[Federal Register Volume 59, Number 164 (Thursday, August 25, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-20951]
[[Page Unknown]]
[Federal Register: August 25, 1994]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 70
[LA-001; FRL-5057-6]
Clean Air Act Interim Approval of Operating Permits Program;
Louisiana Department of Environmental Quality
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed interim approval.
-----------------------------------------------------------------------
SUMMARY: The EPA proposes interim approval of the operating permits
program submitted by the Governor of Louisiana for the Louisiana
Department of Environmental Quality (LDEQ) for the purpose of complying
with Federal requirements which mandate that States develop, and submit
to the EPA, programs for issuing operating permits to all major
stationary sources, and to certain other sources with the exception of
sources on Indian Lands.
DATES: Comments on this proposed action must be received in writing by
September 26, 1994.
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 interim 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 Blvd., 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 FR 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 programs to
the EPA by November 15, 1993, and that the EPA act to approve or
disapprove each program within one year after receiving the submittal.
The EPA's program review occurs pursuant to section 502 of the Act and
the part 70 regulations, which together outline criteria for approval
and disapproval. Where a program substantially, but not fully, meets
the requirements of 40 CFR part 70, the EPA may grant the program
interim approval for a period of up to two years. If the EPA has not
fully approved a program by two years after the November 15, 1993,
date, or by the end of an interim program, it must establish and
implement a Federal program.
II. Proposed Action and Implications
A. Analysis of State Submission
1. Support Materials
Pursuant to section 502(d) of the Act, the Governor of each State
is required to develop and submit to the Administrator an operating
permits program under State or local law or under an interstate
compact, meeting the requirements of title V of the Act. Louisiana
submitted, under the signature of Governor Edwin W. Edwards, the
operating permits program, prepared by LDEQ, to be implemented in all
areas of the State of Louisiana with the exception of Indian Lands.
In the LDEQ operating permits program submittal, LDEQ does not
assert jurisdiction over Indian lands or reservations. To date, no
tribal government in Louisiana has authority to administer an
independent air program in the State. Upon promulgation of the Indian
air regulations, the Indians will then be able to apply as a State, and
receive the authority from the EPA to implement an operating permits
program under title V of the Act. The EPA will, where appropriate,
conduct a Federal title V operating permits program in accordance with
forthcoming EPA regulations, for those Indian tribes which do not apply
for treatment as States under the Act.
40 CFR 70.4(b)(1) requires that the submittal contain a program
description of Louisiana's operating permits program describing how
LDEQ intends to carry out its responsibilities under the part 70
regulations. The program description, contained in Volume I of the
submittal, explains that this operating permits program was developed
to satisfy all of the requirements of 40 CFR part 70. The operating
permits program will incorporate the review and issuance procedures for
part 70 operating permits into the existing State preconstruction
permit review and issuance procedures.
The program description contains a description of the
organizational structure of the LDEQ Air Quality Division and a
description of the agency's permit related responsibilities. The Air
Quality Division is divided into nine sections. Through the Small
Business Assistance Section, the LDEQ provides technical assistance to
small businesses to help them comply with new regulations under the
Act.
40 CFR 70.4(b)(3) requires the Governor to submit a legal opinion
from the Attorney General (or the attorney for the State air pollution
control agency that has independent legal counsel) demonstrating
adequate authority to carry out all aspects of a title V operating
permits program. The State of Louisiana submitted an Attorney General's
Opinion under the First Assistant Attorney General's signature
demonstrating adequate legal authority as required by Federal law and
regulation for source category-limited interim approval as further
discussed below.
The Attorney General's Opinion contains documentation of adequate
legal authority to carry out the issuance of permits to all sources
subject to the requirements of the part 70 regulations, and to
promulgate regulations in compliance with applicable State and Federal
laws. The Attorney General's Opinion cites 30 Louisiana Revised Statute
(L.R.S.) 2023, which establishes a maximum permit term of ten years,
and allows LDEQ to modify a permit for cause in accordance with law,
rule or regulation. Through these statutory provisions LDEQ has
developed regulations which provide a five-year permit term for all
sources, and which allow permits to be terminated, modified, or revoked
and reissued for cause.
The LDEQ has the authority to enforce the regulations either
through an administrative action to require compliance or a civil
action to compel compliance and recover penalties. Penalties for
administrative and civil enforcement are consistent with the penalty
requirements contained in 40 CFR 70.11. The State also possesses
criminal authority to compel enforcement. However, for criminal
violations, the State law requires a willful and knowing violation,
while part 70 only requires a knowing violation. The Attorney General's
Opinion demonstrates through case law that there is no distinction
between these two requirements under Louisiana law. Therefore, this
difference is not a defect for purposes of part 70.
30 L.R.S. section 2025(F)(1) provides that an emission of any
substance in contravention of regulations, permit terms, and conditions
pursuant thereto, that endangers or that could endanger human life or
health, is a felony subject to a fine of not more than $1,000,000 or
the cost of cleanup, and an additional fine of up to $100,000 per
violation, which may be assessed for each day the violation continues,
and imprisonment of up to ten years. 30 L.R.S. section 2025(F)(2)
requires that a person who commits a violation of an emission
limitation or non-emission related applicable requirement or permit
condition that does not endanger or could not endanger human life or
health is guilty of a misdemeanor and may be fined not more that
$25,000 per violation, which may be assessed for each day the violation
continues and imprisonment of up to one year. This is consistent with
40 CFR 70.11 which requires criminal penalties to be recoverable in a
maximum amount of not less than $10,000 per day per violation for any
knowing violation of any applicable requirement, any permit condition,
or fee or filing requirement.
All records of LDEQ are available to the public under 44 L.R.S.
sections 1 and 31, unless the Secretary determines that disclosure
would either impair an ongoing investigation or disclose trade secrets.
This statute provides that certain environmental information such as
air emission data may not be held confidential. However, it is not
clear whether these confidentiality provisions could be interpreted to
protect from disclosure the contents of the permit itself. As a
condition of full approval, LDEQ will be required either to submit an
Attorney General's Opinion demonstrating that its statute is
interpreted not to allow any portion of a permit to be held
confidential, consistent with section 503(e) of the Act, or to revise
Louisiana Administrative Code (LAC) 33:III. Chapter 5, AQ#70, section
517.F to clarify that no portion of the permit may be considered
confidential.
The State statute requires judicial review and a civil judicial
order to proceed with permit issuance as the only remedy available for
failure of LDEQ to act on a permit application within the specific time
requirements. The judicial review provided by the State meets the
requirements of 40 CFR part 70.
30 L.R.S. sections 2011(D)(2), 2022, and 2023 of the State statute
allows LDEQ discretionary authority to issue variances. The EPA regards
this provision as wholly external to the operating permits program
submittal and therefore the statutory variance provision is not being
approved as part of the title V operating permits program. Any
variances that may be issued by LDEQ will not have the effect of
revising the title V permit or relieving the source from compliance
with any requirements of the Act unless the variance is processed
through title V modification procedures.
The Attorney General's opinion has demonstrated that oil and gas
wellheads and pipelines will not constitute part 70 sources. Such a
demonstration was required by the State statutory provision at 30
L.R.S. section 2022(C)(1) which allowed for default issuance of State
permits to wellheads and pipelines 74 days after receipt of a permit
application by the permitting authority.
The Attorney General's opinion has also demonstrated that cotton
gins will not constitute part 70 sources. This demonstration was
required because the State statute prohibits the State from regulating
controlled burning of cotton gin agricultural wastes in connection with
cotton gin operations.
30 L.R.S. section 2054(B)(2)(b) provides that the Secretary of the
LDEQ has no jurisdiction or authority to make any regulation with
respect to burning of agricultural by-products in the field in
connection with the planting, harvesting or processing of agricultural
products, or with respect to controlled burning in connection with
timber stand management or with respect to controlled burning of
pastureland or marshland in connection with trapping or livestock
production. These sources do not meet the part 70 definition of major
source because air emissions from these sources are fugitive, and 40
CFR 70.2 does not require that fugitive emissions be counted in
determining whether such sources are major for purposes of section
302(j) of the Act or title I nonattainment definitions of ``major
source.'' Therefore, the State's lack of authority to permit the types
of controlled burning described in this section of Louisiana law is not
a defect in Louisiana's part 70 operating permits program.
40 CFR 70.4(b)(4) requires the submission of relevant permit
program documentation not contained in the regulations, such as permit
forms and relevant guidance to assist in the State's implementation of
its operating permits program. The State addresses this requirement in
Volumes I and III of its title V operating permits program submittal.
Volume III contains a model permit, application forms and instructions,
including the standard Phase II acid rain forms. Volume I contains a
description of the State's compliance tracking and enforcement program,
including the criteria for monitoring source compliance.
2. Regulations and Program Implementation
The State of Louisiana has submitted Air Quality Division
regulations LAC 33:III. Chapter 5, AQ#70-''Permit Procedures'' (``the
permit regulations'') and LAC 33:III. Chapter 65, AQ#76-''Rules and
Regulations for the Fee System of the Air Quality Control Programs''
(``the fee regulations''), for implementing the State's operating
permits program as required by 40 CFR 70.4(b)(2). Sufficient evidence
of their procedurally correct adoption was submitted in Volume III of
the submittal. Copies of all applicable State and local statutes and
regulations which authorize the part 70 program, including those
governing State administrative procedures, were submitted with the
State's program.
The following requirements, set out in the EPA's part 70
regulation, are addressed in the State's submittal: (1) Provisions to
determine applicability (40 CFR 70.3(a)): AQ#70 section 507.A.1; (2)
Provisions to determine complete applications (40 CFR 70.5(a)(2)) and
program documentation (40 CFR 70.4(b)(4)): AQ#70 section 519 and AQ#70
section 517 respectively, and Volume III, Permit Forms and
Instructions; (3) Public Participation (40 CFR 70.7(h)): AQ#70 section
531.A; (4) Provisions for minor permit modifications (40 CFR
70.7(e)(2)): AQ#70 section 525; (5) Provisions for permit content (40
CFR 70.6(a)); Volume III, Permit Forms and Instructions; (6) Provisions
for operational flexibility (40 CFR 70.4(b)(12)): AQ#70 section 507.G;
(7) Provisions to determine insignificant activities (40 CFR
70.4(b)(2)): A list of insignificant activities was not included with
the submittal and may be submitted as a revision at a later date; (8)
Enforcement provisions (40 CFR 70.4(b)(5) and 70.4(b)(4)(ii)): 30
L.R.S. section 2025.F and Volume I, Enforcement and Compliance
Programs.
Following is a discussion of certain specific provisions in the
State's submission as they relate to requirements of 40 CFR part 70:
(a) Applicability criteria, including any criteria used to
determine insignificant activities or emissions levels (40 CFR
70.4(b)(2) and 70.3(a)): These requirements are met by AQ#70 section
517 which requires the permit application to include information
regarding emissions from sources of all regulated air pollutants and
does not allow an exemption for insignificant activities. The permit
regulations require that the applicable sources submit an application
prior to construction, reconstruction, or modification which may result
in an increase in air contaminants. AQ#70 section 507.A.3 requires that
permits incorporate all federally applicable requirements for each
emissions unit at the source. AQ#70 section 507.A requires all major
sources, all sources required to obtain an operating permit pursuant to
regulations promulgated under sections 111 or 112 of the Act (except
sources that would be required to obtain a permit solely because they
are regulated sources pursuant to section 112(r) of the Act), and all
affected sources under the acid rain program to apply for and receive
an operating permit.
Because of a regulation involving research and development (R & D)
facilities discussed below, the State will lack authority to ensure
that all part 70 sources submit an application in the first year after
interim approval. This defect in the State's authority will render the
interim approval granted to the Louisiana operating permits program, a
source category-limited interim approval. Further discussion of this
issue follows.
AQ#70 section 501.B.7 provides that the permitting authority may
allow a
certain complex within a facility to be considered 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
permit regulations are 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.
Confusion over this issue has occurred as a result of language in
the preamble to the final July 21, 1992, 40 CFR part 70 rulemaking (57
FR 32264). The preamble language indicates that States would have the
flexibility in many cases to treat R & D facilities separately from the
manufacturing facilities with which they are co-located. The EPA
intended for this language to clarify the flexibility in part 70 for
allowing R & D facilities to be treated separately in cases where the R
& D facility has a different two-digit Standard Industrial
Classification (``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.
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 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 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 all part 70 requirements for these sources are met.
The EPA's August 2, 1993, guidance provides that the EPA can grant
source category-limited interim approval to States whose programs do
not provide for permitting all required sources if the State makes a
showing that two criteria are met: (1) That there were ``compelling
reasons'' for the exclusions; and (2) that all required sources will be
permitted on a schedule that ``substantially meets'' the requirements
of 40 CFR part 70. The EPA considers Louisiana's misinterpretation of
the preamble language to be a compelling reason for granting this type
of interim approval. Louisiana has not requested additional time for
issuing initial permits. In addition, it has been estimated that a
small number of major sources will be deferred from permitting due to
the Louisiana R & D provision, and that such sources can still be
permitted within the three-year time frame. This substantially meets
the requirements of 40 CFR part 70. Also, for these reasons, the EPA is
not requesting a detailed, written analysis supporting the State's
claim that its program substantially meets the part 70 applicability
requirement.
Source category-limited interim approval will allow Louisiana to
develop a permitting schedule to provide for the permitting of any
``exempted'' sources during the latter part of the program's three-year
transition period, after the permit regulations have been revised.
Notwithstanding the granting of source category-limited interim
approval based on the possibility that some major sources will not be
required to submit applications within the first year after program
approval, the EPA expects that any permits issued will address all
applicable requirements, as required by 40 CFR 70.7(a)(1)(iv).
For full part 70 approval, the LDEQ will 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 will be
exempted from part 70 requirements because an R & D facility is co-
located with the source. Guidance on the R & D issue is expected to be
forthcoming from the EPA Office of Air Quality Planning and Standards
in the near future.
AQ#70 section 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. The EPA believes
the phrase ``modifications under any provision of title I of the Act''
in 40 CFR 70.7(e)(2)(i)(A)(5) is best interpreted to mean 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 by the EPA
into the State Implementation Plan (SIP) under section 110(a)(2)(C) of
the Act and regulations addressing source changes that trigger National
Emission Standards for Hazardous Air Pollutants (NESHAPS) established
pursuant to section 112 prior to the 1990 amendments. The EPA intends
to revise its criteria for interim approval in 40 CFR 70.4(d) prior to
final approval on the proposal to grant Louisiana interim approval so
that interim approval may be granted to State programs, like
Louisiana's, that adopt a narrower definition of ``title I
modification'' than the Federal definition.
As noted, the EPA believes the better interpretation of ``title I
modification'' would preclude granting full approval to the Louisiana
operating permits program. However, in the proposal to revise 40 CFR
part 70, the EPA will be taking comment on whether the criteria in 40
CFR 70.7(e)(2)(i)(A), including the phrase ``modification under any
provision of title I,'' should be interpreted in a manner that would
allow the minor modification process to be used for changes reviewed
under programs approved pursuant to section 110(a)(2)(C) of the Act and
changes that trigger the application of NESHAPS established pursuant to
section 112 of the Act prior to the 1990 amendments. Should the EPA
adopt this alternative interpretation of ``title I modification'' which
allows the minor modification process to be used for changes reviewed
under programs approved pursuant to section 110(a)(2)(C) of the Act and
changes that trigger the application of NESHAPS established pursuant to
section 112 of the Act prior to the 1990 amendments, the definition of
``title I modification'' in Louisiana's operating permits program would
then be fully consistent with the 40 CFR part 70 ``title I
modification'' definition without change.
With regard to the definition of ``major source'', the definition
in AQ#70 section 502 is broader than the part 70 definition because it
does not require the sources to belong to a single major industrial
grouping. This is approvable under part 70, and will result in more
sources being covered by the State's operating permits program than
would be required by the part 70 definition of ``major source.''
(b) Permit application requirements (40 CFR 70.5(c)): These
requirements are addressed in AQ#70 section 517. In addition to the
information required to be submitted by 40 CFR 70.5(c), the permit
regulations also require the submittal of a location map of the
facility. AQ#70 section 507.G provides for alternative operating
scenarios, consistent with the requirements of 40 CFR 70.4(b)(12), and
requires the sources requesting alternative operating scenarios to
submit the information in accordance with AQ#70 section 517.
(c) Permit issuance and revision procedures (40 CFR 70.7): These
requirements are met by the permit regulations. AQ#70 section 507.C.1
requires all existing sources to submit an application within one year
of the effective date of the State's operating permits program
approval. AQ#70 section 507.C.2 requires that a permit application be
submitted prior to construction, reconstruction, or modification of any
source. Permit applications for renewal are required at least six
months prior to the date of permit expiration, but not more than
eighteen months prior to the date of permit expiration. The permit
regulations contain criteria for determining completeness of
applications consistent with 40 CFR 70.5(a)(2). Consistent with 40 CFR
70.7, the permit regulations prohibit a source from operating after the
time that the source is required to submit a timely and complete
application. AQ#70 section 507.B includes provisions for continuing
permits or permit terms if a timely and complete application is
submitted, but action is not taken on a request prior to permit
expiration consistent with 40 CFR 70.4(b)(10).
AQ#70 section 507.C.1.b contains the deadlines for submittal of
acid rain permit applications. Although this section purports to cover
all relevant dates for submittal of acid rain permit applications,
however, this section does 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 serve such a generator after
November 15, 1990. AQ#70 section 505.D.2 contains the deadlines for
submittal of acid rain permit applications consistent with those
required by title IV of the Act, but contradicts AQ#70 section
507.C.1.b. Even though AQ#70 section 505.A.4 states that any
requirement, provision, or emissions limitation of the Federal
regulations of the acid rain program, where applicable to an affected
source, shall supersede LAC 33:III Chapter 5 of the Louisiana
Regulations to the extent that such Federal regulations are
inconsistent with those permit regulations, the inconsistency between
AQ#70 section 505.D.2, 507.C.1.b and the Federal acid rain regulations
creates a lack of clarity and should be eliminated. Therefore, for full
part 70 approval, AQ#70 section 507.C.1.b must be revised to require
the affected sources to comply with the deadlines in LAC 33.III.505.D.2
consistent with 40 CFR parts 70 and 72.
AQ#70 section 519 contains provisions regarding completeness
determinations and requests for additional information consistent with
40 CFR 70.4(b)(6), 70.5(a)(2) and 70.7(a)(4). Requirements for
application contents are found in AQ#70 section 517.D and are
consistent with 40 CFR 70.5(c).
AQ#70 section 521 contains the requirements for administrative
amendments. AQ#70 section 521.A.5 allows an administrative amendment
for the incorporation of changes to render preconstruction permit terms
and conditions consistent with emissions data and operating parameters
as determined by start-up testing results provided the following
criteria are met: a. The changes are a result of a test performed upon
start-up of newly constructed, installed, or modified equipment or
operations; b. increases in permitted emissions will not exceed 5 tons
per year for any regulated pollutant; c. increases in permitted
emissions of Louisiana toxic air pollutants or of Federal hazardous air
pollutants would not constitute a modification under LAC 33:III.
Chapter 51 or under section 112(g) of the Act; d. changes in emissions
would not require new source review for prevention of significant
deterioration or nonattainment, and would not trigger the applicability
of any federally applicable requirement; e. changes in emissions would
not qualify as a significant modification; f. the request is submitted
no later than 12 months after commencing operation; and g. the permit
contains a term which provides for the incorporation of test results by
administrative amendment in accordance with the section entitled
``Administrative Amendments.'' The EPA considers these provisions to be
similar in many respects to the authority allowed for reasonably
anticipated operating scenarios without a permit revision under 40 CFR
70.6(a)(9), because the permit will give adequate notice of and provide
limitations on the changes that may occur through a subsequent
administrative amendment. In addition, these provisions are consistent
with part 70 revision procedures because they achieve substantially the
same result as would be the case if Louisiana's preconstruction and
operating permitting programs were separate. Since, if these programs
were separate, 40 CFR 70.5(a)(1)(ii) and 70.4(b)(14) together would
allow changes to preconstruction permits to occur prior to revision of
the part 70 permit (unless such changes conflicted with an existing
part 70 permit), the use of an expedited revision procedure for
incorporation of test results, such as that in AQ#70 section 521.A.6,
produces substantially equivalent results where the preconstruction and
operating permit programs are merged. In light of these considerations,
the EPA believes this provision is consistent with part 70.
AQ#70 section 521.A.6 provides that an administrative amendment may
be used to revise a permit for changes that would not violate any
applicable requirement or standard, which do not require permit
modifications under 40 CFR part 70 and which the permitting authority
considers to be similar in nature to the changes listed in that
subsection. This provision 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 part 70 rule contains no authority for such
changes to be incorporated into operating permits except through the
appropriate part 70 permit procedures, which may be either a minor or
significant modification. Therefore, for full part 70 approval, section
521.A.6 must be revised to eliminate administrative amendments for this
type of change. In the interim, the EPA expects Louisiana to implement
this provision in a manner consistent with 40 CFR part 70.
AQ#70 section 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
AQ#70 section 521.A. 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). Therefore, for full part 70
approval, this defect in AQ#70 section 521.A.6 of the permit
regulations must be corrected.
The requirements of 40 CFR 70.4(b)(13), (16), 70.7(h), and 70.8 for
permit issuance, renewals, reopenings and revisions, including public
notice, and EPA and affected State review are met by the provisions of
AQ#70 sections 519, 531, and 533. AQ#70 section 533.B of the permit
regulations requires the applicant, rather than the permitting
authority, to submit the permit applications directly to the
Administrator. The notification to affected States will be provided by
the permitting authority within 5 working days of receipt of a complete
permit application as required by 40 CFR part 70. AQ#70 sections 533.C
and D and 531.B provide EPA review, objection and affected State notice
only for major sources. The Administrator may, at the time of an
operating permits program approval, waive the requirement for affected
State and EPA review for any category of sources other than major
sources pursuant to 40 CFR 70.8(a)(2). Pursuant to 40 CFR 70.3(b)(1),
the State is, under AQ#70 section 507.A.1, also deferring from the part
70 program at this time, non-major sources with the exception of acid
rain sources and solid waste incineration units required to obtain
permits pursuant to section 129(e) of the Act. This deferral is
acceptable under 40 CFR 70.3(b)(1) until the Administrator completes a
rulemaking to determine how the program should be structured for non-
major sources and whether any permanent exemptions in addition to those
provided for in 40 CFR 70.3(b)(4) are appropriate.
The requirements of 40 CFR 70.7(e) for minor modification
procedures are established in AQ#70 section 525. 40 CFR 70.7(e)(2)
allows the use of these expedited minor modification procedures for
certain types of changes. Among other limitations, the minor
modification procedures may not be used for any changes to ``case-by-
case'' determinations. AQ#70 section 525.A.2 of the permit regulations
defines the criteria for minor modifications.
Questions have been raised concerning whether the 40 CFR
70.7(e)(2)(i)(A)(3) provisions prohibiting 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. The EPA believes the better interpretation of 40 CFR
70.7(e)(2)(i)(A)(3) requires 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 believes 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. AQ#70 section 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 interpretation referred to
above. The EPA intends to revise 40 CFR part 70 to make interim
approval possible for a State which uses the approach taken in the
Louisiana operating permits program for the ``case-by-case''
restriction. The EPA is also soliciting comment in the proposal to
revise 40 CFR part 70 with regard to whether the criteria in 40 CFR
70.7(e)(2)(i)(A)(3) should be interpreted to allow source specific
minor preconstruction permit review changes in control technology
determinations or emission limitation determinations to be eligible for
minor modification procedures. Should EPA decide in favor of this
interpretation, Louisiana's approach to the ``case-by-case''
restriction would be fully consistent with 40 CFR part 70 without
change. If the EPA decides, instead, to adopt its current position
described above, the Louisiana operating permits program would be
inconsistent with 40 CFR part 70 requirements, because it allows
changes in control technology determinations and emission limitation
determinations among other changes that may fall within the 40 CFR
70.7(e)(2)(i)(A)(3) restriction to be processed through the minor
modification procedures. Therefore, as a condition of full part 70
approval, Louisiana would be required to revise these permit
regulations to provide that such changes must be processed as
significant modifications, as required by 40 CFR 70.7(e)(4).
AQ#70 section 525 requires that the application for a minor
modification be submitted to and approved by the permitting authority
prior to making the proposed change at the source. AQ#70 section
525.B.6 states that for any minor modification pertaining to a change
which affects federally enforceable permit terms and conditions at a
part 70 source, the terms of the permit revision shall not be federally
enforceable pursuant to 40 CFR part 70 until after the required EPA 45-
day review period has expired or until the EPA has notified the
permitting authority that the EPA will not object to final issuance of
the permit modification, whichever is first. If the permitting
authority has issued approval of the modification prior to such time,
the terms of the permit revision shall be enforceable by the State upon
approval by the permitting authority consistent with the approved SIP.
AQ#70 section 525.B.7 further provides that, if at any time after the
approval by the permitting authority the EPA objects, the permit will
be reopened. This is consistent with 40 CFR 70.7(e)(2)(v). This section
of the permit regulations provides time-frames for action on the minor
modification applications consistent with 40 CFR 70.7(e)(2)(iv). The
permit regulations do not provide for group processing of minor
modifications for groups of sources. Since the requirements in 40 CFR
part 70 for group processing are not mandatory, this is acceptable.
AQ#70 section 527 addresses the criteria for significant
modifications and substantially meets the requirements of 40 CFR
70.7(e)(4). AQ#70 section 527.A.3, in allowing certain changes that
render existing compliance terms irrelevant to be incorporated through
minor modification procedures, appears to refer to changes such as
those described in 40 CFR 70.4(b)(14), ``off-permit'' changes. However
the language of the permit regulations is unclear and requires
clarification. To remedy this defect, 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).
Provisions for permit reopenings are addressed in AQ#70 section 529
and are consistent with the requirements of 40 CFR 70.7(f).
40 CFR 70.8(a)(3) requires 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. 44 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 three years unless a
longer formal retention schedule has been developed. As a condition of
full part 70 approval, a statutory change will be necessary or a
supplemental Attorney General's Opinion will need to be submitted
demonstrating how the current statute ensures that the required records
will be kept for at least five years.
(d) Permit Content (40 CFR 70.6(a)): The permit content
requirements of 40 CFR 70.6(a) are met by the model permit submitted in
Volume III of the State's part 70 submittal. However, 40 CFR
70.4(b)(16) also requires provisions in the State's program
implementing the requirements of 40 CFR 70.6 and 70.7. To meet these
part 70 requirements, AQ#70 sections 501.C.5 and 6 speak generally to
permit terms and conditions, but do not set out all requirements for
each operating permit. Specifically they do not include a requirement
that the permit specify the origin of and reference the authority for
each term or condition, nor do they identify differences in form from
the applicable requirements upon which the terms are based. Other
elements required by 40 CFR 70.6 are also not addressed. 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
incentive, marketable permits or similar program. 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.
These elements must be addressed in the permit regulations in order to
afford citizens the opportunity to legally challenge permits. Although
some of these elements are contained in the State's model operating
permit, one condition of full part 70 approval will be that the permit
regulations be revised to require that all permit elements of 40 CFR
70.6(a) be included in each permit.
AQ#70 section 507.H meets the compliance requirements of 40 CFR
70.6(c). General permits as allowed by 40 CFR 70.6(d) and temporary
sources as allowed by 40 CFR 70.6(e) are provided for in AQ#70 sections
513.A and 513.B, respectively. These sections meet the requirements of
40 CFR part 70.
40 CFR 70.6(f) provides that the State may allow a provision in the
part 70 permit stating that compliance with the conditions of the
permit shall be deemed compliance with any applicable requirement as of
the date of permit issuance provided certain requirements are met.
AQ#70 section 507.I allows a very restricted use of such a ``permit
shield.'' If the permit does not specifically state that a permit
shield exists for a specific Federal program, no shield is presumed to
exist. AQ#70 section 507.I requires all permit shields to undergo
public notice requirements.
40 CFR 70.6(g) contains provisions which state that certain
``emergencies'' may constitute affirmative defenses to actions for
noncompliance. AQ#70 section 507.J provides emergency provisions
consistent with those of 40 CFR 70.6(g), using the term ``upset''
rather than ``emergency.''
40 CFR 70.4(b)(12) requires that the State's part 70 submittal
contain operational flexibility provisions. AQ#70 section 507.G
provides for operational flexibility consistent with 40 CFR
70.4(b)(12).
The permit regulations do not include a definition of ``emissions
allowable under the permit,'' because the State interprets the plain
meaning of this term to be clear in the context of the permit
regulations without further definition. The EPA agrees that the
Louisiana permit regulations taken as a whole adequately define
``emissions allowable under the permit.''
(e) Off-permit (40 CFR 70.4(b)(14) and (70.4(b)(15)): Section 507.F
of the permit regulations allows off-permit changes which meet the
requirements and provisions of 40 CFR 70.4(b)(14) and (15).
3. Permit Fee Demonstration
The fees for criteria air pollutants contained in the fee
regulations are below the presumptive minimum; therefore a detailed fee
demonstration was submitted in Volume I of the title V operating
permits program submittal. The fee regulations require a fee of $9.00
per ton for criteria pollutants based on actual emissions at major
sources. For facilities which emit hazardous air pollutants (HAPs), the
fees are $25, $50 or $100 per ton based on the class of the pollutant.
These fees, when totaled and divided by the total emissions, result in
the collection of approximately $19 per ton for part 70 sources. After
careful review, the State determined that these fees would support the
title V permit program costs as required by 40 CFR 70.9(a). The fee
demonstration explains that this fee structure allows program costs to
be covered without unduly penalizing any industry in the State, and the
fees generated would meet the program costs. The fee demonstration is
detailed and contains direct and indirect costs as well as the cost for
the implementation of enhanced monitoring, and titles III and IV of the
Act. The number of resource-hours and positions needed to implement the
program was calculated and the fees were adjusted to meet these costs.
The fee regulations contain a provision requiring an annual review of
the program fee schedule and fee regulations, based on the previous
year's costs of permit program operation. The Louisiana fee
demonstration shows that this fee schedule meets the requirements for
an operating permits program in Louisiana. The State will collect
$11,000,000 per year to support all applicable part 70 activities.
Total costs to administer the operating permits program are projected
to be $10.6 million per year. The State will also increase State air
quality staff by 14 positions. Any changes in the fees would need to be
made by a revision to the fee regulations.
4. Provisions Implementing the Requirements of Other Titles of the Act
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. Upon receiving
approval under section 112(l), the State may receive delegation of any
new authority required by section 112 of the Act through the delegation
process.
The State also has the option at any time to request, under section
112(l) of the Act, delegation of section 112 requirements in the form
of State regulations which the State demonstrates are equivalent to the
corresponding section 112 provisions promulgated by the EPA. At this
time, the State plans to use the mechanism of incorporation by
reference to adopt unchanged Federal section 112 requirements into its
regulations.
The radionuclide NESHAP is a section 112 regulation and therefore,
also an applicable requirement under the State operating permits
program for part 70 sources. There is not yet a Federal definition of
``major'' for radionuclide sources. Therefore, until a major source
definition for radionuclides is promulgated, no source would be a major
section 112 source solely due to its radionuclide emissions. However, a
radionuclide source may, in the interim, be a major source under part
70 for another reason, thus requiring a part 70 permit. The EPA will
work with the State in the development of its radionuclide program to
ensure that permits are issued in a timely manner.
Section 112(g) of the Act requires that, after the effective date
of a permits program under title V, no person may construct,
reconstruct or modify any major source of HAPs unless the State
determines that the maximum achievable control technology emission
limitation under section 112(g) will be met. Such determination must be
made on a case-by-case basis where no applicable limitations have been
established by the Administrator. During the period from the title V
effective date to the date the State has taken appropriate action to
implement the final section 112(g) rule (either adoption of the
unchanged Federal rule or approval of an existing State rule under
112(l)), Louisiana intends to implement section 112(g) of the Act
through the State's preconstruction process.
The State of 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.
The State of Louisiana developed acid rain permit rules as AQ#70
section 505, which was submitted with the operating permits program
package. The State also submitted standard acid rain permit application
forms. These forms will be revised as updated model forms are provided
by the EPA. These rules and permit applications meet the requirements
of the acid rain program.
5. Enforcement Provisions
Louisiana's operating permits program submittal addressed the
enforcement requirements of 40 CFR 70.4(b)(4)(ii) and 70.4(b)(5) in
Volume I which included a signed Memorandum of Understanding between
EPA Region 6 and LDEQ. 30 L.R.S. section 2025.F.1 allows for injunctive
relief for violations that are emissions-related, and 30 L.R.S. section
2025.F.2 allows for criminal penalties for violations of emissions
limitations, fee and filing requirements, tampering with a monitoring
device, and false statements. 30 L.R.S. section 2025.F.2.c provides
that a person shall not be considered to be in willful or knowing
violation of a fee or filing requirement that was not complied with
through excusable neglect.
The Louisiana Attorney General's Opinion has demonstrated that the
State's enforcement authority is adequate under the requirements of 40
CFR part 70, as discussed above.
6. Summary
The State of Louisiana submitted to the EPA, under a cover letter
from the Governor dated November 15, 1993, the State's operating
permits program. The submittal has been reviewed for adequacy under the
requirements of 40 CFR part 70. The results of this review are included
in the technical support document. The submittal has adequately
addressed all sixteen (16) elements required for full approval as
discussed in part 70, except with regard to the 70.4(b)(16) requirement
to include requirements for all permit conditions in the permit
regulations, the requirement that a permit, or any portion of a permit,
may not be held confidential, the requirement that the permit
regulations ensure that no source, or portion of a source which would
be defined as major under 40 CFR 70.2 will be exempted from part 70
requirements because an R & D facility is co-located with a
manufacturing facility, the requirement that AQ#70 section 521.A.6
ensure that ``off-permit'' changes are not processed as administrative
amendments, the requirement for approval by the Administrator for any
changes similar to those allowed by AQ#70 section 521.A to be processed
as administrative amendments, the requirement that AQ#70 section
527.A.3 be clarified as referring to ``off-permit'' changes, the
requirement that AQ#70 section 507.C.1.b be revised to require that
affected sources comply with the deadlines in AQ#70 section 505.D.2,
and the requirement that records be kept for five years, as discussed
above. According to EPA's current interpretation of ``title I
modification'' and ``case-by-case determination,'' the Louisiana
operating permits program would also need to be revised for full
approval consistent with the Federal interpretation, by making the
definition of ``title I modification'' consistent with the Federal
definition, and by requiring that changes to ``case-by-case'' emission
limitation determinations and source-specific control technologies
among other changes must be processed as significant modifications as
required by 40 CFR 70.7(e)(2)(i)(3). However, if, as discussed above,
40 CFR part 70 is revised to adopt the alternative interpretation of
``title I modification'' and ``case-by-case determination,''
Louisiana's regulation with regard to these issues would be fully
consistent with 40 CFR part 70 without change. Louisiana's operating
permits program submittal meets all requirements necessary to receive
source category-limited interim approval of the State operating permits
program pursuant to title V, 1990 Amendments and 40 CFR part 70.
B. Options for Approval/Disapproval and Implications
The EPA is proposing to grant interim approval to the operating
permits program submitted by Louisiana on November 15, 1993. Interim
approvals under section 502(g) of the Act do not create any new
requirements, but simply approve requirements that the State is already
imposing. As discussed above, the State's regulation regarding R & D
facilities causes the State to lack the authority to ensure that all
part 70 sources submit an application in the first year following
interim approval. Therefore, Louisiana will be granted source category-
limited interim approval. In order to receive source category-limited
interim approval, Louisiana's operating permits program must
substantially meet the part 70 requirements and demonstrate a
compelling reason. The EPA is satisfied that these requirements have
been met. If promulgated, the State must make the changes noted above
to receive full approval.
Evidence of these statutory and regulatory revisions and their
procedurally correct adoption must be submitted to the EPA within 18
months of the EPA's approval of the Louisiana operating permits
program. This interim approval, which may not be renewed, extends for a
period of up to two years. During the interim approval period, the
State is protected from sanctions for failure to have a program, and
the EPA is not obligated to promulgate a Federal permits program in the
State. Permits issued under a program with interim approval would have
full standing with respect to part 70, and the one-year time period for
submittal of permit applications by subject sources begins upon interim
approval, as does the three-year time period for processing the initial
permit applications.
If the interim approval is converted to a disapproval, it will not
affect any existing State requirements applicable to small entities.
Federal disapproval of the State submittal would not affect its State-
enforceability. Moreover, the EPA's disapproval of the submittal would
not impose a new Federal requirement.
III. Proposed Rulemaking Action
In this action, the EPA is proposing interim approval of the
operating permits program submitted by the State of Louisiana. The
program was submitted by the State to the EPA for the purpose of
complying with Federal requirements found in title V of the Act, and in
40 CFR part 70, which mandate that States develop, and submit to the
EPA, programs for issuing operating permits to all major stationary
sources, and to certain other sources with the exception of Indian
Lands.
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. 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 interim 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.
This applies to existing and future standards as they apply to sources
covered by the part 70 program.
The EPA has reviewed this submittal of the Louisiana operating
permits program and is proposing source category-limited interim
approval. Certain defects in the State's statutes and regulations
preclude the EPA from granting full approval of the State's operating
permits program at this time. The EPA is proposing to grant interim
approval, subject to the State obtaining the needed regulatory and
statutory revisions within 18 months after the Administrator's approval
of the Louisiana title V program pursuant to 40 CFR 70.4.
IV. Administrative Requirements
A. Request for Public Comments
The EPA is requesting comments on all aspects of this proposed
interim approval. Copies of the State's submittal and other information
relied upon for the proposed interim approval are contained in a docket
maintained at the EPA Regional Office. The docket is an organized and
complete file of all the 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 September 26, 1994.
B. Executive Order 12866
The Office of Management and Budget has exempted this regulatory
action from Executive Order 12866 review.
C. Regulatory Flexibility Act
Under the Regulatory Flexibility Act, 5 U.S.C. 600, et seq, the 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, the 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.
Operating permits program approvals under section 502 of the Act do
not create any new requirements, but simply approve requirements that
the State is already imposing. Therefore, because the Federal operating
permits program 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 regulatory flexibility
analysis would constitute Federal inquiry into the economic
reasonableness of State action. The Act forbids the EPA to base its
actions concerning operating permits programs 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)).
List of Subjects in 40 CFR Part 70
Environmental protection, Administrative practice and procedure,
Intergovernmental relations, Operating permits.
Authority: 42 U.S.C. 7401-7671q.
Dated: August 12, 1994.
W.B. Hathaway,
Acting Regional Administrator (6A).
[FR Doc. 94-20951 Filed 8-24-94; 8:45 am]
BILLING CODE 6560-50-F
