Clean Air Act (Act) Approval and Promulgation of State Implementation Plans; Prevention of Significant Deterioration (PSD); Louisiana and New Mexico

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 81

[LA-27-1-7166a, NM-30-1-7299a, FRL-5612-7]

Clean Air Act (Act) Approval and Promulgation of State

Implementation Plans; Prevention of Significant Deterioration (PSD);

Louisiana and New Mexico

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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

SUMMARY: In this document, EPA is approving revisions to the PSD

permitting regulations which were submitted as revisions to the State

Implementation Plans (SIP) for Louisiana and New Mexico. The revisions

were submitted to address the replacement of the total suspended

particulate (TSP) increments, with increments for PM-10 (particulate

matter 10 micrometers or less in diameter). The EPA is approving the

SIP revisions because they are consistent with the corresponding

Federal regulations. The EPA is also removing the TSP area designation

tables and revising and/or adding PM-10 area designation tables in 40

CFR part 81 for these States. With the PM-10 increments becoming

effective in these areas, the TSP area designations no longer serve any

useful purpose relative to PSD.

DATES: This action is effective on December 16, 1996, unless notice is

postmarked by November 14, 1996 that someone wishes to submit adverse

or critical comments. If the effective date is delayed, timely notice

will be published in the Federal Register (FR).

ADDRESSEES: Comments should be mailed to Jole C. Luehrs, Chief, Air

Permits Section (6PD-R), U.S. EPA Region 6, 1445 Ross Avenue, Dallas,

Texas 75202-2733. Copies of the State's submittal and other information

relevant to this action are available for inspection during normal

hours at the following locations:

Environmental Protection Agency, Region 6, Air Permits Section (6PD-R),

1445 Ross Avenue, Suite 700, Dallas, Texas 75202-2733

Air and Radiation Docket and Information Center, Environmental

Protection Agency, 401 M Street, S.W., Washington, D.C. 20460

New Mexico Environment Department, Air Monitoring and Control Strategy

Bureau, 1190 St. Francis Drive, Room So. 2100, Santa Fe, New Mexico

87503

Louisiana Department of Environmental Quality, Office of Air Quality,

7290 Bluebonnet Boulevard, Baton Rouge, Louisiana 70810

Anyone wishing to review this information at the Region 6 EPA

office

[[Page 53640]]

should contact the person below to schedule an appointment 24 hours in

advance.

FOR FURTHER INFORMATION CONTACT: Mr. Samuel R. Mitz, Air Permits

Section (6PD-R), Environmental Protection Agency, Region 6, 1445 Ross

Avenue, Dallas, Texas 75202-2733, telephone (214) 665-8370.

SUPPLEMENTARY INFORMATION:

Background

In this document, EPA is acting on revisions to the PSD permitting

programs for the States of Louisiana and New Mexico. The revisions were

generally made to address the following changes in the Federal PSD

permitting requirements in 40 CFR 51.166:

A. The replacement of the TSP increments with increments for PM-10,

which were promulgated by EPA on June 3, 1993 (58 FR 31622-31638); and

B. The promulgation of revisions to the Federal PSD permitting

requirements regarding utility pollution control projects that States

could voluntarily adopt into their PSD regulations, which were

promulgated by EPA on July 21, 1992 (57 FR 32314-32339).

Specifically, the following submittals were made:

The Governor of Louisiana submitted revisions to Louisiana

Administrative Code 33:III. Chapter 5, Section 509 on March 22, 1995,

to incorporate changes in the Federal PSD permitting regulations for

PM-10 increments.

The Governor of New Mexico submitted revisions to 20 New Mexico

Administrative Code 2.74 on June 26, 1995, to incorporate changes in

the Federal PSD permitting regulations for PM-10 increments.

This document evaluates the States' submittals for conformity with

the corresponding Federal regulations and the requirements of the Act.

In addition, this document provides justification regarding the removal

of the TSP designation tables in 40 CFR part 81 for Louisiana and New

Mexico.

This Action

A. Analysis of State Submissions

1. Procedural Background

The Act requires States to observe certain procedural requirements

in developing implementation plans and plan revisions for submission to

EPA. Section 110(a)(2) of the Act provides that each implementation

plan submitted by a State must be adopted after reasonable notice and

public hearing. Section 110(l) of the Act similarly provides that each

revision to an implementation plan submitted by a State under the Act

must be adopted by such State after reasonable notice and public

hearing.

The EPA also must determine whether a submittal is complete and

therefore warrants further EPA review and action (see section 110(k)(1)

and 57 FR 13565, April 16, 1992). The EPA's completeness criteria for

SIP submittals are set out at 40 CFR part 51, appendix V. The EPA

attempts to make completeness determinations within 60 days of

receiving a submission. However, a submittal is deemed complete by

operation of law under section 110(k)(1)(B) if a completeness

determination is not made by EPA within six months after receipt of the

submission.

Public hearings to entertain public comment of the initial PSD SIP

revisions were held by Louisiana on November 29, 1994, and by New

Mexico on April 21, 1995. After these respective public hearings, the

rule revisions were adopted by each State. The rule revisions were

formally submitted to EPA for approval on March 8, 1995, from Louisiana

and June 26, 1995, from New Mexico. Each SIP revision was reviewed by

EPA to determine completeness shortly after its submittal, in

accordance with the completeness criteria referenced above. The

submittals were found to be complete, and letters dated July 20, 1995,

were forwarded to Louisiana and New Mexico indicating the completeness

of each submittal and the next steps to be taken in the processing of

each SIP submittal.

2. Evaluation of States' Submittals

a. PM-10 Increment Revisions. As discussed above, EPA promulgated

increments for PM-10 on June 3, 1993 (see 58 FR 31622-31638). The EPA

promulgated revisions to the Federal PSD permitting regulations in 40

CFR 52.21, as well as the PSD permitting requirements that State

programs must meet in order to be approved into the SIP in 40 CFR

51.166. The EPA or its delegated State programs were required to begin

implementation of the increments by June 3, 1994, while the

implementation date for States with SIP-approved PSD permitting

programs (including Louisiana and New Mexico) will be the date on which

EPA approves each revised State PSD program containing the PM-10

increments. In accordance with 40 CFR 51.166(a)(6)(i), each State with

SIP-approved PSD programs was required to adopt the PM-10 increment

requirements within nine months of the effective date (or by March 3,

1995). For further background regarding the PM-10 increments, see the

June 3, 1993, FR document.

(1) Louisiana's Submittal. In order to address the PM-10

increments, the State of Louisiana revised the following sections of

its PSD permitting regulations in the Regulation Louisiana

Administrative Code: 33:III.Chapter 5, Section 509. The EPA has

reviewed these revisions and has found that the revisions address all

of the required regulatory revisions for PM-10 increments promulgated

by EPA on June 3, 1993.

(2) New Mexico's Submittal. In order to address the PM-10

increments, the State of New Mexico revised the following sections of

its PSD permitting regulations in the 20 New Mexico Administrative Code

2.74. The EPA has reviewed these revisions and has found that the

revisions address all of the required regulatory revisions for PM-10

increments promulgated by EPA on June 3, 1993. Note that the State

elected not to adopt 40 CFR 51.166(i)(12), which provides an exemption

from addressing the new PM-10 increments for sources who have submitted

a PSD permit application which the State has determined to be complete

before the PM-10 increments take effect. New Mexico's rules do not

contain this grandfathering clause, which is acceptable.

b. TSP Area Deletions. Section 107(d) of the 1977 Amendments to the

Act authorized each State to submit to the Administrator a list

identifying those areas which, (1) do not meet a national ambient air

quality standard (NAAQS) (nonattainment areas), (2) cannot be

classified on the basis of available ambient data (unclassifiable

areas), and (3) have ambient air quality levels better than the NAAQS

(attainment areas). In 1978, EPA published the original list of all

area designations pursuant to section 107(d)(2) (commonly referred to

as ``section 107 areas''), including those designations for TSP, in 40

CFR part 81.

One of the purposes stated in the Act for the section 107 areas is

for implementation of the statutory requirements for PSD. The PSD

provisions of part C of the Act generally apply in all section 107

areas that are designated attainment or unclassifiable (40 CFR

52.21(i)(3)). Under the PSD program, the air quality in an attainment

or unclassifiable area is not allowed to deteriorate beyond prescribed

maximum allowable increases in pollutant concentrations (i.e.,

increments).

The EPA revised the primary and secondary NAAQS for particulate

matter on July 1, 1987 (52 FR 24634), eliminating TSP as the indicator

for the NAAQS and replacing it with the PM-

[[Page 53641]]

10 indicator. However, EPA did not delete the section 107 areas for TSP

listed in 40 CFR part 81 at that time because there were no increments

for PM-10 promulgated at that time.1 States were required to

continue implementing the TSP increments in order to prevent

significant deterioration of particulate matter air quality until the

PM-10 increments replaced the TSP increments. With the State adoption

and implementation of the PM-10 increments becoming effective, the TSP

area designations generally serve no useful purpose relative to the PSD

program. Instead, the PM-10 area designations now serve to properly

identify those areas where air quality is better than the NAAQS, i.e.,

``PSD areas,'' and to provide the geographic link necessary for

implementation of the PM-10 increments.2

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

\1\ The EPA did not promulgate new PM-10 increments

simultaneously with the promulgation of the PM-10 NAAQS. Under

section 166(b) of the Act, EPA is authorized to promulgate new

increments ``not more than 2 years after the date of promulgation of

* * * standards.'' Consequently, EPA temporarily retained the TSP

increments, as well as the section 107 areas for TSP.

\2\ Note that 40 CFR part 81 does not presently list all section

107 areas for PM-10. Only those areas designated ``nonattainment''

appear in the State listings. This is because under the listing

published by EPA in the Federal Register on November 6, 1991, EPA's

primary objective was to identify nonattainment areas designated as

such by operation of law upon enactment of the 1990 Amendments. For

States having no PM-10 nonattainment areas designated by operation

of law, EPA did not include a new PM-10 listing. Nevertheless,

section 107(d)(4)(B)(iii) mandates that all areas, not designated

nonattainment for PM-10 by operation of law, are designated

unclassifiable. The PM-10 increments apply in any area designated

unclassifiable for PM-10.

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

Thus, in the June 3, 1993, FR document in which EPA promulgated the

PM-10 increments, EPA stated that, for States with SIP-approved PSD

programs, EPA would delete the TSP area designations at the same time

EPA approves the revision to a State's plan incorporating the PM-10

increments. For delegated PSD programs or in States where EPA

administers the PSD program, the TSP area designations were to be

deleted after the PM-10 increments became effective in those States

(i.e., June 3, 1994). In deleting any State's TSP area designations,

EPA must ensure that the deletion of those designations will not result

in a relaxation of any control measures that ultimately protect the PM-

10 NAAQS.

(1) Louisiana's TSP Areas. As stated above, Louisiana has adopted

and submitted adequate PSD revisions for PM-10 increments. In addition,

Louisiana had no TSP areas designated as nonattainment. Thus, deletion

of the TSP area designations will not result in relaxation of any TSP

controls that would impact the PM-10 NAAQS. Since Louisiana also has no

PM-10 nonattainment areas designated in the State, there is no PM-10

designation table currently in 40 CFR part 81 for Louisiana. Therefore,

EPA is deleting the TSP area designation table and is creating a PM-10

area designation table in 40 CFR 81.319. The EPA will retain for PM-10

the three section 107 areas listed in the current TSP table for

Louisiana, consistent with the June 3, 1993, FR document which requires

retention of the TSP baseline areas for PM-10 unless revised by the

State in accordance with 40 CFR 51.166.

(2) New Mexico's TSP Areas. New Mexico has one area listed in 40

CFR part 81 as nonattainment for the TSP standards but which is not

designated nonattainment for PM-10. Portions of the City of Albuquerque

were designated nonattainment for the primary TSP standard. The City of

Albuquerque is located in Bernalillo County, which is under the

jurisdiction of the Albuquerque/ Bernalillo County Air Quality Board.

Consequently, the TSP designations for areas in Bernalillo County will

be retained until EPA has approved PM-10 increments for Bernalillo

County. All remaining areas in New Mexico are in attainment status for

TSP. Consequently, EPA believes it is appropriate at this time to

delete the TSP designations for these areas. If the State subsequently

revises any of the particulate matter control strategies currently in

the SIP for these areas, it must submit a SIP revision to EPA for

approval that must meet all applicable requirements of the Act. The EPA

will retain for PM-10 this section 107 area listed in the current TSP

table for New Mexico, consistent with the June 3, 1993, FR document

which requires retention of the TSP baseline areas for PM-10 unless

revised by the State in accordance with 40 CFR 51.166.

As stated above, the State has adopted adequate provisions in its

PSD program for the implementation of the PM-10 increments. Therefore,

EPA is deleting all parts of the State's existing TSP designation table

in 40 CFR 81.332 except for those parts addressing areas in Bernalillo

County.

Final Action

Based on the review and justification provided in this document,

EPA is approving the SIP revisions regarding PSD permitting submitted

by the States of Louisiana and New Mexico on March 22, 1995, and June

26, 1995, respectively.

In addition, EPA is deleting the TSP area designation tables and

revising the PM-10 area designation tables in 40 part 81 as follows:

A. For Louisiana, EPA is deleting the TSP area designation table

and is creating a PM-10 designation table listing the ``AQCR 019''

area, the ``AQCR 022'' area, and the ``AQCR 106'' area as

unclassifiable for PM-10 in 40 CFR 81.319.3

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

\3\ At this time, the EPA is designating the PM-10 areas as

unclassifiable, rather than attainment, to be consistent with

section 107(d)(4)(B) of the Act which stated that any area which was

not initially designated as nonattainment for PM-10 shall be

designated unclassifiable. The EPA will consider redesignating these

areas to ``attainment'' status at a later date. Both

``unclassifiable'' and ``attainment'' areas have the same status for

PSD purposes.

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

B. For New Mexico, EPA is deleting all parts of the State's

existing TSP designation table in 40 CFR 81.332 except for those parts

addressing areas in Bernalillo County.

In these States' PM-10 area designation tables, EPA is clarifying

that the ``Rest of State'' areas denote a single area designation for

PSD baseline area purposes.

The EPA is publishing this action without prior proposal because

EPA views this as a noncontroversial amendment and anticipates no

adverse comments. However, in a separate document in this FR

publication, EPA is proposing to approve the SIP revision should

adverse or critical comments be filed. This action will be effective

December 16, 1996, unless adverse or critical comments are postmarked

by November 14, 1996. If EPA receives such comments, this action will

be withdrawn before the effective date by publishing a subsequent

document that will withdraw the final action. All public comments

received will then be addressed in a subsequent final rule based on

this action serving as a proposed rule. The EPA will not institute a

second comment period on this action. Any parties interested in

commenting on this action should do so at this time. If no such

comments are received on this action, the public is advised that this

action will be effective December 16, 1996.

Regulatory Process

Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA

must prepare a regulatory flexibility analysis assessing the impact of

any proposed or final rule on small entities (5 U.S.C. 603 and 604).

Alternatively, under 5 U.S.C. 605(b), EPA may certify that the rule

will not have a significant impact on a substantial number of small

entities (see 46 FR 8709). Small entities include small businesses,

small not-for-profit enterprises, and governmental entities

[[Page 53642]]

with jurisdiction over populations of less than 50,000. The SIP

approvals under section 110 and subchapter I, part D of the Act do not

create any new requirements, but simply approve requirements that the

State is already imposing. Therefore, because the Federal SIP approval

does not impose any new requirements, I certify that it does not have a

significant impact on small entities. Moreover, due to the nature of

the Federal-State relationship under the Act, preparation of a

regulatory flexibility analysis would constitute Federal inquiry into

the economic reasonableness of State action. The Act forbids EPA from

basing its actions concerning SIPs on such grounds. Union Electric Co.

v. U.S. E.P.A., 427 U.S. 246, 256-66 (S.Ct. 1976); 42 U.S.C.

7410(a)(2).

Under section 307(b)(1) of the Act, petitions for judicial review

of this action must be filed in the United States Court of Appeals for

the appropriate circuit by December 16, 1996. Filing a petition for

reconsideration of this final rule by the Administrator does not affect

the finality of this rule for purposes of judicial review; nor does it

extend the time within which a petition for judicial review may be

filed, or postpone the effectiveness of this rule. This action may not

be challenged later in proceedings to enforce its requirements (see

section 307(b)(2)).

Nothing in this action shall be construed as permitting, allowing,

or establishing a precedent for any future request for a revision to

any SIP. Each request for revision to the SIP shall be considered

separately in light of specific technical, economic, and environmental

factors and in relation to relevant statutory and regulatory

requirements.

Unfunded Mandates

Under sections 202, 203, and 205 of the Unfunded Mandates Reform

Act of 1995, signed into law on March 22, 1995, EPA must undertake

various actions in association with proposed or final rules that

include a Federal mandate that may result in estimated costs of $100

million or more to the private sector, or to State, local, or tribal

governments in the aggregate.

Through submission of this SIP or plan revision approved in this

action, the State and any affected local or tribal governments have

elected to adopt the program provided for under section 110 of the Act.

The rules and commitments approved in this action may bind State,

local, and tribal governments to perform certain actions and also

require the private sector to perform certain duties. To the extent

that the rules and commitments being approved by this action will

impose or lead to the imposition of any mandate upon the State, local,

or tribal governments, either as the owner or operator of a source or

as a regulator, or would impose or lead to the imposition of any

mandate upon the private sector, EPA's action will impose no new

requirements; such sources are already subject to these requirements

under State law. Accordingly, no additional costs to State, local, or

tribal governments, or to the private sector, result from this action.

Therefore, EPA has determined that this final action does not include a

mandate that may result in estimated costs of $100 million or more to

State, local, or tribal governments in the aggregate or to the private

sector.

Submission to Congress and the General Accounting Office

Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business

Regulatory Enforcement Fairness Act of 1996, EPA submitted a report

containing this rule and other required information to the U.S. Senate,

the U.S. House of Representatives and the Comptroller General of the

General Accounting Office prior to publication of the rule in today's

Federal Register. This rule is not a ``major rule'' as defined by 5

U.S.C. 804(2).

Office of Management and Budget (OMB) Review

This action has been classified as a Table 3 action for signature

by the Regional Administrator under the procedures published in the

Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by a

July 10, 1995, memorandum from Mary Nichols, Assistant Administrator

for Air and Radiation. The OMB has exempted this regulatory action from

Executive Order 12866 review.

List of Subjects

40 CFR Part 52

Environmental protection, Air pollution control, Incorporation by

reference, Particulate matter, Reporting and recordkeeping

requirements, Volatile organic compounds.

40 CFR Part 81

Air pollution control, National parks, Wilderness areas.

Dated: August 27, 1996.

Jerry Clifford,

Acting Regional Administrator (6RA-D).

40 CFR Parts 52 and 81 are amended as follows:

PART 52--[AMENDED]

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

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

Subpart T--Louisiana

2. Section 52.970 is amended by adding paragraph (c)(69) to read as

follows:

Sec. 52.970 Identification of plan.

* * * * *

(c) * * *

(69) The Governor of Louisiana submitted revisions to Regulation

Louisiana Administrative Code on March 22, 1995 to incorporate changes

in the Federal PSD permitting regulations for PM-10 increments.

(i) Incorporation by reference.

(A) Revisions to Regulation Louisiana Administrative Code

33:III.Chapter 5, Section 509, effective February 20, 1995: Section B.

Definitions: Baseline Date; Section B. Definitions: Net Emissions

Increase; Section D. Ambient Air Increments; Section E.8.a.; Section

K.2.; and Section P.4.

* * * * *

Subpart GG--New Mexico

3. Section 52.1620 is amended by adding paragraph (c)(62) to read

as follows:

Sec. 52.1620 Identification of plan.

* * * * *

(c) * * *

(62) The Governor of New Mexico submitted revisions to 20 New

Mexico Administrative Code 2.74 on June 26, 1995, to incorporate

changes in the Federal PSD permitting regulations for PM-10 increments.

(i) Incorporation by reference.

(A) Revisions to 20 New Mexico Administrative Code 2.74, effective

July 20, 1995.

PART 81--[AMENDED]

1. The authority citation for part 81 continues to read as follows:

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

Secs. 81.319, 81.332 [Amended]

2. Section 81.319 is amended by removing the TSP table.

3. Section 81.319 is further amended by adding a new table for PM-

10 to read as follows:

Sec. 81.319 Louisiana.

* * * * *

[[Page 53643]]

Louisiana--PM-10

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

Designation Classification

Designated area -----------------------------------------------------------------------------

Date Type Date Type

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

AQCR 019.......................... 11/15/90 Unclassifiable

AQCR 022.......................... 11/15/90 Unclassifiable

AQCR 106.......................... 11/15/90 Unclassifiable

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

4. Section 81.332 is amended by revising the TSP table to read as

follows:

Sec. 81.332 New Mexico.

* * * * *

New Mexico--TSP

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

Does not meet Better than

Designated area Does not meet secondary Cannot be national

primary standards standards classified standards

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

AQCR 152:

Bernalillo County:

Portions of City of

Albuquerque.................. X ................ ................ .................

Remainder of County........... ................. ................ ................ X

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

[FR Doc. 96-26204 Filed 10-11-96; 8:45 am]

BILLING CODE 6560-50-P