[Federal Register Volume 60, Number 67 (Friday, April 7, 1995)]
[Proposed Rules]
[Pages 17750-17756]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-8608]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 70
[LA-001; FRL-5185-4]
Clean Air Act Proposed Full Approval of Operating Permits
Program; Louisiana Department of Environmental Quality
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed full approval.
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SUMMARY: The EPA proposes to rescind the proposed interim approval of
the Louisiana Operating Permits Program published in the Federal
Register (see 59 FR 43797, August 25, 1994) (hereafter Interim Approval
Notice) and propose full approval of the Operating Permits Program as
revised by the State's November 16, 1994, submittal. The proposed
interim approval in the Interim Approval Notice was based upon the
Operating Permits Program submitted by the Governor of Louisiana for
the Louisiana Department of Environmental Quality (LDEQ) and received
by the EPA on November 15, 1993. On November 16, 1994, the State
submitted material revisions adequately addressing the issues raised by
the EPA in the Interim Approval Notice and adding insignificant
activities criteria to the Louisiana Operating Permits Program. This
revised Operating Permits Program will provide for the issuance of
operating permits to all major stationary sources and to certain other
sources with the exception of sources on Indian Lands, in compliance
with the Federal requirements.
DATES: Comments on this proposed action must be received in writing by
May 8, 1995.
ADDRESSES: Written comments on this action should be addressed to Ms.
Jole C. Luehrs, Chief, New Source Review Section, at the EPA Region 6
Office listed below. Copies of the State's submittal and other
supporting information used in developing the proposed full approval
are available for inspection during normal business hours at the
following locations. Interested persons wanting to examine these
documents should make an appointment with the appropriate office at
least 24 hours before visiting day.
Environmental Protection Agency, Region 6, Air Programs Branch (6T-
AN), 1445 Ross Avenue, Suite 700, Dallas, Texas 75202-2733. Louisiana
Department of Environmental Quality, Office of Air Quality, 7290
Bluebonnet Boulevard, P.O. Box 82135, Baton Rouge, Louisiana 70884-
2135.
FOR FURTHER INFORMATION CONTACT: Joyce P. Stanton, New Source Review
Section, Environmental Protection Agency, Region 6, 1445 Ross Avenue,
Suite 700, Dallas, Texas 75202-2733, telephone 214-665-7218.
SUPPLEMENTARY INFORMATION:
I. Background and Purpose
A. Introduction
As required under title V of the Clean Air Act as amended on
November 15, 1990 (``the Act''), the EPA has promulgated rules which
define the minimum elements of an approvable State Operating Permits
Program and the corresponding standards and procedures by which the EPA
will approve, oversee, and withdraw approval of a State Operating
Permits Program (see 57 Federal Register 32250, July 21, 1992). These
rules are codified at 40 Code of Federal Regulations (CFR) part 70.
Title V requires States to develop, and submit to the EPA, programs for
issuing these operating permits to all major stationary sources and to
certain other sources.
The Act requires that States develop and submit these Operating
Permits Programs to the EPA by November 15, 1993, and that the EPA act
to approve or disapprove each Operating Permits Program within one year
after receiving the submittal. The EPA's Operating Permits Program
review occurs pursuant to section 502 of the Act and the part 70
regulations, which together outline criteria for approval and
disapproval. The EPA proposed interim approval in the Interim Approval
Notice on August 25, 1994, for the Operating Permits Program submitted
by the LDEQ on November 15, 1993. However, 40 CFR 70.4(e)(2) allows the
Administrator to extend the review period of a State's submittal if the
State's submission is materially altered during the one-year review
period. This additional review period may not extend beyond one year
following receipt of the revised submission. On November 16, 1994, the
EPA received material changes to Louisiana's Operating Permits Program
from the Governor of Louisiana on behalf of the LDEQ. These changes
included regulations adopted to add insignificant activities criteria,
and to address issues raised in the Interim Approval Notice. The EPA
will act expeditiously to promulgate a final notice on the State's
revised Operating Permits Program within one year of the November 16,
1994, revised submittal. The publication of this proposal allows the
public the opportunity to review and comment on the changes contained
in the revised submittal.
At this time, the EPA proposes to rescind the interim approval
proposed [[Page 17751]] in the Interim Approval Notice and instead
proposes full approval of the Operating Permits Program as revised by
the November 16, 1994, submittal. The Interim Approval Notice had a 30-
day comment period which was extended an additional 30 days to October
26, 1994 (see 59 FR 50537, October 4, 1994). The comments received on
issues discussed in the Interim Approval Notice during that comment
period are discussed in this notice together with a discussion of the
revisions to the State's Operating Permits Program received on November
16, 1994.
II. Proposed Action and Implications
A. Analysis of State Submission
1. Confidentiality Provisions. In the Interim Approval Notice, the
EPA stated that, while the State statute provided that certain
environmental information such as air emissions data may not be held
confidential, it was not clear whether these confidentiality provisions
could be interpreted to protect the contents of the permit itself from
disclosure. The Interim Approval Notice stated that the LDEQ must
either submit an Attorney General's Opinion demonstrating that the
State's statute is interpreted not to allow any portion of a permit to
be held confidential, consistent with section 503(e) of the Act, or
revise Louisiana Administrative Code (LAC) 33:III.Chapter 5, section
517.F (permit regulations) to clarify that no portion of the permit may
be held confidential. In response to this statement in the Interim
Approval Notice, the LDEQ commented that it did not currently protect
from disclosure as confidential any permit issued under LAC
33.III.Chapter 5, and that the LDEQ has adopted a conservative policy
in interpreting the reference to ``emissions data'' in a manner which
limits the grant of confidentiality under the Louisiana statute. The
LDEQ stated, however, that in the interest of cooperation, it would
revise its regulations. The November 16, 1994, submittal contained a
revision to LAC 33:III.517.F which requires that no permit or portion
of a permit issued to a source in accordance with Louisiana's Operating
Permits Program shall be held confidential. This regulatory revision
has adequately addressed the EPA's concern regarding confidentiality
and is no longer an interim approval issue.
2. Requirement that No Major Source be Exempt from Part 70
Requirements Because a Research and Development (R&D) Facility is Co-
located with the Source. In the Interim Approval Notice, the EPA
explained that LAC 33:III.501.B.7 allows the permitting authority to
consider a certain complex within a facility as a source separate from
the facility with which it is co-located, provided that the complex is
used solely for R&D of new processes and/or products, and is not
engaged in the manufacture of products for commercial sale. The EPA
noted that this regulation was inconsistent with 40 CFR 70.3 which
requires that a State's Operating Permits Program provide for the
permitting of all major sources, and 40 CFR 70.4(b)(3)(i) which
requires that the State demonstrate adequate legal authority to issue
permits and assure compliance with each applicable requirement by all
part 70 sources.
The Interim Approval Notice explained that 40 CFR 70.2 requires all
sources located on contiguous or adjacent properties, under common
control, and belonging to a single major industrial grouping, to be
considered as the same source. The EPA concluded that the Louisiana
permit regulations could cause certain part 70 major sources, as
defined in 40 CFR 70.2, or portions of such sources with the same
Standard Industrial Classification (SIC) code, to be treated as
separate sources. This could cause some part 70 sources to be exempted
from coverage by part 70 permits which must ensure that all part 70
requirements for those sources are met.
The Interim Approval Notice went on to state that for full part 70
approval, the LDEQ would be required to revise its permit regulations
and demonstrate that no source, or portion of a source, which would be
defined as major under 40 CFR 70.2 would be exempted from part 70
requirements because an R&D facility is co-located with the source.
One commenter objected to the EPA's proposed action related to the
R&D issue and stated that by limiting the scope of the exemption to R&D
facilities with different SIC codes, the EPA has virtually eliminated
any relief for R&D facilities. The commenter stated that, since R&D
activities are so limited in time, scale, and actual production,
subjecting these activities to the Operating Permits Program
requirements unnecessarily burdened research by companies as well as
the State's Operating Permits Programs. This commenter also requested
that any guidance concerning R&D facilities be published for public
comment as part of future part 70 rulemakings. The EPA's position
continues to be that 40 CFR part 70 allows R&D facilities to be treated
separately in cases where the R&D facility has a different two-digit
SIC code and is not a support facility.
The LDEQ commented that its regulatory provision cited as deficient
on this point had been incorporated into the State's Operating Permits
Program based on the State's understanding of guidance provided by the
EPA in the preamble to the part 70 regulations. In the Interim Approval
Notice, the EPA explained that the preamble language was intended to
clarify the flexibility in 40 CFR part 70 for allowing R&D facilities
to be treated separately from the manufacturing facilities with which
they are co-located where the R&D facility has a different two-digit
SIC code and is not a support facility. This approach is consistent
with the treatment of R&D facilities in the New Source Review program.
In response to the Interim Approval Notice and in an effort to receive
full approval of Louisiana's Operating Permits Program, the LDEQ has
revised LAC 33:III.501.B.7 to include a provision that an R&D facility
may be considered separately provided the facility has a different two-
digit SIC code from, and is not a support facility of, the source with
which it is co-located. This revision was included in the November 16,
1994, submittal. This change adequately addresses the EPA's concern and
the State's treatment of R&D facilities is no longer an interim
approval issue.
3. Acid Rain Application Deadlines. In the Interim Approval Notice,
the EPA discussed LAC 33.III.507.C.1.b which contained the deadlines
for submittal of acid rain permit applications. Although this section
purported to cover all relevant dates for submittal of acid rain permit
applications, this section did not contain the deadlines required by 40
CFR 72.30(b)(2)(iii) for new units and for units that did not serve a
generator with a name plate capacity greater than 25 Megawatts
electrical on November 15, 1990, but which served such a generator
after November 15, 1990. In the Interim Approval Notice, the EPA noted
that LAC 33:III.505.D.2 contains the deadlines for submittal of acid
rain permit applications consistent with those required by title IV of
the Act, but that it contradicted LAC 33.III.507.C.1.b. The Interim
Approval Notice explained that, even though LAC 33.III.505.A.4 provides
that Federal acid rain requirements applicable to an affected source
shall supersede LAC 33:III.Chapter 5 of the Louisiana Regulations where
the two are inconsistent, the inconsistency between LAC 33.III.505.D.2,
507.C.1.b and the Federal acid rain regulations created a lack of
clarity and should be eliminated. The Interim Approval Notice required
that, for full part 70 approval, LAC 33.III.507.C.1.b be revised to
require the [[Page 17752]] affected sources to conform with the
deadlines in LAC 33.III.505.D.2.
The LDEQ commented that the provisions of LAC 33.III.507.C.1.b
cited by the EPA in the Interim Approval Notice as creating an interim
approval issue were incorporated by the LDEQ in response to an earlier
EPA comment on the LDEQ's proposed Air Quality regulations. The State
responded by stating that, despite the error in LAC 33.III.507.C.1.b,
LAC 33.III.505.A.4 and 505.D.2 would still require sources to comply
with all Federal acid rain deadlines. However, the November 16, 1994,
Operating Permits Program submittal included a revision to LAC
33.III.507.C.1.b to clarify the acid rain permit application submittal
deadlines as requested by the EPA. This revision adequately addresses
the EPA's concern and, therefore, this is no longer an interim approval
issue.
4. Provision for Administrative Amendments. In the Interim Approval
Notice, the EPA stated its concern that LAC 33.III.521.A.6 could be
interpreted to allow administrative amendments to permits to
incorporate changes authorized by 40 CFR 70.4(b)(14). These ``off-
permit'' changes, which are not addressed or prohibited by the permit,
may be made under part 70 without permit revisions. However, the
Interim Approval Notice explained that the part 70 rule contains no
authority for such changes to be incorporated into operating permits
except through the appropriate part 70 permit procedures for minor or
significant modifications. In the Interim Approval Notice, the EPA
stated that, for full part 70 approval, section 521.A.6 of the permit
regulations must be revised to eliminate administrative amendments for
this type of change.
LAC 33.III.521.A.6 also allows changes to be made to operating
permits by administrative amendment where the State's permitting
authority has determined they are similar to the changes listed in LAC
33.III.521.A. The Interim Approval Notice explained that part 70 allows
changes submitted as part of a State's part 70 program, in addition to
those specified in 40 CFR 70.7(d)(1), to be made as administrative
amendments where the EPA Administrator determines those changes to be
similar to the changes listed in 40 CFR 70.7(d)(1)(i)-(iv). However, no
such proposed changes were submitted by the State as part of its
Operating Permits Program, and part 70 does not allow for the
substitution of the State permitting authority's approval for the
Administrator's approval, which is required by 40 CFR 70.7(d)(1)(vi).
The Interim Approval Notice required that, for full part 70 approval,
this defect in LAC 33.III.521.A.6 of the permit regulations must be
corrected.
The LDEQ commented that the cited provision was intended by the
State to allow the LDEQ discretion in revising permits for terms and
conditions altogether outside the scope of 40 CFR part 70 and would not
circumscribe 40 CFR part 70. However, to receive full approval, LAC
33.III.521.A.6 has been revised to clarify that this provision can be
used solely for State-only changes involving terms and conditions which
are not federally enforceable. These revisions were included in the
November 16, 1994, submittal and adequately address the EPA's concerns.
Therefore, this is no longer an interim approval issue.
5. Requirement to Keep Records for Five Years. In the Interim
Approval Notice, the EPA cited the 40 CFR 70.8(a)(3) requirement that
each State permitting authority keep for five years such records as the
Administrator may reasonably require to ascertain whether the State
program complies with the requirements of the Act and 40 CFR part 70.
While 44 Louisiana Revised Statute (L.R.S.) section 1 contains a very
broad definition of ``public records,'' 44 L.R.S. section 36 requires
the records to be kept for only three years unless a longer formal
retention schedule has been developed. The Interim Approval Notice
required as a condition of full part 70 approval, a statutory change or
a supplemental Attorney General's Opinion demonstrating how the current
statute ensures that the required records will be kept for at least
five years.
The LDEQ commented that it intended to keep records for five years,
and that it believed that 40 CFR part 70 did not require a permit rule
ensuring that records be retained for five years. It remains the EPA's
position that because the language in the Louisiana Statute does not
appear to ensure that records be retained for five years, 40 CFR
70.8(a)(3) requires either an Attorney General's Opinion demonstrating
how this statute ensures a five-year retention of these records or a
statutory or regulatory change. In the interest of obtaining full
approval, the LDEQ revised LAC 33.III.533.B.5. As revised, LAC
33.III.533.B.5 provides that the permitting authority shall keep for
five years such records and submit to the EPA such information as the
Administrator may reasonably require to ascertain whether the State
Operating Permits Program complies with the requirements of part 70 and
the Act. This revision, which was included in the November 16, 1994,
submittal, adequately addresses the EPA's concern, and records
retention is no longer an interim approval issue.
6. Significant Modification Procedures. In the Interim Approval
Notice the EPA stated its concern about the lack of clarity of LAC
33.III.527.A.3. This provision allowed certain changes that rendered
existing compliance terms irrelevant to be incorporated through minor
modification procedures. The changes cited appeared to be of the type
described in 40 CFR 70.4(b)(14), ``off-permit'' changes. However, the
State's provision was unclear, and the Interim Approval Notice
explained that, to remedy this ambiguity, the State should add language
clarifying that the modification is one which would qualify as a change
under 40 CFR 70.4(b)(14), because it is not addressed or prohibited by
the permit and would otherwise qualify for treatment as a minor
modification under 40 CFR 70.7(e)(2)(i)(A).
The LDEQ commented that the cited State provision was meant only to
clarify that obsolete compliance measures could be removed from the
permit without requiring a significant permit modification. In the
interest of obtaining full approval, however, the LDEQ deleted LAC
33.III.527.A.3 in its entirety. This revision, which was included in
the November 16, 1994, submittal, has adequately addressed the EPA's
concern, and the previously noted ambiguity is no longer an interim
approval issue.
7. Permit Conditions. In the Interim Approval Notice, the EPA
explained that even though the permit content requirements of 40 CFR
70.6(a) are met by the model permit submitted in Volume III of the
State's original part 70 submittal, 40 CFR 70.4(b)(16) also requires
regulatory provisions in the State's program to implement the
requirements of 40 CFR 70.6 and 70.7. The EPA noted that LAC
33.III.501.C.5 and 6 speak generally to permit terms and conditions,
but do not set out all requirements for each operating permit as
required.
Specifically, the EPA noted that these State provisions did not
include a requirement that the permit specify the origin of and
reference the authority for each term or condition, nor did they
identify differences in form from the applicable requirements upon
which the terms were based or contain various other elements required
by 40 CFR 70.6. The Interim Approval Notice explained that 40 CFR
70.6(a) includes requirements for emission limitations, monitoring, and
recordkeeping, and specifies that the regulation must state that no
permit revision shall be required under any approved economic
[[Page 17753]] incentive, marketable permits, or similar program. The
Interim Approval Notice stated that a severability clause is also
required to ensure the continued validity of the various permit
requirements in the event of a challenge to any portion of the permit.
The EPA stated that these elements must be addressed in the permit
regulations in order to afford citizens the opportunity to legally
challenge permits. The Interim Approval Notice stated that, although
some of these elements are contained in the State's model operating
permit, one condition of full part 70 approval would be that the permit
regulations be revised to require that all permit elements of 40 CFR
70.6(a) be included in each permit.
In its comments, the LDEQ stated its belief that the model permit
forms and applications submitted with the original Operating Permits
Program submittal adequately addressed this issue. However, in an
effort to obtain full approval, the LDEQ has revised LAC 33.III.507.B.2
to incorporate by reference the provisions of 40 CFR 70.6 as in effect
on July 21, 1992. This revision was submitted with the November 16,
1994, submittal and adequately addresses the EPA's concern. Therefore,
this is no longer an interim approval issue.
8. Title I Modifications and Case-by-case Determinations. In the
Interim Approval Notice, the EPA discussed the State's definition of
the phrase ``title I modification.'' At the time of the Interim
Approval Notice, the EPA believed that for a State's program to be
fully approvable, it would be necessary for the State's definition of
``title I modification'' to be interpreted to include literally any
change at a source that would trigger permitting authority review under
regulations approved or promulgated under title I of the Act. This
would include State preconstruction review programs approved into the
State Implementation Plan under section 110(a)(2)(C) of the Act and
regulations addressing source changes that trigger National Emission
Standards for Hazardous Air Pollutants established pursuant to section
112 of the Act prior to the 1990 amendments. LAC 33.III.502 defines
``title I modification'' as a change at a site that qualifies as a
modification under section 111 of the Act or section 112(g) of the Act,
or that results in a significant net emissions increase under part C or
part D of the Act. In the Interim Approval Notice, the EPA required
that the LDEQ revise the definition of ``title I modification'' in
order to receive full approval.
The LDEQ commented that it believed the part 70 regulations clearly
allowed ``minor'' preconstruction changes to be processed as minor
permit modifications under part 70. The LDEQ further stated its belief
that States which allowed minor preconstruction changes to be processed
as minor operating permit modifications should be approved, and to do
otherwise, would cause the States to suffer significant negative
impact.
The American Forest and Paper Association (AF & PA) stated that the
EPA's interpretation set out in the Interim Approval Notice was without
legal basis, and that such an interpretation failed to take into
account the numbers of additional source modifications which would be
required to be processed under the significant modification procedures
of title V of the Act. The AF & PA stated its belief that such an
interpretation would further have potentially devastating consequences
on the AF & PA's members doing business in Louisiana.
The Louisiana Chemical Association disagreed with the EPA's
position that Louisiana's definition of ``title I modification'' must
be revised for full approval, and provided legislative history excerpts
in support of its interpretation of the term ``title I modification.''
On August 29, 1994, the EPA proposed revisions to the interim
approval criteria in 40 CFR 70.4(d) to allow State Operating Permits
Programs with a narrower definition of ``title I modification'' to
receive interim approval (See 59 FR 44572, August 29, 1994). Following
is a discussion of points noted in that publication.
The EPA intended to finalize its revisions to the interim approval
criteria under 40 CFR 70.4(d) before taking action on part 70 Operating
Permits Programs submitted by the States. However, publication of the
proposed revision was delayed until August 29, 1994, and several
requests to the EPA to extend the public comment period further delayed
final action on the revisions. Given the importance of the issues in
that rulemaking to States, sources, and the public, but mindful of the
need to take action quickly, the EPA agreed to extend the comment
period until October 28, 1994 (see 59 FR 52122, October 14, 1994).
Consequently, final action to revise the interim approval criteria will
not occur before the deadline for EPA action on State programs that
were submitted on or before November 15, 1993. The EPA believes it
would be inappropriate to delay action on these States' Operating
Permits Programs until final action is taken on the interim approval
revisions. The EPA also believes it would be inappropriate to grant
interim approval to Louisiana's Operating Permits Program on this issue
before final action is taken to revise the current interim approval
criteria of 40 CFR 70.4(d) in a manner which would provide a legal
basis for such an interim approval. Prior to the EPA's final
promulgation of interim approval criteria, Louisiana may maintain and
implement the narrower definition of ``title I modification.'' Upon the
EPA's final decision of what constitutes a ``title I modification,'' if
the EPA's definition differs from Louisiana's current definition, the
State will be required to revise its definition in accordance with the
EPA's final definition.
The EPA is allowing this approach to ``title I modification'' for a
number of reasons. First, the EPA has not yet conclusively determined
that a narrower definition of ``title I modification'' is incorrect and
thus a basis for disapproval (or even interim approval). The EPA has
received numerous comments on this issue as a result of the August 29,
1994, FR notice, and the EPA cannot and will not make a final decision
on this issue until it has evaluated all of the comments. Second, the
EPA believes that the Louisiana Operating Permits Program should not be
disapproved because the EPA itself has not yet been able to resolve
this issue through rulemaking. Moreover, disapproving Operating Permits
Programs from States such as Louisiana that submitted their Operating
Permits Program to the EPA on or before the November 15, 1993,
statutory deadline could lead to the unfair result that States which
were late in submitting Operating Permits Programs could take advantage
of revised interim approval criteria if and when these criteria become
final. In effect, States would be severely penalized for having made
timely program submissions to the EPA. Finally, disapproval for a
State's Operating Permits Program for a potential problem that
primarily affects permit revision procedures would delay the issuance
of part 70 permits, hampering State/Federal efforts to improve
environmental protection through the operating permits system.
For the reasons mentioned above, the EPA is approving the Louisiana
Operating Permits Program's use of a narrower definition of ``title I
modification'' at this time. However, should the EPA in the interim
approval criteria rulemaking make the final determination that such a
narrow definition of ``title I modification'' is incorrect and that a
revision of the interim approval criteria is warranted, the EPA will
propose further action on [[Page 17754]] Louisiana's Operating Permits
Program so that the State's definition of ``title I modification''
could become grounds for interim approval. A State Operating Permits
Program like the one in Louisiana, which receives full approval of its
narrower definition pending completion of the EPA's rulemaking, must
ultimately be placed on an equal footing with States which receive
interim approval in later months under revised interim approval
criteria based on the same issue. Converting the full approval on this
issue to an interim approval after the EPA completes its rulemaking
will avoid this inequity. The EPA anticipates that an action to convert
the full approval on the ``title I modification'' issue to an interim
approval would be effected through an additional rulemaking, so as to
ensure that there is adequate notice of the change in approval status.
Questions have been raised on a national level concerning whether
the 40 CFR 70.7(e)(2)(i)(A)(3) provisions prohibiting minor
modifications for changes in ``case-by-case'' determinations would
apply in the instance of a preconstruction permit in which the
permitting authority, through a minor modification procedure, changes a
source-specific control technology requirement not required under part
C or D or section 111 or 112 of the Act, or an emission limitation
determination established on a source-specific basis. At the time of
the Interim Approval Notice, the EPA believed the better interpretation
of 40 CFR 70.7(e)(2)(i)(A)(3) required that any requirement imposed on
a source-specific basis, such as one in which the permitting authority
has discretion in setting the requirement for the particular source,
must be considered to be a ``case-by-case'' determination. Therefore,
the EPA believed that a change involving a source-specific requirement
in a preconstruction permit would be considered a ``case-by-case
determination of an emission limitation'' under 40 CFR
70.7(e)(2)(i)(A)(3), ineligible for processing as a minor permit
modification.
LAC 33.III.525.A.2.d allows the use of minor modification
procedures for some changes which would be considered ``case-by-case''
emission limits under the EPA's narrower interpretation. The EPA is
taking comment on whether a less narrow interpretation of ``case-by-
case'' is acceptable.
Therefore, the EPA will not at this time construe 40 CFR
70.7(e)(2)(i)(A)(3) to prohibit Louisiana from allowing minor
preconstruction changes to be processed as minor permit modifications.
Should the EPA's final interpretation be inconsistent with Louisiana's
current regulations, the definition of ``case-by-case'' will also be an
interim approval issue. The EPA anticipates that an action to convert
the full approval on the ``case-by-case'' issue to an interim approval
would be effected through an additional rulemaking, so as to ensure
that there is adequate notice of the change in approval status.
9. Insignificant Activities. As the Interim Approval Notice
indicated, provisions to determine insignificant activities were not
included with the State's original submittal. The State's later,
November 16, 1994, submittal contained a list of insignificant
activities and criteria for determining which activities were
sufficiently insignificant to be exempt from the requirement to obtain
a permit, or from inclusion in a permit (for a part 70 source engaged
in other activities which must appear in permits), unless the LDEQ
determines on a site-specific basis that such exemption is not
appropriate. These insignificant activities were divided into four
categories. The first category consisted of activities based on size or
production rate that were required to be included in the application
but not the permit. This is consistent with 40 CFR 70.5(c) which
provides that, if approved by the EPA, a list of insignificant
activities based on size or production rate may be exempted from
inclusion in a part 70 permit, although they must still be included in
the application. LAC 33.III.501.B.5 provides that any activity to which
a State or Federal applicable requirement applies is not insignificant
even if the activity meets the criteria of the ``Insignificant
Activities List.'' Therefore such an activity must be included in the
permit. The LDEQ has clarified in a letter that insignificant
activities may not be exempted from major source applicability
determinations. This is consistent with 40 CFR 70.3(c) and 70.5(c)
which requires that the permitting authority include in the permit all
applicable requirements for all relevant emissions units.
As allowed by 40 CFR 70.5(c), LAC 33.III.501.B.5 contains a second
category based on activities that do not need to be included in a
permit application. This list includes activities such as maintenance
of grounds, general repairs, lawn care, steam cleaning, certain
painting activities, use of adhesives, office activities, vehicle
emissions, etc. The third category of insignificant activities is based
on type of pollutant. LAC 33.III.501.B.5 allows water vapor, oxygen,
carbon dioxide, nitrogen, and hydrogen to be exempt from the permit
application.
The last category of insignificant activities is based on emissions
levels. In order to use this category, the source must receive prior
approval from the LDEQ, and all of the criteria must be met. These
criteria include: (a) The emissions unit emits and has the potential to
emit no more than five tons per year of any regulated air pollutant;
(b) the emissions unit emits and has the potential to emit less than
the minimum emission rate listed in Table 51.1, LAC 33.III.Chapter 51,
for each Louisiana toxic air pollutant; (c) the emissions unit emits
and has the potential to emit less than the de minimis rate established
pursuant to section 112(g) of the Federal Act for each hazardous air
pollutant; and (d) no enforceable permit conditions are necessary to
ensure compliance with any applicable requirement.
The EPA believes that these insignificant criteria are sufficient
to ensure that every application contains the information needed to
determine the applicability of, and to impose, any applicable
requirement, or to evaluate the fee amount as required by 40 CFR
70.5(c). The list and its criteria meet the requirements of 40 CFR part
70 and therefore are approvable. The EPA will accept comments on the
insignificant activities discussed herein, as well as other provisions
of the State's revised submittal.
B. Discussion of Other Comments
1. Section 112(g) Comments. Louisiana Mid-Continent Oil and Gas
Association (LAMOGA) was concerned that the Louisiana Operating Permits
Program was being approved prior to the finalization of Federal
requirements regarding section 112(g) of the Act on modification of
sources of hazardous air pollutants. The AF & PA commented that it
believes the EPA's delegation to Louisiana of section 112(g) authority
is unlawful and confusing to the regulated community, because the EPA
has not issued any regulation to implement this statutory language and
does not expect to finally adopt such a regulation for many months. The
AF & PA opposes the approval of the Louisiana preconstruction permit
rules for the implementation of section 112(g), because it believes
that these rules were never intended to define or otherwise address
issues such as ``de minimis'' and offsets. The AF & PA is concerned
that sources would have no way to determine whether and when they are
subject to the program until a final [[Page 17755]] Federal section
112(g) rule is promulgated.
In the Interim Approval Notice, the EPA also proposed to approve
Louisiana's preconstruction program for the purpose of implementing
section 112(g) during the transition period before a Federal rule had
been promulgated implementing section 112(g). This proposal was based
in part on an interpretation of the Act that would require sources to
comply with section 112(g) beginning on the date of approval of the
Operating Permits Program, regardless whether the EPA had completed its
section 112(g) rulemaking. The EPA has since revised this
interpretation of the Act in the Federal Register (see 60 FR 8333,
February 14, 1995) (hereafter Interpretive Notice). The Interpretive
Notice postpones the effective date of section 112(g) until after the
EPA has promulgated a final rule addressing that provision. The
rationale for the revised interpretation was explained in detail in the
Interpretive Notice. The EPA's new position of not requiring the
implementation of section 112(g) until the Federal 112(g) rule is
promulgated renders moot the AF & PA comment regarding section 112(g).
The Interpretive Notice explains that the EPA is still considering
whether the effective date of section 112(g) should be delayed beyond
the date of promulgation of the Federal rule to allow States time to
adopt rules implementing the Federal rule. If a decision is made to
allow such additional delay in the implementation of section 112(g),
the EPA will announce that decision in the final section 112(g)
rulemaking.
2. Natural Resources Defense Council (NRDC) Comments. The NRDC
objected to the approval of the Louisiana Operating Permits Program for
the same reasons the NRDC objected to the EPA's part 70 regulation upon
which the approval was based. The NRDC's earlier comments on the
national proposed part 70 rulemaking were attached to its comments on
the proposed approval of the Louisiana Operating Permits Program. The
EPA believes the appropriate forum for pursuing objections to the legal
validity of the part 70 rule is through a petition for review of the
rule in the D.C. Circuit Court of Appeals; therefore, those part 70
comments will not be addressed in this notice. Unless and until the
part 70 rule is revised, the EPA must evaluate proposed part 70
programs according to the rule currently in effect.
3. Enhanced Monitoring. The LAMOGA expressed concern that the
Louisiana Operating Permits Program was being approved prior to the
finalization of Federal enhanced monitoring requirements. The LDEQ will
implement the enhanced monitoring requirements of the Act and provide
appropriate permit conditions after the Federal enhanced monitoring
rules are finalized. The EPA will not delay approval of Louisiana's
Operating Permits Program based on the fact that the Federal enhanced
monitoring rule is not yet finalized.
4. General Comments. The EPA received comments from Citizens for a
Clean Environment and some comments from LAMOGA favorable to the
Louisiana Operating Permits Program and requesting full approval for
the program.
C. Provisions Implementing the Requirements of Other Titles of the Act
By submitting the State's Operating Permits Program for approval,
Louisiana commits to appropriately implementing and enforcing the
existing and future requirements of sections 111, 112, and 129 of the
Act, and all maximum achievable control technology (MACT) standards
promulgated in the future, in a timely manner.
Requirements for title V approval, specified in 40 CFR 70.4(b),
encompass section 112(l)(5) requirements for approval of a program for
delegation of Federal section 112 standards as they apply to part 70
sources. The State of Louisiana acknowledges that its request for
approval of a part 70 program is also a request for approval of a
program for delegation of unchanged section 112 standards under the
authority of section 112(l) as they apply to part 70 sources.
Section 112(l)(5) requires that the State's program contain
adequate authorities, adequate resources for implementation, and an
expeditious compliance schedule, which are also requirements under 40
CFR part 70. Therefore, as part of this proposal for full approval, the
EPA is also proposing to grant approval under section 112(l)(5) and 40
CFR 63.91 of the State's program for receiving delegation of section
112 standards that are unchanged from Federal standards as promulgated.
At this time, the State plans to use the mechanism of incorporation by
reference to adopt unchanged Federal section 112 requirements into its
regulations. After this approval is made final, in cases where the
State utilizes the mechanism of incorporation by reference, no
additional Federal public comment period will occur prior to the
transfer of authority for unchanged section 112 standards to the State.
This approval for delegation of unchanged Federal section 112 standards
applies to existing and future standards as they apply to sources
covered by the part 70 program. The State retains the option at any
time to promulgate the full text of the Federal standard unchanged or
to request delegation of section 112 standards in the form of State
regulations which the State demonstrates are equivalent to the
corresponding section 112 provisions promulgated by the EPA instead of
using the mechanism of incorporation by reference. If the State chooses
either of these options, an approval under 40 CFR part 63 subpart E
will be required.
D. Summary
The State of Louisiana submitted to the EPA, under cover letters
from the Governor dated November 4, 1993, and November 10, 1994, the
State's Operating Permits Program and the State's revised Operating
Permits Program, respectively. The original and revised submittals have
been reviewed for adequacy under the requirements of title V of the Act
and the 40 CFR part 70 regulations which together outline criteria for
approval and disapproval. The results of this review are included in
the technical support document. The EPA believes that the LDEQ, in its
revised submittal, has adequately addressed all issues discussed in the
Interim Approval Notice which proposed interim approval. The EPA
believes the insignificant activities list and criteria are fully
approvable. Therefore, at this time the EPA is proposing to grant full
approval to the Louisiana Operating Permits Program. The EPA is
soliciting comments on all aspects of this proposed full approval.
E. Options for Approval/Disapproval
The EPA proposes to withdraw the proposed interim approval
announced in the Interim Approval Notice and to fully approve the
Operating Permits Program submitted to the EPA from the State of
Louisiana on November 15, 1993, and revised on November 16, 1994.
Louisiana has demonstrated that the program meets the minimum elements
of a State Operating Permits Program as specified in 40 CFR part 70.
III. Administrative Requirements
A. Request for Public Comments
The EPA is requesting comments on Louisiana's revised submittal as
discussed in this proposed full approval. Copies of the State's
submittal and other information relied upon for the proposed full
approval are contained in a docket maintained at the EPA Regional
Office. The docket is an organized and complete file of all the
[[Page 17756]] information submitted to, or otherwise considered by,
the EPA in the development of this proposed interim approval. The
principal purposes of the docket are:
(1) To allow interested parties a means to identify and locate
documents so that they can effectively participate in the approval
process, and
(2) To serve as the record in case of judicial review. The EPA will
consider any comments received by May 8, 1995.
B. Executive Order 12866
The Office of Management and Budget has exempted this regulatory
action from Executive Order 12866 review.
C. Regulatory Flexibility Act
The EPA's actions under section 502 of the Act do not create any
new requirements, but simply address Operating Permits Programs
submitted to satisfy the requirements of 40 CFR part 70. Because this
action does not impose any new requirements, it does not have a
significant impact on a substantial number of small entities.
List of Subjects in 40 CFR Part 70
Environmental protection, Air pollution control, Intergovernmental
relations, Operating permits, Administrative practice and procedure,
Reporting and recordkeeping requirements.
V. Miscellaneous
A. Proposed Full Approval
Proposed full approval of the part 70 Operating Permits Program for
the State of Louisiana.
Authority: 42 U.S.C. 7401-7671q.
Dated: March 30, 1995.
Jane N. Saginaw,
Regional Administrator (6A).
[FR Doc. 95-8608 Filed 4-6-95; 8:45 am]
BILLING CODE 6560-50-P
