[Federal Register Volume 62, Number 197 (Friday, October 10, 1997)]
[Rules and Regulations]
[Pages 52948-52951]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-27017]



[[Page 52948]]

-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[LA-14-1-7239; FRL-5905-7]


Approval and Promulgation of Air Quality Implementation Plans of 
New Source Review (NSR) Implementation Plan Addressing NSR in 
Nonattainment Areas; Louisiana; Louisiana Administrative Code (LAC), 
Title 33, Environmental Quality, Part III. Air, Chapter 5. Permit 
Procedures, Section 504, Nonattainment NSR Procedures

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The EPA is approving the State Implementation Plan (SIP) 
revision, submitted by the State of Louisiana for the purpose of 
meeting requirements of the Clean Air Act (the Act), as amended in 
1990, with regard to NSR in areas that have not attained the National 
Ambient Air Quality Standards (NAAQS). This approval action was 
proposed in the Federal Register (FR) on October 6, 1995, and no 
comments were received on the proposal.

EFFECTIVE DATE: This action is effective on November 10, 1997.

ADDRESSES: Copies of the documents relevant to this action are 
available for public inspection during normal business hours at the 
following locations. The interested persons wanting to examine these 
documents should make an appointment with the appropriate office at 
least 24 hours before the visiting day.

Environmental Protection Agency, Region 6, Multimedia Planning and 
Permitting Division (6PD), 1445 Ross Avenue, suite 700, Dallas, Texas 
75202-2733
Louisiana Department of Environmental Quality, H. B. Garlock Building, 
7290 Bluebonnet Boulevard, Baton Rouge, Louisiana 70810

FOR FURTHER INFORMATION CONTACT: Mr. Richard A. Barrett, Air Permits 
Section (6PD-R), Multimedia Planning and Permitting Division, EPA 
Region 6, 1445 Ross Avenue, Dallas, Texas 75202-2733, telephone (214) 
665-7227.

SUPPLEMENTARY INFORMATION:

I. Background

    The air quality planning requirements for nonattainment new source 
review are set out in part D of Title I of the Act, as amended in 1990. 
The EPA has issued a ``General Preamble'' describing EPA's preliminary 
views on how EPA intends to review SIPs and SIP revisions submitted 
under part D; including those State submittals containing nonattainment 
area NSR SIP requirements (see 57 FR 13498 (April 16, 1992)) and (57 FR 
18070 (April 28, 1992)). Because EPA is describing its interpretations 
here only in broad terms, the reader should refer to the General 
Preamble for a more detailed discussion of the interpretations of part 
D advanced in this action and the supporting rationale.
    Prior to EPA approval of a State's NSR SIP submission, the State 
may continue permitting only in accordance with the new statutory 
requirements for permit applications completed after the relevant SIP 
submittal date. This policy was explained in transition guidance 
memoranda from John Seitz dated March 11, 1991, ``New Source Review 
(NSR) Program Transitional Guidance,'' and September 3, 1992, ``New 
Source Review (NSR) Program Supplemental Transitional Guidance on 
Applicability of New Part D NSR Permit Requirements.''

II. Rulemaking Action

A. Procedural Background

    The Act requires States to observe certain procedural requirements 
in developing implementation plans and plan revisions for submission to 
EPA. Section 110(a)(2) of the Act, 42 U.S.C. 7410(a)(2), provides that 
each implementation plan submitted by a State must be adopted after 
reasonable notice and public hearing. <SUP>1</SUP> Section 110(l) of 
the Act similarly provides that each revision to an implementation plan 
submitted by a State under the Act must be adopted by such State after 
reasonable notice and public hearing.
---------------------------------------------------------------------------

    \1\  Section 172(c)(7) of the Act provides that plan provisions 
for nonattainment areas shall meet the applicable provisions of 
section 110(a)(2).
---------------------------------------------------------------------------

    After adequate public notice, the State of Louisiana held a public 
hearing on December 30, 1992, to entertain public comment on the NSR 
implementation plan, which replaced the emergency rules submitted to 
EPA on November 10, 1992. Following the public hearing, the plan was 
adopted by the State on February 20, 1993, and submitted to EPA on 
March 3, 1993, as a proposed revision to the SIP. The State submitted 
to EPA revisions for the Louisiana SIP to implement the NSR 
requirements of the Act in nonattainment areas in Louisiana. Louisiana 
made the SIP revision to LAC Title 33, Part III, Chapter 5. Permit 
Procedures, by the addition of section 504. Nonattainment New Source 
Review Procedures. The SIP revision was reviewed by EPA to determine 
administrative completeness shortly after its submittal. The 
completeness review was based upon the criteria as set out at 40 CFR 
part 51, Appendix V. The submittal was found to be complete on July 10, 
1993, and a letter dated August 3, 1993, was forwarded to the Governor 
indicating the completeness of the submittal and the next steps to be 
taken in the review process. Prior to EPA acting on these revisions, 
the State submitted a notice of adoption and final rule on Regulation 
LAC 33:III. Chapter 5, on November 15, 1993. That submittal included an 
amended Section 504 in order to meet the requirements mandated by 
sections 173 and 182 of the Act. This action applies to Section 504 of 
the LAC.
    In this action, EPA approves the Louisiana nonattainment NSR SIP 
rules identified in this notice. Those sections submitted to EPA not 
included in the revisions specifically addressed in this action will be 
the subject of a future rulemaking. In this rulemaking action on the 
Louisiana nonattainment NSR SIP, EPA has applied its interpretations, 
taking into consideration the specific factual issues presented.

B. General Nonattainment NSR Requirements

    The statutory requirements for nonattainment NSR SIPs and 
permitting are found at sections 172 and 173.
    The Act requires all States to have submitted, at a minimum, the 
following nonattainment NSR provisions by November 15, 1992:
    1. Provisions to assure that calculation of emissions offsets, as 
required by section 173(a)(1)(A), are based on the same emissions 
baseline used in the demonstration of reasonable further progress. 
Louisiana has established provisions to satisfy this requirement in LAC 
sections 504.F.4 and 504.F.5.
    2. Provisions to allow, according to section 173(c)(1), offsets to 
be obtained in another nonattainment area if: the area in which the 
offsets are obtained has an equal or higher nonattainment 
classification; and emissions from the nonattainment area, in which the 
offsets are obtained, contribute to an NAAQS violation, in the area in 
which the source would construct. Louisiana has established provisions 
to satisfy this requirement in LAC Section 504.F.9.
    3. Provisions to assure, according to section 173(c)(1), that any 
emissions offsets obtained in conjunction with the issuance of a permit 
to a new or modified source must be in effect and enforceable by the 
time the new or modified source is to commence

[[Page 52949]]

operation. Louisiana has established provisions to satisfy this section 
in LAC Section 504.F.3.
    4. Provisions to assure that emissions increases, from new or 
modified major stationary sources, are offset by real reductions in 
actual emissions, as required by section 173(c)(1). Louisiana has 
established provisions to satisfy this requirement in LAC Sections 
504.D.3 and 504.F.7.
    5. Provisions, according to section 173(c)(2), to prevent emissions 
reductions otherwise required by the Act from being credited for 
purposes of satisfying the part D offset requirements. Louisiana has 
established provisions to satisfy this section in LAC Sections 504.F.5. 
and 504.F.10.
    6. Provisions, according to section 173(a)(5) that, as a 
prerequisite to issuing any part D permit, the State will require an 
analysis of alternative sites, sizes, production processes, and 
environmental control techniques for proposed sources that demonstrates 
the benefits of the proposed source significantly outweigh the 
environmental and social costs imposed as a result of its location, 
construction, or modification. Louisiana has established provisions to 
satisfy this requirement in LAC Section 504.D.6.
    7. Provisions, according to section 173(e), that allow any existing 
or modified source that tests rocket engines or motors to use 
alternative or innovative means to offset emissions increases from 
firing and related cleaning, if four conditions are met: (a) the 
proposed modification is for expansion of a facility already permitted 
for such purposes; (b) the source has used all available offsets and 
all reasonable means to obtain offsets and sufficient offsets are not 
available; (c) the source has obtained a written finding by the 
appropriate, sponsoring Federal agency that the testing is essential to 
national security; and (d) the source will comply with an alternative 
measure designed to offset any emissions increases not directly offset 
by the source.
    In lieu of imposing any alternative offset measures, the permitting 
authority may impose an emission offset amounting to no more than 1.5 
times the average cost of stationary control measures adopted in that 
area during the previous three years. Louisiana has established 
provisions to satisfy this requirement at LAC Section 504.D.7.
    8. Provisions, according to section 173(a)(3), to assure that 
owners or operators, of each proposed new or modified major stationary 
source, demonstrate that all other major stationary sources, under the 
same ownership in the State, are in compliance with the Act. Louisiana 
has established provisions to satisfy this section at LAC Section 
504.D.1. This provision is recodified and rewritten from LAC 33:III, 
Chapter 5, Section 505.H.8., which was previously approved in the 
Federal Register (47 FR 6015, February 10, 1982).
    9. Provisions, according to section 173(a)(2), to assure that 
permits for new and modified major stationary sources to construct and 
operate may be issued if the proposed source is required to comply with 
the lowest achievable emission rate. Louisiana has established 
provisions to satisfy this requirement in LAC Section 504.D.2. This 
provision is recodified and rewritten from LAC 33:III, Chapter 5, 
Section 505.H.8., which was previously approved in the Federal Register 
(47 FR 6015, February 10, 1982).
    10. Additionally, the State must assure that no interpollutant 
trading is allowed as defined in 40 CFR part 51, Appendix S, section 
IV, condition 3. Louisiana has established provisions to satisfy this 
requirement in LAC Section 504.F.1.
    11. The public notice and participation requirements, previously 
located in Section 504, have now been placed in LAC 33:III. Chapter 5. 
Section 531, which will be acted on by EPA in a future rulemaking 
action. These requirements were located in the March 3, 1993, submittal 
and were subsequently moved in the November 15, 1993, submittal to 
Section 531. Public participation requirements have previously been 
approved in the SIP.

C. Ozone

    The general nonattainment NSR requirements are found in sections 
172 and 173 of the Act and must be met by all nonattainment areas. 
Requirements for ozone that supplement or supersede these requirements 
are found in subpart 2 of part D. In addition, subpart 2 includes 
section 182(f) which states that requirements for major stationary 
sources of volatile organic compounds (VOC) shall apply to major 
stationary sources of oxides of nitrogen (NOx) unless the Administrator 
makes certain determinations related to the benefits or contribution of 
NOx control to air quality, ozone attainment, or ozone air quality. 
States were required under section 182(a)(2)(C) to adopt new NSR rules 
for ozone nonattainment areas by November 15, 1992.
    Louisiana has established major source thresholds and offset ratios 
for VOC and included provisions for NO<INF>X</INF> major stationary 
sources as follows:

----------------------------------------------------------------------------------------------------------------
         Area classification            Major source threshold    Offset ratio minimum        NO<INF>X provisions    
----------------------------------------------------------------------------------------------------------------
Marginal.............................  100 tpy................  1.10 to 1..............  See paragraph below.   
Moderate.............................  100 tpy................  1.15 to 1..............  Identical to VOC.      
Serious..............................  50 tpy.................  1.20 to 1..............  See paragraph below.   
Severe...............................  25 tpy.................  1.30 to 1..............  Identical to VOC.      
Extreme..............................  Not applicable.........  Not applicable.........  Not applicable.        
----------------------------------------------------------------------------------------------------------------

    The EPA approved a petition for exemption from NO<INF>X</INF> 
requirements pursuant to section 182(f), for the marginal ozone 
nonattainment area of Lake Charles (Calcasieu Parish), on May 22, 1997, 
and which was published on May 29, 1997 (see 62 FR 29062); therefore, 
NO<INF>X</INF> nonattainment NSR will not be required in that area. 
Further, EPA approved the redesignation of the marginal ozone 
nonattainment area of Lake Charles (Calcasieu Parish), to attainment 
for ozone on April 10, 1997, and which was published on May 2, 1997 
(see 62 FR 24036).
    The EPA approved a petition for exemption from NO<INF>X</INF> 
requirements pursuant to section 182(f), for the serious ozone 
nonattainment area of Baton Rouge, on January 18, 1996, and which was 
published on January 26, 1996 (see 61 FR 2438); therefore, 
NO<INF>X</INF> nonattainment NSR will not be required in that area.
    Louisiana has established all of the above requirements for all 
other ozone nonattainment areas.
    Additionally, for nonclassifiable (transitional or incomplete data) 
ozone nonattainment areas, State rules for the marginal area 
classification apply. For further information on nonclassifiable areas 
see, ``General Preamble'' 57 FR 55624 (April 16, 1992), and the 
``NO<INF>X</INF> supplement to the General Preamble'' 57 FR 13523 
(November 25, 1993).

[[Page 52950]]

    In addition, Louisiana's plan submittal reflects appropriate 
modification provisions, including a de minimis level of 25 tons.

D. Carbon Monoxide (CO)

    The general part D NSR permit requirements apply in CO 
nonattainment areas, and are supplemented by the CO requirements in 
subpart 3 of part D.
    Louisiana has established a major source threshold of 100 tons per 
year, and a minimum offset ratio of greater than 1.00 to 1 for moderate 
CO nonattainment areas. Louisiana has established a major source 
threshold of 50 tpy, and a minimum offset ratio of greater than 1.00 to 
1 for serious nonattainment areas.
    Louisiana has no areas designated as nonattainment for CO at this 
time.

E. Particulate Matter Less Than 10 Micrometers In Diameter (PM-10)

    Pursuant to section 189(a)(2) 42 U.S.C. 7513a(a)(2), all States, 
with a PM-10 nonattainment area classified as moderate, were required 
to submit an NSR permit program SIP revision by June 30, 1992, or 18 
months after the designation of such an area.
    Louisiana has established major source thresholds, offset ratios, 
modification significance levels, and PM-10 precursor provisions as 
follows:

----------------------------------------------------------------------------------------------------------------
                                     Major source        Offset ratio                              Precursor    
       Area classification             threshold            minimum       Significance level      provisions    
----------------------------------------------------------------------------------------------------------------
Moderate........................  100 tpy...........  Greater than 1 to   15 tpy............  See paragraph     
                                                       1.                                      below.           
Serious.........................  50 tpy............  Greater than 1 to   15 tpy............  See paragraph     
                                                       1.                                      below.           
----------------------------------------------------------------------------------------------------------------

    Since Louisiana has no areas designated as nonattainment for PM-10 
at this time, EPA is approving the PM-10 NSR provisions for the limited 
purpose of strengthening the SIP and not for satisfying the part D NSR 
requirements for PM-10. If an area is designated nonattainment for PM-
10, then the State would be required to submit provisions for PM-10 
precursors unless it has sought and obtained a determination by the EPA 
under section 189(e).

F. Sulfur Dioxide (SO<INF>2</INF>)

    States with SO<INF>2</INF> nonattainment areas were required to 
submit NSR implementation plans by May 15, 1992. States with areas that 
are designated or redesignated as nonattainment after the Amendments 
have 18 months to submit such plans.
    Louisiana has established a major source threshold of 100 tpy, a 
minimum offset ratio of greater than 1 to 1, and a modification 
significance level of 40 tpy.
    Louisiana has no areas designated as nonattainment for 
SO<INF>2</INF> at this time.

G. Lead

    Generally, the date by which a plan must be submitted for an area 
is triggered by the area's nonattainment designation. For areas 
designated nonattainment for the primary lead NAAQS in effect at 
enactment of the 1990 Amendments; under section 171(b), States must 
submit SIPs which meet the applicable requirements of part D within 18 
months of the date of enactment of the 1990 Amendments.
    Louisiana has established a major source threshold of 100 tpy, a 
minimum offset ratio of greater than 1 to 1, and a modification 
significance level of 0.6 tpy.
    Louisiana has no areas designated as nonattainment for Lead at this 
time.

III. Final Action

    The EPA is approving the plan revisions submitted on March 3, 1993, 
as amended on November 15, 1993, regarding NSR. The State of Louisiana 
has submitted a complete plan to implement the NSR provisions of part 
D. Each of the program elements mentioned above were properly 
addressed, with the exception of PM-10 precursor requirements. Since 
Louisiana has no areas designated as nonattainment for PM-10 at this 
time, EPA is approving the PM-10 NSR provisions for the limited purpose 
of strengthening the SIP and not for satisfying the part D NSR 
requirements for PM-10. If an area is designated nonattainment for PM-
10, then the State would be required to submit provisions for PM-10 
precursors unless it has sought and obtained a determination by EPA 
under section 189(e).
    Those sections submitted to EPA, not included in the revisions 
specifically addressed in this action, will be the subject of a future 
rulemaking.
    Louisiana LAC 33:III.Chapter 5.Section 504 is approvable under the 
requirements for nonattainment area permitting regulations as outlined 
in 40 CFR part 51 and in part D. These revisions incorporate 
requirements of the Act for the construction and operation of new and 
modified major stationary sources of air pollutants.
    Nothing in this action should be construed as permitting or 
allowing or establishing a precedent for any future request for 
revision to any SIP. Each request for revision to the SIP shall be 
considered separately in light of specific technical, economic, and 
environmental factors and in relation to relevant statutory and 
regulatory requirements.

IV. Executive Order (E.O.) 12866

    The Office of Management and Budget has exempted this regulatory 
action from E.O. 12866 review.

V. Regulatory Flexibility

    Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA 
must prepare a regulatory flexibility analysis assessing the impact of 
any proposed or final rule on small entities. See 5 U.S.C. 603 and 604. 
Alternatively, EPA may certify that the rule will not have a 
significant impact on a substantial number of small entities. Small 
entities include small businesses, small not-for-profit enterprises, 
and government entities with jurisdiction over populations of less than 
50,000.
    The SIP approvals under section 110 and subchapter I, part D of the 
Act do not create any new requirements but simply approve requirements 
that the State is already imposing. Therefore, because the Federal SIP 
approval does not impose any new requirements, I certify that it does 
not have a significant impact on any small entities affected. Moreover, 
due to the nature of the Federal-State relationship under the Act, 
preparation of a flexibility analysis would constitute Federal inquiry 
into the economic reasonableness of State action. The Act forbids EPA 
to base its actions concerning SIPs on such grounds. See Union Electric 
Co. v. U.S. EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C. 7410(a)(2).

VI. Unfunded Mandates

    Under section 202 of the Unfunded Mandates Reform Act of 1995, 
signed into law on March 22, 1995, EPA must prepare a budgetary impact 
statement to accompany any proposed or final rule that includes a 
Federal mandate that may result in estimated costs to State,

[[Page 52951]]

local, or tribal governments in the aggregate; or to the private 
sector, of $100 million or more. Under section 205, EPA must select the 
most cost-effective and least burdensome alternative that achieves the 
objectives of the rule and is consistent with statutory requirements. 
Section 203 requires EPA to establish a plan for informing and advising 
any small governments that may be significantly or uniquely impacted by 
the rule.
    The EPA has determined that this action does not include a Federal 
mandate that may result in estimated costs of $100 million or more to 
either State, local, or tribal governments in the aggregate, or to the 
private sector. This Federal action approves preexisting requirements 
under State or local law, and imposes no new requirements. Accordingly, 
no additional costs to State, local, or tribal governments, or to the 
private sector, result from this action.

VII. Submission to Congress and the General Accounting Office

    Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business 
Regulatory Enforcement Fairness Act of 1996, EPA submitted a report 
containing this rule and other required information to the U.S. Senate, 
the U.S. House of Representatives, and the Comptroller General of the 
General Accounting Office prior to publication of this rule in today's 
Federal Register. This rule is not a ``major rule'' as defined by 5 
U.S.C. 804(2).

VIII. Petitions for Judicial Review

    Under section 307(b)(1) of the Act, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by December 9, 1997. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this rule for the purposes of judicial review nor does 
it extend the time within which a petition for judicial review may be 
filed, and shall not postpone the effectiveness of such rule or action. 
This action may not be challenged later in proceedings to enforce its 
requirements. See section 307(b)(2).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Hydrocarbons, Incorporation by reference, Intergovernmental relations, 
Lead, Nitrogen dioxide, Ozone, Particulate matter, Rreporting and 
recordkeeping requirements, Sulfur dioxide, Volatile organic compounds.

    Dated: September 30, 1997.
Jerry Clifford,
Acting Regional Administrator.

    40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

    1. The authority citation for part 52 continues to read as follows:

    Authority: 42 U.S.C. 7401-7671q.

Subpart T--Louisiana

    2. Section 52.970 is amended by adding paragraph (c)(68) to read as 
follows:


Sec. 52.970  Identification of plan.

* * * * *
    (c) * * *
    (68) A revision to the Louisiana SIP addressing the nonattainment 
NSR program for Louisiana was submitted by the Governor of Louisiana on 
March 3, 1993, and November 15, 1993.
    (i) Incorporation by reference.
    (A) Revision to LAC, Title 33, Part III. Air, Chapter 5. Permit 
Procedures, by the addition of Section 504. Nonattainment New Source 
Review Procedures, as promulgated in the Louisiana Register, Volume 19, 
Number 2, 176-183, February 20, 1993; effective February 20, 1993, and 
submitted by the Governor on March 3, 1993.
    (B) Revisions to LAC, Title 33, Part III. Air, Chapter 5. Permit 
Procedures, Section 504. Nonattainment New Source Review Procedures, 
Subsections: A., Applicability, Paragraphs A(1), A(2), A(3), A(4); D., 
Nonattainment New Source Requirements, Paragraph D(4); Delete G., 
Permit Procedures, Public Participation and Notification; Reletter H., 
Definitions, to G., and revise definitions for Major Modification 
(paragraphs: a., c.iii, c.iv, c.v.(a)(b), c.vi, c.vii), Major 
Stationary Source (paragraphs: a., d.i); Delete Table 1; Renumber Table 
2, Major Stationary Source/Major Modification Emission Thresholds, to 
Table 1, and revise Footnote 1., as promulgated in the Louisiana 
Register, Volume 19, Number 11, 1420-1421, November 20, 1993; effective 
November 20, 1993, and submitted by the Governor on November 4, 1993.
    (ii) Additional material.
    (A) Letter dated January 7, 1994, signed by the Governor of 
Louisiana, which clarifies that section 504 is to be reviewed under the 
SIP program.
* * * * *
[FR Doc. 97-27017 Filed 10-9-97; 8:45 am]
BILLING CODE 6560-50-P