17750 Federal Register / Vol. 60, No. 67 / Friday, April 7, 1995 / Proposed Rules

Rule 74 Specific Source Standards

(Adopted 7/6/76)

Rule 74.1 Abrasive Blasting (Adopted 11/

12/91)

Rule 74.2 Architectural Coatings (Adopted

08/11/92)

Rule 74.6 Surface Cleaning and Degreasing

(Adopted 5/8/90)

Rule 74.6.1 Cold Cleaning Operations

(Adopted 9/12/89)

Rule 74.6.2 Batch Loaded Vapor Degreasing

Operations (Adopted 9/12/89)

Rule 74.7 Fugitive Emissions of Reactive

Organic Compounds at Petroleum

Refineries and Chemical Plants (Adopted

1/10/89)

Rule 74.8 Refinery Vacuum Producing

Systems, Waste-water Separators and

Process Turnarounds (Adopted 7/5/83)

Rule 74.9 Stationary Internal Combustion

Engines (Adopted 12/21/93)

Rule 74.10 Components at Crude Oil

Production Facilities and Natural Gas

Production and Processing Facilities

(Adopted 6/16/92)

Rule 74.11 Natural Gas-Fired Residential

Water Heaters-Control of NOx (Adopted

4/9/85)

Rule 74.12 Surface Coating of Metal Parts

and Products (Adopted 11/17/92)

Rule 74.15 Boilers, Steam Generators and

Process Heaters (5MM BTUs and greater)

(Adopted 12/3/91)

Rule 74.15.1 Boilers, Steam Generators and

Process Heaters (1–5MM BTUs)

(Adopted 5/11/93)

Rule 74.16 Oil Field Drilling Operations

(Adopted 1/8/91)

Rule 74.20 Adhesives and Sealants

(Adopted 6/8/93)

Rule 74.24 Marine Coating Operations

(Adopted 3/8/94)

Rule 75 Circumvention (Adopted 11/27/78)

Appendix IV-A Soap Bubble Tests

(Adopted 12/86)

Rule 100 Analytical Methods (Adopted 7/

18/72)

Rule 101 Sampling and Testing Facilities

(Adopted 5/23/72)

Rule 102 Source Tests (Adopted 11/21/78)

Rule 103 Stack Monitoring (Adopted 6/4/

91)

Rule 154 Stage 1 Episode Actions (Adopted

9/17/91)

Rule 155 Stage 2 Episode Actions (Adopted

9/17/91)

Rule 156 Stage 3 Episode Actions (Adopted

9/17/91)

Rule 158 Source Abatement Plans (Adopted

9/17/91)

Rule 159 Traffic Abatement Procedures

(Adopted 9/17/91)

[FR Doc. 95–8604 Filed 4–6–95; 8:45 am]

BILLING CODE 6050–50–P

40 CFR Part 70

[LA–001; FRL–5185–4]

Clean Air Act Proposed Full Approval

of Operating Permits Program;

Louisiana Department of

Environmental Quality

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Proposed full approval.

SUMMARY: The EPA proposes to rescind

the proposed interim approval of the

Louisiana Operating Permits Program

published in the Federal Register (see

59 FR 43797, August 25, 1994)

(hereafter Interim Approval Notice) and

propose full approval of the Operating

Permits Program as revised by the

State’s November 16, 1994, submittal.

The proposed interim approval in the

Interim Approval Notice was based

upon the Operating Permits Program

submitted by the Governor of Louisiana

for the Louisiana Department of

Environmental Quality (LDEQ) and

received by the EPA on November 15,

1993. On November 16, 1994, the State

submitted material revisions adequately

addressing the issues raised by the EPA

in the Interim Approval Notice and

adding insignificant activities criteria to

the Louisiana Operating Permits

Program. This revised Operating Permits

Program will provide for the issuance of

operating permits to all major stationary

sources and to certain other sources

with the exception of sources on Indian

Lands, in compliance with the Federal

requirements.

DATES: Comments on this proposed

action must be received in writing by

May 8, 1995.

ADDRESSES: Written comments on this

action should be addressed to Ms. Jole

C. Luehrs, Chief, New Source Review

Section, at the EPA Region 6 Office

listed below. Copies of the State’s

submittal and other supporting

information used in developing the

proposed full approval are available for

inspection during normal business

hours at the following locations.

Interested persons wanting to examine

these documents should make an

appointment with the appropriate office

at least 24 hours before visiting day.

Environmental Protection Agency,

Region 6, Air Programs Branch (6T–

AN), 1445 Ross Avenue, Suite 700,

Dallas, Texas 75202–2733. Louisiana

Department of Environmental Quality,

Office of Air Quality, 7290 Bluebonnet

Boulevard, P.O. Box 82135, Baton

Rouge, Louisiana 70884–2135.

FOR FURTHER INFORMATION CONTACT:

Joyce P. Stanton, New Source Review

Section, Environmental Protection

Agency, Region 6, 1445 Ross Avenue,

Suite 700, Dallas, Texas 75202–2733,

telephone 214–665–7218.

SUPPLEMENTARY INFORMATION:

I. Background and Purpose

A. Introduction

As required under title V of the Clean

Air Act as amended on November 15,

1990 (‘‘the Act’’), the EPA has

promulgated rules which define the

minimum elements of an approvable

State Operating Permits Program and

the corresponding standards and

procedures by which the EPA will

approve, oversee, and withdraw

approval of a State Operating Permits

Program (see 57 Federal Register 32250,

July 21, 1992). These rules are codified

at 40 Code of Federal Regulations (CFR)

part 70. Title V requires States to

develop, and submit to the EPA,

programs for issuing these operating

permits to all major stationary sources

and to certain other sources.

The Act requires that States develop

and submit these Operating Permits

Programs to the EPA by November 15,

1993, and that the EPA act to approve

or disapprove each Operating Permits

Program within one year after receiving

the submittal. The EPA’s Operating

Permits Program review occurs pursuant

to section 502 of the Act and the part

70 regulations, which together outline

criteria for approval and disapproval.

The EPA proposed interim approval in

the Interim Approval Notice on August

25, 1994, for the Operating Permits

Program submitted by the LDEQ on

November 15, 1993. However, 40 CFR

70.4(e)(2) allows the Administrator to

extend the review period of a State’s

submittal if the State’s submission is

materially altered during the one-year

review period. This additional review

period may not extend beyond one year

following receipt of the revised

submission. On November 16, 1994, the

EPA received material changes to

Louisiana’s Operating Permits Program

from the Governor of Louisiana on

behalf of the LDEQ. These changes

included regulations adopted to add

insignificant activities criteria, and to

address issues raised in the Interim

Approval Notice. The EPA will act

expeditiously to promulgate a final

notice on the State’s revised Operating

Permits Program within one year of the

November 16, 1994, revised submittal.

The publication of this proposal allows

the public the opportunity to review

and comment on the changes contained

in the revised submittal.

At this time, the EPA proposes to

rescind the interim approval proposed
Federal Register / Vol. 60, No. 67 / Friday, April 7, 1995 / Proposed Rules 17751

in the Interim Approval Notice and

instead proposes full approval of the

Operating Permits Program as revised by

the November 16, 1994, submittal. The

Interim Approval Notice had a 30-day

comment period which was extended an

additional 30 days to October 26, 1994

(see 59 FR 50537, October 4, 1994). The

comments received on issues discussed

in the Interim Approval Notice during

that comment period are discussed in

this notice together with a discussion of

the revisions to the State’s Operating

Permits Program received on November

16, 1994.

II. Proposed Action and Implications

A. Analysis of State Submission

1. Confidentiality Provisions. In the

Interim Approval Notice, the EPA stated

that, while the State statute provided

that certain environmental information

such as air emissions data may not be

held confidential, it was not clear

whether these confidentiality provisions

could be interpreted to protect the

contents of the permit itself from

disclosure. The Interim Approval Notice

stated that the LDEQ must either submit

an Attorney General’s Opinion

demonstrating that the State’s statute is

interpreted not to allow any portion of

a permit to be held confidential,

consistent with section 503(e) of the

Act, or revise Louisiana Administrative

Code (LAC) 33:III.Chapter 5, section

517.F (permit regulations) to clarify that

no portion of the permit may be held

confidential. In response to this

statement in the Interim Approval

Notice, the LDEQ commented that it did

not currently protect from disclosure as

confidential any permit issued under

LAC 33.III.Chapter 5, and that the LDEQ

has adopted a conservative policy in

interpreting the reference to ‘‘emissions

data’’ in a manner which limits the

grant of confidentiality under the

Louisiana statute. The LDEQ stated,

however, that in the interest of

cooperation, it would revise its

regulations. The November 16, 1994,

submittal contained a revision to LAC

33:III.517.F which requires that no

permit or portion of a permit issued to

a source in accordance with Louisiana’s

Operating Permits Program shall be held

confidential. This regulatory revision

has adequately addressed the EPA’s

concern regarding confidentiality and is

no longer an interim approval issue.

2. Requirement that No Major Source

be Exempt from Part 70 Requirements

Because a Research and Development

(R&D) Facility is Co-located with the

Source. In the Interim Approval Notice,

the EPA explained that LAC

33:III.501.B.7 allows the permitting

authority to consider a certain complex

within a facility as a source separate

from the facility with which it is colocated, provided that the complex is

used solely for R&D of new processes

and/or products, and is not engaged in

the manufacture of products for

commercial sale. The EPA noted that

this regulation was inconsistent with 40

CFR 70.3 which requires that a State’s

Operating Permits Program provide for

the permitting of all major sources, and

40 CFR 70.4(b)(3)(i) which requires that

the State demonstrate adequate legal

authority to issue permits and assure

compliance with each applicable

requirement by all part 70 sources.

The Interim Approval Notice

explained that 40 CFR 70.2 requires all

sources located on contiguous or

adjacent properties, under common

control, and belonging to a single major

industrial grouping, to be considered as

the same source. The EPA concluded

that the Louisiana permit regulations

could cause certain part 70 major

sources, as defined in 40 CFR 70.2, or

portions of such sources with the same

Standard Industrial Classification (SIC)

code, to be treated as separate sources.

This could cause some part 70 sources

to be exempted from coverage by part 70

permits which must ensure that all part

70 requirements for those sources are

met.

The Interim Approval Notice went on

to state that for full part 70 approval, the

LDEQ would be required to revise its

permit regulations and demonstrate that

no source, or portion of a source, which

would be defined as major under 40

CFR 70.2 would be exempted from part

70 requirements because an R&D facility

is co-located with the source.

One commenter objected to the EPA’s

proposed action related to the R&D issue

and stated that by limiting the scope of

the exemption to R&D facilities with

different SIC codes, the EPA has

virtually eliminated any relief for R&D

facilities. The commenter stated that,

since R&D activities are so limited in

time, scale, and actual production,

subjecting these activities to the

Operating Permits Program

requirements unnecessarily burdened

research by companies as well as the

State’s Operating Permits Programs.

This commenter also requested that any

guidance concerning R&D facilities be

published for public comment as part of

future part 70 rulemakings. The EPA’s

position continues to be that 40 CFR

part 70 allows R&D facilities to be

treated separately in cases where the

R&D facility has a different two-digit

SIC code and is not a support facility.

The LDEQ commented that its

regulatory provision cited as deficient

on this point had been incorporated into

the State’s Operating Permits Program

based on the State’s understanding of

guidance provided by the EPA in the

preamble to the part 70 regulations. In

the Interim Approval Notice, the EPA

explained that the preamble language

was intended to clarify the flexibility in

40 CFR part 70 for allowing R&D

facilities to be treated separately from

the manufacturing facilities with which

they are co-located where the R&D

facility has a different two-digit SIC

code and is not a support facility. This

approach is consistent with the

treatment of R&D facilities in the New

Source Review program. In response to

the Interim Approval Notice and in an

effort to receive full approval of

Louisiana’s Operating Permits Program,

the LDEQ has revised LAC 33:III.501.B.7

to include a provision that an R&D

facility may be considered separately

provided the facility has a different twodigit SIC code from, and is not a support

facility of, the source with which it is

co-located. This revision was included

in the November 16, 1994, submittal.

This change adequately addresses the

EPA’s concern and the State’s treatment

of R&D facilities is no longer an interim

approval issue.

3. Acid Rain Application Deadlines.

In the Interim Approval Notice, the EPA

discussed LAC 33.III.507.C.1.b which

contained the deadlines for submittal of

acid rain permit applications. Although

this section purported to cover all

relevant dates for submittal of acid rain

permit applications, this section did not

contain the deadlines required by 40

CFR 72.30(b)(2)(iii) for new units and

for units that did not serve a generator

with a name plate capacity greater than

25 Megawatts electrical on November

15, 1990, but which served such a

generator after November 15, 1990. In

the Interim Approval Notice, the EPA

noted that LAC 33:III.505.D.2 contains

the deadlines for submittal of acid rain

permit applications consistent with

those required by title IV of the Act, but

that it contradicted LAC 33.III.507.C.1.b.

The Interim Approval Notice explained

that, even though LAC 33.III.505.A.4

provides that Federal acid rain

requirements applicable to an affected

source shall supersede LAC

33:III.Chapter 5 of the Louisiana

Regulations where the two are

inconsistent, the inconsistency between

LAC 33.III.505.D.2, 507.C.1.b and the

Federal acid rain regulations created a

lack of clarity and should be eliminated.

The Interim Approval Notice required

that, for full part 70 approval, LAC

33.III.507.C.1.b be revised to require the
17752 Federal Register / Vol. 60, No. 67 / Friday, April 7, 1995 / Proposed Rules

affected sources to conform with the

deadlines in LAC 33.III.505.D.2.

The LDEQ commented that the

provisions of LAC 33.III.507.C.1.b cited

by the EPA in the Interim Approval

Notice as creating an interim approval

issue were incorporated by the LDEQ in

response to an earlier EPA comment on

the LDEQ’s proposed Air Quality

regulations. The State responded by

stating that, despite the error in LAC

33.III.507.C.1.b, LAC 33.III.505.A.4 and

505.D.2 would still require sources to

comply with all Federal acid rain

deadlines. However, the November 16,

1994, Operating Permits Program

submittal included a revision to LAC

33.III.507.C.1.b to clarify the acid rain

permit application submittal deadlines

as requested by the EPA. This revision

adequately addresses the EPA’s concern

and, therefore, this is no longer an

interim approval issue.

4. Provision for Administrative

Amendments. In the Interim Approval

Notice, the EPA stated its concern that

LAC 33.III.521.A.6 could be interpreted

to allow administrative amendments to

permits to incorporate changes

authorized by 40 CFR 70.4(b)(14). These

‘‘off-permit’’ changes, which are not

addressed or prohibited by the permit,

may be made under part 70 without

permit revisions. However, the Interim

Approval Notice explained that the part

70 rule contains no authority for such

changes to be incorporated into

operating permits except through the

appropriate part 70 permit procedures

for minor or significant modifications.

In the Interim Approval Notice, the EPA

stated that, for full part 70 approval,

section 521.A.6 of the permit

regulations must be revised to eliminate

administrative amendments for this type

of change.

LAC 33.III.521.A.6 also allows

changes to be made to operating permits

by administrative amendment where the

State’s permitting authority has

determined they are similar to the

changes listed in LAC 33.III.521.A. The

Interim Approval Notice explained that

part 70 allows changes submitted as part

of a State’s part 70 program, in addition

to those specified in 40 CFR 70.7(d)(1),

to be made as administrative

amendments where the EPA

Administrator determines those changes

to be similar to the changes listed in 40

CFR 70.7(d)(1)(i)–(iv). However, no such

proposed changes were submitted by

the State as part of its Operating Permits

Program, and part 70 does not allow for

the substitution of the State permitting

authority’s approval for the

Administrator’s approval, which is

required by 40 CFR 70.7(d)(1)(vi). The

Interim Approval Notice required that,

for full part 70 approval, this defect in

LAC 33.III.521.A.6 of the permit

regulations must be corrected.

The LDEQ commented that the cited

provision was intended by the State to

allow the LDEQ discretion in revising

permits for terms and conditions

altogether outside the scope of 40 CFR

part 70 and would not circumscribe 40

CFR part 70. However, to receive full

approval, LAC 33.III.521.A.6 has been

revised to clarify that this provision can

be used solely for State-only changes

involving terms and conditions which

are not federally enforceable. These

revisions were included in the

November 16, 1994, submittal and

adequately address the EPA’s concerns.

Therefore, this is no longer an interim

approval issue.

5. Requirement to Keep Records for

Five Years. In the Interim Approval

Notice, the EPA cited the 40 CFR

70.8(a)(3) requirement that each State

permitting authority keep for five years

such records as the Administrator may

reasonably require to ascertain whether

the State program complies with the

requirements of the Act and 40 CFR part

70. While 44 Louisiana Revised Statute

(L.R.S.) section 1 contains a very broad

definition of ‘‘public records,’’ 44 L.R.S.

section 36 requires the records to be

kept for only three years unless a longer

formal retention schedule has been

developed. The Interim Approval Notice

required as a condition of full part 70

approval, a statutory change or a

supplemental Attorney General’s

Opinion demonstrating how the current

statute ensures that the required records

will be kept for at least five years.

The LDEQ commented that it

intended to keep records for five years,

and that it believed that 40 CFR part 70

did not require a permit rule ensuring

that records be retained for five years. It

remains the EPA’s position that because

the language in the Louisiana Statute

does not appear to ensure that records

be retained for five years, 40 CFR

70.8(a)(3) requires either an Attorney

General’s Opinion demonstrating how

this statute ensures a five-year retention

of these records or a statutory or

regulatory change. In the interest of

obtaining full approval, the LDEQ

revised LAC 33.III.533.B.5. As revised,

LAC 33.III.533.B.5 provides that the

permitting authority shall keep for five

years such records and submit to the

EPA such information as the

Administrator may reasonably require to

ascertain whether the State Operating

Permits Program complies with the

requirements of part 70 and the Act.

This revision, which was included in

the November 16, 1994, submittal,

adequately addresses the EPA’s concern,

and records retention is no longer an

interim approval issue.

6. Significant Modification

Procedures. In the Interim Approval

Notice the EPA stated its concern about

the lack of clarity of LAC 33.III.527.A.3.

This provision allowed certain changes

that rendered existing compliance terms

irrelevant to be incorporated through

minor modification procedures. The

changes cited appeared to be of the type

described in 40 CFR 70.4(b)(14), ‘‘offpermit’’ changes. However, the State’s

provision was unclear, and the Interim

Approval Notice explained that, to

remedy this ambiguity, the State should

add language clarifying that the

modification is one which would

qualify as a change under 40 CFR

70.4(b)(14), because it is not addressed

or prohibited by the permit and would

otherwise qualify for treatment as a

minor modification under 40 CFR

70.7(e)(2)(i)(A).

The LDEQ commented that the cited

State provision was meant only to

clarify that obsolete compliance

measures could be removed from the

permit without requiring a significant

permit modification. In the interest of

obtaining full approval, however, the

LDEQ deleted LAC 33.III.527.A.3 in its

entirety. This revision, which was

included in the November 16, 1994,

submittal, has adequately addressed the

EPA’s concern, and the previously

noted ambiguity is no longer an interim

approval issue.

7. Permit Conditions. In the Interim

Approval Notice, the EPA explained

that even though the permit content

requirements of 40 CFR 70.6(a) are met

by the model permit submitted in

Volume III of the State’s original part 70

submittal, 40 CFR 70.4(b)(16) also

requires regulatory provisions in the

State’s program to implement the

requirements of 40 CFR 70.6 and 70.7.

The EPA noted that LAC 33.III.501.C.5

and 6 speak generally to permit terms

and conditions, but do not set out all

requirements for each operating permit

as required.

Specifically, the EPA noted that these

State provisions did not include a

requirement that the permit specify the

origin of and reference the authority for

each term or condition, nor did they

identify differences in form from the

applicable requirements upon which the

terms were based or contain various

other elements required by 40 CFR 70.6.

The Interim Approval Notice explained

that 40 CFR 70.6(a) includes

requirements for emission limitations,

monitoring, and recordkeeping, and

specifies that the regulation must state

that no permit revision shall be required

under any approved economic
Federal Register / Vol. 60, No. 67 / Friday, April 7, 1995 / Proposed Rules 17753

incentive, marketable permits, or similar

program. The Interim Approval Notice

stated that a severability clause is also

required to ensure the continued

validity of the various permit

requirements in the event of a challenge

to any portion of the permit. The EPA

stated that these elements must be

addressed in the permit regulations in

order to afford citizens the opportunity

to legally challenge permits. The Interim

Approval Notice stated that, although

some of these elements are contained in

the State’s model operating permit, one

condition of full part 70 approval would

be that the permit regulations be revised

to require that all permit elements of 40

CFR 70.6(a) be included in each permit.

In its comments, the LDEQ stated its

belief that the model permit forms and

applications submitted with the original

Operating Permits Program submittal

adequately addressed this issue.

However, in an effort to obtain full

approval, the LDEQ has revised LAC

33.III.507.B.2 to incorporate by

reference the provisions of 40 CFR 70.6

as in effect on July 21, 1992. This

revision was submitted with the

November 16, 1994, submittal and

adequately addresses the EPA’s concern.

Therefore, this is no longer an interim

approval issue.

8. Title I Modifications and Case-bycase Determinations. In the Interim

Approval Notice, the EPA discussed the

State’s definition of the phrase ‘‘title I

modification.’’ At the time of the

Interim Approval Notice, the EPA

believed that for a State’s program to be

fully approvable, it would be necessary

for the State’s definition of ‘‘title I

modification’’ to be interpreted to

include literally any change at a source

that would trigger permitting authority

review under regulations approved or

promulgated under title I of the Act.

This would include State

preconstruction review programs

approved into the State Implementation

Plan under section 110(a)(2)(C) of the

Act and regulations addressing source

changes that trigger National Emission

Standards for Hazardous Air Pollutants

established pursuant to section 112 of

the Act prior to the 1990 amendments.

LAC 33.III.502 defines ‘‘title I

modification’’ as a change at a site that

qualifies as a modification under section

111 of the Act or section 112(g) of the

Act, or that results in a significant net

emissions increase under part C or part

D of the Act. In the Interim Approval

Notice, the EPA required that the LDEQ

revise the definition of ‘‘title I

modification’’ in order to receive full

approval.

The LDEQ commented that it believed

the part 70 regulations clearly allowed

‘‘minor’’ preconstruction changes to be

processed as minor permit

modifications under part 70. The LDEQ

further stated its belief that States which

allowed minor preconstruction changes

to be processed as minor operating

permit modifications should be

approved, and to do otherwise, would

cause the States to suffer significant

negative impact.

The American Forest and Paper

Association (AF & PA) stated that the

EPA’s interpretation set out in the

Interim Approval Notice was without

legal basis, and that such an

interpretation failed to take into account

the numbers of additional source

modifications which would be required

to be processed under the significant

modification procedures of title V of the

Act. The AF & PA stated its belief that

such an interpretation would further

have potentially devastating

consequences on the AF & PA’s

members doing business in Louisiana.

The Louisiana Chemical Association

disagreed with the EPA’s position that

Louisiana’s definition of ‘‘title I

modification’’ must be revised for full

approval, and provided legislative

history excerpts in support of its

interpretation of the term ‘‘title I

modification.’’

On August 29, 1994, the EPA

proposed revisions to the interim

approval criteria in 40 CFR 70.4(d) to

allow State Operating Permits Programs

with a narrower definition of ‘‘title I

modification’’ to receive interim

approval (See 59 FR 44572, August 29,

1994). Following is a discussion of

points noted in that publication.

The EPA intended to finalize its

revisions to the interim approval criteria

under 40 CFR 70.4(d) before taking

action on part 70 Operating Permits

Programs submitted by the States.

However, publication of the proposed

revision was delayed until August 29,

1994, and several requests to the EPA to

extend the public comment period

further delayed final action on the

revisions. Given the importance of the

issues in that rulemaking to States,

sources, and the public, but mindful of

the need to take action quickly, the EPA

agreed to extend the comment period

until October 28, 1994 (see 59 FR 52122,

October 14, 1994). Consequently, final

action to revise the interim approval

criteria will not occur before the

deadline for EPA action on State

programs that were submitted on or

before November 15, 1993. The EPA

believes it would be inappropriate to

delay action on these States’ Operating

Permits Programs until final action is

taken on the interim approval revisions.

The EPA also believes it would be

inappropriate to grant interim approval

to Louisiana’s Operating Permits

Program on this issue before final action

is taken to revise the current interim

approval criteria of 40 CFR 70.4(d) in a

manner which would provide a legal

basis for such an interim approval. Prior

to the EPA’s final promulgation of

interim approval criteria, Louisiana may

maintain and implement the narrower

definition of ‘‘title I modification.’’

Upon the EPA’s final decision of what

constitutes a ‘‘title I modification,’’ if

the EPA’s definition differs from

Louisiana’s current definition, the State

will be required to revise its definition

in accordance with the EPA’s final

definition.

The EPA is allowing this approach to

‘‘title I modification’’ for a number of

reasons. First, the EPA has not yet

conclusively determined that a narrower

definition of ‘‘title I modification’’ is

incorrect and thus a basis for

disapproval (or even interim approval).

The EPA has received numerous

comments on this issue as a result of the

August 29, 1994, FR notice, and the EPA

cannot and will not make a final

decision on this issue until it has

evaluated all of the comments. Second,

the EPA believes that the Louisiana

Operating Permits Program should not

be disapproved because the EPA itself

has not yet been able to resolve this

issue through rulemaking. Moreover,

disapproving Operating Permits

Programs from States such as Louisiana

that submitted their Operating Permits

Program to the EPA on or before the

November 15, 1993, statutory deadline

could lead to the unfair result that

States which were late in submitting

Operating Permits Programs could take

advantage of revised interim approval

criteria if and when these criteria

become final. In effect, States would be

severely penalized for having made

timely program submissions to the EPA.

Finally, disapproval for a State’s

Operating Permits Program for a

potential problem that primarily affects

permit revision procedures would delay

the issuance of part 70 permits,

hampering State/Federal efforts to

improve environmental protection

through the operating permits system.

For the reasons mentioned above, the

EPA is approving the Louisiana

Operating Permits Program’s use of a

narrower definition of ‘‘title I

modification’’ at this time. However,

should the EPA in the interim approval

criteria rulemaking make the final

determination that such a narrow

definition of ‘‘title I modification’’ is

incorrect and that a revision of the

interim approval criteria is warranted,

the EPA will propose further action on
17754 Federal Register / Vol. 60, No. 67 / Friday, April 7, 1995 / Proposed Rules

Louisiana’s Operating Permits Program

so that the State’s definition of ‘‘title I

modification’’ could become grounds for

interim approval. A State Operating

Permits Program like the one in

Louisiana, which receives full approval

of its narrower definition pending

completion of the EPA’s rulemaking,

must ultimately be placed on an equal

footing with States which receive

interim approval in later months under

revised interim approval criteria based

on the same issue. Converting the full

approval on this issue to an interim

approval after the EPA completes its

rulemaking will avoid this inequity. The

EPA anticipates that an action to

convert the full approval on the ‘‘title I

modification’’ issue to an interim

approval would be effected through an

additional rulemaking, so as to ensure

that there is adequate notice of the

change in approval status.

Questions have been raised on a

national level concerning whether the

40 CFR 70.7(e)(2)(i)(A)(3) provisions

prohibiting minor modifications for

changes in ‘‘case-by-case’’

determinations would apply in the

instance of a preconstruction permit in

which the permitting authority, through

a minor modification procedure,

changes a source-specific control

technology requirement not required

under part C or D or section 111 or 112

of the Act, or an emission limitation

determination established on a sourcespecific basis. At the time of the Interim

Approval Notice, the EPA believed the

better interpretation of 40 CFR

70.7(e)(2)(i)(A)(3) required that any

requirement imposed on a sourcespecific basis, such as one in which the

permitting authority has discretion in

setting the requirement for the

particular source, must be considered to

be a ‘‘case-by-case’’ determination.

Therefore, the EPA believed that a

change involving a source-specific

requirement in a preconstruction permit

would be considered a ‘‘case-by-case

determination of an emission

limitation’’ under 40 CFR

70.7(e)(2)(i)(A)(3), ineligible for

processing as a minor permit

modification.

LAC 33.III.525.A.2.d allows the use of

minor modification procedures for some

changes which would be considered

‘‘case-by-case’’ emission limits under

the EPA’s narrower interpretation. The

EPA is taking comment on whether a

less narrow interpretation of ‘‘case-bycase’’ is acceptable.

Therefore, the EPA will not at this

time construe 40 CFR 70.7(e)(2)(i)(A)(3)

to prohibit Louisiana from allowing

minor preconstruction changes to be

processed as minor permit

modifications. Should the EPA’s final

interpretation be inconsistent with

Louisiana’s current regulations, the

definition of ‘‘case-by-case’’ will also be

an interim approval issue. The EPA

anticipates that an action to convert the

full approval on the ‘‘case-by-case’’

issue to an interim approval would be

effected through an additional

rulemaking, so as to ensure that there is

adequate notice of the change in

approval status.

9. Insignificant Activities. As the

Interim Approval Notice indicated,

provisions to determine insignificant

activities were not included with the

State’s original submittal. The State’s

later, November 16, 1994, submittal

contained a list of insignificant

activities and criteria for determining

which activities were sufficiently

insignificant to be exempt from the

requirement to obtain a permit, or from

inclusion in a permit (for a part 70

source engaged in other activities which

must appear in permits), unless the

LDEQ determines on a site-specific basis

that such exemption is not appropriate.

These insignificant activities were

divided into four categories. The first

category consisted of activities based on

size or production rate that were

required to be included in the

application but not the permit. This is

consistent with 40 CFR 70.5(c) which

provides that, if approved by the EPA,

a list of insignificant activities based on

size or production rate may be

exempted from inclusion in a part 70

permit, although they must still be

included in the application. LAC

33.III.501.B.5 provides that any activity

to which a State or Federal applicable

requirement applies is not insignificant

even if the activity meets the criteria of

the ‘‘Insignificant Activities List.’’

Therefore such an activity must be

included in the permit. The LDEQ has

clarified in a letter that insignificant

activities may not be exempted from

major source applicability

determinations. This is consistent with

40 CFR 70.3(c) and 70.5(c) which

requires that the permitting authority

include in the permit all applicable

requirements for all relevant emissions

units.

As allowed by 40 CFR 70.5(c), LAC

33.III.501.B.5 contains a second category

based on activities that do not need to

be included in a permit application.

This list includes activities such as

maintenance of grounds, general repairs,

lawn care, steam cleaning, certain

painting activities, use of adhesives,

office activities, vehicle emissions, etc.

The third category of insignificant

activities is based on type of pollutant.

LAC 33.III.501.B.5 allows water vapor,

oxygen, carbon dioxide, nitrogen, and

hydrogen to be exempt from the permit

application.

The last category of insignificant

activities is based on emissions levels.

In order to use this category, the source

must receive prior approval from the

LDEQ, and all of the criteria must be

met. These criteria include: (a) The

emissions unit emits and has the

potential to emit no more than five tons

per year of any regulated air pollutant;

(b) the emissions unit emits and has the

potential to emit less than the minimum

emission rate listed in Table 51.1, LAC

33.III.Chapter 51, for each Louisiana

toxic air pollutant; (c) the emissions

unit emits and has the potential to emit

less than the de minimis rate

established pursuant to section 112(g) of

the Federal Act for each hazardous air

pollutant; and (d) no enforceable permit

conditions are necessary to ensure

compliance with any applicable

requirement.

The EPA believes that these

insignificant criteria are sufficient to

ensure that every application contains

the information needed to determine the

applicability of, and to impose, any

applicable requirement, or to evaluate

the fee amount as required by 40 CFR

70.5(c). The list and its criteria meet the

requirements of 40 CFR part 70 and

therefore are approvable. The EPA will

accept comments on the insignificant

activities discussed herein, as well as

other provisions of the State’s revised

submittal.

B. Discussion of Other Comments

1. Section 112(g) Comments.

Louisiana Mid-Continent Oil and Gas

Association (LAMOGA) was concerned

that the Louisiana Operating Permits

Program was being approved prior to

the finalization of Federal requirements

regarding section 112(g) of the Act on

modification of sources of hazardous air

pollutants. The AF & PA commented

that it believes the EPA’s delegation to

Louisiana of section 112(g) authority is

unlawful and confusing to the regulated

community, because the EPA has not

issued any regulation to implement this

statutory language and does not expect

to finally adopt such a regulation for

many months. The AF & PA opposes the

approval of the Louisiana

preconstruction permit rules for the

implementation of section 112(g),

because it believes that these rules were

never intended to define or otherwise

address issues such as ‘‘de minimis’’

and offsets. The AF & PA is concerned

that sources would have no way to

determine whether and when they are

subject to the program until a final
Federal Register / Vol. 60, No. 67 / Friday, April 7, 1995 / Proposed Rules 17755

Federal section 112(g) rule is

promulgated.

In the Interim Approval Notice, the

EPA also proposed to approve

Louisiana’s preconstruction program for

the purpose of implementing section

112(g) during the transition period

before a Federal rule had been

promulgated implementing section

112(g). This proposal was based in part

on an interpretation of the Act that

would require sources to comply with

section 112(g) beginning on the date of

approval of the Operating Permits

Program, regardless whether the EPA

had completed its section 112(g)

rulemaking. The EPA has since revised

this interpretation of the Act in the

Federal Register (see 60 FR 8333,

February 14, 1995) (hereafter

Interpretive Notice). The Interpretive

Notice postpones the effective date of

section 112(g) until after the EPA has

promulgated a final rule addressing that

provision. The rationale for the revised

interpretation was explained in detail in

the Interpretive Notice. The EPA’s new

position of not requiring the

implementation of section 112(g) until

the Federal 112(g) rule is promulgated

renders moot the AF & PA comment

regarding section 112(g).

The Interpretive Notice explains that

the EPA is still considering whether the

effective date of section 112(g) should

be delayed beyond the date of

promulgation of the Federal rule to

allow States time to adopt rules

implementing the Federal rule. If a

decision is made to allow such

additional delay in the implementation

of section 112(g), the EPA will

announce that decision in the final

section 112(g) rulemaking.

2. Natural Resources Defense Council

(NRDC) Comments. The NRDC objected

to the approval of the Louisiana

Operating Permits Program for the same

reasons the NRDC objected to the EPA’s

part 70 regulation upon which the

approval was based. The NRDC’s earlier

comments on the national proposed part

70 rulemaking were attached to its

comments on the proposed approval of

the Louisiana Operating Permits

Program. The EPA believes the

appropriate forum for pursuing

objections to the legal validity of the

part 70 rule is through a petition for

review of the rule in the D.C. Circuit

Court of Appeals; therefore, those part

70 comments will not be addressed in

this notice. Unless and until the part 70

rule is revised, the EPA must evaluate

proposed part 70 programs according to

the rule currently in effect.

3. Enhanced Monitoring. The

LAMOGA expressed concern that the

Louisiana Operating Permits Program

was being approved prior to the

finalization of Federal enhanced

monitoring requirements. The LDEQ

will implement the enhanced

monitoring requirements of the Act and

provide appropriate permit conditions

after the Federal enhanced monitoring

rules are finalized. The EPA will not

delay approval of Louisiana’s Operating

Permits Program based on the fact that

the Federal enhanced monitoring rule is

not yet finalized.

4. General Comments. The EPA

received comments from Citizens for a

Clean Environment and some comments

from LAMOGA favorable to the

Louisiana Operating Permits Program

and requesting full approval for the

program.

C. Provisions Implementing the

Requirements of Other Titles of the Act

By submitting the State’s Operating

Permits Program for approval, Louisiana

commits to appropriately implementing

and enforcing the existing and future

requirements of sections 111, 112, and

129 of the Act, and all maximum

achievable control technology (MACT)

standards promulgated in the future, in

a timely manner.

Requirements for title V approval,

specified in 40 CFR 70.4(b), encompass

section 112(l)(5) requirements for

approval of a program for delegation of

Federal section 112 standards as they

apply to part 70 sources. The State of

Louisiana acknowledges that its request

for approval of a part 70 program is also

a request for approval of a program for

delegation of unchanged section 112

standards under the authority of section

112(l) as they apply to part 70 sources.

Section 112(l)(5) requires that the

State’s program contain adequate

authorities, adequate resources for

implementation, and an expeditious

compliance schedule, which are also

requirements under 40 CFR part 70.

Therefore, as part of this proposal for

full approval, the EPA is also proposing

to grant approval under section 112(l)(5)

and 40 CFR 63.91 of the State’s program

for receiving delegation of section 112

standards that are unchanged from

Federal standards as promulgated. At

this time, the State plans to use the

mechanism of incorporation by

reference to adopt unchanged Federal

section 112 requirements into its

regulations. After this approval is made

final, in cases where the State utilizes

the mechanism of incorporation by

reference, no additional Federal public

comment period will occur prior to the

transfer of authority for unchanged

section 112 standards to the State. This

approval for delegation of unchanged

Federal section 112 standards applies to

existing and future standards as they

apply to sources covered by the part 70

program. The State retains the option at

any time to promulgate the full text of

the Federal standard unchanged or to

request delegation of section 112

standards in the form of State

regulations which the State

demonstrates are equivalent to the

corresponding section 112 provisions

promulgated by the EPA instead of

using the mechanism of incorporation

by reference. If the State chooses either

of these options, an approval under 40

CFR part 63 subpart E will be required.

D. Summary

The State of Louisiana submitted to

the EPA, under cover letters from the

Governor dated November 4, 1993, and

November 10, 1994, the State’s

Operating Permits Program and the

State’s revised Operating Permits

Program, respectively. The original and

revised submittals have been reviewed

for adequacy under the requirements of

title V of the Act and the 40 CFR part

70 regulations which together outline

criteria for approval and disapproval.

The results of this review are included

in the technical support document. The

EPA believes that the LDEQ, in its

revised submittal, has adequately

addressed all issues discussed in the

Interim Approval Notice which

proposed interim approval. The EPA

believes the insignificant activities list

and criteria are fully approvable.

Therefore, at this time the EPA is

proposing to grant full approval to the

Louisiana Operating Permits Program.

The EPA is soliciting comments on all

aspects of this proposed full approval.

E. Options for Approval/Disapproval

The EPA proposes to withdraw the

proposed interim approval announced

in the Interim Approval Notice and to

fully approve the Operating Permits

Program submitted to the EPA from the

State of Louisiana on November 15,

1993, and revised on November 16,

1994. Louisiana has demonstrated that

the program meets the minimum

elements of a State Operating Permits

Program as specified in 40 CFR part 70.

III. Administrative Requirements

A. Request for Public Comments

The EPA is requesting comments on

Louisiana’s revised submittal as

discussed in this proposed full

approval. Copies of the State’s submittal

and other information relied upon for

the proposed full approval are

contained in a docket maintained at the

EPA Regional Office. The docket is an

organized and complete file of all the
17756 Federal Register / Vol. 60, No. 67 / Friday, April 7, 1995 / Proposed Rules

1The EPA has construed the definition of

nonattainment area to require some material or

significant contribution to a violation in a nearby

area. The Agency believes it is reasonable to

conclude that something greater than a molecular

impact is required.

information submitted to, or otherwise

considered by, the EPA in the

development of this proposed interim

approval. The principal purposes of the

docket are:

(1) To allow interested parties a

means to identify and locate documents

so that they can effectively participate

in the approval process, and

(2) To serve as the record in case of

judicial review. The EPA will consider

any comments received by May 8, 1995.

B. Executive Order 12866

The Office of Management and Budget

has exempted this regulatory action

from Executive Order 12866 review.

C. Regulatory Flexibility Act

The EPA’s actions under section 502

of the Act do not create any new

requirements, but simply address

Operating Permits Programs submitted

to satisfy the requirements of 40 CFR

part 70. Because this action does not

impose any new requirements, it does

not have a significant impact on a

substantial number of small entities.

List of Subjects in 40 CFR Part 70

Environmental protection, Air

pollution control, Intergovernmental

relations, Operating permits,

Administrative practice and procedure,

Reporting and recordkeeping

requirements.

V. Miscellaneous

A. Proposed Full Approval

Proposed full approval of the part 70

Operating Permits Program for the State

of Louisiana.

Authority: 42 U.S.C. 7401–7671q.

Dated: March 30, 1995.

Jane N. Saginaw,

Regional Administrator (6A).

[FR Doc. 95–8608 Filed 4–6–95; 8:45 am]

BILLING CODE 6560–50–P

40 CFR Part 81

[NM–25–1–6908; FRL–5185–5]

Designation of Area for Air Quality

Planning Purposes; New Mexico;

Designation of Sunland Park Ozone

Nonattainment Area

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Proposed rule.

SUMMARY: Pursuant to the Clean Air Act

(CAA), as amended in 1990, the EPA is

authorized to promulgate new

designations of areas (or portions

thereof) as nonattainment for the ozone

National Ambient Air Quality Standards

(NAAQS). In this action, the EPA is

proposing to revise the ozone

designation for a portion of Dona Ana

County, New Mexico (i.e. the Sunland

Park area). Previously, consistent with

the CAA, the EPA notified the Governor

of New Mexico that the Sunland Park

area should be redesignated from

unclassifiable/attainment to

nonattainment for ozone. The

redesignation is based upon violations

of the ozone NAAQS which were

monitored from 1992–1994.

DATES: All written comments must be

received by May 8, 1995.

ADDRESSES: Written comments on this

action should be addressed to Mr.

Thomas H. Diggs, Chief, Planning

Section, at the EPA Regional Office

listed below. Copies of the documents

relevant to this action are available for

public inspection during normal

business hours at the addresses listed

below. The interested persons wanting

to examine these documents should

make an appointment at least twentyfour hours before the visiting day.

U.S. Environmental Protection Agency,

Region 6, Air Programs Branch (6T–

A), 1445 Ross Avenue, suite 700,

Dallas, Texas 75202–2733.

New Mexico Environment Department,

Air Monitoring & Control Strategy

Bureau, 1190 St. Francis Drive, room

So. 2100, Santa Fe, New Mexico

87503.

FOR FURTHER INFORMATION CONTACT: Mr.

Mark Sather, Planning Section (6T–AP),

Air Programs Branch (6T–A), USEPA

Region 6, 1445 Ross Avenue, Dallas,

Texas 75202–2733, telephone (214)

665–7258.

SUPPLEMENTARY INFORMATION:

Background

By operation of law upon enactment

of the 1990 amendments to the CAA

(Public Law 101–549, 104 Statute 2399),

all areas of the country were designated

either nonattainment or unclassifiable/

attainment for the ozone NAAQS [see

section 107(d)(4)(A) of the CAA; 56 FR

56694–56858 (November 6, 1991), 57 FR

56762–56778 (November 30, 1992), and

59 FR 18967–18971 (April 21, 1994)].

The amended CAA also authorizes the

EPA to revise the designation of current

ozone areas from unclassifiable/

attainment to nonattainment on the

basis of air quality data, planning and

control considerations, or any other air

quality-related considerations the EPA

deems appropriate [see section 107(d)(3)

of the CAA].

Following the process outlined in

section 107(d)(3), on December 16,

1994, the Regional Administrator of the

EPA Region 6 notified the Governor of

New Mexico that the EPA believed the

Sunland Park area should be

redesignated as nonattainment for

ozone. Under section 107(d)(3)(B) of the

CAA, the Governor of New Mexico was

required to submit to the EPA the

designation considered appropriate for

the Sunland Park area within 120 days

after the EPA’s notification. The EPA

received the State’s response for the

Sunland Park area on February 6, 1995

(letter dated January 30, 1995). Now, the

EPA must promulgate the redesignation

that it deems necessary and appropriate,

consistent with section 107(d)(3)(C) of

the CAA.

Based upon the EPA’s review of the

State’s January 30, 1995, letter for the

Sunland Park area, the EPA is proposing

a redesignation to nonattainment which

is consistent with the request submitted

by the Governor of New Mexico. The

EPA is requesting comments on this

action and will consider any relevant

comments before taking final action.

Section 107(d)(1)(A) of the CAA sets

out definitions of nonattainment,

attainment, and unclassifiable. The EPA

has proposed that the Sunland Park area

in Dona Ana County, New Mexico,

addressed in this action, be redesignated

nonattainment for the ozone NAAQS. A

nonattainment area is defined as any

area that does not meet (or that

significantly contributes to ambient air

quality in a nearby area that does not

meet) the national primary or secondary

ambient air quality standard for ozone

[see section 107(d)(1)(A)(i) of the CAA].1

Thus, in determining the appropriate

boundaries for the nonattainment area

proposed in this action, the EPA has

considered not only the area where the

violations of the ozone NAAQS are

occurring, but nearby areas which

significantly contribute to such

violations.

Proposed Action

As noted above, pursuant to section

107(d)(3) of the CAA, the EPA is

authorized to initiate the redesignation

of areas as nonattainment for ozone.

Based on the ozone air quality

monitoring data for the Sunland Park

monitoring station, the EPA notified the

Governor of New Mexico on December

16, 1994, that the Sunland Park area

should be redesignated from

unclassifiable/attainment to

nonattainment for the ozone NAAQS.

Ozone monitoring began in Sunland

Park on June 15, 1992. Seven measured