Clean Air Act Proposed Full Approval of Operating Permits Program; Louisiana Department of Environmental Quality

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 70

[LA-001; FRL-5185-4]

Clean Air Act Proposed Full Approval of Operating Permits

Program; Louisiana Department of Environmental Quality

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed full approval.

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SUMMARY: The EPA proposes to rescind the proposed interim approval of

the Louisiana Operating Permits Program published in the Federal

Register (see 59 FR 43797, August 25, 1994) (hereafter Interim Approval

Notice) and propose full approval of the Operating Permits Program as

revised by the State's November 16, 1994, submittal. The proposed

interim approval in the Interim Approval Notice was based upon the

Operating Permits Program submitted by the Governor of Louisiana for

the Louisiana Department of Environmental Quality (LDEQ) and received

by the EPA on November 15, 1993. On November 16, 1994, the State

submitted material revisions adequately addressing the issues raised by

the EPA in the Interim Approval Notice and adding insignificant

activities criteria to the Louisiana Operating Permits Program. This

revised Operating Permits Program will provide for the issuance of

operating permits to all major stationary sources and to certain other

sources with the exception of sources on Indian Lands, in compliance

with the Federal requirements.

DATES: Comments on this proposed action must be received in writing by

May 8, 1995.

ADDRESSES: Written comments on this action should be addressed to Ms.

Jole C. Luehrs, Chief, New Source Review Section, at the EPA Region 6

Office listed below. Copies of the State's submittal and other

supporting information used in developing the proposed full approval

are available for inspection during normal business hours at the

following locations. Interested persons wanting to examine these

documents should make an appointment with the appropriate office at

least 24 hours before visiting day.

Environmental Protection Agency, Region 6, Air Programs Branch (6T-

AN), 1445 Ross Avenue, Suite 700, Dallas, Texas 75202-2733. Louisiana

Department of Environmental Quality, Office of Air Quality, 7290

Bluebonnet Boulevard, P.O. Box 82135, Baton Rouge, Louisiana 70884-

2135.

FOR FURTHER INFORMATION CONTACT: Joyce P. Stanton, New Source Review

Section, Environmental Protection Agency, Region 6, 1445 Ross Avenue,

Suite 700, Dallas, Texas 75202-2733, telephone 214-665-7218.

SUPPLEMENTARY INFORMATION:

I. Background and Purpose

A. Introduction

As required under title V of the Clean Air Act as amended on

November 15, 1990 (``the Act''), the EPA has promulgated rules which

define the minimum elements of an approvable State Operating Permits

Program and the corresponding standards and procedures by which the EPA

will approve, oversee, and withdraw approval of a State Operating

Permits Program (see 57 Federal Register 32250, July 21, 1992). These

rules are codified at 40 Code of Federal Regulations (CFR) part 70.

Title V requires States to develop, and submit to the EPA, programs for

issuing these operating permits to all major stationary sources and to

certain other sources.

The Act requires that States develop and submit these Operating

Permits Programs to the EPA by November 15, 1993, and that the EPA act

to approve or disapprove each Operating Permits Program within one year

after receiving the submittal. The EPA's Operating Permits Program

review occurs pursuant to section 502 of the Act and the part 70

regulations, which together outline criteria for approval and

disapproval. The EPA proposed interim approval in the Interim Approval

Notice on August 25, 1994, for the Operating Permits Program submitted

by the LDEQ on November 15, 1993. However, 40 CFR 70.4(e)(2) allows the

Administrator to extend the review period of a State's submittal if the

State's submission is materially altered during the one-year review

period. This additional review period may not extend beyond one year

following receipt of the revised submission. On November 16, 1994, the

EPA received material changes to Louisiana's Operating Permits Program

from the Governor of Louisiana on behalf of the LDEQ. These changes

included regulations adopted to add insignificant activities criteria,

and to address issues raised in the Interim Approval Notice. The EPA

will act expeditiously to promulgate a final notice on the State's

revised Operating Permits Program within one year of the November 16,

1994, revised submittal. The publication of this proposal allows the

public the opportunity to review and comment on the changes contained

in the revised submittal.

At this time, the EPA proposes to rescind the interim approval

proposed [[Page 17751]] in the Interim Approval Notice and instead

proposes full approval of the Operating Permits Program as revised by

the November 16, 1994, submittal. The Interim Approval Notice had a 30-

day comment period which was extended an additional 30 days to October

26, 1994 (see 59 FR 50537, October 4, 1994). The comments received on

issues discussed in the Interim Approval Notice during that comment

period are discussed in this notice together with a discussion of the

revisions to the State's Operating Permits Program received on November

16, 1994.

II. Proposed Action and Implications

A. Analysis of State Submission

1. Confidentiality Provisions. In the Interim Approval Notice, the

EPA stated that, while the State statute provided that certain

environmental information such as air emissions data may not be held

confidential, it was not clear whether these confidentiality provisions

could be interpreted to protect the contents of the permit itself from

disclosure. The Interim Approval Notice stated that the LDEQ must

either submit an Attorney General's Opinion demonstrating that the

State's statute is interpreted not to allow any portion of a permit to

be held confidential, consistent with section 503(e) of the Act, or

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

517.F (permit regulations) to clarify that no portion of the permit may

be held confidential. In response to this statement in the Interim

Approval Notice, the LDEQ commented that it did not currently protect

from disclosure as confidential any permit issued under LAC

33.III.Chapter 5, and that the LDEQ has adopted a conservative policy

in interpreting the reference to ``emissions data'' in a manner which

limits the grant of confidentiality under the Louisiana statute. The

LDEQ stated, however, that in the interest of cooperation, it would

revise its regulations. The November 16, 1994, submittal contained a

revision to LAC 33:III.517.F which requires that no permit or portion

of a permit issued to a source in accordance with Louisiana's Operating

Permits Program shall be held confidential. This regulatory revision

has adequately addressed the EPA's concern regarding confidentiality

and is no longer an interim approval issue.

2. Requirement that No Major Source be Exempt from Part 70

Requirements Because a Research and Development (R&D) Facility is Co-

located with the Source. In the Interim Approval Notice, the EPA

explained that LAC 33:III.501.B.7 allows the permitting authority to

consider a certain complex within a facility as a source separate from

the facility with which it is co-located, provided that the complex is

used solely for R&D of new processes and/or products, and is not

engaged in the manufacture of products for commercial sale. The EPA

noted that this regulation was inconsistent with 40 CFR 70.3 which

requires that a State's Operating Permits Program provide for the

permitting of all major sources, and 40 CFR 70.4(b)(3)(i) which

requires that the State demonstrate adequate legal authority to issue

permits and assure compliance with each applicable requirement by all

part 70 sources.

The Interim Approval Notice explained that 40 CFR 70.2 requires all

sources located on contiguous or adjacent properties, under common

control, and belonging to a single major industrial grouping, to be

considered as the same source. The EPA concluded that the Louisiana

permit regulations could cause certain part 70 major sources, as

defined in 40 CFR 70.2, or portions of such sources with the same

Standard Industrial Classification (SIC) code, to be treated as

separate sources. This could cause some part 70 sources to be exempted

from coverage by part 70 permits which must ensure that all part 70

requirements for those sources are met.

The Interim Approval Notice went on to state that for full part 70

approval, the LDEQ would be required to revise its permit regulations

and demonstrate that no source, or portion of a source, which would be

defined as major under 40 CFR 70.2 would be exempted from part 70

requirements because an R&D facility is co-located with the source.

One commenter objected to the EPA's proposed action related to the

R&D issue and stated that by limiting the scope of the exemption to R&D

facilities with different SIC codes, the EPA has virtually eliminated

any relief for R&D facilities. The commenter stated that, since R&D

activities are so limited in time, scale, and actual production,

subjecting these activities to the Operating Permits Program

requirements unnecessarily burdened research by companies as well as

the State's Operating Permits Programs. This commenter also requested

that any guidance concerning R&D facilities be published for public

comment as part of future part 70 rulemakings. The EPA's position

continues to be that 40 CFR part 70 allows R&D facilities to be treated

separately in cases where the R&D facility has a different two-digit

SIC code and is not a support facility.

The LDEQ commented that its regulatory provision cited as deficient

on this point had been incorporated into the State's Operating Permits

Program based on the State's understanding of guidance provided by the

EPA in the preamble to the part 70 regulations. In the Interim Approval

Notice, the EPA explained that the preamble language was intended to

clarify the flexibility in 40 CFR part 70 for allowing R&D facilities

to be treated separately from the manufacturing facilities with which

they are co-located where the R&D facility has a different two-digit

SIC code and is not a support facility. This approach is consistent

with the treatment of R&D facilities in the New Source Review program.

In response to the Interim Approval Notice and in an effort to receive

full approval of Louisiana's Operating Permits Program, the LDEQ has

revised LAC 33:III.501.B.7 to include a provision that an R&D facility

may be considered separately provided the facility has a different two-

digit SIC code from, and is not a support facility of, the source with

which it is co-located. This revision was included in the November 16,

1994, submittal. This change adequately addresses the EPA's concern and

the State's treatment of R&D facilities is no longer an interim

approval issue.

3. Acid Rain Application Deadlines. In the Interim Approval Notice,

the EPA discussed LAC 33.III.507.C.1.b which contained the deadlines

for submittal of acid rain permit applications. Although this section

purported to cover all relevant dates for submittal of acid rain permit

applications, this section did not contain the deadlines required by 40

CFR 72.30(b)(2)(iii) for new units and for units that did not serve a

generator with a name plate capacity greater than 25 Megawatts

electrical on November 15, 1990, but which served such a generator

after November 15, 1990. In the Interim Approval Notice, the EPA noted

that LAC 33:III.505.D.2 contains the deadlines for submittal of acid

rain permit applications consistent with those required by title IV of

the Act, but that it contradicted LAC 33.III.507.C.1.b. The Interim

Approval Notice explained that, even though LAC 33.III.505.A.4 provides

that Federal acid rain requirements applicable to an affected source

shall supersede LAC 33:III.Chapter 5 of the Louisiana Regulations where

the two are inconsistent, the inconsistency between LAC 33.III.505.D.2,

507.C.1.b and the Federal acid rain regulations created a lack of

clarity and should be eliminated. The Interim Approval Notice required

that, for full part 70 approval, LAC 33.III.507.C.1.b be revised to

require the [[Page 17752]] affected sources to conform with the

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

The LDEQ commented that the provisions of LAC 33.III.507.C.1.b

cited by the EPA in the Interim Approval Notice as creating an interim

approval issue were incorporated by the LDEQ in response to an earlier

EPA comment on the LDEQ's proposed Air Quality regulations. The State

responded by stating that, despite the error in LAC 33.III.507.C.1.b,

LAC 33.III.505.A.4 and 505.D.2 would still require sources to comply

with all Federal acid rain deadlines. However, the November 16, 1994,

Operating Permits Program submittal included a revision to LAC

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

deadlines as requested by the EPA. This revision adequately addresses

the EPA's concern and, therefore, this is no longer an interim approval

issue.

4. Provision for Administrative Amendments. In the Interim Approval

Notice, the EPA stated its concern that LAC 33.III.521.A.6 could be

interpreted to allow administrative amendments to permits to

incorporate changes authorized by 40 CFR 70.4(b)(14). These ``off-

permit'' changes, which are not addressed or prohibited by the permit,

may be made under part 70 without permit revisions. However, the

Interim Approval Notice explained that the part 70 rule contains no

authority for such changes to be incorporated into operating permits

except through the appropriate part 70 permit procedures for minor or

significant modifications. In the Interim Approval Notice, the EPA

stated that, for full part 70 approval, section 521.A.6 of the permit

regulations must be revised to eliminate administrative amendments for

this type of change.

LAC 33.III.521.A.6 also allows changes to be made to operating

permits by administrative amendment where the State's permitting

authority has determined they are similar to the changes listed in LAC

33.III.521.A. The Interim Approval Notice explained that part 70 allows

changes submitted as part of a State's part 70 program, in addition to

those specified in 40 CFR 70.7(d)(1), to be made as administrative

amendments where the EPA Administrator determines those changes to be

similar to the changes listed in 40 CFR 70.7(d)(1)(i)-(iv). However, no

such proposed changes were submitted by the State as part of its

Operating Permits Program, and part 70 does not allow for the

substitution of the State permitting authority's approval for the

Administrator's approval, which is required by 40 CFR 70.7(d)(1)(vi).

The Interim Approval Notice required that, for full part 70 approval,

this defect in LAC 33.III.521.A.6 of the permit regulations must be

corrected.

The LDEQ commented that the cited provision was intended by the

State to allow the LDEQ discretion in revising permits for terms and

conditions altogether outside the scope of 40 CFR part 70 and would not

circumscribe 40 CFR part 70. However, to receive full approval, LAC

33.III.521.A.6 has been revised to clarify that this provision can be

used solely for State-only changes involving terms and conditions which

are not federally enforceable. These revisions were included in the

November 16, 1994, submittal and adequately address the EPA's concerns.

Therefore, this is no longer an interim approval issue.

5. Requirement to Keep Records for Five Years. In the Interim

Approval Notice, the EPA cited the 40 CFR 70.8(a)(3) requirement that

each State permitting authority keep for five years such records as the

Administrator may reasonably require to ascertain whether the State

program complies with the requirements of the Act and 40 CFR part 70.

While 44 Louisiana Revised Statute (L.R.S.) section 1 contains a very

broad definition of ``public records,'' 44 L.R.S. section 36 requires

the records to be kept for only three years unless a longer formal

retention schedule has been developed. The Interim Approval Notice

required as a condition of full part 70 approval, a statutory change or

a supplemental Attorney General's Opinion demonstrating how the current

statute ensures that the required records will be kept for at least

five years.

The LDEQ commented that it intended to keep records for five years,

and that it believed that 40 CFR part 70 did not require a permit rule

ensuring that records be retained for five years. It remains the EPA's

position that because the language in the Louisiana Statute does not

appear to ensure that records be retained for five years, 40 CFR

70.8(a)(3) requires either an Attorney General's Opinion demonstrating

how this statute ensures a five-year retention of these records or a

statutory or regulatory change. In the interest of obtaining full

approval, the LDEQ revised LAC 33.III.533.B.5. As revised, LAC

33.III.533.B.5 provides that the permitting authority shall keep for

five years such records and submit to the EPA such information as the

Administrator may reasonably require to ascertain whether the State

Operating Permits Program complies with the requirements of part 70 and

the Act. This revision, which was included in the November 16, 1994,

submittal, adequately addresses the EPA's concern, and records

retention is no longer an interim approval issue.

6. Significant Modification Procedures. In the Interim Approval

Notice the EPA stated its concern about the lack of clarity of LAC

33.III.527.A.3. This provision allowed certain changes that rendered

existing compliance terms irrelevant to be incorporated through minor

modification procedures. The changes cited appeared to be of the type

described in 40 CFR 70.4(b)(14), ``off-permit'' changes. However, the

State's provision was unclear, and the Interim Approval Notice

explained that, to remedy this ambiguity, the State should add language

clarifying that the modification is one which would qualify as a change

under 40 CFR 70.4(b)(14), because it is not addressed or prohibited by

the permit and would otherwise qualify for treatment as a minor

modification under 40 CFR 70.7(e)(2)(i)(A).

The LDEQ commented that the cited State provision was meant only to

clarify that obsolete compliance measures could be removed from the

permit without requiring a significant permit modification. In the

interest of obtaining full approval, however, the LDEQ deleted LAC

33.III.527.A.3 in its entirety. This revision, which was included in

the November 16, 1994, submittal, has adequately addressed the EPA's

concern, and the previously noted ambiguity is no longer an interim

approval issue.

7. Permit Conditions. In the Interim Approval Notice, the EPA

explained that even though the permit content requirements of 40 CFR

70.6(a) are met by the model permit submitted in Volume III of the

State's original part 70 submittal, 40 CFR 70.4(b)(16) also requires

regulatory provisions in the State's program to implement the

requirements of 40 CFR 70.6 and 70.7. The EPA noted that LAC

33.III.501.C.5 and 6 speak generally to permit terms and conditions,

but do not set out all requirements for each operating permit as

required.

Specifically, the EPA noted that these State provisions did not

include a requirement that the permit specify the origin of and

reference the authority for each term or condition, nor did they

identify differences in form from the applicable requirements upon

which the terms were based or contain various other elements required

by 40 CFR 70.6. The Interim Approval Notice explained that 40 CFR

70.6(a) includes requirements for emission limitations, monitoring, and

recordkeeping, and specifies that the regulation must state that no

permit revision shall be required under any approved economic

[[Page 17753]] incentive, marketable permits, or similar program. The

Interim Approval Notice stated that a severability clause is also

required to ensure the continued validity of the various permit

requirements in the event of a challenge to any portion of the permit.

The EPA stated that these elements must be addressed in the permit

regulations in order to afford citizens the opportunity to legally

challenge permits. The Interim Approval Notice stated that, although

some of these elements are contained in the State's model operating

permit, one condition of full part 70 approval would be that the permit

regulations be revised to require that all permit elements of 40 CFR

70.6(a) be included in each permit.

In its comments, the LDEQ stated its belief that the model permit

forms and applications submitted with the original Operating Permits

Program submittal adequately addressed this issue. However, in an

effort to obtain full approval, the LDEQ has revised LAC 33.III.507.B.2

to incorporate by reference the provisions of 40 CFR 70.6 as in effect

on July 21, 1992. This revision was submitted with the November 16,

1994, submittal and adequately addresses the EPA's concern. Therefore,

this is no longer an interim approval issue.

8. Title I Modifications and Case-by-case Determinations. In the

Interim Approval Notice, the EPA discussed the State's definition of

the phrase ``title I modification.'' At the time of the Interim

Approval Notice, the EPA believed that for a State's program to be

fully approvable, it would be necessary for the State's definition of

``title I modification'' to be interpreted to include literally any

change at a source that would trigger permitting authority review under

regulations approved or promulgated under title I of the Act. This

would include State preconstruction review programs approved into the

State Implementation Plan under section 110(a)(2)(C) of the Act and

regulations addressing source changes that trigger National Emission

Standards for Hazardous Air Pollutants established pursuant to section

112 of the Act prior to the 1990 amendments. LAC 33.III.502 defines

``title I modification'' as a change at a site that qualifies as a

modification under section 111 of the Act or section 112(g) of the Act,

or that results in a significant net emissions increase under part C or

part D of the Act. In the Interim Approval Notice, the EPA required

that the LDEQ revise the definition of ``title I modification'' in

order to receive full approval.

The LDEQ commented that it believed the part 70 regulations clearly

allowed ``minor'' preconstruction changes to be processed as minor

permit modifications under part 70. The LDEQ further stated its belief

that States which allowed minor preconstruction changes to be processed

as minor operating permit modifications should be approved, and to do

otherwise, would cause the States to suffer significant negative

impact.

The American Forest and Paper Association (AF & PA) stated that the

EPA's interpretation set out in the Interim Approval Notice was without

legal basis, and that such an interpretation failed to take into

account the numbers of additional source modifications which would be

required to be processed under the significant modification procedures

of title V of the Act. The AF & PA stated its belief that such an

interpretation would further have potentially devastating consequences

on the AF & PA's members doing business in Louisiana.

The Louisiana Chemical Association disagreed with the EPA's

position that Louisiana's definition of ``title I modification'' must

be revised for full approval, and provided legislative history excerpts

in support of its interpretation of the term ``title I modification.''

On August 29, 1994, the EPA proposed revisions to the interim

approval criteria in 40 CFR 70.4(d) to allow State Operating Permits

Programs with a narrower definition of ``title I modification'' to

receive interim approval (See 59 FR 44572, August 29, 1994). Following

is a discussion of points noted in that publication.

The EPA intended to finalize its revisions to the interim approval

criteria under 40 CFR 70.4(d) before taking action on part 70 Operating

Permits Programs submitted by the States. However, publication of the

proposed revision was delayed until August 29, 1994, and several

requests to the EPA to extend the public comment period further delayed

final action on the revisions. Given the importance of the issues in

that rulemaking to States, sources, and the public, but mindful of the

need to take action quickly, the EPA agreed to extend the comment

period until October 28, 1994 (see 59 FR 52122, October 14, 1994).

Consequently, final action to revise the interim approval criteria will

not occur before the deadline for EPA action on State programs that

were submitted on or before November 15, 1993. The EPA believes it

would be inappropriate to delay action on these States' Operating

Permits Programs until final action is taken on the interim approval

revisions. The EPA also believes it would be inappropriate to grant

interim approval to Louisiana's Operating Permits Program on this issue

before final action is taken to revise the current interim approval

criteria of 40 CFR 70.4(d) in a manner which would provide a legal

basis for such an interim approval. Prior to the EPA's final

promulgation of interim approval criteria, Louisiana may maintain and

implement the narrower definition of ``title I modification.'' Upon the

EPA's final decision of what constitutes a ``title I modification,'' if

the EPA's definition differs from Louisiana's current definition, the

State will be required to revise its definition in accordance with the

EPA's final definition.

The EPA is allowing this approach to ``title I modification'' for a

number of reasons. First, the EPA has not yet conclusively determined

that a narrower definition of ``title I modification'' is incorrect and

thus a basis for disapproval (or even interim approval). The EPA has

received numerous comments on this issue as a result of the August 29,

1994, FR notice, and the EPA cannot and will not make a final decision

on this issue until it has evaluated all of the comments. Second, the

EPA believes that the Louisiana Operating Permits Program should not be

disapproved because the EPA itself has not yet been able to resolve

this issue through rulemaking. Moreover, disapproving Operating Permits

Programs from States such as Louisiana that submitted their Operating

Permits Program to the EPA on or before the November 15, 1993,

statutory deadline could lead to the unfair result that States which

were late in submitting Operating Permits Programs could take advantage

of revised interim approval criteria if and when these criteria become

final. In effect, States would be severely penalized for having made

timely program submissions to the EPA. Finally, disapproval for a

State's Operating Permits Program for a potential problem that

primarily affects permit revision procedures would delay the issuance

of part 70 permits, hampering State/Federal efforts to improve

environmental protection through the operating permits system.

For the reasons mentioned above, the EPA is approving the Louisiana

Operating Permits Program's use of a narrower definition of ``title I

modification'' at this time. However, should the EPA in the interim

approval criteria rulemaking make the final determination that such a

narrow definition of ``title I modification'' is incorrect and that a

revision of the interim approval criteria is warranted, the EPA will

propose further action on [[Page 17754]] Louisiana's Operating Permits

Program so that the State's definition of ``title I modification''

could become grounds for interim approval. A State Operating Permits

Program like the one in Louisiana, which receives full approval of its

narrower definition pending completion of the EPA's rulemaking, must

ultimately be placed on an equal footing with States which receive

interim approval in later months under revised interim approval

criteria based on the same issue. Converting the full approval on this

issue to an interim approval after the EPA completes its rulemaking

will avoid this inequity. The EPA anticipates that an action to convert

the full approval on the ``title I modification'' issue to an interim

approval would be effected through an additional rulemaking, so as to

ensure that there is adequate notice of the change in approval status.

Questions have been raised on a national level concerning whether

the 40 CFR 70.7(e)(2)(i)(A)(3) provisions prohibiting minor

modifications for changes in ``case-by-case'' determinations would

apply in the instance of a preconstruction permit in which the

permitting authority, through a minor modification procedure, changes a

source-specific control technology requirement not required under part

C or D or section 111 or 112 of the Act, or an emission limitation

determination established on a source-specific basis. At the time of

the Interim Approval Notice, the EPA believed the better interpretation

of 40 CFR 70.7(e)(2)(i)(A)(3) required that any requirement imposed on

a source-specific basis, such as one in which the permitting authority

has discretion in setting the requirement for the particular source,

must be considered to be a ``case-by-case'' determination. Therefore,

the EPA believed that a change involving a source-specific requirement

in a preconstruction permit would be considered a ``case-by-case

determination of an emission limitation'' under 40 CFR

70.7(e)(2)(i)(A)(3), ineligible for processing as a minor permit

modification.

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

procedures for some changes which would be considered ``case-by-case''

emission limits under the EPA's narrower interpretation. The EPA is

taking comment on whether a less narrow interpretation of ``case-by-

case'' is acceptable.

Therefore, the EPA will not at this time construe 40 CFR

70.7(e)(2)(i)(A)(3) to prohibit Louisiana from allowing minor

preconstruction changes to be processed as minor permit modifications.

Should the EPA's final interpretation be inconsistent with Louisiana's

current regulations, the definition of ``case-by-case'' will also be an

interim approval issue. The EPA anticipates that an action to convert

the full approval on the ``case-by-case'' issue to an interim approval

would be effected through an additional rulemaking, so as to ensure

that there is adequate notice of the change in approval status.

9. Insignificant Activities. As the Interim Approval Notice

indicated, provisions to determine insignificant activities were not

included with the State's original submittal. The State's later,

November 16, 1994, submittal contained a list of insignificant

activities and criteria for determining which activities were

sufficiently insignificant to be exempt from the requirement to obtain

a permit, or from inclusion in a permit (for a part 70 source engaged

in other activities which must appear in permits), unless the LDEQ

determines on a site-specific basis that such exemption is not

appropriate. These insignificant activities were divided into four

categories. The first category consisted of activities based on size or

production rate that were required to be included in the application

but not the permit. This is consistent with 40 CFR 70.5(c) which

provides that, if approved by the EPA, a list of insignificant

activities based on size or production rate may be exempted from

inclusion in a part 70 permit, although they must still be included in

the application. LAC 33.III.501.B.5 provides that any activity to which

a State or Federal applicable requirement applies is not insignificant

even if the activity meets the criteria of the ``Insignificant

Activities List.'' Therefore such an activity must be included in the

permit. The LDEQ has clarified in a letter that insignificant

activities may not be exempted from major source applicability

determinations. This is consistent with 40 CFR 70.3(c) and 70.5(c)

which requires that the permitting authority include in the permit all

applicable requirements for all relevant emissions units.

As allowed by 40 CFR 70.5(c), LAC 33.III.501.B.5 contains a second

category based on activities that do not need to be included in a

permit application. This list includes activities such as maintenance

of grounds, general repairs, lawn care, steam cleaning, certain

painting activities, use of adhesives, office activities, vehicle

emissions, etc. The third category of insignificant activities is based

on type of pollutant. LAC 33.III.501.B.5 allows water vapor, oxygen,

carbon dioxide, nitrogen, and hydrogen to be exempt from the permit

application.

The last category of insignificant activities is based on emissions

levels. In order to use this category, the source must receive prior

approval from the LDEQ, and all of the criteria must be met. These

criteria include: (a) The emissions unit emits and has the potential to

emit no more than five tons per year of any regulated air pollutant;

(b) the emissions unit emits and has the potential to emit less than

the minimum emission rate listed in Table 51.1, LAC 33.III.Chapter 51,

for each Louisiana toxic air pollutant; (c) the emissions unit emits

and has the potential to emit less than the de minimis rate established

pursuant to section 112(g) of the Federal Act for each hazardous air

pollutant; and (d) no enforceable permit conditions are necessary to

ensure compliance with any applicable requirement.

The EPA believes that these insignificant criteria are sufficient

to ensure that every application contains the information needed to

determine the applicability of, and to impose, any applicable

requirement, or to evaluate the fee amount as required by 40 CFR

70.5(c). The list and its criteria meet the requirements of 40 CFR part

70 and therefore are approvable. The EPA will accept comments on the

insignificant activities discussed herein, as well as other provisions

of the State's revised submittal.

B. Discussion of Other Comments

1. Section 112(g) Comments. Louisiana Mid-Continent Oil and Gas

Association (LAMOGA) was concerned that the Louisiana Operating Permits

Program was being approved prior to the finalization of Federal

requirements regarding section 112(g) of the Act on modification of

sources of hazardous air pollutants. The AF & PA commented that it

believes the EPA's delegation to Louisiana of section 112(g) authority

is unlawful and confusing to the regulated community, because the EPA

has not issued any regulation to implement this statutory language and

does not expect to finally adopt such a regulation for many months. The

AF & PA opposes the approval of the Louisiana preconstruction permit

rules for the implementation of section 112(g), because it believes

that these rules were never intended to define or otherwise address

issues such as ``de minimis'' and offsets. The AF & PA is concerned

that sources would have no way to determine whether and when they are

subject to the program until a final [[Page 17755]] Federal section

112(g) rule is promulgated.

In the Interim Approval Notice, the EPA also proposed to approve

Louisiana's preconstruction program for the purpose of implementing

section 112(g) during the transition period before a Federal rule had

been promulgated implementing section 112(g). This proposal was based

in part on an interpretation of the Act that would require sources to

comply with section 112(g) beginning on the date of approval of the

Operating Permits Program, regardless whether the EPA had completed its

section 112(g) rulemaking. The EPA has since revised this

interpretation of the Act in the Federal Register (see 60 FR 8333,

February 14, 1995) (hereafter Interpretive Notice). The Interpretive

Notice postpones the effective date of section 112(g) until after the

EPA has promulgated a final rule addressing that provision. The

rationale for the revised interpretation was explained in detail in the

Interpretive Notice. The EPA's new position of not requiring the

implementation of section 112(g) until the Federal 112(g) rule is

promulgated renders moot the AF & PA comment regarding section 112(g).

The Interpretive Notice explains that the EPA is still considering

whether the effective date of section 112(g) should be delayed beyond

the date of promulgation of the Federal rule to allow States time to

adopt rules implementing the Federal rule. If a decision is made to

allow such additional delay in the implementation of section 112(g),

the EPA will announce that decision in the final section 112(g)

rulemaking.

2. Natural Resources Defense Council (NRDC) Comments. The NRDC

objected to the approval of the Louisiana Operating Permits Program for

the same reasons the NRDC objected to the EPA's part 70 regulation upon

which the approval was based. The NRDC's earlier comments on the

national proposed part 70 rulemaking were attached to its comments on

the proposed approval of the Louisiana Operating Permits Program. The

EPA believes the appropriate forum for pursuing objections to the legal

validity of the part 70 rule is through a petition for review of the

rule in the D.C. Circuit Court of Appeals; therefore, those part 70

comments will not be addressed in this notice. Unless and until the

part 70 rule is revised, the EPA must evaluate proposed part 70

programs according to the rule currently in effect.

3. Enhanced Monitoring. The LAMOGA expressed concern that the

Louisiana Operating Permits Program was being approved prior to the

finalization of Federal enhanced monitoring requirements. The LDEQ will

implement the enhanced monitoring requirements of the Act and provide

appropriate permit conditions after the Federal enhanced monitoring

rules are finalized. The EPA will not delay approval of Louisiana's

Operating Permits Program based on the fact that the Federal enhanced

monitoring rule is not yet finalized.

4. General Comments. The EPA received comments from Citizens for a

Clean Environment and some comments from LAMOGA favorable to the

Louisiana Operating Permits Program and requesting full approval for

the program.

C. Provisions Implementing the Requirements of Other Titles of the Act

By submitting the State's Operating Permits Program for approval,

Louisiana commits to appropriately implementing and enforcing the

existing and future requirements of sections 111, 112, and 129 of the

Act, and all maximum achievable control technology (MACT) standards

promulgated in the future, in a timely manner.

Requirements for title V approval, specified in 40 CFR 70.4(b),

encompass section 112(l)(5) requirements for approval of a program for

delegation of Federal section 112 standards as they apply to part 70

sources. The State of Louisiana acknowledges that its request for

approval of a part 70 program is also a request for approval of a

program for delegation of unchanged section 112 standards under the

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

Section 112(l)(5) requires that the State's program contain

adequate authorities, adequate resources for implementation, and an

expeditious compliance schedule, which are also requirements under 40

CFR part 70. Therefore, as part of this proposal for full approval, the

EPA is also proposing to grant approval under section 112(l)(5) and 40

CFR 63.91 of the State's program for receiving delegation of section

112 standards that are unchanged from Federal standards as promulgated.

At this time, the State plans to use the mechanism of incorporation by

reference to adopt unchanged Federal section 112 requirements into its

regulations. After this approval is made final, in cases where the

State utilizes the mechanism of incorporation by reference, no

additional Federal public comment period will occur prior to the

transfer of authority for unchanged section 112 standards to the State.

This approval for delegation of unchanged Federal section 112 standards

applies to existing and future standards as they apply to sources

covered by the part 70 program. The State retains the option at any

time to promulgate the full text of the Federal standard unchanged or

to request delegation of section 112 standards in the form of State

regulations which the State demonstrates are equivalent to the

corresponding section 112 provisions promulgated by the EPA instead of

using the mechanism of incorporation by reference. If the State chooses

either of these options, an approval under 40 CFR part 63 subpart E

will be required.

D. Summary

The State of Louisiana submitted to the EPA, under cover letters

from the Governor dated November 4, 1993, and November 10, 1994, the

State's Operating Permits Program and the State's revised Operating

Permits Program, respectively. The original and revised submittals have

been reviewed for adequacy under the requirements of title V of the Act

and the 40 CFR part 70 regulations which together outline criteria for

approval and disapproval. The results of this review are included in

the technical support document. The EPA believes that the LDEQ, in its

revised submittal, has adequately addressed all issues discussed in the

Interim Approval Notice which proposed interim approval. The EPA

believes the insignificant activities list and criteria are fully

approvable. Therefore, at this time the EPA is proposing to grant full

approval to the Louisiana Operating Permits Program. The EPA is

soliciting comments on all aspects of this proposed full approval.

E. Options for Approval/Disapproval

The EPA proposes to withdraw the proposed interim approval

announced in the Interim Approval Notice and to fully approve the

Operating Permits Program submitted to the EPA from the State of

Louisiana on November 15, 1993, and revised on November 16, 1994.

Louisiana has demonstrated that the program meets the minimum elements

of a State Operating Permits Program as specified in 40 CFR part 70.

III. Administrative Requirements

A. Request for Public Comments

The EPA is requesting comments on Louisiana's revised submittal as

discussed in this proposed full approval. Copies of the State's

submittal and other information relied upon for the proposed full

approval are contained in a docket maintained at the EPA Regional

Office. The docket is an organized and complete file of all the

[[Page 17756]] information submitted to, or otherwise considered by,

the EPA in the development of this proposed interim approval. The

principal purposes of the docket are:

(1) To allow interested parties a means to identify and locate

documents so that they can effectively participate in the approval

process, and

(2) To serve as the record in case of judicial review. The EPA will

consider any comments received by May 8, 1995.

B. Executive Order 12866

The Office of Management and Budget has exempted this regulatory

action from Executive Order 12866 review.

C. Regulatory Flexibility Act

The EPA's actions under section 502 of the Act do not create any

new requirements, but simply address Operating Permits Programs

submitted to satisfy the requirements of 40 CFR part 70. Because this

action does not impose any new requirements, it does not have a

significant impact on a substantial number of small entities.

List of Subjects in 40 CFR Part 70

Environmental protection, Air pollution control, Intergovernmental

relations, Operating permits, Administrative practice and procedure,

Reporting and recordkeeping requirements.

V. Miscellaneous

A. Proposed Full Approval

Proposed full approval of the part 70 Operating Permits Program for

the State of Louisiana.

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

Dated: March 30, 1995.

Jane N. Saginaw,

Regional Administrator (6A).

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

BILLING CODE 6560-50-P