Louisiana State Implementation Plan Elements 

Required Under Section 110(a)(2) for Louisiana; Infrastructure State Implementation Plan 

Requirements for the National Ambient Air Quality Standards (NAAQS) 

Docket ID EPA-R06-OAR-2012-0465 

Technical Support Document 

January 2016 

Table of Contents: 

I. Introduction 

A. Section 110(a)(1) and (2) 

II. Additional Background 

A. What are the National Ambient Air Quality Standards? 

B. What is a SIP? 

C. Additional Information 

III. SIP elements required under Section 110(a)(2) for the 2006 Fine Particulate Matter, 2008 

Lead, 2008 Ozone, 2010 Nitrogen Dioxide, 2010 Sulfur Dioxide and 2012 Fine 

Particulate Matter NAAQS, the State’s submittals and EPA’s analysis 

IV. Recommendations 

V. References 

Appendix A: EPA’s Approach to the Review of Infrastructure SIP Submissions 

Appendix B: EPA’s Evaluation of the June 23, 2014 United States Supreme Court decision on 

greenhouse gas emissions on Louisiana’s infrastructure SIP reviews. 

I. Introduction 

In this technical support document (TSD), EPA is providing additional documentation 

concerning our evaluation of the submittal provided by the Louisiana Department of 

Environmental Quality (LDEQ) to meet the requirements of section 110(a)(2) of the Clean Air 

Act (CAA or Act) for the 2006 Fine Particulate Matter (PM2.5), 2008 Lead (Pb), 2008 Ozone 

(O3), 2010 Nitrogen Dioxide (NO2), 2010 Sulfur Dioxide (SO2), and 2012 Fine Particulate 

Matter (PM2.5) National Ambient Air Quality Standards (NAAQS or standards). More detail on 

these standards, section 110(a)(1) and (2) of the Act, and the submittals we are reviewing to 

determine if the Louisiana SIP satisfies the section 110(a)(2) requirements, is provided in 

subsection “A” below. Throughout this document, “we,” “us,” and “our” means EPA. 

Section II of this TSD provides additional background material on the NAAQS, State 

Implementation Plans (SIPs), and related issues. 

Section III of this TSD provides a description of each element required under section 

110(a)(2) of the Act, the State’s response, and additional details of our analysis of the State’s 

response that are not included in the Federal Register notice for this proposed action. Copies of 

the State’s submittal are in the docket for this rulemaking. 

Section IV of this TSD includes our recommendation for action on each of the elements 

reviewed herein. 

 Section V of the TSD contains a list of the guidance documents cited herein. Copies of 

the guidance documents referenced are in the docket for this rulemaking. 
Page 2 of 29

Appendices A and B provide additional information about recent changes to how EPA 

reviews infrastructure SIPs. 

A. Section 110(a)(1) and (2) 

On April 30, 1971, we published the first NAAQS for NO2, PM, and SO2 (36 FR 8186). 

The first NAAQS for lead was published on October 5, 1978 (43 FR 46246). The first NAAQS 

for O3 was published on February 8, 1979 (44 FR 8202). Both the primary (to protect the health) 

and secondary (to protect public welfare) standards were set for all the pollutants. These 

standards are reviewed periodically often becoming more stringent. For more information on 

these standards, please see the EPA web site.1

Under Sections 110(a)(1) and (2) of the Act, states are required to submit SIPs that 

provide for the implementation, maintenance, and enforcement (the infrastructure) of a new or 

revised NAAQS within three years following the promulgation of the NAAQS, or within such 

shorter period as EPA may prescribe. Section 110(a)(2) lists the specific infrastructure elements 

that must be incorporated into the SIPs, including for example, requirements for air pollution 

control measures, which are designed to assure attainment and maintenance of the NAAQS. 

Section III of this TSD provides a description of all 14 infrastructure elements that comprise 

section 110(a)(2) of the Act. The schedule for completion of EPA’s periodic review of NAAQS 

was established in Section 109 (d)(1) of the CAA, which requires that “not later than December 

31, 1980, and at 5-year interval thereafter, the EPA shall complete a thorough review of the 

criteria published under section 108 and the national ambient air quality standards, “... and shall 

make such revisions in such criteria and standards and promulgate such new standards as may be 

appropriate in accordance with section 108. 

States typically have met many of the basic program elements required in section 

110(a)(2) through earlier SIP submissions in connection with previous NAAQS. Nevertheless, 

pursuant to section 110(a)(1), states have to review and revise, as appropriate, their existing SIPs 

to ensure that they are adequate to address the NAAQSs. To assist states in meeting this statutory 

requirement, EPA issued guidance on September 13, 2013, addressing the infrastructure SIP 

elements required under sections 110(a)(1) and (2) for most the NAAQS.2

On October 10, 2011 (2008 Lead), May 21, 2013 (2006 PM2.5), June 4, 2013 (2008 O3, 

2010 NO2, 2010 SO2), and December 16, 2016 (2012 PM2.5), the Secretary of the Louisiana 

Department of Environmental Quality (LCEQ) submitted letters certifying that LDEQ has 

evaluated the Louisiana SIP and found that the SIP satisfies all the requirements of section 

110(a)(1) and (2) for the NAAQS. The submittals includes a table with an explanation of how 

the current Louisiana SIP meets the requirements of each applicable element of section 110(a)(2) 

for the NAAQS. This TSD provides additional details of Louisiana’s certification and EPA’s 

evaluation that are not included in the official Federal Register notice for this action. 

II. Additional Background 

 A. What are the National Ambient Air Quality Standards? 

 Section 109 of the Act requires EPA to establish NAAQS for pollutants that “may 

reasonably be anticipated to endanger public health and welfare,” and to develop a primary and 

secondary standard for each NAAQS. The primary standard is designed to protect human health 

with an adequate margin of safety, and the secondary standard is designed to protect public 

 

1

 https://www.epa.gov/criteria-air-pollutants/naaqs-table 2

 “Guidance on Infrastructure State Implementation Plan (SIP) Elements under Clean Air Act Sections 110(a)(1) and 

110(a)(2),” Memorandum from Stephen D. Page, September 13, 2013 
Page 3 of 29

welfare and the environment. EPA has set NAAQS for six common air pollutants, referred to as 

criteria pollutants. These pollutants are: carbon monoxide, lead, nitrogen dioxide, ozone, 

particulate matter, and sulfur dioxide. These standards present state and local governments with 

the minimum air quality levels they must meet to comply with the Act. Additionally, these 

standards provide information to residents of the United States about the quality of the air in their 

communities. 

 

 B. What is a SIP? 

 A State Implementation Plan, or SIP, is a set of state statutes, air pollution regulations, 

control strategies, other means or techniques, and technical analyses developed by the state, to 

ensure that the state meets the NAAQS. The SIP is required by section 110 and other provisions 

of the Act. These SIPs can be extensive, containing state regulations or other enforceable 

documents and supporting information such as emissions inventories, monitoring networks, and 

modeling demonstrations. Each state must submit these regulations and control strategies to EPA 

for approval and incorporation into the federally enforceable SIP. Each federally approved SIP 

protects air quality primarily by addressing air pollution at its point of origin. 

 C. Additional Information 

As indicated in the Federal Register notice for this action, this proposed rulemaking will 

not cover four substantive issues that are not integral to acting on a state’s infrastructure SIP 

submission: (i) existing provisions related to excess emissions during periods of start-up, 

shutdown, or malfunction at sources, that may be contrary to the CAA and EPA’s policies 

addressing such excess emissions (“SSM”); (ii) existing provisions related to “director's 

variance” or “director's discretion” that purport to permit revisions to SIP approved emissions 

limits with limited public process or without requiring further approval by EPA, that may be 

contrary to the CAA (“director's discretion”); (iii) existing provisions for minor source NSR 

programs that may be inconsistent with the requirements of the CAA and EPA’s regulations that 

pertain to such programs (“minor source NSR”); and, (iv) existing provisions for PSD programs 

that may be inconsistent with current requirements of EPA’s “Final NSR Improvement Rule,” 67 

FR 80186 (December 31, 2002), as amended by 72 FR 32526 (June 13, 2007) (“NSR Reform”). 

Instead, EPA has indicated that it has other authority to address any such existing SIP defects in 

other rulemakings, as appropriate. A detailed rationale for why these four substantive issues are 

not part of the scope of infrastructure SIP rulemakings can be found in EPA’s July 13, 2011, 

final rule entitled, “Infrastructure SIP Requirements for the 1997 8-hour ozone and PM2.5

National Ambient Air Quality Standards” in the section entitled, “What is the scope of this final 

rulemaking?” (see 76 FR 41075 at 41076-41079). 

III. SIP elements required under Section 110(a)(2) for the 2006 Fine Particulate Matter, 

2008 Lead, 2008 Ozone, 2010 Nitrogen Dioxide, 2010 Sulfur Dioxide and 2012 Fine 

Particulate Matter NAAQS, the State’s submittals and EPA’s analysis 

 The Federally approved SIP for each state is listed in 40 CFR 52. The first section in 

this subpart for any state is the “Identification of plan.” The “Identification of plan” lists the 

EPA-approved provisions of the SIP for each state, as provided under section 110 of the Act, 42 

U.S.C. 7410, and 40 CFR 51 to meet the NAAQS. The status of the Louisiana SIP is provided in 
Page 4 of 29

40 CFR Part 52, Subpart T, sections 970 to 10183

. The Identification of plan for Louisiana is in 

section 970; this constitutes the applicable SIP for Louisiana, for purposes of the Act. 

Per the General Preamble to the 1990 Clean Air Act Amendments (April 16, 1992 at 57 

FR 13498), section 110(a)(2) sets forth elements that a SIP must contain in order to be fully 

approved.4 In the following sections of this document we provide additional information, not 

included in the Federal Register notice for this action, which we considered in performing our 

evaluation of Louisiana’s infrastructure SIP submittals for the six NAAQS evaluated herein. 

Where it is useful, we include tables showing the date that the applicable state rules were 

approved by EPA into the Louisiana SIP. 

1. Enforceable emission limits and other control measures: Section 110(a)(2)(A) requires 

SIPs to include enforceable emission limits and other control measures, means or techniques, as 

well as schedules and timetables for compliance, as necessary or appropriate to meet the 

requirements of this chapter. 

 

The State’s response: In its submittals, the State of Louisiana indicates that Louisiana’s 

enforceable emission limitations and other control measures are covered in the Louisiana 

Revised Statute (La.R.S.) and those provisions of the Louisiana Administrative Code (LAC) 

Title 33- listed in 40 CFR Part 52 Subpart T. The LDEQ has promulgated rules to implement and 

enforce the NAAQS and other air quality standards. These rules include programs for banking 

and trading of emissions, as well as permits and fees. Periodic revisions to the SIP establish 

timetables and schedules for improving the air quality in nonattainment areas. 

The following chapters of 30 Louisiana Administrative Code (LAC) contain rules relevant for 

this federal requirement: 

Chap.2 Rules and Regulations for the Fee System of the Air Quality Control Programs 

Chap. 5 Permit Procedures 

Chap. 9 General Regulations on Control of Emissions and Emissions Standards 

Chap. 13 Emissions Standards for Particulate Matter (Including Standards for Some 

Specific Facilities) 

Chap. 21 Control of Emissions of Organic Compounds 

Chap. 22 Control of Emissions of Nitrogen Oxides (NOx) 

EPA analysis: Section 110(a)(2)(A) requires that all measures and other elements in the SIP be 

enforceable by the State. This subsection also authorizes SIPs to contain certain nontraditional 

techniques for reducing pollution – economic incentives, marketable permits, and auctions of 

emissions rights. The EPA reads this language to require even these other means of achieving 

reductions to be enforceable by the State.5

 

 LAC Title 33 Part III defines the Louisiana air quality program. This Part includes a 

variety of control methods; and provides for control techniques and compliance timeframes. The 

Louisiana Environmental Quality Act (LEQA) names the LDEQ as the State’s air pollution 

control agency and provides enforcement authority to the LDEQ. 

LAC Title 33 Part III Chapter 5 addresses general and specific requirements for 

permits by rule, including enforceable emission limits, control methods and compliance 

 

3

 http://www.ecfr.gov/cgi-bin/textidx?SID=6e98cdf87e1b896da1b0a8cc2d2f69d6&mc=true&node=sp40.3.52.t&rgn=div6 

4

 The discussion of section 110(a)(2), subsections (A) through (M) begins on p. 13556 of the General Preamble. 

5

 See 57 FR 13498, beginning on p. 13556. 
Page 5 of 29

timeframes. Chapter 6 establishes the means of enabling stationary sources to identify and 

preserve or acquire emission reductions for New Source Review offsets and subchapter 607 

defines and discusses the acceptable methods of creating methods of reducing emissions to 

receive credit and the criteria for Emission Reduction Credits (ERC) including enforceability 

(LAC 33.III.605). Chapter 7 provides information about ambient air quality, including 

standards, degradation of ambient air measurements of concentrations of particulate matter, 

sulfur dioxide, carbon monoxide, atmospheric oxidants, nitrogen oxides and lead. Chapter 9 

provides general regulations on control of emissions and emission standards, including new 

sources, emissions monitoring requirements, variances record keeping and annual reporting, 

and emissions inventory. Chapter 11 establishes requirements for control of air pollution from 

smoke and visible emissions, and includes requirements for specified sources. Chapter 13 

establishes emissions standards for particulate matter, Chapter 15 for sulfur dioxide, Chapter 

21 control of emissions or organic compounds and Chapter 22 control of emissions of 

nitrogen oxides. 

The State's rules at 33 LAC Part III.2, 5, 6, 7, 9, 13, 15, 21 and 22 were approved by 

EPA for adoption into the SIP and thus are enforceable by the State and EPA, and US citizens 

are offered legal recourse to address violations as described in section 304 of the Act. 

Section of SIP Referenced in Louisiana’ 

Submittal 

EPA Approval/FR Citation

LAC 33: Part III Chapter 1 General 

Provisions 

March 8, 1989 at 54 FR 9783 

LAC33: Part III Chapter 2 Rules and 

Regulations for Fee System 

October 23, 1995 60 FR 54308 

 LAC 33: Part III Chapter 5 Permit 

Procedures 

March 8, 1989 at 54 FR 9783 

March 6, 1992 at 57 FR 08076 

October 15, 1996 at 61 FR 53639 

September 30, 2002 at 67 FR 61270 

September 28, 2007 at 72 FR 55064 

April 17, 2014 at 79 FR 21631 

November 5, 2015 at 80 FR 68451 

LAC 33: Part III Chapter 6 Regulations on 

Control of Emissions Reduction Credits 

Banking 

September 27, 2002 67 FR 60877 

November 5, 2015 at 80 FR 68451 

LAC 33: Part III Chapter 7 Ambient Air 

Quality 

March 8, 1989 54 FR 25451 

July 5, 2011 76 FR 38977 

LAC 33: Part III Chapter 9 General 

Regulations on Control of Emissions and 

Emission Standards 

March 8, 1989 54 FR 09795 

July 5, 2011 76 FR 38977 

LAC 33: Part III Chapter 13 Emission 

Standards for Particulate Matter

March 8, 1989 54 FR 09795 

June 15, 1989 54 FR 25451 

July 5, 2011 76 FR 38977 

LAC 33: Part III Chapter 15 Emission 

Standards for Sulfur Dioxide 

July 15, 1993 58 FR 38060 

July 5, 2011 76 FR 38977 

LAC 33: Part III Chapter 21 Control of

Emissions of Organic Compounds March 8, 1989 54 FR 09795 

May 5, 1994 59 FR 23166 

July 5, 2011 76 FR 38977 

December 2, 2011 76 FR 75467 
Page 6 of 29

Section of SIP Referenced in Louisiana’ 

Submittal 

EPA Approval/FR Citation

LAC 33: Part III Chapter 22 Control of 

Emissions of Nitrogen Oxides 

July 5, 2011 76 FR 38977 

November 30, 2011 76 FR 7400 

We reviewed the Louisiana SIP and found state rules adequate to implement and enforce the 

2006 PM2.5, 2008 Pb, 2008 O3, 2010 NO2, 2010 SO2 and 2012 PM2.5 NAAQS, and limit or 

reduce emissions of PM2.5, Pb, O3, NO2, and SO2.

The Louisiana SIP meets the requirements of section 110(a)(2)(A). 

2. Ambient air quality monitoring and data analysis system: Section 110(a)(2)(B) requires 

SIPs to include provisions for establishment and operation of ambient air quality monitors, 

collecting and analyzing ambient air quality data, and making these data available to EPA upon 

request. 

The State’s response: In its submittal, LDEQ stated that LDEQ operates an approved air quality 

monitoring network consistent with EPA regulations (40 CFR 50.4, and 40 CFR 52.995). LDEQ 

has monitored for SO2 since January 1, 1970, for NO2 since the1980s, and for PM2.5 since 1999. 

Under LDEQ’s Grant Work Plan, the department monitors compiles, and analyzes the data for 

SO2, O3, NO2, PM2.5.

6,7 Louisiana submits annual monitoring plans to the EPA that describe how 

the state has complied with monitoring requirements and explains any proposed changes. 

Federally required monitoring is conducted under an EPA-approved Quality Assurance Project 

Plan (QAPP). 

EPA analysis: The rules at 33 LAC Part III. 9, 15, and 51 address air monitoring requirements 

pursuant to 40 CFR 58. 

As noted in the Federal Register notice for this proposed action, our analysis included 

review of Louisiana’s recurrent 5-year ambient monitoring network assessment submitted in July 

1, 20108 and Louisiana’s annual ambient monitoring network review submitted in July 2015. 

Copies of these documents and EPA’s response are available in the docket for this rulemaking. 

LDEQ provides verified monitoring data from regulatory monitors within the state to the 

EPA annually, and certified design values for areas of Louisiana are determined using only data 

from regulatory air quality monitors. LDEQ’s current and planned PM2.5, PB,O3, NO2 and SO2

monitoring networks comply with its requirements in 40 CFR Part 58 

We are proposing that the Louisiana SIP meets the requirements of section 110(a)(2)(B). 

3. Program for enforcement of control measures: Section 110(a)(2)(C) requires states to 

include a program providing for enforcement of the measures described in subparagraph (A), and 

the regulation of the modification and construction of any stationary sources within the areas 

covered by the SIP as necessary to assure that the NAAQS are achieved, including a permit 

program as required in parts C and D. 

 

6

http://www.deq.louisiana.gov/portal/DIVISIONS/assessment/airfieldservices/ambientairmonitoringprogram/ambien

tairmonitoringdataandreports.aspx 

7

 http://airquality.deq.louisiana.gov/ 

8

 TCEQ submitted the 2010 5-year ambient monitoring network assessment and annual ambient monitoring network 

review on June 30, 2015. EPA is currently reviewing these submittals. 
Page 7 of 29

The State's response: The LDEQ operates an EPA-approved air permitting program for major 

and minor sources. These programs established rules governing the enforcement of control 

measures, including attainment plans and permitting programs that regulate construction and 

modification of stationary sources. The PSD program applies to all NSR pollutants, including 

greenhouse gases (GHG). 

LDEQ referenced the following of the following chapters of LAC contain rules relevant for this 

federal requirement: 

Chap. 1: General Provisions 

Chap. 3: Regulatory Permits 

Chap. 5: Permit Procedures 

Chap. 7: Ambient Air Quality 

Chap. 9: General Regulations on Control of Emissions and Emission Standards 

Chap.14: Conformity 

Chap. 21: Control of Emission of Organic Compounds 

Chap. 22: Control of Emissions of Nitrogen Compounds (NOx) 

EPA analysis: Enforcement authority is provided by LAR.S.30:2025, which addresses general 

enforcement power; civil suits for damages; compliance orders and emergency cease and desist 

orders; expedited enforcement program; civil and criminal penalties; civil action, and etc. The 

procedures for handling investigations, complaints, and confidentiality are provided in Chapter 1. 

Emissions reduction credits, banking record keeping and reporting requirements are provided in 

Chapter 6. Enforcement of emissions inventory requirements is provided in Chapter 9. 

Additional enforcement issues addressed in Chapters 5, 7, 14, 21, 22 and 55. LAC includes 

allowable rates, compliance schedules, control plan requirements, actual and allowable 

emissions, monitoring and testing requirements, and control schedules. 

The statutory and regulatory programs that regulate the construction and modification of 

major stationary sources in nonattainment and attainment/unclassifiable areas are termed New 

Source Review(NSR) and are provided under parts C and D of the Act and 40 CFR 51.166. Part 

C of the Act requires prevention of significant deterioration of air quality (PSD). The PSD 

program regulates the construction of any new major sources located in areas meeting the 

NAAQS. Such areas are designated as attainment/unclassifiable. In nonattainment area, any 

stationary pollutant source with the potential to emit 100 tons per year (tpy) or more of any 

regulated NSR pollutant is considered a major stationary source. In PSD areas the cutoff level 

may be either 100 tpy or 250 tpy, depending upon the source9

. 

New major stationary sources and major10 modifications at existing major stationary 

sources have several requirements under the Act, one of which is to obtain an air pollution 

permit before construction begins. This pre-construction11 permitting process for major 

stationary sources is called new source review (NSR) and is required whether the major source 

or major modification is planned for an area where the NAAQS are exceeded (nonattainment 

areas) or an area where the NAAQS have not been exceeded (attainment and unclassifiable 

areas). In general, permits for sources in attainment areas and for other pollutants regulated under 

the major source program are referred to as PSD permits, while permits for major sources 

 

9

 Section 169 of the Act 

10 A major source is one with the potential to emit at least 100 tons per year (tpy) or 250 tpy, depending upon 

the source, per section 169(1) of the Act.

11 After construction, the source must obtain an operating permit, also called a Title V permit, as this requirement 

comes from Title V of the Act. Most Title V permits are issued by State and local permitting authorities. These 

permits are often called part 70 permits because the regulations that establish minimum standards for State permit 

programs are found in Title 40 of the Code of Federal Regulations (CFR) at part 70 (denoted 40 CFR 70). 
Page 8 of 29

emitting nonattainment pollutants and located in nonattainment areas are referred to as 

nonattainment NSR (NNSR) permits. The entire preconstruction permitting program, including 

both the PSD and NNSR permitting programs, is referred to as the NSR program. The statutory 

and regulatory programs that regulate NSR are provided under part C of the Act, and 40 CFR 

51.160 through 51.166. Part C of the Act requires prevention of significant deterioration (PSD) 

of air quality and is codified at 40 CFR 51.166. 

The Louisiana minor source permitting requirements are contained at 33 LAC Chapter 5 

and were approved on March 8, 1989 (54 FR 9783). The SIP continues to require 

preconstruction permits for minor sources and minor modifications. Louisiana’s PSD program 

was initially approved into the SIP on April 24, 1987 (52 FR 13671).12 The PSD program 

approved by EPA into the Louisiana SIP does not apply to sources on lands under the 

jurisdiction of Indian governing bodies because the LDEQ does not have jurisdiction over such 

lands. Revisions to Louisiana’s PSD program were approved by EPA into the SIP on June 15, 

1989 (54 FR 25449), May 2, 1991 (56 FR 20137), and October 15, 1996 (61 FR 53639). EPA 

recently promulgated the increments, significant impact levels and significant monitoring 

concentration for PM2.5 (75 FR 64864, October 20, 2010) and these increments will become 

applicable on October 20, 2011. 

 EPA fully approved into the Louisiana SIP plans to implement the Nonattainment NSR 

(NNSR) provisions of the Act on February 10, 1982.13 Subsequent revisions to the NNSR 

procedures were adopted on June 10, 1986 (51 FR 20967, for visibility), January 5, 1999 (64 FR 

413), May 31, 2001 (66 FR 29491), and September 30, 2002 (67 FR 61260), April 17, 2014 (79 

FR 21668) and most recently on November 5, 2015 (80 FR 68451). 

We are proposing that the Louisiana SIP meets the standards with respect to the general 

requirement in section 110(a)(2)(C) to include a program in the SIP that regulates the 

modification and construction of any stationary source as necessary to assure that the NAAQS 

are achieved. However, EPA is not proposing to approve or disapprove Louisiana’s existing 

minor NSR program to the extent that it may be inconsistent with EPA's regulations governing 

this program. EPA has maintained that the CAA does not require that new infrastructure SIP 

submissions correct any defects in existing EPA-approved provisions of minor NSR programs in 

order for EPA to approve the infrastructure SIP for element C (e.g., 76 FR 41076-41079). EPA 

believes that a number of states may have minor NSR provisions that are contrary to the existing 

EPA regulations for this program. The statutory requirements of section 110(a)(2)(C) provide for 

considerable flexibility in designing minor NSR programs, and EPA believes it may be time to 

revisit the regulatory requirements for this program to give the states an appropriate level of 

flexibility to design a program that meets their particular air quality concerns, while assuring 

reasonable consistency across the country in protecting the NAAQS with respect to new and 

modified minor sources. 

4. Interstate transport, and interstate and international pollution abatement: Section 

110(a)(2)(D) is divided into two components, 110(a)(2)(D)(i) and 110(a)(2)(D)(ii). 

Section 110(a)(2)(D)(i) is also divided into two components. Section 110(a)(2)(D)(i)(I) requires 

SIPs to address any emissions activity in one state that contributes significantly to nonattainment, 

 

12 In the original SIP, promulgated on May 31, 1972 (37 FR 10841, 10869), the EPA disapproved the State’s rules 

for review of new sources and modifications because the State’s rules were not legally enforceable. EPA granted 

partial authority to Louisiana for the technical and administrative review portions of the PSD program on August 28, 

1981 and a notice was published in the Federal Register (FR) on January 6, 1982 (47 FR 6710). Additional 

authority was granted to the State for compliance inspection and review of the compliance test reports for the PSD 

sources on February 8, 1982, and a notice was published in the FR on March 15, 1982 (47 FR 11107). 

13 EPA conditionally approved the NNSR program on February 14, 1980 (45 FR 9903), until LA revised their rules 

to comply with the requirements of sections 173(2) and (3) of the Act. 
Page 9 of 29

or interferes with maintenance, of the NAAQS in another state. Section 110(a)(2)(D)(i)(II) 

requires SIPs to include provisions prohibiting any sources or other types of emissions activity in 

one state from interfering with measures required of any other state to prevent significant 

deterioration of air quality or from interfering with measures required of any other state to 

protect visibility. 

Section 110(a)(2)(D)(ii) requires SIPs to include provisions ensuring compliance with 

sections 115 and 126 of the Act, relating to interstate and international pollution abatement. 

Section 126(a) requires new or modified sources to notify neighboring states of potential impacts 

from the source. Louisiana’s PSD program contains the element pertaining to notification to 

neighboring states of the issuance of PSD permits. Section 115 relates to the international 

pollution abatement portion of 110(a)(2)(D)(ii). As there are no findings by EPA that air 

emissions originating in Louisiana affect other countries, we propose to approve the portions of 

the i-SIPs pertaining to CAA section 110(a)(2)(D)(ii). 

The EPA interprets section 110(a)(2) to require air agencies to address all as part of each 

infrastructure SIP submission. 

The State's response: 

 PM2.5

For both the 2006 and 2012 PM2.5 NAAQS submittals, the submittal stated: Louisiana has 

submitted and EPA has approved the CAIR SIPs for both SO2 and NOx. Both of these SIPs meet 

the requirements of Section 110(a)(2)(D). See 72 FR 39741/72 FR 55064. 

On May 21, 2013 LDEQ submitted additional information to their May 16, 2011 

submittal for the 2006 PM2.5 NAAQS. The new information stated that modeling conducted by 

EPA for the Cross State Air Pollution Rule (CSAPR) was now available and supported the 

conclusion made in the May 16, 2011 submittal that emissions in Louisiana do not significantly 

contribute to non-attainment or interfere with maintenance of the 2006 PM2.5 NAAQS in any 

other state. While the CSAPR was vacated by the court, the technical analysis regarding 

transport of particulate matter its precursors from Louisiana is still relevant and valid. 

Louisiana is presently covered under CSAPR FIP for NOx; EPA has recently released a 

newly revised model for the 2008 Ozone NAAQS. The model has indicated that pollutants from 

Louisiana impact there specific areas; however, there are no sources in Louisiana that are 

currently subject to an active finding under section 126 of the CAA with respect to the 2012 

PM2.5 NAAQS. 

Air quality modeling evaluating interstate transport for the 2006 PM2.5 support the 

conclusion that Louisiana did not have an impact on either downwind nonattainment or 

maintenance receptors. The air quality modeling performed for the Transport Rule found that the 

impact was less than the 1 percent threshold (79 FR 4437, January 28, 2014). Currently, 

Louisiana is in compliance with the new standard. 

Louisiana submitted a Regional Haze SIP June 13, 2008. The Regional Haze SIP 

contains measures that will assist with visibility impairment. Louisiana is currently working with 

facilities on BART analyses to show no impact. 

The PSD program applies to all NSR pollutants, including greenhouse gases (GHG) and 

PM2.5. The GHG rule (AQ315) was promulgated in the Louisiana Register on April 20, 2011 and 

submitted to EPA for approval on December 21, 2011. 

LDEQ revised LAC 33:III.509, Prevention of Significant Deterioration with substantive 

changes to rule AQ 328ft. The rule was finalized in the Louisiana Register on December 20, 

2012 and submitted to EPA for SIP approval on February 7, 2013. 
Page 10 of 29

Lead 

Louisiana is currently in attainment for PM2.5; with the final promulgation of the CSAPR, 

Louisiana will be covered for Ozone Season NOx only. 

Ozone 

 Louisiana has submitted and EPA has approved the CAIR SIPs for both SO2 and NOx for 

the 1997 8 hour Ozone NAAQS. Both of these SIPs meet the requirements of Section 

110(a)(2)(D). See 72 FR 39741 and 72 FR 55064. 

 On August 21, 2012, the U.S. Court of Appeals vacated the 2011 CSAPR and also 

ordered the EPA to “continue administering CAIR pending the promulgation of a valid 

replacement.” In a November 19, 2012 Memorandum by EPA Assistant Administrator Gina 

McCarthy, EPA stated that CAIR emission reductions are permanent and enforceable until any 

“further proceedings in the CSAPR case are resolved or... until a valid replacement rule is 

developed...” 

 While the SIPs may be revised following the outcome of EPA’s petition and or an 

interstate transport rule replacement, the controls that have been installed under CAIR will 

remain in place in accordance with LAC 33:III.905, which states that when air pollution control 

facilities have been installed on a property “they shall be used and diligently maintained in 

proper working order whenever any emissions are being made which can be controlled by the 

facilities, even though the ambient air quality standards in affected areas are not exceeded.” 

 As it relates to the 2008 8-hour Ozone NAAQS EPA does not presently view section 

110(a)(2)(D)(i)(I) (significant contribution to nonattainment prong and interference with 

maintenance prong) as a “required submission” consistent with the D.C. Circuit Court’s opinion 

in EME City Generation v. EPA, 696 F.3d7,31 (D.C. Cir 2012). In that opinion, the D.C. Circuit 

Court concluded that a SIP submission to address Section 110(a)(2)(D)(i)(I) cannot be 

considered a “required” SIP submission until EPA has first quantified a state’s obligation 

regarding transported pollutants. 

 Louisiana submitted a Regional Haze SIP June 13, 2008. The Regional Haze SIP 

contains measure that will assist with reducing visibility impairment. 

 The PSD program applies to all NSR pollutants, including GHG and PM2.5. 

 The GHG rule (AQ315) was promulgated in the Louisiana Register on April 20, 2011. 

 LDEQ revised LAC 33:III.509, Prevention of Significant Deterioration with substantive 

changes to rule AQ 328ft. The rule was finalized in the Louisiana Register on December 20, 

2012 and submitted to EPA for SIP approval on February 7, 2013. 

 Nitrogen Dioxide and Sulfur Dioxide 

 Louisiana has submitted and EPA has approved the CAIR SIPs for both SO2 and NOx. 

Both of these SIPs meet the requirements of SEC 110(a)(2)(D). See 72 FR 39741 and 72 FR 

55064. 

 On August 21, 2012, the U.S. Court of Appeals vacated the 2011 CSAPR and also 

ordered the EPA to “continue administering CAIR pending the promulgation of a valid 

replacement.” In a November 19, 2012 Memorandum by EPA Assistant Administrator Gina 

McCarthy, EPA stated that CAIR emission reductions are permanent and enforceable until any 

“further proceedings in the CSAPR case are resolved or... until a valid replacement rule is 

developed...” 

 While the SIPs may be revised following the outcome of EPA’s petition and an interstate 

transport rule replacement, the controls that have been installed under CAIR will remain in place 

in accordance with LAC 33:III.905, which states that when air pollution control facilities have 

been installed on a property “they shall be used and diligently maintained in proper working 

order whenever any emissions are being made which can be controlled by the facilities, even 

though the ambient air quality standards in affected areas are not exceeded.” 
Page 11 of 29

 As it relates to the 2010 1-hour NO2 primary standard and the Annual NO2 secondary 

standard EPA does not presently view section 110(a)(2)(D)(i)(I) (significant contribution to 

nonattainment prong and interference with maintenance prong) as a “required submission” 

consistent with the D.C. Circuit Court’s opinion in EME City Generation v. EPA, 696 F.3d7,31 

(D.C. Cir 2012). In that opinion, the D.C. Circuit Court concluded that a SIP submission to 

address Section 110(a)(2)(D)(i)(I) cannot be considered a “required” SIP submission until EPA 

has first quantified a state’s obligation regarding transported pollutants. 

 Louisiana submitted a Regional Haze SIP June 13, 2008. The Regional Haze SIP 

contains measure that will assist with reducing visibility impairment. 

 The PSD program applies to all NSR pollutants, including GHG and PM2.5. 

 The GHG rule (AQ315) was promulgated in the Louisiana Register on April 20, 2011. 

 LDEQ revised LAC 33:III.509, Prevention of Significant Deterioration with substantive 

changes to rule AQ 328ft. The rule was finalized in the Louisiana Register on December 20, 

2012 and submitted to EPA for SIP approval on February 7, 2013. 

 

EPA analysis: 

 PM2.5

79 FR 4436 published on January 28, 2014, EPA proposed to approve the first two 

elements of section 110(a)(2)(D)(i)(I) for the 2006 PM2.5 NAAQS based on the additional 

information. This action was finalized on April 15, 2014, published in 79 FR 21144. This action 

was taken because LDEQ reviewed and presented information from EPA modeling conducted to 

support EPA’s Transport Rule proposal. Review of the same study14 with respect to the 2012 

PM2.5 projected that Louisiana's air quality contribution to downwind nonattainment receptors in 

all other states did not exceed the threshold, however the maintenance receptors may be 

exceeded. LDEQ did not provide additional information on the nonattainment/maintenance 

component for the 2012 PM2.5 NAAQS and we are not taking action on this portion of the 

submittal at this time. 

Based on information presented in this submission, we are approving the portion of the iSIP pertaining to requirement 3 (interference with PSD measures in other States) for both the 

2006 and 2012 PM2.5 as Louisiana has a fully acceptable PSD program, regulating all NSR 

pollutants, including greenhouse gas (GHG) which prevents significant deterioration in nearby 

states. Since Louisiana’s Regional Haze plan was not fully approved, we are disapproving the 

portion of the i-SIP for the fourth part of 110(a)(2)(D)(i) for both 2006 and 2012 PM2.5. We 

cannot ensure that Louisiana emissions will not interfere with visibility protection measures in 

other States. 

Lead 

The physical properties of Pb, which is a metal and very dense, prevent Pb emissions 

from experiencing a significant degree of travel in the ambient air. No complex chemistry is 

needed to form Pb or Pb compounds in the ambient air; therefore, ambient concentrations of Pb 

are typically highest near Pb sources. More specifically, there is a sharp decrease in ambient Pb 

concentrations as the distance from the source increases. According to EPA's report entitled Our 

Nation's Air: Status and Trends Through 201015, Pb concentrations that are not near a source of 

Pb are approximately 8 times less than the typical concentrations near the source.16 Similarly, 

although Pb can be a component of coarse and fine particles, Pb generally comprises only a 

small fraction these particles. A recent EPA study conducted to evaluate the extent that Pb could 

 

14 EPA-R06-OAR-2011-0500-0004 15 http://www.epa.gov/airtrends/2011/ 

16 http://www.epa.gov/airtrends/2011/report/fullreport.pdf 
Page 12 of 29

impact visibility concluded that Pb-related visibility impacts at Class I areas were found to be 

insignificant (e.g., less than 0.10% contribution). Based on this and review of Pb concentrations 

reported in Louisiana, we are recommending approving Section 110(a)(2)(D)(i) for Pb. 

Ozone 

At this time we are not proposing action on interstate transport requirements 1 and 2 for 

the ozone i-SIP. We plan to act on this portion of the i-SIP in a separate action. 

Based on information presented in this submission, see above, we are proposing approval 

of requirement “interference with PSD” element as Louisiana has a fully acceptable PSD 

program, regulating all NSR pollutants, including greenhouse gas (GHG) which prevents 

significant deterioration in nearby states. Since Louisiana’s Regional Haze plan was not fully 

approved, we are not approving the “interference with visibility protection” element of 

110(a)(2)(D)(i). 

 Nitrogen Dioxide 

On February 17, 2012, EPA designated the entire country as “unclassifiable/attainment” 

for NO2, explaining that this designation means that available information does not indicate that 

the air quality in these areas exceeds the 2010 NO2 NAAQS.”17 In other words, Louisiana and all 

neighboring states are currently designated as “unclassifiable/ attainment” for the 2010 

NO2 NAAQS.18 The NO2 emission from Louisiana are not expected to cause or contribute to a 

violation of the 2010 NO2 NAAQS in another state, and these emissions are not likely to 

interfere with the maintenance of the 2010 NO2 NAAQS in another state. Therefore, EPA 

proposes that Louisiana has met this set of requirements related to section 110(a)(2)(D)(i)(I) for 

the 2010 NO2 NAAQS.

Based on information presented in this submission, we are proposing approval of the 

“interference with PSD” requirement as Louisiana has a fully acceptable PSD program, 

regulating all NSR pollutants, including greenhouse gas (GHG) which prevents significant 

deterioration in nearby states. Since Louisiana’s Regional Haze plan was not fully approved, we 

are not proposing approval of the “interference with visibility protection” requirement of 

100(a)(2)(D)(i). 

 Sulfur Dioxide 

At this time we are not proposing action on interstate transport requirements 1 and 2 for 

the SO2 i-SIP. We plan to act on this portion of the i-SIP in a separate action. 

Based on information presented in this submission (see above) we are proposing approval 

of requirement “interference with PSD” element as Louisiana has a fully acceptable PSD 

program, regulating all NSR pollutants, including greenhouse gas (GHG) which prevents 

significant deterioration in nearby states. Since Louisiana’s Regional Haze plan was not fully 

approved, we are not approving the “interference with visibility protection” element of 

110(a)(2)(D)(i). 

5. Adequate personnel, funding, and authority: Section 110(a)(2)(E) requires states to 

provide for adequate personnel, funding, and legal authority under state law to carry out its SIP 

and related programs. It also requires compliance with state board composition and conflicts of 

interest contained in Section 128 of the Act and requires assurances that the state retain primacy 

for implementation of the SIP in cases where the state relies upon local or regional government 

agencies. 

 

17 77 FR 9532, February 17,2012 18 http://www.epa.gov/no2designations/state.html 
Page 13 of 29

The State’s response: Louisiana works closely with the various stakeholder groups upon the 

announcement of new national ambient air quality standards; the LDEQ participates in an 

advisory capacity in the Baton Rouge Clean Air Coalition. Louisiana has no local governmental 

entities that have air pollution control capacity. 

EPA analysis: Each SIP must show that the state has legal authority to carry out the plan (40 

CFR 51.230). 

The State delegated the LDEQ as its air quality control agency, this delegation was 

adopted into the original SIP on May 31, 1972 (37 FR 10842). LA R.S. 30:2011 established the 

State’s air quality program within the LDEQ. LA R.S. 30:2011 also sets forth the powers of the 

LDEQ and by LA R.S.30:2019 authorizes the promulgation by the LDEQ of rules and 

regulations. Originally enacted by the State Legislature as the law of the State by Act 449 of 

1979 and amended by Act 97 of 1983, the authority of the LDEQ is also described in 33 LAC 

chapter 1, adopted into the SIP at 54 FR 9783.19 

To address adequate funding, the LA R.S. 30:2011 charges the LDEQ with preparing and 

developing the SIP and provides the secretary of the LDEQ with the powers and duties to “... 

receive and budget duly appropriated monies and to accept, receive, and administer grants or 

other funds or gifts from public and private agencies, including the federal government, to carry 

out the provisions and purposes of this Subtitle” (R.S. 30:2011.D.10). In addition, the LDEQ 

annually receives Federal funds, authorized pursuant to Sections 103 and 105 of the Act. The 

Section 103 provides for the funding of support specific, non-recurring projects within the air 

program, thus the amount of funding can vary widely from year to year. Section 105 provides for 

the funding and support of the foundation of the State’s air quality program, including the air 

monitoring network and annual air quality program activities. Section 105 funding levels are 

relatively consistent, varying not more than about 10% from year to year. Section 105 funds 

require a 40% match from the State, while the Section 103 funds do not require a match. 

Finally, this section of the Act, in part, requires that a state provide for necessary 

assurances that they have adequate personnel to implement the SIP. Louisiana under State statute 

is required to employ sufficient personnel to carry out this SIP. LouisianaR.S.30:2011.F provides 

for "basic personnel and necessary scientific, technical, administrative, and operational services, 

including laboratory facilities as may be necessary to carry out the provisions of this Subtitle, 

shall be employed or provided by the department; however, the department may, by contract, 

secure such services as it may deem necessary from any other department, board, or agency of 

the state government, any educational institution, or the federal government; may arrange for 

compensation for such services; and may employ and compensate, within appropriations 

available therefore, such consultants and legal and technical assistance on a full or part-time 

basis as may be necessary to carry out the provisions of this Subtitle, and prescribe their duties." 

This provision assures that Louisiana is statutorily required to retain adequate personnel to 

implement this SIP. 

Based upon review of the state's infrastructure SIP submission for the 2006 PM2.5, 2008 

Pb, 2008 O3, 2010 NO2, 2010 SO2 and 2012 PM2.5 NAAQS, and relevant statutory and 

regulatory authorities and provisions referenced in the submissions or referenced in Louisiana’ 

SIP, EPA believes that the requirements of Section 110(a)(2)(E) are met. 

6. Stationary source emissions monitoring and reporting: Section 110(a)(2)(F) requires, as 

may be prescribed by the Administrator, (i) the installation, maintenance and replacement of 

equipment, and the implementation of other necessary steps, by owners or operators of stationary 

sources to monitor emissions from such sources, (ii) periodic reports on the nature and amounts 

 

19 Enforcement authority is provided by LA R.S.30:2025 
Page 14 of 29

of emissions and emissions-related data from such sources, and (iii) correlation of such reports 

by the State agency with any emission limitations or standards established pursuant to this Act, 

which reports shall be available at reasonable times for public inspection. 

The State's response: The SIP pertaining to stationary source emissions monitoring was 

submitted to EPA on November 15, 1994 and was approved on February 6, 1995 (60 FR 

02014).20 The most recent revisions were submitted on September 14, 2004 and November 9, 

2007 and approved on July 5, 2011 (76 FR 38977). This SIP revision meets the requirements set 

forth in CAA Section 110(a)(2)(F). 

Chapter 9 of LAC 33: III contain rules relevant for this federal requirement. 

EPA analysis: 33 LAC chapters 7, 9, 13, 15 and 21 - 23 require source monitoring for 

compliance, recordkeeping and reporting, and provide for enforcement, with respect to the 

NAAQS for PM2.5, ozone and their precursors. These source monitoring program requirements 

generate data for the pollutants, including ozone and PM2.5 and their precursors. 

Under the Louisiana SIP rules, LDEQ is required to analyze the emissions data from 

point, area, mobile, and biogenic (natural) sources. LDEQ uses this data to track progress 

towards maintaining the NAAQS, develop control and maintenance strategies, identify sources 

and general emission levels, and determine compliance with Louisiana and EPA requirements. 

The State’s emissions data are available on the LDEQ website (www.deq.louisiana.gov). These 

rules have been approved by EPA into the SIP. A list of the chapters and Federal Register 

citations are provided below. 

The National Emissions Inventory (NEI) is EPA’s central repository for air emissions 

data. EPA published the Air Emissions Reporting Rule (AERR) on December 4, 2008, which 

modified the requirements for collecting and reporting air emissions data (73 FR 76539, 

December 17, 2008). The AERR shortened the time states had to report emissions data from 17 

to 12 months, giving states one calendar year to submit emissions data. All states are required to 

submit a comprehensive emissions inventory (EI) every three years and report emissions for 

certain larger sources annually through EPA’s online Emissions Inventory System (EIS). States 

report emissions data for the six criteria pollutants and the precursors that form them – NOx, 

SO2, ammonia, lead, carbon monoxide, PM, and VOCs. Many states also voluntarily report 

emissions of hazardous air pollutants. EPA compiles the emissions data, supplementing it where 

necessary, and releases it to the general public through the website 

http://www3.epa.gov/ttnchie1/trends/. 

There are two additional requirements that Louisiana must meet regarding emissions 

inventories: the EI requirement for nonattainment areas, and the requirement to submit annual EI 

data to EPA’s NEI database. For the Baton Rouge ozone nonattainment area, the LDEQ 

submitted an EI SIP with a 2002 base year which included NOx and VOC data. EPA approved 

this EI SIP on August 21, 2009 (74 FR 45561, September 3, 2009). 

Based upon review of the state's infrastructure SIP submission for the NAAQS for these 

pollutants, and relevant statutory and regulatory authorities and provisions referenced in the 

submission or referenced in Louisiana’s SIP, EPA believes that the requirements of section 

110(a)(2)(F) are met. 

We note the following chapters within the State SIP as relevant to meet the requirements 

of section 110(a)(2)(F): 

 

20 60 FR 02014 was signed on December 6, 1994, published in the FR on Jan 6, 1995, with the effective date of Feb. 

6, 1995. 
Page 15 of 29

Chapter 7 Ambient Air Quality 

Chapter 9 General Regulations on Control of Emissions and Emission Standards 

Chapter 13 Emission Standards for Particulate Matter 

Chapter 15 Emission Standards for Sulfur Dioxide 

Chapter 21 Control of Emissions of Organic Compounds 

Chapter 22 Control of Emissions of Nitrogen Oxides (NOx) 

Chapter 23 Control of Emissions from Specific Industries 

7. Emergency power: Section 110(a)(2)(G) requires states to provide for authority to address 

activities causing imminent and substantial endangerment to public health, including adequate 

contingency plans to implement the emergency episode provisions in their SIPs. 

The State's response: The “Prevention of Air Pollution Emergency Episodes” provision was 

promulgated by LDEQ on December 20, 1987. Revisions were made to the SIP in January 1988, 

and approved on March 8, 1989 (54 FR 09795). 

The following chapters of LAC 33:III contain rules relevant for this federal requirement: 

Chap.56 Prevention of Air Pollution Emergency Episodes 

EPA analysis: The LDEQ has authority to formulate contingency plans for environmental 

emergencies, pursuant to LA R.S.30:2011D(15) and has authority to issue cease and desist orders 

as provided in LA R.S.30:2025, which provides enforcement authority. The State addresses 

Prevention of Air Pollution Emergency Episodes at 33 LAC 56; these rules include contingency 

plans and were approved into the Louisiana SIP (see 54 FR 9783 and 54 FR 25449). 

We compared the State’s rules to 40 CFR 51 Subpart H – Prevention of Air Pollution 

Emergency Episodes and Appendix L to Part 51 - Example Regulations for Prevention of Air 

Pollution Emergency Episodes. Subpart H provides a classification system for episode plans. 

Each region in a state is classified separately with respect to each of the following pollutants: 

Sulfur dioxide, PM, carbon monoxide, nitrogen dioxide, and ozone (40 CFR 51.150). The table 

below summarizes the classification for the pollutants. Note that a classification scheme for 8-

hour ozone is not addressed under Subpart H and while the table does not identify whether PM 

refers to PM10 or PM2.5, the date of promulgation for Subpart H would support PM10 November 

7, 1986 (see 51 FR 40668), as amended on July 20, 1993 (see 58 FR 38822). 

Classification of Regions for Episode Plans (40 CFR 51.150) 

Parameter Priority I Priority II Priority III 

Ozone Ambient concentrations 

> 195 μg/m3

 (0.10 ppm) 

1-hour maximum 

Not defined Areas which do not 

meet the criteria for 

Priority I 

Particulate 

Matter 

Ambient concentration 

> 95 μg/m3

 annual 

geometric mean; 325 

μg/m3

24-hour maximum 

Ambient 

concentrations 

between 60-95 μg/m3

annual geometric 

mean; 150-325 μg/m3

24-hour maximum. 

Areas which do not 

meet the criteria for 

Priority I or II 

Nitrogen 

Dioxide 

Ambient concentrations 

> 100 μg/m3

 (0.06 ppm) 

Annual arithmetic mean 

Not defined Areas which do not 

meet criteria for 

Priority I 
Page 16 of 29

Sulfur Dioxide Ambient concentrations 

> 100 μg/m3

 (.04 ppm) 

annual arithmetic mean; 

455 μg/m3

 (0.17 ppm) 24-

hour maximum. 

Ambient 

concentrations 

> 2.620 μg/m3 (1.0 

ppm) 24-hour 

average 

Areas which do not 

meet the criteria for 

Priority I or II. 

The significant harm level (SHL) for the pollutants will all remain unchanged since amended at 

52 FR 24713, Jul 1, 1987, and as indicated in 40 CFR 51.151. EPA believes that the existing of 

40 CFR Subpart H remain appropriate. Therefore, EPA expects that for purposes of the 2006 

PM2.5, 2008 O3, 2010 NO2, 2010 SO2 and 2012 PM2.5 NAAQS, states need only to confirm that 

they have existing emergency episode plan provisions consistent with EPA’s existing regulatory 

requirements. 

The 33 LAC Chapter 56 addresses the pollutants specified under 40 CFR 51.150. Using 

2011-2014 data, we determined that areas within Louisiana meet the classification for Priority I 

for Ozone, NO2, and SO2. We found that 33 LAC 56 is consistent with the provisions of 40 CFR 

51.151 and 152, and Appendix L to Part 51. The State's rules at 33 LAC 56 include contingency 

plans and were approved into the Louisiana SIP (see 54 FR 9783 and 54 FR 25451). 

While the State has appropriate general emergency powers to address PM2.5 related 

episodes, SHLs for PM2.5 are not provided under Subpart H, nor have SHLs for the 2006 PM2.5

standards been proposed by EPA. The Louisiana SIP has not been revised to address contingency 

plans for PM2.5. To evaluate whether the Louisiana SIP provides adequate contingency plans for 

the 2006 PM2.5 NAAQS, EPA used guidance issued in 2009 for the 2006 PM2.5 NAAQS.21 The 

2009 Guidance for PM2.5 recommends that a state with at least one monitored 24-hour PM2.5

value exceeding 140.4 μg/m3 since 2006 establish an emergency episode plan and contingency 

measures to be implemented should such level be exceeded again. Additionally, the 2009 

Guidance for PM2.5 recommends that if no area of a state has exceeded this 140.4 μg/m3 level 

since 2006 and the state has appropriate general emergency powers to address PM2.5 related 

episodes, then no specific emergency episode plans are necessary at this time given the existing 

monitored levels. The 2006-2014 data for Louisiana22 do not exceed 140.4 μg/m3 and have 

consistently remained below the level of 140.4 μg/m3. In fact, these data indicate that Louisiana’s 

PM2.5 levels have stayed below 100 μg/m3

. In addition, Subpart H at 51.153 provides for 

reevaluation of episode plans and requires that, “States should periodically reevaluate priority 

classifications of all Regions or portion of Regions within their borders. The reevaluation must 

consider the three most recent years of air quality data. If the evaluation indicates a change to a 

higher priority classification, appropriate changes in the episode plan must be made as 

expeditiously as practicable.” Louisiana’s data does not indicate a change to a higher priority, but 

suggests that emergency episode plans for the NAAQS are not needed at this time. 

Louisiana law limits LDEQ’s authority over certain agricultural practices. The LEQA at 

Chapter 3, Louisiana Air Control Law, Section 2054(B)(2)(b)(iii)-(vi) reads: 

(b) Nothing in this law shall be deemed to grant to the secretary any jurisdiction or 

authority to make any rule, regulation, recommendations, or determination with respect to any of 

the following: 

 

21 “Guidance on SIP Elements Required Under Section 110(a)(1) and (2) for the 2006 24-Hour Fine Particle 

(PM2.5) 

National Ambient Air Quality Standards (NAAQS)”, September 29, 2009 memorandum from William T. Harnett, 

Director, Air Quality Policy Division to Regional Air Division Directors. 

The PM data are available to the public through the State website (www.deq.louisiana.gov).22 
Page 17 of 29

(i) Air conditions existing solely within the property boundaries of commercial 

and industrial plants, works, or shops. 

(ii) Relations between employers and employees with respect to or arising out of 

any air condition. 

(iii) Burning of agricultural by-products in the field in connection with the 

planting, harvesting, or processing of agricultural products. 

(iv) Controlled burning of cotton gin agricultural wastes in connection with cotton 

gin operations. 

(v) Controlled burning in connection with timber stand management. 

(vi) Controlled burning of pastureland or marshland in connection with trapping 

In addition, EPA approved the burning of agricultural lands as an exemption to the SIP 

requirements in 1989 (54 FR 9783). The State has no nonattainment areas for the 2006 PM2.5 

NAAQS and one 2008 8 hour ozone nonattainment area - Baton Rouge. Finally, LDEQ worked 

with the Louisiana Department of Agriculture and Forestry (LDAF) to create a state-wide Smoke 

Management Plan (SMP) that addresses air quality and minimizes the impacts of prescribed 

burns to the public and the environment. The SMP states that “LDEQ and LDAF will enforce 

national and Louisiana air quality regulations and laws”. The state also has smoke management 

plan has defined “Category Day” characteristics. A Category Day I is a no burning day. The 

smoke management plan requires that Ozone Action Days, whether issued by LDEQ or EPA, be 

declared a Category Day I. 

We are proposing that the Louisiana SIP meets the requirements of section 110(a)(2)(G). 

8. Future SIP revisions: Section 110(a)(2)(H) requires states to have the authority to revise 

their SIPs in response to changes in the NAAQS, availability of improved methods for attaining 

NAAQS, or in response to an EPA finding that the SIP is substantially inadequate. 

The State’s response: Louisiana, through the LDEQ, has revised the SIP as necessary to comply 

with changes to NAAQS or findings of inadequacies. See 79 FR 21142 (effective May 15, 2014) 

for revisions concerning the PM2.5 NAAQS. 

EPA analysis: The LA R.S. 30:2011 authorizes the LDEQ as the primary agency in the State 

concerned with environmental protection and regulation, including but not limited to air quality 

(LA R.S. 30:2011:A(1)). Further, the LDEQ has the power and duty to adopt, amend, or repeal 

all rules, regulations, and standards (LA R.S. 30:2011:D(1)) and per LA R.S. 30:2011D(7) must 

“cooperate with ... the federal government ... in furtherance of the purposes of this Subtitle.” LA 

R.S. 30:2019 addresses the promulgation of rules and regulations and provides an exemption to 

the State’s determination that environmental and public health benefits anticipated from the 

proposed rule outweigh the social and economic costs expected from the proposed rule when the 

proposed revisions are required for compliance with Federal law or regulation. Thus, Louisiana 

has the authority to revise its SIP, as may be necessary to account for revisions of the NAAQS, 

adopt more effective methods of attaining the NAAQS, and respond to EPA SIP calls. We are 

proposing that the Louisiana SIP meets the requirements of section 110(a)(2)(H). 

9. Nonattainment area plans or plan revisions under Part D of the CAA: Section 

110(a)(2)(I) contains provisions related to the submission of nonattainment area plans or plan 

revisions as specified in Part D of the CAA. 
Page 18 of 29

The State's response: SIP revisions that implement the control strategies necessary to bring a 

nonattainment area into attainment of the NAAQS are not required by the CAA to be submitted 

within three years of the promulgation of a new or revised NAAQS. Therefore, §110(a)(1) does 

not require this element to be demonstrated as part of an infrastructure SIP submittal and 

Louisiana did not address this element.(73 FR 16205, at 16206). 

EPA analysis: As noted previously, EPA does not expect infrastructure SIP submissions to 

address subsection 110(a)(2)(I). Nonattainment area plans required under Part D are required to 

be submitted on a different schedule from the Section 110 infrastructure elements and will be 

reviewed and acted upon through a separate process. 

10. Consultation, public notice, and PSD and visibility protection: Section 110(a)(2)(J) is 

divided into three components: consultation with government officials, public notification 

requirements, and provisions for PSD and visibility protection. With regards to consultation with 

government officials, this section requires states to provide a process for consultation with local 

governments and Federal Land Managers (FLMs) carrying out NAAQS implementation 

requirements pursuant to section 121 relating to consultation. Section 110(a)(2)(J) further 

requires states to notify the public if NAAQS are exceeded in an area and to enhance public 

awareness of measures that can be taken to prevent exceedances. Section 110(a)(2)(J) also 

requires States to meet applicable requirements of Part C related to Prevention of Significant 

Deterioration and visibility protection. 

The State's response: Louisiana works with the Federal Land Manager on PSD projects and 

permits. Louisiana also participates in daily forecasting for PM2.5. The PSD program applies to 

all NSR pollutants, including greenhouse gases (GHG) and PM2.5. The GHG rule (AQ315) was 

promulgated in the Louisiana Register on April 20, 2011 and submitted to EPA for approval on 

December 21, 2011. LDEQ revised LAC 33:III.509, Prevention of Significant Deterioration 

with substantive changes to rule AQ 328ft. The rule was finalized in the Louisiana Register on 

December 20, 2012 and submitted to EPA for approval on February 7, 2013. Louisiana also 

participates in daily forecasting for PM2.5. 

EPA analysis: Regarding consultation with government officials and public notification, the LA 

R.S. 30:2011 provides that the secretary of the LDEQ, “... shall hold a public hearing to receive 

comments ... from all interested parties and the public” prior to the adoption of any rule or 

regulation (LA R.S. 30:2011D(1)). In addition, R.S. 30:2011 provides that the secretary shall 

have the power and duty “to advise, consult, and cooperate with other agencies of the state, the 

federal government, other states, and interstate agencies and with affected groups, political 

subdivisions, interested agricultural, industrial, professional, and environmental groups and 

individuals in furtherance of the purposes of this Subtitle.” (See LA R.S. 30:2011D(1)). In 

addition, Section 509 of 33 LAC 5 provides that the State must consult with Federal Land 

Managers prior to requesting redesignation of any Class I or Class II areas.23 Section 1434 of 33 

LAC 14 requires that interagency consultation be undertaken before making conformity 

determinations and before adopting applicable SIP revisions, and public hearings shall be held to 

receive public comment on transportation-related SIPs.24 These rules are in the Federallyapproved SIP. We are proposing that the Louisiana SIP meets the requirements of this portion of 

section 110(a)(2)(J). 

 

23 See 54 FR 9783 

24 See 64 FR 72938 
Page 19 of 29

Section 110(a)(2)(J) further requires states to notify the public if NAAQS are exceeded in 

an area and to enhance public awareness of measures that can be taken to prevent exceedances. 

The State implements a voluntary Ozone Action Day (OAD) program in the five parishes that 

comprise the Baton Rouge ozone nonattainment area. The program is accessible through the 

LDEQ website and includes measures that individuals and organizations can implement to 

reduce ozone levels and exposure to ozone. Also on the LDEQ website, one can subscribe to 

Enviroflash, an electronic information system that provides instant air quality information via email, cell phone, or pager.25 In addition, air quality forecasts and other air quality information is 

available on the LDEQ website.26 Provisions regarding public availability of emission data were 

approved into the SIP on July 7, 1982 (47 FR 29535). We are proposing that the Louisiana SIP 

meets this portion of section 110(a)(2)(J). 

Regarding PSD and visibility protection, Section 110(a)(2)(J) requires States to meet 

applicable requirements of Part C related to PSD and visibility protection. As detailed in section 

C above, Louisiana’s PSD program has been approved into the SIP. EPA approved Louisiana’s 

Visibility Protection Plan into the Louisiana SIP on June 10, 1986 (51 FR 20967). EPA approved 

revisions to Louisiana’s Visibility Protection Plan and approved a Long-Term Strategy for 

Visibility Protection into the Louisiana SIP on December 19, 1988 (53 FR 50958). With regard 

to the applicable requirements for visibility protection, EPA recognizes that states are subject to 

visibility and regional haze program requirements under sections 169A and 169B of the Act. I 

the event of the establishment of a new NAAQS, however, these visibility and regional haze 

program requirements do not change. Thus, we find that there is no new visibility obligation 

triggered under section 110(a)(2)(J) when a new NAAQS becomes effective. We are proposing 

that the Louisiana SIP meets this portion of section 110(a)(2)(J). 

11. Air quality modeling and submission of data: Section 110(a)(2)(K) requires that SIPs 

provide for performing air quality modeling to predict effects on air quality resulting from 

emissions of any NAAQS pollutant, and submission of such data to EPA upon request. 

The State’s response: LDEQ contracts the attainment modeling requirement when necessary. 

Modeling was done for all nonattainment areas in the instance of Ozone as well as Regional 

Haze. 

 Prior to the 2008 Pb NAAQS revision, EPA approved LAS 33:III Chapter 13: Emission 

Standards for Particulate Matter, Subchapter E, Leadened Particulate Matter into the Louisiana 

State Implementation Plan at 54 FR 09795 on March 8, 1989 at 40 CFR 50.970(c)(49) effective 

May 8, 1989. 

EPA analysis: Modeling and emissions reductions measures have been submitted by the State 

and approved into the SIP. For example, we reference the air modeling and emissions reduction 

data submitted within the Attainment Demonstration for the Shreveport-Bossier City Early 

Action Compact Area, approved by EPA on August 22, 2005 (70 FR 48880).27 In addition, the 

LA R.S. 30:2011D(7) authorizes the LDEQ to cooperate with the federal government, allowing 

LDEQ to make these submissions to the EPA. We are proposing that the Louisiana SIP meets 

the requirements of section 110(a)(2)(K). 

 

25 http://www.deq.louisiana.gov/portal/ 

26 http://www.deq.louisiana.gov/portal/PROGRAMS/Air.aspx 

27 The docket for this Shreveport-Bossier City rulemaking action is available through www.regulations.gov. The 

docket ID is EPA-R06-OAR-2005-LA-0001. 
Page 20 of 29

12. Permitting fees: Section 110(a)(2)(L) requires SIPs to require each major stationary source 

to pay permitting fees to cover the cost of reviewing, approving, implementing and enforcing a 

permit. 

The State's response: Section 223. Fee Schedule Listing Approved by EPA 10/23/95 (60 FR 

54308) at 52.970(c)(66) effective 12/22/95. Louisiana has an approved permit fee structure. 

 

EPA analysis: EPA analysis: In addition to the State’s response, revisions to Louisiana’s Permit 

Fee System were approved into the SIP on May 3, 1984 (49 FR 18825), March 8, 1989 (54 FR 

9783) and April 21 2016 (81 FR 23425). A lengthy list of additional fees for annual 

maintenance, new applications, and major and minor modified permit fees were approved into 

the Louisiana SIP at 54 FR 9783 and 59 FR 14112 (March 25, 1994). Operating permits, also 

known as Title V and associated fees legally are not part of the SIP, but were approved by EPA 

on September 12, 1995 (60 FR 47296) as part of the Louisiana Title V Program. We are 

proposing that the Louisiana SIP meets the requirements of section 110(a)(2)(L). 

13. Consultation/participation by affected local entities: Section 110(a)(2)(M) requires states 

to provide for consultation and participation in SIP development by local political subdivisions 

affected by the SIP. 

The State’s response: Louisiana includes these entities as part of the stakeholder group before 

plan implementation begins. 

EPA analysis: As described under element J above, regarding consultation with government 

officials and public notification, the LA R.S. 30:2011 provides that the secretary of the LDEQ, 

“... shall hold a public hearing to receive comments ... from all interested parties and the public” 

prior to the adoption of any rule or regulation (LA R.S. 30:2011D(1)). In addition, LA R.S. 

30:2011 provides that the secretary shall have the power and duty “to advise, consult, and 

cooperate with other agencies of the state, the federal government, other states, and interstate 

agencies and with affected groups, political subdivisions, interested agricultural, industrial, 

professional, and environmental groups and individuals in furtherance of the purposes of this 

Subtitle.” (See LA R.S. 30:2011D(7)). We also cross-reference the discussion in element J 

above, where the State rules require interagency consultation before making conformity 

determinations and before adopting applicable SIP revisions; and public hearings shall be held to 

receive public comment on transportation-related SIPs.28These rules are in the federally 

approved SIP. We are proposing that the Louisiana SIP meets the requirements of this portion of 

section 110(a)(2)(M). 

IV. EPA’s Recommendation

We reviewed Louisiana’s submittal, SIP, and recent air quality data for PM2.5, Pb, O3, NO2, and 

SO2 for compliance with the requirements of sections 110(a)(1) and (2) of the Act for the 2006 

PM2.5, 2008 Pb, 2008 O3, 2010 NO2, 2010 SO2 and 2012 PM2.5 NAAQS. Based on these 

evaluations, we recommend that EPA propose to approve the submittal provided by the State of 

Louisiana, except for the portions pertaining to CAA section 110(a)(2)(D)(i)(I) for ozone, SO2

and 2012 PM2.5 and the visibility protection part of CAA section 110(a)(2)(D)(i)(II) for PM2.5, 

 

28 See 64 FR 72938. 
Page 21 of 29

ozone, NO2 and SO2. In a separate action we proposed to approve the portions 110(a)(2)(D)(i) 

not addressed in this action. 110(a)(2)(D)(i)(II) will be addressed after Louisiana has an 

approved regional haze plan. The submittal adequately addresses the infrastructure elements 

specified in the CAA section 110(a)(2) that are necessary to implement, maintain, and enforce 

the 2006 PM2.5, 2008 Pb, 2008 O3, 2010 NO2, 2010 SO2 and 2012 PM2.5 NAAQS. 

Our recommendations for approval of the Louisiana infrastructure SIP for the 2006 PM2.5, 

2008 Pb, 2008 O3, 2010 NO2, 2010 SO2 and 2012 PM2.5 NAAQS are laid out in the following 

summary table:

 
Page 22 of 29

Proposed Action on Louisiana Infrastructure SIP Submittal for various NAAQS 

Key: Proposed action on LA infrastructure SIP submittals for various NAAQS 

A- Approve 

A*- Approved at an earlier date 

+- Not germane to infrastructure SIPs 

No action- EPA is taking no action on this infrastructure requirements 

NA- Not applicable 

D- Disapprove 

V. References 

1. Guidance on Infrastructure State Implementation Plan (SIP) Elements under Clean Air Act 

Sections 110(a)(1) and 110(a)(2),” Memorandum from Stephen D. Page, September 13, 2013 

 

Element 2006 

PM 2.5

2008 

Pb 

2008 

Ozone 

2010 

NO2

2010 

SO2

2012

PM2.5

(A): Emission limits and other control measures A A A A A A

(B): Ambient air quality monitoring and data system A A A A A A

(C)(i):Enforcement of SIP measures A A A A A A

(C)(ii):PSD program for major sources and major 

modifications 

A A A A A A

(C)(iii): Permitting program for minor sources and minor 

modifications 

A A A A A A

(D)(i)(I):Contribute to nonattainment/interfere with 

maintenance of NAAQS (requirements 1 and 2) 

A* A No 

action 

A No 

action 

No

action

(D)(i)(II): PSD (requirement 3) A A A A A A

(D)(i)(II): Visibility Protection (requirement 4) D A D D D D

(D)(ii): Interstate and International Pollution Abatement A A A A A A

(E)(i): Adequate resources A A A A A A

(E)(ii): State boards A A A A A A

(E)(iii): Necessary assurances with respect to local 

agencies 

A A A A A A

(F): Stationary source monitoring system A A A A A A

(G): Emergency power A A A A A A

(H): Future SIP revisions A A A A A A

(I):Nonattainment area plan or plan revisions under part 

D 

+ + + + + +

(J)(i): Consultation with government officials A A A A A A

(J)(ii): Public notification A A A A A A

(J)(iii): PSD A A A A A A

(J)(iv): Visibility protection + + + + + +

(K): Air quality modeling and data A A A A A A

(L): Permitting fees A A A A A A

(M): Consultation and participation by affected local 

entities 

A A A A A A
Page 23 of 29

Appendix A 

EPA’s Approach to the Review of Infrastructure SIP Submissions 

EPA is acting upon this SIP submission that address the infrastructure requirements of CAA 

sections 110(a)(1) and 110(a)(2) for NAAQS. The requirement for states to make a SIP 

submissions of these types arises out of CAA section 110(a)(1). Pursuant to section 110(a)(1), 

states must make SIP submissions “within 3 years (or such shorter period as the Administrator 

may prescribe) after the promulgation of a national primary ambient air quality standard (or any 

revision thereof),” and these SIP submissions are to provide for the “implementation, 

maintenance, and enforcement” of such NAAQS. The statute directly imposes on states the duty 

to make these SIP submissions, and the requirement to make the submissions is not conditioned 

upon EPA’s taking any action other than promulgating a new or revised NAAQS. Section 

110(a)(2) includes a list of specific elements that “[e]ach such plan” submission must address. 

EPA has historically referred to these SIP submissions made for the purpose of satisfying the 

requirements of CAA sections 110(a)(1) and 110(a)(2) as “infrastructure SIP” submissions. 

Although the term “infrastructure SIP” does not appear in the CAA, EPA uses the term to 

distinguish this particular type of SIP submission from submissions that are intended to satisfy 

other SIP requirements under the CAA, such as “nonattainment SIP” or “attainment plan SIP” 

submissions to address the nonattainment planning requirements of part D of title I of the CAA, 

“regional haze SIP” submissions required by EPA rule to address the visibility protection 

requirements of CAA section 169A, and nonattainment new source review permit program 

submissions to address the permit requirements of CAA, title I, part D. 

Section 110(a)(1) addresses the timing and general requirements for infrastructure SIP 

submissions, and section 110(a)(2) provides more details concerning the required contents of 

these submissions. The list of required elements provided in section 110(a)(2) contains a wide 

variety of disparate provisions, some of which pertain to required legal authority, some of which 

pertain to required substantive program provisions, and some of which pertain to requirements 

for both authority and substantive program provisions.29 EPA therefore believes that while the 

timing requirement in section 110(a)(1) is unambiguous, some of the other statutory provisions 

are ambiguous. In particular, EPA believes that the list of required elements for infrastructure 

SIP submissions provided in section 110(a)(2) contains ambiguities concerning what is required 

for inclusion in an infrastructure SIP submission. 

The following examples of ambiguities illustrate the need for EPA to interpret some section 

110(a)(1) and section 110(a)(2) requirements with respect to infrastructure SIP submissions for a 

given new or revised NAAQS. One example of ambiguity is that section 110(a)(2) requires that 

“each” SIP submission must meet the list of requirements therein, while EPA has long noted that 

this literal reading of the statute is internally inconsistent and would create a conflict with the 

nonattainment provisions in part D of title I of the Act, which specifically address nonattainment 

 

29 For example: Section 110(a)(2)(E)(i) provides that states must provide assurances that they have adequate legal 

authority under state and local law to carry out the SIP; section 110(a)(2)(C) provides that states must have a SIPapproved program to address certain sources as required by part C of title I of the CAA; and section 110(a)(2)(G) 

provides that states must have legal authority to address emergencies as well as contingency plans that are triggered 

in the event of such emergencies. 
Page 24 of 29

SIP requirements.30 Section 110(a)(2)(I) pertains to nonattainment SIP requirements and part D 

addresses when attainment plan SIP submissions to address nonattainment area requirements are 

due. For example, section 172(b) requires EPA to establish a schedule for submission of such 

plans for certain pollutants when the Administrator promulgates the designation of an area as 

nonattainment, and section 107(d)(1)(B) allows up to two years, or in some cases three years, for 

such designations to be promulgated.31 This ambiguity illustrates that rather than apply all the 

stated requirements of section 110(a)(2) in a strict literal sense, EPA must determine which 

provisions of section 110(a)(2) are applicable for a particular infrastructure SIP submission. 

Another example of ambiguity within sections 110(a)(1) and 110(a)(2) with respect to 

infrastructure SIPs pertains to whether states must meet all of the infrastructure SIP requirements 

in a single SIP submission, and whether EPA must act upon such SIP submission in a single 

action. Although section 110(a)(1) directs states to submit “a plan” to meet these requirements, 

EPA interprets the CAA to allow states to make multiple SIP submissions separately addressing 

infrastructure SIP elements for the same NAAQS. If states elect to make such multiple SIP 

submissions to meet the infrastructure SIP requirements, EPA can elect to act on such 

submissions either individually or in a larger combined action. Similarly, EPA interprets the 

CAA to allow it to take action on the individual parts of one larger, comprehensive infrastructure 

SIP submission for a given NAAQS without concurrent action on the entire submission. For 

example, EPA has sometimes elected to act at different times on various elements and subelements of the same infrastructure SIP submission.32

Ambiguities within sections 110(a)(1) and 110(a)(2) may also arise with respect to infrastructure 

SIP submission requirements for different NAAQS. Thus, EPA notes that not every element of 

section 110(a)(2) would be relevant, or as relevant, or relevant in the same way, for each new or 

revised NAAQS. The states’ attendant infrastructure SIP submissions for each NAAQS therefore 

could be different. For example, the monitoring requirements that a state might need to meet in 

its infrastructure SIP submission for purposes of section 110(a)(2)(B) could be very different for 

different pollutants, for example because the content and scope of a state’s infrastructure SIP 

submission to meet this element might be very different for an entirely new NAAQS than for a 

minor revision to an existing NAAQS.33 

EPA notes that interpretation of section 110(a)(2) is also necessary when EPA reviews other 

types of SIP submissions required under the CAA. Therefore, as with infrastructure SIP 

 

30 See, e.g., “Rule To Reduce Interstate Transport of Fine Particulate Matter and Ozone (Clean Air Interstate Rule); 

Revisions to Acid Rain Program; Revisions to the NOx SIP Call; Final Rule,” 70 FR 25162, at 25163 – 65 (May 12, 

2005) (explaining relationship between timing requirement of section 110(a)(2)(D) versus section 110(a)(2)(I)). 

31 EPA notes that this ambiguity within section 110(a)(2) is heightened by the fact that various subparts of part D set 

specific dates for submission of certain types of SIP submissions in designated nonattainment areas for various 

pollutants. Note, e.g., that section 182(a)(1) provides specific dates for submission of emissions inventories for the 

ozone NAAQS. Some of these specific dates are necessarily later than three years after promulgation of the new or 

revised NAAQS. 

32 On December 14, 2007, the State of Tennessee, through the Tennessee Department of Environment and 

Conservation, made a SIP revision to EPA demonstrating that the State meets the requirements of sections 110(a)(1) 

and (2). EPA proposed action for infrastructure SIP elements (C) and (J) on January 23, 2012 (77 FR 3213) and took 

final action on March 14, 2012 (77 FR 14976). On April 16, 2012 (77 FR 22533) and July 23, 2012 (77 FR 42997), 

EPA took separate proposed and final actions on all other section 110(a)(2) infrastructure SIP elements of 

Tennessee’s December 14, 2007 submittal. 

33 For example, implementation of the 1997 PM2.5 NAAQS required the deployment of a system of new monitors to 

measure ambient levels of that new indicator species for the new NAAQS. 
Page 25 of 29

submissions, EPA also has to identify and interpret the relevant elements of section 110(a)(2) 

that logically apply to these other types of SIP submissions. For example, section 172(c)(7) 

requires that attainment plan SIP submissions required by part D have to meet the “applicable 

requirements” of section 110(a)(2). Thus, for example, attainment plan SIP submissions must 

meet the requirements of section 110(a)(2)(A) regarding enforceable emission limits and control 

measures and section 110(a)(2)(E)(i) regarding air agency resources and authority. By contrast, it 

is clear that attainment plan SIP submissions required by part D would not need to meet the 

portion of section 110(a)(2)(C) that pertains to the PSD program required in part C of title I of 

the CAA, because PSD does not apply to a pollutant for which an area is designated 

nonattainment and thus subject to part D planning requirements. As this example illustrates, each 

type of SIP submission may implicate some elements of section 110(a)(2) but not others. 

Given the potential for ambiguity in some of the statutory language of section 110(a)(1) and 

section 110(a)(2), EPA believes that it is appropriate to interpret the ambiguous portions of 

section 110(a)(1) and section 110(a)(2) in the context of acting on a particular SIP submission. In 

other words, EPA assumes that Congress could not have intended that each and every SIP 

submission, regardless of the NAAQS in question or the history of SIP development for the 

relevant pollutant, would meet each of the requirements, or meet each of them in the same way. 

Therefore, EPA has adopted an approach under which it reviews infrastructure SIP submissions 

against the list of elements in section 110(a)(2), but only to the extent each element applies for 

that particular NAAQS. 

Historically, EPA has elected to use guidance documents to make recommendations to states for 

infrastructure SIPs, in some cases conveying needed interpretations on newly arising issues and 

in some cases conveying interpretations that have already been developed and applied to 

individual SIP submissions for particular elements.34 EPA most recently issued guidance for 

infrastructure SIPs on September 13, 2013 (2013 Guidance).35 EPA developed this document to 

provide states with up-to-date guidance for infrastructure SIPs for any new or revised NAAQS. 

Within this guidance, EPA describes the duty of states to make infrastructure SIP submissions to 

meet basic structural SIP requirements within three years of promulgation of a new or revised 

NAAQS. EPA also made recommendations about many specific subsections of section 110(a)(2) 

that are relevant in the context of infrastructure SIP submissions.36 The guidance also discusses 

the substantively important issues that are germane to certain subsections of section 110(a)(2). 

Significantly, EPA interprets sections 110(a)(1) and 110(a)(2) such that infrastructure SIP 

submissions need to address certain issues and need not address others. Accordingly, EPA 

 

34 EPA notes, however, that nothing in the CAA requires EPA to provide guidance or to promulgate regulations for 

infrastructure SIP submissions. The CAA directly applies to states and requires the submission of infrastructure SIP 

submissions, regardless of whether or not EPA provides guidance or regulations pertaining to such submissions. 

EPA elects to issue such guidance in order to assist states, as appropriate. 35 “Guidance on Infrastructure State Implementation Plan (SIP) Elements under Clean Air Act Sections 110(a)(1) 

and 110(a)(2),” Memorandum from Stephen D. Page, September 13, 2013. 

36 EPA’s September 13, 2013, guidance did not make recommendations with respect to infrastructure SIP 

submissions to address section 110(a)(2)(D)(i)(I). EPA issued the guidance shortly after the U.S. Supreme Court 

agreed to review the D.C. Circuit decision in EME Homer City, 696 F.3d7 (D.C. Cir. 2012) which had interpreted 

the requirements of section 110(a)(2)(D)(i)(I). In light of the uncertainty created by ongoing litigation, EPA elected 

not to provide additional guidance on the requirements of section 110(a)(2)(D)(i)(I) at that time. As the guidance is 

neither binding nor required by statute, whether EPA elects to provide guidance on a particular section has no 

impact on a state’s CAA obligations. 
Page 26 of 29

reviews each infrastructure SIP submission for compliance with the applicable statutory 

provisions of section 110(a)(2), as appropriate. 

As an example, section 110(a)(2)(E)(ii) is a required element of section 110(a)(2) for 

infrastructure SIP submissions. Under this element, a state must meet the substantive 

requirements of section 128, which pertain to state boards that approve permits or enforcement 

orders and heads of executive agencies with similar powers. Thus, EPA reviews infrastructure 

SIP submissions to ensure that the state’s SIP appropriately addresses the requirements of section 

110(a)(2)(E)(ii) and section 128. The 2013 Guidance explains EPA’s interpretation that there 

may be a variety of ways by which states can appropriately address these substantive statutory 

requirements, depending on the structure of an individual state’s permitting or enforcement 

program (e.g., whether permits and enforcement orders are approved by a multi-member board 

or by a head of an executive agency). However they are addressed by the state, the substantive 

requirements of section 128 are necessarily included in EPA’s evaluation of infrastructure SIP 

submissions because section 110(a)(2)(E)(ii) explicitly requires that the state satisfy the 

provisions of section 128. 

As another example, EPA’s review of infrastructure SIP submissions with respect to the PSD 

program requirements in sections 110(a)(2)(C), (D)(i)(II), and (J) focuses upon the structural 

PSD program requirements contained in part C and EPA’s PSD regulations. Structural PSD 

program requirements include provisions necessary for the PSD program to address all regulated 

sources and NSR pollutants, including GHGs. By contrast, structural PSD program requirements 

do not include provisions that are not required under EPA’s regulations at 40 CFR 51.166 but are 

merely available as an option for the state, such as the option to provide grandfathering of 

complete permit applications with respect to the 2012 PM2.5 NAAQS. Accordingly, the latter 

optional provisions are types of provisions EPA considers irrelevant in the context of an 

infrastructure SIP action. 

For other section 110(a)(2) elements, however, EPA’s review of a state’s infrastructure SIP 

submission focuses on assuring that the state’s SIP meets basic structural requirements. For 

example, section 110(a)(2)(C) includes, inter alia, the requirement that states have a program to 

regulate minor new sources. Thus, EPA evaluates whether the state has an EPA-approved minor 

new source review program and whether the program addresses the pollutants relevant to that 

NAAQS. In the context of acting on an infrastructure SIP submission, however, EPA does not 

think it is necessary to conduct a review of each and every provision of a state’s existing minor 

source program (i.e., already in the existing SIP) for compliance with the requirements of the 

CAA and EPA’s regulations that pertain to such programs. 

With respect to certain other issues, EPA does not believe that an action on a state’s 

infrastructure SIP submission is necessarily the appropriate type of action in which to address 

possible deficiencies in a state’s existing SIP. These issues include: (i) existing provisions related 

to excess emissions from sources during periods of startup, shutdown, or malfunction that may 

be contrary to the CAA and EPA’s policies addressing such excess emissions (“SSM”); (ii) 

existing provisions related to “director’s variance” or “director’s discretion” that may be contrary 

to the CAA because they purport to allow revisions to SIP-approved emissions limits while 

limiting public process or not requiring further approval by EPA; and (iii) existing provisions for 

PSD programs that may be inconsistent with current requirements of EPA’s “Final NSR 

Improvement Rule,” 67 FR 80186 (December 31, 2002), as amended by 72 FR 32526 (June 13, 
Page 27 of 29

2007) (“NSR Reform”). Thus, EPA believes it may approve an infrastructure SIP submission 

without scrutinizing the totality of the existing SIP for such potentially deficient provisions and 

may approve the submission even if it is aware of such existing provisions.37 It is important to 

note that EPA’s approval of a state’s infrastructure SIP submission should not be construed as 

explicit or implicit re-approval of any existing potentially deficient provisions that relate to the 

three specific issues just described. 

EPA’s approach to review of infrastructure SIP submissions is to identify the CAA requirements 

that are logically applicable to that submission. EPA believes that this approach to the review of 

a particular infrastructure SIP submission is appropriate, because it would not be reasonable to 

read the general requirements of section 110(a)(1) and the list of elements in 110(a)(2) as 

requiring review of each and every provision of a state’s existing SIP against all requirements in 

the CAA and EPA regulations merely for purposes of assuring that the state in question has the 

basic structural elements for a functioning SIP for a new or revised NAAQS. Because SIPs have 

grown by accretion over the decades as statutory and regulatory requirements under the CAA 

have evolved, they may include some outmoded provisions and historical artifacts. These 

provisions, while not fully up to date, nevertheless may not pose a significant problem for the 

purposes of “implementation, maintenance, and enforcement” of a new or revised NAAQS when 

EPA evaluates adequacy of the infrastructure SIP submission. EPA believes that a better 

approach is for states and EPA to focus attention on those elements of section 110(a)(2) of the 

CAA most likely to warrant a specific SIP revision due to the promulgation of a new or revised 

NAAQS or other factors. 

For example, EPA’s 2013 Guidance gives simpler recommendations with respect to carbon 

monoxide than other NAAQS pollutants to meet the visibility requirements of section 

110(a)(2)(D)(i)(II), because carbon monoxide does not affect visibility. As a result, an 

infrastructure SIP submission for any future new or revised NAAQS for carbon monoxide need 

only state this fact in order to address the visibility prong of section 110(a)(2)(D)(i)(II). 

Finally, EPA believes that its approach with respect to infrastructure SIP requirements is based 

on a reasonable reading of sections 110(a)(1) and 110(a)(2) because the CAA provides other 

avenues and mechanisms to address specific substantive deficiencies in existing SIPs. These 

other statutory tools allow EPA to take appropriately tailored action, depending upon the nature 

and severity of the alleged SIP deficiency. Section 110(k)(5) authorizes EPA to issue a “SIP call” 

whenever the Agency determines that a state’s SIP is substantially inadequate to attain or 

maintain the NAAQS, to mitigate interstate transport, or to otherwise comply with the CAA.38

Section 110(k)(6) authorizes EPA to correct errors in past actions, such as past approvals of SIP 

submissions.39 Significantly, EPA’s determination that an action on a state’s infrastructure SIP 

 

37 By contrast, EPA notes that if a state were to include a new provision in an infrastructure SIP submission that 

contained a legal deficiency, such as a new exemption for excess emissions during SSM events, then EPA would 

need to evaluate that provision for compliance against the rubric of applicable CAA requirements in the context of 

the action on the infrastructure SIP. 

38 For example, EPA issued a SIP call to Utah to address specific existing SIP deficiencies related to the treatment of 

excess emissions during SSM events. See “Finding of Substantial Inadequacy of Implementation Plan; Call for Utah 

State Implementation Plan Revisions,” 74 FR 21639 (April 18, 2011). 

39 EPA has used this authority to correct errors in past actions on SIP submissions related to PSD programs. See 

“Limitation of Approval of Prevention of Significant Deterioration Provisions Concerning Greenhouse Gas 

Emitting-Sources in State Implementation Plans; Final Rule,” 75 FR 82536 (December 30, 2010). EPA has 

previously used its authority under CAA section 110(k)(6) to remove numerous other SIP provisions that the 
Page 28 of 29

submission is not the appropriate time and place to address all potential existing SIP deficiencies 

does not preclude EPA’s subsequent reliance on provisions in section 110(a)(2) as part of the 

basis for action to correct those deficiencies at a later time. For example, although it may not be 

appropriate to require a state to eliminate all existing inappropriate director’s discretion 

provisions in the course of acting on an infrastructure SIP submission, EPA believes that section 

110(a)(2)(A) may be among the statutory bases that EPA relies upon in the course of addressing 

such deficiency in a subsequent action.40 

Appendix B 

EPA’s Evaluation of the June 23, 2014 United States Supreme Court Decision on Green 

House Gas emissions on infrastructure SIP reviews 

With respect to the infrastructure elements contained in Section 110(a)(2)(C) and (J), EPA 

interprets the Clean Air Act to require each state to make an infrastructure SIP submission for a 

new or revised NAAQS that demonstrates that the air agency has a complete PSD permitting 

program meeting the current requirements for all regulated NSR pollutants. One requirement of 

Section 110(a)(2)(D)(i)(II) may also be satisfied by demonstrating the air agency has a complete 

PSD permitting program correctly addressing all regulated NSR pollutants. Louisiana has shown 

that it currently has a PSD program in place that covers all regulated NSR pollutants, including 

greenhouse gases (GHGs), meeting one portion of Section 110(a)(2)(D)(i)(II). 

On June 23, 2014, the United States Supreme Court issued a decision addressing the application 

of PSD permitting requirements to GHG emissions. (see Utility Air Regulatory Group v. 

Environmental Protection Agency, 134 S.Ct. 2427) The Supreme Court said that the EPA may 

not treat GHGs as an air pollutant for purposes of determining whether a source is a major source 

required to obtain a PSD 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 

limitations on GHG emissions based on the application of Best Available Control Technology 

(BACT). In order to act consistently with its understanding of the Court’s decision pending 

further judicial action to effectuate the decision, the EPA is not continuing to apply EPA 

regulations that would require that SIPs include permitting requirements that the Supreme Court 

found impermissible. Specifically, EPA is not applying the requirement that a state’s SIPapproved PSD program require that sources obtain PSD permits when GHGs are the only 

pollutant (i) that the source emits or has the potential to emit above the major source thresholds, 

or (ii) for which there is a significant emissions increase and a significant net emissions increase 

from a modification (e.g. 40 CFR 51.166(b)(48)(v)). EPA anticipates a need to revise federal 

PSD rules in light of the Supreme Court opinion. In addition, EPA anticipates that many states 

will revise their existing SIP-approved PSD programs in light of the Supreme Court’s decision. 

The timing and content of subsequent EPA actions with respect to the EPA regulations and state 

PSD program approvals are expected to be informed by additional legal process before the 

 

Agency determined it had approved in error. See, e.g., 61 FR 38664 (July 25, 1996) and 62 FR 34641 (June 27, 

1997) (corrections to American Samoa, Arizona, California, Hawaii, and Nevada SIPs); 69 FR 67062 (November 

16, 2004) (corrections to California SIP); and 74 FR 57051 (November 3, 2009) (corrections to Arizona and Nevada 

SIPs). 

40 See, e.g., EPA’s disapproval of a SIP submission from Colorado on the grounds that it would have included a 

director’s discretion provision inconsistent with CAA requirements, including section 110(a)(2)(A). See, e.g., 75 FR 

42342 at 42344 (July 21, 2010) (proposed disapproval of director’s discretion provisions); 76 FR 4540 (Jan. 26, 

2011) (final disapproval of such provisions). 
Page 29 of 29

United States Court of Appeals for the District of Columbia Circuit. At this juncture, EPA is not 

expecting states to have revised their PSD programs for purposes of infrastructure SIP 

submissions and is only evaluating such submissions to assure that the state’s program correctly 

addresses GHGs consistent with the Supreme Court’s decision. 

EPA has previously approved Louisiana SIP revisions submitted to align the state’s PSD 

program rules for GHGs with federal requirements. At present, EPA has determined the 

Louisiana SIP is sufficient to satisfy the infrastructure elements of Sections 110(a)(2)(C), part of 

(D)(i)(II), and (J) with respect to GHGs because the PSD permitting program previously 

approved by EPA into the SIP continues to require that PSD permits (otherwise required based 

on emissions of pollutants other than GHGs) contain limitations on GHG emissions based on the 

application of BACT. Although the approved Louisiana PSD permitting program may currently 

contain provisions that are no longer necessary in light of the Supreme Court decision, this does 

not render the infrastructure SIP submission inadequate to satisfy the infrastructure elements of 

Sections 110(a)(2)(C), a portion of (D)(i)(II), and (J). The SIP contains the necessary PSD 

requirements at this time, and the application of those requirements is not impeded by the 

presence of other previously-approved provisions regarding the permitting of sources of GHGs 

that EPA does not consider necessary at this time in light of the Supreme Court decision. 

Accordingly, the Supreme Court decision does not affect EPA’s proposed approval of 

Louisiana’s infrastructure SIP as to the requirements of the infrastructure elements of Sections 

110(a)(2)(C) and (J) or the portion of Section 110(a)(2)(D)(i)(II).