
[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 [www.gpo.gov]
[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 https://www.regulations.gov 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 https://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Mr. Alan Shar, Regional Haze and 
SO2 Section, EPA Region 6 Office, 1201 Elm Street, Suite 
500, Dallas, Texas 75270, (214) 665-6691, [email protected]. 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 (NOX) 
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 NOX 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 
NOX 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 
NOX 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 NOX 
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 NOX 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 NOX 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 NOX Emission Factors for Sources in the 
Baton Rouge Nonattainment Area Table D-1A, and NOX 
Emission Factors for Sources in the Region of Influence Table D-1B, 
Section LAC 33:III.2201.D.
    \19\ See NOX Emission Factors for Sources in the 
Baton Rouge Nonattainment Area Table D-1A, and NOX 
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 
NOX 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 NOX, 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 
NOX 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 NOX 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.
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    \28\ ``NOX 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.
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

    With respect to the CTGs reviewed by LDEQ, we note that CTGs are 
used to help determine Volatile Organic Compounds (VOC) RACT, not 
NOX RACT. Also, while LDEQ's review of ACTs may provide 
background information on available NOX 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 NOX.
---------------------------------------------------------------------------

    \32\ Control Techniques Guidelines and Alternative Control 
Techniques Documents for Reducing Ozone-Causing Emissions, see 
https://www.epa.gov/ground-level-ozone-pollution/control-techniques-guidelines-and-alternative-control-techniques (Url dated August 2, 
2023).
---------------------------------------------------------------------------

    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 
NOX 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 NOX 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 NOX 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 NOX 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 NOX 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 NOX 
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 NOX 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 NOX 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 NOX 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\
---------------------------------------------------------------------------

    \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 NOX 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 NOX 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 NOX 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 
(NOX) 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 NOX 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 NOX, 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 www.epa.gov/laws-regulations/laws-and-executive-orders.

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


