[Federal Register Volume 61, Number 200 (Tuesday, October 15, 1996)]
[Rules and Regulations]
[Pages 53639-53643]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-26204]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 52 and 81
[LA-27-1-7166a, NM-30-1-7299a, FRL-5612-7]
Clean Air Act (Act) Approval and Promulgation of State
Implementation Plans; Prevention of Significant Deterioration (PSD);
Louisiana and New Mexico
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: In this document, EPA is approving revisions to the PSD
permitting regulations which were submitted as revisions to the State
Implementation Plans (SIP) for Louisiana and New Mexico. The revisions
were submitted to address the replacement of the total suspended
particulate (TSP) increments, with increments for PM-10 (particulate
matter 10 micrometers or less in diameter). The EPA is approving the
SIP revisions because they are consistent with the corresponding
Federal regulations. The EPA is also removing the TSP area designation
tables and revising and/or adding PM-10 area designation tables in 40
CFR part 81 for these States. With the PM-10 increments becoming
effective in these areas, the TSP area designations no longer serve any
useful purpose relative to PSD.
DATES: This action is effective on December 16, 1996, unless notice is
postmarked by November 14, 1996 that someone wishes to submit adverse
or critical comments. If the effective date is delayed, timely notice
will be published in the Federal Register (FR).
ADDRESSEES: Comments should be mailed to Jole C. Luehrs, Chief, Air
Permits Section (6PD-R), U.S. EPA Region 6, 1445 Ross Avenue, Dallas,
Texas 75202-2733. Copies of the State's submittal and other information
relevant to this action are available for inspection during normal
hours at the following locations:
Environmental Protection Agency, Region 6, Air Permits Section (6PD-R),
1445 Ross Avenue, Suite 700, Dallas, Texas 75202-2733
Air and Radiation Docket and Information Center, Environmental
Protection Agency, 401 M Street, S.W., Washington, D.C. 20460
New Mexico Environment Department, Air Monitoring and Control Strategy
Bureau, 1190 St. Francis Drive, Room So. 2100, Santa Fe, New Mexico
87503
Louisiana Department of Environmental Quality, Office of Air Quality,
7290 Bluebonnet Boulevard, Baton Rouge, Louisiana 70810
Anyone wishing to review this information at the Region 6 EPA
office
[[Page 53640]]
should contact the person below to schedule an appointment 24 hours in
advance.
FOR FURTHER INFORMATION CONTACT: Mr. Samuel R. Mitz, Air Permits
Section (6PD-R), Environmental Protection Agency, Region 6, 1445 Ross
Avenue, Dallas, Texas 75202-2733, telephone (214) 665-8370.
SUPPLEMENTARY INFORMATION:
Background
In this document, EPA is acting on revisions to the PSD permitting
programs for the States of Louisiana and New Mexico. The revisions were
generally made to address the following changes in the Federal PSD
permitting requirements in 40 CFR 51.166:
A. The replacement of the TSP increments with increments for PM-10,
which were promulgated by EPA on June 3, 1993 (58 FR 31622-31638); and
B. The promulgation of revisions to the Federal PSD permitting
requirements regarding utility pollution control projects that States
could voluntarily adopt into their PSD regulations, which were
promulgated by EPA on July 21, 1992 (57 FR 32314-32339).
Specifically, the following submittals were made:
The Governor of Louisiana submitted revisions to Louisiana
Administrative Code 33:III. Chapter 5, Section 509 on March 22, 1995,
to incorporate changes in the Federal PSD permitting regulations for
PM-10 increments.
The Governor of New Mexico submitted revisions to 20 New Mexico
Administrative Code 2.74 on June 26, 1995, to incorporate changes in
the Federal PSD permitting regulations for PM-10 increments.
This document evaluates the States' submittals for conformity with
the corresponding Federal regulations and the requirements of the Act.
In addition, this document provides justification regarding the removal
of the TSP designation tables in 40 CFR part 81 for Louisiana and New
Mexico.
This Action
A. Analysis of State Submissions
1. 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 provides that each implementation
plan submitted by a State must be adopted after reasonable notice and
public hearing. 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.
The EPA also must determine whether a submittal is complete and
therefore warrants further EPA review and action (see section 110(k)(1)
and 57 FR 13565, April 16, 1992). The EPA's completeness criteria for
SIP submittals are set out at 40 CFR part 51, appendix V. The EPA
attempts to make completeness determinations within 60 days of
receiving a submission. However, a submittal is deemed complete by
operation of law under section 110(k)(1)(B) if a completeness
determination is not made by EPA within six months after receipt of the
submission.
Public hearings to entertain public comment of the initial PSD SIP
revisions were held by Louisiana on November 29, 1994, and by New
Mexico on April 21, 1995. After these respective public hearings, the
rule revisions were adopted by each State. The rule revisions were
formally submitted to EPA for approval on March 8, 1995, from Louisiana
and June 26, 1995, from New Mexico. Each SIP revision was reviewed by
EPA to determine completeness shortly after its submittal, in
accordance with the completeness criteria referenced above. The
submittals were found to be complete, and letters dated July 20, 1995,
were forwarded to Louisiana and New Mexico indicating the completeness
of each submittal and the next steps to be taken in the processing of
each SIP submittal.
2. Evaluation of States' Submittals
a. PM-10 Increment Revisions. As discussed above, EPA promulgated
increments for PM-10 on June 3, 1993 (see 58 FR 31622-31638). The EPA
promulgated revisions to the Federal PSD permitting regulations in 40
CFR 52.21, as well as the PSD permitting requirements that State
programs must meet in order to be approved into the SIP in 40 CFR
51.166. The EPA or its delegated State programs were required to begin
implementation of the increments by June 3, 1994, while the
implementation date for States with SIP-approved PSD permitting
programs (including Louisiana and New Mexico) will be the date on which
EPA approves each revised State PSD program containing the PM-10
increments. In accordance with 40 CFR 51.166(a)(6)(i), each State with
SIP-approved PSD programs was required to adopt the PM-10 increment
requirements within nine months of the effective date (or by March 3,
1995). For further background regarding the PM-10 increments, see the
June 3, 1993, FR document.
(1) Louisiana's Submittal. In order to address the PM-10
increments, the State of Louisiana revised the following sections of
its PSD permitting regulations in the Regulation Louisiana
Administrative Code: 33:III.Chapter 5, Section 509. The EPA has
reviewed these revisions and has found that the revisions address all
of the required regulatory revisions for PM-10 increments promulgated
by EPA on June 3, 1993.
(2) New Mexico's Submittal. In order to address the PM-10
increments, the State of New Mexico revised the following sections of
its PSD permitting regulations in the 20 New Mexico Administrative Code
2.74. The EPA has reviewed these revisions and has found that the
revisions address all of the required regulatory revisions for PM-10
increments promulgated by EPA on June 3, 1993. Note that the State
elected not to adopt 40 CFR 51.166(i)(12), which provides an exemption
from addressing the new PM-10 increments for sources who have submitted
a PSD permit application which the State has determined to be complete
before the PM-10 increments take effect. New Mexico's rules do not
contain this grandfathering clause, which is acceptable.
b. TSP Area Deletions. Section 107(d) of the 1977 Amendments to the
Act authorized each State to submit to the Administrator a list
identifying those areas which, (1) do not meet a national ambient air
quality standard (NAAQS) (nonattainment areas), (2) cannot be
classified on the basis of available ambient data (unclassifiable
areas), and (3) have ambient air quality levels better than the NAAQS
(attainment areas). In 1978, EPA published the original list of all
area designations pursuant to section 107(d)(2) (commonly referred to
as ``section 107 areas''), including those designations for TSP, in 40
CFR part 81.
One of the purposes stated in the Act for the section 107 areas is
for implementation of the statutory requirements for PSD. The PSD
provisions of part C of the Act generally apply in all section 107
areas that are designated attainment or unclassifiable (40 CFR
52.21(i)(3)). Under the PSD program, the air quality in an attainment
or unclassifiable area is not allowed to deteriorate beyond prescribed
maximum allowable increases in pollutant concentrations (i.e.,
increments).
The EPA revised the primary and secondary NAAQS for particulate
matter on July 1, 1987 (52 FR 24634), eliminating TSP as the indicator
for the NAAQS and replacing it with the PM-
[[Page 53641]]
10 indicator. However, EPA did not delete the section 107 areas for TSP
listed in 40 CFR part 81 at that time because there were no increments
for PM-10 promulgated at that time.1 States were required to
continue implementing the TSP increments in order to prevent
significant deterioration of particulate matter air quality until the
PM-10 increments replaced the TSP increments. With the State adoption
and implementation of the PM-10 increments becoming effective, the TSP
area designations generally serve no useful purpose relative to the PSD
program. Instead, the PM-10 area designations now serve to properly
identify those areas where air quality is better than the NAAQS, i.e.,
``PSD areas,'' and to provide the geographic link necessary for
implementation of the PM-10 increments.2
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\1\ The EPA did not promulgate new PM-10 increments
simultaneously with the promulgation of the PM-10 NAAQS. Under
section 166(b) of the Act, EPA is authorized to promulgate new
increments ``not more than 2 years after the date of promulgation of
* * * standards.'' Consequently, EPA temporarily retained the TSP
increments, as well as the section 107 areas for TSP.
\2\ Note that 40 CFR part 81 does not presently list all section
107 areas for PM-10. Only those areas designated ``nonattainment''
appear in the State listings. This is because under the listing
published by EPA in the Federal Register on November 6, 1991, EPA's
primary objective was to identify nonattainment areas designated as
such by operation of law upon enactment of the 1990 Amendments. For
States having no PM-10 nonattainment areas designated by operation
of law, EPA did not include a new PM-10 listing. Nevertheless,
section 107(d)(4)(B)(iii) mandates that all areas, not designated
nonattainment for PM-10 by operation of law, are designated
unclassifiable. The PM-10 increments apply in any area designated
unclassifiable for PM-10.
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Thus, in the June 3, 1993, FR document in which EPA promulgated the
PM-10 increments, EPA stated that, for States with SIP-approved PSD
programs, EPA would delete the TSP area designations at the same time
EPA approves the revision to a State's plan incorporating the PM-10
increments. For delegated PSD programs or in States where EPA
administers the PSD program, the TSP area designations were to be
deleted after the PM-10 increments became effective in those States
(i.e., June 3, 1994). In deleting any State's TSP area designations,
EPA must ensure that the deletion of those designations will not result
in a relaxation of any control measures that ultimately protect the PM-
10 NAAQS.
(1) Louisiana's TSP Areas. As stated above, Louisiana has adopted
and submitted adequate PSD revisions for PM-10 increments. In addition,
Louisiana had no TSP areas designated as nonattainment. Thus, deletion
of the TSP area designations will not result in relaxation of any TSP
controls that would impact the PM-10 NAAQS. Since Louisiana also has no
PM-10 nonattainment areas designated in the State, there is no PM-10
designation table currently in 40 CFR part 81 for Louisiana. Therefore,
EPA is deleting the TSP area designation table and is creating a PM-10
area designation table in 40 CFR 81.319. The EPA will retain for PM-10
the three section 107 areas listed in the current TSP table for
Louisiana, consistent with the June 3, 1993, FR document which requires
retention of the TSP baseline areas for PM-10 unless revised by the
State in accordance with 40 CFR 51.166.
(2) New Mexico's TSP Areas. New Mexico has one area listed in 40
CFR part 81 as nonattainment for the TSP standards but which is not
designated nonattainment for PM-10. Portions of the City of Albuquerque
were designated nonattainment for the primary TSP standard. The City of
Albuquerque is located in Bernalillo County, which is under the
jurisdiction of the Albuquerque/ Bernalillo County Air Quality Board.
Consequently, the TSP designations for areas in Bernalillo County will
be retained until EPA has approved PM-10 increments for Bernalillo
County. All remaining areas in New Mexico are in attainment status for
TSP. Consequently, EPA believes it is appropriate at this time to
delete the TSP designations for these areas. If the State subsequently
revises any of the particulate matter control strategies currently in
the SIP for these areas, it must submit a SIP revision to EPA for
approval that must meet all applicable requirements of the Act. The EPA
will retain for PM-10 this section 107 area listed in the current TSP
table for New Mexico, consistent with the June 3, 1993, FR document
which requires retention of the TSP baseline areas for PM-10 unless
revised by the State in accordance with 40 CFR 51.166.
As stated above, the State has adopted adequate provisions in its
PSD program for the implementation of the PM-10 increments. Therefore,
EPA is deleting all parts of the State's existing TSP designation table
in 40 CFR 81.332 except for those parts addressing areas in Bernalillo
County.
Final Action
Based on the review and justification provided in this document,
EPA is approving the SIP revisions regarding PSD permitting submitted
by the States of Louisiana and New Mexico on March 22, 1995, and June
26, 1995, respectively.
In addition, EPA is deleting the TSP area designation tables and
revising the PM-10 area designation tables in 40 part 81 as follows:
A. For Louisiana, EPA is deleting the TSP area designation table
and is creating a PM-10 designation table listing the ``AQCR 019''
area, the ``AQCR 022'' area, and the ``AQCR 106'' area as
unclassifiable for PM-10 in 40 CFR 81.319.3
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\3\ At this time, the EPA is designating the PM-10 areas as
unclassifiable, rather than attainment, to be consistent with
section 107(d)(4)(B) of the Act which stated that any area which was
not initially designated as nonattainment for PM-10 shall be
designated unclassifiable. The EPA will consider redesignating these
areas to ``attainment'' status at a later date. Both
``unclassifiable'' and ``attainment'' areas have the same status for
PSD purposes.
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B. For New Mexico, EPA is deleting all parts of the State's
existing TSP designation table in 40 CFR 81.332 except for those parts
addressing areas in Bernalillo County.
In these States' PM-10 area designation tables, EPA is clarifying
that the ``Rest of State'' areas denote a single area designation for
PSD baseline area purposes.
The EPA is publishing this action without prior proposal because
EPA views this as a noncontroversial amendment and anticipates no
adverse comments. However, in a separate document in this FR
publication, EPA is proposing to approve the SIP revision should
adverse or critical comments be filed. This action will be effective
December 16, 1996, unless adverse or critical comments are postmarked
by November 14, 1996. If EPA receives such comments, this action will
be withdrawn before the effective date by publishing a subsequent
document that will withdraw the final action. All public comments
received will then be addressed in a subsequent final rule based on
this action serving as a proposed rule. The EPA will not institute a
second comment period on this action. Any parties interested in
commenting on this action should do so at this time. If no such
comments are received on this action, the public is advised that this
action will be effective December 16, 1996.
Regulatory Process
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 (5 U.S.C. 603 and 604).
Alternatively, under 5 U.S.C. 605(b), EPA may certify that the rule
will not have a significant impact on a substantial number of small
entities (see 46 FR 8709). Small entities include small businesses,
small not-for-profit enterprises, and governmental entities
[[Page 53642]]
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 small entities. Moreover, due to the nature of
the Federal-State relationship under the Act, preparation of a
regulatory flexibility analysis would constitute Federal inquiry into
the economic reasonableness of State action. The Act forbids EPA from
basing its actions concerning SIPs on such grounds. Union Electric Co.
v. U.S. E.P.A., 427 U.S. 246, 256-66 (S.Ct. 1976); 42 U.S.C.
7410(a)(2).
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 16, 1996. Filing a petition for
reconsideration of this final rule by the Administrator does not affect
the finality of this rule for purposes of judicial review; nor does it
extend the time within which a petition for judicial review may be
filed, or postpone the effectiveness of this rule. This action may not
be challenged later in proceedings to enforce its requirements (see
section 307(b)(2)).
Nothing in this action shall be construed as permitting, allowing,
or establishing a precedent for any future request for a 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.
Unfunded Mandates
Under sections 202, 203, and 205 of the Unfunded Mandates Reform
Act of 1995, signed into law on March 22, 1995, EPA must undertake
various actions in association with proposed or final rules that
include a Federal mandate that may result in estimated costs of $100
million or more to the private sector, or to State, local, or tribal
governments in the aggregate.
Through submission of this SIP or plan revision approved in this
action, the State and any affected local or tribal governments have
elected to adopt the program provided for under section 110 of the Act.
The rules and commitments approved in this action may bind State,
local, and tribal governments to perform certain actions and also
require the private sector to perform certain duties. To the extent
that the rules and commitments being approved by this action will
impose or lead to the imposition of any mandate upon the State, local,
or tribal governments, either as the owner or operator of a source or
as a regulator, or would impose or lead to the imposition of any
mandate upon the private sector, EPA's action will impose no new
requirements; such sources are already subject to these requirements
under State law. Accordingly, no additional costs to State, local, or
tribal governments, or to the private sector, result from this action.
Therefore, EPA has determined that this final action does not include a
mandate that may result in estimated costs of $100 million or more to
State, local, or tribal governments in the aggregate or to the private
sector.
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 the rule in today's
Federal Register. This rule is not a ``major rule'' as defined by 5
U.S.C. 804(2).
Office of Management and Budget (OMB) Review
This action has been classified as a Table 3 action for signature
by the Regional Administrator under the procedures published in the
Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by a
July 10, 1995, memorandum from Mary Nichols, Assistant Administrator
for Air and Radiation. The OMB has exempted this regulatory action from
Executive Order 12866 review.
List of Subjects
40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Particulate matter, Reporting and recordkeeping
requirements, Volatile organic compounds.
40 CFR Part 81
Air pollution control, National parks, Wilderness areas.
Dated: August 27, 1996.
Jerry Clifford,
Acting Regional Administrator (6RA-D).
40 CFR Parts 52 and 81 are 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)(69) to read as
follows:
Sec. 52.970 Identification of plan.
* * * * *
(c) * * *
(69) The Governor of Louisiana submitted revisions to Regulation
Louisiana Administrative Code on March 22, 1995 to incorporate changes
in the Federal PSD permitting regulations for PM-10 increments.
(i) Incorporation by reference.
(A) Revisions to Regulation Louisiana Administrative Code
33:III.Chapter 5, Section 509, effective February 20, 1995: Section B.
Definitions: Baseline Date; Section B. Definitions: Net Emissions
Increase; Section D. Ambient Air Increments; Section E.8.a.; Section
K.2.; and Section P.4.
* * * * *
Subpart GG--New Mexico
3. Section 52.1620 is amended by adding paragraph (c)(62) to read
as follows:
Sec. 52.1620 Identification of plan.
* * * * *
(c) * * *
(62) The Governor of New Mexico submitted revisions to 20 New
Mexico Administrative Code 2.74 on June 26, 1995, to incorporate
changes in the Federal PSD permitting regulations for PM-10 increments.
(i) Incorporation by reference.
(A) Revisions to 20 New Mexico Administrative Code 2.74, effective
July 20, 1995.
PART 81--[AMENDED]
1. The authority citation for part 81 continues to read as follows:
Authority: 42 U.S.C. 7401-7671q.
Secs. 81.319, 81.332 [Amended]
2. Section 81.319 is amended by removing the TSP table.
3. Section 81.319 is further amended by adding a new table for PM-
10 to read as follows:
Sec. 81.319 Louisiana.
* * * * *
[[Page 53643]]
Louisiana--PM-10
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Designation Classification
Designated area -----------------------------------------------------------------------------
Date Type Date Type
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AQCR 019.......................... 11/15/90 Unclassifiable
AQCR 022.......................... 11/15/90 Unclassifiable
AQCR 106.......................... 11/15/90 Unclassifiable
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4. Section 81.332 is amended by revising the TSP table to read as
follows:
Sec. 81.332 New Mexico.
* * * * *
New Mexico--TSP
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Does not meet Better than
Designated area Does not meet secondary Cannot be national
primary standards standards classified standards
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AQCR 152:
Bernalillo County:
Portions of City of
Albuquerque.................. X ................ ................ .................
Remainder of County........... ................. ................ ................ X
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[FR Doc. 96-26204 Filed 10-11-96; 8:45 am]
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