Regulatory Text:
Louisiana Administrative Code, Title 33 ENVIRONMENTAL QUALITY, Part III Air (LAC 33:III)

Chapter 5.  Permit Procedures

§504.  Nonattainment New Source Review Procedures
As amended in the Louisiana Register on February 20, 1997 (LR 23:197)
As approved by EPA May 31, 2001 (66 FR 29491) effective July 30, 2001 (LAd07)

Outline:
A.  Applicability.
B.  Source Obligation.
C.  Source Information.
D.  Nonattainment New Source Review Source Requirements
E.  Additional Requirements for Sources Impacting Mandatory Federal Class I Areas.
F.  Emission Offsets.
G.  Definitions.
Table 1: Major Stationary Source/Major Modification Emission Thresholds


    A.  Applicability.  The provisions of this Section apply to the construction of any new major stationary source or to any major modification at a major stationary source, as defined herein, provided such source or modification will be located within a nonattainment area so designated pursuant to section 107 of the federal Clean Air Act, and will emit a regulated pollutant for which it is major and for which the area is designated nonattainment.

        1.  For an area which is designated incomplete data, transitional nonattainment, marginal, moderate, serious, or severe nonattainment for ozone, volatile organic compounds are the regulated pollutants under this Section.

        2.  The potential to emit of a stationary source shall be compared to the major stationary source threshold values listed in Table 1 to determine whether the source is major.

        3.  The emissions increase which would result from a proposed modification, without regard to project decreases, shall be compared to the trigger values listed in Table 1 to determine whether a calculation of the net emissions increase over the contemporaneous period must be performed.

        4.  The net emissions increase shall be compared to the significant net emissions increase values listed in Table 1 to determine whether a nonattainment new source review must be performed.


    B.  Source Obligation

        1.  The requirements of this Section shall apply as though construction had not yet commenced at the time that a source or modification becomes a major source or major modification solely due to a relaxation in any enforceable limitation established after August 7, 1980.

        2.  The issuance of a permit by the department shall not relieve any owner or operator of the responsibility to comply with the provisions of the Louisiana Air Control Law, any applicable regulations of the department, and any other requirements under local, state, or federal law.

        3.  Approval to construct shall become invalid if construction is not commenced within 18 months after receipt of such approval, if construction is discontinued for a period of 18 months or more, or if construction is not completed within a reasonable time.  For a phased construction project, each phase must commence construction within 18 months of the projected and approved commencement date.  The administrative authority may extend the 18-month period upon a satisfactory showing that an extension is justified.

        4.  For phased construction projects, the determination of the lowest achievable emission rate (LAER) shall be reviewed and modified as appropriate at the latest reasonable time but no later than 18 months prior to commencement of construction of each independent phase of the project.  At such time, the owner or operator of the applicable stationary source may be required to demonstrate the adequacy of any previous determination of the LAER.

        5.  If the owner or operator, who previously had been issued a permit under this regulation, applies for an extension as provided for under Subsection B.3 of this Section, and the new proposed date of construction is greater than 18 months from the date that the permit would become invalid, the determination of the LAER shall be reviewed and modified as appropriate before such an extension is granted.  At such time, the owner or operator may be required to demonstrate the adequacy of any previous determination of the LAER.


    C.  Source Information.  The owner or operator of a proposed major stationary source or major modification shall submit all information necessary to perform any analysis or make any determination required under this regulation.  Information shall include, but is not limited to:

        1.  a description of the nature, location, design capacity, and typical operating schedule of the major stationary source or major modification, including specifications and drawings showing the design and plant layout;

        2.  a detailed schedule for construction of the major stationary source or major modification; and

        3.  a detailed description of the planned system of emission controls to be implemented, emission estimates, and other information necessary to demonstrate that the LAER or any other applicable limitation will be maintained.


    D.  Nonattainment New Source Review Source Requirements.  Prior to constructing any new major stationary source or major modification a permit shall be obtained from the Louisiana Department of Environmental Quality in accordance with the requirements of this Section.  In order for a permit to be granted, all of the following conditions shall be met:

        1.  All existing stationary sources owned or operated by the applicant (or any entity controlling, controlled by, or under common control with the applicant) in this state shall be in compliance with all applicable state and federal emission limitations and standards, the Federal Clean Air Act, and all conditions in a state or federally enforceable permit, or schedules for compliance.

        2.  The major stationary source or major modification shall be designed such that the LAER will be met and maintained for each pollutant emitted which is subject to this regulation.  The LAER must be applied to each new emissions unit and to each existing emissions unit at which an emissions increase will occur as the result of the proposed modification.

        3.  Notwithstanding Subsection D.2 of this Section, in the case of any major stationary source that emits or has the potential to emit 100 tons per year or more of VOC and is located in an area classified as serious, if the owner or operator of the source elects to offset the emissions increase by a reduction in emissions of VOC from other operations, units, or activities within the source at an internal offset ratio of at least 1.3 to 1, then the requirements for LAER shall not apply.

        4.  For any new major stationary source or major modification in accordance with this Section, it shall be assured that the total tonnage of the emissions increase that would result from the proposed construction or modification shall be offset by an equal or greater reduction as applicable, in the actual emissions of the regulated pollutant from the same or other sources in accordance with Subsection F.9 of this Section.  A higher level of offset reduction may be required in order to demonstrate that a net air quality benefit will occur.

        5.  Emission offsets shall provide net air quality benefit, in accordance with offset ratios listed in Table 1, in the area where the national ambient air quality standard for that pollutant is violated.

        6.  The proposed major stationary source or major modification will meet all applicable emission requirements in the Louisiana State Implementation Plan (SIP), any applicable new source performance standard in 40 CFR part 60, and any national emission standard for hazardous air pollutants in 40 CFR part 61 or part 63.

        7.  As a condition for issuing a permit to construct a major stationary source or major modification in a nonattainment area, the public record must contain an analysis, provided by the applicant, of alternate sites, sizes, production processes, and environmental control techniques and demonstrate that the benefits of locating the source in a nonattainment area significantly outweigh the environmental and social costs imposed.

        8.  The administrative authority shall allow a source to offset, by alternative or innovative means, emission increases from rocket engine and motor firing, and cleaning related to such firing, at an existing or modified major source that tests rocket engines or motors under the following conditions:

            a.  Any modification proposed is solely for the purpose of expanding the testing of rocket engines or motors at an existing source that is permitted to test such engines on the date of enactment of this Subsection.

            b.  The source demonstrates to the satisfaction of the administrative authority that it has used all reasonable means to obtain and utilize offsets, as determined on an annual basis, for the emissions increases beyond allowable levels, that all available offsets are being used, and that sufficient offsets are not available to the source.

            c.  The source has obtained a written finding from the Department of Defense, Department of Transportation, National Aeronautics and Space Administration, or other appropriate federal agency, that the testing of rocket motors or engines at the facility is required for a program essential to the national security.

            d.  The source will comply with an alternative measure, imposed by the administrative authority, designed to offset any emission increases beyond permitted levels not directly offset by the source.  In lieu of imposing any alternative offset measures, the administrative authority may impose an emissions fee to be paid to such authority of a state which shall be an amount no greater than 1.5 times the average cost of stationary source control measures adopted in that area during the previous three years.  The administrative authority shall utilize the fees in a manner that maximizes the emission reductions in that area.


    E.  Additional Requirements for Sources Impacting Mandatory Federal Class I Areas

        1.  The department shall transmit to the administrator and any affected federal land manager a copy of each permit application and any information relevant to any proposed major stationary source or major modification which may have an impact on visibility in any mandatory federal Class I area.  Relevant information will include an analysis of the proposed source's anticipated impacts on visibility in the federal Class I area.  The application shall be transmitted within 30 days of receipt by the department and at least 60 days prior to any public hearing on the application. Additionally, the department shall notify any affected federal land manager within 30 days from the date the department receives a request for a pre-application meeting from a proposed source subject to this regulation. The department shall consult with the affected federal land manager prior to making a determination of completeness for any such permit application.  The department shall also provide the federal land manager and the administrator with a copy of the preliminary determination on the permit application and shall make available to them any materials used in making that determination.

        2.  The owner or operator of any proposed major stationary source or major modification which may have an impact on visibility in a mandatory federal Class I area shall include in the permit application an analysis of the anticipated impacts on visibility in such areas.

        3.  The department may require monitoring of visibility in any mandatory federal Class I area where the department determines an adverse impact on visibility may occur due to the operations of the proposed new major stationary source or major modification.  Such monitoring shall be conducted following procedures approved by the department and subject to the following conditions:

            a.  visibility monitoring methods specified by the department shall be reasonably available and not require any research and development; and

            b.  both preconstruction and post construction visibility monitoring may be required.  In each case, the duration of such monitoring shall not exceed one year.

NOTE TO READER:  Subsection E.4 below is as approved in the Louisiana Register on February 20, 1993 (LR 19:176), on page 178.  END NOTE TO READER

        4.  The department shall consider any analysis with respect to visibility impacts provided by the federal land manager if it is received within 30 days from the date a complete application is given to the federal land manager.  In any case where the department disagrees with the federal land manager's analysis, the department shall either explain its decision to the federal land manager or give notice as to where the explanation can be obtained.  In the case where the department disagrees with the federal land manager's analysis, the department will also explain its decision or give notice to the public by means of an advertisement in a newspaper of general circulation in the area in which the proposed source would be constructed as to where the decision can be obtained.

        5.  In making its determination as to whether or not to issue a permit, the department shall ensure that the source's emissions will be consistent with making progress toward the national visibility goal of preventing any future impairment of visibility in mandatory federal Class I areas.  The department may take into account the costs of compliance, the time necessary for compliance, the energy and non-air quality environmental impacts of compliance, and the useful life of the source.


    F.  Emission Offsets.  All emission off-sets approved by the department shall meet the following criteria:

        1.  All emission reductions claimed as offset credit shall be from decreases of the same pollutant or pollutant class (e.g., VOC) for which the offset is required.  Interpollutant trading, for example using a NO_X credit to offset a VOC emission increase, is not allowed.

        2.  All emission reductions claimed as offset credit must have occurred later than the date upon which the area was designated nonattainment.

        3.  All emission reductions claimed as offset credit shall be federally enforceable prior to commencement of construction of the proposed new source or major modification.  All emission reductions claimed as offset credit shall occur prior to or concurrent with the start of operation of the proposed major stationary source.

        4.  Emission reductions claimed as offset credit shall be sufficient to ensure Reasonable Further Progress (RFP), as determined by the administrative authority.

        5.  Offset credit for any emission reduction can be claimed only to the extent that the department or the United States Environmental Protection Agency (USEPA) has not relied on it in previously issuing any permit or in demonstrating attainment or reasonable further progress.

        6.  The emission limit for determining emission offset credit involving an existing fuel combustion source shall be the most stringent emission standard which is allowable under the applicable regulation for this major stationary source for the type of fuel being burned at the time the permit application is filed.  If the existing source commits to switch to a cleaner fuel, emission offset credit based on the difference between the allowable VOC emissions of the fuels involved shall be acceptable only if an alternative control measure, which would achieve the same degree of emission reductions should the source switch back to a fuel which produces more pollution, is specified in a permit issued by the department.

        7.  The owner or operator desiring to utilize emission reductions as an offset shall submit to the department the following information:

            a.  a detailed description of the process to be controlled and the control technology to be used;

            b.  emission calculations showing the types and amounts of actual emissions to be reduced; and

            c.  the effective date of the reduction.

        8.  Emissions reductions achieved by shutting down an existing source or curtailing production or operating hours below baseline levels may be generally credited if such reductions are permanent, quantifiable, federally enforceable, and in accordance with the State Implementation Plan (SIP).

        9.  Emission offsets shall be obtained from the same source in the case of internal offsets provided in accordance with Subsection D.3 of this Section.  In all other cases emission offsets shall be obtained from the same source or other sources in the same nonattainment area, except that such emission reductions may be obtained from a source in another nonattainment area if:

            a.  the other area has an equal or higher nonattainment classification than the area in which the major stationary source is located; and

            b.  emissions from such other area contribute to a violation of the national ambient air quality standard in the nonattainment area in which the proposed new or modified major stationary source would construct.

        10.  Emission reductions otherwise required by the Federal Clean Air Act or by state regulations shall not be credited for purposes of satisfying the offset requirement.  Incidental emission reductions which are not otherwise required by the Act or by state regulations may be creditable as offsets.


    G.  Definitions.  The terms in this Section are used as defined in LAC 33:III.111 with the exception of those terms specifically defined as follows:

    Act  ---  the Federal Clean Air Act, 42 U.S.C. 7401-7671(q).

    Actual Emissions  ---  the actual rate of emissions of a pollutant from an emissions unit as determined in accordance with the following:

        a.  In general, actual emissions as of a particular date shall equal the average rate, in tons per year, at which the unit actually emitted the pollutant during a two-year period which precedes the particular date and which is representative of normal major stationary source operation.  A different time period shall be allowed upon a determination by the department that it is more representative of normal major stationary source operation. Actual emissions shall be calculated using the unit’s actual operating hours, production rates, and types of materials processed, stored, or combusted during the selected time period.

    b.  For any emissions unit which has not begun normal operations on the particular date, actual emissions shall equal the allowable emissions of the unit.

    Administrator  ---  the administrator of the USEPA or an authorized representative.

    Adverse Impact on Visibility  ---  visibility impairment which interferes with the management, protection, preservation, or enjoyment of the visitor's visual experience of the mandatory federal Class I area.  This determination must be made on a case-by case basis taking into account the geographic extent, intensity, duration, frequency, and time of the visibility impairments and how these factors correlate with:

        a.  times of visitor use of the mandatory federal Class I area; and

        b.  the frequency and timing of natural conditions that reduce visibility.

This term does not include effects on integral vista as defined at 40 CFR 51.301, Definitions.

    Allowable Emissions  ---  the emissions rate of a major stationary source calculated using the maximum rated capacity of the source (unless the source is subject to federally enforceable limits which restrict the operating rate, or hours of operation, or both) and the most stringent of the following:

        a.  the applicable standard set forth in 40 CFR part 60, 61, or 63;

        b.  any applicable State Implementation Plan emissions limitation including those with a future compliance date; or

        c.  the emissions rate specified as a federally enforceable permit condition, including those with a future compliance date.

    Begin Actual Construction  ---  initiation of physical on-site construction activities on an emissions unit which are of a permanent nature. Such activities include, but are not limited to, installation of building support and foundations, laying of underground pipework, and construction of permanent storage structures.  With respect to a change in method of operating this term refers to those on-site activities other than preparatory activities which mark the initiation of the change.

    Building, Structure, Facility, or Installation  ---  all of the pollutant-emitting activities which belong to the same industrial grouping, are located on one or more contiguous or adjacent properties, or are under the control of the same person (or persons under common control).  Pollutant- emitting activities shall be considered as part of the same industrial grouping if they belong to the same "Major Group" (i.e., which have the same two-digit code) as described in the Standard Industrial Classification Manual, 1987.

    Commence  ---  as applied to construction of a major stationary source or major modification means that the owner or operator has all necessary preconstruction approvals or permits and either has:

        a.  begun, or caused to begin, a continuous program of actual on-site construction of the major stationary source, to be completed within a reasonable time; or

        b.  entered into binding agreements or contractual obligations, which cannot be canceled or modified without substantial loss to the owner or operator, to undertake a program of actual construction of the major stationary source to be completed within a reasonable time.

    Construction  ---  any physical change or change in the method of operation (including fabrication, erection, installation, demolition, or modification of an emissions unit) which would result in a change in actual emissions.

    Emissions Unit  ---  any part of a major stationary source which emits or would have the potential to emit any regulated pollutant.

    Federal Class I Area  ---  any federal land that is classified or reclassified as a "Class I" area pursuant to the Federal Clean Air Act.

    Federal Land Manager  ---  with respect to any lands in the United States, the secretary of the department with authority over such lands.

    Federally Enforceable  ---  all limitations and conditions which are federally enforceable by the administrator, including those requirements developed pursuant to 40 CFR parts 60, 61, and 63, requirements within any applicable State Implementation Plan, any permit requirements established pursuant to 40 CFR 52.21 or under regulations approved pursuant to 40 CFR part 51, subpart I including 40 CFR 51.165 and 40 CFR 51.166.

    Fugitive Emissions  ---  those emissions which could not reasonably pass through a stack, chimney, vent, or other functionally equivalent opening.

    Lowest Achievable Emission Rate  ---  for any source, the more stringent rate of emissions based on the following:

        a.  the most stringent emissions limitation which is contained in the implementation plan of any state for such class or category of major stationary source, unless the owner or operator of the proposed stationary source demonstrates that such limitations are not achievable; or

        b.  the most stringent emissions limitation which is achieved in practice by such class or category of stationary source.  This limitation, when applied to a modification, means the lowest achievable emissions rate for the new or modified emissions units within the stationary source.  In no event shall the application of this term permit a proposed new or modified major stationary source to emit any pollutant in excess of the amount allowable under an applicable new source standard of performance.

    Major Modification  ---  
 
        a.  any physical change in or change in the method of operation of a major stationary source that would result in a significant net emissions increase, as listed in Table 1, of any regulated pollutant for which the stationary source is already major.

        b.  any net emissions increase that is considered significant for volatile organic compounds shall be considered significant for ozone.

        c.  a physical change or change in the method of operation shall not include:

            i.  routine maintenance, repair and replacement;

            ii.  use of an alternative fuel or raw material by reason of an order under sections 2(a) and (b) of the Energy Supply and Environmental Coordination Act of 1974 (or any superseding legislation) or by reason of a natural gas curtailment plan pursuant to the Federal Power Act;

            iii.  use of an alternative fuel by reason of an order or rule under section 125 of the Clean Air Act;

            iv.  use of an alternative fuel at a steam generating unit to the extent that the fuel is generated from municipal solid waste;
 
            v.  use of an alternative fuel or raw material by a stationary source which:

                (a).  the source was capable of accommodating before December 21, 1976, unless such change would be prohibited under any federally enforceable permit condition which was established after December 12, 1976 pursuant to 40 CFR 52.21 or under regulations approved pursuant to 40 CFR part 51, subpart I or 40 CFR 51.166, or

                (b).  the source is approved to use under any permit issued under regulations approved pursuant to this Section;

            vi.  an increase in the hours of operation or in the production rate, unless such change is prohibited under any federally enforceable permit condition which was established after December 21, 1976 pursuant to 40 CFR 52.21 or regulations approved pursuant to 40 CFR part 51, subpart I or 40 CFR 51.166.

            vii.  any change in ownership at a stationary source.


    Major Stationary Source  ---  

        a.  Any stationary source (including all emission points and units of such source located within a contiguous area and under common control) of air pollutants which emits, or has the potential to emit, any regulated pollutant at or above the threshold values defined in Table 1; or

        b.  Any physical change that would occur at a stationary source not qualifying under Subparagraph a of this definition as a major stationary source, if the change would constitute a major stationary source by itself.

        c.  A major stationary source that is major for volatile organic compounds shall be considered major for ozone.

        d.  A stationary source shall not be a major stationary source due to fugitive emissions, to the extent that they are quantifiable, unless the source belongs to:

            i.  any category in Table A in LAC 33:III.509; or

            ii.  any other stationary source category which, as of August 7, 1980, is being regulated under Section 111 or 112 of the Act.

        e.  A stationary source shall not be a major stationary source due to secondary emissions.

    Mandatory Federal Class I Area  ---  those federal lands that are International Parks, National Wilderness areas which exceed 5,000 acres in size, National Memorial Parks which exceed 5,000 acres in size, and National Parks which exceed 6,000 acres in size, and which were in existence on August 7, 1977.  These areas may not be redesignated.

    Natural Conditions  ---  includes naturally occurring phenomena that reduce visibility as measured in terms of visual range, contrast, or coloration.

    Necessary Preconstruction Approvals or Permits  --- those permits or approvals required under federal air quality control laws and regulations and those air quality control laws and regulations which are part of the applicable State Implementation Plan.

    Net Emissions Increase  ---  the amount by which the sum of the following exceeds zero:

        a.  i.  Any increase in actual emissions from a particular physical change or change in the method of operation at a stationary source; and

            ii.  Any other creditable increases and decreases in actual emissions at the major stationary source over a period including the calendar year of the proposed increase, up to the date on which the proposed increase will occur, and the preceding four consecutive calendar years.

        b.  An increase or decrease in actual emissions is creditable only if neither the department nor the administrator has relied on it in issuing a permit for the source under this regulation and, for a decrease, the administrator has not relied on it in issuing a permit under 40 CFR 52.21, which permit is in effect when the increase in actual emissions from the particular change occurs.

        c.  An increase in actual emissions is creditable only to the extent that the new level of allowable emissions exceeds the old level of actual emissions.

        d.  A decrease in actual emissions is creditable only to the extent that:

            i.  the old level of actual emissions or the old level of allowable emissions, whichever is lower, exceeds the new level of allowable emissions;

            ii.  it is federally enforceable at and after the time that actual construction of the particular change begins;

            iii.  it has not been relied on by the state in demonstrating attainment or reasonable further progress; and

            iv.  it has approximately the same qualitative significance for public health and welfare as that attributed to the increase from the particular change.

        e.  An increase that results from a physical change at a major stationary source occurs when the emissions unit on which construction occurred becomes operational and begins to emit a particular pollutant.  Any replacement unit that requires shakedown becomes operational only after a reasonable shakedown period, not to exceed 180 days.

    Nonattainment area  ---  for any air pollutant, an area which is shown by monitored data or which is calculated by air quality modeling (or other methods determined by the administrator to be reliable) to exceed any national ambient air quality standard for such pollutant.  Such term includes any area identified under Subparagraphs (A)-(C) of section 107(d)(1) of the Federal Clean Air Act.

    Portable Stationary Source  ---  a source which can be relocated to another operating site with limited dismantling and reassembly.

    Potential to Emit  ---  the maximum capacity of a stationary source to emit a pollutant under its physical and operational design.  Any physical or operational limitation on the capacity of the source to emit a pollutant, including air pollution control equipment and restrictions on hours of operation or on the type or amount of material combusted, stored, or processed, shall be treated as part of its design only if the limitation or the effect it would have on emissions is federally enforceable.

    Regulated Pollutant  ---  any air pollutant, the emission or ambient concentration of which is regulated pursuant to the Act.

    Secondary Emissions  ---  emissions which would occur as a result of the construction or operation of a major stationary source or major modification, but do not come from the major stationary source or major modification itself. For the purpose of this Section, secondary emissions must be specific, well defined, quantifiable, and impact the same general area as the stationary source or modification which causes the secondary emissions.  Secondary emissions include emissions from any offisite support facility which would not be constructed or increase its emissions except as a result of the construction or operation of the major stationary source or major modification.  Secondary emissions do not include any emissions which come directly from a mobile source, such as emissions from the tailpipe of a motor vehicle, from a train, or from a vessel.

    Stationary Source  ---  any building, structure, facility, or installation which emits or may emit any regulated pollutant.

    Temporary Source  ---  a stationary source which changes its location or ceases to exist within one year from the date of initial start of operations.

    Visibility Impairment  ---  any humanly perceptible change in visibility (visual range, contrast, coloration) from that which would have existed under natural conditions.



Table 1:  Major Stationary Source/Major Modification Emission Thresholds
 

¹ For those parishes which are designated incomplete data or transitional nonattainment for ozone, the new source review rules for a marginal classification apply.

² Consideration of the net emissions increase will be triggered for any project which would increase emissions by 40 tons or more per year, without regard to any project decreases.

³ For serious and severe ozone nonattainment areas, the increase in emissions of volatile organic compounds resulting from any physical change or change in the method of operation of a stationary source shall be considered significant for purposes of determining the applicability of permit requirements, if the net emissions increase from the source equals or exceeds 25 tons.

⁴ Consideration of the net emissions increase will be triggered for any project which would increase volatile organic compound emissions by five tons or more per year, without regard to any project decreases, or for any project which would result in a 25 ton or more per year cumulative increase in emissions after November 15, 1992, without regard to project decreases.

     VOC  = volatile organic compounds

     CO   = carbon monoxide

     SO₂  = sulfur dioxide

     PM₁₀ = particulate matter of less than 10 microns in diameter

AUTHORITY NOTE:  Promulgated in accordance with R.S.  30:2054.

HISTORICAL NOTE:  Promulgated by the Department of Environmental Quality, Office of Air Quality and Radiation Protection, Air Quality Division, LR 19:176 (February 1993), repromulgated LR 19:486 (April 1993), amended LR 19:1420 (November 1993), LR 21:1332 (December 1995), LR 23:197 (February 1997).