Air Plan Disapproval; Louisiana; Excess Emissions, 38448-38455 [2023-12615]

Download as PDF 38448 Federal Register / Vol. 88, No. 113 / Tuesday, June 13, 2023 / Proposed Rules Authority: 42 U.S.C. 7401 et seq. Dated: June 6, 2023. Jeaneanne Gettle, Acting Regional Administrator, Region 4. [FR Doc. 2023–12581 Filed 6–12–23; 8:45 am] BILLING CODE 6560–50–P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA–R06–OAR–2019–0212; FRL–10997– 01–R6] Air Plan Disapproval; Louisiana; Excess Emissions Environmental Protection Agency (EPA). ACTION: Proposed rule. AGENCY: Pursuant to the Federal Clean Air Act (CAA, the Act), the Environmental Protection Agency (EPA) is proposing to disapprove a revision to the Louisiana State Implementation Plan (SIP) submitted by the State of Louisiana, through the Louisiana Department of Environmental Quality (LDEQ), on November 22, 2016, and supplemented on June 9, 2017. The submittals are in response to the EPA’s national SIP call of June 12, 2015, concerning excess emissions during periods of Startup, Shutdown and Malfunction (SSM). EPA is proposing to determine 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: Comments must be received on or before July 13, 2023. ADDRESSES: Submit your comments, identified by Docket No. EPA–R06– OAR–2019–0212 at https:// www.regulations.gov or via email to Shar.alan@epa.gov. Follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. The EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary ddrumheller on DSK120RN23PROD with PROPOSALS1 SUMMARY: VerDate Sep<11>2014 17:07 Jun 12, 2023 Jkt 259001 submission (i.e., on the web, cloud, or other file sharing system). For additional submission methods, please contact Mr. Alan Shar, (214) 665–6691, Shar.alan@epa.gov. For the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit https:// www.epa.gov/dockets/commenting-epadockets. Docket: The index to the docket for this action is available electronically at www.regulations.gov and in hard copy at the EPA Region 6 Office, 1201 Elm Street, Suite 500, Dallas, Texas 75270. While all documents in the docket are listed in the index, some information may be publicly available only at the hard copy location (e.g., copyrighted material), and some may not be publicly available at either location (e.g., CBI). FOR FURTHER INFORMATION CONTACT: Mr. Alan Shar, Regional Haze and SO2 Section, EPA Region 6 Office, 1201 Elm Street, Suite 500, Dallas, Texas 75270, (214) 665-6691, Shar.Alan@epa.gov. We encourage the public to submit comments via https:// www.regulations.gov, as there will be a delay in processing mail and no courier or hand deliveries will be accepted. 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. Table of Contents I. Background A. EPA’s 2015 SSM SIP Action B. Louisiana’s Provision Related to Excess Emissions II. Analysis of SIP Submission A. EPA Recommendations for Development of Alternative Emission Limitations Applicable During Startup and Shutdown B. Evaluation III. Proposed Action IV. Environmental Justice Considerations V. Statutory and Executive Order Reviews I. Background A. EPA’s 2015 SSM SIP Action On February 22, 2013, the EPA issued a Federal Register proposed rulemaking action outlining EPA’s policy at the time with respect to SIP provisions related to periods of SSM. The EPA analyzed specific SSM SIP provisions and explained how each one either did or did not comply with the CAA with regard to excess emission events.1 For 1 State Implementation Plans: Response to Petition for Rulemaking; Findings of Substantial PO 00000 Frm 00042 Fmt 4702 Sfmt 4702 each SIP provision that EPA determined to be inconsistent with the CAA, EPA proposed to find that the existing SIP provision was substantially inadequate to meet CAA requirements and thus proposed to issue a SIP call under CAA section 110(k)(5). On September 17, 2014, EPA issued a document supplementing and revising what the Agency had previously proposed on February 22, 2013, in light of a D.C. Circuit decision that determined the CAA precludes authority of the EPA to create affirmative defense provisions applicable to private civil suits. EPA outlined its updated policy that affirmative defense SIP provisions are not consistent with CAA requirements. The EPA proposed in the supplemental proposal document to apply its revised interpretation of the CAA to specific affirmative defense SIP provisions and proposed SIP calls for those provisions where appropriate (79 FR 55920, September 17, 2014). On June 12, 2015, pursuant to CAA section 110(k)(5), EPA finalized ‘‘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,’’ (80 FR 33839) June 12, 2015, hereafter referred to as the ‘‘2015 SSM SIP Action.’’ The 2015 SSM SIP Action clarified, restated, and updated EPA’s interpretation that SSM exemption and affirmative defense SIP provisions are inconsistent with CAA requirements. The 2015 SSM SIP Action found that certain SIP provisions in 36 states, including Louisiana, were substantially inadequate to meet CAA requirements and issued a SIP call to those states to submit SIP revisions to address the inadequacies. EPA established an 18month deadline by which the affected states had to submit such SIP revisions. States were required to submit corrective revisions to their SIPs in response to the SIP calls by November 22, 2016. EPA issued a Memorandum in October 2020 (2020 Memorandum), which stated that certain provisions governing SSM periods in SIPs could be viewed as consistent with CAA requirements.2 Importantly, the 2020 Inadequacy; and SIP Calls To Amend Provisions Applying to Excess Emissions During Periods of Startup, Shutdown, and Malfunction (78 FR 12460) Feb. 22, 2013. 2 October 9, 2020, Memorandum ‘‘Inclusion of Provisions Governing Periods of Startup, Shutdown, and Malfunctions in State E:\FR\FM\13JNP1.SGM 13JNP1 Federal Register / Vol. 88, No. 113 / Tuesday, June 13, 2023 / Proposed Rules Memorandum stated that it ‘‘did not alter in any way the determinations made in the 2015 SSM SIP Action that identified specific state SIP provisions that were substantially inadequate to meet the requirements of the Act.’’ Accordingly, the 2020 Memorandum had no direct impact on the SIP call issued to Louisiana in 2015. The 2020 Memorandum did, however, indicate EPA’s intent at the time to review SIP calls that were issued in the 2015 SSM SIP Action to determine whether EPA should maintain, modify, or withdraw particular SIP calls through future agency actions. On September 30, 2021, EPA’s Deputy Administrator withdrew the 2020 Memorandum and announced EPA’s return to the policy articulated in the 2015 SSM SIP Action (2021 Memorandum).3 As articulated in the 2021 Memorandum, SIP provisions that contain exemptions or affirmative defense provisions are not consistent with CAA requirements and, therefore, generally are not approvable if contained in a SIP submission. This policy approach is intended to ensure that all communities and populations, including overburdened communities, receive the full health and environmental protections provided by the CAA.4 The 2021 Memorandum also retracted the prior statement from the 2020 Memorandum of EPA’s plans to review and potentially modify or withdraw particular SIP calls. That statement no longer reflects EPA’s intent. EPA intends to implement the principles laid out in the 2015 SSM SIP Action as the agency takes action on SIP submissions, including the November 22, 2016, and June 9, 2017 Louisiana SIP submittals, provided in response to the 2015 SSM SIP Action. ddrumheller on DSK120RN23PROD with PROPOSALS1 B. Louisiana’s Provision Related to Excess Emissions Louisiana Administrative Code (LAC), Title 33 Environmental Quality, Part III, Air (LAC 33:III), Chapter 22 Control of Emissions of Nitrogen Oxides (NOX) is applicable only to the Baton Rouge ozone nonattainment area and its Region of Influence (ROI).5 LAC Implementation Plans,’’ from Andrew R. Wheeler, Administrator. 3 September 30, 2021, Memorandum ‘‘Withdrawal of the October 9, 2020, Memorandum Addressing Startup, Shutdown, and Malfunctions in State Implementation Plans and Implementation of the Prior Policy,’’ from Janet McCabe, Deputy Administrator. 4 Section J, June 12, 2015 (80 FR 33985). 5 In 2012, EPA designated nonattainment areas for the 2008 ozone NAAQS (77 FR 30088, May 21, 2012), including the Baton Rouge area consisting of five parishes: Ascension, East Baton Rouge, VerDate Sep<11>2014 17:07 Jun 12, 2023 Jkt 259001 33:III.2201.C(8) provides that point sources at an affected facility ‘‘are exempted’’ from the NOX emission limitations ‘‘during start-up and shutdown . . . or during a malfunction.’’ LAC 33:III.2201.C(8) was originally approved by the EPA into the Louisiana SIP on September 27, 2002 (67 FR 60877) and became federally effective on October 27, 2002. As a part of the EPA’s 2015 SSM SIP Action, the EPA made a finding that LAC 33:III.2201.C(8) of the Louisiana SIP is substantially inadequate to meet CAA requirements and issued a SIP call with respect to this provision because it provided for an automatic exemption.6 II. Analysis of SIP Submission In response to the June 12, 2015 SSM SIP Action, LDEQ repealed section LAC 33:III.2201.C(8) under the State law and added a new section, LAC 33:III.2201.K. Startup and Shutdown, in its place.7 Iberville, Livingston, and West Baton Rouge. LAC 33:III.2201.A(1) defines Region of Influence as an area to the north of the Baton Rouge nonattainment area that encompasses affected facilities in the attainment parishes of East Feliciana, Pointe Coupee, St. Helena, and West Feliciana. 6 See ‘‘Affected States in EPA Region VI’’, section IX.G.4, June 12, 2015 (80 FR 33968). 7 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. PO 00000 Frm 00043 Fmt 4702 Sfmt 4702 38449 The November 22, 2016, SIP submittal as supplemented by the June 9, 2017 SIP submittal requested the removal of the SIP-called provision LAC 33:III.2201.C(8) and approval of LAC 33:III.2201.K into the SIP in its place.8 As detailed in the Louisiana’s June 9, 2017 SIP submittal, LAC 33:III.2201.K would require affected NOX 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 would 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 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. 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.’’ 8 The June 9, 2017 submittal states that it supplements LDEQ’s November 22, 2016 submittal, as it relates to the proposed revisions which are the subject of this proposed rulemaking. E:\FR\FM\13JNP1.SGM 13JNP1 38450 Federal Register / Vol. 88, No. 113 / Tuesday, June 13, 2023 / Proposed Rules ddrumheller on DSK120RN23PROD with PROPOSALS1 A. EPA Recommendations for Development of Alternative Emission Limitations Applicable During Startup and Shutdown EPA appreciates the State’s efforts in removing the NOX exemption provision and replacing the exemption provision with an Alternative Emission Limitations (AELs) approach. The EPA interprets the CAA to allow SIPs to include AELs for modes of operation during which an otherwise applicable emission limitation cannot be met, such as may be the case during startup or shutdown. The AEL, 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.9 For the AELs to be approvable (i.e., meet CAA requirements), alternative requirements applicable to the source during startup and shutdown should be narrowly tailored and take into account considerations such as the technological limitations of the specific source category and the control technology that is feasible during startup and shutdown.10 As articulated in the 2015 SSM SIP Action, the EPA recommends giving consideration to the following seven specific criteria for developing AELs in SIP provisions that apply during startup and shutdown: 11 (1) The revision is limited to specific, narrowly defined source categories using specific control strategies; (2) Use of the control strategy for this source category is technically infeasible during startup or shutdown periods; (3) The AEL requires that the frequency and duration of operation in startup or shutdown mode are minimized to the greatest extent practicable; (4) As part of its justification of the SIP revision, the state analyzes the potential worst-case emissions that could occur during startup and shutdown based on the applicable AEL; (5) The AEL requires that all possible steps are taken to minimize the impact of emissions during startup and shutdown on ambient air quality; (6) The AEL requires that, at all times, the facility is operated in a manner consistent with 9 June 12, 2015 (80 FR 33913). 10 Id. 11 June 12, 2015 (80 FR 33980). VerDate Sep<11>2014 17:07 Jun 12, 2023 Jkt 259001 good practice for minimizing emissions and the source uses best efforts regarding planning, design, and operating procedures; and (7) The AEL requires that the owner or operator’s actions during startup and shutdown periods are documented by properly signed, contemporaneous operating logs or other relevant evidence. The EPA will use these criteria when evaluating whether a particular AEL meets CAA requirements for SIP provisions. Any SIP revision establishing an AEL that applies during startup and shutdown would be subject to the same procedural and substantive review requirements as any other SIP submission. We also note that 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.12 The proposed revision to Chapter 22 of the Louisiana SIP has been reviewed to determine whether it addresses and resolves the deficiency with the Louisiana SIP as identified in the EPA’s June 12, 2015 SSM SIP Action and whether the proposed revision meets all CAA requirements for SIPs. B. Evaluation After reviewing the information in Louisiana’s SIP revision submittals,13 the following deficiencies have been identified: (a) The proposed LAC 33:III.2201.K(3)(a) would apply to all affected point sources of NOX (electric power generating system boilers, industrial boilers, process heaters/ furnaces, stationary gas turbines, and stationary internal combustion engines) in the Baton Rouge ozone nonattainment area and its ROI. Although the Baton Rouge area was redesignated in 2017 from nonattainment to attainment with respect to the 2008 8-hour ozone National Ambient Air Quality Standard (NAAQS),14 the Chapter 22 provisions in the Louisiana SIP are necessary and applicable to affected sources in the Parishes of Ascension, East Baton 12 June 12, 2015 (80 FR 33980). SIP submittals include copies of EPA’s August 3, 2016, and December 16, 2016, comment letters on LDEQ’s proposed rulemaking associated with the development of revisions to LAC 33:III.2201, as well as LDEQ’s responses to the comments raised in those letters. 14 December 27, 2016 (81 FR 95051) Approval and Promulgation of Implementation Plans and Designation of Areas for Air Quality Planning Purposes; Louisiana; Redesignation of Baton Rouge 2008 8-Hour Ozone Nonattainment Area to Attainment, Effective March 21, 2017. 13 Louisiana’s PO 00000 Frm 00044 Fmt 4702 Sfmt 4702 Rouge, Iberville, Livingston, and West Baton Rouge and its ROI.15 The proposed LAC 33:III.2201.K(3)(a) is considered a ‘‘general duty’’ provision. We support the inclusion of general duty provisions as separate additional requirements in SIPs, for example, to ensure that owners and operators act consistent with reasonable standards of care; however, a general duty-type provision does not ensure the AELs meet the applicable stringency requirements for SIPs (e.g., Reasonably Available Control Technology (RACT)).16 As discussed in section II.A of this document, criterion 1 of the 7 specific criteria for developing AELs, the EPA recommends that AELs be limited to specific and narrowly defined source categories using specific control strategies.17 The categories of sources (electric power generating system boilers, industrial boilers, process heaters/furnaces, stationary gas turbines, and stationary internal combustion engines) to which LAC 33:III.2201.K(3)(a) would apply are broad and the administrative record accompanying Louisiana’s SIP submittals does not contain sufficient information demonstrating that the proposed AELs meet the CAA applicable stringency requirements for all covered sources.18 For example, the general duty that an owner or operator shall operate a source consistent with ‘‘safety and good air pollution control practices for minimizing emissions’’ is not sufficient to identify what these practices might be across the wide range of source categories to which this standard applies, nor is it clear how such a general duty would be practically enforceable and serve as a limitation on emissions that satisfies, for example, the 15 See https://www3.epa.gov/airquality/ greenbook/hmcty.html (URL dated 10 April 2023). 16 See comment 4, EPA’s December 16, 2016 comment letter to Deidra Johnson of LDEQ. 17 See comment 3, EPA’s December 16, 2016 comment letter to Deidra Johnson of LDEQ. 18 While LAC 33:III.2201.K(3)(b) imposes fuel type and a timing requirement during startup of coal-fired and fuel oil-fired electric power generating system boilers and fuel oil-fired stationary gas turbines, LAC 33:III.2201.K(3)(c) requires timely engagement of control devices such as SCR or SNCR, and LAC 33:III.2201.K(3)(d) limits the startup time of stationary internal combustion engines, we note that for certain affected point sources not equipped with a control device (i.e., industrial boilers, process heaters/furnaces, and stationary gas turbines), the only requirement that applies would be the general duty provision in LAC 33:III.2201.K(3)(a) and the recordkeeping requirements of LAC 33:III.2201.K(3)(e), (f) and (g). Although LDEQ in its response to EPA comment #3 states that EPA has categorized MACT recordkeeping requirements as work practice standards, the MACT standards referenced by LDEQ also include specific emission limitations. E:\FR\FM\13JNP1.SGM 13JNP1 ddrumheller on DSK120RN23PROD with PROPOSALS1 Federal Register / Vol. 88, No. 113 / Tuesday, June 13, 2023 / Proposed Rules RACT requirement during startup or shutdown. (b) The proposed LAC 33:III.2201.K fails to require a source take all possible steps to minimize the impact of emissions during startup and shutdown on ambient air quality, as recommended in criterion 5 of 7, discussed in section II.A of this document, for developing AELs in SIPs. As EPA has previously stated, SIPs are ambient-based standards and any emissions above the allowable limit may cause or contribute to violations of the NAAQS.19 We note that including a statement to the effect requiring the owner or operator to take all possible steps so that NAAQS or Prevention of Significant Deterioration (PSD) increments are not exceeded as a result of emission events from these sources could cure this deficiency. (c) The proposed LAC 33:III.2201.K(4)(b) states that ‘‘[t]he owner or operator may elect to revise the method of compliance . . . of this section for one or more affected point sources by means of a permit modification.’’ EPA has stated that a ‘‘SIP needs to reflect the control obligations of sources, and any revision or modification of those obligations should not be occurring through a separate process, such as a permit process, which would not ensure that ‘‘alternative’’ compliance options do not weaken the SIP.’’ See June 12, 2015 (80 FR 33915). Additionally, ‘‘any revisions to obligations in the SIP need to occur through the SIP revision process . . . .’’ 20 Mere reliance upon a permitbased approach when setting forth an AEL without going through a sourcespecific SIP revision (public notice and comment) process circumvents EPA’s role in reviewing and approving SIP emission limitations to ensure that AELs are ‘‘enforceable’’ or ‘‘permissible,’’ as required by CAA section 110(a)(2)(A) or 110(a)(2)(C). Moreover, emission limits contained in an air permit that is not approved in the SIP and could be later modified (e.g., LAC 33:III.2201.K(4)(b))—without requiring EPA approval as a substitute measure— is not considered permanent.21 The EPA notes that SIP-enforceable methods of compliance with emission limitations that are specified only in a permit are not part of the SIP unless and until they are submitted to EPA and federally approved into the SIP. The fact that EPA has approved the 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.22 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.23 In response to a potential argument that EPA and the public would have an opportunity to comment on the permit, we note that this opportunity for public comment is not a substitute for a source-specific SIP revision, which is needed to alter otherwise applicable SIP emission limitations.24 A fully approvable SIP emission limitation, including periods of startup and shutdown, must meet all substantive requirements of the CAA applicable to such a SIP provision. The proposed AELs in LAC 33:III.2201.K applicable during startup and shutdown periods should be clear so as not to conflict or undermine statutory obligations that SIP emission limitations meet all stringency requirements.25 The language in LAC 33:III.2201.K is not sufficiently specific to ensure that the proposed AELs do not undermine other more stringent SIP emission limitation requirements applicable to some affected sources subject to LAC 33:III.2201. (d) Similarly, the proposed LAC 33:III.2201.K(3)(c) reads, ‘‘[t]he 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 (emphasis added).’’ In its 2016 comment letter, EPA stated that ‘‘it would be necessary to submit such applicable permits to the EPA as sourcespecific SIP revisions to ensure 22 June 19 EPA’s 1982 Policy on Excess Emissions During Startup, Shutdown, Maintenance, and Malfunctions, September 28, 1982 Kathleen M. Bennett Memorandum. 20 June 12, 2015 (80 FR 33916). 21 Disapproval of Missouri Air Plan; Control of Sulfur Dioxide Emissions, EPA Docket ID No. EPA– R07–OAR–2022–0531 available at www.regulations.gov, July 8, 2022 (87 FR 40760). VerDate Sep<11>2014 17:07 Jun 12, 2023 Jkt 259001 12, 2015 (80 FR 33915–33916, and 33922). 28, 2022 (87 FR 72944); see also 80 FR 33922 (The EPA is not authorized to approve a program that in essence allows a SIP revision without compliance with the applicable statutory requirements in sections 110(k)(3), 110(l) and 193 and any other provision that is germane to the particular SIP emission limitation at issue). 24 November 28, 2022 (87 FR 72944). 25 June 12, 2015 (80 FR 33893). 23 November PO 00000 Frm 00045 Fmt 4702 Sfmt 4702 38451 attainment/maintenance of NAAQS, preservation of PSD increments, and SIP enforcement.’’ 26 The proposed revisions set forth in the November 22, 2016, and June 9, 2017 submittals do not provide for a mechanism to submit such applicable permits to the EPA for review and approval into the Louisiana SIP as source-specific SIP revisions. As previously noted above, the state’s air permitting process, on its own, cannot be used to create alternatives to or impose conditions for SIP emission limitations for sources during startup and shutdown in lieu of a SIP revision. The state may use the permit development process as a means to evaluate and establish AELs for periods of startup and shutdown for a specific source, but such permit conditions would not negate or replace applicable SIP limits without being approved as a source-specific SIP revision.27 (e) The EPA recommendation in criterion 2 of 7 in section II.A for the establishment of AELs requires justification that use of the control strategy for the affected source category is technically infeasible during startup or shutdown periods. EPA does not recommend establishing AELs for sources that are capable of meeting their existing emission limitations at all times. It is unclear how the proposed revision in LAC 33:III.2201.K takes this technical infeasibility justification fully into account within the SIP process prior to its implementation by the owner or operator. Louisiana does explain that it is well understood that sources utilizing SNCR and SCR for control must reach the necessary temperature before being able to operate properly. But the Louisiana rules also anticipate some sources may desire to comply with the rule limits at all times including startup and shutdown. Many sources likely utilize control techniques that can operate through a wide range of conditions including startup and shutdown. Because Louisiana did not submit information on the particular sources utilizing AELs, EPA cannot evaluate whether all of these sources are meeting any underlying requirement during startup and shutdown. For example, where an existing limitation represents RACT and the state is submitting an AEL that allows emissions in excess of that limit during startup, the SIP submission should explain why the RACT limit cannot be 26 See comment 6, EPA’s December 16, 2016 comment letter to Deidra Johnson of LDEQ. 27 Disapproval of Georgia Rules for Air Quality Control Pertaining to Startup, Shutdown and Malfunction, EPA Docket ID No. EPA–R4–OAR– 2022–0294 available at www.regulations.gov, November 28, 2022 (87 FR 72944). E:\FR\FM\13JNP1.SGM 13JNP1 ddrumheller on DSK120RN23PROD with PROPOSALS1 38452 Federal Register / Vol. 88, No. 113 / Tuesday, June 13, 2023 / Proposed Rules met during startup, as part of the justification for a higher RACT limit during startup. 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 Furthermore, as provided in LAC 33:III.2201.K(2) affected point sources capable of meeting the original emission limitations and standards (set forth in LAC 33:III.2201.D) at all times, even during periods of startup and shutdown, have the option of complying with AELs such as work practice standards (LAC 33:III.2201.K(3)) in lieu of meeting those original limitations. Accordingly, EPA views this option as inconsistent with EPA’s 2015 SSM SIP Action. (f) The EPA recommendation in criterion 4 of 7 in section II.A for the establishment of AELs states that the air agency, as a part of its justification of the SIP revision, should analyze the potential worst-case emissions that could occur during startup and shutdown based on the applicable AEL. The June 9, 2017 SIP submittal references Louisiana’s November 22, 2016 SIP submittal wherein LDEQ remarks, ‘‘[P]resuming the newlyestablished work practice standards have no demonstrable impact on NOX emissions (an unnecessarily conservative assumption), LDEQ’s historical emissions data represents the potential ‘‘worst-case’’ scenario that could be attributed to the alternative emission limitation.’’ The submission goes on to explain that despite the exemption, air quality in the Baton Rouge area has improved. It is unclear, however, why LDEQ assumes that the worst-case emissions under the AELs could never be higher than the historical actual emissions. We also note that 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 all affected NOX point sources emissions during startup and shutdown. Establishing AELs absent of analyzing worst-case scenarios that could occur during startup and shutdown, similar to exemptions, shields emissions, leads to aggravated air quality and precludes enforcement. As submitted, it is unclear how LAC 28 ‘‘NO Supplement’’ FR titled, ‘‘State X 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). VerDate Sep<11>2014 17:07 Jun 12, 2023 Jkt 259001 33:III.2201.K takes this factor into consideration. Should there be an assertion that the potential worst-case emissions analysis will be taken into account during development of applicable specific permit conditions for each affected facility, we note that LAC 33:III.2201.K does not provide for submittal of applicable permits or their relevant sections into the SIP and, as previously discussed, a permitting process on its own cannot be used to create alternatives to SIP emission limitations for sources during startup and shutdown in lieu of a SIP revision. With respect to proposed LAC 33:III.2201.K(4)(b), we also note that even if Louisiana intended to submit these AELs as SIP revisions, the potential resource burden on LDEQ and EPA—in evaluating each single source AEL for both consideration of the criteria for an AEL and compliance with SIP requirements—could be significant.29 (g) Finally, Louisiana’s proposed revision to add LAC 33:III.2201.K to the SIP creates a non-SIP mechanism for amending the SIP by creating alternatives to it. It also creates the potential for confusion because all the requirements of the associated AEL would not be contained in the SIP together with the SIP limits it amends, thereby allowing for the possibility of non-SIP AELs provisions that conflict with the SIP limits. Moreover, it does so without opportunity for EPA review or disapproval where the AEL fails to meet CAA requirements. Any AEL which revises a limit that is EPA-approved as part of the Louisiana SIP must be submitted as a SIP revision in accordance with CAA section 110. EPA’s 2015 SSM SIP Action states that AELs which modify SIP-approved emissions limitations, whether adopted on a case-by-case basis or as an AEL generally applicable to a narrow category of similar sources, must be presented to EPA for approval as a SIP revision and go through the SIP revision process. The AELs at issue here would be changes to a state emissions regulation adopted as part of the Louisiana SIP to implement the CAA, and as such must be approved by EPA as a SIP revision. States cannot unilaterally make changes to SIPapproved emission limits and compliance obligations, merely through a permit modification, without the requirements of CAA section 110 being met, including a public comment process and EPA approval. The fact that an AEL must be incorporated into a permit that is part of the EPA-approved 29 See PO 00000 December 22, 2022 (87 FR 78619). Frm 00046 Fmt 4702 Sfmt 4702 Louisiana SIP does not do away with this requirement that the AEL be submitted as a SIP revision and go through the SIP revision process. In conclusion, we are proposing to make a determination that Louisiana’s November 22, 2016 and June 9, 2017 SIP revision submittals that would repeal LAC 33:III.2201.C(8) and replace it with LAC 33:III.2201.K titled Startup and Shutdown, do not correct the deficiency and substantial inadequacy with LAC 33:III.2201.C(8), as identified in the June 12, 2015 SSM SIP Action. III. Proposed Action The EPA is proposing to disapprove a revision to the Louisiana SIP submitted by LDEQ on November 22, 2016, as 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 proposing to disapprove the revision to 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.30 The EPA’s review indicates that this SIP revision would not correct the substantial inadequacy identified in the June 12, 2015 SIP call related to section LAC 33:III.2201.C(8). EPA is not reopening the 2015 SSM SIP Action and is only taking comment on whether the proposed SIP revision is consistent with CAA requirements and whether it addresses the substantial inadequacy identified in the 2015 SSM SIP Action for the Louisiana SIP section LAC 33:III.2201.C(8). If the Agency finalizes this disapproval, CAA section 110(c)(1) would require EPA to promulgate a Federal Implementation Plan (FIP) within 24 months of the effective date of the 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 or the deficiencies identified in Section II.B of this document within such time. In addition, final disapproval would trigger 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 30 The removal of the exemption in LAC 33:III.2201.C(8) and the addition of LAC 33:III.2201.K is considered an inseparable action. The proposed disapproval of the addition of LAC 33:III.2201.K to the SIP would make an approval of the removal of LAC 33:III.2201.C(8) from the SIP more stringent than Louisiana anticipated or intended. See Bethlehem Steel Corp. v. Gorsuch, 742 F.2d 1028, 1036–37 (7th Cir. 1984). E:\FR\FM\13JNP1.SGM 13JNP1 Federal Register / Vol. 88, No. 113 / Tuesday, June 13, 2023 / Proposed Rules versus 13.6 percent). The percentage of Louisiana’s population living in poverty is 19.6 percent, which is higher than the national average of 11.6 percent. The percent of people over 25 with a high school diploma in Louisiana is similar to the national average (86.2 percent versus 88.9 percent), while the percent with a Bachelor’s degree or higher is lower than the national average (25.5 percent versus 33.7 percent). EPA conducted screening analyses using EJSCREEN, an environmental justice mapping and screening tool that provides EPA with a nationally consistent dataset and approach for combining various environmental and demographic indicators.33 The EJSCREEN tool presents these indicators at a Census Block Group (CBG) level or a larger users specified area that covers multiple CBGs.34 EJSCREEN is not a tool for performing in depth risk analysis, but is instead a screening tool that provides an initial representation of indicators related to environmental justice and is subject to uncertainty in some underlying data (e.g., some environmental indicators are based on monitoring data which are not months of the effective date of the final disapproval action.31 IV. Environmental Justice Considerations 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. EPA first reviewed demographic data, which provides an assessment of individual demographic groups, of the populations living within Louisiana.32 The EPA then compared the data to the national average for each of the demographic groups. The results of the demographic analysis indicate that, for populations within Louisiana, the percent people of color (persons who reported their race as a category other than White alone (not Hispanic or Latino)) is similar to the national average (57.9 percent of Louisiana’s population compared to 59.3 percent nationally). The percent of persons who reported their race as Black or African American alone is significantly higher than the national average (33.0 percent 38453 uniformly available; others are based on self-reported data).35 EJSCREEN environmental indicators help screen for locations where residents may experience a higher overall pollution burden than would be expected for a block group with the same total population in the U.S. EJSCREEN also provides information on demographic indicators, including percent lowincome, communities of color, level of income, unemployment rate, linguistic isolation, less than high school education, population below age 5, population over age 64, and low life expectancy compared to the U.S. as a whole.36 The EPA prepared EJSCREEN reports, including demographic indicators, covering each of these 9 affected parishes (Ascension, East Baton Rouge, East Feliciana, Iberville, Livingston, Pointe Coupee, St. Helena, West Baton Rouge, and West Feliciana). See Tables 1 and 2 for a summary of demographic indicator results from the EPA’s screening-level analysis for these 9 affected parishes. The detailed EJSCREEN reports are provided in the docket for this rulemaking. TABLE 1—DEMOGRAPHIC INDICATORS FOR LOUISIANA PARISHES ASCENSION, EAST BATON ROUGE, EAST FELICIANA, IBERVILLE, AND LIVINGSTON Demographic indicators People of Color ............ Low Income .................. Unemployment Rate ..... Limited English Speaking. Population with Less Than High School Education. Population below Age 5 Population over Age 64 Low Life Expectancy .... Ascension East Baton Rouge East Feliciana Iberville Livingston US Value (%ile) Value (%ile) Value (%ile) Value (%ile) Value (%ile) Value (-) 32% (52nd %ile) .......... 21% (39th %ile) ........... 6% (65th %ile) ............. 1% (60th %ile) ............. 56% (70th %ile) ........... 35% (61st %ile) ............ 7% (68th %ile) ............. 2% (63rd %ile) ............. 46% (59th %ile) ........... 31% (40th %ile) ........... 7% (63rd %ile) ............. 0% (75th %ile) ............. 52% (68th %ile) ........... 38% (66th %ile) ........... 10% (81st %ile) ............ 1% (57th %ile) ............. 13% (29th %ile) ........... 27% (48th %ile) ........... 5% (60th %ile) ............. 1% (58th %ile) ............. 40 30 5 5 10% (58th %ile) ........... 10% (55th %ile) ........... 21% (71st %ile) ............ 20% (80th %ile) ........... 13% (65th %ile) ........... 12 7% (68th %ile) ............. 12% (35th %ile) ........... 17% (31st %ile) ............ 7% (64th %ile) ............. 14% (45th %ile) ........... 19% (50th %ile) ........... 5% (48th %ile) ............. 18% (65th %ile) ........... 22% (53rd %ile) ........... 5% (54th %ile) ............. 16% (51st %ile) ............ 23% (83rd %ile) ........... 7% (66th %ile) ............. 13% (41st %ile) ............ 20% (52nd %ile) .......... 6 16 20 ddrumheller on DSK120RN23PROD with PROPOSALS1 Percentiles (%ile) are within the US, where indicated. 31 The offset sanction in CAA section 179(b)(2) would be triggered 18 months after the effective date of a final disapproval, and the highway funding sanction in CAA section 179(b)(1) would be triggered 24 months after the effective date of a final disapproval. Although the sanctions clock would begin to run from the effective date of a final disapproval, mandatory sanctions under CAA section 179 generally apply only in designated nonattainment areas. This includes areas designated as nonattainment after the effective date of a final disapproval. As discussed in the 2015 SSM SIP Action, EPA will evaluate the geographic scope of potential sanctions at the time it makes a determination that the air agency has failed to make a complete SIP submission in response to the 2015 SIP call, or at the time it disapproves such a SIP submission. The appropriate geographic scope for sanctions may vary depending upon the SIP provisions at issue. See June 12, 2015 (80 FR 33930) VerDate Sep<11>2014 17:07 Jun 12, 2023 Jkt 259001 EPA Docket ID No. EPA–HQ–OAR–2012–0322 available at www.regulations.gov; November 28, 2022 (87 FR 72946) Disapproval of Air Quality Implementation Plans; Georgia—Revisions to Rules for Air Quality Control Pertaining to Startup, Shutdown and Malfunction EPA Docket ID No. EPA–R4–OAR–2022–0294 available at www.regulations.gov; and April 6, 2023 (88 FR 20447–20448) Air Plan Partial Disapproval and Partial Approval; Tennessee—Revisions to Startup, Shutdown, and Malfunction Rules EPA Docket ID No. EPA–R4–OAR–2022–0783 available at www.regulations.gov. 32 See the United States Census Bureau’s QuickFacts on Louisiana at https:// www.census.gov/quickfacts/fact/table/LA,US/ PST045222. 33 See The EJSCREEN tool available at https:// www.epa.gov/ejscreen. PO 00000 Frm 00047 Fmt 4702 Sfmt 4702 34 See https://www.census.gov/programssurveys/ geography/about/glossary.html. 35 In addition, EJSCREEN relies on the five-year block group estimates from the U.S. Census American Community Survey. The advantage of using five-year over single-year estimates is increased statistical reliability of the data (i.e., lower sampling error), particularly for small geographic areas and population groups. For more information, see https://www.census.gov/content/ dam/Census/library/publications/2020/acs/acs_ general_handbook_2020.pdf. 36 For additional information on environmental indicators in EJSCREEN, see ‘‘EJSCREEN Environmental Justice Mapping and Screening Tool: EJSCREEN Technical Documentation,’’ Chapters 2, 3, and Appendix C (September 2019) at https://www.epa.gov/sites/default/files/2021-04/ documents/ejscreen_technical_document.pdf. E:\FR\FM\13JNP1.SGM 13JNP1 38454 Federal Register / Vol. 88, No. 113 / Tuesday, June 13, 2023 / Proposed Rules TABLE 2—DEMOGRAPHIC INDICATORS FOR LOUISIANA PARISHES POINTE COUPEE, ST. HELENA, WEST BATON ROUGE, AND WEST FELICIANA Demographic indicators Pointe Coupee St. Helena West Baton Rouge West Feliciana US Value (%ile) Value (%ile) Value (%ile) Value (%ile) Value People of Color ..................... Low Income .......................... Unemployment Rate ............. Limited English Speaking ..... Population with Less Than High School Education. Population below Age 5 ........ Population over Age 64 ........ Low Life Expectancy ............. 40% (59th %ile) .......... 42% (71st %ile) ........... 5% (62nd %ile) ........... 1% (60th %ile) ............ 19% (78th %ile) ........... 56% (70th %ile) ........... 44% (74th %ile) ........... 17% (94th %ile) ........... 1% (58th %ile) ............ 21% (82nd %ile) ......... 45% (63rd %ile) .......... 32% (57th %ile) ........... 8% (75th %ile) ............ 0% (0th %ile) ............... 13% (66th %ile) ........... 48% (65th %ile) ........... 29% (53rd %ile) .......... 8% (76th %ile) ............ 1% (57th %ile) ............ 20% (80th %ile) ........... 40 30 5 5 12 6% (59th %ile) ............ 21% (70th %ile) ........... 21% (63rd %ile) .......... 6% (55th %ile) ............ 19% (66th %ile) ........... 24% (87th %ile) ........... 7% (66th %ile) ............. 14% (43rd %ile) .......... 21% (67th %ile) .......... 4% (41st %ile) ............. 15% (50th %ile) ........... 15% (11th %ile) ........... 6 16 20 ddrumheller on DSK120RN23PROD with PROPOSALS1 Percentiles (%ile) are within the US, where indicated. Communities in close proximity to and/or downwind of industrial sources may be subject to disproportionate environmental impacts of excess emissions. Short- and/or long-term exposure to air pollution has been associated with a wide range of human health effects including increased respiratory symptoms, hospitalization for heart or lung diseases, and even premature death.37 Excess emissions during startups, shutdowns, and malfunctions exceed applicable emission limitations and can be considerably higher than emissions under normal steady-state operations. As to all population groups within the previously designated Baton Rouge ozone nonattainment area and its ROI, we believe that this proposed action will pave the way to future environmental benefits and reduce adverse impacts. As discussed earlier, this rulemaking, if finalized as proposed, will lead to future actions to remove an impermissible SIP provision which currently provides affected sources emitting NOX in excess of otherwise allowable amounts with an opportunity to exempt violations occurring during SSM events. The removal of LAC 33:III.2201.C(8) from the Louisiana SIP is necessary to preserve the enforcement structure of the CAA, to preserve the jurisdiction of courts to adjudicate questions of liability and remedies in judicial enforcement actions and to preserve the potential for enforcement by the EPA and other parties under the citizen suit provision as an effective deterrent to violations. If finalized as proposed, this action will lead to additional rulemaking actions intended to ensure that all communities and populations, including overburdened 37 https://www.epa.gov/air-quality-managementprocess/managing-air-quality-human-healthenvironmental-and-economic#what (URL dated 01/ 30/2023). VerDate Sep<11>2014 17:07 Jun 12, 2023 Jkt 259001 communities, receive the full human health and environmental protection provided by the CAA. We therefore propose to determine that this rulemaking action, if finalized as proposed, will not have disproportionately high or adverse human health or environmental effects on communities with environmental justice concerns. V. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review The Proposed action is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993), and 13563 (76 FR 3821, January 21, 2011), and 14094 (88 FR 21879, April 11, 2023); and was therefore not submitted to the Office of Management and Budget for review. B. Paperwork Reduction Act (PRA) The proposed action does not impose an information collection burden under the PRA because it does not contain any information collection activities. 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 (5 U.S.C. 601 et seq.). This action merely proposes to disapprove a SIP submission as not meeting the CAA. D. Unfunded Mandates Reform Act (UMRA) The proposed 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 proposed action imposes no enforceable duty on any PO 00000 Frm 00048 Fmt 4702 Sfmt 4702 State, local, or tribal governments or the private sector. E. Executive Order 13132: Federalism The proposed 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: Consultation and Coordination With Indian Tribal Governments The proposed action will not apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). G. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern environmental health or safety risks that EPA has reason to believe may disproportionately affect children, per the definitions of ‘‘covered regulatory action’’ in section 2–202 of the Executive Order. This proposed action is not subject to Executive Order 13045 because it merely proposes to disapprove a SIP submission from Louisiana as not meeting CAA requirements. H. Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution and Use The proposed action is not subject to Executive Order 13211, because it is not E:\FR\FM\13JNP1.SGM 13JNP1 Federal Register / Vol. 88, No. 113 / Tuesday, June 13, 2023 / Proposed Rules a significant regulatory action under Executive Order 12866. ddrumheller on DSK120RN23PROD with PROPOSALS1 I. National Technology Transfer and Advancement Act This proposed rulemaking does not involve technical standards. 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, as is described above in the section titled, ‘‘Environmental Justice Considerations.’’ 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 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 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 proposed action simply proposes to disapprove a SIP submission as not meeting CAA requirements for SIPs. VerDate Sep<11>2014 17:07 Jun 12, 2023 Jkt 259001 List of Subjects in 40 CFR Part 52 Environmental protection, Air pollution control, Carbon monoxide, Hydrocarbons, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Particulate matter, Sulfur dioxide, Reporting and recordkeeping requirements, Volatile organic compounds. Authority: 42 U.S.C. 7401 et seq. Dated: June 7, 2023. Earthea Nance, Regional Administrator, Region 6. [FR Doc. 2023–12615 Filed 6–12–23; 8:45 am] BILLING CODE 6560–50–P DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 17 [Docket No. FWS–R2–ES–2022–0156; FF09E21000 FXES1111090FEDR 234] RIN 1018–BF85 Endangered and Threatened Wildlife and Plants; Endangered Species Status for Navasota False Foxglove and Designation of Critical Habitat Fish and Wildlife Service, Interior. ACTION: Proposed rule. AGENCY: We, the U.S. Fish and Wildlife Service (Service), propose to list Navasota false foxglove (Agalinis navasotensis), a plant species from Grimes and Tyler Counties, Texas, as an endangered species under the Endangered Species Act of 1973, as amended (Act). This determination also serves as our 12-month finding on a petition to list Navasota false foxglove. After a review of the best available scientific and commercial information, we find that listing the species is warranted. We also propose to designate critical habitat for Navasota false foxglove under the Act. In total, approximately 1.9 acres (0.8 hectares) in Grimes and Tyler Counties, Texas, fall within the boundaries of the proposed critical habitat designation. In addition, we announce the availability of a draft economic analysis of the proposed designation of critical habitat for Navasota false foxglove. If we finalize this rule as proposed, it would add this species to the List of Endangered and Threatened Plants and extend the Act’s protections to the species and its designated critical habitat. DATES: We will accept comments received or postmarked on or before August 14, 2023. Comments submitted SUMMARY: PO 00000 Frm 00049 Fmt 4702 Sfmt 4702 38455 electronically using the Federal eRulemaking Portal (see ADDRESSES, below) must be received by 11:59 p.m. eastern time on the closing date. We must receive requests for a public hearing, in writing, at the address shown in FOR FURTHER INFORMATION CONTACT by July 28, 2023. ADDRESSES: You may submit comments by one of the following methods: (1) Electronically: Go to the Federal eRulemaking Portal: https:// www.regulations.gov. In the Search box, enter FWS–R2–ES–2022–0156, which is the docket number for this rulemaking. Then, click on the Search button. On the resulting page, in the panel on the left side of the screen, under the Document Type heading, check the Proposed Rule box to locate this document. You may submit a comment by clicking on ‘‘Comment.’’ (2) By hard copy: Submit by U.S. mail to: Public Comments Processing, Attn: FWS–R2–ES–2022–0156, U.S. Fish and Wildlife Service, MS: PRB/3W, 5275 Leesburg Pike, Falls Church, VA 22041– 3803. We request that you send comments only by the methods described above. We will post all comments on https:// www.regulations.gov. This generally means that we will post any personal information you provide us (see Information Requested, below, for more information). Availability of supporting materials: Supporting materials, such as the species status assessment report, are available at https://fws.gov/species/ navasota-false-foxglove-agalinisnavasotensis, and https:// www.regulations.gov at Docket No. FWS–R2–ES–2022–0156, or both. For the critical habitat designation, the coordinates or plot points or both from which the maps are generated are included in the decision file for this critical habitat designation and are available at https://www.regulations.gov at Docket No. FWS–R2–ES–2022–0156 and on the Service’s website at https:// fws.gov/species/navasota-false-foxgloveagalinis-navasotensis. FOR FURTHER INFORMATION CONTACT: Chuck Ardizzone, Project Leader, Texas Coastal Ecological Services Field Office, U.S. Fish and Wildlife Service, 17629 El Camino Real, Ste. 211, Houston, TX 77058; telephone: (281) 286–8282. Individuals in the United States who are deaf, deafblind, hard of hearing, or have a speech disability may dial 711 (TTY, TDD, or TeleBraille) to access telecommunications relay services. Individuals outside the United States should use the relay services offered within their country to make E:\FR\FM\13JNP1.SGM 13JNP1

Agencies

[Federal Register Volume 88, Number 113 (Tuesday, June 13, 2023)]
[Proposed Rules]
[Pages 38448-38455]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-12615]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2019-0212; FRL-10997-01-R6]


Air Plan Disapproval; Louisiana; Excess Emissions

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: Pursuant to the Federal Clean Air Act (CAA, the Act), the 
Environmental Protection Agency (EPA) is proposing to disapprove a 
revision to the Louisiana State Implementation Plan (SIP) submitted by 
the State of Louisiana, through the Louisiana Department of 
Environmental Quality (LDEQ), on November 22, 2016, and supplemented on 
June 9, 2017. The submittals are in response to the EPA's national SIP 
call of June 12, 2015, concerning excess emissions during periods of 
Startup, Shutdown and Malfunction (SSM). EPA is proposing to determine 
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: Comments must be received on or before July 13, 2023.

ADDRESSES: Submit your comments, identified by Docket No. EPA-R06-OAR-
2019-0212 at https://www.regulations.gov or via email to 
[email protected]. Follow the online instructions for submitting 
comments. Once submitted, comments cannot be edited or removed from 
Regulations.gov. The EPA may publish any comment received to its public 
docket. Do not submit electronically any information you consider to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Multimedia submissions (audio, 
video, etc.) must be accompanied by a written comment. The written 
comment is considered the official comment and should include 
discussion of all points you wish to make. The EPA will generally not 
consider comments or comment contents located outside of the primary 
submission (i.e., on the web, cloud, or other file sharing system). For 
additional submission methods, please contact Mr. Alan Shar, (214) 665-
6691, [email protected]. For the full EPA public comment policy, 
information about CBI or multimedia submissions, and general guidance 
on making effective comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets.
    Docket: The index to the docket for this action is available 
electronically at www.regulations.gov and in hard copy at the EPA 
Region 6 Office, 1201 Elm Street, Suite 500, Dallas, Texas 75270. While 
all documents in the docket are listed in the index, some information 
may be publicly available only at the hard copy location (e.g., 
copyrighted material), and some may not be publicly available at either 
location (e.g., CBI).

FOR FURTHER INFORMATION CONTACT: 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] We 
encourage the public to submit comments via https://www.regulations.gov, as there will be a delay in processing mail and no 
courier or hand deliveries will be accepted. 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.

Table of Contents

I. Background
    A. EPA's 2015 SSM SIP Action
    B. Louisiana's Provision Related to Excess Emissions
II. Analysis of SIP Submission
    A. EPA Recommendations for Development of Alternative Emission 
Limitations Applicable During Startup and Shutdown
    B. Evaluation
III. Proposed Action
IV. Environmental Justice Considerations
V. Statutory and Executive Order Reviews

I. Background

A. EPA's 2015 SSM SIP Action

    On February 22, 2013, the EPA issued a Federal Register proposed 
rulemaking action outlining EPA's policy at the time with respect to 
SIP provisions related to periods of SSM. The EPA analyzed specific SSM 
SIP provisions and explained how each one either did or did not comply 
with the CAA with regard to excess emission events.\1\ For each SIP 
provision that EPA determined to be inconsistent with the CAA, EPA 
proposed to find that the existing SIP provision was substantially 
inadequate to meet CAA requirements and thus proposed to issue a SIP 
call under CAA section 110(k)(5). On September 17, 2014, EPA issued a 
document supplementing and revising what the Agency had previously 
proposed on February 22, 2013, in light of a D.C. Circuit decision that 
determined the CAA precludes authority of the EPA to create affirmative 
defense provisions applicable to private civil suits. EPA outlined its 
updated policy that affirmative defense SIP provisions are not 
consistent with CAA requirements. The EPA proposed in the supplemental 
proposal document to apply its revised interpretation of the CAA to 
specific affirmative defense SIP provisions and proposed SIP calls for 
those provisions where appropriate (79 FR 55920, September 17, 2014).
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    \1\ State Implementation Plans: Response to Petition for 
Rulemaking; Findings of Substantial Inadequacy; and SIP Calls To 
Amend Provisions Applying to Excess Emissions During Periods of 
Startup, Shutdown, and Malfunction (78 FR 12460) Feb. 22, 2013.
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    On June 12, 2015, pursuant to CAA section 110(k)(5), EPA finalized 
``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,'' (80 FR 33839) June 12, 2015, hereafter referred to as 
the ``2015 SSM SIP Action.'' The 2015 SSM SIP Action clarified, 
restated, and updated EPA's interpretation that SSM exemption and 
affirmative defense SIP provisions are inconsistent with CAA 
requirements. The 2015 SSM SIP Action found that certain SIP provisions 
in 36 states, including Louisiana, were substantially inadequate to 
meet CAA requirements and issued a SIP call to those states to submit 
SIP revisions to address the inadequacies. EPA established an 18-month 
deadline by which the affected states had to submit such SIP revisions. 
States were required to submit corrective revisions to their SIPs in 
response to the SIP calls by November 22, 2016.
    EPA issued a Memorandum in October 2020 (2020 Memorandum), which 
stated that certain provisions governing SSM periods in SIPs could be 
viewed as consistent with CAA requirements.\2\ Importantly, the 2020

[[Page 38449]]

Memorandum stated that it ``did not alter in any way the determinations 
made in the 2015 SSM SIP Action that identified specific state SIP 
provisions that were substantially inadequate to meet the requirements 
of the Act.'' Accordingly, the 2020 Memorandum had no direct impact on 
the SIP call issued to Louisiana in 2015. The 2020 Memorandum did, 
however, indicate EPA's intent at the time to review SIP calls that 
were issued in the 2015 SSM SIP Action to determine whether EPA should 
maintain, modify, or withdraw particular SIP calls through future 
agency actions.
---------------------------------------------------------------------------

    \2\ October 9, 2020, Memorandum ``Inclusion of Provisions 
Governing Periods of Startup, Shutdown, and Malfunctions in State 
Implementation Plans,'' from Andrew R. Wheeler, Administrator.
---------------------------------------------------------------------------

    On September 30, 2021, EPA's Deputy Administrator withdrew the 2020 
Memorandum and announced EPA's return to the policy articulated in the 
2015 SSM SIP Action (2021 Memorandum).\3\ As articulated in the 2021 
Memorandum, SIP provisions that contain exemptions or affirmative 
defense provisions are not consistent with CAA requirements and, 
therefore, generally are not approvable if contained in a SIP 
submission. This policy approach is intended to ensure that all 
communities and populations, including overburdened communities, 
receive the full health and environmental protections provided by the 
CAA.\4\ The 2021 Memorandum also retracted the prior statement from the 
2020 Memorandum of EPA's plans to review and potentially modify or 
withdraw particular SIP calls. That statement no longer reflects EPA's 
intent.
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    \3\ September 30, 2021, Memorandum ``Withdrawal of the October 
9, 2020, Memorandum Addressing Startup, Shutdown, and Malfunctions 
in State Implementation Plans and Implementation of the Prior 
Policy,'' from Janet McCabe, Deputy Administrator.
    \4\ Section J, June 12, 2015 (80 FR 33985).
---------------------------------------------------------------------------

    EPA intends to implement the principles laid out in the 2015 SSM 
SIP Action as the agency takes action on SIP submissions, including the 
November 22, 2016, and June 9, 2017 Louisiana SIP submittals, provided 
in response to the 2015 SSM SIP Action.

B. Louisiana's Provision Related to Excess Emissions

    Louisiana Administrative Code (LAC), Title 33 Environmental 
Quality, Part III, Air (LAC 33:III), Chapter 22 Control of Emissions of 
Nitrogen Oxides (NOX) is applicable only to the Baton Rouge 
ozone nonattainment area and its Region of Influence (ROI).\5\ LAC 
33:III.2201.C(8) provides that point sources at an affected facility 
``are exempted'' from the NOX emission limitations ``during 
start-up and shutdown . . . or during a malfunction.'' LAC 
33:III.2201.C(8) was originally approved by the EPA into the Louisiana 
SIP on September 27, 2002 (67 FR 60877) and became federally effective 
on October 27, 2002. As a part of the EPA's 2015 SSM SIP Action, the 
EPA made a finding that LAC 33:III.2201.C(8) of the Louisiana SIP is 
substantially inadequate to meet CAA requirements and issued a SIP call 
with respect to this provision because it provided for an automatic 
exemption.\6\
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    \5\ In 2012, EPA designated nonattainment areas for the 2008 
ozone NAAQS (77 FR 30088, May 21, 2012), including the Baton Rouge 
area consisting of five parishes: Ascension, East Baton Rouge, 
Iberville, Livingston, and West Baton Rouge. LAC 33:III.2201.A(1) 
defines Region of Influence as an area to the north of the Baton 
Rouge nonattainment area that encompasses affected facilities in the 
attainment parishes of East Feliciana, Pointe Coupee, St. Helena, 
and West Feliciana.
    \6\ See ``Affected States in EPA Region VI'', section IX.G.4, 
June 12, 2015 (80 FR 33968).
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II. Analysis of SIP Submission

    In response to the June 12, 2015 SSM SIP Action, LDEQ repealed 
section LAC 33:III.2201.C(8) under the State law and added a new 
section, LAC 33:III.2201.K. Startup and Shutdown, in its place.\7\ The 
November 22, 2016, SIP submittal as supplemented by the June 9, 2017 
SIP submittal requested the removal of the SIP-called provision LAC 
33:III.2201.C(8) and approval of LAC 33:III.2201.K into the SIP in its 
place.\8\ As detailed in the Louisiana's June 9, 2017 SIP submittal, 
LAC 33:III.2201.K would require affected NOX 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 would 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 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.
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    \7\ 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.''
    \8\ The June 9, 2017 submittal states that it supplements LDEQ's 
November 22, 2016 submittal, as it relates to the proposed revisions 
which are the subject of this proposed rulemaking.

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[[Page 38450]]

A. EPA Recommendations for Development of Alternative Emission 
Limitations Applicable During Startup and Shutdown

    EPA appreciates the State's efforts in removing the NOX 
exemption provision and replacing the exemption provision with an 
Alternative Emission Limitations (AELs) approach. The EPA interprets 
the CAA to allow SIPs to include AELs for modes of operation during 
which an otherwise applicable emission limitation cannot be met, such 
as may be the case during startup or shutdown. The AEL, 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.\9\
---------------------------------------------------------------------------

    \9\ June 12, 2015 (80 FR 33913).
---------------------------------------------------------------------------

    For the AELs to be approvable (i.e., meet CAA requirements), 
alternative requirements applicable to the source during startup and 
shutdown should be narrowly tailored and take into account 
considerations such as the technological limitations of the specific 
source category and the control technology that is feasible during 
startup and shutdown.\10\ As articulated in the 2015 SSM SIP Action, 
the EPA recommends giving consideration to the following seven specific 
criteria for developing AELs in SIP provisions that apply during 
startup and shutdown: \11\ (1) The revision is limited to specific, 
narrowly defined source categories using specific control strategies; 
(2) Use of the control strategy for this source category is technically 
infeasible during startup or shutdown periods; (3) The AEL requires 
that the frequency and duration of operation in startup or shutdown 
mode are minimized to the greatest extent practicable; (4) As part of 
its justification of the SIP revision, the state analyzes the potential 
worst-case emissions that could occur during startup and shutdown based 
on the applicable AEL; (5) The AEL requires that all possible steps are 
taken to minimize the impact of emissions during startup and shutdown 
on ambient air quality; (6) The AEL requires that, at all times, the 
facility is operated in a manner consistent with good practice for 
minimizing emissions and the source uses best efforts regarding 
planning, design, and operating procedures; and (7) The AEL requires 
that the owner or operator's actions during startup and shutdown 
periods are documented by properly signed, contemporaneous operating 
logs or other relevant evidence. The EPA will use these criteria when 
evaluating whether a particular AEL meets CAA requirements for SIP 
provisions. Any SIP revision establishing an AEL that applies during 
startup and shutdown would be subject to the same procedural and 
substantive review requirements as any other SIP submission.
---------------------------------------------------------------------------

    \10\ Id.
    \11\ June 12, 2015 (80 FR 33980).
---------------------------------------------------------------------------

    We also note that 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.\12\
---------------------------------------------------------------------------

    \12\ June 12, 2015 (80 FR 33980).
---------------------------------------------------------------------------

    The proposed revision to Chapter 22 of the Louisiana SIP has been 
reviewed to determine whether it addresses and resolves the deficiency 
with the Louisiana SIP as identified in the EPA's June 12, 2015 SSM SIP 
Action and whether the proposed revision meets all CAA requirements for 
SIPs.

B. Evaluation

    After reviewing the information in Louisiana's SIP revision 
submittals,\13\ the following deficiencies have been identified:
---------------------------------------------------------------------------

    \13\ Louisiana's SIP submittals include copies of EPA's August 
3, 2016, and December 16, 2016, comment letters on LDEQ's proposed 
rulemaking associated with the development of revisions to LAC 
33:III.2201, as well as LDEQ's responses to the comments raised in 
those letters.
---------------------------------------------------------------------------

    (a) The proposed LAC 33:III.2201.K(3)(a) would apply to all 
affected point sources of NOX (electric power generating 
system boilers, industrial boilers, process heaters/furnaces, 
stationary gas turbines, and stationary internal combustion engines) in 
the Baton Rouge ozone nonattainment area and its ROI. Although the 
Baton Rouge area was redesignated in 2017 from nonattainment to 
attainment with respect to the 2008 8-hour ozone National Ambient Air 
Quality Standard (NAAQS),\14\ the Chapter 22 provisions in the 
Louisiana SIP are necessary and applicable to affected sources in the 
Parishes of Ascension, East Baton Rouge, Iberville, Livingston, and 
West Baton Rouge and its ROI.\15\ The proposed LAC 33:III.2201.K(3)(a) 
is considered a ``general duty'' provision. We support the inclusion of 
general duty provisions as separate additional requirements in SIPs, 
for example, to ensure that owners and operators act consistent with 
reasonable standards of care; however, a general duty-type provision 
does not ensure the AELs meet the applicable stringency requirements 
for SIPs (e.g., Reasonably Available Control Technology (RACT)).\16\ As 
discussed in section II.A of this document, criterion 1 of the 7 
specific criteria for developing AELs, the EPA recommends that AELs be 
limited to specific and narrowly defined source categories using 
specific control strategies.\17\ The categories of sources (electric 
power generating system boilers, industrial boilers, process heaters/
furnaces, stationary gas turbines, and stationary internal combustion 
engines) to which LAC 33:III.2201.K(3)(a) would apply are broad and the 
administrative record accompanying Louisiana's SIP submittals does not 
contain sufficient information demonstrating that the proposed AELs 
meet the CAA applicable stringency requirements for all covered 
sources.\18\ For example, the general duty that an owner or operator 
shall operate a source consistent with ``safety and good air pollution 
control practices for minimizing emissions'' is not sufficient to 
identify what these practices might be across the wide range of source 
categories to which this standard applies, nor is it clear how such a 
general duty would be practically enforceable and serve as a limitation 
on emissions that satisfies, for example, the

[[Page 38451]]

RACT requirement during startup or shutdown.
---------------------------------------------------------------------------

    \14\ December 27, 2016 (81 FR 95051) Approval and Promulgation 
of Implementation Plans and Designation of Areas for Air Quality 
Planning Purposes; Louisiana; Redesignation of Baton Rouge 2008 8-
Hour Ozone Nonattainment Area to Attainment, Effective March 21, 
2017.
    \15\ See https://www3.epa.gov/airquality/greenbook/hmcty.html 
(URL dated 10 April 2023).
    \16\ See comment 4, EPA's December 16, 2016 comment letter to 
Deidra Johnson of LDEQ.
    \17\ See comment 3, EPA's December 16, 2016 comment letter to 
Deidra Johnson of LDEQ.
    \18\ While LAC 33:III.2201.K(3)(b) imposes fuel type and a 
timing requirement during startup of coal-fired and fuel oil-fired 
electric power generating system boilers and fuel oil-fired 
stationary gas turbines, LAC 33:III.2201.K(3)(c) requires timely 
engagement of control devices such as SCR or SNCR, and LAC 
33:III.2201.K(3)(d) limits the startup time of stationary internal 
combustion engines, we note that for certain affected point sources 
not equipped with a control device (i.e., industrial boilers, 
process heaters/furnaces, and stationary gas turbines), the only 
requirement that applies would be the general duty provision in LAC 
33:III.2201.K(3)(a) and the recordkeeping requirements of LAC 
33:III.2201.K(3)(e), (f) and (g). Although LDEQ in its response to 
EPA comment #3 states that EPA has categorized MACT recordkeeping 
requirements as work practice standards, the MACT standards 
referenced by LDEQ also include specific emission limitations.
---------------------------------------------------------------------------

    (b) The proposed LAC 33:III.2201.K fails to require a source take 
all possible steps to minimize the impact of emissions during startup 
and shutdown on ambient air quality, as recommended in criterion 5 of 
7, discussed in section II.A of this document, for developing AELs in 
SIPs. As EPA has previously stated, SIPs are ambient-based standards 
and any emissions above the allowable limit may cause or contribute to 
violations of the NAAQS.\19\ We note that including a statement to the 
effect requiring the owner or operator to take all possible steps so 
that NAAQS or Prevention of Significant Deterioration (PSD) increments 
are not exceeded as a result of emission events from these sources 
could cure this deficiency.
---------------------------------------------------------------------------

    \19\ EPA's 1982 Policy on Excess Emissions During Startup, 
Shutdown, Maintenance, and Malfunctions, September 28, 1982 Kathleen 
M. Bennett Memorandum.
---------------------------------------------------------------------------

    (c) The proposed LAC 33:III.2201.K(4)(b) states that ``[t]he owner 
or operator may elect to revise the method of compliance . . . of this 
section for one or more affected point sources by means of a permit 
modification.'' EPA has stated that a ``SIP needs to reflect the 
control obligations of sources, and any revision or modification of 
those obligations should not be occurring through a separate process, 
such as a permit process, which would not ensure that ``alternative'' 
compliance options do not weaken the SIP.'' See June 12, 2015 (80 FR 
33915). Additionally, ``any revisions to obligations in the SIP need to 
occur through the SIP revision process . . . .'' \20\ Mere reliance 
upon a permit-based approach when setting forth an AEL without going 
through a source-specific SIP revision (public notice and comment) 
process circumvents EPA's role in reviewing and approving SIP emission 
limitations to ensure that AELs are ``enforceable'' or ``permissible,'' 
as required by CAA section 110(a)(2)(A) or 110(a)(2)(C). Moreover, 
emission limits contained in an air permit that is not approved in the 
SIP and could be later modified (e.g., LAC 33:III.2201.K(4)(b))--
without requiring EPA approval as a substitute measure--is not 
considered permanent.\21\ The EPA notes that SIP-enforceable methods of 
compliance with emission limitations that are specified only in a 
permit are not part of the SIP unless and until they are submitted to 
EPA and federally approved into the SIP. The fact that EPA has approved 
the 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.\22\ 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.\23\ In response to a potential 
argument that EPA and the public would have an opportunity to comment 
on the permit, we note that this opportunity for public comment is not 
a substitute for a source-specific SIP revision, which is needed to 
alter otherwise applicable SIP emission limitations.\24\ A fully 
approvable SIP emission limitation, including periods of startup and 
shutdown, must meet all substantive requirements of the CAA applicable 
to such a SIP provision. The proposed AELs in LAC 33:III.2201.K 
applicable during startup and shutdown periods should be clear so as 
not to conflict or undermine statutory obligations that SIP emission 
limitations meet all stringency requirements.\25\ The language in LAC 
33:III.2201.K is not sufficiently specific to ensure that the proposed 
AELs do not undermine other more stringent SIP emission limitation 
requirements applicable to some affected sources subject to LAC 
33:III.2201.
---------------------------------------------------------------------------

    \20\ June 12, 2015 (80 FR 33916).
    \21\ Disapproval of Missouri Air Plan; Control of Sulfur Dioxide 
Emissions, EPA Docket ID No. EPA-R07-OAR-2022-0531 available at 
www.regulations.gov, July 8, 2022 (87 FR 40760).
    \22\ June 12, 2015 (80 FR 33915-33916, and 33922).
    \23\ November 28, 2022 (87 FR 72944); see also 80 FR 33922 (The 
EPA is not authorized to approve a program that in essence allows a 
SIP revision without compliance with the applicable statutory 
requirements in sections 110(k)(3), 110(l) and 193 and any other 
provision that is germane to the particular SIP emission limitation 
at issue).
    \24\ November 28, 2022 (87 FR 72944).
    \25\ June 12, 2015 (80 FR 33893).
---------------------------------------------------------------------------

    (d) Similarly, the proposed LAC 33:III.2201.K(3)(c) reads, ``[t]he 
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 (emphasis added).'' In its 2016 comment 
letter, EPA stated that ``it would be necessary to submit such 
applicable permits to the EPA as source-specific SIP revisions to 
ensure attainment/maintenance of NAAQS, preservation of PSD increments, 
and SIP enforcement.'' \26\ The proposed revisions set forth in the 
November 22, 2016, and June 9, 2017 submittals do not provide for a 
mechanism to submit such applicable permits to the EPA for review and 
approval into the Louisiana SIP as source-specific SIP revisions. As 
previously noted above, the state's air permitting process, on its own, 
cannot be used to create alternatives to or impose conditions for SIP 
emission limitations for sources during startup and shutdown in lieu of 
a SIP revision. The state may use the permit development process as a 
means to evaluate and establish AELs for periods of startup and 
shutdown for a specific source, but such permit conditions would not 
negate or replace applicable SIP limits without being approved as a 
source-specific SIP revision.\27\
---------------------------------------------------------------------------

    \26\ See comment 6, EPA's December 16, 2016 comment letter to 
Deidra Johnson of LDEQ.
    \27\ Disapproval of Georgia Rules for Air Quality Control 
Pertaining to Startup, Shutdown and Malfunction, EPA Docket ID No. 
EPA-R4-OAR-2022-0294 available at www.regulations.gov, November 28, 
2022 (87 FR 72944).
---------------------------------------------------------------------------

    (e) The EPA recommendation in criterion 2 of 7 in section II.A for 
the establishment of AELs requires justification that use of the 
control strategy for the affected source category is technically 
infeasible during startup or shutdown periods. EPA does not recommend 
establishing AELs for sources that are capable of meeting their 
existing emission limitations at all times. It is unclear how the 
proposed revision in LAC 33:III.2201.K takes this technical 
infeasibility justification fully into account within the SIP process 
prior to its implementation by the owner or operator. Louisiana does 
explain that it is well understood that sources utilizing SNCR and SCR 
for control must reach the necessary temperature before being able to 
operate properly. But the Louisiana rules also anticipate some sources 
may desire to comply with the rule limits at all times including 
startup and shutdown. Many sources likely utilize control techniques 
that can operate through a wide range of conditions including startup 
and shutdown. Because Louisiana did not submit information on the 
particular sources utilizing AELs, EPA cannot evaluate whether all of 
these sources are meeting any underlying requirement during startup and 
shutdown. For example, where an existing limitation represents RACT and 
the state is submitting an AEL that allows emissions in excess of that 
limit during startup, the SIP submission should explain why the RACT 
limit cannot be

[[Page 38452]]

met during startup, as part of the justification for a higher RACT 
limit during startup. 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\ Furthermore, as provided in 
LAC 33:III.2201.K(2) affected point sources capable of meeting the 
original emission limitations and standards (set forth in LAC 
33:III.2201.D) at all times, even during periods of startup and 
shutdown, have the option of complying with AELs such as work practice 
standards (LAC 33:III.2201.K(3)) in lieu of meeting those original 
limitations. Accordingly, EPA views this option as inconsistent with 
EPA's 2015 SSM SIP Action.
---------------------------------------------------------------------------

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

    (f) The EPA recommendation in criterion 4 of 7 in section II.A for 
the establishment of AELs states that the air agency, as a part of its 
justification of the SIP revision, should analyze the potential worst-
case emissions that could occur during startup and shutdown based on 
the applicable AEL. The June 9, 2017 SIP submittal references 
Louisiana's November 22, 2016 SIP submittal wherein LDEQ remarks, 
``[P]resuming the newly-established work practice standards have no 
demonstrable impact on NOX emissions (an unnecessarily 
conservative assumption), LDEQ's historical emissions data represents 
the potential ``worst-case'' scenario that could be attributed to the 
alternative emission limitation.'' The submission goes on to explain 
that despite the exemption, air quality in the Baton Rouge area has 
improved. It is unclear, however, why LDEQ assumes that the worst-case 
emissions under the AELs could never be higher than the historical 
actual emissions. We also note that 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 all affected 
NOX point sources emissions during startup and shutdown. 
Establishing AELs absent of analyzing worst-case scenarios that could 
occur during startup and shutdown, similar to exemptions, shields 
emissions, leads to aggravated air quality and precludes enforcement. 
As submitted, it is unclear how LAC 33:III.2201.K takes this factor 
into consideration. Should there be an assertion that the potential 
worst-case emissions analysis will be taken into account during 
development of applicable specific permit conditions for each affected 
facility, we note that LAC 33:III.2201.K does not provide for submittal 
of applicable permits or their relevant sections into the SIP and, as 
previously discussed, a permitting process on its own cannot be used to 
create alternatives to SIP emission limitations for sources during 
startup and shutdown in lieu of a SIP revision. With respect to 
proposed LAC 33:III.2201.K(4)(b), we also note that even if Louisiana 
intended to submit these AELs as SIP revisions, the potential resource 
burden on LDEQ and EPA--in evaluating each single source AEL for both 
consideration of the criteria for an AEL and compliance with SIP 
requirements--could be significant.\29\
---------------------------------------------------------------------------

    \29\ See December 22, 2022 (87 FR 78619).
---------------------------------------------------------------------------

    (g) Finally, Louisiana's proposed revision to add LAC 33:III.2201.K 
to the SIP creates a non-SIP mechanism for amending the SIP by creating 
alternatives to it. It also creates the potential for confusion because 
all the requirements of the associated AEL would not be contained in 
the SIP together with the SIP limits it amends, thereby allowing for 
the possibility of non-SIP AELs provisions that conflict with the SIP 
limits. Moreover, it does so without opportunity for EPA review or 
disapproval where the AEL fails to meet CAA requirements. Any AEL which 
revises a limit that is EPA-approved as part of the Louisiana SIP must 
be submitted as a SIP revision in accordance with CAA section 110. 
EPA's 2015 SSM SIP Action states that AELs which modify SIP-approved 
emissions limitations, whether adopted on a case-by-case basis or as an 
AEL generally applicable to a narrow category of similar sources, must 
be presented to EPA for approval as a SIP revision and go through the 
SIP revision process. The AELs at issue here would be changes to a 
state emissions regulation adopted as part of the Louisiana SIP to 
implement the CAA, and as such must be approved by EPA as a SIP 
revision. States cannot unilaterally make changes to SIP-approved 
emission limits and compliance obligations, merely through a permit 
modification, without the requirements of CAA section 110 being met, 
including a public comment process and EPA approval. The fact that an 
AEL must be incorporated into a permit that is part of the EPA-approved 
Louisiana SIP does not do away with this requirement that the AEL be 
submitted as a SIP revision and go through the SIP revision process.
    In conclusion, we are proposing to make a determination that 
Louisiana's November 22, 2016 and June 9, 2017 SIP revision submittals 
that would repeal LAC 33:III.2201.C(8) and replace it with LAC 
33:III.2201.K titled Startup and Shutdown, do not correct the 
deficiency and substantial inadequacy with LAC 33:III.2201.C(8), as 
identified in the June 12, 2015 SSM SIP Action.

III. Proposed Action

    The EPA is proposing to disapprove a revision to the Louisiana SIP 
submitted by LDEQ on November 22, 2016, as 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 proposing to disapprove the revision to 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.\30\ The EPA's review 
indicates that this SIP revision would not correct the substantial 
inadequacy identified in the June 12, 2015 SIP call related to section 
LAC 33:III.2201.C(8). EPA is not reopening the 2015 SSM SIP Action and 
is only taking comment on whether the proposed SIP revision is 
consistent with CAA requirements and whether it addresses the 
substantial inadequacy identified in the 2015 SSM SIP Action for the 
Louisiana SIP section LAC 33:III.2201.C(8).
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    \30\ The removal of the exemption in LAC 33:III.2201.C(8) and 
the addition of LAC 33:III.2201.K is considered an inseparable 
action. The proposed disapproval of the addition of LAC 
33:III.2201.K to the SIP would make an approval of the removal of 
LAC 33:III.2201.C(8) from the SIP more stringent than Louisiana 
anticipated or intended. See Bethlehem Steel Corp. v. Gorsuch, 742 
F.2d 1028, 1036-37 (7th Cir. 1984).
---------------------------------------------------------------------------

    If the Agency finalizes this disapproval, CAA section 110(c)(1) 
would require EPA to promulgate a Federal Implementation Plan (FIP) 
within 24 months of the effective date of the 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 or the deficiencies identified in Section II.B of this document 
within such time. In addition, final disapproval would trigger 
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

[[Page 38453]]

months of the effective date of the final disapproval action.\31\
---------------------------------------------------------------------------

    \31\ The offset sanction in CAA section 179(b)(2) would be 
triggered 18 months after the effective date of a final disapproval, 
and the highway funding sanction in CAA section 179(b)(1) would be 
triggered 24 months after the effective date of a final disapproval. 
Although the sanctions clock would begin to run from the effective 
date of a final disapproval, mandatory sanctions under CAA section 
179 generally apply only in designated nonattainment areas. This 
includes areas designated as nonattainment after the effective date 
of a final disapproval. As discussed in the 2015 SSM SIP Action, EPA 
will evaluate the geographic scope of potential sanctions at the 
time it makes a determination that the air agency has failed to make 
a complete SIP submission in response to the 2015 SIP call, or at 
the time it disapproves such a SIP submission. The appropriate 
geographic scope for sanctions may vary depending upon the SIP 
provisions at issue. See June 12, 2015 (80 FR 33930) EPA Docket ID 
No. EPA-HQ-OAR-2012-0322 available at www.regulations.gov; November 
28, 2022 (87 FR 72946) Disapproval of Air Quality Implementation 
Plans; Georgia--Revisions to Rules for Air Quality Control 
Pertaining to Startup, Shutdown and Malfunction EPA Docket ID No. 
EPA-R4-OAR-2022-0294 available at www.regulations.gov; and April 6, 
2023 (88 FR 20447-20448) Air Plan Partial Disapproval and Partial 
Approval; Tennessee--Revisions to Startup, Shutdown, and Malfunction 
Rules EPA Docket ID No. EPA-R4-OAR-2022-0783 available at 
www.regulations.gov.
---------------------------------------------------------------------------

IV. Environmental Justice Considerations

    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.
    EPA first reviewed demographic data, which provides an assessment 
of individual demographic groups, of the populations living within 
Louisiana.\32\ The EPA then compared the data to the national average 
for each of the demographic groups. The results of the demographic 
analysis indicate that, for populations within Louisiana, the percent 
people of color (persons who reported their race as a category other 
than White alone (not Hispanic or Latino)) is similar to the national 
average (57.9 percent of Louisiana's population compared to 59.3 
percent nationally). The percent of persons who reported their race as 
Black or African American alone is significantly higher than the 
national average (33.0 percent versus 13.6 percent). The percentage of 
Louisiana's population living in poverty is 19.6 percent, which is 
higher than the national average of 11.6 percent. The percent of people 
over 25 with a high school diploma in Louisiana is similar to the 
national average (86.2 percent versus 88.9 percent), while the percent 
with a Bachelor's degree or higher is lower than the national average 
(25.5 percent versus 33.7 percent).
---------------------------------------------------------------------------

    \32\ See the United States Census Bureau's QuickFacts on 
Louisiana at https://www.census.gov/quickfacts/fact/table/LA,US/PST045222.
---------------------------------------------------------------------------

    EPA conducted screening analyses using EJSCREEN, an environmental 
justice mapping and screening tool that provides EPA with a nationally 
consistent dataset and approach for combining various environmental and 
demographic indicators.\33\ The EJSCREEN tool presents these indicators 
at a Census Block Group (CBG) level or a larger users specified area 
that covers multiple CBGs.\34\ EJSCREEN is not a tool for performing in 
depth risk analysis, but is instead a screening tool that provides an 
initial representation of indicators related to environmental justice 
and is subject to uncertainty in some underlying data (e.g., some 
environmental indicators are based on monitoring data which are not 
uniformly available; others are based on self-reported data).\35\ 
EJSCREEN environmental indicators help screen for locations where 
residents may experience a higher overall pollution burden than would 
be expected for a block group with the same total population in the 
U.S. EJSCREEN also provides information on demographic indicators, 
including percent low-income, communities of color, level of income, 
unemployment rate, linguistic isolation, less than high school 
education, population below age 5, population over age 64, and low life 
expectancy compared to the U.S. as a whole.\36\ The EPA prepared 
EJSCREEN reports, including demographic indicators, covering each of 
these 9 affected parishes (Ascension, East Baton Rouge, East Feliciana, 
Iberville, Livingston, Pointe Coupee, St. Helena, West Baton Rouge, and 
West Feliciana). See Tables 1 and 2 for a summary of demographic 
indicator results from the EPA's screening-level analysis for these 9 
affected parishes. The detailed EJSCREEN reports are provided in the 
docket for this rulemaking.
---------------------------------------------------------------------------

    \33\ See The EJSCREEN tool available at https://www.epa.gov/ejscreen.
    \34\ See https://www.census.gov/programssurveys/geography/about/glossary.html.
    \35\ In addition, EJSCREEN relies on the five-year block group 
estimates from the U.S. Census American Community Survey. The 
advantage of using five-year over single-year estimates is increased 
statistical reliability of the data (i.e., lower sampling error), 
particularly for small geographic areas and population groups. For 
more information, see https://www.census.gov/content/dam/Census/library/publications/2020/acs/acs_general_handbook_2020.pdf.
    \36\ For additional information on environmental indicators in 
EJSCREEN, see ``EJSCREEN Environmental Justice Mapping and Screening 
Tool: EJSCREEN Technical Documentation,'' Chapters 2, 3, and 
Appendix C (September 2019) at https://www.epa.gov/sites/default/files/2021-04/documents/ejscreen_technical_document.pdf.

              Table 1--Demographic Indicators for Louisiana Parishes Ascension, East Baton Rouge, East Feliciana, Iberville, and Livingston
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                         Ascension         East Baton Rouge       East Feliciana           Iberville            Livingston          US
                                  ----------------------------------------------------------------------------------------------------------------------
      Demographic indicators                                                                                                                     Value (-
                                       Value (%ile)          Value (%ile)          Value (%ile)          Value (%ile)          Value (%ile)         )
--------------------------------------------------------------------------------------------------------------------------------------------------------
People of Color..................  32% (52nd %ile).....  56% (70th %ile).....  46% (59th %ile).....  52% (68th %ile).....  13% (29th %ile).....       40
Low Income.......................  21% (39th %ile).....  35% (61st %ile).....  31% (40th %ile).....  38% (66th %ile).....  27% (48th %ile).....       30
Unemployment Rate................  6% (65th %ile)......  7% (68th %ile)......  7% (63rd %ile)......  10% (81st %ile).....  5% (60th %ile)......        5
Limited English Speaking.........  1% (60th %ile)......  2% (63rd %ile)......  0% (75th %ile)......  1% (57th %ile)......  1% (58th %ile)......        5
Population with Less Than High     10% (58th %ile).....  10% (55th %ile).....  21% (71st %ile).....  20% (80th %ile).....  13% (65th %ile).....       12
 School Education.
Population below Age 5...........  7% (68th %ile)......  7% (64th %ile)......  5% (48th %ile)......  5% (54th %ile)......  7% (66th %ile)......        6
Population over Age 64...........  12% (35th %ile).....  14% (45th %ile).....  18% (65th %ile).....  16% (51st %ile).....  13% (41st %ile).....       16
Low Life Expectancy..............  17% (31st %ile).....  19% (50th %ile).....  22% (53rd %ile).....  23% (83rd %ile).....  20% (52nd %ile).....      20
--------------------------------------------------------------------------------------------------------------------------------------------------------
Percentiles (%ile) are within the US, where indicated.


[[Page 38454]]


  Table 2--Demographic Indicators for Louisiana Parishes Pointe Coupee, St. Helena, West Baton Rouge, and West
                                                    Feliciana
----------------------------------------------------------------------------------------------------------------
                                 Pointe Coupee      St. Helena     West Baton Rouge   West Feliciana       US
    Demographic indicators    ----------------------------------------------------------------------------------
                                 Value (%ile)      Value (%ile)      Value (%ile)      Value (%ile)      Value
----------------------------------------------------------------------------------------------------------------
People of Color..............  40% (59th %ile).  56% (70th %ile).  45% (63rd %ile).  48% (65th %ile).         40
Low Income...................  42% (71st %ile).  44% (74th %ile).  32% (57th %ile).  29% (53rd %ile).         30
Unemployment Rate............  5% (62nd %ile)..  17% (94th %ile).  8% (75th %ile)..  8% (76th %ile)..          5
Limited English Speaking.....  1% (60th %ile)..  1% (58th %ile)..  0% (0th %ile)...  1% (57th %ile)..          5
Population with Less Than      19% (78th %ile).  21% (82nd %ile).  13% (66th %ile).  20% (80th %ile).         12
 High School Education.
Population below Age 5.......  6% (59th %ile)..  6% (55th %ile)..  7% (66th %ile)..  4% (41st %ile)..          6
Population over Age 64.......  21% (70th %ile).  19% (66th %ile).  14% (43rd %ile).  15% (50th %ile).         16
Low Life Expectancy..........  21% (63rd %ile).  24% (87th %ile).  21% (67th %ile).  15% (11th %ile).        20
----------------------------------------------------------------------------------------------------------------
Percentiles (%ile) are within the US, where indicated.

    Communities in close proximity to and/or downwind of industrial 
sources may be subject to disproportionate environmental impacts of 
excess emissions. Short- and/or long-term exposure to air pollution has 
been associated with a wide range of human health effects including 
increased respiratory symptoms, hospitalization for heart or lung 
diseases, and even premature death.\37\ Excess emissions during 
startups, shutdowns, and malfunctions exceed applicable emission 
limitations and can be considerably higher than emissions under normal 
steady-state operations. As to all population groups within the 
previously designated Baton Rouge ozone nonattainment area and its ROI, 
we believe that this proposed action will pave the way to future 
environmental benefits and reduce adverse impacts.
---------------------------------------------------------------------------

    \37\ https://www.epa.gov/air-quality-management-process/managing-air-quality-human-health-environmental-and-economic#what 
(URL dated 01/30/2023).
---------------------------------------------------------------------------

    As discussed earlier, this rulemaking, if finalized as proposed, 
will lead to future actions to remove an impermissible SIP provision 
which currently provides affected sources emitting NOX in 
excess of otherwise allowable amounts with an opportunity to exempt 
violations occurring during SSM events. The removal of LAC 
33:III.2201.C(8) from the Louisiana SIP is necessary to preserve the 
enforcement structure of the CAA, to preserve the jurisdiction of 
courts to adjudicate questions of liability and remedies in judicial 
enforcement actions and to preserve the potential for enforcement by 
the EPA and other parties under the citizen suit provision as an 
effective deterrent to violations. If finalized as proposed, this 
action will lead to additional rulemaking actions intended to ensure 
that all communities and populations, including overburdened 
communities, receive the full human health and environmental protection 
provided by the CAA. We therefore propose to determine that this 
rulemaking action, if finalized as proposed, will not have 
disproportionately high or adverse human health or environmental 
effects on communities with environmental justice concerns.

V. Statutory and Executive Order Reviews

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

    The Proposed action is not a significant regulatory action subject 
to review by the Office of Management and Budget under Executive Orders 
12866 (58 FR 51735, October 4, 1993), and 13563 (76 FR 3821, January 
21, 2011), and 14094 (88 FR 21879, April 11, 2023); and was therefore 
not submitted to the Office of Management and Budget for review.

B. Paperwork Reduction Act (PRA)

    The proposed action does not impose an information collection 
burden under the PRA because it does not contain any information 
collection activities.

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 (5 
U.S.C. 601 et seq.). This action merely proposes to disapprove a SIP 
submission as not meeting the CAA.

D. Unfunded Mandates Reform Act (UMRA)

    The proposed 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 proposed action imposes no 
enforceable duty on any State, local, or tribal governments or the 
private sector.

E. Executive Order 13132: Federalism

    The proposed 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: Consultation and Coordination With Indian 
Tribal Governments

    The proposed action will not apply on any Indian reservation land 
or in any other area where EPA or an Indian tribe has demonstrated that 
a tribe has jurisdiction. In those areas of Indian country, the rule 
does not have tribal implications and will not impose substantial 
direct costs on tribal governments or preempt tribal law as specified 
by Executive Order 13175 (65 FR 67249, November 9, 2000).

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

    EPA interprets Executive Order 13045 as applying only to those 
regulatory actions that concern environmental health or safety risks 
that EPA has reason to believe may disproportionately affect children, 
per the definitions of ``covered regulatory action'' in section 2-202 
of the Executive Order. This proposed action is not subject to 
Executive Order 13045 because it merely proposes to disapprove a SIP 
submission from Louisiana as not meeting CAA requirements.

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

    The proposed action is not subject to Executive Order 13211, 
because it is not

[[Page 38455]]

a significant regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act

    This proposed rulemaking does not involve technical standards.

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, as is 
described above in the section titled, ``Environmental Justice 
Considerations.'' 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 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 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 proposed action simply proposes to disapprove 
a SIP submission as not meeting CAA requirements for SIPs.

List of Subjects in 40 CFR Part 52

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

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

    Dated: June 7, 2023.
Earthea Nance,
Regional Administrator, Region 6.
[FR Doc. 2023-12615 Filed 6-12-23; 8:45 am]
BILLING CODE 6560-50-P
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