Rule2023-26753
Air Plan Disapproval; Louisiana; Excess Emissions
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
December 7, 2023
Effective
January 8, 2024
Issuing agencies
Environmental Protection Agency
Abstract
Pursuant to the Federal Clean Air Act (CAA or the Act), the Environmental Protection Agency (EPA) is disapproving a State Implementation Plan (SIP) revision submitted by the State of Louisiana, through the Louisiana Department of Environmental Quality (LDEQ), on November 20, 2016, and supplemented on June 9, 2017. The submittals were in response to the EPA's national SIP call on June 12, 2015, concerning excess emissions during periods of Startup, Shutdown, and Malfunction (SSM). EPA is finalizing a determination that the revision to the SIP in the submittals does not correct the deficiency with the Louisiana SIP identified in the June 12, 2015 SIP call. We are taking this action in accordance with section 110 of the Act.
Full Text
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<title>Federal Register, Volume 88 Issue 234 (Thursday, December 7, 2023)</title>
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[Federal Register Volume 88, Number 234 (Thursday, December 7, 2023)]
[Rules and Regulations]
[Pages 85112-85124]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-26753]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R06-OAR-2019-0212; FRL-10997-02-R6]
Air Plan Disapproval; Louisiana; Excess Emissions
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: Pursuant to the Federal Clean Air Act (CAA or the Act), the
Environmental Protection Agency (EPA) is disapproving a State
Implementation Plan (SIP) revision submitted by the State of Louisiana,
through the Louisiana Department of Environmental Quality (LDEQ), on
November 20, 2016, and supplemented on June 9, 2017. The submittals
were in response to the EPA's national SIP call on June 12, 2015,
concerning excess emissions during periods of Startup, Shutdown, and
Malfunction (SSM). EPA is finalizing a determination that the revision
to the SIP in the submittals does not correct the deficiency with the
Louisiana SIP identified in the June 12, 2015 SIP call. We are taking
this action in accordance with section 110 of the Act.
DATES: This rule is effective on January 8, 2024.
ADDRESSES: The EPA has established a docket for this action under
Docket ID No. EPA-R06-OAR-2019-0212. All documents in the docket are
listed on the <a href="https://www.regulations.gov">https://www.regulations.gov</a> website. Although listed in
the index, some information is not publicly available, e.g.,
Confidential Business Information or other information whose disclosure
is restricted by statute. Certain other material, such as copyrighted
material, is not placed on the internet. Publicly available docket
materials are available electronically through <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
FOR FURTHER INFORMATION CONTACT: Mr. Alan Shar, Regional Haze and
SO<INF>2</INF> Section, EPA Region 6 Office, 1201 Elm Street, Suite
500, Dallas, Texas 75270, (214) 665-6691, <a href="/cdn-cgi/l/email-protection#1a49727b68347b767b745a7f6a7b347d756c"><span class="__cf_email__" data-cfemail="0e5d666f7c206f626f604e6b7e6f20696178">[email protected]</span></a>. Please
call or email the contact listed above if you need alternative access
to material indexed but not provided in the docket.
SUPPLEMENTARY INFORMATION: Throughout this document ``we,'' ``us,'' and
``our'' means the EPA.
I. Background
The background for this action is discussed in detail in our June
13, 2023 (88 FR 38448) proposal where we proposed to disapprove a
revision to the Louisiana SIP, which requested the removal of section
LAC 33:III.2201.C.8 and approval of a new section, LAC 33:III.2201.K,
titled Startup and Shutdown, in its place.\1\ LAC
[[Page 85113]]
33:III.2201.K would require affected Nitrogen Oxides (NO<INF>X</INF>)
point sources to comply with either: (1) the applicable emission
limitations and standards at all times, including periods of startup
and shutdown; or (2) the applicable emission limitations and standards
at all times, except during periods of startup and shutdown covered by
work practice standards permissible under the rule. Thus, owners and
operators of sources that choose not to comply with the numeric
emission limitations during periods of startup and shutdown would be
allowed to comply with alternative work practice standards. The owner
or operator would not have to select the same method of compliance
(option) for every affected point source and would be allowed to revise
its selection of the method of compliance for one or more affected
point sources by means of a permit modification. Any noncompliance with
the emission limitations or with the alternative plan would be
submitted in writing within 90 days of the end of each ozone season
(May 1-September 30, inclusive) to the administrative authority. The
affected NO<INF>X</INF> point sources of concern are electric power
generating system boilers, industrial boilers, process heaters and
furnaces, stationary gas turbines, and stationary internal combustion
engines in the Baton Rouge ozone nonattainment area and its Region of
Influence (ROI). The Baton Rouge ozone nonattainment area consists of
five parishes: Ascension, East Baton Rouge, Iberville, Livingston, and
West Baton Rouge, and the ROI is an area to the north of the Baton
Rouge ozone nonattainment area that encompasses affected facilities in
the attainment parishes of East Feliciana, Pointe Coupee, St. Helena,
and West Feliciana.\2\
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\1\ LAC 33:III.2201.K Startup and Shutdown
``1. For affected point sources that are shut down intentionally
more than once per month, the owner or operator shall include
NO<INF>X</INF> emitted during periods of start-up and shutdown for
purposes of determining compliance with the emission factors set
forth in Subsection D of this Section, or with an alternative plan
approved in accordance with Paragraph E.1 or 2 of this Section.
2. For all other affected point sources, effective May 1, 2017,
the owner or operator shall either comply with Paragraph K.1 of this
Section or the work practice standards described in Paragraph K.3 of
this Section during periods of start-up and shutdown. If the owner
or operator chooses to comply with work practices standards, the
emission factors set forth in Subsection D of this Section shall not
apply during periods of start-up and shutdown.
3. Work Practice Standards
a. The owner or operator shall operate and maintain each
affected point source, including any associated air pollution
control equipment and monitoring equipment, in a manner consistent
with safety and good air pollution control practices for minimizing
emissions.
b. Coal-fired and fuel oil-fired electric power generating
system boilers and fuel oil-fired stationary gas turbines shall use
natural gas during start-up. Start-up ends when any of the steam
from the boiler or steam turbine is used to generate electricity for
sale over the grid or for any other purpose (including on-site use).
If another fuel must be used to support the shutdown process,
natural gas shall be utilized.
c. Engage control devices such as selective catalytic reduction
(SCR) or selective non-catalytic reduction (SNCR) as expeditiously
as possible, considering safety and manufacturer recommendations.
The department shall incorporate into the applicable permit for each
affected facility appropriate requirements describing the source-
specific conditions or parameters identifying when operation of the
control device shall commence.
d. Minimize the start-up time of stationary internal combustion
engines to a period needed for the appropriate and safe loading of
the engine, not to exceed 30 minutes.
e. Maintain records of the calendar date, time, and duration of
each start-up and shutdown.
f. Maintain records of the type(s) and amount(s) of fuels used
during each start-up and shutdown.
g. The records required by Subparagraphs K.3.e and f of this
Section shall be kept for a period of at least five years and shall
be made available upon request by authorized representatives of the
department.
4. On or before May 1, 2017, the owner or operator shall notify
the Office of Environmental Services whether each affected point
source will comply with Paragraph K.1 or K.3 of this Section during
periods of start-up and shutdown.
a. The owner or operator does not have to select the same option
for every affected point source.
b. The department shall incorporate into the applicable permit
for each affected facility the provisions of Paragraph K.1 and/or
K.3 of this Section, as appropriate. The owner or operator may elect
to revise the method of compliance with Subsection K of this Section
for one or more affected point sources by means of a permit
modification.''
\2\ See LAC 33:III.2201.A(1).
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In the June 13, 2023 (88 FR 38448) notice, we proposed to determine
that the SIP revision (the November 20, 2016 submittal, and its June 9,
2017 supplement) does not correct substantial inadequacies identified
in the June 12, 2015 SIP call (hereinafter referred to as the ``2015
SSM SIP Action'').\3\ The proposal did not reopen the 2015 SSM SIP
Action and only took comment on whether the proposed Louisiana SIP
revision is consistent with CAA requirements and whether it addressed
the substantial inadequacy identified in the 2015 SSM SIP Action for
LAC 33:III.2201.C.8 of the Louisiana SIP.
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\3\ 80 FR 33840 (June 12, 2015), State Implementation Plans:
Response to Petition for Rulemaking; Restatement and Update of EPA's
SSM Policy Applicable to SIPs; Findings of Substantial Inadequacy;
and SIP Calls To Amend Provisions Applying to Excess Emissions
During Periods of Startup, Shutdown and Malfunction; Final Rule.
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II. Summary of Comments
The public comment period for our proposed disapproval and
determination ended on July 13, 2023, and we received comments from
Sierra Club, LDEQ, industry groups, and one anonymous commenter.
In general, Sierra Club expressed support for the proposed
disapproval. LDEQ disagreed with EPA's conclusions and believed that
the work practice standards under LAC 33:III.2201.K are consistent with
the CAA and the 2015 SSM SIP policy. The Louisiana Chemical Association
and the Louisiana Mid-Continent Oil & Gas Association (hereinafter
``Industry commenters'') stated that EPA's proposed disapproval is
unwarranted and arbitrary and capricious; thus, they requested that EPA
withdraw its proposed disapproval. Finally, an anonymous commenter
questioned the relevance of detailed demographic information and
Environmental Justice (EJ) considerations with respect to the proposal
and the 2015 SSM SIP Action. The full text of all the comments received
is in the docket for this action. A summary of the comments and EPA's
responses are provided in the next section.
III. Response to Comments
A. Industry and LDEQ Comments
Comment 1: Industry commenters stated that the addition of the
excess emissions provisions in LAC 33:III.2201.K does not render
Louisiana's SIP ``substantially inadequate.'' The commenters asserted
that EPA's proposed disapproval of the State's SIP submittal
(requesting the addition of LAC 33:III.2201.K to the Louisiana SIP) is
based on policy preferences published as recommendations and that EPA
is using its recommendations as rigid requirements to disapprove
Louisiana's excess emissions SIP provisions. The commenters
specifically noted that the EPA does not demonstrate that the SIP is
inadequate to protect air quality, pointing to declines in
NO<INF>X</INF> emissions and the 8-hour ozone design value of the Baton
Rouge area.
Response: EPA is cognizant of and appreciates LDEQ's efforts in
reducing ozone National Ambient Air Quality Standards (NAAQS) design
values in the Baton Rouge area.\4\ Evidence that NO<INF>X</INF>
emissions and ozone concentrations have decreased, though, is not by
itself a sufficient basis to find that a potential revision to the SIP
meets all CAA requirements for SIPs (e.g., the CAA requirement that
SIPs include enforceable emission limitations that limit emissions on a
continuous basis). Also, as stated in the 2015 SSM SIP Action, even if
historically excess emissions have not caused or contributed to an
exceedance or a violation, this would not mean that they could not do
so at some time in the
[[Page 85114]]
future. In addition, given that there are many locations where air
quality is not monitored such that a NAAQS exceedance or violation due
to excess emissions could be observed, the inability to demonstrate
that such excess emissions have not caused or contributed to an
exceedance or violation would not be proof that they have not.\5\
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\4\ It is worth noting that the decline in design values of
ozone presented by the commenter covers a period before the
effective date of LAC 33:III.2201.K.
\5\ 80 FR 33840, 33947.
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Section LAC 33:III.2201.C.8 was identified as substantially
inadequate because this provision allowed for automatic exemptions for
certain sources in the Baton Rouge ozone nonattainment area during
startup and shutdowns from otherwise applicable NO<INF>X</INF> emission
limitations and such exemptions are inconsistent with the fundamental
requirements of CAA sections 110(a)(2)(A), 110(a)(2)(C), and 302(k).\6\
Accordingly, in the 2015 SSM SIP Action, EPA found that the exemption
provision in LAC 33:III.2201.C.8 is substantially inadequate to meet
CAA requirements and issued a SIP call with respect to this
provision.\7\ The removal of the exemption provision of LAC
33:III.2201.C.8 from the Louisiana SIP is consistent with CAA
requirements; however, for the reasons discussed in our proposal and
this final rule, the alternative emissions limit provisions of LAC
33:III.2201.K do not meet the CAA requirements for SIPs and the
requirements of CAA section 110(l) for EPA approval of a revision to a
SIP.
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\6\ 78 FR 12460, 12522 (February 22, 2013).
\7\ 80 FR 33840, 33968.
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Regarding the comment concerning EPA's alleged use of
recommendations as requirements, we believe the commenter is referring
to the seven criteria for the development of Alternative Emission
Limitations (AELs) applicable during startup and shutdown events.\8\ In
the context of making recommendations to states for how to address
emissions during startup and shutdown, the EPA recommended seven
criteria for states to evaluate in establishing appropriate alternative
emission limitations. Among the purposes for these recommendations was
the need to take into account technological limitations that might
prevent compliance with the otherwise applicable emission limitations,
while ensuring that those alternative limitations complied with the
continuity and enforceability requirements of the CAA.\9\ In its 2015
SSM SIP Action,\10\ comment letters to the State,\11\ and the proposal
notice for this action,\12\ EPA has referred to and identified these
seven criteria as recommendations to be given consideration for
developing AELs in SIP provisions that apply during startups and
shutdowns. To be clear, our disapproval of Louisiana's SIP submittals
is not based solely upon the recommended criteria but upon the
statutory requirements and the applicable court decision discussed
herein.\13\ In particular, EPA's final disapproval action is based on
the fact that Louisiana's submissions have failed to correct the
``substantial inadequacy'' of the Louisiana SIP as identified in the
2015 SSM SIP Action.\14\
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\8\ See id. at 33980.
\9\ Id. at 33912.
\10\ Id. at 33980.
\11\ See Enclosures to EPA's August 3, 2016, and December 16,
2016 comment letters to Deidra Johnson of LDEQ.
\12\ Section II.A, June 13, 2023 (88 FR 38450).
\13\ See CAA sections 110(a)(2)(A), 110(a)(2)(C), also 88 FR
38451.
\14\ See 78 FR at 12521-12522, and 80 FR at 33967-33968 for a
thorough description of why Louisiana's SIP is substantially
inadequate because it ``did not comply with any requirement of'' the
CAA.
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Comment 2: Following the prior comment from the Industry commenters
that the excess emission provisions in LAC 33:III.2201.K do not render
Louisiana's SIP ``substantially inadequate,'' commenters then discussed
EPA's seven recommended criteria to consider in establishing AELs set
forth in the 2015 SSM SIP Action.\15\ First, the Industry commenters
argued that the work practice standards in LAC 33:III.2201.K are
limited to specific, narrowly defined source categories using specific
control strategies, satisfying EPA's first recommended criterion. The
commenters noted that LAC 33:III.2201.K.3.c addresses ``specific
control strategies'' and requires affected point sources to engage
control devices as expeditiously as possible. The commenters, citing to
LDEQ's comments, also alleged that LAC 33:III.2201.K.3.c is potentially
applicable to each category of point sources regulated under LAC
33:III.Chapter 22.
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\15\ 80 FR 33914.
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Response: In the example provided in the 2015 SSM SIP Action for
the first AEL criterion, EPA lists an affected source category as
``cogeneration facilities burning natural gas and using Selective
Catalytic Reduction (SCR).'' This example specifies a subset of power
generation facilities (cogeneration facility), identifies a certain
fuel capability (natural gas), and narrows the number of affected
sources to ones with a specific type of post combustion control device
(SCR). Contrary to EPA's recommendation that AELs be limited to
narrowly defined sources categories, LDEQ's November 20, 2016, and June
9, 2017 submittals define the affected sources covered by the new rule
as a collection of groups of categories of sources to include electric
power generating system boilers, industrial boilers, process heaters
and furnaces, stationary gas turbines, and stationary internal
combustion engines. These affected sources constitute a diverse array
of NO<INF>X</INF> emitting source categories within the Baton Rouge
ozone nonattainment area and its ROI. These sources can be located in
any of the nine parishes (Ascension, East Baton Rouge, Iberville,
Livingston, West Baton Rouge, East Feliciana, Pointe Coupee, St.
Helena, and West Feliciana).\16\
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\16\ See Applicability LAC 33:III.2201.A.1.
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In addition, the following three examples demonstrate that the
affected source categories are indeed broad in type, size, age, and are
not narrowly defined. In the first example, the work practice
requirements of LAC 33:III.2201.K apply to affected electric power
generating system boilers which are defined as units used to generate
electric power and can be owned or operated by a municipality, an
electric cooperative, an independent power producer, a public utility,
or a Louisiana Public Service Commission regulated utility company, or
any of its successors.\17\ The subject boilers can be coal-fired,
number 6 fuel oil-fired, or burn gaseous or liquid as fuel, and located
in either the Baton Rouge ozone nonattainment area or its ROI.\18\ In
addition, these boilers are not restricted to a specific construction,
reconstruction, or equipment modification date. Another example of an
affected point source category covered by LAC 33:III.2201.K is
stationary gas turbines that are defined as units that can be of
peaking service type or, either fuel-oil fired or gas fired, can be
located in any of the nine parishes, and are not restricted to a
specific construction, reconstruction, or equipment modification
date.\19\ Finally, stationary internal combustion engines, also covered
by LAC 33:III.2201.K, are defined as units classified either as rich
[[Page 85115]]
burn \20\ or lean burn,\21\ are either gas and/or liquid fuel fired,
and are either attached to a foundation or portable.\22\ These
stationary internal combustion engines can be located in any of the
nine parishes and are not restricted to a specific construction,
reconstruction, or equipment modification date.
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\17\ See Definitions LAC 33:III.2201.B.1.
\18\ See NO<INF>X</INF> Emission Factors for Sources in the
Baton Rouge Nonattainment Area Table D-1A, and NO<INF>X</INF>
Emission Factors for Sources in the Region of Influence Table D-1B,
Section LAC 33:III.2201.D.
\19\ See NO<INF>X</INF> Emission Factors for Sources in the
Baton Rouge Nonattainment Area Table D-1A, and NO<INF>X</INF>
Emission Factors for Sources in the Region of Influence Table D-1B,
Section LAC 33:III.2201.D.
\20\ Rich burn engine means any 4-stroke spark ignited engine
where the manufacturer's recommended operating air/fuel ratio
divided by the stoichiometric air/fuel ratio at full load conditions
is less than or equal to 1.1, see 40 CFR 60.4248 ``Rich burn
engine''.
\21\ Lean burn engine means any 2-stroke or 4-stroke spark
ignited engine that does not meet the definition of a rich burn
engine, see 40 CFR 60.4248 ``Lean burn engine''.
\22\ See Definitions LAC 33:III.2201.B.1.
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The effect of such a broadly-applicable rule covering a diverse
array of source categories is that the work practices set forth in LAC
33:III.2201.K.3 during periods of startup and shutdown cannot be
sufficiently tied to particular, specific categories of affected
sources to ensure the work practices serve to limit emissions from the
particular category and are practically enforceable. For example,
startup and shutdown emissions from affected industrial boilers and
process heaters/furnaces that do not utilize a control device to comply
with the SIP rule have no specifically applicable work practice
standards; they are governed only by the general duty provision in LAC
33:III.2201.K.3.a. As is discussed at length in the 2015 SSM SIP
Action, such general duty provisions are not practically enforceable.
Louisiana has made conclusory and nonspecific claims that the work
practice requirements of LAC 33:III.2201.K.3.c (relating to the use of
control devices such as SCR) are ``potentially applicable'' to all
affected source categories covered under LAC 33:III.2201.K.3.
Louisiana, however, has not clearly demonstrated that every source in
every covered point source category would be required to comply with
the more specific work practice standards laid out in LAC
33:III.2201.K.3.b-d in addition to the general duty provision in LAC
33:III.2201.K.3.a. In fact, it is likely that certain boilers,
furnaces, and process heaters comply with the LAC 33:III.Chapter 22
requirements during steady-state operations by utilizing low
NO<INF>X</INF> burners rather than controls such as Selective Non-
Catalytic Reduction (SNCR) or SCR and thus would only be subject to the
general duty provisions of LAC 33:III.2201.K.3.a, if selecting the LAC
33:III.2201.K.3 compliance option. Therefore, in such instances, LAC
33:III.2201.K.3 may be read so as to create situations wherein startup
and shutdown emissions are functionally exempt, thereby creating a non-
continuous emissions limitation that is inconsistent with CAA
requirements for SIPs. The framework established in Chapter 22 thus
continues to violate CAA requirements, including the requirement that
emissions limitations be continuous and practicably enforceable. See
CAA sections 110 and 302(k). Additional concerns related to other CAA
requirements are discussed below, including the requirement that the
work practice requirements in the AEL (LAC 33:III.2201.K.3) must
provide RACT-level controls during periods of startup and shutdown.
Comment 3: LDEQ also provided comments stating its belief that it
had appropriately considered EPA's first recommended criterion in its
development of the AELs contained in LAC 33:III.2201.K.3b-3.d. More
specifically, LDEQ asserted that since LAC 33:III.2201.K.3.b targets
fuel selection, the ``specific control strategies'' aspect of the first
criterion is not relevant. Also, since LAC 33:III.2201.K.3.c targets
post-combustion control of NO<INF>X</INF>, LDEQ claimed that the
``specific, narrowly defined source categories'' aspect of the first
criterion is not relevant. Finally, LDEQ noted that LAC
33:III.2201.K.3.d applies only to rich-burn and lean-burn spark-
ignition \23\ stationary internal combustion engines.
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\23\ Spark ignition means a gasoline-fueled engine; or any other
type of engine with a spark plug (or other sparking device) and with
operating characteristics significantly similar to the theoretical
Otto combustion cycle. Spark ignition engines usually use a throttle
to regulate intake air flow to control power during normal
operation, see 40 CFR 60.4248 ``Spark ignition''.
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Response: EPA finds that the AELs contained in sections LAC
33:III.2201.K.3.b, 3.c, and 3.d cover such a broad range of sources
that they do not comport with EPA's recommendation that AELs be limited
to specific, narrowly defined source categories using specific control
strategies, thereby leading to difficulties in determining compliance
with the applicable SIP emissions limitations.
LAC 33:III.2201.K.3.b applies to coal-fired and fuel oil-fired
electric power generating system boilers and fuel oil-fired stationary
gas turbines. EPA believes that the requirement under LAC
33:III.2201.K.3.b to use natural gas during startup until ``any of the
steam from the boiler or steam turbine is used to generate electricity
for sale over the grid or for any other purpose (including on-site
use)'' could be an acceptable component of an AEL, provided it is
associated with appropriate and enforceable recordkeeping and reporting
requirements. Note, since the boiler type (wall-fired, tangentially-
fired, dry bottom or wet bottom) and boiler age are not specified, we
assume that the work practice requirement to use natural gas during
startups and applicable shutdowns applies to all such boilers. However,
natural gas fired electric power generating system boilers not equipped
with a SCR or SNCR only appear to be subject to the general duty
provision of LAC 33:III.2201.K.3.a which, as discussed in our response
to Comment 4, is problematic for enforcement and compliance
determination purposes.
With respect to the work practice requirement that applies to
sources with control devices, LAC 33:III.2201.K.3.c requires affected
sources to engage control devices as expeditiously as possible. The
term ``expeditiously as possible'' is undefined and creates
enforceability problems. Also, the term ``engage control devices'' in
LAC 33:III.2201.K.3.c is not defined and could allow control devices to
operate at much lower levels of removal efficiency than the equipment
is capable of achieving. As written, section LAC 33:III.2201.K.3.c is
unclear which source categories are required to use the control
devices, the timing of their use, and their control efficiency, thereby
creating problems with enforceability.\24\
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\24\ See response to Comment 5 concerning the use and
effectiveness of SCR and SNCR.
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Regarding LDEQ's comment that LAC 33:III.2201.K.3.d is only
applicable to rich-burn and lean-burn spark-ignition stationary
internal combustion (IC) engines, we note that although it may appear
these IC engines are narrowly defined, LAC 33:III.2201.K.3.d does not
identify whether these spark ignition engines are of the 2-stroke \25\
or the 4-stroke \26\ type; these engines can burn either gas and or
liquid fuel and do not have to be attached to a foundation (can be
portable at a site for longer than 6 months).\27\ Stationary
Reciprocating Internal Combustion Engines (RICE) use either Compression
Ignition (CI) or Spark Ignition (SI) in order to induce combustion
within the cylinders. CI
[[Page 85116]]
RICE typically run on diesel fuel, while SI RICE typically operate on
lighter fuels such as gasoline, propane, natural gas, landfill gas.
While LDEQ's comment letter discusses work practice measures for spark
ignition reciprocating IC engines, LAC 33:III.2201.K.3.d does not
identify a specific work practice measure(s) for the CI RICE type
units. In addition, this provision fails to identify the use of propane
or landfill gas by such sources. As written, LAC 33:III.2201.K.3.d
appears to apply to both CI RICE and SI RICE, contrary to LDEQ's
comment. Since these work practice measures apply to all of the types
of engines, and this provision fails to identify the use of propane or
landfill gas by such sources, EPA does not view these AELs as narrowly
tailored. This conflict (lack of restriction) could lead to a
misunderstanding of the applicability of LAC 33:III.2201.K.3.d and
create compliance and enforcement difficulties.
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\25\ 2-stroke engine means a type of engine which completes the
power cycle in single crankshaft revolution by combining the intake
and compression operations into one stroke and the power and exhaust
operations into a second stroke. This system requires auxiliary
scavenging and inherently runs lean of stoichiometric, see 40 CFR
60.4248 ``Two-stroke engine''.
\26\ 4-stroke engine means any type of engine which completes
the power cycle in two crankshaft revolutions, with intake and
compression strokes in the first revolution and power and exhaust
strokes in the second revolution, see 40 CFR 60.4248 ``Four-stroke
engine''.
\27\ LAC 33:III.2201.B Definitions.
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Comment 4: The Industry commenters also noted the concerns
expressed in our proposal notice that improper consideration of EPA's
first recommended criterion could lead to AELs that present additional
SIP approvability difficulties, including a demonstration that the work
practice requirements in LAC 33:III.2201.K.3 met other CAA requirements
for SIPs, including those related to Reasonably Available Control
Technology (RACT). These commenters stated that LDEQ identified work
practice standards that function to minimize emissions of
NO<INF>X</INF> based on review of applicable New Source Performance
Standards (NSPS) and National Emission Standards for Hazardous Air
Pollutants (NESHAP) provisions, relevant EPA Control Technique
Guidelines (CTG) and Alternative Control Techniques (ACT), non-CTG/ACT
documents, and EPA guidance. The Industry commenters concluded that
because the review of the aforementioned sources did not identify
control measures beyond what is included in LAC 33:III.2201.K, then
those work practice requirements meet all applicable requirements for
SIPs, including the imposition of enforceable RACT-level controls, for
all the affected point sources subject to LAC 33:III.2201.K. In a
similar manner, LDEQ's comments included a discussion of its evaluation
of the documents referenced by the Industry commenters above and
provides a table of the requirements in LAC 33:III.2201.K.3 which
identifies the federal NSPS and NESHAP provisions upon which they are
based. Like the Industry commenters, LDEQ concluded that the work
practice requirements established in LAC 33:III.2201.K.3 for emissions
during startup and shutdown constitute RACT and meet all other
applicable CAA requirements. LDEQ also clarified that LAC
33:III.2201.K.3.a should not be considered an AEL but rather a general
duty provision.
Response: As stated in our response to Comment 2, the work practice
requirements in LAC 33:III.2201.K.3 apply to a broad category of
sources and fail to satisfy the CAA requirements for continuous
emission limitations and practical enforceability. With respect to the
CAA requirements concerning RACT as mentioned by the commenters, EPA
first notes that RACT is defined as the lowest emission limitation that
a particular source is capable of meeting by the application of control
technology that is reasonably available considering technological and
economic feasibility.\28\ LAC 33:III.Chapter 22 Control of Emissions of
Nitrogen Oxides was developed with the purpose of establishing RACT for
point sources of NO<INF>X</INF> in the Baton Rouge ozone nonattainment
area and its ROI. Therefore, in its development of AELs to apply during
periods of startup and shutdown of Chapter 22-affected point sources,
LDEQ examined several different resources in its search for work
practices that would be considered appropriate replacements for the
numerical emission limitations representing RACT found in the Chapter
22 rules of the existing Louisiana SIP.
---------------------------------------------------------------------------
\28\ ``NO<INF>X</INF> Supplement'' FR titled, ``State
Implementation Plans; Nitrogen Oxides Supplement to the General
Preamble; Clean Air Act Amendments of 1990 Implementation of Title
I; Proposed Rule,'' November 25, 1992 (57 FR 55620). Also, see
September 17, 1979 (44 FR 53762).
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We appreciate LDEQ's efforts in searching NSPS and NESHAP rules in
its attempt to develop RACT-level work practice requirements applicable
to startups and shutdowns of the affected point source categories. The
EPA agrees that states may adopt work practice standards to address
periods of startup and shutdown as a component of a SIP emission
limitation that applies continuously. As stated in the 2015 SSM SIP
Action, the adoption of work practice standards from a NESHAP or NSPS
as a component of an emission limitation to satisfy SIP requirements
was only a recommended approach that states may use if they choose to
incorporate an AEL and needed assistance in identifying potential
options that might work for their specific situation. The EPA stated
that it cannot foretell the extent to which this optional approach of
adopting other existing standards to satisfy SIP requirements may
benefit an individual state. For a state choosing to use this approach,
such work practice standards must meet the otherwise-applicable CAA
requirements (e.g., be a RACT-level control for the source as part of
an attainment plan requirement) and have the necessary parameters to
make it legally and practically enforceable (e.g., have adequate
monitoring, recordkeeping and reporting requirements to assure
compliance). However, it cannot automatically be assumed that emission
limitation requirements in recent NESHAP and NSPS constitute RACT for
all sources regulated by SIPs.\29\ The universe of sources regulated
under the federal NSPS and NESHAP programs is not identical to the
universe of sources regulated by states for purposes of the NAAQS.
Moreover, the pollutants regulated under the NESHAP (i.e., hazardous
air pollutants) are in many cases different than those that would be
regulated for purposes of attaining and maintaining the NAAQS,
protecting Prevention of Significant Deterioration (PSD) increments,
improving visibility, and meeting other CAA requirements.\30\ The 2015
SSM SIP Action also states that EPA encourages states to explore these
approaches, as well as any other relevant information available, in
determining what is appropriate for revised SIP provisions.\31\ It is
clear that EPA did not mandate these approaches. As stated earlier,
adoption of NSPS or NESHAP work practice standards by the states does
not mean an automatic approval of a proposed rule revision, especially
when other applicable CAA requirements (e.g., RACT-level control for
startup and shutdown, enforceability, and/or SIP public notice and
comment) are not adhered to.
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\29\ 80 FR at 33916.
\30\ Id., n. # 257, while some HAPs are also VOCs or particulate
matter, many HAPs are not. Moreover, there are many VOCs and types
of particulate matter that are not HAPs and thus are not regulated
under the MACT [Maximum Achievable Control Technology] standards.
The MACT standards also do not address other criteria pollutants or
pollutant precursors from sources that may be relevant for SIP
purposes.
\31\ Id. at 33916-33917 (emphasis added).
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With respect to the CTGs reviewed by LDEQ, we note that CTGs are
used to help determine Volatile Organic Compounds (VOC) RACT, not
NO<INF>X</INF> RACT. Also, while LDEQ's review of ACTs may provide
background information on available NO<INF>X</INF> control technologies
and their respective cost effectiveness,\32\ ACTs do not establish
[[Page 85117]]
work practice standards that function as RACT in minimizing emissions
of NO<INF>X</INF>.
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\32\ Control Techniques Guidelines and Alternative Control
Techniques Documents for Reducing Ozone-Causing Emissions, see
<a href="https://www.epa.gov/ground-level-ozone-pollution/control-techniques-guidelines-and-alternative-control-techniques">https://www.epa.gov/ground-level-ozone-pollution/control-techniques-guidelines-and-alternative-control-techniques</a> (Url dated August 2,
2023).
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Although included in LAC 33:III.2201.K.3--Work Practice Standards,
we agree with LDEQ's clarification comment that LAC 33:III.2201.K.3.a
is a general duty provision, not an AEL. EPA supports the inclusion of
general duty provisions as separate additional requirements in SIPs in
certain instances--for example, to ensure that owners and operators act
consistent with reasonable standards of care. However, as is discussed
at length in the 2015 SSM SIP Action, a general duty provision such as
LAC 33:III.2201.K3.a., standing alone, cannot be considered an
``enforceable emission limitation'' under CAA section 110(a)(2). As
such, LAC 33:III.2201.K.3.a cannot and does not provide the necessary
RACT-level control during periods of startup and shutdown.\33\ We
reject the claim that since the State's document review failed to
identify any reasonably available control technologies for certain
source categories, then there is no feasible and practical lowest
emission limitation that these source categories would be capable of
meeting during periods of startup and shutdown (i.e., the
NO<INF>X</INF> RACT level of emissions control is zero control) and the
general duty provision of LAC 33:III.2201.K.3.a is the only SIP
requirement to control NO<INF>X</INF> emissions during startups and
shutdowns for some source categories covered by LAC 33:III.2201.K.3.
---------------------------------------------------------------------------
\33\ See also comment #4 and comment #5 of our December 16,
2016, comment letter to Deidra Johnson of LDEQ as made available in
the Docket.
---------------------------------------------------------------------------
Overall, we find that the administrative record accompanying
Louisiana's SIP submittals does not sufficiently demonstrate that the
generic work practice standards adopted in LAC 33:III.2201.K.3 for each
of the affected source categories represent RACT-level controls for
periods of startup and shutdown. In correcting this deficiency, LDEQ
could identify each affected point source category (e.g., gas-fired
stationary gas turbines in peaking service) and discuss/analyze all the
potential control technologies that might constitute RACT during
periods of startup and shutdown. The age, design, and configuration of
the affected sources may affect the determination of what constitutes
RACT and should be accounted for in the analysis as well. The RACT
analysis should consider the full range of control techniques (and
associated emissions limitations) that may be applicable during startup
and shutdown for each affected point source category (e.g., industrial
boilers of 40 MMBtu/Hour and above).\34\ For certain categories, this
additional review will likely identify techniques beyond those found in
the particular EPA rules and other documents examined by LDEQ.
---------------------------------------------------------------------------
\34\ LAC 33:III.2201.D Table D1-A.
---------------------------------------------------------------------------
While we acknowledge that, in certain cases, emissions limits
applicable to normal operation may not be achievable during startup and
shutdown, we also note that without further state review and analysis,
it is impossible for EPA to assess at this time whether the work
practices set forth in LAC 33:III.2201.K.3 as AELs constitute RACT-
level controls for all the affected sources during startup and
shutdown. Of course, the adopted work practices must also be analyzed
to ensure compliance with all other CAA requirements governing SIPs,
including CAA sections 110(a)(2)(A), 110(a)(2)(C), 110(k), 110(l), and
193, as discussed in EPA's 2015 SSM SIP Action.
Comment 5: The Industry commenters next discussed the EPA's second
criterion for developing AELs as outlined in the 2015 SSM SIP Action,
taking issue with the EPA-identified deficiency concerning whether use
of the selected control strategy for the source category is technically
infeasible during startup or shutdown periods.\35\ Industry commenters
stated that LDEQ had justified its inclusion of work practice standards
during periods of startup and shutdown based on technical infeasibility
of other control measures during such periods. In its comments, LDEQ
stated the constraints of SCR and SNCR and their effectiveness during
periods of startup and shutdown have been well documented. LDEQ also
noted with examples that the need to account for transient conditions
(e.g., startups and shutdowns) for the affected NO<INF>X</INF> sources
is not limited to sources with post-combustion controls. Also, LDEQ
stated that there is a need to recognize this infeasibility and that
limitations in both control technologies and test methods render work
practice standards preferable to numerical emission limitations during
periods of startup and shutdown.
---------------------------------------------------------------------------
\35\ 88 FR 38448, 38451 (June 13, 2023).
---------------------------------------------------------------------------
Response: As noted previously, EPA recognizes that there are
instances where compliance with a SIP emissions limitation for an
affected source category using a specific control technology may be
infeasible during certain modes of operation, such as during startup
and shutdown. We also recognize that during those times, work practice
requirements may be preferable to numerical emission limits and that
such work practice requirements may be an important component of
enforceable emission limitations covering all periods of operation for
affected sources under a SIP rule, such as LAC 33:III.Chapter 22. For
certain sources and source categories subject to LAC 33:III.Chapter 22,
however, demonstrating compliance with the existing numerical emissions
limitation in LAC 33:III.2201.D may be achievable during all modes of
operation. In those situations, compliance with that degree of emission
control (LAC 33:III.2201.D), as stated in 2015 SSM SIP Action,\36\
needs to be on a continuous or regular basis.
---------------------------------------------------------------------------
\36\ 80 FR 33979.
---------------------------------------------------------------------------
In evaluating a state's promulgation of rules creating AELs in the
form of work practice requirements and their review as a SIP revision,
EPA must ensure that the new work practices comply with all CAA
requirements for SIPs, including the necessity that the emissions
associated with such work practice requirements be legally and
practically enforceable (with appropriate monitoring, recordkeeping and
reporting), meet other applicable requirements (e.g., applicable RACT/
Reasonably Available Control Measures (RACM) requirements), and not
interfere with the attainment or maintenance of the NAAQS, as required
by CAA section 110(l). Without further State review and analysis, it is
impossible for EPA to assess at this time whether the work practices
set forth in LAC 33:III.2201.K.3 as AELs properly consider technical
infeasibility of controls for all affected sources and, for example,
constitute RACT-level controls for all the affected sources during
startup and shutdown. For the reasons stated elsewhere in this
rulemaking action, EPA is determining that Louisiana's SIP submittal
falls short of these requirements and fails to fully correct to
deficiency with the Louisiana SIP identified in the 2015 SSM SIP
Action.
Comment 6: The Industry commenters move to the fourth recommended
criterion for the development of AELs as listed in the 2015 SSM SIP
Action.\37\
[[Page 85118]]
These commenters objected to the EPA-identified deficiency that the
State air agency, as part of its justification for the proposed SIP
revision, failed to properly analyze the potential worst-case emissions
that could occur during startup and shutdown based on the applicable
AEL.\38\ These commenters stated that when compared to the SIP-called
exemption in LAC 33:III.2201.C.8 of the Louisiana SIP, the additional
controls imposed by LAC 33:III.2201.K.3 can only serve to improve
ambient air quality. Industry commenters asserted that a worst-case
emissions scenario would be reflected in an (overly conservative)
assumption that the removal of the startup and shutdown exemption and
the imposition of the additional work practice requirements in LAC
33:III.2201.K.3 have no effect on air quality. The Industry commenters
then referred to the State's meeting of the ozone NAAQS in recent years
as the reason or justification to refute EPA's stated deficiency in
LDEQ's analysis. In its response to this EPA-identified deficiency,
LDEQ noted that LAC 33:III.919 (Emission Inventory) requires sources
quantify and separately report emissions during startups and shutdowns.
Similar to the Industry comments and the overly conservative assumption
that the work practice requirements in LAC 33:III.2201.K.3 have no
demonstrable impact on NO<INF>X</INF> emissions, LDEQ stated that a
better representation of the potential ``worst-case'' scenario would be
the historical emissions data from the sources covered by LAC
33:III.Chapter 22. LDEQ then noted the decline in the design values for
the 8-hour ozone NAAQS during the time period that the SIP-called
exemption in LAC 33:III.2201.C.8 was in effect and that historical
actual NO<INF>X</INF> emissions from sources subject to LAC
33:III.Chapter 22 have declined 47.9 percent from 2005 to 2022.
---------------------------------------------------------------------------
\37\ Industry commenters noted that in EPA's proposal notice,
the Agency did not allege any specific deficiencies with criterion 3
(frequency and duration of operation in startup and shutdown modes
are minimized, criterion 6 (the facility is operated in a manner
consistent with good air pollution control practices for minimizing
emissions), and criterion 7 (actions during startup and shutdown are
properly documented). The June 13, 2023 proposal did not identify
deficiencies with respect to these criteria.
\38\ See 88 at 38452.
---------------------------------------------------------------------------
Response: EPA is cognizant and appreciative of LDEQ's efforts in
reducing ozone concentrations to the benefit of public health in the
Baton Rouge area. We also note that the ozone pollution control
strategy is a complex function of meteorology, VOC and NO<INF>X</INF>
emissions controls. Federal rules, including the Cross-State Air
Pollution Rule, the Tier 3 Vehicle Emissions and Fuels Standards, and
mobile source fleet turnover also play a significant role in reducing
ozone-forming pollution.
We note that EPA's 2015 SIP call for LAC 33:III.2201.C.8 of the
Louisiana SIP was not based on specific demonstrated air quality
concerns, but rather on EPA's interpretation of the CAA that emission
limitations in SIPs cannot include exemptions for emissions during
periods of startup and shutdown. In addition, the LDEQ statement that
historical excess emissions associated with the exemption provided by
LAC 33:III.2201.C.8 have not caused or contributed to an exceedance or
violation of a NAAQS does not mean that such emissions could not do so
at some time in the future. Also, as stated in the 2015 SSM SIP Action,
given that there are many locations where air quality is not monitored
such that a NAAQS exceedance or violation could be detected, the
inability to demonstrate that such excess emissions have not caused or
contributed to an exceedance or violation of a NAAQS would not be proof
that they have not.\39\
---------------------------------------------------------------------------
\39\ 80 FR at 33947.
---------------------------------------------------------------------------
Although an affected point source may not have in fact emitted
sufficient NO<INF>X</INF> to exceed a NAAQS during past periods during
which it was subject to the impermissible exemption provided by LAC
33:III.2201.C.8 for NO<INF>X</INF> emissions during periods of startups
and shutdowns, the SIP does not prevent the source from doing so in the
future (for example if circumstances arise that necessitate such
emissions) under the work practice requirements provided by LAC
33:III.2201.K.3. Such NO<INF>X</INF> emissions may be significantly
higher than historical actual emissions, especially for those sources
(e.g., process heaters and furnaces without a control device required
under a SIP rule) where the only requirements during startup and
shutdown under LAC 33:III.2201.K.3 are the unenforceable ``general
duty'' provisions of LAC 33:III.2201.K.3.a. As stated in EPA's 2015 SSM
SIP Action, AELs applicable during startup and shutdown cannot allow an
inappropriately high level of emissions or an effectively unlimited or
uncontrolled level of emissions, as those would constitute
impermissible de facto exemptions for emissions during certain modes of
operation.\40\
---------------------------------------------------------------------------
\40\ Id. at 33980.
---------------------------------------------------------------------------
Had LDEQ simply removed the impermissible exemption in LAC
33:III.2201.C.8, it would likely have been approvable, but here, the
EPA must also evaluate whether the AELs (developed to replace the
removed exemption) meet CAA requirements; we cannot presume that the
SIP is sufficient solely because it contains some kind of AEL
requirement where previously there was none. For example, the AEL may
allow for emissions that are functionally equivalent to an
impermissible exemption. Finally, we also note that the removal of the
exemption in LAC 33:III.2201.C.8 and the addition of LAC 33:III.2201.K
is not an severable piece of the submission that EPA can approve
without taking action on the AEL Without the State's consent, the
proposed disapproval of the addition of LAC 33:III.2201.K to the
Louisiana SIP with approval of the removal of LAC 33:III.2201.C.8 from
the SIP would make the SIP more stringent than Louisiana anticipated or
intended.\41\
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\41\ See Bethlehem Steel Corp. v. Gorsuch, 742 F.2d 1028, 1036-
37 (7th Cir. 1984); see also 88 FR at 38452, n. 30.
---------------------------------------------------------------------------
Comment 7: The Industry commenters then move to the fifth
recommended criterion for consideration in the development of AELs, as
listed in the 2015 SSM SIP Action--namely, that AELs should include a
requirement that ``all possible steps are taken to minimize the impact
of emissions during startup and shutdown on ambient air quality.'' \42\
Industry commenters reject as unnecessary EPA's recommended language
that could be used to meet the fifth criterion. In addition, the
Industry commenters, as well as LDEQ in its comments, stated that
frequency and duration of startup and shutdown events are addressed in
LAC 33:III.2201.K.1 and LAC 33:III.2201.K.3.a, respectively; thus, the
requirement to take all possible steps to minimize impacts of emissions
during startups and shutdowns on ambient air quality is met.
---------------------------------------------------------------------------
\42\ 80 FR at 33865.
---------------------------------------------------------------------------
Response: The failure to include EPA's recommended language in LAC
33:III.2201.K is not a basis for our disapproval. By recommending a
revision to LAC 33:III.2201.K that would require the owner or operator
to take all possible steps so that NAAQS or PSD increments are not
exceeded as a result of emission events from these sources, EPA
suggested language that might be viewed as addressing the deficiency
identified in the proposal notice with respect to proper consideration
of the fifth recommended criterion.
Under LAC 33:III.2201.K.1, affected point sources that are shut
down intentionally more than once per month are excluded from the
option of choosing to comply with the work practice standards in LAC
33:III.2201.K.3 in lieu of complying with the emission factors in LAC
33:III.2201.D. While this exclusion limits the number of sources that
may elect to comply with the work practice requirements in LAC
33:III.2201.K.3, there is no evidence in the record establishing that
these work practices
[[Page 85119]]
require such sources to take all possible steps to minimize the impacts
of emissions during startups and shutdowns on ambient air quality.
Likewise, there is no evidence in the record establishing that the
unenforceable ``good air pollution control practices'' requirement in
LAC 33:III.2201.K.3.a by itself constitutes taking all possible steps
to minimize the impact of emissions during startup and shutdown on
ambient air quality. Moreover, neither LAC 33:III.2201.K.1 nor LAC
33:III.2201.K.3.a provide for making work practice-related information
available, nor do these provisions address if or how the duration and
frequency of startup and shutdown events are being accounted for,
monitored, recorded, reported, enforced, or modeled to show the impact
of NO<INF>X</INF> emissions from these events on ambient air quality is
minimized in corresponding air permits issued by LDEQ.
Comment 8: In addition to disagreeing with the concerns noted above
related to the adequacy of LDEQ's consideration of the recommended
criteria for the development of AELs for periods of startup and
shutdown, the Industry commenters also disagreed with several other
EPA-identified deficiencies described in the June 13, 2023, proposed
disapproval notice (including use of a permit-based approach to
establish components of the AELs, reliance upon a permit mechanism to
specify flue gas temperatures for engaging control devices such as SCR
and SNCR under LAC 33:III.2201.K.3.c, and creating a non-SIP mechanism
for amending compliance obligations selected under LAC
33:III.2201.K.4.b). The Industry commenters believed that these
deficiencies are misplaced because the permitting contemplated under
the work practice standards in LAC 33:III.2201.K.3.c and K.4.b through
the modification of an affected facility's permit are not SIP revisions
under the Act. Similar to the Industry commenters, LDEQ also objected
to EPA's alleged deficiencies related to the use of the air permitting
program as referenced in LAC 33:III.2201.K.3.c and LAC
33:III.2201.K.4.b. and EPA's concerns related to the NAAQS and the PSD
increment. LDEQ also referred to EPA's letter to LDEQ, dated August 3,
2016, comment 3.f, to justify its use of its air permitting program to
implement the control obligations imposed by LAC 33:III.2201.K.3.c.
Response: Both the Industry commenters and LDEQ disagreed with
EPA's concerns related to the use of permitting mechanism referenced in
LAC 33:III.2201.K.3.c and LAC 33:III.2201.K.4.b. We will address the
comments and our concerns with each of these provisions separately.
LDEQ comments concerning NAAQS and the PSD increment as they relate to
the two provisions above are addressed in our response to Comment 11
below.
a. Concerns With LAC 33:III.2201.K.3.c
LAC 33:III.2201.K.3.c requires control devices such as SCR or SNCR
be ``engaged . . . as expeditiously as possible considering safety and
manufacturer recommendations.'' This rule goes on to say that the
``appropriate requirements describing source-specific conditions or
parameters'' will be incorporated into the affected source's permit.
There are two primary problems with the approval of LAC
33:III.2201.K.3.c as an alternative emission limitation during startup
and shutdown into the SIP. First, in addition to its imprecise and
vague terms creating enforcement concerns, there is no language in LAC
33:III.2201.K.3.c which actually requires the use of a control device
by any affected source or source category under LAC 33:III.2201.K. That
is, the work practice requirement to engage control devices as
expeditiously as possible is not linked to any specific source or
source category. Presumably, the requirement for and use of a control
device is contained in the source's air permit. The second problem with
LAC 33:III.2201.K.3.c then arises when it references such permits as
the vehicle to be used to establish source-specific conditions and
parameters for the commencement of operation of the control device. As
LDEQ concedes in its comments, the establishment of both the obligation
to use a control device and the establishment of source-specific
conditions associated with use of a control device are occuring outside
the SIP rule itself.
CAA section 110(a)(2)(A) requires that SIPs include enforceable
emission limitations, including during periods of startup and shutdown.
Establishing control device obligations and associated conditions in a
source's permit rather than the SIP rule (e.g., LAC 33:III.2201.K.3.c)
does not satisfy the enforceable emission limitations requirement for
SIP rules, as set forth in CAA section 110.
The fact that EPA has approved a state's air permitting program
itself into the SIP does not mean that EPA has approved the actual
contents of each permit issued or has made such contents an approved
part of the SIP.\43\ While inclusion of these components of the AEL in
a permit issued under an EPA-approved SIP permitting program makes the
requirements federally enforceable, the State rules do not provide a
SIP mechanism for assuring those requirements are permanent and would
not be changed without first going through the CAA's SIP revision
process, as required by section 110 of the Act. For example, there is
nothing in LAC 33:III.2201.K that prohibits an affected source from
amending its air permit to revoke or revise its obligation to install a
control device; the language in LAC 33:III.2201.K.3.c applies only if a
source is required to have a control device, presumably under some
other provision of State law or regulation. Such untethered obligations
do not meet the CAA requirements for ``enforceable emission
limitations'' in SIPs. Furthermore, use of a permit-based approach when
establishing essential components of an alternative work practice
standard outside of the SIP process (including public notice and
comment) circumvents EPA's role in reviewing and approving permanent
SIP emission limitations to ensure that AELs are ``enforceable,'' as
required by CAA section 110(a)(2)(A) and 110(a)(2)(C). This non-SIP
mechanism also creates the potential for confusion because conditions
and obligations of the AEL would not be contained in the SIP, allowing
for the possibility that conditions and obligations of non-SIP AELs
might conflict with the work practice requirements in the SIP.
Moreover, it does so without the opportunity for EPA review or
disapprove where the AEL fails to meet CAA requirements for SIPs.
---------------------------------------------------------------------------
\43\ 80 FR at 33915-33916 and 33922.
---------------------------------------------------------------------------
Finally, in the context of emission limitations contained in a SIP,
EPA views the approach of establishing AELs through a permit program
that does not involve submitting the relevant permit requirements to
the EPA for inclusion in the SIP as a form of ``director's
discretion,'' a type of provision that, as explained in the 2015 SSM
SIP Action, is inconsistent with CAA requirements because it would
allow the state permitting authority to create alternatives to SIP
emission limitations without complying with the CAA's SIP revision
requirements.
In addition to the concerns noted above and in response to LDEQ's
comment regarding EPA's August 3, 2016 comment letter (comment 3.f), we
note that this document (EPA's 2016 comment letter) is made available
in docket for this rulemaking action. The August 3, 2016, comment 3.f
reads:
``The EPA encourages the operation and maintenance of control
devices in accordance
[[Page 85120]]
with safety and manufacturer recommendations, as required by
proposed rule LAC 33:III.2201.K.3.c; however, for enforceability
purposes, we believe that the rule should make clear that the
source's Title V operating permit will include specific conditions
that identify/detail when safe operation of control devices
(including SCR/SNCR) will begin.''
Comment 3.f was intended to assure consistency between the proposed
SIP revision and the specific conditions and contents of a modified
Title V permit of the affected NO<INF>X</INF> point source and to
facilitate enforceability and compliance determinations. Nothing in the
August 3, 2016, comment 3.f states, or should be construed to mean,
that EPA is advocating or suggesting circumvention or bypassing of the
CAA's SIP revision process, or allowing LDEQ to employ an air
permitting program as a substitute for SIP revision requirements
through LAC 33:III.2201.K.3.c. Moreover, EPA in comment 3.f is not
suggesting that the Title V permit be the only place that contains
these specific conditions.
b. Concerns with LAC 33:III.2201.K.4.b
We now turn to the objections by the Industry commenters and LDEQ
to EPA's concerns with the approvability of LAC 33:III.2201.K.4.b which
requires the incorporation of the provisions of LAC 33:III.2201.K.1
and/or K.3 into the applicable permit for each affected facility. LAC
33:III.2201.K.4.b also states that the owner or operator may elect to
revise the method of compliance with LAC 33:III.2201.K for one or more
affected point sources by means of a permit modification.
In its comments, LDEQ noted that the only options available to the
owner or operator of an affected point source are to comply with the
emission factors set forth in LAC 33:III.2201.D or with the work
practice standards in LAC 33:III.2201.K.3. The Industry commenters
asserted that CAA section 110 does not require EPA to approve each
permit modification that changes the compliance option selected under
LAC 33:III.2201.K.4.b and to submit it as a SIP revision because such
changes are not, in fact, SIP revisions.
In response to these comments, we first note that here the
``compliance options'' are different emission limitations and not
merely how to comply with a single limit. We agree with the commenters
that the decision by a source to choose one of two different emission
limitations need not be treated as a revision to the SIP, provided EPA
has previously reviewed and approved both emission limitations as
meeting CAA requirements and incorporated both limitations into the
SIP. As stated earlier, LAC 33:III.2201.K.4 provides that for periods
of startup and shutdown of affected point sources, the source owner or
operator is required to notify LDEQ by May 1, 2017, of its choice of
whether the source will comply with LAC 33:III.2201.K.1 or LAC 2201.K.3
during periods of startup and shutdown. Also, LAC 33:III.2201.K.4b
requires LDEQ to incorporate the option chosen into the applicable
permit for each affected facility, and the source may modify its permit
(after notice and comment) and choose the other option in the future.
The option of complying with the emissions limitations in LAC
33:III.2201.K.1 incorporates the requirements of LAC 33:III.2201.D and
LAC 33:III.2201.E which have been previously approved into the
Louisiana SIP; however, the other option of complying alternative
emissions limitations developed pursuant to LAC 33:III.2201.K.3 is not
part of the EPA-approved Louisiana SIP. For the reasons discussed in
this rulemaking action, the alternative work practice requirements of
LAC 33:III.2201.K.3 do not satisfy the CAA requirements for SIPs;
consequently, LAC 33:III.2201.K.4.b cannot be approved into the
Louisiana SIP at this time.
B. Comments by Sierra Club and the Anonymous Commenter
Comment 9: Sierra Club expressed support for the proposed
disapproval and thanked EPA for a thorough evaluation in this
rulemaking.
Response: EPA acknowledges the support.
Comment 10: Sierra Club requested that EPA finalize its disapproval
and promulgate a Federal Implementation Plan (FIP) that corrects the
deficiencies with LAC 33:III.2201.C.8, as identified in the 2015 SSM
SIP Action. In promulgating a FIP, the commenter goes on to recommend
that the EPA simply remove LAC 33:III.2201.C.8 from the Louisiana SIP
without attempting to create impractical and unenforceable work
practice standards.
Response: CAA section 110(c)(1) requires EPA to promulgate a FIP
within two years of the effective date of this final disapproval
action, unless EPA first approves a complete SIP revision that corrects
the deficiency with LAC 33:III.2201.C.8 as identified in the 2015 SSM
SIP Action. EPA intends to work in partnership with the State to
resolve this issue in an equitable manner consistent with the CAA
requirements and court rulings. EPA is hopeful that Louisiana will
submit a revision that corrects the deficiency and a FIP will not be
necessary as a result of this disapproval. EPA notes that states are
not required to adopt and submit to EPA SIP revisions creating AELs for
periods of SSM. States may choose to remove SSM provisions providing
for exemptions (whether automatic or discretionary) or affirmative
defense provisions altogether, rather than developing AELs for periods
of SSM. For example, following this disapproval, Louisiana could elect
not to create new AEL regulations such as LAC 33:III.2201.K and instead
remove LAC 33:III.2201.C.8 in its entirety and rely upon their
enforcement discretion should a source exceed an emission limit which
is part of the EPA-approved SIP. Finally, it is outside the scope of
this rulemaking to address contents of a future rule (FIP), should one
become necessary.
Comment 11: Sierra Club expressed a belief that the work practices
(in LAC 33:III.2201.K) are too vague and ambiguous to be enforceable
and that they do not reflect adequate consideration of the seven
specific criteria in EPA's guidance by which AELs for startup and
shutdown should be developed. Sierra Club outlined the reasons why
LDEQ's proposed reliance on these SSM work practice standards would be
inappropriate. Specifically, Sierra Club states that Louisiana's SIP
submittals fail to demonstrate that the work practice standards in LAC
33:III.2201.K: (1) are narrowly tailored to defined source categories
using specific control strategies or that the use of the control
strategy is ``technically infeasible'' during startup and shutdown; (2)
would not violate the NAAQS or PSD increments; and (3) require that the
actions during startup and shutdown are properly documented or that the
work practice standards are enforceable.
Response: As outlined in our proposal notice, Louisiana's SIP
submittals do not demonstrate LDEQ's proper application and
consideration of certain criteria recommended by EPA for a state's
development of the alternative work practice requirements, such as
those in LAC 333:III.2201.K. Our assessment of the SIP submittals with
respect to the first criterion (i.e., that AELs should apply to
specific, narrowly tailored source categories using specific control
technologies) is fully addressed in our responses to Comments 2, 3, and
4. Likewise, our response to Comment 5 provides our assessment of the
AELs in LAC 33:III.2201.K.3 with respect to the recommendation in
criterion 2 (i.e., that use of the control strategy for the specific
source category is technically infeasible). With respect to Sierra
Club's concern that LDEQ failed to
[[Page 85121]]
demonstrate that the work practice standards in LAC 33:III.2201.K would
not violate NAAQS or PSD increments, we note that states have a
statutory duty to develop and submit SIPs and SIP revisions, as
appropriate, that provide for the attainment, maintenance and
enforcement of the NAAQS, as well as meeting many other CAA
requirements and objectives (e.g., protecting PSD increments). The
specific procedural and substantive requirements that states must meet
for SIPs are set forth in CAA section 110(a)(1) and section 110(a)(2),
other more specific requirements throughout the CAA (e.g., the
attainment plan requirements for each of the NAAQS as specified in CAA
Title I, Part D), and EPA regulations. It is important to note,
however, that EPA's 2015 SIP call for LAC 33:III.2201.C.8 of the
Louisiana SIP was not based on demonstrated air quality concerns, but
rather on EPA's interpretation of the CAA that emission limitations in
SIPs cannot include exemptions for emissions during periods of startup
and shutdown. LDEQ has removed the exemption and adopted LAC
33:III.2201.K. in its place, including the work practice standards
applicable to periods of startup and shutdown contained in LAC
33:III.2201.K.3. As stated in response to Comment 6 above, some
affected sources may emit more NO<INF>X</INF> under the work practice
requirements provided by LAC 33:III.2201.K.3 and such emissions may be
significantly higher than historical actual emissions for such sources.
Notwithstanding the concerns expressed by Sierra Club with respect to
the NAAQS and PSD increment, EPA concludes that the SIP submittals do
not correct the deficiency in the Louisiana SIP, as identified in
Louisiana SIP the 2015 SSM SIP call for the reasons discussed in our
proposal action, this notice, and the 2015 SSM SIP Action.
Finally, with respect to Sierra Club's comment claiming that the
work practice standards in LAC 33:III.2201.K.3 fail to ensure the
actions during startup and shutdown are properly documented or that the
work practice standards are enforceable, we note that section LAC
33:III.2201.K.3.e requires a source to ``maintain records of the
calendar date, time, and duration of each startup and shutdown'' and
section LAC 33:III.2201.K.3.f requires a source to ``maintain records
of the type(s) and amount(s) of fuels used during each start-up and
shutdown.'' However, the required records of LAC 33:III.2201.K.3.e and
LAC 33:III.2201.K.3.f are only made available upon request by
authorized representatives of LDEQ, per LAC 33:III.2201.K.3.g. As
discussed in our response to Comment 12 below, EPA generally agrees
that SIP provisions must include adequate monitoring, recordkeeping,
and reporting requirements, as appropriate, to be legally and
practically enforceable; however, EPA has determined the provisions of
LAC 33:III.2201.K do not meet minimum CAA requirements for AELs for
reasons unrelated to the issue of recordkeeping or reporting, and thus
is disapproving the provision for those reasons.
Comment 12: As part of its comments, Sierra Club attached and
incorporated its August 3, 2016, letter to LDEQ that contains a
discussion of its concerns with the State's proposed adoption of LAC
33:III.2201.K. Expanding upon the comments submitted to EPA on the
enforceability of LAC 33:III.2201.K, Sierra Club noted a lack of
reporting requirements in LAC 33:III.2201.K. Sierra Club also claimed
that the work practice requirements set forth in LAC 33:III.2201.K do
not meet the CAA section 110(a) enforceability requirement because: (1)
the work practice requirements in LAC 33:III.2201.K do not limit
emissions on a continuous basis; (2) alternative limits or work
practices must be incorporated through the SIP amendment process,
allowing for public notice and comment and EPA approval; and (3)
source-specific alternative limits work practices are generally not
proper at all, and source-specific alternative plans under LAC
33:III.2201.E.1 and E.2 do not comport with the CAA requirements for
SIP revisions (including public comment).
Response: EPA supports the use of properly developed and
enforceable AELs for modes of operation during which otherwise
applicable emission limitations cannot be met, as may be the case
during startup or shutdown. These AELs, whether a numerical limitation,
technological control requirement or work practice requirement, would
apply during a specific mode of operation as a component of the
continuously applicable emission limitation. All components of the
resulting emission limitation must meet the substantive requirements
applicable to the type of SIP provision at issue, must meet the
applicable level of stringency for that type of emission limitation,
and must be legally and practically enforceable.\44\
---------------------------------------------------------------------------
\44\ 80 FR at 33913.
---------------------------------------------------------------------------
EPA notes that Sierra Club also commented that LAC 33:III.2201.K
lacks sufficient reporting requirements to support enforcement of the
work practice standards. The commenter suggested that the state should
require at least quarterly reporting by sources concerning their
compliance with the AELs. EPA generally agrees that SIP provisions must
include adequate monitoring, recordkeeping, and reporting requirements,
as appropriate, to be legally and practically enforceable. As described
in the proposal notice and in this final rulemaking, EPA has determined
the provisions of LAC 33:III.2201.K do not meet minimum CAA
requirements for AELs for reasons unrelated to the issue of reporting,
and thus is disapproving the provision for those reasons. Should
Louisiana make a new SIP submission containing AELs, we encourage the
State to consider whether the reporting requirements are adequate to
make the AELs legally and practically enforceable. Because the work
practice standards in LAC 33:III.2201.K.3 are intended to be components
of a continuous SIP emissions limitation, the provision and associated
reporting requirements must meet all applicable CAA requirements for
SIPs, including CAA sections 110(a)(2), 113, 302(k), and 304, as well
as applicable regulatory requirements including 40 CFR 51.211.
Turning to Sierra Club's comment that the work practice
requirements set forth in LAC 33:III.2201.K do not meet the CAA section
110(a) enforceability requirement because they do not limit emissions
on a continuous basis, we previously noted in our response to Comments
3 and 8 that the work practice standards in LAC 33:III.2201.K.3.c are
not sufficiently tied to any particular source or source category under
the SIP to ensure their enforceability. In addition, as Sierra Club
correctly noted, the imprecise and vague language in LAC
33:III.2201.K.3.c (e.g., ``as expeditiously as possible, considering
safety and manufacturer recommendations'' and ``engage'') may be read
so as to create situations wherein startup and shutdown emissions are
functionally exempt, thereby creating a non-continuous emissions
limitation that is inconsistent with CAA requirements for SIPs. EPA
also agrees with Sierra Club's suggestion that certain control
technologies may be employed in different manners at different times
resulting in great variation in the amount of emission control and thus
the requirements should be described in more defined terms than
currently required by LAC 33:III.2201.K.3.c. In addition, this
information should have been considered by LDEQ to ensure the
development of enforceable work
[[Page 85122]]
practice requirements that would provide RACT-level controls during the
entire duration of startup and shutdown periods.\45\
---------------------------------------------------------------------------
\45\ See Sierra Club comment letter to LDEQ dated August 3,
2016, pages 9-10, included in the docket for this action.
---------------------------------------------------------------------------
Next, we address Sierra Club's comment that alternative emission
limits or work practices must be incorporated through the SIP process
and allow for public notice/comment and EPA approval. Sierra Club noted
that, during periods of startup and shutdown, LAC 33:III.2201.K
provides certain affected sources with the option of complying with the
LAC 33:III.2201.K.1 (and existing emission factors in LAC 33:III.2201.D
or an alternative plan approved under LAC 33:III.2201.E.1 or E.2) or
the work practice standards under LAC 33:III.2201.K.3. Sierra Club
asserted that any choice by a particular source to use an alternative
plan or the work practice standards should be incorporated into the
Louisiana SIP after public comment and EPA approval as a SIP revision.
As stated earlier, review of Louisiana's SIP submittals included an
evaluation and determination of whether they corrected the Louisiana
SIP deficiency identified in the 2015 SSM SIP Action. Since we are
determining in this rulemaking that the alternative emission
limitations in Louisiana's SIP submittals do not correct that
deficiency, we do not need to address the issue raised by the Sierra
Club that a SIP cannot provide equally approvable options that provide
for continuous and enforceable emission limitations meeting all
substantive CAA requirements. We note, however, that under LAC
33:III.2201.K.4, owners and operators were required to notify LDEQ by
May 1, 2017, whether each affected point source will comply with LAC
33:III.2201.K.1 or LAC 33:III.2201.K.3 during periods of startup and
shutdown. As noted in our response to Comment 8, had the requirements
of LAC 33:III.2201.K satisfied all other applicable requirements for
SIPs including being continuous and practically enforceable, met
applicable stringency requirements, and required appropriate
monitoring, recordkeeping and reporting, EPA believes that the
mechanism set forth in LAC 33:III.2201.K.4 may have been acceptable
under the CAA; also, the selection or revision of which approved
emission limitation option a particular source chose to comply with
would not necessitate a SIP revision. We are noting a difference
between using a permit to incorporate a selected approved compliance
option versus the use of the permitting process to establish necessary
elements of emission limitations, the latter of which, as discussed in
our response concerning LAC 33:III.2201.K.3.c, is not appropriate. For
the reasons discussed elsewhere in this rulemaking action, LAC
33:III.2201.K does not meet all CAA SIP requirements.
Finally, Sierra Club claimed that source-specific alternative
limits and work practices are generally not proper at all (and source-
specific alternative plans under LAC 33:III.2201.E.1 and E.2 do not
comport with the CAA requirements for SIP revisions). Since EPA is
determining that the Louisiana SIP submittals do not correct the
deficiency in the Louisiana SIP as identified in the 2015 SSM SIP
Action for all the reasons discussed elsewhere in this rulemaking
action, there is no need for an additional response to Sierra Club's
concern at this time.
Comment 13: The anonymous commenter, referencing the 2008 Sierra
Club case opinion by the D.C. Circuit court, claimed the court held
that a general duty to minimize emissions is not a CAA section 112-
compliant standard. Considering that states have the responsibility of
developing plans that best suit their needs, the commenter remarked
that EPA should explain how it reached the conclusion that a general
duty to minimize emissions in LAC 33:III.2201.K.3.a during SSM is not a
section 110-compliant standard.
Response: We believe commenter's reference to the 2008 D.C. Circuit
case is Sierra Club v. Johnson, 551 F.3d 1019, 1021 (D.C. Cir. 2008)
(interpreting the definition of emission limitation in section 302(k)
and section 112 of the CAA). The commenter noted that LAC
33:III.2201.K.3.a is a general duty provision requiring the affected
point sources to minimize emissions. As discussed in our proposed
action, standing alone, the general duty provision in LAC
33:III.2201.K.3.a does not comply with section 110 CAA requirements for
SIPs. For example, it is unclear how the general duty to utilize ``good
air pollution control practices'' required by LAC 33:III.2201.K.3.a,
would be practically enforceable and serve as a sufficient limitation
on emissions (as defined in 42 U.S.C. 7602(k)) to satisfy applicable
SIP requirements (e.g., ensure the application of RACT-level controls
during startup and shutdown). Additional concerns to LAC
33:III.2201.K.3.a are discussed elsewhere herein, including our
response to Comment 4. In addition, the 2015 SSM SIP Action discussed
at length why general duty provisions in SIPs cannot constitute
practically enforceable, continuous emissions limitations as required
by the CAA.
Comment 14: Finally, the anonymous commenter claimed being misled
by the notice, stating it appears that the Environmental Justice (EJ)
concerns are now described as the purpose of the SSM policy and the
2015 SSM SIP Action. Although the commenter expresses agreement with
EPA for having concern for protection of overburdened communities, it
questions the need for the EJ and the detailed-demographic survey and
its relationship to the basis of the June 13, 2023, proposed action.
Response: EPA acknowledges the commenter's statement of support for
the protection of overburdened communities, as neighborhoods in close
proximity of industrial sources may be vulnerable and subject to
disproportionate environmental impacts caused by excess emissions
during SSM events. With respect to the question of the relationship
between EJ and the detailed demographic analysis and the basis for the
proposed action, we note that the opening statement in section IV of
the proposal notice stated, ``For informational and transparency
purposes only, the EPA is providing additional analysis of
environmental justice associated with this proposed action for the
purpose of providing information to the public.'' \46\ In addition, in
section V.J of the proposal notice, EPA specifically wrote that the CAA
and applicable implementing regulations neither prohibit nor require
such an evaluation. While EPA performed an environmental justice and
demographic analysis, the EJ ``analysis was done for the purpose of
providing additional context and information about this rulemaking to
the public, not as a basis of the action.'' \47\
---------------------------------------------------------------------------
\46\ 88 FR at 38453, Section IV Environmental Justice
Considerations.
\47\ Id. at 38455, Section V Statutory and Executive Order
Reviews, Executive Order 12898: Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations.
---------------------------------------------------------------------------
Based on the above responses to comments received and the
identified deficiencies described in section II.B at 88 FR 38450-38452
of our proposal notice, we disagree with the Industry commenters'
statement characterizing our June 13, 2023 proposal as unwarranted,
arbitrary and capricious. Therefore, we are finalizing the action as
proposed.
IV. Final Action
The EPA is disapproving the revision to the Louisiana SIP submitted
by LDEQ
[[Page 85123]]
on November 20, 2016, and supplemented on June 9, 2017, in response to
EPA's 2015 SSM SIP Action concerning excess emissions during periods of
SSM. In accordance with section 110 of the Act, we are finalizing
disapproval of the revision to the Louisiana SIP that would repeal LAC
33:III.2201.C.8 and add a new section LAC 33:III.2201.K Startup and
Shutdown in its place. The EPA is also making a determination that this
SIP revision fails to correct deficiencies identified in the June 12,
2015 SIP Action related to the above-referenced provisions.
CAA section 110(c)(1) requires EPA to promulgate a FIP within 24
months of the effective date of this final disapproval action, unless
EPA first approves a complete SIP revision that corrects the deficiency
with LAC 33:III.2201.C.8 as identified in the 2015 SSM SIP Action. In
addition, this final disapproval triggers mandatory sanctions under CAA
section 179 and 40 CFR 52.31 unless the State submits, and EPA
approves, a complete SIP revision that corrects the identified
deficiencies within 18 months of the effective date of the final
disapproval action.\48\
---------------------------------------------------------------------------
\48\ Consistent with our proposal (88 FR at 38453, footnote 31),
EPA has evaluated the geographic scope of potential sanctions under
CAA section 179(b) resulting from our disapproval of Louisiana's
November 20, 2016, and June 9, 2017, SIP submittals concerning LAC
33:III.2201.C.8 and LAC 33:III.2201.K. We note that the provisions
of LAC 33:III.Chapter 22 Control of Emissions of Nitrogen Oxides
(NO<INF>X</INF>) of the EPA-approved Louisiana SIP are considered
elements of an implementation plan required under Part D of Title I
of the Act. One provision in the Chapter 22 rules--namely, LAC
33:III.2201.C.8--provides an exemption from otherwise applicable and
continuous NO<INF>X</INF> emission limitations from affected point
sources subject to Chapter 22. Since such exemption provisions are
inconsistent with CAA requirements for SIPs, EPA issued a SIP call
in 2015, and Louisiana submitted the proposed revisions that are the
subject of our disapproval action. With respect to the geographic
scope of potential sanctions under CAA section 179 triggered by our
disapproval, we note that ``the EPA interprets the section 179
sanctions to apply only in the area or areas of the state that are
subject to or required to have in place the deficient SIP and for
the pollutant or pollutants that the specific SIP element
addresses.'' 80 FR 33840, 33930 (June 12, 2015). See also 40 CFR
52.31 and 59 FR 39832, 39835 (August 4, 1994). Here, the pollutant
controlled by the Chapter 22 rules is NO<INF>X</INF>, a precursor of
ozone, and it is the only pollutant that is the subject of the
disapproval. There are no areas in Louisiana that are currently
designated as nonattainment for ozone and thus there are no
potential CAA section 179 sanctions triggered by our disapproval
action, at this time.
---------------------------------------------------------------------------
V. Environmental Justice Considerations
EPA provided an environmental justice analysis associated with this
action for the purpose of providing information to the public in our
July 22, 2022 (87 FR 43760) proposal. As discussed in the proposed
action, we believe that this final action will be beneficial to all
population groups within Louisiana and may reduce impacts. Exemptions
for excess emissions during periods of SSM undermine the ability of the
SIP to attain and maintain the NAAQS, to protect Prevention of
Significant Deterioration increments, to improve visibility and to meet
other CAA requirements. Such exemption provisions have the potential to
lessen the incentive for development of control strategies that are
effective at reducing emissions during certain modes of sources'
operations such as startups and shutdowns or to take prompt steps to
rectify malfunctions. Removal of these exemption provisions from the
Louisiana SIP will bring the treatment of excess emissions in the SIP
into line with CAA requirements; thus, sources in the State will no
longer be able to use the repealed exemptions and will have greater
incentives to control their air emissions. We therefore determine that
this rule will not have disproportionately high or adverse human health
or environmental effects on communities with environmental justice
concerns.
VI. 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 review state choices,
and approve those choices if they meet the minimum criteria of the Act.
Accordingly, this final action disapproving Louisiana's excess
emissions-related rule as a SIP revision merely ascertains that this
State law does not meets Federal requirements and therefore does not
impose additional requirements beyond those imposed by State law.
Additional information about these statutes and Executive orders can be
found at <a href="http://www.epa.gov/laws-regulations/laws-and-executive-orders">www.epa.gov/laws-regulations/laws-and-executive-orders</a>.
A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review
This action is not a significant regulatory action and was
therefore not submitted to the Office of Management and Budget (OMB)
for review.
B. Paperwork Reduction Act (PRA)
This action does not impose an information collection burden under
the PRA, because this SIP disapproval does not in-and-of itself create
any new information collection burdens, but simply disapproves certain
State requirements for inclusion in the SIP.
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 SIP
disapproval does not in-and-of itself create any new requirements but
simply disapproves certain pre-existing State requirements for
inclusion in the SIP.
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. This action does not impose additional requirements
beyond those imposed by state law. Accordingly, no additional costs to
state, local, or tribal governments, or to the private sector, will
result from this action.
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, because the SIP EPA is disapproving would not
apply on any Indian reservation land or in any other area where the EPA
or an Indian tribe has demonstrated that a tribe has jurisdiction and
will not impose substantial direct costs on tribal governments or
preempt tribal law. Thus, Executive Order 13175 does not apply to this
action.
G. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
The 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
[[Page 85124]]
the definition of ``covered regulatory action'' in section 2-202 of the
Executive order. This action is not subject to Executive Order 13045
because this SIP disapproval does not in-and-of itself create any new
regulations, but simply disapproves certain pre-existing State
requirements for inclusion in the SIP.
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 (NTTAA)
Section 12(d) of the NTTAA directs the EPA to use voluntary
consensus standards in its regulatory activities unless to do so would
be inconsistent with applicable law or otherwise impractical. The EPA
believes that this action is not subject to the requirements of section
12(d) of the NTTAA because application of those requirements would be
inconsistent with the CAA.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
Executive Order 12898 (Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations, 59 FR 7629,
February 16, 1994) directs Federal agencies to identify and address
``disproportionately high and adverse human health or environmental
effects'' of their actions on minority populations and low-income
populations to the greatest extent practicable and permitted by law.
EPA defines environmental justice (EJ) as ``the fair treatment and
meaningful involvement of all people regardless of race, color,
national origin, or income with respect to the development,
implementation, and enforcement of environmental laws, regulations, and
policies.'' EPA further defines the term fair treatment to mean that
``no group of people should bear a disproportionate burden of
environmental harms and risks, including those resulting from the
negative environmental consequences of industrial, governmental, and
commercial operations or programs and policies.''
The air agency did not evaluate environmental justice
considerations as part of its SIP submittal; the CAA and applicable
implementing regulations neither prohibit nor require such an
evaluation. The EPA performed an environmental justice analysis,
described in the section titled, ``Environmental Justice
Considerations'' of the June 13, 2023 (88 FR 38448) proposal. The
analysis was done for the purpose of providing additional context and
information about this rulemaking to the public, not as a basis of the
action. Due to the nature of the action being taken here, this final
action is expected to have a neutral to positive impact on the air
quality of the previously designated Baton Rouge ozone nonattainment
area and its Region of Influence. In addition, there is no information
in the record upon which this final action is based inconsistent with
the stated goal of E.O. 12898 of achieving environmental justice for
people of color, low-income populations, and Indigenous peoples. This
final action simply disapproves a SIP submission as not meeting CAA
requirements for SIPs.
K. Congressional Review Act (CRA)
This action is subject to the CRA, and the EPA will submit a rule
report to each House of the Congress and to the Comptroller General of
the United States. This action is not a ``major rule'' as defined by 5
U.S.C. 804(2).
L. Petitions for Judicial Review
Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by February 5, 2024. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of this action for the purposes of judicial review nor
does it extend the time within which a petition for judicial review may
be filed, and shall not postpone the effectiveness of such rule or
action. This action pertaining to the disapproval of Louisiana's
November 20, 2016, and June 9, 2017 SIP submittals may not be
challenged later in proceedings to enforce its requirements. (See
section 307(b)(2).)
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.
Dated: November 30, 2023.
Earthea Nance,
Regional Administrator, Region 6.
[FR Doc. 2023-26753 Filed 12-6-23; 8:45 am]
BILLING CODE 6560-50-P
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This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.