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On December 7, 2023, the Environmental Protection Agency (EPA) disapproved the state implementation plan (SIP) revisions for the Baton Rouge ozone nonattainment area that Louisiana set forth in response to EPA’s 2015 SIP Call rule. This 2015 SIP Call rule focused on the treatment of excess emissions during periods of startup, shutdown, or malfunction (SSM).

To comply with the 2015 SIP Call rule, Louisiana had proposed revising its SIP by removing LAC 33:III.2201.C.8, which described an SSM period exemption, and adding a new section, LAC 33:III.2201.K Startup and Shutdown, in its place. LAC 33:III.2201.K would require affected Nitrogen Oxides (NOX) point sources to comply with either: “(1) the applicable emission limitations and standards at all times, including periods of startup and shutdown; or (2) the applicable emission limitations and standards at all times, except during periods of startup and shutdown covered by work practice standards permissible under the rule.”

In a June 2023 notice, EPA gave notice that Louisiana’s SIP revision did not correct inadequacies identified in the 2015 SIP Call rule. Thereafter, in its December 7, 2023, final decision, EPA disapproved the SIP because of Louisiana’s broad application of “work practice standards” to multiple source types. EPA reasoned that the work practice standards were replacements for automatic waivers during SSM periods. Under Louisiana’s proposed LAC 33:III.2201.K, EPA explained that owners and operators would not have to consistently choose compliance methods for each and every affected point source.

After noting that LAC 33:III.2201.K concerned several different types of NOX point sources, such as electric power generating system boilers, industrial boilers, process heaters and furnaces, stationary gas turbines, and stationary internal combustion engines in the Baton Rouge ozone nonattainment area, EPA explained that the “effect of such a broadly-applicable rule covering a diverse array of source categories is that the work practices set forth in LAC 33:2201.K.3 during periods of startup and shutdown cannot be sufficiently tied to particular, specific categories of affected sources to ensure the work practices serve to limit emissions from the particular category and are practically enforceable.” 88 Fed. Reg. 85112 (December 7, 2023). Essentially, EPA noted that Louisiana’s rules “may be read so as to create situations wherein startup and shutdown emissions are functionally exempt[.]” 88 Fed. Reg. 85112 (December 7, 2023).

This disapproval of Louisiana’s revised SIP based on the 2015 SIP Call rule may result in additional litigation surrounding the rule and this final decision. Ultimately, this final decision triggers an 18-month period whereby EPA will issue mandatory sanctions after such period unless Louisiana submits, and EPA approves, a SIP revision consistent with the CAA and the 2015 SIP Call rule.

In the meantime, affected sources are subject to the current regulations set forth in LAC 33:III.2201.K. Affected sources should make certain they have a strong understanding of how they are controlling or can control emissions during startup and shutdown, through both emission controls or work practice standards. Affected sources may need to work with LDEQ to create source specific work practice standards that are tied to specific source categories to meet the EPA’s requirements.

Contact Liskow attorneys Colin North, Emily von Qualen, Lou Buatt, and Clare Bienvenu for any further questions regarding this topic.

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Photo of Colin North Colin North

Colin North is an associate in the firm’s Environmental Regulatory practice group. He received his Juris Doctor and Graduate Diploma in Comparative Law, magna cum laude, from the Paul M. Hebert Law Center, Louisiana State University in 2023. During law school, he…

Colin North is an associate in the firm’s Environmental Regulatory practice group. He received his Juris Doctor and Graduate Diploma in Comparative Law, magna cum laude, from the Paul M. Hebert Law Center, Louisiana State University in 2023. During law school, he was a member of the Board of Advocates and participated in the Robert Lee Tullis Moot Court Competition.

Photo of Emily von Qualen Emily von Qualen

Emily is an environmental litigator practicing in the firm’s New Orleans office.

Prior to joining the firm, Emily practiced complex business law in the litigation group at Skadden, Arps, Slate, Meagher & Flom LLP in Houston.  Immediately after law school, she clerked in…

Emily is an environmental litigator practicing in the firm’s New Orleans office.

Prior to joining the firm, Emily practiced complex business law in the litigation group at Skadden, Arps, Slate, Meagher & Flom LLP in Houston.  Immediately after law school, she clerked in the Western District of Louisiana with Judge Minaldi.

Emily received her Juris Doctor from Tulane University Law School in 2016, graduating first in her class.  During law school, she also served as a judicial extern to the Honorable James L. Dennis of the United States Court of Appeals for the Fifth Circuit and the Honorable James Brady of the United States District Court, Middle District of Louisiana.

Photo of Lou E. Buatt Lou E. Buatt

Lou Buatt is a highly-regarded business lawyer who helps energy, petrochemical, and industrial clients navigate and deal with complex environmental and energy laws and regulatory programs throughout the Gulf Coast. Clients benefit from Lou’s training and experience as a geologist along with his…

Lou Buatt is a highly-regarded business lawyer who helps energy, petrochemical, and industrial clients navigate and deal with complex environmental and energy laws and regulatory programs throughout the Gulf Coast. Clients benefit from Lou’s training and experience as a geologist along with his fifteen plus years of working inside government environmental and energy regulatory agencies.  A primary focus of Lou’s practice is devoted to representing and assisting major industrial clients with environmental and energy related issues associated with developing, acquiring and divesting chemical manufacturing facilities, refineries, and other high-profile energy related facilities.  He also represents and assists major industrial clients resolve complex environmental and energy related permitting and enforcement matters.

Photo of Clare M. Bienvenu Clare M. Bienvenu

Clare Bienvenu is an environmental regulatory and litigation lawyer who has practiced in both Louisiana and California, working with clients across the United States. Clare counsels clients regarding complex environmental regulatory, enforcement, and permitting issues spanning the range of federal and state environmental…

Clare Bienvenu is an environmental regulatory and litigation lawyer who has practiced in both Louisiana and California, working with clients across the United States. Clare counsels clients regarding complex environmental regulatory, enforcement, and permitting issues spanning the range of federal and state environmental laws. Clare additionally facilitates the permitting and regulatory aspects of developing new facilities on behalf of energy, petrochemical, and industrial clients. Her substantive environmental experience includes air permitting, hazardous waste regulation, land remediation, land use regulation, coastal regulation, carbon sequestration projects, and renewable energy projects.

Clare has played a key role in various administrative matters, proceedings, and enforcement actions. She has participated in consent decree negotiations and the termination of consent decrees with the Environmental Protection Agency and the Department of Justice, as well as settlement negotiations with the Louisiana Department of Environmental Quality and the California Air Resources Board. Clare has also represented clients in permitting matters involving the U.S. Army Corps of Engineers and the Louisiana Department of Natural Resources, Office of Coastal Management. She also advises on environmental justice considerations in the context of agency permitting.