[Federal Register Volume 81, Number 225 (Tuesday, November 22, 2016)]
[Proposed Rules]
[Pages 83771-83775]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-28003]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2016-0206; FRL-9954-83-Region 6]


Approval and Promulgation of Implementation Plans; Louisiana; 
Revisions to the New Source Review State Implementation Plan; Air 
Permit Procedure Revisions

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
partially approve and partially disapprove severable portions of four 
revisions to the Louisiana New Source Review (NSR) State Implementation 
Plan (SIP) submitted by the Louisiana Department of Environmental 
Quality (LDEQ). Specifically, we are proposing to partially approve and 
partially

[[Page 83772]]

disapprove provisions contained within the Chapter 5 air construction 
permit rules as initially submitted on November 15, 1993, November 10, 
1994, November 9, 2007, and November 3, 2014. The EPA is proposing this 
action under section 110 and parts C and D of the Clean Air Act (CAA).

DATES: Comments must be received on or before December 22, 2016.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R06-
OAR-2016-0206, at http://www.regulations.gov or via email to 
[email protected]. Follow the online instructions for submitting 
comments. Once submitted, comments cannot be edited or removed from 
Regulations.gov. The EPA may publish any comment received to its public 
docket. Do not submit electronically any information you consider to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Multimedia submissions (audio, 
video, etc.) must be accompanied by a written comment. The written 
comment is considered the official comment and should include 
discussion of all points you wish to make. The EPA will generally not 
consider comments or comment contents located outside of the primary 
submission (i.e. on the web, cloud, or other file sharing system). For 
additional submission methods, please contact Stephanie Kordzi, 214-
665-7520, [email protected]. For the full EPA public comment 
policy, information about CBI or multimedia submissions, and general 
guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.
    Docket: The index to the docket for this action is available 
electronically at www.regulations.gov and in hard copy at EPA Region 6, 
1445 Ross Avenue, Suite 700, Dallas, Texas. While all documents in the 
docket are listed in the index, some information may be publicly 
available only at the hard copy location (e.g., copyrighted material), 
and some may not be publicly available at either location (e.g., CBI).

FOR FURTHER INFORMATION CONTACT: Stephanie Kordzi, (214) 665-7520, 
[email protected] or Mr. Bill Deese at 214-665-7253.

SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,'' 
``us,'' or ``our'' is used, we mean the EPA.

I. Background

    The Act at Section 110(a)(2)(C) requires states to develop and 
submit to the EPA for approval into the SIP, preconstruction review 
programs applicable to new and modified stationary sources of air 
pollutants for attainment and nonattainment areas that cover both major 
and minor new sources and modifications, collectively referred to as 
the NSR SIP. The CAA NSR SIP program is composed of three separate 
programs: Prevention of Significant Deterioration (PSD), Non-attainment 
NSR (NNSR), and Minor NSR. PSD is established in part C of title I of 
the CAA and applies in areas that meet the National Ambient Air Quality 
Standards (NAAQS), i.e., ``attainment areas'', as well as areas where 
there is insufficient information to determine if the area meets the 
NAAQS, i.e., ``unclassifiable areas.'' The NNSR SIP program is 
established in part D of title I of the CAA and applies in areas that 
are not in attainment of the NAAQS, i.e., ``nonattainment areas.'' The 
Minor NSR SIP program addresses construction or modification activities 
that do not emit, or have the potential to emit, beyond certain major 
source thresholds and thus do not qualify as ``major'' and applies 
regardless of the designation of the area in which a source is located.
    The EPA regulations governing the criteria that states must satisfy 
for the EPA approval of the NSR programs as part of the SIP are 
contained in 40 CFR Sections 51.160-51.166. In addition, there are 
several provisions in 40 CFR part 51 that apply generally to all SIP 
revisions.
    As stated above, 40 CFR Section 51.160 establishes the enforceable 
procedures that all NSR programs must include. Sections 51.160-51.164 
require that a SIP revision demonstrate that the adopted rules will not 
interfere with any applicable requirement concerning attainment and 
reasonable further progress, or any other applicable requirement of the 
CAA. Section 51.165 provides the minimum regulatory criteria for NNSR 
permitting programs and Section 51.166 provides the minimum regulatory 
criteria for approvable PSD permitting programs. Based upon our 
evaluation of the submittals, the EPA has concluded that three of the 
regulatory citations identified in this action do not meet the 
requirements of the CAA section 110(l). Below are summaries of the 
individual SIP submittals from the Secretary of the LDEQ.

A. The November 15, 1993, Louisiana SIP Submittal

    On November 15, 1993, the LDEQ submitted revisions to the SIP. This 
SIP submittal incorporated revisions to the Louisiana Administrative 
Code (LAC) during the year 1993. It includes from Chapter 5, final 
revised regulation Sections 501, 502, 503, 504, 505, 507, 511, 513, 
515, 517, 519, 521, 523, 525, 527, 529, 531, and 533. The EPA acted on 
most of the rule language contained in these sections in its August 4, 
2016, final notice. See 81 FR 51341 (August 4, 2016). The EPA is 
proposing action at this time on the portions of the November 15, 1993 
submittal that were not included in our August 4, 2016 final action. 
This action is on those portions that were not included in that notice.
    The EPA is proposing approval of LAC 33:III, Chapter 5, Sections 
525.A., 525.A.1., 525.A.3., 525.B., 525.B.1., 525.B.2, 527.A., 
527.A.1., 527.A.2., 527.A.3., 527.B., 527.BN.1., 527.B.2., 529.A., 
529.A.1., 529.A.2, 531.B.2 and 531.B.3. The LDEQ withdrew LAC 33:III, 
Chapter 5, Sections 525.A.2., 525.B.2.c., 525.B.3., 525.B.4., 525.B.5., 
525.B.6., 525.B.7., 525.B.8., 527.B.5., 529.B.1., 529.B.2., 529.B.3., 
529.B.4., in its letter of July 14, 2016, due to the provisions 
applying only to Part 70 sources. The EPA is proposing disapproval of 
section 501.B.1.d. which adds ``upsets'' to the list of activities 
exempt from permitting requirements. The basis for our disapproval is 
that the rule references the definition of ``upset'' in LAC 
33:III.507.J.1 which is not part of the SIP submittal; the definition 
of ``upset'' is part of Louisiana's Title V program rules and mirrors 
the definition of ``emergency condition'' found at 40 CFR 70.6(g)(1), a 
rule which the EPA has proposed for removal from its Part 70 rules. See 
81 FR 38645 (June 4, 2016).
    The EPA is also proposing disapproval of the provisions for public 
notice that are inconsistent with federal laws and found in sections 
513.A.1. and 531.A.1.

B. November 10, 1994, Submittal

    On November 10, 1994, the LDEQ submitted revisions to the SIP. This 
SIP submittal incorporated revisions to the LAC published in the 
Louisiana Register on November 20, 1994. It includes final revised 
regulations at LAC 33:III, Chapter 5, Sections 501, 507, 517, 521, 527, 
and 533. The EPA acted on most of the rule language contained in these 
sections in its final notice 81 FR 51341 (August 4, 2016). This action 
is on those portions that were not included in that notice. The EPA is 
proposing to take action on sections 527.A.2., 527.A.2.c., 527.B., 
527.B.1., 527.B.2.a., and 527.B.2.b. The EPA returned sections 507 and 
533 rules due to their association with part 70 sources requirements to 
LDEQ on August 4, 2015.

[[Page 83773]]

C. The November 9, 2007, Louisiana SIP Submittal

    On November 9, 2007, the LDEQ submitted the 2006 General Revisions 
to the Louisiana SIP. This SIP submittal incorporated revisions to the 
LAC during the year 2006 and revisions to the LAC not previously 
federally approved. It includes from Chapter 5, final revised 
regulation sections 501, 504, 509, 513, and 531. The EPA acted on most 
of the rule language contained in these sections in its final notice 80 
FR 68451 (November 5, 2015) and final notice 81 FR 51341 (August 4, 
2016). This action is on those portions that were not included in those 
notices. The EPA proposes approval for section 531.B.3. This action 
proposes for disapproval the provisions for public notice that are 
inconsistent with federal laws and found in sections 513.A.1.

D. The November 3, 2014, Louisiana SIP Submittal

    On November 3, 2014, the LDEQ submitted the 2011-2013 Permit Rule 
revisions to the SIP. This SIP submittal incorporated revisions to the 
LAC during the years 2011-2012. It includes from Chapter 5, final 
revised regulation sections 501, 502, 503, 504, 523, and 537. The EPA 
acted on most of the rule language contained in these sections in its 
final notice 81 FR 51341 (August 4, 2016). This action is on that 
portion that was not included in that notice. This action proposes 
disapproval of the provisions regarding section 501.B.1.d. which adds 
``upsets'' to the list of activities exempt from permitting 
requirements. The basis for our disapproval is that the rule references 
the definition of ``upset'' in LAC 33:III.507.J.1 which is not part of 
the SIP submittal; the definition of ``upset'' is part of Louisiana's 
Title V program rules and mirrors the definition of ``emergency 
condition'' found at 40 CFR 70.6(g)(1), a rule which the EPA has 
proposed for removal from its Part 70 rules. See 81 FR 38645 (June 4, 
2016).

II. The EPA's Evaluation

    We evaluated the SIP submissions of the specific citations of the 
Louisiana Air Permit Procedure Revisions identified above and revised 
in the November 15, 1993, November 10, 1994, November 9, 2007, and 
November 3, 2014, submissions.

A. Revisions to the NSR Air Permit Procedures

    We evaluated the SIP submissions and are proposing approval of the 
Louisiana Permit Procedures Revisions, as identified, beginning with 
the November 15, 1993, through the November 3, 2014, submissions.
    Prior to this action, the EPA proposed full approval of the major 
PSD and NNSR and minor NSR permitting program update. Those actions 
were finalized on November 5, 2015 (80 FR 68451) and August 4, 2016 (81 
FR 51341).
    Our evaluation of the proposed NSR revisions found, with the 
exception of the items proposed for disapproval and discussed below, 
the proposed revisions address requirements that enhance the SIP. These 
changes proposed for approval, in general: (1) Clarify the rules; (2) 
make the rules more consistent with Federal rules; (3) establish permit 
modification procedures; (4) establish reopening procedures: and (5) 
establish notification procedures of PSD permit actions to states 
outside of Louisiana.
     Proposed Disapproval: The EPA is proposing disapproval of 
the SIP revisions to section 501.B.1.d. submitted by the State of 
Louisiana on November 15, 1993, and updated on November 3, 2014. More 
specifically, Louisiana submitted a revision to LAC 33:III.501.B.1 that 
revises the list of specific activities that are exempt from the 
requirement to obtain a permit to add: ``d. any upset, as defined in 
LAC 33:III.507.J.1; however, the permitting authority shall be advised 
of such occurrences without delay, in accordance with all applicable 
upset or emergency provisions of Louisiana Air Quality regulations and 
of LAC 33.I. Chapter 39; . . .'' EPA's interpretation of the CAA 
requirements for SIPs, including minor NSR permitting programs, is that 
upsets are generally not the kind of activities that are amenable to 
NSR permitting due to their nature of being unforeseeable, 
unpredictable, beyond the control of the owner or operator of the 
source. However, the reference to the definition of ``upset'' in LAC 
33:III.507.J.1 is problematic because that definition is not in the 
Louisiana SIP or currently before EPA for review, rather it is part of 
Louisiana's Title V regulations that are inconsistent with EPA's 
proposed rulemaking found in 81 FR 38645 (June 4, 2016), to amend its 
Title V regulations to remove the ``emergency provision'' found in 40 
CFR 70.6(g) and 71.6(g). The ``emergency provision'' definition in 40 
CFR 70.6(g)(1) mirrors LDEQ's definition of ``upset'' found in LAC 
33:III.507.J.1, which is referenced in section 501.B.1.d. If finalized, 
that rulemaking would require LDEQ to also remove the affirmative 
defense language from its Title V rules, including the language at LAC 
33:III.507.J which is part of Louisiana's approved Title V program.
     Proposed Approval: The EPA is proposing approval of 
sections 525.A.1. and 525.A.3. rules for incorporating minor 
modification procedures consistent with federal law. Section 525.A.1. 
pertains to the minor NSR permit program only.
     Proposed Approval: The EPA is proposing approval of 
sections 527.A., 527.A.1., 527.A.2., 527.A.2.a., 527.A.2.b., 
527.A.2.c., 527.B., 527 B.1., B.2., B.3., and B.4., rules that 
incorporate significant modification procedures consistent with federal 
law.
     Proposed Approval: The EPA is proposing approval of 
sections 529.A., 529.A.1., 529.A.1.a., 529.A.1.b., and 529.A.2. for 
permit reopening for cause procedures consistent with federal law.
     Proposed Approval: The EPA is proposing approval of 
sections 531.B.2. and 531.B.3. for state permit notification procedures 
consistent with federal law.
     Proposed Disapproval: The EPA is proposing disapproval of 
Section 513A.1. based on this rule language referencing and relying on 
the discretionary public notice rule found in section 531.A.1 which is 
being proposed for partial disapproval. However, as stated above, the 
currently approved SIP contains adequate public notice provisions for 
minor NSR sources.
     Proposed Disapproval: The EPA is proposing disapproval of 
section 531.A. based on the information in its March 3, 2003, letter to 
LDEQ, which is included in the docket. The EPA notified the LDEQ that 
40 CFR 51.161(a) requires opportunity for public comment and applies to 
all proposed decisions concerning new and modified sources. As 
currently written, Louisiana's revised rule section 531.A. submitted on 
November 15, 1993, states: ``531.A. Public Notice 1. At the discretion 
of the permitting authority, public notice may be provided prior to 
issuance of any new or revised permit under this Chapter.'' This 
discretionary language does not conform to the Federal requirements at 
Section 51.161. Section 51.161(a) provides: ``The legally enforceable 
procedures in Sec.  51.160 must also require the State or local agency 
to provide opportunity for public comment on information submitted by 
owners and operators. The public information must include the agency's 
analysis of the effect of construction or modification on ambient air 
quality, including the agency's proposed approval or disapproval.'' 
(Emphasis added.) Section 51.161(a), clearly mandates that legally 
enforceable procedures require the State or local agency to provide

[[Page 83774]]

opportunity for public comment. Thus the current language in 531.A. is 
not approvable under 40 CFR 51.161 as it allows the permitting agency 
discretion whether to provide for public notice.

B. Does the proposed approval of the Louisiana Minor and Nonattainment 
NSR Air Permit Procedure Revisions interfere with attainment, 
reasonable further progress, or any other applicable requirement of the 
Act?

    We have determined that the regulations submitted to the EPA and 
being proposed for approval as SIP revisions meet the requirements of 
CAA section 110(l). The EPA's conclusion is based upon a line-by-line 
comparison of the proposed revisions with the federal requirements. The 
goal is to demonstrate that the proposed revisions will not interfere 
with the attainment of the NAAQS, Rate of Progress, RFP or any other 
applicable requirement of the CAA. Most of the changes were not 
substantial. Our analysis shows that in most cases, the state 
regulatory language is consistent with and in support of the intent of 
the federal rules and definitions. The EPA is therefore proposing to 
approve these submittals.

III. Proposed Action

    We are proposing to partially approve and partially disapprove the 
Louisiana SIP revisions submitted by the State of Louisiana in 
accordance with the EPA regulations at 40 CFR 51.160-51.164 and under 
Section 110 and part C of the Act, and for the reasons presented above 
and included in our accompanying TSD. Table 1 below summarizes the 
changes that are in the SIP revision submittals. The accompanying 
Technical Support Document (TSD) includes a detailed evaluation of the 
submittals and our rationale. The TSD may be accessed online at 
www.regulations.gov, Docket No. EPA-R06-OAR-2016-0206.

   Table 1_Summary of Each NSR SIP Submittal Affected by This Action
                            Proposed Approval
____________________________________
                                Date submitted to
            Section                 EPA as SIP      Affected regulation
                                    amendment
____________________________________
                    Section 525_Minor Modifications
____________________________________
Section 525.A.................         11/15/1993  Sections 525.A.,
                                                    525.A.1., 525.A.3.
Section 525.B.................         11/15/1993  Sections 525.B.,
                                                    525.B.1. and
                                                    525.B.2.
____________________________________
                 Section 527_Significant Modifications
____________________________________
Section 527.A.................         11/15/1993  Sections 527.A.,
                                                    527.A.1., 527.A.2.,
                                                    and 527.A.3.
                                       11/10/1994  Sections 527.A.2.,
                                                    527.A.2.c.
Section 527.B.................         11/15/1993  Sections 527.B.,
                                                    527.B.1.,
                                                    527.B.2.a., and
                                                    527.B.2.b.
                                       11/10/1994  Section 527.B.
____________________________________
                    Section 529_Reopenings for Cause
____________________________________
Section 529.A.................         11/15/1993  Sections 529.A.,
                                                    529.A.1. and 529A.2.
Section 529.B.................         11/15/1993  Sections 529.B.,
                                                    529.B.1., 529.B.2.,
                                                    529.B.3., and
                                                    529.B.4.
____________________________________
          Section 531_Public Notice and Affected State Notice
____________________________________
Section 531.B.................         11/15/1993  Section 531.B.2. and
                                                    531.B.3.
                                        11/9/2007  Section 531.B.3.
____________________________________


   Table 2_Summary of Each NSR SIP Submittal Affected by This Action
                          Proposed Disapproval
____________________________________
                                  Date submitted to
             Section                  EPA as SIP     Affected regulation
                                      amendment
____________________________________
                  Section 501_Scope and Applicability
____________________________________
Section 501.B...................         11/15/1993  Section 501.B.1.d.
                                          11/3/2014  Section 501.B.1.d.
____________________________________
   Section 513_General Permits, Temporary Sources, and Relocation of
                           Portable Facilities
____________________________________
Section 513.A...................         11/15/1993  Section 513.A.1.
                                          11/9/2007  Section 513.A.1.
____________________________________
          Section 531_Public Notice and Affected State Notice
____________________________________
Section 531.A...................         11/15/1993  Section 531.A.1.
____________________________________

IV. Incorporation by Reference

    In this action, we are proposing to include in a final rule 
regulatory text that includes incorporation by reference. In accordance 
with the requirements of 1 CFR 51.5, we are proposing to incorporate by 
reference revisions to the Louisiana regulations as described in the 
Proposed Action section above. We have made, and will continue to make, 
these documents generally available electronically through 
www.regulations.gov and/or in hard copy at the EPA Region 6 office.

[[Page 83775]]

V. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the Act and applicable 
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, the EPA's role is to act on state law as 
meeting Federal requirements and does not impose additional 
requirements beyond those imposed by state law.

A. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 13563: Improving Regulation and Regulatory Review

    This proposed action is not a significant regulatory action and was 
therefore not submitted to the Office of Management and Budget for 
review.

B. Paperwork Reduction Act (PRA)

    This proposed action does not impose an information collection 
burden under the PRA because the portion of the rules that are proposed 
for approval do not contain any information collection activities and 
incorporate notification requirements to government entities consistent 
with federal law, significant and minor permit modification criteria, 
and permit reopening criteria. Further, this action proposes to 
disapprove specific submitted revisions regarding discretionary public 
notice and upset that are not consistent with federal laws for the 
regulation and permitting of air emission sources.

C. Regulatory Flexibility Act (RFA)

    I certify that this action will not have a significant economic 
impact on a substantial number of small entities under the RFA. This 
action will not impose any requirements on small entities. This action 
proposes to approve regulatory citations that incorporate notification 
requirements to government entities consistent with federal law, 
significant and minor permit modification criteria, and permit 
reopening criteria. This action proposes to disapprove revisions 
regarding discretionary public notice and an exemption of upsets from 
permitting requirements that are no longer consistent with federal law 
for the regulation and permitting of air emission sources. Therefore it 
will have no impact on small entities.

D. Unfunded Mandates Reform Act (UMRA)

    This action does not contain any unfunded mandate as described in 
UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect 
small governments. The action imposes no enforceable duty on any state, 
local or tribal governments or the private sector. This action proposes 
to approve specific citations that incorporate notification 
requirements to government entities consistent with federal law, 
significant and minor permit modification criteria, and permit 
reopening criteria. This action proposes to disapprove submitted 
revisions regarding discretionary public notice and upset exemptions 
that are no longer consistent with federal law for the regulation and 
permitting of air emission sources. It therefore will have no impact on 
small governments.

E. Executive Order 13132, Federalism

    This action does not have federalism implications. It will not have 
substantial direct effects on the states, on the relationship between 
the national government and the states, or on the distribution of power 
and responsibilities among the various levels of government.

F. Executive Order 13175, Coordination With Indian Tribal Governments

    This action does not have tribal implications as specified in 
Executive Order 13175. This action proposes to approve specific 
citations that incorporate notification requirements to government 
entities consistent with federal law, significant and minor permit 
modification criteria, and permit reopening criteria. This action 
proposes to disapprove submitted revisions regarding discretionary 
public notice and upset exemptions that are no longer consistent with 
federal law for the regulation and permitting of air emission sources. 
There are no requirements or responsibilities added or removed from 
Indian Tribal Governments. Thus, Executive Order 13175 does not apply 
to this action.

G. Executive Order 13045, Protection of Children From Environmental 
Health Risks and Safety Risks

    EPA interprets Executive Order 13045 as applying only to those 
regulatory actions that concern environmental health or safety risks 
that the EPA has reason to believe may disproportionately affect 
children, per the definition of ``covered regulatory action'' in 
section 2-202 of the Executive Order. This action is not subject to 
Executive Order 13045 because it proposes to approve specific citations 
that incorporate notification requirements to government entities 
consistent with federal law, significant and minor permit modification 
criteria, and permit reopening criteria. This action proposes to 
disapprove submitted revisions regarding discretionary public notice 
and upset exemptions that are no longer consistent with federal law for 
the regulation and permitting of air emission sources.

H. Executive Order 13211, Actions That Significantly Affect Energy 
Supply, Distribution or Use

    This action is not subject to Executive Order 13211 because it is 
not a significant regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act

    This rulemaking does not involve technical standards.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    EPA believes the human health or environmental risk addressed by 
this action will not have potential disproportionately high and adverse 
human health or environmental effects on minority, low-income or 
indigenous populations. This action is not subject to Executive Order 
12898 because it proposes to approve specific citations that 
incorporate notification requirements to government entities consistent 
with federal law, significant and minor permit modification criteria, 
and permit reopening criteria. This action proposes to disapprove 
submitted revisions regarding discretionary public notice and upset 
exemptions that are no longer consistent with federal law for the 
regulation and permitting of air emission sources.

List of Subjects in 40 CFR Part 52

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

    Authority: 42 U.S.C. 7401 et seq.

    Dated: November 16, 2016.
Ron Curry,
Regional Administrator, Region 6.
[FR Doc. 2016-28003 Filed 11-21-16; 8:45 am]
 BILLING CODE 6560-50-P