1 

# Technical Support Document

EPA-R06-OAR-2012-0022

Revisions to the Louisiana Prevention of Significant Deterioration Program for the Regulation and Pe rmitting of Greenhouse Gases

Submitted December 21, 2011

Received January 5, 2012

April 20, 2016

No material in this submittal package was de signated as Confidential Business Information.

FOR FURTHER INFORMATION CONTACT: Adina Wiley United States Environmental Prot ection Agency Region 6, Air Permits Section (6PD-R), 1445 Ross Avenue, Suite 1200, Dallas, Texas 75202-2733, (214) 665-2115.2 

## Contents

I. Executive Summary

............................................................................................................................... 3

II. Background of State Submittal

............................................................................................................. 3

III. Technical Review of State Submittal

................................................................................................. 4

A. Part 51, Appendix V Evaluation of the December 21, 2011 SIP Submittal

....................................... 5

B. Current Federal Requirements for PSD Permitting of GHG Emissions

........................................... 10

C. Evaluation of the December 21, 2011 SIP Submittal

...................................................................... 12

1. EPA’s Analysis of Louisiana’s Automatic Rescission Provisions

.................................................. 12

2. EPA’s Analysis of Louisiana’s Revisions to the PSD Program

...................................................... 14

IV. Conclusion

............................................................................................................................... ........ 193 

## I. Executive Summary

This Technical Support Document (TSD) reviews one proposed revision to the Louisiana State Implementation Plan (SIP) concerning the re gulation and permitting of greenhouse gas (GHG)

emissions in the Louisiana Prevention of Si gnificant Deterioration (PSD) program under the Louisiana Administrative Code (LAC) at LAC 33: III.509, and a related re vision to the general requirements of the Louisiana SIP under LAC 33: III.501(C)(14). This review will determine if the revisions to the Louisiana PSD program submitted on December 21, 2011, are consistent with the requirements of the Clean Air Act (CAA) and EPA’s regulations, policy and guidance for major source permitting of GHG emissions.



## II. Background of State Submittal

Under the CAA, GHGs became subject to the PSD program in 2011 when EPA first regulated this pollutant under the CAA. See 75 FR 17004, April 2, 2010. To phase in these requirements for sources not previously required to obtain PSD permits, on June 3, 2010, the EPA promulgated a final rule entitled “Preventi on of Significant Deteri oration and Title V Greenhouse Gas Tailoring Rule” (refe rred to as the Tailoring Rule). See 75 FR 31514.

After the GHG Tailoring Rule, the LDEQ adop ted revisions to the LAC on April 20, 2011, to address the PSD permitting requirements for sour ces with GHG emissions. These revisions to the LA PSD program were submitted to the EPA on December 21, 2011, by Ms. Peggy Hatch, Secretary of the Louisiana Department of E nvironmental Quality. Specifically, the LDEQ

submitted new definitions for “carbon dioxide equivalent emissions”, “greenhouse gases (GHGs)” and revisions to the existing definitions of “major stationary source” and “significant” at LAC 33:III.509(B). The submittal also include d revisions to the general permitting program requirements at LAC 33:III.501(C)(14) to limit th e regulation of GHGs under Louisiana’s SIP to match any future changes in federal law or de cisions by the Supreme Co urt or U.S. Court of Appeals for the D.C. Circuit.

The December 21, 2011 submittal also included revi sions to the Louisiana title V program at LAC 33:III.502 which will be addressed by the EPA in a separate action at a later date.

Note that the LDEQ submitted a clarification letter on Febr uary 3, 2012, that specified the

revisions to LAC 33:III.509 were submitted as revi sions to the Louisiana PSD program and the

revisions to LAC 33:III.502 were submitted as re visions to the Louisiana title V program.4 

## III. Technical Review of State Submittal

The December 21, 2011 SIP submittal revising the Louisiana PSD program is evaluated for compliance with the relevant requirements of the Act and Title 40 of the Code of Federal Regulations (40 CFR) part 51 – Requirements for Preparation, Adop tion, and Submittal of Implementation Plans. These requirements include, but are not limited to the following:

1. §110(a)(2)(C) of the Act which provides: (C) include a program to provide for the regu lation of the modification and construction of any stationary source within the areas covered by the plan as necessary to assure that national ambient air quality standards are achieved, including a permit program as required in parts C and D; 2. §110(l) of the Act which provides: (l) Plan Revisions. – Each revision to an implementation plan submitted by a State under this chapter shall be adopted by such State after reasonable notice and public hearing.

The Administrator shall not a pprove a revision of a plan if the revision would interfere with any applicable requirement concerning attainment and reasonable further progress (as defined in section 171), or any othe r applicable requirement of the chapter. 3. 40 CFR 51.160 – Legally enforceable proced ures. The regulatory text of 40 CFR 51.160

is available on line at Electroni c Code of Federal Regulations: http://ecfr.gpoaccess .gov/cgi/t/text/textidx?c=ecfr&sid=07e214c52bbfc82a2781e3e 14c7616ca&rgn=div8&view=text&node=4

0:2.0.1.1.2.6.8.1&idno=40 4. 40 CFR 51.161 – Public availability of in formation. The regulatory text of 40 CFR

51.161 is available on line at Electron ic Code of Federal Regulations: http://ecfr.gpoaccess .gov/cgi/t/text/textidx?c=ecfr&sid=07e214c52bbfc82a2781e3e 14c7616ca&rgn=div8&view=text&node=4

0:2.0.1.1.2.6.8.2&idno=40 6. 40 CFR 51.166 – Prevention of significant deteri oration of air qualit y. The regulatory text

of 40 CFR 51.166 is available on line at El ectronic Code of Federal Regulations: http://ecfr.gpoaccess .gov/cgi/t/text/textidx?c=ecfr&sid=0dbbe52d31085f8454d6cbf1412e 1557&rgn=div8&view=text&node=4

0:2.0.1.1.2.6.8.7&idno=40.

Other applicable requirements of the Act, 40 CFR part 51, and applicable policy and guidance will be identified in the evaluation where appropriate.

Specifically, the December 21, 2011, submittal is fi rst reviewed for completeness as a SIP submittal under Part 51, Appendix V. This will be followed by a detailed analysis of the

submitted revised rules to determine consistenc y with EPA regulations, guidance and whether the submitted provisions interfere with any appli cable CAA provisions. This analysis produces a

written evaluation used to make a determina tion of whether or not the December 21, 2011 GHG PSD SIP revision is in agreement with th e CAA, other EPA policies and guidance.5 

### A. Part 51, Appendix V Evaluation of the December 21, 2011 SIP Submittal

The criteria for completeness determination ar e found in Appendix V to Part 51 - Criteria for determining the completeness of plan submissions and are outlined below:

1.0 Purpose: This appendix V sets forth th e minimum criteria for determining whether a State implementation plan submitted for consid eration by EPA is an official submission for purposes of review under § 51.103.

1.1 The EPA shall return to the submitting official any plan or revision thereof which fails to meet the criteria set forth in this appendix V, and request corrective action, identifying the component(s) absent or insufficient to perform a review of the submitted plan.

1.2 The EPA shall inform the submitting official whether or not a plan submission meets the requirements of this appendix V within 60 days of EPA's receipt of the submittal, but no

later than 6 months after the date which th e State was required to submit the plan or revision. If a completeness determination is not made by 6 months from receipt of a submittal, the submittal shall be deemed complete by operation of law on the date 6 months from receipt. A determination of completeness under this paragraph means that

the submission is an official submission for purposes of §51.103.

The attached checklist outlines the basic crit eria included under 2.1, 2.2, and 2.3 of Appendix V.

SIP Completeness Checklist for the December 21, 2011 SIP Submittal

Administrative Materials (2.1)

1. The package is sent with a formal submitta l letter from the Governor or his or her designee requesting EPA's approval of the revision.

The SIP revision was submitted by a letter from Ms. Peggy Hatch, Secretary of the LDEQ, dated December 21, 2011. The SIP submittal was received by EPA Region 6 Air Permitting Section on January 5, 2012.6 2. Evidence is included that the State has adopt ed the revision in the State code or body of regulations, or that the State has issued th e permit, order, consen t agreement (hereafter document) in final form. This evidence would include the date of adoption or final issuance and the effective date of revision, if different from adoption/issuance date.

The revisions to the Louisiana Major PS D program were adopted by the Louisiana Department of Environmenta l Quality on April 20, 2011.

3. Evidence is included that the State has neces sary legal authority under State law to adopt and implement the revision, e.g., a citati on of the appropriate State authority.

The authority to adopt and implement the r evisions is the Louisiana Environmental Quality Act, R.S. 30:2001 et seq., and in a ccordance with the provisions of the

Administrative Procedures Act, R.S. 49:950 et seq.

4. A copy is included of the actual regulation or document submitted for approval and incorporation by reference into the SIP includin g an indication of the changes made to the existing approved plan where applicable. Th e submittal shall be a copy of the official State regulation document signed, stamped, and dated by the appropria te State official indicating that it is fully enforceable by the State. The effective date of the regulation document shall, whenever possible, be indicated in the document itself.

The December 21, 2011, submittal included a copy of the official State regulation document published in the Louisiana Register.

5. Evidence is included that the State followed all the procedural requirements of its laws and/or its constitution in the conducting a nd completing the adoption/issuance of the plan.

The SIP submittal package included a certifi cation demonstrating the SIP submittal was developed pursuant to 40 CFR 51.104.

6. Evidence is included that public notice was given of the proposed changes consistent with the procedures approved by EPA, including the date of publication of such notice, (e.g., notarized or certified copi es of any public notices publis hed in newspapers). (The notice should be at least 30 days prior to the public hearing(s).

Notices of public hearing and comment peri od for rule revision AQ314ft were published

in the:

 Louisiana Register on October 20, 2010.7 7. A certification is included indi cating that public hearing(s) was/were held in accordance with the information provided in the pub lic notice(s) and the State's laws and constitution, if applicable.

The public hearing for AQ314ft was held on November 24, 2010. The transcript of the hearing was included in the D ecember 21, 2011 submittal package.

8. A compilation of public comments and the State's response is included.

The SIP submittal package did include a compilation of comments and the State’s response to comments. LDEQ received comment letters from the EPA Region 6,
Louisiana Chemical Association, Louisiana Mid-Continent Oil and Gas Association and
Sierra Club. The December 21, 2011 submittal included the comment letters and the

response to comments summary.

Technical Support (2.2)

The State should include the followi ng technical information in its SIP revision request package.

1. Identification of all regu lated pollutants affected by the revision is included.

The December 21, 2011, submittal revises the Louisiana PSD program to regulate and permit emissions of GHGs in the LA PSD progr am in all attainment areas statewide.

2. Identification of the locations of affected sources including the EPA attainment/nonattainment design ation of the locations and th e status of the attainment plan for the affected area(s) is included.

The December 21, 2011 revisions to the LA PS D program apply statewide in attainment

areas.

3. Quantification of the changes in SIP allowa ble emissions from the affected sources is included. (Examples include estimates of changes in current actual emissions from affected sources and/or, where appropriate, quantification of changes in actual emissions from affected sources through calculations of the differen ces between certain baseline levels and allowable emissions anticipat ed if the revisions were approved.)

Quantification of “SIP allowable emissions ” is not required for the December 21, 2011, revisions to the Louisiana PSD permit program. A determina tion of “allowable emissions” consistent with the PSD perm itting requirements will be addressed on a permit-by-permit basis.

4. Demonstration is included that the NAAQ S/PSD increments/RFP demonstration and visibility as applicable would be prot ected if the revision were approved and implemented.8 The December 21, 2011, revision to the Loui siana PSD permit program was adopted and submitted consistent with the federal PSD re quirements. Adoption of these revised rules will protect the NAAQS/PSD incremen ts/RFP demonstration and visibility.

5. FOR REDESIGNATIONS:

a. Is there a fully approved maintenance plan for the primary ambient air quality standards for at least 10 years as requ ired by §175A of the Clean Air Act?

Not applicable.

b. Are contingency measures included?

Not applicable.

6. Modeling information, if app licable, is required to s upport the proposed revision.

Modeling information is not necessary to support the analysis and review of the December 21, 2011, submitted regulatory provis ions. Modeling will be provided on a permit-by-permit basis in accordance w ith the Louisiana PSD SIP regulations.

7. Evidence is included where necessary, that emission limitations are based on continuous emission reduction technology (e.g., add-on controls, industria l/process equipment designs, reformulated materials, etc.).

Evidence that emission limitations are based on continuous emission reduction technology is not necessary to support th e analysis and review of the December 21, 2011, submitted regulatory provisions. Emission limita tions will be established on a permit-bypermit basis in accordance with the PSD SIP regulations.

8. Evidence is included indicating that a SIP re vision contains emission limitations, work practice standards, and recordkeeping/reporti ng requirements to ensure stated emission

levels.

The December 21, 2011, SIP submittal does not establish emission limitations, work practice standards, and recordkeep ing/reporting requirements. They will be established on a permit-by-permit basis according to the applicable Louisiana PSD SIP requirements.

9. Compliance/enforcement strategies including how compliance will be determined in practice (including at what frequency).

The December 21, 2011, SIP submittal does not establish compliance/enforcement strategies. Each PSD SIP permit will se parately address compliance/enforcement.9 10. As appropriate, special economic and tec hnological jus tifications are included per applicable EPA policies or an explanation why such justificati ons are not necessary should be included. For example, requests for alternative RACT may require such justification.

These justifications are not nece ssary for December 21, 2011, SIP revision.

The December 21, 2011 SIP submittal satisfies th e completeness criteria established in 40 CFR part 51, Appendix V.10 

### B. Current Federal Requirements for PSD Permitting of GHG Emissions

Under the Clean Air Act, greenhouse gases becam e subject to the PSD program in 2011 when EPA first regulated this pollutant under the Clean Air Act. See 75 FR 17004, April 2, 2010. On June 3, 2010, the EPA published a final rule, kno wn as the Tailoring Rule, which phased in permitting requirements for greenhouse gas (GHG) emissions from stationary sources under the CAA PSD and title V permitting programs (75 FR 31514). Under its interpretation of the CAA at the time, the EPA believed the Tailoring Rule was necessary to avoid a sudden and unmanageable increase in the number of sources that would be required to obtain PSD and title V permits under the CAA because the sources em itted or had the potential to emit GHGs above the applicable major source and major modification thresholds.

In Step 1 of the Tailoring Rule, which began on January 2, 2011, the EPA limited application of PSD and title V requirements to sources only if th ey were subject to PSD or title V ‘‘anyway’’ due to their emissions of pollutants other than GHGs. These sources are referred to as ‘‘anyway sources.’’ In Step 2 of the Tailoring Rule, which began on July 1, 2011, the EPA applied the PSD and title V permitting requirements under the CAA to sources that were classified as major, and, thus, required to obtain a permit, based sole ly on their GHG emissions or potential to emit GHGs, and to modifications of otherwise major s ources that required a PSD permit because they increased only GHG emissions above the level in the EPA regulations. We generally describe the sources covered by PSD during Step 2 of the Tailoring Rule as “S tep 2 sources.”

On June 23, 2014, the U.S. Supreme Court issued a decision in Utility Air Regulatory Group (UARG) v. EPA , 134 S. Ct. 2427, addressing the applicat ion of stationary source permitting requirements to GHGs. The U.S. Supreme Court held that the EPA may not treat GHGs as an air pollutant for the specific purpose of determin ing whether a source is a major source (or a modification thereof) and thus required to obtai n a PSD or title V permit. The Court also said that the EPA could continue to require that PSD permits, otherwise required based on emissions of pollutants other than GHGs, contain limitatio ns on GHG emissions based on the application of

Best Available Control Technol ogy (BACT). With respect to PSD , the ruling effectively upheld PSD permitting requirements for GHG emissi ons under Step 1 of the Tailoring Rule for ‘‘anyway sources,’’ and invalidated PSD permitti ng requirements for Step 2 sources. Because the Supreme Court decision affirmed in part and re versed in part an earlier decision of the D.C.

Circuit in Coalition for Responsible Regulation v. EPA, 684 F.3d 102 (D.C. Cir. 2012), on April 10, 2015, the U.S. Court of Appeals for the District of Columbia Circuit (the D.C. Circuit) issued an Amended Judgment (Nos. 09–1322, 10–073, 10–1092 and 10–1167), which reflects the

UARG v. EPA Supreme Court decision. The D.C. Circui t simultaneously issued its mandate,

which means that the Coalition Amended Judgment became final a nd effective upon issuance. In

the Coalition Amended Judgment, the D.C. Circuit or dered that the EPA regulations under review (including 40 CFR 51.166(b)(48)(v) and 40 CFR 52.21(b)(49)(v)) be vacated “to the extent they require a stationary source to obtain a PSD permit if greenhouse gases are the only pollutant (i) that the source emits or has the po tential to emit above the applicable major source thresholds, or (ii) for which there is a signi ficant emissions increase from a modification.”

In response to the Coalition Amended Judgment, the EPA promulgated a good cause final rule on August 19, 2015, removing the PSD permitting provisions for Step 2, non-anyway sources11 from the federal regulations at 40 CFR 51.166(b)(48)(v) and 52.21(b)(49)(v). See 80 FR 50199. The EPA no longer has the authority to conduc t PSD permitting for Step 2, non-anyway sources, nor can we approve provisions submitted by a State for inclusion in their SIP providing this authority. We anticipate taking future federal rulemakings to address the remainder of the UARG

and Coalition judgments.

However, the EPA has an obligation under se ction 110 of the CAA to act upon a submitted

revision to a state’s SIP within 18 months of receipt. As the December 21, 2011, submitted revisions have not been withdrawn, the EPA has an obligation to act on the provisions.12 

### C. Evaluation of the Decemb er 21, 2011 SIP Submittal

The LDEQ has the authority under the state’s SIP-approve d PSD program to regulate GHG emissions. The Louisiana PSD program regulations define a “regulated NSR pollutant” at LAC 33:III.509(B), in part, as any pollutant that is su bject to any standard pr omulgated under Section 111 of the Clean Air Act or any pollutant that ot herwise is subject to regulation under the Clean Air Act. The applicability of the Louisiana PSD program at LAC 33:III.509(A) and (J) then applies the requirements of PSD permitting (Bes t Available Control Technology, etc) to new major stationary sources and major modifications.

On October 20, 2010, the LDEQ initiated rulemaking to adopt provisions in the Louisiana PSD program that would provide the LDEQ the e xpress authority to regulate GHGs under the Louisiana PSD program at the thresholds spec ified in EPA’s Tailoring Rule. After soliciting public comment, the LDEQ adopted the revisi ons in LAC 33:III.501 and 509 on April 20, 2011. These revisions were submitted to EPA as revisions to the Louisiana SIP on December 21, 2011. We note that EPA Region 6 submitted comment s on the proposed rulemaking; our comments were addressed in the final revisions submitted on December 21, 2011.

The intent of these provisions was and continues to be the regulation and permitting of GHGs through the Louisiana PSD program consistent with all federal PSD requirements. The following presents the revisions made to the Louisiana Code and EPA’s analysis of those revisions.

1. EPA’s Analysis of Louisiana’ s Automatic Rescission Provisions

Table 1: Revisions to LAC 33:III.501 – Scope and Applicability EPA’s Analysis New Requirement at LAC 33:III.501(C)(14) Adopted by LDEQ on April 20, 201 1; Submitted on December 21, 2011

14. If there is a change in federal law or the United States Court of Appeals for the District of Colu mbia Circuit or the United State Supreme Court issues an order wh ich limits or renders ineffective the regulation of greenhouse gases from stationary sources under Part C of Title I (Prevention of Significant Deterioration of Air Quality) or Title V (Permits) of the Clean Air Act, the regulation of greenhouse gases under the corresponding programs in this Chapter

shall be limited or rendered ineffective to the same extent. This provision is approvable. Please

see the discussion later in this TSD addressing approvability of the

rescission clause.

Louisiana’s December 21, 2011 SIP submission s ubmittal adds automatic rescission provisions to the State’s PSD regulations at LAC 33:III .501(C)(14). The automatic rescission provisions provide that in the event that there is a change in federal law, or the D.C. Circuit or the U.S. Supreme Court issues an order which limits or renders ineffective the regulation of GHGs under title I of the CAA, then the corresponding provisions of the L ouisiana PSD program shall be

limited or rendered ineffective to the same extent.

In assessing the approvability of automatic re scission provisions, the EPA considers two key factors: (1) whether the public will be given reasonable notice of any change to the SIP that occurs as a result of the automatic rescission prov isions, and (2) whether any future change to the

SIP that occurs as a result of the automatic re scission provisions would be consistent with the13 EPA’s interpretation of the effect of th e triggering action on federal GHG permitting requirements. See, e.g., 79 FR 8130 (February 11, 2014) and 77 FR 12484 (March 1, 2012).

These criteria are derive d from the SIP revision procedures set forth in the CAA and federal regulations.

Regarding public notice, CAA section 110(l) prov ides that any revision to a SIP submitted by a State to EPA for approval “shall be adopted by such State after reasonable notice and public hearing.” In accordance with CAA section 110(l ), LDEQ followed applicable notice-andcomment procedures prior to adopting the automa tic rescission provisions. Thus, the public is on notice that the automatic rescission provisions in the Louisiana PSD program will enable the Louisiana PSD program and the Louisiana SIP to update automatically to reflect any order by a federal court or any change in federal law that limits or renders ineffective the regulation of GHGs under the CAA’s PSD permitting program. Add itionally, the EPA interprets this provision to require the LDEQ to provide notice to the general public and regulat ed community of the changes to the Louisiana PSD program in the ev ent that the automatic rescission provision is triggered.

The EPA’s consideration of whether any SIP ch ange resulting from Louisiana’s automatic rescission provisions would be consistent with the EPA’s interpretation of the effect of the triggering action on federal GHG permitting requ irements is based on 40 CFR 51.105, which states that “[r]evisions of a plan, or any porti on thereof, will not be considered part of an applicable plan until such revisions have been approved by the Administrator in accordance with this part.” To be consistent with 40 CFR 51.105, any automatic SIP change resulting from a court order or federal law change must be consistent with the EPA’s interpretation of the effect of such order or federal law change on GHG pe rmitting requirements. We interpret this provision

to mean that Louisiana will wait for and follow th e EPA’s interpretation as to the impact of any federal law change or the D.C. Circuit or th e U.S. Supreme Court issues an order before Louisiana’s SIP would be changed. In the event of a court decision or federal law change that triggers (or likely triggers) application of Loui siana’s automatic rescission provisions, the EPA intends to promptly describe the impact of the court decisi on or federal law change on the enforceability of its GHG permitting regulation.

For the reasons stated above, the EPA should propose approval of the Louisiana automatic rescission provisions. Further, it is recommended that we invite co mment, particularly from the State, regarding our interpretations of the automatic rescission provisions.142. EPA’s Analysis of Louisiana’s Revisions to the PSD ProgramTable 2: Revisions to LAC 33:III.509(B) - Definitions EPA’s Analysis***New Definition at LAC 33:III.509(B)Adopted by LDEQ on April 20, 2011; Submitted on December 21, 2011CO2 Equivalent Emissions (CO2e) – the emitted amount of greenhouse gases (GHGs) computed bymultiplying the mass amount of emissions for each of the six greenhouse gases in the pollutant GHGsby the gas’s associated global warming potential published in Table A-1 to Subpart A of 40 CFR, Part98 – Global Warming Potentials, and summing the resultant value for each.Approvable. This new paragraph is consistent withthe requirements at 40 CFR 51.166(b)(48)(ii)(a).***New Definition at LAC 33:III.509(B)Adopted by LDEQ on April 20, 2011; Submitted on December 21, 2011Greenhouse Gases (GHGs) – an air pollutant defined as the aggregate group of six greenhouse gases:carbon dioxide, nitrous oxide, methane, hydrofluorocarbons, perfluorocarbons, and sulfur hexafluoride.Approvable. This new paragraph is consistent withthe requirements at 40 CFR 51.166(b)(48)(i).***SIP-approvedMajor Stationary Source –(a)Any of the stationarysources of air pollutantslisted in Table A of thisdefinition that emits, orhast the potential to emit,100 tons per year or moreof any pollutant subject toregulation under thisSection(b)For stationary sourcecategories other than thoselisted in Table A of thisdefinition, any stationarysource that emits, or hasthe potential to emit, 250tons per year or more ofany air pollutant subject toregulation under thisSection;(c)any physical change thatwould occur at a sourceRevisions adopted onDecember 20, 2005(a)Any of the stationarysources of air pollutantslisted in Table A of thisdefinition that emits, orhast the potential to emit,100 tons per year or moreof any pollutant subject toregulation under thisSection(b)For stationary sourcecategories other than thoselisted in Table A of thisdefinition, any stationarysource that emits, or hasthe potential to emit, 250tons per year or more ofany air pollutant subject toregulation under thisSection;(c)any physical change thatwould occur at a sourceRevisions adopted on April 20,2011; Submitted on December21, 2011Major Stationary Source –(a)Any of the stationarysources of air pollutantslisted in Table A of thisdefinition that emits, orhast the potential toemit, 100 tons per yearor more of any pollutant(except for GHGs)subject to regulationunder this Section(b)For stationary sourcecategories other thanthose listed in Table Aof this definition, anystationary source thatemits, or has thepotential to emit, 250tons per year or more ofany air pollutant (exceptThe revision to the definition of “major stationarysource” adopted on December 20, 2005, to add newparagraph (e) addressing fugitive emissions isapprovable. This new paragraph is consistent withthe federal requirements at 40 CFR51.166(b)(1)(iii). In our prior actions on August 19,2015, we did not specifically state that this newparagraph submitted on December 20, 2005 waspart of our analysis or proposal; as such we arecorrecting that omission here.The revisions adopted on April 20, 2011 (andsubmitted December 20, 2011) to the definition of“major stationary source”paragraphs (a) and (b)addressing the regulation and permitting of GHGsare approvable. Consistent with the Supreme Courtdecision, these revisions mean a source may not bedefined as a major stationary source based on itslevel of greenhouse gas emissions.Note that the addition of paragraph (c) to thedefinition of “major stationary source” isspecifically for the implementation of Step 215Table 2: Revisions to LAC 33:III.509(B) - Definitions EPA’s Analysisnot otherwise qualifyingas a major stationarysource underSubparagraphs a and b ofthis definition if thechange would constitute amajor source by itself;(d)a major source that ismajor for volatile organiccompounds or nitrogenoxides shall be consideredmajor for ozone;TABLE A unchangednot otherwise qualifyingas a major stationarysource underSubparagraphs a and b ofthis definition if thechange would constitute amajor source by itself;(d)a major source that ismajor for volatile organiccompounds or nitrogenoxides shall be consideredmajor for ozone;(e)Fugitive emissions of astationary source shall notbe included in determiningfor any of the purposes ofthis Section whether it is amajor stationary source,unless the source is listedin Table A of thisdefinition or, as of August7, 1980, is being regulatedunder Section 111 or 112of the Clean Air Act.TABLE A unchangedfor GHGs) subject toregulation under thisSection;(c)As of July 1, 2011, anystationary source listedin Table A of thisdefinition which emits,or has the potential toemit, 100 tpy or more ofGHGs on a mass basis(i.e., no global warmingpotentials applied) and100,000 tons per year ormore of CO2e; or astationary source notlisted in Table A thatemits, or has thepotential to emit, 250tpy or more of GHGs ona mass basis and100,000 tons per year ormore of CO2e or;(d)any physical change thatwould occur at a sourcenot otherwise qualifyingas a major stationarysource underSubparagraphs a and bof this definition if thechange would constitutea major source by itself;(e)a major source that ismajor for volatileorganic compounds ornitrogen oxides shall beconsidered major forozone;(f)Fugitive emissions of astationary source shallrequirements. Therefore the EPA is disapprovingthis provision. Neither the LDEQ nor the EPA hasthe authority to regulate or permit emissions ofGHGs for sources that are not already subject toPSD. Because the LDEQ promulgated andsubmitted these rules to provide for Step 2permitting, the EPA must disapprove the use ofthese rules for Step 2 permitting.16Table 2: Revisions to LAC 33:III.509(B) - Definitions EPA’s Analysisnot be included indetermining for any ofthe purposes of thisSection whether it is amajor stationary source,unless the source islisted in Table A of thisdefinition or, as ofAugust 7, 1980, is beingregulated under Section111 or 112 of the CleanAir Act.TABLE A unchanged***Current SIP; Revisions adopted on April20, 2011; Submitted on December 21, 2011Significant –a. In reference to a net emissions increase or the potential of a source to emit any of the followingpollutants, a rate of emissions that would equal or exceed any of the following rates:Pollutant Emission RateCarbon monoxide 100 tons per year (tpy)Nitrogen oxides 40 tpySulfur dioxide 40 tpyParticulate matter 25 tpy of particulate emissions15 tpy of PM10emissions10 tpy of direct PM2.5emissions; 40 tpy of sulfur dioxideemissions; 40 tpy of nitrogen oxide emissions1Ozone 40 tpy of volatile organic compounds or nitrogen oxidesLead 0.6 tpyFluorides 3 tpySulfuric acid mist 7 tpyHydrogen sulfide (H2S) 10 tpyTotal reduced sulfur(including H2S)10 tpyReduced sulfur compounds(including H2S)10 tpyMunicipal waste combustororganics20.0000035 tpyNote that the definition of “Significant” identified asthe current SIP is the revised definition as approvedby EPA on November 5, 2015.See80 FR 68451.The revisions adopted on April 20, 2011 (andsubmitted December 20, 2011) to the definition of“significant” addressing the regulation andpermitting of GHGs are approvable in conjunctionwith new LAC 33:III.501(C)(14).LAC 33:III.509.J requires “(2) A new majorstationary source shall apply [BACT] for eachregulated NSR pollutant that it would have thepotential to emit in significant amounts” and “(3) Amajor modification shall apply [BACT] for eachregulated NSR pollutant for which it would result insignificant net emissions increase at the source”(emphasis added). The effect of Louisiana’s revisionto the definition of “significant” in LAC33:III.509(B) is to limit the PSD BACT requirementto new sources and major modifications that emit orhave the potential to emit 75,000 or more tons peryear of GHGs on a CO2e basis and 0 tpy emissionson a mass basis. Although the Louisiana SIP17Table 2: Revisions to LAC 33:III.509(B) - Definitions EPA’s AnalysisMunicipal waste combustormetals315 tpyMunicipal waste combustoracid gases440 tpyMunicipal solid wastelandfills emissions550 tpyGHGs and GHGs as CO2e0 tpy and 75,000 tpy, respectively61Nitrogen oxides are presumed tobe precursors to PM2.5 in all attainment and unclassifiable areasunless the administrative authority demonstratesto the administrator’s satisfaction or EPAdemonstrates that emissions of nitrogen oxides from sources in a specific area are not a significantcontributor to that area’sambient PM2.5 concentrations.2Measured as total tetra- through octa-chlorinated dibenzo-p-dioxins and dibenzofurans3Measured as particulate matter.4Measured as sulfur dioxide and hydrogen chloride5Measured as nonmethane organic compounds6Both of the following conditions must be met: (1) the net emissions increase of GHGs calculated asthe sum of the sixGHGson a mass basis (i,e., no global warming potentials applied) equals or exceeds0 tpy; and (2) the net emissions increase ofGHGscalculated as the sum of the six GHGs on a CO2ebasis (i.e., global warming potentials applied) equals or exceeds 75,000 tpv C02e.(b)in reference to a net emissions increase or the potential of a source to emit a regulated NSRpollutant that Subparagraph a of this definition does not list, any emissions rate;(c)notwithstanding Subparagraph a of this definition, any emissions rate or any net emissionsincrease associated with a major stationary source or major modification that would constructwithin 10 kilometers of a Class I area and have animpact on such area equal to or greater than 1mg/m3 (24-hour average);(d)Notwithstanding Subparagraph a of this definition, between January 2, 2011 and June 30, 2011,the pollutant GHGs is “subject to regulation” only if the stationary source is:(i).A new major stationary source for a regulated NSR pollutant that is not GHGs and alsowill emit or have the potential toemit GHGs in a significant amount; or(ii).An existing major stationary source for a regulated NSR pollutant that is not GHGs andalso will have a significant net emissions increase of both GHGs and another regulatedNSR pollutant.submission is structured differently than EPA’sfederal rules, the primary practical effect of both isthe same: the PSD BACT requirement does notapply to GHG emissions from an “anyway source”unless the source emits GHGs at or above the75,000 tons per year threshold.LDEQ has not revised its definition of “majormodification,” which uses the term “significant.”Given the addition of GHGs to the definition of“significant,” it initially appears that LDEQ’sdefinition of “major modification” could apply afterJune 30, 2011 to a modification that increases onlyGHGs by a significant amount. The limitation inparagraph (d) of LDEQ’s definition of “significant”serves to prohibit this result from January 2, 2011 toJune 30, 2011, consistent with Step 1 of theTailoring Rule. However, there is no suchlimitation in LDEQ’s rule for the period after June30, 2011. The absence of such a limitation wasconsistent with Step 2 of the Tailoring Rule, but it isnot now consistent the Supreme Court decision andsection 51.166 of EPA’s regulations after theremoval of certain vacated elements. Nevertheless,given the Supreme Court decision, LAC33:III.501(C)(14) now functions to limit the scopeof LDEQ’s definition of “major modification.”The EPA interprets LAC 33:501(C)(14) to limit theapplication of Louisiana’s PSD permitting programto only apply to “anyway” modifications, which aremodifications that are projected to result in anincrease of at least oneregulated pollutant otherthan GHGs by significant amounts.As such, the specific revisions to the LA PSDprogram to provide for Step 1 permitting areapprovable. Neither the LDEQ nor the EPA has theauthority to regulate or permit emissions of GHGs18Table 2: Revisions to LAC 33:III.509(B) - Definitions EPA’s Analysisfor Step 2 sources. Because the LDEQ promulgatedand submitted these rules to provide for Step 2permitting, the EPA must also disapprove the use ofthese rules for Step 2 permitting.19 

## IV. Conclusion

The technical analysis provided in the preceding s ections has compared the applicable sections

of the CAA and 40 CFR Part 51 to the Decem ber 21, 2011, proposed revision to the Louisiana SIP for PSD regulation and permitting of GHGs. The revisions to the Louisiana PSD program are approvable as providing the state the authorit y to regulate and permit step 1, anyway sources,

of GHGs consistent with federal law and regulations. Specifically, the EPA should propose approval of the following:

 New provisions at LAC 33:III.501(C)(14) adopted on April 20, 2011 and submitted December 20, 2011;

 New definitions of “carbon dioxide equiva lent” and “greenhouse gases” at LAC 33:III.509(B) adopted on April 20, 2011 and submitted December 20, 2011; and

 Revisions to the definitions of “major stati onary source” and “significant” as adopted on April 20, 2011 and submitted December 20, 2011.

Note that the EPA has also re viewed, evaluated, and recommends proposal of a new provision in “major stationary source” at LAC 33:III.509(B) that was initially adopted and submitted as subparagraph (e) on December 20, 2005, but was moved to subparagraph (f) in the December 20,

2011 submittal.

The EPA’s proposed action on the December 21, 2011 submittal revising the PSD program for the permitting of GHGs should be a proposed pa rtial approval and par tial disapproval. As presented above, our partial approval would be to address the revisions to the SIP that provide the LDEQ the authority to regu late and permit emissions of GHGs from step 1 anyway sources as consistent with federal law and regulations. We are partially disapproving the submittal as it relates to the ability of the state to regulate and permit St ep 2, non-anyway sources – specifically the definition of “major stationa ry source” paragraph (c) and the de finition of “significant” as it pertains to Step 2 permitting. Because the recent UARG and Coalition judgments determined that EPA had no authority to require PSD permits for GHG emissions from step 2 sources, there is no

further action needed from the st ate to address step 2 sources.

We anticipate future rulemakings by the EPA to address the remainder of the UARG and

Coalition judgments, which may require further revisions to the Louisiana PSD program. However, the EPA sees no compelling reason not to address at this time the December 21, 2011 submitted revisions, as limited by the UARG and Coalition judgments.