[Federal Register Volume 88, Number 113 (Tuesday, June 13, 2023)]
[Proposed Rules]
[Pages 38448-38455]
[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,<PHONE_NUMBER>, [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

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.
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    \2\ October 9, 2020, Memorandum ``Inclusion of Provisions
Governing Periods of Startup, Shutdown, and Malfunctions in State
Implementation Plans,'' from Andrew R. Wheeler, Administrator.
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    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).
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    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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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\
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    \9\ June 12, 2015 (80 FR 33913).
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    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.
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    \10\ Id.
    \11\ June 12, 2015 (80 FR 33980).
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    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\
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    \12\ June 12, 2015 (80 FR 33980).
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    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:
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    \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.
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    (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

RACT requirement during startup or shutdown.
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    \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.
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    (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.
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    \19\ EPA's 1982 Policy on Excess Emissions During Startup,
Shutdown, Maintenance, and Malfunctions, September 28, 1982 Kathleen
M. Bennett Memorandum.
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    (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.
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    \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).
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    (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\
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    \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).
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    (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

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).
---------------------------------------------------------------------------

    \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).
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    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

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.

  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

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


[Federal Register Volume 87, Number 123 (Tuesday, June 28, 2022)]
[Rules and Regulations]
[Pages 38271-38273]
[FR Doc No: 2022-13583]

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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 71

[Docket No. FAA-2021-1082; Airspace Docket No. 21-ASO-16]
RIN 2120-AA66

Amendment and Removal of Air Traffic Service (ATS) Routes;
Eastern United States

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Final rule.

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SUMMARY: This action amends jet routes J-22, and J-48; and removing jet
routes J-39, J-118, J-145, and J-186 in the eastern United States. This
action supports the VHF Omnidirectional Range (VOR) Minimum Operational
Network (MON) program to improve the efficiency of the National
Airspace System (NAS) and reduce dependency on ground-based
navigational systems.

DATES: Effective date 0901 UTC, September 8, 2022. The Director of the
Federal Register approves this incorporation by reference action under
1 CFR part 51, subject to the annual revision of FAA Order JO 7400.11
and publication of conforming amendments.

ADDRESSES: FAA Order JO 7400.11F, Airspace Designations and Reporting
Points, and subsequent amendments can be viewed online at https://www.faa.gov/air_traffic/publications/. For further information, you can
contact the Rules and Regulations Group, Federal Aviation
Administration, 800 Independence Avenue SW, Washington, DC 20591;
telephone:<PHONE_NUMBER>.

FOR FURTHER INFORMATION CONTACT: Paul Gallant, Rules and Regulations
Group, Office of Policy, Federal Aviation Administration, 800
Independence Avenue SW, Washington, DC 20591; telephone: (202) 267-
8783.

SUPPLEMENTARY INFORMATION:

Authority for This Rulemaking

    The FAA's authority to issue rules regarding aviation safety is
found in Title 49 of the United States Code. Subtitle I, Section 106
describes the authority of the FAA Administrator. Subtitle VII,
Aviation Programs,

describes in more detail the scope of the agency's authority. This
rulemaking is promulgated under the authority described in Subtitle
VII, Part A, Subpart I, Section 40103. Under that section, the FAA is
charged with prescribing regulations to assign the use of the airspace
necessary to ensure the safety of aircraft and the efficient use of
airspace. This regulation is within the scope of that authority as it
would modify the route structure as necessary to preserve the safe and
efficient flow of air traffic within the NAS.

History

    The FAA published a notice of proposed rulemaking for Docket No.
FAA-2021-1082 in the Federal Register (86 FR 70778; December 13, 2021),
amending three jet routes and removing four jet routes in the eastern
United States. Interested parties were invited to participate in this
rulemaking effort by submitting written comments on the proposal. No
comments were received.
    Jet routes are published in paragraph 2004 of FAA Order JO 7400.11F
dated August 10, 2021, and effective September 15, 2021, which is
incorporated by reference in 14 CFR 71.1. The jet routes listed in this
document would be subsequently amended in, or removed from,
respectively, FAA Order JO 7400.11.

Availability and Summary of Documents for Incorporation by Reference

    This document amends FAA Order JO 7400.11F, Airspace Designations
and Reporting Points, dated August 10, 2021, and effective September
15, 2021. FAA Order JO 7400.11F is publicly available as listed in the
ADDRESSES section of this document. FAA Order JO 7400.11F lists Class
A, B, C, D, and E airspace areas, air traffic service routes, and
reporting points.

Difference From the NPRM

    In the NPRM, the FAA proposed to amend jet route J-46. Subsequent
to the publication of the NPRM, the FAA determined that additional
coordination was needed to finalize the design of J-46. Consequently,
J-46 is removed from this rule and will remain as currently shown on
the IFR En Route chart. Any future modification of J-46 will be
addressed in a separate rulemaking action. Routes J-22, J-48, J-39, J-
118, J-145, and J-186 will be amended or removed by this rule as
proposed in the NPRM.

The Rule

    This action amends 14 CFR part 71 by amending jet routes J-22, and
J-48; and removing jet routes J-39, J-118, J-145, and J-186 in the
eastern United States. This action supports the VOR MON program by
amending or removing certain jet route segments due to the planned
decommissioning of ground-based navigation aids. Additionally, the jet
route changes reduce aeronautical chart clutter by removing unneeded
route segments.
    The route changes are as follows:
    J-22: J-22 currently extends from Nuevo Laredo, Mexico, to
Montebello, VA. This action removes the route segments from Vulcan, AL,
to Montebello, VA. As amended, the J-22 extends from Nuevo Laredo,
Mexico to Meridian, MS. The portion within Mexico is excluded.
    J-39: J-39 currently extends from Montgomery, AL, to Rosewood, OH.
The FAA is removing the entire route.
    J-48: J-48 currently extends from the intersection of the Solberg,
NJ, 264[deg] and the Pottstown, PA, 050[deg] radials, to Foothills, SC.
This action removes the segment between Montebello, VA, and Foothills,
SC. As amended, J-48 extends from the intersection of the above Solberg
and Pottstown radials to Montebello, VA.
    J-118: J-118 currently extends from Memphis, TN, to Spartanburg,
SC. The FAA is removing the entire route.
    J-145: J-145 currently extends from Foothills, SC, to Charleston,
WV. The FAA is removing the entire route.
    J-186: J-186 currently extends from Foothills, SC, to Appleton, OH.
The FAA is removing the entire route.
    FAA Order 7400.11, Airspace Designations and Reporting Points, is
published yearly and effective on September 15.

Regulatory Notices and Analyses

    The FAA has determined that this regulation only involves an
established body of technical regulations for which frequent and
routine amendments are necessary to keep them operationally current.
It, therefore: (1) is not a ``significant regulatory action'' under
Executive Order 12866; (2) is not a ``significant rule'' under
Department of Transportation (DOT) Regulatory Policies and Procedures
(44 FR 11034; February 26, 1979); and (3) does not warrant preparation
of a regulatory evaluation as the anticipated impact is so minimal.
Since this is a routine matter that only affects air traffic procedures
and air navigation, it is certified that this rule, when promulgated,
does not have a significant economic impact on a substantial number of
small entities under the criteria of the Regulatory Flexibility Act.

Environmental Review

    The FAA has determined that this action of amending jet routes J-
22, and J-48; and removing jet routes J-39, J-118, J-145, and J-186 in
the eastern United States qualifies for categorical exclusion under the
National Environmental Policy Act (42 U.S.C. 4321 et seq.) and its
implementing regulations at 40 CFR part 1500, and in accordance with
FAA Order 1050.1F, Environmental Impacts: Policies and Procedures,
paragraph 5-6.5a, which categorically excludes from further
environmental impact review rulemaking actions that designate or modify
classes of airspace areas, airways, routes, and reporting points (see
14 CFR part 71, Designation of Class A, B, C, D, and E Airspace Areas;
Air Traffic Service Routes; and Reporting Points); and paragraph 5-
6.5b, which categorically excludes from further environmental impact
review ``Actions regarding establishment of jet routes and Federal
airways (see 14 CFR 71.15, Designation of jet routes and VOR Federal
airways) . . .''. As such, this action is not expected to result in any
potentially significant environmental impacts. In accordance with FAA
Order 1050.1F, paragraph 5-2 regarding Extraordinary Circumstances, the
FAA has reviewed this action for factors and circumstances in which a
normally categorically excluded action may have a significant
environmental impact requiring further analysis. The FAA has determined
no extraordinary circumstances exist that warrant preparation of an
environmental assessment or environmental impact study.

List of Subjects in 14 CFR Part 71

    Airspace, Incorporation by reference, Navigation (air).

The Amendment

    In consideration of the foregoing, the Federal Aviation
Administration amends 14 CFR part 71 as follows:

PART 71--DESIGNATION OF CLASS A, B, C, D, AND E AIRSPACE AREAS; AIR
TRAFFIC SERVICE ROUTES; AND REPORTING POINTS

0
1. The authority citation for 14 CFR part 71 continues to read as
follows:

    Authority:  49 U.S.C. 106(f), 106(g); 40103, 40113, 40120; E.O.
10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.

Sec.  71.1   [Amended]

0
2. The incorporation by reference in 14 CFR 71.1 of FAA Order JO
7400.11F Airspace Designations and Reporting Points, dated August 10,
2021, and

effective September 15, 2021, is amended as follows:

Paragraph 2004 Jet Routes.

* * * * *

J-22 [Amended]

    From Nuevo Laredo, Mexico, via Laredo, TX; Corpus Christi, TX;
Palacios, TX; Lake Charles, LA; McComb, MS; to Meridian, MS. The
airspace within Mexico is excluded.
* * * * *

J-39 [Removed]

* * * * *

J-48 [Amended]

    From INT Solberg, NJ, 264[deg] and Pottstown, PA, 050[deg]
radials; Pottstown; Westminster, MD; Casanova, VA; to Montebello,
VA.
* * * * *

J-118 [Removed]

* * * * *

J-145 [Removed]

* * * * *

J-186 [Removed]

* * * * *

    Issued in Washington, DC.
Scott M. Rosenbloom,
Manager, Airspace Rules and Regulations.
[FR Doc. 2022-13583 Filed 6-27-22; 8:45 am]
BILLING CODE 4910-13-P


[Federal Register Volume 83, Number 159 (Thursday, August 16, 2018)]
[Rules and Regulations]
[Pages 40681-40683]
[FR Doc No: 2018-17698]

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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2018-0777]
RIN 1625-AA00

Safety Zone; Sandusky Bicentennial Fireworks, Sandusky Bay,
Sandusky, OH

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing a temporary safety zone on
Sandusky Bay, in the vicinity of Sandusky, OH. This zone is intended to
restrict vessels from portions of the Sandusky Bay for the Sandusky
Bicentennial Fireworks. Persons and vessels are prohibited from
entering into, transiting through, or anchoring within this safety zone
unless authorized by the Captain of the Port Detroit, or his designated
representative. This temporary safety zone is necessary to protect
spectators and vessels from the hazards associated with fireworks
displays.

DATES: This temporary final rule is effective from 8:10 p.m. through
9:35 p.m. on August 19th, 2018.

ADDRESSES: Documents mentioned in this preamble are part of docket
USCG-2018-0777. To view documents mentioned in this preamble as being
available in the docket, go to http://www.regulations.gov, type the
docket number in the ``SEARCH'' box and click ``SEARCH.'' Click on Open
Docket Folder on the line associated with this rulemaking.

FOR FURTHER INFORMATION CONTACT: If you have questions on this
temporary rule, call or email MST1 Ryan Erpelding, Waterways
Department, Marine Safety Unit Toledo, Coast Guard; telephone (419)
418-6037, email [email protected].

SUPPLEMENTARY INFORMATION:

I. Table of Abbreviations

CFR Code of Federal Regulations
DHS Department of Homeland Security
FR Federal Register
NPRM Notice of proposed rulemaking
Sec.  Section
U.S.C. United States Code

II. Background Information and Regulatory History

    The Coast Guard is issuing this temporary final rule without prior
notice and opportunity to comment pursuant to authority under section
4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This
provision authorizes an agency to issue a rule without prior notice and
opportunity to comment when the agency for good cause finds that those
procedures are ``impracticable, unnecessary, or contrary to the public
interest.'' Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good
cause exists for not publishing a notice of proposed rulemaking (NPRM)
with respect to this rule because doing so would be impracticable. The
Coast Guard did not receive the final details of this fireworks display
in time to publish an NPRM. As such, it is impracticable to publish an
NPRM because we lack sufficient time to provide a reasonable comment
period and then consider those comments before issuing the rule.
    Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause
exists for making this rule effective less than 30 days after
publication in the Federal Register. Waiting for a 30-day effective
period to run is impracticable and contrary to the public interest for
the reasons discussed in the preceding paragraph.

III. Legal Authority and Need for Rule

    The Coast Guard is issuing this rule under authority in 33 U.S.C.
1231. The Captain of the Port Detroit (COTP) has determined that
potential hazards associated with fireworks displays starting after
9:10 p.m. on August 19th, 2018 will be a safety concern for anyone
within a 420 foot radius of the launch site. The likely combination of
recreational vessels, darkness punctuated by bright flashes of light,
and fireworks debris falling into the water presents risks of
collisions, which could result in serious injuries or fatalities. This
rule is needed to protect personnel, vessels, and the marine
environment in the navigable waters within the safety zone during the
fireworks display.

IV. Discussion of the Rule

    This rule establishes a safety zone that will be enforced from 8:10
p.m. through 9:35 p.m. on August 19, 2018. The safety zone will
encompass all U.S. navigable waters of the Sandusky Bay within a 420
foot radius of the fireworks launch site located at position
41[deg]27'53.31'' N, 082[deg]42'15.85'' W with an alternate heavy wind
location at position 41[deg]27'55.24'' N, 082[deg]42'17.86'' W. All
geographic coordinates are North American Datum of 1983 (NAD 83).
    The duration of the zone is intended to protect personnel, vessels,
and the marine environment in these navigable waters during the
fireworks display. Entry into, transiting, or anchoring within the
safety zone is prohibited unless authorized by the Captain of the Port,
Sector Detroit or his designated representative. The Captain of the
Port, Sector Detroit or his designated representative may be contacted
via VHF Channel 16.

V. Regulatory Analyses

    We developed this rule after considering numerous statutes and
executive orders related to rulemaking. Below we summarize our analyses
based on a number of these statutes and Executive orders, and we
discuss First Amendment rights of protestors.

A. Regulatory Planning and Review

    Executive Orders 12866 and 13563 direct agencies to assess the
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits. Executive Order 13771 directs agencies to control
regulatory costs through a budgeting process. This rule has not been
designated a ``significant regulatory action,'' under Executive Order
12866. Accordingly, this rule has not been reviewed by the Office of
Management and Budget (OMB), and pursuant to OMB guidance it is exempt
from the requirements of Executive Order 13771
    This regulatory action determination is based on the size,
location, and duration of the safety zone. The majority of vessel
traffic will be able to safely transit around the safety zone, which
will impact only a portion of the Sandusky Bay in Sandusky, OH for a
period of 85 minutes. Under certain conditions, moreover, vessels may
still transit through the safety zone when permitted by the Captain of
the Port.

B. Impact on Small Entities

    The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as
amended, requires federal agencies to consider the potential impact of
regulations on small entities during rulemaking. The Coast Guard
certifies under 5 U.S.C. 605(b) that this rule will not have a
significant economic impact on a substantial number of small entities.
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have
considered the impact of this temporary rule on small entities. While
some owners or operators of vessels intending to transit the safety
zone may be small entities, for the reasons stated in section V.A
above, this rule will not have a significant economic impact on any
vessel owner or operator.
    Under section 213(a) of the Small Business Regulatory Enforcement
Fairness Act of 1996 (Pub. L. 104-121), we want to assist small
entities in understanding this rule. If the rule would affect your
small business, organization, or governmental jurisdiction and you have
questions concerning its provisions or options for compliance, please
contact the person listed in the FOR FURTHER INFORMATION CONTACT
section.
    Small businesses may send comments on the actions of Federal
employees who enforce, or otherwise determine compliance with, Federal
regulations to the Small Business and Agriculture Regulatory
Enforcement Ombudsman and the Regional Small Business Regulatory
Fairness Boards. The Ombudsman evaluates these actions annually and
rates each agency's responsiveness to small business. If you wish to
comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR
(1-888-734-3247). The Coast Guard will not retaliate against small
entities that question or complain about this rule or any policy or
action of the Coast Guard.

C. Collection of Information

    This rule will not call for a new collection of information under
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

D. Federalism

    A rule has implications for federalism under Executive Order 13132,
Federalism, if it has a substantial direct effect 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. We have analyzed this rule under that Order and have
determined that it is consistent with the fundamental federalism
principles and preemption requirements described in Executive Order
13132.
    Also, this rule does not have tribal implications under Executive
Order 13175, Consultation and Coordination with Indian Tribal
Governments, because it does not have a substantial direct effect on
one or more Indian tribes, on the relationship between the Federal
Government and Indian tribes, or on the distribution of power and
responsibilities between the Federal Government and Indian tribes. If
you believe this rule has implications for federalism or Indian tribes,
please contact the person listed in the FOR FURTHER INFORMATION CONTACT
section above.

E. Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538)
requires Federal agencies to assess the effects of their discretionary
regulatory actions. In particular, the Act addresses actions that may
result in the expenditure by a State, local, or tribal government, in
the aggregate, or by the private sector of $100,000,000 (adjusted for
inflation) or more in any one year. Though this rule will not result in
such an expenditure, we do discuss the effects of this rule elsewhere
in this preamble.

F. Environment

    We have analyzed this rule under Department of Homeland Security
Management Directive 023-01 and Commandant Instruction M16475.lD, which
guide the Coast Guard in complying with the National Environmental
Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that
this action is one of a category of actions that do not individually or
cumulatively have a significant effect on the human environment. This
rule involves a safety zone lasting 85 minutes that will prohibit entry
within a 420 foot radius from where a fireworks display will be
conducted. It is categorically excluded from further review under
paragraph L60(a) of Appendix A, Table 1 of DHS Instruction Manual 023-
01-001-01, Rev. 01. A Record of Environmental Consideration supporting
this determination is available in the docket where indicated under
ADDRESSES.

G. Protest Activities

    The Coast Guard respects the First Amendment rights of protesters.
Protesters are asked to contact the person listed in the FOR FURTHER
INFORMATION CONTACT section to coordinate protest activities so that
your message can be received without jeopardizing the safety or
security of people, places or vessels.

List of Subjects in 33 CFR Part 165

    Harbors, Marine safety, Navigation (water), Reporting and
recordkeeping requirements, Security measures, Waterways.

    For the reasons discussed in the preamble, the Coast Guard amends
33 CFR part 165 as follows:

PART 165--REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS

0
1. The authority citation for part 165 continues to read as follows:

    Authority:  33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05-1, 6.04-
1, 6.04-6, and 160.5; Department of Homeland Security Delegation No.
0170.1.

0
2. Add Sec.  165.T09-0777 to read as follows:

Sec.  165.T09-0777  Safety Zone; Sandusky Bicentennial Fireworks,
Sandusky Bay, Sandusky, OH.

    (a) Location. The following area is a temporary safety zone: All
U.S. navigable waters of the Sandusky Bay within a 420 foot radius of
the fireworks launch site located at position 41[deg]27'53.31'' N,
082[deg]42'15.85'' W with an alternate heavy wind location at
41[deg]27'55.24'' N, 82[deg]42'17.86'' W. All geographic coordinates
are North American Datum of 1983 (NAD 83).
    (b) Enforcement period. This regulation will be enforced from 8:10

p.m. through 9:35 p.m. on August 19, 2018. The Captain of the Port
Detroit, or a designated representative may suspend enforcement of the
safety zone at any time.
    (c) Regulations. (1) In accordance with the general regulations in
Sec.  165.23, entry into, transiting or anchoring within this safety
zone is prohibited unless authorized by the Captain of the Port
Detroit, or his designated representative.
    (2) This safety zone is closed to all vessel traffic, except as may
be permitted by the Captain of the Port Detroit or his designated
representative.
    (3) The ``designated representative'' of the Captain of the Port
Detroit is any Coast Guard commissioned, warrant, or petty officer who
has been designated by the Captain of the Port Detroit to act on his
behalf. The designated representative of the Captain of the Port
Detroit will be aboard either a Coast Guard or Coast Guard Auxiliary
vessel. The Captain of the Port Detroit or his designated
representative may be contacted via VHF Channel 16.
    (4) Vessel operators desiring to enter or operate within the safety
zone shall contact the Captain of the Port Detroit or his designated
representative to obtain permission to do so. The COTP or his on-scene
representative may be contacted via VHF Channel 16. Vessel operators
given permission to enter or operate in the safety zone must comply
with all directions given to them by the Captain of the Port Detroit or
his designated representative.

    Dated: August 10, 2018.
Jeffrey W. Novak,
Captain, U.S. Coast Guard, Captain of the Port Detroit.
[FR Doc. 2018-17698 Filed 8-15-18; 8:45 am]
 BILLING CODE 9110-04-P