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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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