, Paragraph D(4); Delete G.,
Permit Procedures, Public Participation and Notification; Reletter H.,
Definitions, to G., and revise definitions for Major Modification
(paragraphs: a., c.iii, c.iv, c.v.(a)(b), c.vi, c.vii), Major
Stationary Source (paragraphs: a., d.i); Delete Table 1; Renumber Table
2, Major Stationary Source/Major Modification Emission Thresholds, to
Table 1, and revise Footnote 1., as promulgated in the Louisiana
Register, Volume 19, Number 11, 1420-1421, November 20, 1993; effective
November 20, 1993, and submitted by the Governor on November 4, 1993.
(ii) Additional material.
(A) Letter dated January 7, 1994, signed by the Governor of
Louisiana, which clarifies that section 504 is to be reviewed under the
SIP program.
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[FR Doc. 97-27017 Filed 10-9-97; 8:45 am]
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