Louisiana State Implemen tation Plan Elements Required Under Section 110(a)(2) for Louisiana; Infrastructure State Implementation Plan Requirements for the National Ambi ent 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 Revi ew of Infrastructure SIP Submissions Appendix B: EPA’s Evaluation of the June 23, 2014 United States Supreme Court decision on greenhouse gas emissions on Louisian a’s infrastructure SIP reviews.

I. Introduction

In this technical support document (TSD), EPA is providing addi tional documentation concerning our evaluation of the submittal pr ovided by the Louisiana Department of Environmental Quality (LDEQ) to meet the requ irements of section 110(a)(2) of the Clean Air Act (CAA or Act) for the 2006 Fi ne Particulate Matter (PM 2.5 ), 2008 Lead (Pb), 2008 Ozone (O 3 ), 2010 Nitrogen Dioxide (NO 2 ), 2010 Sulfur Dioxide (SO 2 ), and 2012 Fine Particulate Matter (PM 2.5 ) National Ambient Air Quality Standards (NAAQS or standards). More detail on these standards, section 110(a)(1) and (2) of th e 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 docum ent, “we,” “us,” and “our” means EPA. Section II of this TSD provides additiona l 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 ad ditional details of our an alysis of the State’s response that are not included in the Federal Register notice for this propo sed action. Copies of the State’s submittal are in the docket for this rulemaking.
Section IV of this TSD includes our recomm endation for action on each of the elements
reviewed herein.
Section V of the TSD contains a list of th e guidance documents cited herein. Copies of the guidance documents referenced ar e in the docket for this rulemaking.Page 2 of 29 Appendices A and B provide additional info rmation 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 NO 2 , PM, and SO 2 (36 FR 8186). The first NAAQS for lead was published on Oc tober 5, 1978 (43 FR 46246). The first NAAQS
for O 3 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 periodi cally 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 y ears following the promulgation of the NAAQS, or within such shorter period as EPA may prescr ibe. 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 main tenance 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. Th e schedule for completion of EPA’ s periodic review of NAAQS was established in Section 109 (d)(1 ) of the CAA, which requires th at “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 qual ity standards, “... and shall
make such revisions in such crit eria and standards and promulgate such new standards as may be appropriate in accordance with section 108. States typically have met many of the ba sic program elements required in section 110(a)(2) through earlier SIP submissions in conn ection 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 meeti ng this statutory requirement, EPA issued guidance on Septem ber 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 PM 2.5 ), June 4, 2013 (2008 O 3, 2010 NO 2 , 2010 SO 2 ), and December 16, 2016 (2012 PM 2.5 ), 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 in cludes 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 de tails of Louisiana’s certification and EPA’s
evaluation that are not in cluded 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 es tablish NAAQS for pollutants that “may reasonably be anticipated to endanger public heal th and welfare,” and to develop a primary and secondary standard for each NAAQS. The primary st andard is designed to protect human health with an adequate margin of safety, and the sec ondary standard is design ed to protect public

1 https://www.epa.gov/criteri a-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, 2013Page 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, ni trogen dioxide, ozone, particulate matter, and sulfur dioxide. These sta ndards 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 se t of state statutes, ai r pollution regulations, control strategies, other means or techniques, an d technical analyses developed by the state, to ensure that the state meets the NAAQS. The SIP is required by section 1 10 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 cont rol strategies to EPA for approval and incorporation into the federall y enforceable SIP. Each federally approved SIP protects air quality primarily by addressi ng 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 in tegral 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 provisi ons 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 re quiring further approval by EPA, that may be contrary to the CAA (“director's discretion”); (iii) existing pr ovisions for minor source NSR programs that may be inconsistent with the requ irements 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 requireme nts 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 author ity to address any such existing SIP defects in other rulemakings, as appropriate. A detailed rationale for why thes e four substantive issues are not part of the scope of infrastructure SI P rulemakings can be found in EPA’s July 13, 2011, final rule entitled, “Infrastructure SIP Requirements for the 1997 8-hour ozone and PM 2.5 National Ambient Air Quality Standards” in the sect ion 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 Dioxi de, 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 “I dentification of plan” lists the EPA-approved provisions of the SIP for each stat e, 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 Louisian a SIP is provided inPage 4 of 29 40 CFR Part 52, Subpart T, sections 970 to 1018 3 . The Identification of plan for Louisiana is in section 970; this consti tutes the applicable SIP for Loui siana, 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 th at a SIP must contain in order to be fully approved. 4 In the following sections of this docum ent 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 th e 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 St ate of Louisiana indicates that Louisiana’s
enforceable emission limitations and other cont rol measures are covered in the Louisiana Revised Statute (La.R.S.) and t hose provisions of the Louisian a Administrative Code (LAC) Title 33- listed in 40 CFR Part 52 Subpart T. Th e LDEQ has promulgated rules to implement and enforce the NAAQS and other ai r quality standards. These ru les include programs for banking and trading of emissions, as well as permits a nd fees. Periodic revisions to the SIP establish timetables and schedules for improving th e air quality in nonattainment areas.

The following chapters of 30 Louisiana Administ rative Code (LAC) contain rules relevant for this federal requirement: Chap.2 Rules and Regulations for the Fee Sy stem 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 Particul ate Matter (Including Standards for Some Specific Facilities) Chap. 21 Control of Emissions of Organic Compounds Chap. 22 Control of Emissions of Nitrogen Oxides (NO x )

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 au thorizes SIPs to contain certain nontraditional techniques for reducing pollution – economic incen tives, 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 c ontrol techniques and co mpliance timeframes. The Louisiana Environmental Quality Act (LEQA) names the LDEQ as the State’s air pollution control agency and provides enforc ement authority to the LDEQ. LAC Title 33 Part III Chapter 5 addresses general and specific requirements for permits by rule, including enforceable emi ssion 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 Re duction Credits (ERC) including enforceability (LAC 33.III.605). Chapter 7 provides information about ambient air quality, including standards, degradation of ambient air measuremen ts of concentrations of particulate matter, sulfur dioxide, carbon monoxide, atmospheric oxi dants, nitrogen oxides and lead. Chapter 9 provides general regulations on control of emissions and emission standards, including new sources, emissions monitoring requirements, va riances record keeping and annual reporting, and emissions inventory. Chapter 11 establishe s requirements for control of air pollution from smoke and visible emissions, and includes re quirements 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 enfo rceable by the State and EPA, and US citizens are offered legal recourse to address violati ons 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

L AC 33: Part III Chapter 6 Regulations on
C ontrol of Emissions Reduction Credits

B anking September 27, 2002 67 FR 60877 November 5, 2015 at 80 FR 68451

L AC 33: Part III Chapter 7 Ambient Air Q uality March 8, 1989 54 FR 25451 July 5, 2011 76 FR 38977

L AC 33: Part III Chapter 9 General

R egulations on Control of Emissions and

E mission Standards March 8, 1989 54 FR 09795 July 5, 2011 76 FR 38977

L AC 33: Part III Chapter 13 Emission
Standards for Particulate Matte r March 8, 1989 54 FR 09795 June 15, 1989 54 FR 25451 July 5, 2011 76 FR 38977

L AC 33: Part III Chapter 15 Emission
Standards for Sulfur Dioxide July 15, 1993 58 FR 38060 July 5, 2011 76 FR 38977 L AC 33 : Part III Ch apter 21 C ontro l o f 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 75467Page 6 of 29 Section of SIP Referenced in Louisiana’
Submittal EPA Approval/FR Citation

L AC 33: Part III Chapter 22 Control of

E missions 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 PM 2.5 , 2008 Pb, 2008 O 3 , 2010 NO 2 , 2010 SO 2 and 2012 PM 2.5 NAAQS, and limit or
reduce emissions of PM 2.5 , Pb, O 3 , NO 2 , and SO 2

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

2. Ambient air quality monitori ng 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 stat ed that LDEQ operates an approved air quality monitoring network consistent with EPA re gulations (40 CFR 50.4, and 40 CFR 52.995). LDEQ
has monitored for SO 2 since January 1, 1970, for NO 2 since the1980s, and for PM 2.5 since 1999. Under LDEQ’s Grant Work Plan, the department monitors compiles, and analyzes the data for
SO 2 , O 3 , NO 2 , PM 2.5

. 6,7 Louisiana submits annual monitoring pl ans to the EPA that describe how the state has complied with monitoring require ments and explains any proposed changes. Federally required monitoring is conducted unde r 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 Regi ster notice for this proposed action, our analysis included review of Louisiana’s recurrent 5-year ambien t monitoring network assessment submitted in July 1, 2010 8 and Louisiana’s annual ambient monitori ng network review submitted in July 2015. Copies of these documents and EPA’s response ar e available in the docket for this rulemaking. LDEQ provides verified monitori ng data from regulatory monito rs within the state to the EPA annually, and certified design va lues for areas of Louisiana are determined using only data from regulatory air quality monitors. LDEQ’s current and planned PM 2.5 , PB,O 3 , NO 2 and SO 2 monitoring networks comply with its requirements in 40 CFR Part 58 We are proposing that the L ouisiana SIP meets the requireme nts 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 th e measures described in subparagraph (A), and the regulation of the modification and constructio n of any stationary sources within the areas covered by the SIP as necessary to assure th at 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 cu rrently 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 perm itting programs that regulate construction and modification of stationary sources. The PSD pr ogram applies to all NSR pollutants, including greenhouse gases (GHG).

LDEQ referenced the following of the following ch apters 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 Contro l of Emissions and Emission Standards Chap.14: Conformity Chap. 21: Control of Emission of Organic Compounds Chap. 22: Control of Emissions of Nitrogen Compounds (NO x )

EPA analysis: Enforcement authority is pr ovided by LAR.S.30:2025, which addresses general enforcement power; civil suits for damages; comp liance 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 keep ing and reporting require ments are provided in Chapter 6. Enforcement of emissions inventor y 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, contro l plan requirements, actual and allowable emissions, monitoring and testing requi rements, and control schedules. The statutory and regulatory programs that regulate the constructi on and modification of major stationary sources in nonattainment and attainment/unclassifiable areas are termed New Source Review(NSR) and are prov ided 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 qua lity (PSD). The PSD program regulates the construction of any new major sources located in areas meeting the NAAQS. Such areas are designate d as attainment/unclassifiable. In nonattainment area, any stationary pollutant source with the potential to emit 100 tons pe r year (tpy) or more of any regulated NSR pollutant is considered a major st ationary source. In PSD areas the cutoff level may be either 100 tpy or 250 tpy, depending upon the source 9

. New major stationary sources and major 10 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-construction 11 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 ar ea where the NAAQS are exceeded (nonattainment areas) or an area where the NAAQS have not be en exceeded (attainment and unclassifiable areas). In general, permits for sources in attain ment 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 regu lations 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 re ferred to as the NSR program. The statutory and regulatory programs that re gulate NSR are provided under part C of the Act, and 40 CFR 51.160 through 51.166. Part C of the Act requires pr evention of significant deterioration (PSD) of air quality and is codified at 40 CFR 51.166. The Louisiana minor source permitting requirem ents 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 L ouisiana 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 we re 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 Septembe r 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 Loui siana 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 necessa ry 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 C AA does not require that new infrastructure SIP submissions correct any defects in existing EP A-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 c ontrary to the existing EPA regulations for this program . The statutory require ments of section 110(a)(2)(C) provide for considerable flexibility in de signing minor NSR programs, and EP A 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 pr otecting 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 component s, 110(a)(2)(D)(i) a nd 110(a)(2)(D)(ii). Section 110(a)(2)(D)(i) is also divided into tw o components. Section 110 (a)(2)(D)(i)(I) requires SIPs to address any emissions activity in one stat e that contributes signif icantly 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 lega lly enforceable. EPA granted partial authority to Louisiana for the technical and administ rative 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 Februa ry 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 NAAQ S in another state. S ection 110(a)(2)(D)(i)(II) requires SIPs to include provision s prohibiting any sources or other types of emissions activity in one state from interfering with measures requ ired of any other state to prevent significant deterioration of air quality or from interferi ng with measures required of any other state to protect visibility. Section 110(a)(2)(D)(ii) requires SIPs to include provisions ensu ring compliance with sections 115 and 126 of the Act, relating to in terstate 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 contai ns the element pertaining to notification to neighboring states of the issuan ce 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 C AA 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:

PM 2.5 For both the 2006 and 2012 PM 2.5 NAAQS submittals, the submittal stated: Louisiana has submitted and EPA has approved the CAIR SIPs for both SO 2 and NO x . 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 PM 2.5 NAAQS. The new information stat ed 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 inte rfere with maintenance of the 2006 PM 2.5 NAAQS in any other state. While the CSAPR was vacated by th e court, the technical analysis regarding transport of particulate matter its precursors fr om Louisiana is still relevant and valid. Louisiana is presently co vered under CSAPR FIP for NO x ; EPA has recently released a newly revised model for the 2008 Ozone NAAQS. Th e model has indicated that pollutants from Louisiana impact there specific areas; however, there are no sources in Louisiana that are currently subject to an activ e finding under section 126 of th e CAA with respect to the 2012

PM 2.5 NAAQS. Air quality modeling ev aluating interstate tr ansport for the 2006 PM 2.5 support the
conclusion that Louisiana did not have an impact on either downwind nonattainment or maintenance receptors. The air quality modeling pe rformed for the Transport Rule found that the impact was less than the 1 percent thres hold (79 FR 4437, January 28, 2014). Currently, Louisiana is in complian ce with the new standard. Louisiana submitted a Regional Haze SI P June 13, 2008. The Regional Haze SIP
contains measures that will assist with visibility impairment. Loui siana is currently working with facilities on BART analys es to show no impact. The PSD program applies to all NSR polluta nts, including greenhouse gases (GHG) and

PM 2.5 . 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 Si gnificant Deteriorati on with substantive changes to rule AQ 328ft. The rule was finali zed 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 PM 2.5 ; with the final promulgation of the CSAPR,
Louisiana will be covered for Ozone Season NO x only.
Ozone Louisiana has submitted and EPA has approved the CAIR SIPs for both SO 2 and NO x 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 A ppeals vacated the 2011 CSAPR and also
ordered the EPA to “continue administeri ng CAIR pending the promulgation of a valid replacement.” In a November 19, 2012 Memora ndum by EPA Assistant Administrator Gina McCarthy, EPA stated that CAIR emission reducti ons 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 cont rols 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 ar e being made which can be controlled by the facilities, even though th e ambient air quality standards in affected areas are not exceeded.” As it relates to the 2008 8-hour Ozone NAAQ S EPA does not presently view section 110(a)(2)(D)(i)(I) (signifi cant contribution to nonattainment prong and interference with maintenance prong) as a “required submission” c onsistent 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 w ith reducing visibility impairment. The PSD program applies to all NSR pollutants, including GHG and PM 2.5

. The GHG rule (AQ315) was promulgated in the Louisiana Register on April 20, 2011. LDEQ revised LAC 33:III.509, Prevention of Si gnificant Deteriorati on with substantive changes to rule AQ 328ft. The rule was finali zed 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 SO 2 and NO x . Both of these SIPs meet the re quirements of SEC 110(a)(2)(D). See 72 FR 39741 and 72 FR
55064. On August 21, 2012, the U.S. Court of A ppeals vacated the 2011 CSAPR and also
ordered the EPA to “continue administeri ng CAIR pending the promulgation of a valid replacement.” In a November 19, 2012 Memora ndum by EPA Assistant Administrator Gina McCarthy, EPA stated that CAIR emission reducti ons 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 th at 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 wh ich 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 NO 2 primary standard and the Annual NO 2 secondary standard EPA does not presently view section 110(a)(2)(D)(i)(I) (significant contribution to nonattainment prong and interference with main tenance 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 concl uded that a SIP submission to address Section 110(a)(2)(D)(i)(I) cannot be cons idered a “required” SIP submission until EPA has first quantified a state’s obligatio n regarding transported pollutants. Louisiana submitted a Regional Haze SIP June 13, 2008. The Regional Haze SIP
contains measure that will assist w ith reducing visibility impairment. The PSD program applies to all NSR pollutants, including GHG and PM 2.5

. The GHG rule (AQ315) was promulgated in the Louisiana Register on April 20, 2011. LDEQ revised LAC 33:III.509, Prevention of Si gnificant Deteriorati on with substantive changes to rule AQ 328ft. The rule was finali zed in the Louisiana Register on December 20, 2012 and submitted to EPA for SIP approval on February 7, 2013.

EPA analysis:

PM 2.5 79 FR 4436 published on January 28, 2014, EP A proposed to approve the first two elements of section 110(a)(2)(D)(i)(I) for the 2006 PM 2.5 NAAQS based on the additional information. This action was finalized on Ap ril 15, 2014, published in 79 FR 21144. This action was taken because LDEQ reviewed and presente d information from EPA modeling conducted to support EPA’s Transport Rule proposal. Review of the same study 14 with respect to the 2012

PM 2.5 projected that Louisiana's air quality contri bution to downwind nonattainment receptors in
all other states did not exceed the threshol d, however the maintenance receptors may be exceeded. LDEQ did not provide additional information on the nonattainment/maintenance component for the 2012 PM 2.5 NAAQS and we are not taking action on this portion of the
submittal at this time.

Based on information presented in this subm ission, we are approving the portion of the iSIP pertaining to requirement 3 (interference w ith PSD measures in other States) for both the
2006 and 2012 PM 2.5 as Louisiana has a fully accepta ble PSD program, regulating all NSR pollutants, including greenhouse ga s (GHG) which prevents signifi cant deterioration in nearby states. Since Louisiana’s Regional Haze plan wa s 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 PM 2.5 . We
cannot ensure that Louisiana emissions will not in terfere with visibility protection measures in
other States.
Lead The physical properties of Pb, which is a me tal 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 ambien t air; therefore, ambient concentrations of Pb are typically highest near Pb s ources. 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 2010 15

, 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.pdfPage 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 Secti on 110(a)(2)(D)(i) for Pb.
Ozone At this time we are not proposing action on in terstate transport requ irements 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 subm ission, see above, we are proposing approval of requirement “interference with PSD” elem ent as Louisiana has a fully acceptable PSD program, regulating all NSR pollutants, incl uding greenhouse gas (GHG) which prevents significant deterioration in near by states. Since Louisiana’s Regi onal 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 “unclass ifiable/attainment”
for NO 2 , explaining that this designation means that available information does not indicate that the air quality in thes e areas exceeds the 2010 NO 2 NAAQS.” 17 In other words, Louisiana and all neighboring states are currently designated as “unclass ifiable/ attainment” for the 2010
NO 2 NAAQS. 18 The NO 2 emission from Louisiana are not expect ed to cause or contribute to a
violation of the 2010 NO 2 NAAQS in another state, and th ese emissions are not likely to
interfere with the maintenance of the 2010 NO 2 NAAQS in another st ate. Therefore, EPA proposes that Louisiana has met this set of requirements relate d to section 110(a)(2)(D)(i)(I) for
the 2010 NO 2 NAAQS. Based on information presented in this s ubmission, we are proposing approval of the “interference with PSD” requirement as L ouisiana has a fully acceptable PSD program, regulating all NSR pollutants, including greenhou se gas (GHG) which prevents significant deterioration in nearby states. Since Louisiana’s Regional Haze pl an was not fully approved, we are not proposing approval of the “interferen ce with visibility prot ection” requirement of 100(a)(2)(D)(i).
Sulfur Dioxide At this time we are not proposing action on in terstate transport requ irements 1 and 2 for
the SO 2 i-SIP. We plan to act on this porti on of the i-SIP in a separate action. Based on information presented in this submi ssion (see above) we are proposing approval of requirement “interference with PSD” el ement as Louisiana has a fully acceptable PSD program, regulating all NSR pollutants, incl uding greenhouse gas (GHG) which prevents significant deterioration in near by states. Since Louisiana’s Regi onal 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 complian ce with state board comp osition and conflicts of
interest contained in Section 128 of the Act and re quires assurances that th e state retain primacy for implementation of the SIP in cases where th e state relies upon local or regional government agencies.

17 77 FR 9532, February 17,2012

18 http://www.epa.gov/no2designations/state.htmlPage 13 of 29 The State’s response: Louisiana works closely with the various stakeholder groups upon the
announcement of new national ambi ent 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 s how that the state has legal aut hority to carry out the plan (40 CFR 51.230). The State delegated the LDEQ as its air qua lity 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 th e 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 th e secretary of the LDEQ with the powers and duties to “... receive and budget duly appropriate d 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 S ubtitle” (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 fundi ng of support specific, non-recurr ing 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 f oundation of the State’s air qu ality program, including the air monitoring network and annual air quality progr am activities. Section 105 funding levels are relatively consistent, varying not more than a bout 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. Loui siana under State statute is required to employ sufficient personnel to ca rry out this SIP. LouisianaR.S.30:2011.F provides for "basic personnel and necessary scientific, technical, administ rative, 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 ma y deem necessary from any other department, board, or agency of the state government, any edu cational institution, or the fede ral government; may arrange for compensation for such services; and may em ploy and compensate, wi thin appropriations available therefore, such cons ultants and legal and technical assistance on a fu ll or part-time basis as may be necessary to carry out the provisi ons of this Subtitle, a nd prescribe their duties." This provision assures that Louisi ana is statutorily required to retain adequate personnel to implement this SIP. Based upon review of the state's infras tructure SIP submission for the 2006 PM 2.5 , 2008 Pb, 2008 O 3 , 2010 NO 2 , 2010 SO 2 and 2012 PM 2.5 NAAQS, and relevant statutory and regulatory authorities and provision s referenced in the submissions or referenced in Louisiana’ SIP, EPA believes that the requirement s 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) th e installation, maintenance and replacement of equipment, and the implementation of other necessary steps, by owners or ope rators of stationary
sources to monitor emissions from such source s, (ii) periodic reports on the nature and amounts

19 Enforcement authority is provided by LA R.S.30:2025Page 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 wa s approved on February 6, 1995 (60 FR 02014). 20 The most recent revisions were subm itted 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 prov ide for enforcement, with respect to the NAAQS for PM2.5, ozone and their precursors. These source m onitoring program requirements generate data for the pollutants, includi ng ozone and PM2.5 and their precursors. Under the Louisiana SIP rules, LDEQ is re quired 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 maintenan ce strategies, identify sources and general emission levels, and determine comp liance with Louisiana and EPA requirements.
The State’s emissions data are available on th e 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 Repor ting Rule (AERR) on December 4, 2008, which modified the requirements for collecting a nd reporting air emissions data (73 FR 76539, December 17, 2008). The AERR shortened the time st ates 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 on line Emissions Inventory System (EIS). States report emissions data for the six criteria pollutants and the prec ursors that form them – NOx, SO2, ammonia, lead, carbon monoxide, PM, and VOC s. Many states also voluntarily report emissions of hazardous air pollutants. EPA comp iles the emissions data, supplementing it where necessary, and releases it to th e general public th rough the website http://www3.epa.gov/ttnchie1/trends/. There are two additional requirements that Louisiana must meet regarding emissions inventories: the EI requi rement for nonattainment areas, and the requirement to submit annual EI
data to EPA’s NEI database. For the Baton Rouge ozone nonattainme nt area, the LDEQ submitted an EI SIP with a 2002 base year wh ich 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 statut ory and regulatory authorities an d 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 Stat e 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, 19 95, with the effective date of Feb. 6, 1995.Page 15 of 29 Chapter 7 Ambient Air Quality Chapter 9 General Regulations on Contro l of Emissions and Emission Standards Chapter 13 Emission Standard s 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 Emissi ons from Specific Industries

7

. Emergency power : Section 110(a)(2)(G) requires states to provide for authority to address activities causing imminent and substantial enda ngerment to public healt h, including adequate contingency plans to implement the emerge ncy episode provisions in their SIPs.

The State's response: The “Prevention of Ai r Pollution Emergency Episodes” provision was promulgated by LDEQ on December 20, 1987. Revisi ons 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 ru les relevant for this federal requirement: Chap.56 Prevention of Air Pollution Emergency Episodes

EPA analysis: The LDEQ has authority to fo rmulate 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 rule s include contingency plans and were approved into the Loui siana 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 classi fied 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 polluta nts. Note that a clas sification scheme for 8- hour ozone is not addressed under Subpart H and while the table does no t identify whether PM
refers to PM 10 or PM 2.5 , the date of promulgation for Subpart H would support PM 10 November 7, 1986 (see 51 FR 40668), as amended on July 20, 1993 (see 58 FR 38822).

Classification of Regions fo r Episode Plans (40 CFR 51.150)

Parameter Priority I Priority II Priority III
Ozone Ambient concentrations
> 195 μ g/m 3 (0.10 ppm)
1-hour maximum Not defined Areas which do not
meet the criteria for Priority I
Particulate
Matter Ambient concentration
> 95 μ g/m 3 annual geometric mean; 325

μ g/m 3

24-hour maximum Ambient
concentrations
between 60-95 μ g/m 3 annual geometric mean; 150-325 μ g/m 3

24-hour maximum. Areas which do not
meet the criteria for Priority I or II

Nitrogen
Dioxide Ambient concentrations > 100 μg/m 3 (0.06 ppm)
Annual arithmetic mean Not defined Areas which do not
meet criteria for Priority IPage 16 of 29 Sulfur Dioxide Ambient concentrations
> 100 μ g/m 3 (.04 ppm) annual arithmetic mean;
455 μ g/m 3 (0.17 ppm) 24-
hour maximum. Ambient
concentrations
> 2.620 μ g/m 3 (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 polluta nts 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

PM 2.5 , 2008 O 3 , 2010 NO 2 , 2010 SO 2 and 2012 PM 2.5 NAAQS, states need only to confirm that they have existing emergency epis ode plan provisions consistent with EPA’s existing regulatory requirements.

The 33 LAC Chapter 56 addresses the pollu tants specified under 40 CFR 51.150. Using 2011-2014 data, we determined that areas within L ouisiana meet the classi fication for Priority I for Ozone, NO 2 , and SO 2 . We found that 33 LAC 56 is consis tent with the provisions of 40 CFR 51.151 and 152, and Appendix L to Part 51. The Stat e'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 gene ral emergency powers to address PM 2.5 related episodes, SHLs for PM 2.5 are not provided under Subpart H, nor have SHLs for the 2006 PM 2.5 standards been proposed by EPA. The Louisiana SIP has not been revised to address contingency plans for PM 2.5 . To evaluate whether the Louisiana SIP provides adequate contingency plans for
the 2006 PM 2.5 NAAQS, EPA used guidance issued in 2009 for the 2006 PM 2.5 NAAQS. 21 The
2009 Guidance for PM 2.5 recommends that a state with at least one monitored 24-hour PM 2.5 value exceeding 140.4 μ g/m 3 since 2006 establish an emergenc y episode plan and contingency measures to be implemented should such le vel be exceeded again. Additionally, the 2009
Guidance for PM 2.5 recommends that if no area of a state has exceeded this 140.4 μ g/m 3 level since 2006 and the state has appropriate general emergency powers to address PM 2.5 related episodes, then no specific emergency episode plans are necessary at this time given the existing
monitored levels. The 2006-2014 data for Louisiana 22 do not exceed 140.4 μ g/m 3 and have consistently remained below the level of 140.4 μ g/m 3 . In fact, these data indicate that Louisiana’s

PM 2.5 levels have stayed below 100 μ g/m 3 . In addition, Subpart H at 51.153 provides for reevaluation of episode plans and requires that, “States should periodicall y reevaluate priority classifications of all Regions or portion of Regi ons within their borders. The reevaluation must consider the three most recent year s of air quality data. If the ev aluation indicates a change to a higher priority classification, a ppropriate changes in the episode plan must be made as expeditiously as practicable.” Loui siana’s data does not indicate a change to a highe r priority, but suggests that emergency episode plans for the NAAQS are not needed at this time. Louisiana law limits LDEQ’s authority over cer tain 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, recommenda tions, 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 Standard s (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). 22Page 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 employ ees with respect to or arising out of any air condition. (iii) Burning of agricultural by-product s in the field in connection with the planting, harvesting, or proces sing of agricultural products. (iv) Controlled burning of cotton gin agricu ltural wastes in connection with cotton gin operations. (v) Controlled burning in connectio n 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 an d Forestry (LDAF) to create a state-wide Smoke Management Plan (SMP) that addresses air quali ty 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” characteristi cs. A Category Day I is a no burning day. The smoke management plan requires that Ozone Acti on Days, whether issued by LDEQ or EPA, be declared a Category Day I.

We are proposing that the L ouisiana SIP meets the requireme nts 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 th at 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 PM 2.5 NAAQS.

EPA analysis: The LA R.S. 30:2011 authorizes th e LDEQ as the primary agency in the State concerned with environmental protection and re gulation, including but not limited to air quality (LA R.S. 30:2011:A(1)). Further, the LDEQ has the power and dut y to adopt, amend, or repeal all rules, regulations, and st andards (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 a nd 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 co sts expected from the proposed rule when the proposed revisions are required for compliance w ith 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 th e NAAQS, and respond to EPA SIP calls. We are proposing that the Louisiana SIP meets th e requirements of se ction 110(a)(2)(H).

9

. Nonattainment area plans or plan revisions under Part D of the CAA : Section 110(a)(2)(I) contains provisions re lated to the submission of nona ttainment area plans or plan revisions as specified in Part D of the CAA.Page 18 of 29 The State's response: SIP revisions that implem ent the control strategies necessary to bring a
nonattainment area into attainme nt of the NAAQS are not requir ed by the CAA to be submitted within three years of the promulgation of a new or revise d 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 previ ously, EPA does not expect infras tructure SIP submissions to address subsection 110(a)(2)(I). Nonattainment ar ea plans required under Pa rt D are required to
be submitted on a different schedule from the Section 110 infrastructure elements and will be reviewed and acted upon thr ough a separate process.

10

. Consultation, public notice, and PSD and visibility protection : Section 110(a)(2)(J) is divided into three components: consultation w ith 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 fo r consultation with local governments and Federal Land Managers (F LMs) carrying out NAAQS implementation requirements pursuant to secti on 121 relating to consultation. Section 110(a)(2)(J) further requires states to notify the pub lic 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 participat es in daily forecasting for PM 2.5 . The PSD program applies to all NSR pollutants, including greenhouse gases (GHG) and PM 2.5 . 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 ru le was finalized in th e Louisiana Register on December 20, 2012 and submitted to EPA for approval on February 7, 2013. Louisiana also participates in daily forecasting for PM 2.5

.

EPA analysis: Regarding consultation with govern ment officials and publi c notification, the LA R.S. 30:2011 provides that the secretary of the LDEQ , “... shall hold a pub lic 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 c ooperate with other agenci es of the state, the federal government, other states, and interstate agencies and with affe cted groups, political subdivisions, interested agricultural, industria l, professional, and environmental groups and
individuals in furtherance of th e 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 consultati on be undertaken before making conformity determinations and before adopting applicable SIP revision s, and public hearings shall be held to receive public comment on tr ansportation-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 72938Page 19 of 29 Section 110(a)(2)(J) further requ ires states to notify the public if NAAQS are exceeded in an area and to enhance public awareness of meas ures 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 i ndividuals 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 availa bility 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, Se ction 110(a)(2)(J) requires States to meet applicable requirements of Part C related to PSD and visibility prot ection. As detailed in section C above, Louisiana’s PSD program has been appr oved into the SIP. EP A approved Louisiana’s Visibility Protection Plan into the Louisi ana SIP on June 10, 1986 (51 FR 20967). EPA approved
revisions to Louisiana’s Visibi lity 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 prot ection, EPA recognizes that states are subject to visibility and regional haze program requirement s 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 fi nd that there is no new visibility obligation triggered under section 110(a )(2)(J) when a new NAAQS become s effective. We are proposing
that the Louisiana SIP meets this portion of sectio n 110(a)(2)(J).

11

. Air quality modeling a nd 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 subm ission of such data to EPA upon request.

The State’s response: LDEQ contracts the at tainment 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 Ma rch 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 re ference the air modeling and emissions reduction
data submitted within the Attainment Demons tration for the Shrevepor t-Bossier City Early Action Compact Area, approved by EP A on August 22, 2005 (70 FR 48880). 27 In addition, the LA R.S. 30:2011D(7) authorizes th e LDEQ to cooperate with th e federal government, allowing LDEQ to make these su bmissions to the EPA. We are propos ing 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) requ ires SIPs to require each major stationary source to pay permitting fees to cover the cost of re viewing, approving, implementing and enforcing a permit.

The State's response: Section 223. Fee Sche dule Listing Approved by EPA 10/23/95 (60 FR 54308) at 52.970(c)(66) effectiv e 12/22/95. Louisiana has an a pproved 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 mi nor modified permit fees were approved into
the Louisiana SIP at 54 FR 9783 and 59 FR 141 12 (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 th e requirements of se ction 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 regulati on (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 governmen t, other states, and interstate agencies and with affected groups, political subd ivisions, interested ag ricultural, industrial, professional, and environmental groups and indivi duals 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 re quire interagency consultatio n before making conformity determinations and before adopting applicable SIP revision s; and public hearings shall be held to receive public comment on tr ansportation-related SIPs. 28 These 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 PM 2.5 , Pb, O 3 , NO 2 , and

SO 2 for compliance with the requir ements of sections 110(a)(1) and (2) of the Act for the 2006

PM 2.5 , 2008 Pb, 2008 O 3 , 2010 NO 2 , 2010 SO 2 and 2012 PM 2.5 NAAQS. Based on these evaluations, we recommend that EPA propose to approve the submittal provided by the State of Louisiana, except for the porti ons pertaining to CAA secti on 110(a)(2)(D)(i)(I) for ozone, SO 2 and 2012 PM 2.5 and the visibility protection part of CAA section 110(a)(2)(D)(i)(II) for PM 2.5 ,

28 See 64 FR 72938.Page 21 of 29 ozone, NO 2 and SO 2 . In a separate action we proposed to approve the porti ons 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 adequa tely addresses the infrastructure elements specified in the CAA section 110(a)(2) that are necessary to implement, maintain, and enforce

the 2006 PM 2.5 , 2008 Pb, 2008 O 3 , 2010 NO 2 , 2010 SO 2 and 2012 PM 2.5 NAAQS.

Our recommendations for approval of the Lo uisiana infrastructure SIP for the 2006 PM 2.5 , 2008 Pb, 2008 O 3 , 2010 NO 2 , 2010 SO 2 and 2012 PM 2.5 NAAQS are laid out in the following summary table:Page 22 of 29 Proposed Action on Louisiana Infras tructure 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 Implemen tation 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
NO 2 2010
SO 2 2012

PM 2.5 (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 APage 23 of 29 Appendix A

EPA’s Approach to the Review of Infrastructure SIP Submissions

EPA is acting upon this SIP submission that addr ess 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 s ection 110(a)(1). Pursuant to section 110(a)(1), states must make SIP submissions “within 3 year s (or such shorter period as the Administrator may prescribe) after the promulgation of a nationa l 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 im poses on states the duty to make these SIP submissions, and the requireme nt to make the submissions is not conditioned upon EPA’s taking any action othe r than promulgating a new or revised NAAQS. Section 110(a)(2) includes a lis t of specific elements that “[e]ach su ch plan” submission must address.

EPA has historically referred to these SIP subm issions 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 nonatt ainment 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 pe rtain 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 unam biguous, some of the other statutory provisions are ambiguous. In particular, EPA believes that the list of required elements for infrastructure SIP submissions provided in sec tion 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 re spect to infrastructure SIP submissions for a given new or revised NAAQS. One example of ambi guity is that section 110(a)(2) requires that “each” SIP submission must meet the list of requir ements therein, while EPA has long noted that this literal reading of the statute is internally inconsistent and would cr eate a conflict with the nonattainment provisions in part D of title I of th e 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) pertai ns 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) ar e applicable for a particular infrastructure SIP submission.

Another example of ambiguity within secti ons 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) dir ects 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 NAAQ S 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 infrastruc ture 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 s ection 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 C AA. Therefore, as with infrastructure SIP

30 See, e.g., “Rule To Reduce Interstate Transport of Fine Particulate Matter an d 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 he ightened 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 da tes are necessarily later than three y ears after promulgation of the new or revised NAAQS.

32 On December 14, 2007, the State of Tennessee, thr ough the Tennessee Department of Environment and Conservation, made a SIP revision to EPA demonstrating that the State meets the requirem ents 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, implemen tation of the 1997 PM 2.5 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 interpre t 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 re quired by part D have to meet the “applicable requirements” of section 110(a)(2). Thus, for ex ample, attainment plan SIP submissions must meet the requirements of section 110(a)(2)(A) re garding 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 el ements 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 appr opriate 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 NA AQS in question or the history of SIP development for the relevant pollutant, would meet each of the requireme nts, or meet each of them in the same way. Therefore, EPA has adopted an approach under wh ich it reviews infrastructure SIP submissions against the list of elements in section 110(a)(2), but only to th e extent each element applies for that particular NAAQS.

Historically, EPA has elected to use guidance docu ments 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 deve loped 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 infr astructure SIPs for any new or revised NAAQS. Within this guidance, EPA describes the duty of st ates to make infrastructure SIP submissions to meet basic structural SIP requirements within th ree years of promulgation of a new or revised NAAQS. EPA also made recommen dations about many specific subs ections 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 german e 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 subm ission 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 orde r 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 cr eated by ongoing litigation, EPA elected not to provide additional guidance on the requirements of se ction 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 fo r 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 elem ent of section 110(a)(2) for

infrastructure SIP submissions. Under this el ement, a state must meet the substantive requirements of section 128, which pertain to stat e boards that approve permits or enforcement orders and heads of executive agencies with si milar powers. Thus, EPA reviews infrastructure SIP submissions to ensure that the state’s SIP ap propriately 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 thes e substantive statutory requirements, depending on the structure of an individual state’s perm itting 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 ne cessarily included in EPA’s ev aluation of infrastructure SIP submissions because section 110(a)(2)(E)(ii) ex plicitly 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 ar e not required under EPA’s regul ations at 40 CFR 51.166 but are merely available as an option for the state, su ch as the option to provi de grandfathering of complete permit applications with respect to the 2012 PM 2.5 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 progra m addresses the pollutants relevant to that NAAQS. In the context of acting on an infras tructure 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 co mpliance 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 actio n 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 “dir ector’s variance” or “director’s di scretion” that may be contrary to the CAA because they purport to allow revi sions to SIP-approved emissions limits while limiting public process or not requiring further a pproval 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 3 1, 2002), as amended by 72 FR 32526 (June 13,Page 27 of 29 2007) (“NSR Reform”). Thus, EPA believes it ma y approve an infrastructure SIP submission without scrutinizing the to tality 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 st ate’s infrastructure SIP submi ssion should not be construed as explicit or implicit re-approval of a ny 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 th is approach to the review of a particular infrastructure SIP submission is appr opriate, 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 st ate’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 statut ory and regulatory requirements under the CAA have evolved, they may include some outmoded provisions and historic al 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 be lieves 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 sp ecific SIP revision due to the promulgation of a new or revised NAAQS or other factors.

For example, EPA’s 2013 Guidance gives simple r recommendations with respect to carbon monoxide than other NAAQS pollutants to meet the visibility requirements of section 110(a)(2)(D)(i)(II), be cause carbon monoxide does not affect visibility. As a result, an infrastructure SIP submission for any future new or revised NAAQS fo r carbon monoxide need only state this fact in order to address the visibility prong of secti on 110(a)(2)(D)(i)(II).

Finally, EPA believes that its appr oach with respect to infrastruc ture SIP requirements is based on a reasonable reading of s ections 110(a)(1) and 110(a)(2) because the CAA provides other avenues and mechanisms to address specific subs tantive deficiencies in existing SIPs. These other statutory tools al low EPA to take appropriately tail ored 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 tran sport, 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 spec ific 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 thePage 28 of 29 submission is not the appropriate time and place to address all poten tial existing SIP deficiencies does not preclude EPA’s subseque nt reliance on provisions in sect ion 110(a)(2) as part of the

basis for action to correct those deficiencies at a later time. Fo r example, although it may not be appropriate to require a state to eliminate a ll existing inappropriate director’s discretion provisions in the course of acti ng on an infrastructure SIP subm ission, 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 in frastructure 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 in frastructure SIP submission for a new or revised NAAQS that dem onstrates 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 po llutants. 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 addr essing the application of PSD permitting requirements to GHG emi ssions. (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 sa id that the EPA could c ontinue to require that PSD permits, otherwise required based on emissi ons of pollutants other than GHGs, contain limitations on GHG emissions based on the appli cation of Best Available Control Technology (BACT). In order to act consistently with its understanding of the Court’s decision pending further judicial action to eff ectuate the decision, the EPA is not continuing to apply EPA regulations that would require that SIPs incl ude 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 po tential 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 anticipat es that many states will revise their existing SIP-approved PSD progr ams 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 in formed 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 inconsiste nt with CAA requirements, including s ection 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 re vised 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 re visions 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 infrastruc ture elements of Sectio ns 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 con tinues to require that PSD perm its (otherwise required based on emissions of pollutants other than GHGs) contain limitations on GHG emissions based on the application of BACT. Although the approved Lo uisiana 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 inadequa te 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 applicati on 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 doe s not affect EPA’s proposed approval of

Louisiana’s infrastructure SIP as to the requirements of the infras tructure elements of Sections 110(a)(2)(C) and (J) or the portion of Section 110(a)(2)(D)(i)(II).