•£JU 

OAR Box 1781 

Prepped by Ollie Stewart 

Document Number: 

128)IV-C-42 

Docket Number: 

A-90-37 

Printed 10/29/2008 10:46:24 AM Sheet 128 of 142 
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 ftf UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 

Office of Air Quality Planning and Standards 

Research Triangle Park, North Carolina 27711 

m l 4 jggg 

Mr. Gustave Von Bodungen 

Assistant Secretary, State of Louisiana 

Department of Environmental Quality 

Post Office Box 82135 

Baton Rouge, Louisiana 70884 

Dear Mr. Von Bodungen: 

This is in response to your letter to Robert Hannesschlager regarding the Louisiana 

Department of Environmental Protection's (LDEQ) position on the prevention of significant 

deterioration (PSD) significant emission level for ozone depleting substances (ODS) at existing 

major sources. It is my understanding that LDEQ is considering the applicability of the PSD 

program to a source where the proposed emissions of ODS are approximately 40 tons per 

year (TPY). 

As discussed in the September 11,1997 letter from Region VI to LDEQ, current Federal 

regulations specify "any emissions rate" as the significance level for ODS. Nevertheless, as you 

are also aware, on July 23,1996, the Environmental Protection Agency (EPA) proposed a new 

significance level of 100 TPY for ODS. The comment period with regard to this proposal is now 

closed, and the Agency received no adverse comments on the proposed significance level. The 

EPA's current plans are to issue a final rulemaking on this issue by the end of this year. In light 

of these factors, EPA would have no objection to LDEQ's issuance of a permit to this source, 

which will emit substantially less than 100 TPY of ODS, without conducting a PSD review for 

ODS emissions, prior to the promulgation of final rules establishing an ODS significance level. 

If you have any questions concerning this response, please contact David Solomon of the 

Integrated Implementation Group at (919) 541-5375. I appreciate the opportunity to be of 

service and trust that this information will be helpful to you. 

S,. Seitz 

Director 

: of Air Quality Planning 

and Standards 

cc: Robert Hannesschlager 
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SE7VT. EY:Alr .Pest Toxics Reg 6 5 1-16-98 ; 3:27PM ; 

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State of Louisiana -JL 

Department of Environmental Quality ^ '•*ieoi 

MJ."WIKr." FOSTER. JR. 

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January 12,1997 (J$ \35xr cv\ olh*\*~ 

Mr L^L o^e- ye^^^A^-to . Robert Hannesschlager - 6TD 

Acting Director 

Multi-Media Planning & Permitting Division 

U. S. Environmental Protection Agency 

Region VI 

1445 Ross Avenue, Suite 1200 

Dallas, Texas 75202 

kc: AHiedSignal 

Dear Mr. Hannesschlager: 

This lener has been prepared in response io your request for an official written communication from 

the Louisiana Department of linvironmcntal Quality (LDEQ) that clarifies its latitude in evaluating 

the significant emission levd with respect to ozone depleting substances (ODS) al existing major 

stationary sources. 

The LDEQ is in receipt of Ms. Jolc Luchrs' letter of September II, IW7 relating to a PSD 

determination for a rcfngerant reclamation unit proposed io be constructed by the Baton Rouge 

South Works plant of AHiedSignal. Prior lo and subsequent to the issuance of the referenced lener 

numerous discussions took place between and among representatives of the I-DEQ, AHiedSignal, 

Region VI and the Office of Air Quality Planning and Standards (OAQPS). Subsequent to these 

discussions, I was vcjually informed by John Seitz that it would he appropriate to use the proposed 

100 ton per year (tpy) significance level that is included hi llijfc New Source Review Reform 

rulemaking package (61 FR 38250) in determining prevention of significant deterioration (PSD) 

applicability for ODS under the major modification classification. As a consequence of these verbal 

assurances, the I.DP.Q issued a construction authorisation for the project pursuant to LAC 

3.V.M.501.CA which provides for such where there is a positive human health or environmental 

benefit. Subsequently, the LDEQ accepted a non-PSD permit application, which is currently 

undergoing review, from AHiedSignal for the proposed project. The LDEQ has been advised that 

AUicdSignaJ expects to be in a position to start-up the proposed unit hy February I, 1908 and would 

like to issue the necessary peimit under the provisions of minor-NSR prior to that date. 

Of issue in this case is the existing language included in both 40 CFR 51.166(b)(23)(ii) and 40 CFR 

52.21 (b)(23)(H), which stales "Significant means, iti reference to a net emissions increase or the 

potential of a source to emit a pollutant subject to regulation under the Act that paragraph (b)(23X0 

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of this section docs not list, any emissions rate." Paragraph (bX23X>) of each specifies de minimis 

-emissions rates, expressed in terms of tons per year, for criteria and certain non-criteria air pollutants 

to be considered significant. The concept of significant is used to determine PSD major modification 

applicability and identify pollutants associated with a new source or a major modification thai are 

subject to BACT and air quality analyses as part of a PSD review. With the exception of the 

pollutants related to municipal waste combustors or municipal solid waste landfills, all of the 

remaining pollutants and emission rates were incorporated into the PSD program as o result uf the 

promulgation of the August 7.1980 NSR regulations. 

Prior to the promulgation of the 1980 regulations, the threshold for classification as a major 

modification was an increase in potential emissions of 100/250 tpy—depending upon whether the 

source was a named category—of any pollutant regulated under the Aet fine Clean Air Actj, which 

was the same threshold for classification as a major source. The 1979 Alabama Power court decision 

(45 FR 52699) rejected liPA's regulatory approach of requiring PSD review of potential emissions 

increases at existing stationary sources only when such increases would equal or exceed the 100/250 

tpy threshold, and held, instead, that a change in a major stationary source is subject to review only 

if it would result in any significant net increase. Additionally (45 FR 52705), the court indicated that 

emissions from certain small modifications, and emissions of certain pollutants at new sources, could 

be exempted from some or all PSD review requirements on the grounds that such emissions would 

be de minimis. The court also indicated that the Agency could establish exemptions based on 

administrative necessity (e.g., the inability uf reviewing authorities to provide the necessary work 

force to properly review a very large number of permit applications). 

In Section XI of the 1980 preamble, the Agency goes into great detail tn cvplain the methodology 

fur the establishment of the significant emission rales. I'wo different methods were employed for 

criteria pollutants for which extensive health and welfare information was developed and documented 

and non-criteria pollutants for which no criteria on ambient ellecls existed. It was Anther noted that 

the non-criteria pollutants were covered by either NSPS or NESHAP. ll was noted that it was 

therefore reasonable to develop de minimis cutoffs from separate perspectives with criteria pollutant 

</(? minimis cutoffs based on air quality "design values" and non-criteria pollutant dc minimis values 

based on the emissions rates embodied in the NSPS and NESHAP. Of significance is the fact that 

the criteria and non-criteria pollutants included in the definition of significant in the 1980 regulations 

were the only pollutants regulated under the Act at that time. Hence, the any emissions rate phrase 

tliat became promulgated in 1980 and currently resides in paragraphs (b)(23)(ii) was superfluous, as 

there were no other polluinms regulated under the Act at that time. In the closing paragraph of 

Section XI, and in i ejecting a suggestion to limit the Jc minimis concept only to criteria pollutants, 

EPA noted that use of the dc minimis concept with respect to only the criteria pollutants suggests 

that any increase (i.e., a zero d? minimis value) would be significant for non-criteria pollutanis and 

jnusl be reviewed and then stated that a 7ctodt! minimis is not practical for this [PSD| program. 

As early as January of 1981, EPA apparently recognized the inappropriafeness of the any emissions 
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rate phrase. In his response on January 19, 1981 to Question 4 posed by Andrea S. Bear, Esq., 

Douglas Costle responded: 

The first part of the definition of the term ".significant" in the new regulations 

contains a list of pollutants and specifics a deminmis emissions level for each 

of them. Sec 40 CFR S2.21(bX23)(i), ** Ml 52737. The second part then 

provides that, for any pollutant "subject to regulation under the A a that [the 

first pail] does not fist, "tiie term means any emissions rate at all. Jd. 40 CFR 

52.2l(b)(23X«). 

You ask that the agency delete the second part of die definition. EPA agrees 

to do so, when it promulgates in the near future technical and conforming 

amendments to the regulations 

In reassessing the second part of the definition, LPA has concluded that it is 

superfluous. On the one liand, the first part already lists each of the pollutants 

thiU were regulated under the Act when EPA promulgated the part. On the 

other hand, F.PA plans to establish a de minimis threshold for any currently 

unregulated pollutant, when it regulates that pollutant. 

Thus, considering the detail with which F.PA established i/e minimis values for the initial significant 

levels and the remarks in Douglas Costlc's January 19,1981 letter, it is clear dial EPA intended to 

establish significant levels whenever any previously umeguhted pollutants became regulated under 

the Act. 

The initial eight ODS compounds (CFCs 11, 12, 113. 114. 115 and llalons 1211. 1301 and 2-102) 

became "regulated under the Act" when EPA promulgaied a final rule on August 12, I9R8 (53 FR 

30566) implementing the Montreal Protocol. Unfortunately, liPA did not establish significant values 

for these pollutants at that lime and, since F.PA did nol delete the "seeorid part of the definition" as 

it agreed to in 1981, these pollutants became regulated under PSD with a zero dc minimis omissions 

rate, which LPA had slated in the 1980 preamble was nol being practical for the PSD program. 

Likewise, when EPA promulgated a final rule on July 30, 1992 (57 FR 33754) that regulated all of 

the Class I and Tl ODS, again without the establishment of PSD significant levels, numerous 

additional previously unregulated pollutants became regulated under PSD with a zeio tie minimis 

emissions rate. As. a consequence, a situation has arisen in which these previously unregulated 

pollutants have been assigned de facto zoo de minimis emission rates due to EPA's failure to 

establish appropriate dc minimis emission rates for these pollutants coincident with their becoming 

regulated. It is obvious from a review of the preambles of Uiese regulations, which were promulgaied 

in Part X2 pursuant to Title VI of the Aet, that no consideration had been afforded to the potential 

impact of these regulations on the PSD program. Considering EPA's prior assertions regarding a 

zero de minimis level and its intent to promulgate significant levels when new pollutants became 
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regulated, the failure to do so should not be construed as an intent to apply a zero de minimis to 

ODS. 

EPA has finally attempted to remedy this situation in its Jury 23, 1996 NSR Reform rulemaking 

proposal (61 FR 3K250), in which a 100 tpy dc minimus emission rate was proposed for all ODS in 

the aggregate. In proposing diis significance level (61 FR 38308), EPA abandoned its previous 

precedent of establishing significance levels based on local ambient impact slating "Since emissions 

causing stratospheric ozone depletion is strictly a global problem, no appreciable local ambient impact 

will result from emissions from a particular source." Instead. LPA acknowledged that "the Act 

provides tliat a new source emitting 100 tpy of ODS (and for some source categories 250 tpy) should 

be subject to PSD review" and then stated "EPA believes that PSD should apply io any modification 

at a major stationary source that would result in a net emissions increase of ODS of at least 100 tpy, 

which is the lower major source threshold." EPA's choice of the lower major source threshold of 100 

tpy as the significance levd for ODS and its reasons for doing so emphasizes the absurdity of a de 

facto zero dc minimis emissions rate for these pollutants. Il has been over seventeen months since 

the NSR Reform proposal, snd, since promulgation of this significance level is at best seveial months 

away, an inequhablc situation currently exists Tor both souiecs and reviewing agencies that demands 

immediate relief. 

In the TM<^ of the AHiedSignal project, which is being constructed to provide a vehicle for end users 

to satisfy Title VI requirements that ODS be recycled and not vented to the atmosphere, there will 

be an emissions increase at die AHiedSignal facility of approximately 39 tpy of ODS, which is well 

below the proposed significance level of 100 tpy. These emissions will lie a combination of point 

source emissions from a non-condensiblc purge vent and fugitive emissions from piping and 

equipment components that AHiedSignal has calculated using the average SOCMI emission factors 

contained in the Protocol for Equipment Ixak fanission Estimates, F.PA-453/R-95-017, Noveml>er 

1995, which arc known to be conservative. Should PSD review be required for this project, an 

esscnlially "hollow" procedural permit would most likely be produced. As there arc no NAAQS, 

increments or modeling significant levels for ODS, an ambient air analysis would not be prepared as 

pan of (he application. Additionally, considering tltc magnitude and type of emissions associated with 

the project, it is very probable that a determination of no control could be made with respect lo 

BACT. In the end, considerable lime and resources of both the source and the t.DLQ would be 

consumed in the preparation and review of a PSD permit application for an environmentally beneficial 

project that could otherwise be processed under d>c minor-NSR provisions with nn less stringent 

emissions limitations. 

Since the beginning of these discussions, the LDEQ has just been appraiseJ of another proposed 

project at the AHiedSignal facility involving a greater than 7ero emissions increase. This particular 

project involves modifications to the facility's packaging operations that will result in an increase of 

0.8 tpy of ODS, con.sisiing entirely of fugitive emissions. The projeci itself consists essentially of 

piping modifications that can be performed within a few weeks, and, except for the zero de minimis 

5 
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emissions rate issue, could be processed by the I JMvQ as a permit exemption—a process that can 

normally be accomplished in about two weeks. Certainly, subjecting such a project to PSD review 

will have no significant environmental benefit. 

In addition to these particular projects, facilities such as AHiedSignal that manufacture ODS become 

potentially subject lo PSD review on every single project dial is proposed due to the existing zero 

dc minimis emissions rate issue. Certainly, Uu's situation was nol intended by Congress in its 

enactment of the PSD requirements. 

It is the LDF.Q's belief that projects such as these should not he required to undergo PSD review. 

To require such appears to be inconsistent with the intent of the procedures that weie very carefully 

established with the promulgation of the 1980 regulations and Congiessional intent as well. EPA has 

finally taken steps io mitigate this unreasonable position in the NSR Reform proposal; however, due 

to the potential impact that tliis situation currently lias on both sources and reviewing agencies, an 

immediate resolution through policy action is required at this time. 

Tliank you for your consideration of this most important issue 1 look forward to your rapid response 

outlining procedures and policy—based on the proposed 100 tpy significance level—that will allow 

projects such as these to be approved by the LDEQ without live necessity of PSD review. 

Sincerely, 

Gustave Von Bodungen 

Assistant Secrelaiy 

Bll/bh 

Q> 
P.8 

OAQPS CORRESPONDENCE TRACKING SHEET 

CONTROL NO : UNCT-98-1679 

SUBJECT 

Date Due to AQPS 

Date Due 

AQPS Received 

AX/AL Assigned 

AX/AL Due 

02/05/98 

/ / 

RE: LOUISIANA DEPT OF ENV'L PROTECTION 

(LDEQ) POSITION ON THE PREVENTION OF 

(PSD) (ODS) AT EXISTING MAJOR SOURCES. 

FROM : ROBERT HANNESSCHLAGER 

FROM ORG. : MULTI-MEDIA DIV, REG VI 

TO : GUSTAVE VON BODUNGEN 

ACTION ASSIGNED TO : 

CC'S 

RESPONSE REQUIRED : N 

PREPARE RESPONSE FOR THE SIGNATURE OF : 

SPECIAL INSTRUCTIONS : H THOMAS CONCURRED 2/5/98 

TO J SEITZ 2/5/98 

- ^