68322 Federal Register / Vol. 81, No. 192 / Tuesday, October 4, 2016 / Rules and Regulations 

an Indian tribe has demonstrated that a 

tribe has jurisdiction. In those areas of 

Indian country, the rule does not have 

tribal implications and will not impose 

substantial direct costs on tribal 

governments or preempt tribal law as 

specified by Executive Order 13175 (65 

FR 67249, November 9, 2000). 

The Congressional Review Act, 5 

U.S.C. 801 et seq., as added by the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. The EPA will 

submit a report containing this action 

and other required information to the 

U.S. Senate, the U.S. House of 

Representatives, and the Comptroller 

General of the United States prior to 

publication of the rule in the Federal 

Register. A major rule cannot take effect 

until 60 days after it is published in the 

Federal Register. This action is not a 

‘‘major rule’’ as defined by 5 U.S.C. 

804(2). 

Under section 307(b)(1) of the Clean 

Air Act, petitions for judicial review of 

this action must be filed in the United 

States Court of Appeals for the 

appropriate circuit by December 5, 

2016. Filing a petition for 

reconsideration by the Administrator of 

this final rule does not affect the finality 

of this action for the purposes of judicial 

review nor does it extend the time 

within which a petition for judicial 

review may be filed, and shall not 

postpone the effectiveness of such rule 

or action. Parties with objections to this 

direct final rule are encouraged to file a 

comment in response to the parallel 

notice of proposed rulemaking for this 

action published in the Proposed Rules 

section of this Federal Register, rather 

than file an immediate petition for 

judicial review of this direct final rule, 

so that the EPA can withdraw this direct 

final rule and address the comment in 

the proposed rulemaking. This action 

may not be challenged later in 

proceedings to enforce its requirements 

(see section 307(b)(2)). 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Particulate matter, Reporting 

and recordkeeping requirements, 

Volatile organic compounds. 

Dated: August 24, 2016. 

Alexis Strauss, 

Acting Regional Administrator, Region IX. 

Part 52, chapter I, title 40 of the Code 

of Federal Regulations is amended as 

follows: 

PART 52—APPROVAL AND 

PROMULGATION OF 

IMPLEMENTATION PLANS 

■ 1. The authority citation for part 52 

continues to read as follows: 

Authority: 42 U.S.C. 7401 et seq. 

Subpart F—California 

■ 2. Section 52.220 is amended by 

adding paragraphs (c)(255)(i)(A)(7), 

(c)(354)(i)(F)(4), (c)(472)(i)(C), and 

(c)(474)(i)(B) to read as follows: 

§ 52.220 Identification of plan. 

* * * * * 

(c) * * * 

(255) * * * 

(i) * * * 

(A) * * * 

(7) Previously approved on November 

9, 1998, in paragraph (c)(255)(i)(A)(2) of 

this section and now deleted with 

replacement in paragraph 

(c)(474)(i)(B)(1) of this section, Rule 442, 

adopted on September 5, 1996. 

* * * * * 

(354) * * * 

(i) * * * 

(F) * * * 

(4) Previously approved on June 20, 

2013, in paragraph (c)(354)(i)(F)(3) of 

this section and now deleted without 

replacement, Rule 67.0, ‘‘Architectural 

Coatings,’’ adopted on December 12, 

2001. 

* * * * * 

(472) * * * 

(i) * * * 

(C) San Diego Air Pollution Control 

District. 

(1) Rule 67.0.1, ‘‘Architectural 

Coatings,’’ adopted on June 24, 2015. 

* * * * * 

(474) * * * 

(i) * * * 

(B) Sacramento Metropolitan Air 

Quality Management District. 

(1) Rule 442, ‘‘Architectural 

Coatings,’’ amended on September 24, 

2015. 

* * * * * 

[FR Doc. 2016–23837 Filed 10–3–16; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R06–OAR–2013–0465; FRL–9952–82- 

Region 6] 

Approval and Promulgation of Air 

Quality Implementation Plans; 

Louisiana; Infrastructure State 

Implementation Plan Requirements for 

the National Ambient Air Quality 

Standards 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is approving elements of 

State Implementation Plan (SIP) 

submittals from Louisiana which 

address the requirements of Clean Air 

Act (CAA) sections 110(a)(1) and (2) 

regarding the infrastructure 

requirements for the 2006 fine 

particulate matter (PM2.5), 2008 Lead 

(Pb), 2008 Ozone (O3), 2010 Nitrogen 

Dioxide (NO2), 2010 Sulfur Dioxide 

(SO2) and 2012 PM2.5 National Ambient 

Air Quality Standards (NAAQS). The 

infrastructure requirements are designed 

to ensure that the structural components 

of each state’s air quality management 

program are adequate to meet the state’s 

responsibilities as defined by the CAA. 

These infrastructure SIP (i-SIP) 

submittals address how the existing SIP 

provides for implementation, 

maintenance, and enforcement of the 

NAAQS. 

DATES: This rule is effective on 

November 3, 2016. 

ADDRESSES: The EPA has established a 

docket for this action under Docket ID 

No. EPA–R06–OAR–2013–0465. All 

documents in the docket are listed on 

the http://www.regulations.gov Web 

site. Although listed in the index, some 

information is not publicly available, 

e.g., Confidential Business Information 

or other information whose disclosure is 

restricted by statute. Certain other 

material, such as copyrighted material, 

is not placed on the Internet and will be 

publicly available only in hard copy. 

Publicly available docket materials are 

available either electronically through 

http://www.regulations.gov or in hard 

copy at EPA Region 6, 1445 Ross 

Avenue, Suite 700, Dallas, Texas 75202– 

2733. 

FOR FURTHER INFORMATION CONTACT: 

Sherry Fuerst 214–665–6454, 

fuerst.sherry@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document, ‘‘we,’’ ‘‘us,’’ 

and ‘‘our’’ means the EPA. 


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Federal Register / Vol. 81, No. 192 / Tuesday, October 4, 2016 / Rules and Regulations 68323 

I. Background 

The background for this action is 

discussed in detail in our June 3, 2016 

proposal (81 FR 35674). In that 

rulemaking action, we proposed to 

approve portions of Louisiana’s SIP 

submittals pertaining to requirements of 

CAA sections 110(a)(1) and 110(a)(2) of 

the 2006 PM2.5, 2008 Pb, 2008 O3, 2010 

NO2, 2010 SO2 and 2012 PM2.5 NAAQS. 

CAA Section 110(a)(1) requires states to 

submit a revised i-SIP within three years 

after the promulgation of a new or 

revised NAAQS. The submission must 

provide for the ‘‘implementation, 

maintenance, and enforcement’’ of the 

NAAQS. We received substantive 

comments from the Sierra Club during 

the comment period on our Notice of 

Proposed Rulemaking (NPR). A synopsis 

of the comments and our responses are 

provided below. 

II. Response to Comments 

A. Background Comments 

1. The Plain Language of the CAA 

Comment 1: Sierra Club states that the 

plain language of section 110(a)(2)(A) of 

the CAA, legislative history of the CAA, 

case law, EPA regulations, and 

legislative and regulatory interpretations 

made previously by EPA in rulemakings 

require the inclusion of enforceable 

emission limits in an i-SIP to prevent 

NAAQS exceedances in areas not 

designated nonattainment. Sierra Club 

asserts that EPA must disapprove 

Louisiana’s proposed i-SIP because it is 

in violation of CAA section 110(a)(2)(A) 

in that the i-SIP fails to include 

enforceable emission limitations 

necessary to ensure attainment and 

maintenance of the NAAQS. The 

Commenter also states that the 

Louisiana i-SIP revision fails to comport 

with CAA requirements for SIPs to 

establish enforceable emission limits 

that are adequate to prohibit NAAQS 

exceedances in areas not designated 

nonattainment. 

The Commenter also states that, on its 

face, the CAA requires i-SIPs ‘‘to be 

adequate to prevent exceedances of the 

NAAQS.’’ In support, the Commenter 

quotes the language in section 110(a)(1) 

which requires states to adopt a plan for 

implementation, maintenance, and 

enforcement of the NAAQS and the 

language in section 110(a)(2)(A) which 

the Commenter interprets to require iSIPs to include enforceable emissions 

limitations that are sufficient to ensure 

maintenance of the NAAQS. Sierra Club 

notes the CAA definition of emission 

limit and reads these provisions 

together to require ‘‘enforceable 

emission limits on source emissions 

sufficient to ensure maintenance of the 

NAAQS.’’ 

Response 1: EPA disagrees that 

section 110 is clear ‘‘on its face’’ and 

must be read in the manner suggested 

by Sierra Club in the context of i-SIP 

submissions. As we have previously 

explained in response to Sierra Club’s 

similar comments in our previous 

actions on Virginia’s 2008 ozone 

NAAQS i-SIP (see, 79 FR 17043, 17047 

March 27, 2014), Virginia’s 2010 SO2

NAAQS i-SIP (see, 80 FR 11557 March 

4, 2015), West Virginia’s 2010 SO2 i-SIP 

(see, 79 FR 62022 October 16, 2014), 

Pennsylvania’s 2008 Ozone and 2010 

SO2 NAAQS i-SIP (see, 80 FR 46494 

August 5, 2015), and New Hampshire’s 

SO2 NAAQS i-SIP (see, 81 FR 44542 

July 8, 2016), CAA Section 110 is only 

one provision that is part of the multifaceted structure governing 

implementation of the NAAQS program 

under the CAA, as amended in 1990, 

and it must be read in the context of not 

only that structure, but also of the 

historical evolution of that structure. 

Infrastructure SIPs are general 

planning SIPs, consistent with the CAA 

as understood in light of its history and 

structure. When Congress enacted the 

CAA in 1970, it did not include 

provisions requiring states and the EPA 

to label areas as attainment or 

nonattainment. Rather, states were 

required to include all areas of the state 

in ‘‘air quality control regions’’ (AQCRs) 

and section 110 set forth the core 

substantive planning provisions for 

these AQCRs. At that time, Congress 

anticipated that states would be able to 

address air pollution quickly by 

complying with the very general 

planning provisions in section 110 and 

bring all areas into compliance with a 

new NAAQS within five years. 

Moreover, at that time, section 

110(a)(2)(A)(i) specified that the section 

110 plan provide for ‘‘attainment’’ of the 

NAAQS and section 110(a)(2)(B) 

specified that the plan must include 

‘‘emission limitations, schedules, and 

timetables for compliance with such 

limitations, and such other measures as 

may be necessary to insure attainment 

and maintenance [of the NAAQS].’’ 

In 1977, Congress recognized that the 

existing structure was not sufficient and 

many areas were still violating the 

NAAQS. At that time, Congress for the 

first time added provisions requiring 

that states and EPA identify whether 

areas of a state were violating the 

NAAQS (i.e., were nonattainment) or 

were meeting the NAAQS (i.e., were 

attainment/unclassifiable) and 

established specific planning 

requirements in section 172 for areas 

not meeting the NAAQS. In 1990, many 

areas still had air quality not meeting 

the NAAQS and Congress again 

amended the CAA and added yet 

another layer of more prescriptive 

planning requirements for each of the 

NAAQS. At that same time, Congress 

modified section 110 to remove 

references to the section 110 SIP 

providing for attainment, including 

removing pre-existing section 

110(a)(2)(A) in its entirety and 

renumbering subparagraph (B) as 

section 110(a)(2)(A). Additionally, 

Congress replaced the clause ‘‘as may be 

necessary to insure attainment and 

maintenance [of the NAAQS]’’ with ‘‘as 

may be necessary or appropriate to meet 

the applicable requirements of this 

chapter.’’ Thus, the CAA has 

significantly evolved in the more than 

40 years since it was originally enacted. 

While at one time section 110 of the 

CAA did provide the only detailed SIP 

planning provisions for states and 

specified that such plans must provide 

for attainment of the NAAQS, under the 

structure of the current CAA, section 

110 is only the initial stepping-stone in 

the planning process for a specific 

NAAQS. More detailed, later-enacted 

provisions govern the substantive 

planning process, including planning 

for attainment of the NAAQS. CAA 

section 110 is only one provision that is 

part of the multi-faceted structure 

governing implementation of the 

NAAQS program under the CAA, as 

amended in 1990, and it must be read 

in the context of that structure and the 

historical evolution of that structure. In 

light of the revisions to section 110 

since 1970 and the later-promulgated 

and more specific planning 

requirements of the CAA, the 

requirement in section 110(a)(2)(A) of 

the CAA that the plan provide for 

‘‘implementation, maintenance and 

enforcement’’ means that the state must 

demonstrate that it has the necessary 

tools to implement and enforce a 

NAAQS, such as adequate state 

personnel and the legal authority for an 

enforcement program. It is Part D of title 

I of the CAA that contains numerous 

requirements for the NAAQS attainment 

planning process, including the 

requirement for enforceable emissions 

limitations, and such other control 

measures, means or techniques, as well 

as schedules and timetables for 

compliance, as may be necessary or 

appropriate to provide for the 

attainment of the NAAQS. After a 

nonattainment designation is made, the 

Administrator establishes a plan 

submission schedule with which the 

state must comply. The schedule may 

include submission dates up to three 


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68324 Federal Register / Vol. 81, No. 192 / Tuesday, October 4, 2016 / Rules and Regulations 

1 ‘‘Guidance on Infrastructure State 

Implementation Plan (SIP) Elements under Clean 

Air Act sections 110(a)(1) and 110(a)(2),’’ 

Memorandum from Stephen D. Page, September 13, 

2013. 

2Thus, EPA disagrees with Sierra Club’s general 

assertion that the main objective of infrastructure 

SIPs is to ensure all areas of the country meet the 

NAAQS, as the infrastructure SIP process is the 

opportunity to review the structural requirements of 

a state’s air program. EPA, however, does agree with 

Sierra Club that the NAAQS are the foundation 

upon which emission limitations are set, as 

explained in responses to subsequent comments, 

these emission limitations are generally set in the 

attainment planning process envisioned by part D 

of title I of the CAA, including, but not limited to, 

CAA sections 172 and 191–192. 

years after the nonattainment 

designation has been made. The state 

must, within the schedule provided by 

the Administrator, submit a plan that 

meets Part D’s requirements. The 

general requirements of CAA section 

110(a)(1) and the listing of elements in 

CAA section 110(a)(2) require review of 

each and every provision of a state’s 

existing SIP against all requirements in 

the CAA and the 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. The requirement for 

emission limitations in section 110 

means that the state may rely on 

measures already in place to address the 

pollutant at issue or any new control 

measures that the state may choose to 

submit to meet the requirements in 

section 110. Finally, as EPA has stated 

in the 2013 Infrastructure SIP 

Guidance 1 which specifically provides 

guidance to states in addressing the 

2010 SO2 NAAQS, ‘‘[t]he conceptual 

purpose of an i-SIP submission is to 

assure that the air agency’s SIP contains 

the necessary structural requirements 

for the new or revised NAAQS, whether 

by establishing that the SIP already 

contains the necessary provisions, by 

making a substantive SIP revision to 

update the SIP, or both.’’ Infrastructure 

SIP Guidance at p. 1–2.2 Infrastructure 

SIP submissions are not required to 

include enforceable emissions 

limitations and schedules for 

compliance with the NAAQS, as 

suggested by the Commenter. Louisiana 

appropriately demonstrated that it has 

the ‘‘structural requirements’’ to 

implement the NAAQS for the 

pollutants addressed in this rule in its 

infrastructure SIP submission. 

2. The Legislative History of the CAA 

Comment 2: Sierra Club cites two 

excerpts from the legislative history of 

the 1970 CAA claiming they support an 

interpretation that SIP revisions under 

CAA Section 110 must include 

emissions limitations sufficient to show 

maintenance of the NAAQS in all areas 

of Louisiana. Sierra Club also contends 

that the legislative history of the CAA 

supports the interpretation that i-SIPs 

under section 110(a)(2) must include 

enforceable emission limitations, citing 

the Senate Committee Report and the 

subsequent Senate Conference Report 

accompanying the 1970 CAA. 

Response 2: As noted above, the CAA, 

as enacted in 1970, including its 

legislative history, cannot be read in 

isolation from the later amendments 

that refined that structure and deleted 

relevant language from CAA Section 110 

concerning demonstrating attainment. 

See also, 79 FR at 17043, 80 FR 11557, 

79 FR 62022, 80 FR 46494 (responding 

to comments on various other i-SIPs). In 

any event, the two excerpts of legislative 

history the Sierra Club cites merely 

provide that states should include 

enforceable emission limits in their SIPs 

and they do not mention or otherwise 

address whether states are required to 

impose additional emission limitations 

or control measures as part of the i-SIP 

submission, as opposed to requirements 

for other types of SIP submissions such 

as attainment plans required under 

section 110(a)(2)(I). The proposed rule 

and the Technical Support Document 

(TSD) for it explain why the Louisiana 

SIP includes sufficient enforceable 

emissions limitations for the purposes 

of the infrastructure SIP submission. 

3. Case Law 

Comment 3: Sierra Club also cites to 

several cases which have interpreted 

various parts of the CAA. Sierra Club 

claims these cases support their 

contention that section 110(a)(2)(A) 

requires i-SIPs submissions to contain 

enforceable emissions limits in order to 

prevent exceedances of the NAAQS in 

areas not designated nonattainment. 

Sierra Club first cites to language in 

Train v. NRDC, 421 U.S. 60, 78 (1975), 

addressing the requirement for 

‘‘emission limitations’’ and stating that 

emission limitations ‘‘are specific rules 

to which operators of pollution sources 

are subject, and which, if enforced, 

should result in ambient air which meet 

the national standards.’’ Sierra Club also 

cites to Pennsylvania Dept. of Envtl. 

Resources v. EPA, 932 F.2d 269, 272 (3d 

Cir. 1991) for the proposition that the 

CAA directs EPA to withhold approval 

of a SIP where it does not ensure 

maintenance of the NAAQS, and to 

Mision Industrial, Inc. v. EPA, 547 F.2d 

123, 129 (1st Cir. 1976), which quoted 

section 110(a)(2)(B) of the CAA of 1970. 

The commenter states that the 1990 

Amendments do not alter how courts 

have interpreted the requirements of 

section 110, quoting Alaska Dept. of 

Envtl. Conservation v. EPA, 540 U.S. 

461, 470 (2004) which in turn quoted 

section 110(a)(2)(A) of the CAA and also 

stated that ‘‘SIPs must include certain 

measures Congress specified’’ to ensure 

attainment of the NAAQS. The 

Commenter also quotes several 

additional opinions in this vein. Mont. 

Sulphur & Chem. Co. v. EPA, 666 F.3d 

1174, 1180 (9th Cir. 2012) (‘‘The Clean 

Air Act directs states to develop 

implementation plans—SIPs—that 

‘assure’ attainment and maintenance of 

[NAAQS] through enforceable emissions 

limitations’’); Hall v. EPA 273 F.3d 

1146, 1153 (9th Cir. 2001) (‘‘Each State 

must submit a [SIP] that specif[ies] the 

manner in which [NAAQS] will be 

achieved and maintained within each 

air quality control region in the State’’); 

Conn. Fund for Env’t, Inc. v. EPA, 696 

F.2d 169, 172 (D.C. Cir. 1982) (CAA 

requires SIPs to contain ‘‘measures 

necessary to ensure attainment and 

maintenance of NAAQS’’). Finally, 

Sierra Club cites Mich. Dept. of Envtl. 

Quality v. Browner, 230 F.3d 181 (6th 

Cir. 2000) for the proposition that EPA 

may not approve a SIP revision that 

does not demonstrate how the rules 

would not interfere with attainment and 

maintenance of the NAAQS. 

Response 3: None of the cases Sierra 

Club cites support its contention that 

section 110(a)(2)(A) requires i-SIP 

submissions to include detailed plans 

providing for attainment and 

maintenance of the NAAQS in all areas 

of the state, nor do they shed light on 

the present day requirements of section 

110(a)(2)(A). With the exception of 

Train, none of the cases the Commenter 

cites specifically concerned the 

interpretation of CAA section 

110(a)(2)(A) (or section 110(a)(2)(B) of 

the pre-1990 Act). Rather, the courts 

reference section 110(a)(2)(A) (or section 

110(a)(2)(B) of the pre-1990 CAA) in the 

background sections of decisions in the 

context of a challenge to an EPA action 

on revisions to a SIP that were required 

and approved as meeting other 

provisions of the CAA or in the context 

of an enforcement action. 

In Train, the Court was addressing a 

state revision to an attainment plan 

submission made pursuant to section 

110 of the CAA, the sole statutory 

provision at that time addressing such 

submissions. The issue in that case 

concerned whether changes to 

requirements that would occur before 

attainment was required were variances 

that should be addressed pursuant to 

the provision governing SIP revisions or 

were ‘‘postponements’’ that must be 

addressed under section 110(f) of the 

CAA of 1970, which contained 

prescriptive criteria. The Court 


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3While Sierra Club does contend that the State 

shouldn’t be allowed to rely on emission reductions 

that were developed for the prior SO2 standards 

(which we address herein), it does not claim that 

any of the measures are not ‘‘emissions limitations’’ 

within the definition of the CAA. 

concluded that EPA reasonably 

interpreted section 110(f) not to restrict 

a state’s choice of the mix of control 

measures needed to attain the NAAQS, 

so long as the state met other applicable 

requirements of the CAA, and that 

revisions to SIPs that would not impact 

attainment of the NAAQS by the 

attainment date were not subject to the 

limits of section 110(f). Thus the issue 

was not whether the specific SIP at 

issue needs to provide for attainment or 

whether emissions limits are needed as 

part of the SIP; rather the issue was 

which statutory provision governed 

when the state wanted to revise the 

emission limits in its SIP if such 

revision would not impact attainment or 

maintenance of the NAAQS. 

Pennsylvania Dept. of Envtl. 

Resources was also decided based on 

the pre-1990 provision of the CAA. At 

issue was whether EPA properly 

rejected a revision to an approved SIP 

where the inventories relied on by the 

state for the updated submission had 

gaps. The Court quoted section 

110(a)(2)(B) of the pre-1990 CAA in 

support of EPA’s disapproval, but did 

not provide any interpretation of that 

provision. This decision did not address 

the question at issue in this action, i.e., 

what a state must include in an i-SIP 

submission for the purposes of section 

110(a)(2)(A).Yet, even if the Court had 

interpreted that provision, EPA notes 

that it was modified by Congress in 

1990; thus, this decision has little 

bearing on the present issue here. 

At issue in Mision Industrial, was the 

definition of ‘‘emissions limitation’’, not 

whether section 110 requires the State 

to demonstrate how all areas of the State 

will attain and maintain the NAAQS as 

part of the State’s i-SIP submission. The 

language from the opinion the 

Commenter quotes does not interpret 

but rather merely describes section 

110(a)(2)(A). Sierra Club does not raise 

any concerns about whether the 

measures relied on by the State in the 

i-SIP submission are ‘‘emissions 

limitations’’ within the definition 

provided by the Act and the decision in 

this case has no bearing here.3

In Mont. Sulphur & Chem. Co., 666 

F.3d 1174, the Court was reviewing a 

federal implementation plan (FIP) that 

EPA promulgated after a long history of 

the State failing to submit an adequate 

SIP in response to EPA’s finding under 

section 110(k)(5) that the previously 

approved SIP was substantially 

inadequate to attain or maintain the 

NAAQS, which triggered the State’s 

duty to submit a new SIP detailing how 

it would remedy that deficiency and the 

measures that would be put in place to 

attain the NAAQS. The Court cited 

generally to sections 107 and 

110(a)(2)(A) of the CAA for the 

proposition that SIPs should assure 

attainment and maintenance of NAAQS 

through emission limitations, but this 

language was not part of the Court’s 

holding in the case. The holding in 

Mont. Sulphur focused on whether 

EPA’s finding of SIP inadequacy, 

disapproval of the State’s responsive 

attainment demonstration, and adoption 

of a remedial FIP were lawful. 

The Commenter suggests that Alaska 

Dept. of Envtl. Conservation, 540 U.S. 

461, stands for the proposition that the 

1990 CAA Amendments do not alter 

how courts interpret section 110. This 

claim is inaccurate. Rather, the Court 

quoted section 110(a)(2)(A), which, as 

noted previously, differs from the pre1990 version of that provision and the 

court makes no mention of the changed 

language. Furthermore, Sierra Club also 

quotes the Court’s statement that ‘‘SIPs 

must include certain measures Congress 

specified,’’ but that statement 

specifically referenced the requirement 

in section 110(a)(2)(C), which requires 

an enforcement program and a program 

for the regulation of the modification 

and construction of any stationary 

sources. Notably, at issue in that case 

was the State’s ‘‘new source’’ permitting 

program, not what is required for an iSIP submission for purposes of CAA 

section 110(a)(2)(A). 

Two of the cases Sierra Club cites, 

Mich. Dept. of Envtl. Quality, 230 F.3d 

181, 183, 185 and Hall, 273 F.3d 1146, 

1153 interpret CAA section 110(l), the 

provision governing ‘‘revisions’’ to 

plans, and not the initial plan 

submission requirement under section 

110(a)(2) for a new or revised NAAQS, 

such as the i-SIP submissions at issue in 

this instance. Neither case, however, 

addressed the question at issue here, 

i.e., what states are required to address 

for purposes of an infrastructure SIP 

submission for purposes of section 

110(a)(2)(A). 

Finally, in Conn. Fund for Env’t, Inc. 

v. EPA, the D.C. Circuit was reviewing 

EPA action on a control measure SIP 

provision which adjusted the percent of 

sulfur permissible in fuel oil. 696 F.2d 

169 (D.C. Cir. 1982). The D.C. Circuit 

focused on whether EPA needed to 

evaluate effects of the SIP revision on 

one pollutant or effects of changes on all 

possible pollutants; therefore, the D.C. 

Circuit did not address required 

measures for i-SIPs and nothing in the 

opinion addressed whether i-SIP 

submissions need to contain measures 

to ensure attainment and maintenance 

of the NAAQS. 

EPA’s position is that none of these 

court cases addressed required measures 

for i-SIP submission and therefore 

nothing in the opinions addressed 

whether the state’s i-SIP submission 

must contain measures to ensure 

attainment and maintenance of the 

NAAQS. 

4. EPA Regulations, Such as 40 CFR 

51.112(a) 

Comment 4: Sierra Club cites to 40 

CFR 51.112(a), which provides that 

‘‘[e]ach plan must demonstrate that the 

measures, rules and regulations 

contained in it are adequate to provide 

for the timely attainment and 

maintenance of the [NAAQS].’’ Sierra 

Club asserts that this regulation requires 

all SIPs to include emissions limits 

necessary to ensure attainment of the 

NAAQS. Sierra Club states that 

‘‘[a]lthough these regulations were 

developed before the Clean Air Act 

separated i-SIPs from nonattainment 

SIPs—a process that began with the 

1977 amendments and was completed 

by the 1990 amendments—the 

regulations apply to [i]-SIPs.’’ Sierra 

Club relies on a statement in the 

preamble to the 1986 action 

restructuring and consolidating 

provisions in part 51, in which EPA 

stated that ‘‘[i]t is beyond the scope of 

th[is] rulemaking to address the 

provisions of Part D of the Act . . .’’ 51 

FR 40656, 40656 (November 7, 1986). 

Response 4: Sierra Club’s reliance on 

40 CFR 51.112 to support its argument 

that i-SIPs must contain emission limits 

‘‘adequate to prohibit NAAQS 

exceedances’’ and adequate or sufficient 

to ensure the maintenance of the 

NAAQS is incorrect. As an initial 

matter, EPA notes and the Sierra Club 

recognizes this regulatory provision was 

initially promulgated and ‘‘restructured 

and consolidated’’ prior to the CAA 

Amendments of 1990, in which 

Congress removed all references to 

‘‘attainment’’ in section 110(a)(2)(A). 

And, it is clear that 40 CFR 51.112 

directly applies to state SIP submissions 

that are specifically required to attain 

the NAAQS in nonattainment areas. 

These regulatory requirements apply 

when states are developing ‘‘control 

strategy’’ SIPs under other provisions of 

the CAA, such as attainment plans 

required for various NAAQS in Part D 

and maintenance plans required in 

section 175A. Sierra Club’s suggestion 

that these provisions must apply to 

section 110 i-SIPs because in the 

preamble to EPA’s action ‘‘restructuring 


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4 It is important to note, however, that EPA’s 

action in 1986 was not to establish new substantive 

planning requirements, but rather was meant 

merely to consolidate and restructure provisions 

that had previously been promulgated. EPA noted 

that it had already issued guidance addressing the 

new ‘‘Part D’’ nonattainment planning obligations. 

Also, as to maintenance regulations, EPA expressly 

stated that it was not making any revisions other 

than to re-number those provisions. 51 FR at 40657. 

5Sierra Club asserts its modeling followed 

protocols pursuant to 40 CFR part 50, Appendix W 

and EPA’s 2011 Guideline on implementing the 

one-hour SO2 NAAQS. 

and consolidating’’ provisions in part 

51, we stated that the new attainment 

demonstration provisions in the 1977 

Amendments to the CAA were ‘‘beyond 

the scope’’ of the rulemaking.4

Although EPA was explicit that it was 

not establishing requirements 

interpreting the provisions of new ‘‘Part 

D’’ of the CAA, it is clear that the 

regulations being restructured and 

consolidated were intended to address 

control strategy plans. In the preamble, 

EPA clearly stated that 40 CFR 51.112 

was replacing 40 CFR 51.13 (‘‘Control 

strategy: SOX and PM (portion)’’), 51.14 

(‘‘Control strategy: CO, HC, OX and NO2

(portion)’’), 51.80 (‘‘Demonstration of 

attainment: Pb (portion)’’), and 51.82 

(‘‘Air quality data (portion)’’). Id. at 

40660. Thus, the present-day 40 CFR 

51.112 contains consolidated provisions 

that are focused on control strategy SIPs, 

and the i-SIP is not such a plan. 

5. EPA Interpretations in Other 

Rulemakings 

Comment 5: Sierra Club also 

references two prior EPA rulemaking 

actions where EPA disapproved or 

proposed to disapprove SIPs and 

claimed these were actions in which 

EPA relied on section 110(a)(2)(A) and 

40 CFR 51.112 to reject i-SIPs. The 

Sierra Club first points to a 2006 partial 

approval and partial disapproval of 

revisions to Missouri’s existing plan 

addressing the SO2 NAAQS. In that 

action, EPA cited section 110(a)(2)(A) as 

the basis disapproving a revision to the 

state plan on the basis that the State 

failed to demonstrate the SIP was 

sufficient to ensure maintenance of the 

SO2 NAAQS after revision of an 

emission limit. EPA also cited to 40 CFR 

51.112, stating it requires that a plan 

demonstrates the rules in a SIP are 

adequate to attain the NAAQS. Second, 

Sierra Club cites a 2013 disapproval of 

a revision to the SO2 SIP for Indiana, 

where the revision removed an emission 

limit that applied to a specific emissions 

source at a facility in the State. See, 78 

FR 17157, 17158 (March 20, 2013) 

(proposed rule on Indiana SO2 SIP) and 

78 FR 78720, 78721 (December 27, 

2013) (final rule on Indiana SO2 SIP). In 

its proposed disapproval, EPA relied on 

40 CFR 51.112(a) in proposing to reject 

the revision, stating that the State had 

not demonstrated that the emission 

limit was ‘‘redundant, unnecessary, or 

that its removal would not result in or 

allow an increase in actual SO2

emissions.’’ EPA further stated in that 

proposed disapproval that the State had 

not demonstrated that removal of the 

limit would not ‘‘affect the validity of 

the emission rates used in the existing 

attainment demonstration.’’ 

Response 5: EPA does not agree that 

the two prior actions referenced by 

Sierra Club establish how EPA reviews 

i-SIP submissions. It is clear from both 

the final Missouri rule and the proposed 

and final Indiana rule that EPA was not 

reviewing initial i-SIP submissions 

under section 110 of the CAA, but rather 

reviewing revisions that would make an 

already approved SIP designed to 

demonstrate attainment of the NAAQS 

less stringent. EPA’s partial approval 

and partial disapproval of revisions to 

restrictions on emissions of sulfur 

compounds for the Missouri SIP in 71 

FR 12623 addressed a control strategy 

SIP submission, and not an i-SIP 

submission. The Indiana action 

provides even less support for the Sierra 

Club’s position since the EPA was 

reviewing a completely different 

requirement than that listed in CAA 

section 110(a)(2)(A). Rather, in that case, 

the State had an approved SO2

attainment plan which already included 

a specific emissions limitation for 

sources and was seeking to remove 

provisions from the SIP that it relied on 

as part of the modeled attainment 

demonstration. See, 78 FR 78720. EPA 

proposed that the State had failed to 

demonstrate under section 110(l) of the 

CAA that the SIP revision would not 

result in increased SO2 emissions and 

thus would interfere with attainment of 

the NAAQS. See, 78 FR 17157. Nothing 

in that proposed or final rulemaking 

addresses the necessary content of the 

initial i-SIP submission for a new or 

revised NAAQS. Rather, it is simply 

applying the clear statutory requirement 

that a state must demonstrate why a 

revision to an approved attainment plan 

will not interfere with attainment of the 

NAAQS. 

As discussed in detail in the TSD and 

proposed rule, EPA finds the Louisiana 

SIP meets the appropriate and relevant 

structural requirements of section 

110(a)(2) of the CAA, that it will aid in 

attaining and/or maintaining the 

NAAQS, and that the State 

demonstrated that it has the necessary 

tools to implement and enforce the 

NAAQS. 

Comments on Louisiana SIP Emission 

Limits 

Comment 6: Citing section 

110(a)(2)(A) of the CAA, Sierra Club 

contends that EPA may not approve 

Louisiana’s proposed i-SIP because it 

does not include enforceable NAAQS, 

including a 1-hour SO2 emission limit, 

for sources that they claim are currently 

allowed to cause ‘‘NAAQS 

exceedances.’’ Sierra Club also asserts 

the proposed i-SIP fails to include other 

required measures to ensure attainment 

and maintenance of the NAAQS in areas 

not designated nonattainment as Sierra 

Club claims is required by section 

110(a)(2)(A). Sierra Club argues that an 

i-SIP must ensure, through state-wide 

regulations or source specific 

requirements, proper mass limitations 

and short term averaging on specific 

large sources of pollutants such as 

power plants. Sierra Club states that 

emission limits are especially important 

for meeting the 1-hour SO2 NAAQS 

because SO2 impacts are strongly 

source-oriented. Sierra Club states coalfired electric generating units (EGUs) are 

large contributors to SO2 emissions, but 

contends Louisiana did not demonstrate 

that emissions allowed by the proposed 

i-SIP from such large sources of SO2 will 

ensure compliance with the 2010 1-hour 

SO2 NAAQS. They stated that the 

proposed i-SIP would allow major 

sources to continue operating with 

present emission limits. Sierra Club 

then refers to air dispersion modeling it 

conducted for two coal-fired EGUs in 

Louisiana, Cleco Power’s Dolet Hills 

Power Station and Entergy’s Big Cajun 

II Generating Station. Further, Sierra 

Club claims that the results of the air 

dispersion modeling it conducted 

employing EPA’s AERMOD program for 

modeling used the plants’ allowable and 

maximum emissions and showed the 

plants could cause exceedances of the 

2010 SO2 NAAQS with either allowable 

or maximum emissions.5 Based on the 

modeling, Sierra Club claims the 

Louisiana’s SO2 i-SIP submittal 

authorizes the two EGUs to cause 

exceedances of the NAAQS with 

allowable and maximum emission rates 

and therefore the i-SIP fails to include 

adequate enforceable emission 

limitations or other required measures 

for sources of SO2 sufficient to ensure 

attainment and maintenance of the 2010 

SO2 NAAQS. Sierra Club therefore 

asserts EPA must disapprove 

Louisiana’s proposed SIP revision. In 

addition, Sierra Club asserts ‘‘EPA must 

impose additional emission limits on 

the plants that ensure attainment and 


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maintenance of the NAAQS at all 

times.’’ 

Response 6: As explained in previous 

responses above, section 110(a)(2)(A) of 

the CAA requires states to submit i-SIPs 

that reflect the first step in their 

planning for attainment and 

maintenance of a new or revised 

NAAQS. These i-SIP revisions should 

contain a demonstration that the state 

has the available tools and authority to 

develop and implement plans to attain 

and maintain the NAAQS and show that 

the SIP has enforceable control 

measures. In light of the structure of the 

CAA, EPA’s long-standing position 

regarding i-SIPs is that they are general 

planning SIPs to ensure that the state 

has adequate resources and authority to 

implement a NAAQS in general 

throughout the state. These i-SIP 

submissions are not detailed attainment 

and maintenance plans for each 

individual area of the state. States may 

rely on measures already in place to 

address the pollutant at issue or any 

new control measures that the state may 

choose to submit. 

As stated in response to a previous 

comment, EPA asserts that section 110 

of the CAA is only one provision that 

is part of the multi-faceted structure 

governing implementation of the 

NAAQS program under the CAA, as 

amended in 1990, and it must be read 

in the context of not only that structure, 

but also of the historical evolution of 

that structure. In light of the revisions 

to CAA section 110 since 1970 and the 

later-promulgated and more specific 

planning requirements of the CAA, 

section 110(a)(2)(A) does not require 

that an i-SIP contain enforceable 

emissions limits that will aid in 

attaining and/or maintaining the 

NAAQS. The i-SIPs required by CAA 

section 110(a) are not the appropriate 

place to require emission limits 

demonstrating future attainment with a 

NAAQS. Part D of title I of the CAA 

contains numerous requirements for the 

NAAQS attainment planning process. 

These requirements include enforceable 

emissions limitations, and such other 

control measures, means or techniques, 

as well as schedules and timetables for 

compliance, as may be necessary or 

appropriate to provide for the 

attainment of the NAAQS. States have 

up to three years from the date of a 

nonattainment designation to submit a 

SIP meeting Part D’s requirements. 

Louisiana’s submittal was submitted to 

comply with the requirements outlined 

in CAA section 110(a), not Part D. As 

discussed above, the state may rely on 

measures already in place to address the 

pollutant at issue or any new control 

measures that the state may choose to 

submit. Finally, as EPA stated in the 

Infrastructure SIP Guidance, which 

specifically provides guidance to states 

in addressing the NAAQS, ‘‘[t]he 

conceptual purpose of an i-SIP 

submission is to assure that the air 

agency’s SIP contains the necessary 

structural requirements for the new or 

revised NAAQS, whether by 

establishing that the SIP already 

contains the necessary provisions, by 

making a substantive SIP revision to 

update the SIP, or both.’’ 2013 

Infrastructure SIP Guidance at p. 2. 

On April 12, 2012, EPA explained its 

expectations regarding the 2010 SO2

NAAQS via letters to each of the states. 

EPA communicated in the April 2012 

letters that all states were expected to 

submit SIPs meeting the 

‘‘infrastructure’’ SIP requirements under 

section 110(a)(2) of the CAA by June 

2013. At the time, EPA was undertaking 

a stakeholder outreach process to 

continue to develop possible 

approaches for determining attainment 

status under the SO2 NAAQS and 

implementing this NAAQS. EPA was 

abundantly clear in the April 2012 

letters that EPA did not expect states to 

submit substantive attainment 

demonstrations or modeling 

demonstrations showing attainment for 

areas not designated nonattainment in iSIP submission due in June 2013. 

Although EPA had previously suggested 

in its 2010 SO2 NAAQS preamble and 

in prior draft implementation guidance 

in 2011 that states should, in the unique 

SO2 context, use the section 110(a) SIP 

process as the vehicle for demonstrating 

attainment of the NAAQS, this approach 

was never adopted as a binding 

requirement and was subsequently 

discarded in the April 2012 letters to 

states. The April 2012 letters 

recommended states focus i-SIPs due in 

June 2013, such as Louisiana’s SO2 i-SIP 

submission, on traditional 

‘‘infrastructure elements’’ in section 

110(a)(1) and (2), rather than on 

modeling demonstrations for future 

attainment for areas not designated as 

nonattainment. In February of 2016, 

EPA issued non-binding guidance for 

states to use in conducting, if they 

choose, additional analysis to support 

designations for the 2010 1-hour SO2

NAAQS. SO2 NAAQS Designations 

Modeling Technical Assistance 

Document, EPA Office of Air and 

Radiation and Office of Air Quality 

Planning and Standards, February 2016, 

available at https://www.epa.gov/so2- 

pollution/technical-assistancedocuments-implementing-2010-sulfurdioxide-standard. 

Therefore, EPA asserts that SIP 

revisions for SO2 nonattainment areas 

including measures and modeling 

demonstrating attainment are due by the 

dates statutorily prescribed under 

subpart 5 under part D of Title I of CAA. 

Those submissions are due no later than 

18 months after an area is designed 

nonattainment for SO2, under CAA 

section 191(a). Thus, the CAA directs 

states to submit these SIP requirements 

for nonattainment areas on a separate 

schedule from the ‘‘structural 

requirements’’ of 110(a)(2) which are 

due within three years of adoption or 

revision of a NAAQS. The i-SIP 

submission requirement does not move 

up the date for any required submission 

of a CAA Title I part D plan for areas 

designated nonattainment for the new 

NAAQS. Thus, elements relating to 

demonstrating attainment for areas not 

attaining the NAAQS are not required 

for i-SIP submissions, and the CAA does 

not provide explicit requirements for 

demonstrating attainment for areas that 

have not yet been designated regarding 

attainment with a particular NAAQS. 

The proper inquiry at this juncture is 

whether Louisiana has met the basic 

structural SIP requirements applicable 

at the point in time that the SIP was 

submitted. Emissions limitations and 

other control measures needed to attain 

the NAAQS in areas designated 

nonattainment for that NAAQS are due 

on a different schedule from the section 

110 infrastructure elements. A state, like 

Louisiana, may choose to reference preexisting SIP emission limits approved 

by EPA as meeting CAA Title I of part 

D plans for previous NAAQS in an i-SIP 

submission for purposes of CAA section 

110(a)(2)(A). 

The requirements for emission 

reduction measures for an area 

designated nonattainment for the 2010 

primary SO2 NAAQS are in sections 172 

and 191–192 of the CAA, and therefore, 

the appropriate avenue for 

implementing requirements for 

necessary emission limitations for 

demonstrating attainment with the 2010 

SO2 NAAQS is through the attainment 

planning process contemplated by those 

sections of the CAA. LDEQ is required 

to bring St. Bernard Parish into 

compliance with the 1-hour standard as 

expeditiously as practicable, but no later 

than, October 4, 2018. The appropriate 

time for examining necessity of 

emission limits on specific sources is 

within the attainment planning process. 

When the St. Bernard Parish SO2

attainment demonstration is submitted 

by the State, EPA will take action on it 

in a separate rulemaking. In separate 

future actions, EPA intends to address 

the designations for all other areas for 

which EPA has yet to issue 

designations. See, e.g., 79 FR 27446 


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6See, for example, EPA recently discussed 

modeling for characterizing air quality in the 

Agency’s August 21, 2015, final rule at 80 FR 51052 

and for nonattainment planning in the April 23, 

2014, Guidance for 1-Hour SO2 Nonattainment 

Area SIP Submissions, Stephen D. Page, Director, 

EPA’s Office of Air Quality Planning and Standards, 

to Regional Air Division Directors Regions 1–10, 

April 23, 2014, available at https://www.epa.gov/ 

sites/production/files/2016-06/documents/ 

20140423guidance_nonattainment_sip.pdf. 

(May 13, 2014) (proposing process and 

timetables by which state air agencies 

would characterize air quality around 

SO2 sources through ambient 

monitoring and/or air quality modeling 

techniques and submit such data to the 

EPA). As previously stated, EPA’s 

position is that the submitted i-SIPs 

should be evaluated on whether 

Louisiana has met the basic structural 

SIP requirements applicable at the point 

in time that the SIP was submitted. 

Utilizing the i-SIP process to require the 

substantive elements contained 

elsewhere in the CAA, as detailed 

above, would be disruptive and 

premature absent exceptional 

circumstances and would interfere with 

a state’s planning process. See, In the 

Matter of EME Homer City Generation 

LP and First Energy Generation Corp., 

Order on Petitions Numbers III–2012– 

06, III–2012–07, and III–2013–01 (July 

30, 2014) (hereafter, Homer City/ 

Mansfield Order) at 10–19 (finding 

Pennsylvania SIP did not require 

imposition of SO2 emission limits on 

sources independent of the part D 

nonattainment planning process 

contemplated by the CAA). The history 

of the CAA, and intent of Congress for 

the CAA as described above, 

demonstrate clearly that it is within the 

section 172 and general part D 

nonattainment planning process that 

Louisiana must include additional SO2

emission limits on sources in order to 

demonstrate future attainment, where 

needed, for any areas in Louisiana or 

other states that may be designated 

nonattainment now or in the future, in 

order to attain the 2010 1-hour SO2 or 

other NAAQS. 

Sierra Club’s reliance on 40 CFR 

51.112 to support its argument that iSIPs must contain emission limits 

adequate to provide for timely 

attainment and maintenance of the 

standard is also unsupported. As 

explained above, EPA notes this 

regulatory provision clearly applies to 

plans specifically designed to attain the 

NAAQS and not to i-SIPs which show 

the states have in place structural 

requirements necessary to implement 

the NAAQS. Therefore, EPA finds 40 

CFR 51.112 inapplicable to its analysis 

of Louisiana’s i-SIP submission. 

Regarding the air dispersion modeling 

conducted by Sierra Club pursuant to 

AERMOD for the coal-fired EGUs, 

including Cleco Power’s Dolet Hills 

Power Station and Entergy’s Big Cajun 

II Generating Station, EPA is not in this 

action making a determination regarding 

the air quality status in the area where 

these EGUs are located, and is not 

evaluating whether emissions 

applicable to these EGUs are adequate to 

attain and maintain the NAAQS. 

Consequently, EPA does not find the 

modeling information relevant for 

review of an infrastructure SIP for 

purposes of section 110(a)(2)(A). When 

additional areas in Louisiana are 

designated under the 2010 1-hour SO2

NAAQS, and if any additional areas in 

Louisiana are designated nonattainment 

in the future, any potential future 

modeling submitted by the State with 

designations or attainment 

demonstrations would need to account 

for any new emissions limitations 

Louisiana develops to support such 

designation or demonstration. While 

EPA has extensively discussed the use 

of modeling for attainment 

demonstration purposes and for 

designations, EPA has recommended 

that such modeling was not needed for 

the SO2 infrastructure SIPs for the 2010 

1-hour SO2 NAAQS for purposes of 

section 110(a)(2)(A), which are not 

actions in which EPA makes 

determinations regarding current air 

quality status.6 See April 12, 2012, 

letters to states and 2012 Draft White 

Paper. 

In conclusion, EPA disagrees with 

Sierra Club’s assertions that EPA must 

disapprove Louisiana’s i-SIP submission 

because it does not establish specific 

enforceable NAAQS emission limits, 

and specifically enforceable emission 

limits for SO2, either on coal-fired EGUs 

or other large SO2 sources, in order to 

demonstrate attainment and 

maintenance with the NAAQS. 

Comment 7: Sierra Club asserts that 

modeling is the appropriate tool for 

evaluating adequacy of i-SIPs and 

ensuring attainment and maintenance of 

the 2010 SO2 NAAQS. The Commenter 

refers to EPA’s historic use of air 

dispersion modeling for attainment 

designations as well as ‘‘SIP revisions.’’ 

The Commenter states that in prior EPA 

statements the Agency has said it used 

modeling for designations and 

attainment demonstrations, including 

statements in the 2010 SO2 NAAQS 

preamble, EPA’s 2012 Draft White Paper 

for Discussion on Implementing the 

2010 SO2 NAAQS, and a 1994 SO2

Guideline Document, as modeling could 

better address the source-specific 

impacts of SO2 emissions and historic 

challenges from monitoring SO2

emissions. 

The Commenter discusses statements 

made by EPA staff regarding (1) the use 

of modeling and monitoring in setting 

emission limitations, (2) determining 

ambient concentrations as a result of a 

source’s emissions, (3) discussing 

performance of AERMOD as a model, 

including if AERMOD is capable of 

predicting whether the NAAQS is 

attained, and (4) whether individual 

sources contribute to SO2 NAAQS 

violations. Sierra Club cites to EPA’s 

history of employing air dispersion 

modeling for increment compliance 

verifications in the permitting process 

for the Prevention of Significant 

Deterioration (PSD) program which is 

required in part C of title I of the CAA. 

Sierra Club asserts EPA’s use of air 

dispersion modeling was upheld in 

GenOn REMA, LLC v. EPA, 722 F.3d 513 

(3rd Cir. 2013) where an EGU 

challenged EPA’s use of CAA section 

126 to impose SO2 emission limits on a 

source due to cross-state impacts. The 

Commenter claims the Third Circuit in 

GenOn REMA upheld EPA’s actions 

after examining the record which 

included EPA’s air dispersion modeling 

of the one source as well as other data. 

The Commenter cites to Vehicle Mfrs. 

Ass’n v. State Farm Mut. Auto Ins. Co., 

463 U.S. 29, 43 (1983) and NRDC v. 

EPA, 571 F.3d 1245, 1254 (D.C. Cir. 

2009) for the general proposition that it 

would be arbitrary and capricious for an 

agency to ignore an aspect of an issue 

placed before it and that an agency must 

consider information presented during 

notice-and-comment rulemaking. 

Finally, Sierra Club claims that 

Louisiana’s proposed i-SIP lacks 

emission limitations informed by air 

dispersion modeling and therefore fails 

to ensure Louisiana will achieve and 

maintain the SO2 NAAQS. Sierra Club 

claims EPA must require adequate, 1- 

hour SO2 emission limits in the i-SIP 

that show no exceedances of NAAQS 

when modeled. 

Response 7: EPA agrees with Sierra 

Club that air dispersion modeling, 

including the use of AERMOD, can be 

an important tool for SO2 designations 

under CAA section 107, and also as part 

of attainment planning under CAA 

sections 172 and 191–192. EPA agrees 

that prior EPA statements, EPA 

guidance, and case law support the use 

of air dispersion modeling in the SO2

designations process and attainment 

demonstration SIP process, as well as in 

analyses of whether existing approved 

SIPs remain adequate to show 

attainment and maintenance of the SO2

NAAQS. However, EPA disagrees with 

the Commenter that EPA must 


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disapprove the Louisiana i-SIP for its 

alleged failure to include source-specific 

SO2 emission limits that show no 

exceedances of the NAAQS when 

modeled. 

As discussed above and in the 2013 

Infrastructure SIP Guidance, the 

conceptual purpose of an i-SIP 

submission is to assure that the air 

agency’s SIP contains the necessary 

structural requirements for the new or 

revised NAAQS and that the i-SIP 

submission process provides an 

opportunity to review the basic 

structural requirements of the Agency’s 

air quality management program in light 

of the new or revised NAAQS. See, 

Infrastructure SIP Guidance at p. 2. The 

attainment planning process detailed in 

part D of the CAA, including sections 

172 and 191–192, is the appropriate 

place for the state to evaluate measures 

needed to bring SO2 nonattainment 

areas into attainment with the 2010 SO2

NAAQS and to impose additional 

emission limitations such as SO2

emission limits on specific sources. 

EPA had initially recommended that 

states submit substantive attainment 

demonstration SIPs based on air quality 

modeling in the final 2010 SO2 NAAQS 

preamble (75 FR 35520) and in 

subsequent draft guidance issued in 

September 2011 for the section 110(a) 

SIPs due in June 2013 in order to show 

how areas expected to be designated as 

unclassifiable would attain and 

maintain the NAAQS. These initial 

statements in the preamble and 2011 

draft guidance were based on EPA’s 

expectation at the time; that by June 

2012, most areas would initially be 

designated as unclassifiable due to 

limitations in the scope of the ambient 

monitoring network and the short time 

available before which states could 

conduct modeling to support 

designations recommendations in 2011. 

However, after conducting extensive 

stakeholder outreach and receiving 

comments from the states regarding 

these initial statements and the timeline 

for implementing the NAAQS, EPA 

subsequently stated in the April 12, 

2012 letters and in the 2012 Draft White 

Paper that EPA was clarifying its 

implementation position and was no 

longer requiring such attainment 

demonstrations supported by air 

dispersion modeling for unclassifiable 

areas (which had not yet been 

designated) to be included in the June 

2013 i-SIPs. EPA then reaffirmed this 

position in the February 6, 2013 

memorandum, ‘‘Next Steps for Area 

Designations and Implementation of the 

Sulfur Dioxide National Ambient Air 

Quality Standard.’’ As previously 

mentioned, EPA had stated in the 

preamble to the NAAQS and in the prior 

2011 draft guidance that EPA intended 

to develop and seek public comment on 

guidance for modeling and development 

of SO2 SIPs for sections 110, 172 and 

191–192 of the CAA. After receiving 

such further comment, EPA has now 

issued guidance for the SO2

nonattainment area SIPs due pursuant 

to sections 172 and 191–192 and 

proposed a process for further 

characterization of areas with larger SO2

sources, which could include use of air 

dispersion modeling. See, April 23, 

2014 Guidance for 1-Hour SO2

Nonattainment Area SIP Submissions 

and 79 FR 27446 (proposing process and 

timetables for gathering additional 

information on impacts from larger SO2

sources informed through ambient 

monitoring and/or air quality modeling). 

EPA issued non-binding guidance for 

states to use in conducting, if they 

choose, additional analysis to support 

designations for the 2010 1-hour SO2

NAAQS. SO2 NAAQS Designations 

Modeling Technical Assistance 

Document, EPA Office of Air and 

Radiation and Office of Air Quality 

Planning and Standards, February 2016, 

available at https://www.epa.gov/so2- 

pollution/technical-assistancedocuments-implementing-2010-sulfurdioxide-standard. 

While EPA guidance for SO2

attainment SIPs and the proposed 

process for further characterizing SO2

emissions from larger sources both 

discuss the use of air dispersion 

modeling, EPA’s 2013 Infrastructure SIP 

Guidance did not suggest that states use 

air dispersion modeling to inform 

emission limitations for section 

110(a)(2)(A) to ensure no exceedances of 

the NAAQS when sources are modeled, 

nor does the CAA or Code of Federal 

Regulations require that they do. 

Therefore, as discussed previously, the 

Louisiana i-SIP submittal contains the 

structural requirements to address 

elements in section 110(a)(2) as 

discussed in detail in the TSD 

accompanying the proposed approval. 

I–SIPs are general planning SIPs that 

ensure that a state has adequate 

resources and authority to implement a 

new or revised NAAQS. I–SIP 

submissions are not intended to act or 

fulfill the obligations of a detailed 

attainment and/or maintenance plan for 

each individual area of the state that is 

not attaining the NAAQS. While i-SIPs 

must address modeling authorities in 

general for section 110(a)(2)(K), this 

section requires i-SIPs to provide the 

state’s authority for air quality modeling 

and for submission of modeling data to 

EPA, not specific air dispersion 

modeling. In the TSD for this 

rulemaking action, EPA provided a 

detailed explanation of Louisiana’s 

ability and authority to conduct air 

quality modeling when required and its 

authority to submit modeling data to 

EPA. 

EPA finds Sierra Club’s discussion of 

case law, guidance, and EPA staff 

statements regarding advantages of 

AERMOD as an air dispersion model to 

be irrelevant to the analysis of 

Louisiana’s i-SIP as this is not an 

attainment SIP required to demonstrate 

attainment of the 2010 SO2 NAAQS 

pursuant to sections 172 or 192. In 

addition, Sierra Club’s comments 

relating to EPA’s use of AERMOD or 

modeling in general in SO2 designations 

pursuant to section 107 are likewise 

irrelevant as EPA’s present approval of 

Louisiana’s i-SIP is unrelated to the 

section 107 designations process nor is 

EPA’s action on this i-SIP related to any 

nonattainment new source review 

(NNSR) or PSD permit program issue. 

As outlined in the August 23, 2010 

clarification memo, ‘‘Applicability of 

Appendix W Modeling Guidance for the 

1-hour SO2 National Ambient Air 

Quality Standard’’ (U.S. EPA, 2010a), 

AERMOD is the preferred model for 

single source modeling to address the 

2010 1-hour SO2 NAAQS as part of the 

NNSR/PSD permit programs. Therefore, 

as attainment SIPs, designations, and 

NNSR/PSD actions are outside the scope 

of a required i-SIP submission for SO2

NAAQS for section 110(a), EPA 

provides no further response to the 

Commenter’s discussion of air 

dispersion modeling for these 

applications. If Sierra Club resubmits its 

SO2 air dispersion modeling for the 

Louisiana’s EGUs, or updated modeling 

information in the appropriate context, 

e.g., for designations, attainment SIPs, 

major source permitting, EPA will 

address the resubmitted modeling or 

updated modeling in the appropriate 

future context. 

The Commenter correctly noted that 

the Third Circuit upheld EPA’s Section 

126 Order imposing SO2 emissions 

limitations on an EGU pursuant to CAA 

section 126. GenOn REMA, LLC v. EPA, 

722 F.3d 513. Pursuant to CAA section 

126, any state or political subdivision 

may petition EPA for a finding that any 

major source or group of stationary 

sources emits, or would emit, any air 

pollutant in violation of the prohibition 

of section 110(a)(2)(D)(i)(I) which relates 

to significant contributions to 

nonattainment or maintenance in 

another state. The Third Circuit upheld 

EPA’s authority under CAA section 126 

and found EPA’s actions neither 

arbitrary nor capricious after reviewing 


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7Sierra Club cited to In re: Mississippi Lime Co., 

PSDAPLPEAL 11–01, 2011 WL 3557194, at *26–27 

(EPA Aug. 9, 2011) and 71 FR 12623, 12624 (March 

13, 2006) (EPA disapproval of a control strategy SO2

SIP). 

8See, http://www.deq.louisiana.gov/portal/

Portals/0/AirQualityAssessment/Planning/SIP/

SO2%20SIP%20with%20Appendices%20- 

%20Final.pdf. 

9For a discussion on emission averaging times for 

emissions limitations for SO2 attainment SIPs, see 

the April 23, 2014 Guidance for 1-Hour SO2

Nonattainment Area SIP Submissions. EPA 

explained that it is possible, in specific cases, for 

states to develop control strategies that account for 

variability in 1-hour emissions rates through 

emission limits with averaging times that are longer 

than 1-hour, using averaging times as long as 30- 

days, but still provide for attainment of the 2010 

SO2 NAAQS as long as the limits are of at least 

comparable stringency to a 1-hour limit at the 

critical emission value. EPA has not yet evaluated 

any specific submission of such a limit, and so is 

not at this time prepared to take final action to 

implement this concept. If and when a state submits 

an attainment demonstration that relies upon a 

limit with such a longer averaging time, EPA will 

evaluate it then. 

EPA’s supporting docket which 

included air dispersion modeling as 

well as ambient air monitoring data 

showing violations of the NAAQS. The 

Sierra Club appears to have cited to this 

matter to demonstrate EPA’s use of 

modeling for certain aspects of the CAA. 

EPA agrees with the Commenter 

regarding the appropriate role air 

dispersion modeling has for SO2

NAAQS designations, attainment SIPs, 

and demonstrating significant 

contributions to interstate transport. 

However, EPA’s approval of Louisiana’s 

i-SIP submission is based on our 

determination that Louisiana has the 

required structural requirements 

pursuant to CAA section 110(a)(2) in 

accordance with our explanation of the 

intent for i-SIP submissions as 

discussed in the 2013 Infrastructure SIP 

Guidance. Therefore, while air 

dispersion modeling may be appropriate 

for consideration in certain 

circumstances, EPA does not find air 

dispersion modeling of the NAAQS to 

be a required element before approval of 

i-SIP submission for CAA section 110(a) 

or specifically for 110(a)(2)(A) of the 

Act. Thus, EPA disagrees with the 

Commenter that EPA must require 

additional emission limitations in this 

Louisiana or other i-SIPs informed by 

air dispersion modeling and 

demonstrating attainment and 

maintenance of the NAAQS. 

In its comments, Sierra Club relies on 

Motor Vehicle Mfrs. Ass’n and NRDC v. 

EPA to support its comments that EPA 

must consider the Sierra Club’s 

modeling data on the Dolet Hills Power 

Station and Big Cajun II Generating 

Station based on administrative law 

principles regarding consideration of 

comments provided during a 

rulemaking process. EPA asserts that it 

has considered the modeling as well as 

all the submitted comments of Sierra 

Club. However, as discussed in detail in 

the responses above, the i-SIPs required 

by CAA section 110(a) are not the 

appropriate place to require emission 

limits demonstrating future attainment 

with a NAAQS, and as such EPA is not 

explicitly considering the modeling 

results provided by the Sierra Club 

insofar as they support the contention 

that enforceable emissions limitations 

are a required part of an i-SIP 

submission. 

While i-SIP submissions are not 

required to contain emission limits, as 

suggested by the Commenter, EPA does 

recognize that in the past, states have 

used i-SIP submittals as a ‘vehicle’ for 

incorporating regulatory revisions or 

source-specific emission limits into the 

state’s plan. See, 78 FR 73442 

(December 6, 2013) (approving 

regulations Maryland submitted for 

incorporation into the SIP along with 

the 2008 Ozone i-SIP to address ethics 

requirements for State Boards in 

sections 128 and 110(a)(2)(E)(ii)). While 

these SIP revisions are intended to help 

the state meet the requirements of 

section 110(a)(2), these ‘‘ride-along’’ SIP 

revisions are not intended to signify that 

all i-SIP submittals should have similar 

regulatory revisions or source-specific 

emission limits. Rather, the regulatory 

provisions and source-specific emission 

limits the state relies on when showing 

compliance with CAA section 110(a)(2) 

have likely already been incorporated 

into the state’s SIP prior to each new iSIP submission; in some cases this was 

done for entirely separate CAA 

requirements, such as attainment plans 

required under section 172, or for 

previous NAAQS. 

Comment 8: Sierra Club asserts that 

EPA may not approve the Louisiana 

proposed i-SIP submission because it 

fails to include enforceable emission 

limitations with a 1-hour averaging time 

that applies at all times. The Sierra Club 

cite to CAA section 302(k) which 

requires emission limits to apply on a 

continuous basis. The Commenter 

claims EPA has stated that 1-hour 

averaging times are necessary for the 

2010 SO2 NAAQS citing to a February 

3, 2011, EPA Region 7 letter to the 

Kansas Department of Health and 

Environment regarding the need for 

1-hour SO2 emission limits in a PSD 

permit, an EPA Environmental Hearing 

Board (EHB) decision rejecting use of a 

3-hour averaging time for a SO2 limit in 

a PSD permit, and EPA’s disapproval of 

a Missouri SIP which relied on annual 

averaging for SO2 emission rates.7

Sierra Club also contends that i-SIPs 

approved by EPA must include 

monitoring of SO2 emission limits on a 

continuous basis using a continuous 

emission monitor system or systems 

(CEMS) and cites to section 110(a)(2)(F) 

which requires a SIP to establish a 

system to monitor emissions from 

stationary sources and to require 

submission of periodic emission reports. 

Sierra Club contends i-SIPs must require 

such SO2 CEMS to monitor SO2 sources 

regardless of whether sources have 

control technology installed to ensure 

limits are protective of the NAAQS. 

Thus, Sierra Club contends EPA must 

require enforceable emission limits, 

applicable at all times, with 1-hour 

averaging periods, monitored 

continuously with CEMS of large 

sources of SO2 emissions, and therefore 

must disapprove Louisiana’s i-SIP 

which Sierra Club claims fails to require 

emission limits with adequate averaging 

times. 

Response 8: St. Bernard Parish was 

designated nonattainment effective 

October 4, 2013. LDEQ is required to 

bring St. Bernard Parish into 

compliance with the 1-hour standard as 

expeditiously as practicable, but no later 

than October 4, 2018. When the 

attainment demonstration SIP is 

submitted by the State, we will take 

action on it in a separate rulemaking 

action. The appropriate time for 

examining necessity of 1-hour SO2

emission limits on specific sources is 

within the attainment planning SIP 

rulemaking process. As such, EPA 

disagrees that we must disapprove the 

proposed Louisiana i-SIP because the 

submittal does not contain enforceable 

SO2 emission limitations with 1-hour 

averaging periods that apply at all times, 

along with requiring CEMS, as the State 

has addressed its SO2 nonattainment 

designation in another more appropriate 

document pursuant to section 107 of the 

CAA.8 As explained in detail in 

previous responses, the purpose of the 

i-SIP is to ensure that a state has the 

structural capability to attain and 

maintain the NAAQS and thus, 

additional SO2 emission limitations 

demonstrating future attainment and 

maintenance of the 2010 NAAQS are 

not required for such i-SIPs.9 Likewise, 

EPA need not address, for the purpose 

of approving Louisiana’s i-SIP, whether 

CEMS or some other appropriate 

monitoring of SO2 emissions is 

necessary to demonstrate compliance 

with emission limits in order to show 

future attainment of the 2010 SO2

NAAQS as such SO2 emission limits 

and an attainment demonstration are 

not a prerequisite to EPA’s approval of 


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10The appropriate time for application of 

monitoring requirements to demonstrate continuous 

compliance by specific sources is when such 1-hour 

emission limits are set for specific sources whether 

in permits issued by Louisiana pursuant to the SIP 

or in attainment SIPs submitted in the part D 

planning process. 

11While monitoring pursuant to NSPS 

requirements in 40 CFR part 60 may not be 

sufficient for 1-hour SO2 emission limits, Sierra 

Club’s comment regarding NSPS monitoring 

provisions is not relevant at this time because EPA 

finds 1-hour SO2 emission limits and associated 

monitoring and averaging periods are not required 

for our approval of Louisiana’s i-SIP. 

this or most other i-SIP submissions.10

Therefore, because EPA finds 

Louisiana’s i-SIP submission approvable 

without the additional SO2 emission 

limitations showing future attainment of 

the NAAQS, EPA finds the issues of 

appropriate averaging periods and 

monitoring requirements for such future 

limitations not relevant at this time. 

Sierra Club has cited to prior EPA 

discussion on emission limitations 

required in PSD permits (from an EAB 

decision and EPA’s letter to Kansas’ 

permitting authority) pursuant to part C 

of the CAA, which is neither relevant 

nor applicable to section 110 i-SIPs. In 

addition, as previously discussed, EPA 

disapproval of the 2006 Missouri SIP 

was a disapproval relating to a control 

strategy SIP required pursuant to part D 

attainment planning and is likewise not 

relevant to the analysis of i-SIP 

requirements. 

EPA has explained in the TSD 

supporting this rulemaking action how 

the Louisiana SIP meets requirements in 

section 110(a)(2)(F) related to 

monitoring. Thus, EPA finds Louisiana 

has the authority and responsibility to 

monitor air quality for the relevant 

NAAQS pollutants at appropriate 

locations and to submit data to EPA in 

a timely manner in accordance with 

110(a)(2)(F) and the Infrastructure SIP 

Guidance.11 See, Infrastructure SIP 

Guidance at p. 45–46. 

Comment 9: The Commenter alleges 

the Louisiana SIP contains exemption 

provisions for periods of startup and 

‘‘operating adjustments’’ as well as 

variance provisions for ‘‘exceptional 

circumstances’’ which would cause 

undue hardship. See LAC 33:III.1507, 

917, and 1505 (2012), respectively. The 

Commenter notes that NAAQS must be 

enforced at all times and sources cannot 

be granted variances under any 

circumstances, even startup, shutdown 

and malfunction, and cites EPA’s recent 

SIP Call to 39 states. See State 

Implementation Plans: Response to 

Petition for Rulemaking; Findings of 

Substantial Inadequacy; and SIP Calls to 

Amend Provisions Applying to Excess 

Emissions During Periods of Startup, 

Shutdown, and Malfunctions; Final 

Rule, 80 FR 33840 (June 12, 2015). The 

Commenter claims that LDEQ must 

remove such provisions from the 

existing Louisiana SIP rules in order to 

properly comply with the infrastructure 

requirements for the 2010 SO2 NAAQS. 

Response 9: EPA disagrees with the 

Commenter that EPA is required to 

address all potential deficiencies that 

may exist in the Louisiana SIP in the 

context of evaluating an infrastructure 

SIP submission. In particular, an action 

on a state’s infrastructure SIP 

submission is not necessarily the 

appropriate type of action in which to 

address possible deficiencies in a state’s 

existing SIP rules related to excess 

emissions from sources during periods 

of startup, shutdown, or malfunction. It 

is not reasonable to read the general 

requirements of CAA section 110(a)(1) 

and the listing of elements in CAA 

section 110(a)(2) as requiring review of 

each and every provision of a state’s 

existing SIP against all requirements in 

the CAA and the 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. In addition, EPA 

notes that the CAA provides other 

avenues and mechanisms to address 

specific substantive deficiencies in 

existing SIPs. For example, CAA section 

110(k)(5) authorizes EPA to issue a SIP 

call whenever EPA determines a state’s 

SIP is substantially inadequate to attain 

or maintain the NAAQS, to mitigate 

interstate transport, or to otherwise 

comply with the CAA. As noted by the 

Commenter, EPA has recently issued a 

SIP call to Louisiana requiring the 

removal of the exemption provision in 

LAC 33:III.1507. EPA is working closely 

with LDEQ to addressing the substantial 

inadequacies EPA identified in specific 

Louisiana SIP rules. See 80 FR 33967 

(June 12, 2015). LDEQ is required to 

submit a revised SIP addressing the 

substantial inadequacies by November 

22, 2016. EPA emphasizes that by 

approving Louisiana’s i-SIP submission, 

EPA is not approving or reapproving 

any potentially deficient provisions that 

exist in the current SIP that relate to 

excess emissions. Furthermore, EPA’s 

determination that an action on a state’s 

infrastructure SIP submission is not the 

appropriate time and place to address 

all potential existing SIP deficiencies 

does not preclude EPA’s subsequent 

reliance on provisions in CAA section 

110(a)(2) as part of the basis for action 

to correct those deficiencies at a later 

time. 

Comment 10: The Sierra Club claims 

EPA must disapprove the proposed iSIP for the 2008 ozone NAAQS for its 

failure to include enforceable measures 

on sources of volatile organic 

compounds (VOCs) and nitrogen oxides 

(NOX) to ensure attainment and 

maintenance of the NAAQS in areas not 

designated nonattainment and to ensure 

compliance with section 110(a)(2)(A) for 

the 2008 and future ozone NAAQS. The 

commenter specifically mentions EGUs 

as well as the oil and gas production 

industry as sources needing additional 

controls as they are major sources of 

ozone precursors. The Sierra Club 

claims stringent emission limits must 

apply at all times to ensure all areas in 

Louisiana attain and maintain the ozone 

NAAQS. The Commenter claims the 

ozone precursors can be reduced costeffectively through installation of 

selective catalytic reductions (‘‘SCR’’) 

technology at EGUs. The commenter 

claims that Louisiana’s EGUs do not use 

SCRs adequately to prevent ozone 

exceedances. 

In addition, the Commenter asserts 

that the Louisiana i-SIP must contain 

emission limits that include mass 

limitations and short term averaging 

periods on certain large sources of NOX

such as power plants. These emission 

limits must apply at all times, to ensure 

that all areas of Louisiana attain and 

maintain the 2008 t8-hour ozone 

NAAQS. The Commenter also contends 

that adding control devices and 

emission limits on EGUs are a ‘‘cost 

effective option to reduce NOX pollution 

and attain and maintain the 2008 ozone 

NAAQS.’’ 

Finally, the Commenter 

states‘‘[d]espite knowing that Louisiana 

is on the precipice of exceeding the 

ozone NAAQS, LDEQ is taking 

insufficient action to limit ozone 

concentrations and fails to demonstrate 

how it plans to address these significant 

ozone and ozone precursors. 

Consequently, EPA must disapprove the 

state’s i-SIP.’’ 

Response 10: EPA has addressed in 

detail in prior responses above the 

Commenter’s general arguments that the 

statutory language, legislative history, 

case law, EPA regulations, and prior 

rulemaking actions by EPA mandate the 

interpretation it advocates—i.e., that iSIPs must ensure attainment and 

maintenance of the NAAQS. EPA’s 

position is that the i-SIP submissions 

required by CAA section 110(a) are not 

the appropriate place to require 

emission limits demonstrating future 

attainment with a NAAQS as is 

explained more thoroughly in an above 

response. Moreover, the CAA recognizes 

and has provisions to address changes 

in air quality over time. These include 

provisions providing for redesignation 

in CAA section 107(d) and provisions in 


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12 81 FR 35674. 

CAA section 110(k)(5) allowing EPA to 

call on the state to revise its SIP, as 

appropriate. Finally, EPA appreciates 

the Commenter’s information regarding 

EGU NOX control measures and 

reduction efficiencies as well as 

emissions limitations applicable to new 

or modified EGUs which were set 

during the PSD or NSR permit process. 

Additional NOX regulations on 

emissions from the EGUs would likely 

reduce ozone levels further in one or 

more areas in Louisiana. Congress 

established the CAA such that each state 

has primary responsibility for assuring 

air quality within the state and each 

state is first given the opportunity to 

determine an emission reduction 

program for its areas subject to EPA 

approval, with such approval dependent 

upon whether the SIP as a whole meets 

the applicable requirements of the CAA. 

See Virginia v. EPA, 108 F.3d at 1410. 

The State could choose to consider 

additional control measures for NOX at 

EGUs to ensure attainment and 

maintenance of the ozone NAAQS as 

Louisiana moves forward to meet the 

more prescriptive planning 

requirements of the CAA in the future. 

However, as we have explained, the 

State is not required to regulate such 

sources for the purposes of meeting the 

i-SIP requirements of CAA section 

110(a)(2). 

In addition, emission limits with the 

shorter-term averaging rates suggested 

by the Commenter could be considered 

within the CAA Title I part D planning 

process to ensure attainment and 

maintenance of the 2008 NAAQS. As 

EPA finds Louisiana’s NOX and VOC 

provisions presently in the SIP 

sufficient for infrastructure SIP 

purposes and specifically for CAA 

section 110(a)(2)(A), further 

consideration of the averaging times is 

not appropriate or relevant at this time. 

Thus, EPA disagrees with the 

Commenter that Louisiana’s i-SIP must 

be disapproved for failure to contain 

sufficient measures to ensure attainment 

and maintenance of the 2008 ozone 

NAAQS. 

Comment 11: The Sierra Club alleges 

that the proposed i-SIP does not address 

sources significantly contributing to 

nonattainment or interfering with 

maintenance of the NAAQS in other 

states as required by section 

110(a)(2)(D)(i)(I) of the CAA, and states 

EPA must therefore disapprove the iSIP. Sierra Club claims its modeling 

shows that emissions from Dolet Hills 

and Big Cajun II are contributing to 

exceedances in other states. Sierra Club 

states that the CAA requires i-SIPs to 

address cross-state air pollution. The 

Commenter argues that Louisiana has 

not done so and that EPA must 

disapprove the proposed infrastructure. 

The Commenter references the recent 

Supreme Court decision, EPA v. EME 

Homer City Generation, L.P. et al, 134 S. 

Ct. 1584 (2014), which supports the 

states’ mandatory duty to address crossstate pollution under section 

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

Response 11: The Sierra Club 

commented that Louisiana’s i-SIP fails 

to address any cross-state impacts that 

are due to sources within the State. 

However in the proposed rulemaking for 

this final rule, EPA did address and 

propose to approve the good neighbor 

provisions in section 110(a)(2)(D)(i)(I) 

for the 2008 Pb and 2010 NO2

NAAQS,12 and we are finalizing those 

provisions in this rulemaking. The 

portion of the State’s SIP addressing the 

good neighbor provision for the 2006 

PM2.5 was approved on April 15, 2014 

(79 FR 21142) and the 2008 ozone was 

disapproved August 12, 2016 (81 FR 

53308). EPA will be addressing 

110(a)(2)(D)(i)(I) for 2010 SO2 and the 

2012 PM2.5 NAAQS in future actions. 

Thus, the comments relating to the 

substance and approvability of 

Louisiana’s good neighbor provision in 

its 2010 SO2 and the 2012 PM2.5 NAAQS 

i-SIP submission are not relevant to this 

rulemaking action. As stated herein and 

in the NPR, EPA will take later, separate 

action on Louisiana’s 2010 SO2 and the 

2012 PM2.5 NAAQS i-SIP submissions to 

address section 110(a)(2)(D)(i)(I). 

The statutory language in the CAA 

supports our ability to approve 

Louisiana’s NAAQS i-SIP submissions 

while taking later, separate action on the 

portion of the SIP submittals which 

address Louisiana’s obligation to 

address section 110(a)(2)(D)(i)(I). 

Section 110(k)(3) of the CAA authorizes 

EPA to approve a plan in full, 

disapprove it in full, or approve it in 

part and disapprove it in part, 

depending on the extent to which such 

plan meets the requirements of the 

CAA. This authority to approve the 

states’ SIP revisions in separable parts 

was included in the 1990 Amendments 

to the CAA to overrule a decision in the 

Court of Appeals for the Ninth Circuit 

holding that EPA could not approve 

individual measures in a plan 

submission without either approving or 

disapproving the plan as a whole. See, 

S. Rep. No. 101–228, at 22, 1990 

U.S.C.C.A.N. 3385, 3408 (discussing the 

express overruling of Abramowitz v. 

EPA, 832 F.2d 1071 (9th Cir. 1987)). 

As such, EPA has the authority under 

section 110(k)(3), to use our discretion 

to approve or conditionally approve 

individual elements of Louisiana’s 

infrastructure submission for NAAQS, 

separate and apart from any action with 

respect to the requirements of section 

110(a)(2)(D)(i)(I). EPA views discrete iSIP requirements, such as the 

requirements of 110(a)(2)(D)(i)(I), as 

severable from the other infrastructure 

elements and section 110(k)(3) allows us 

to act on individual severable measures 

in a plan submission. The commenter 

raises no compelling legal or 

environmental rationale for an alternate 

interpretation. Nothing in the Supreme 

Court’s April 2014 decision in EME 

Homer City alters our interpretation that 

we may act on individual severable 

measures including the requirements of 

section 110(a)(2)(D)(i)(I) in a SIP 

submission. See, EPA v. EME Homer 

City Generation, L.P.,134 S. Ct. 1584 

(2014) (affirming a state’s obligation to 

submit a SIP revision addressing section 

110(a)(2)(D)(i)(I) independent of EPA’s 

action finding significant contribution 

or interference with maintenance). 

EPA’s proposed approval of the 

Louisiana’s i-SIP submission for 

NAAQS for the portions described in 

the NPR was therefore appropriate. 

III. Final Action 

EPA is approving i-SIP submissions 

from Louisiana submitted on May 16, 

2011, October 10, 2011, June 4, 2013, 

and December 17, 2015, certifying that 

the State’s current i-SIP is sufficient to 

meet the required infrastructure 

elements under sections 110(a)(1) and 

110(a)(2) for the 2006 PM2.5, 2008 Pb, 

2008 ozone, 2010 NO2, 2010 SO2 and 

2012 PM2.5 with exception of certain 

aspects relating to CAA section 

110(a)(2)(D)(i)(I) for the 2008 ozone, 

2010 SO2 and 2012 PM2.5 and 

disapproval for the visibility protection 

portion of CAA section 110(a)(2)(D)(i)(II) 

for all pollutants except the 2008 Pb 

NAAQS. The elements in which no 

action is taken, or for which disapproval 

was given will be or have been 

addressed in other actions. Please see 

the Table 1 below. 


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TABLE 1—FINAL ACTION ON LOUISIANA INFRASTRUCTURE SIP SUBMITTAL FOR VARIOUS NAAQS 

Element 2006 PM2.5 2008 Pb 2008 Ozone 2010 NO2 2010 SO2 2012 PM2.5

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

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

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

(C)(ii): PSD program for major sources and major modifications ........................................................................ A A A A A A 

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

modifications ................................................................. A A A A A A 

(D)(i)(I): Contribute to nonattainment/interfere with maintenance of NAAQS (requirements 1 and 2) ................. A* A No action A No action No action 

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

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

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

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

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

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

agencies ....................................................................... A A A A A A 

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

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

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

(I): Nonattainment area plan or plan revisions under 

part D ............................................................................ + + + + + + 

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

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

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

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

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

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

(M): Consultation and participation by affected local entities .............................................................................. A A A A A A 

Key to Table 1: 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. 

D—Disapprove. 

IV. Statutory and Executive Order 

Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 

This final action is not a ‘‘significant 

regulatory action’’ and was therefore not 

submitted to the Office of Management 

and Budget for review. 

B. Paperwork Reduction Act (PRA) 

This final action does not impose an 

information collection burden under the 

PRA because it does not contain any 

information collection activities. 

C. Regulatory Flexibility Act (RFA) 

I certify that this action will not have 

a significant economic impact on a 

substantial number of small entities 

under the RFA. This action merely 

approves or disapproves a SIP 

submission as not meeting the CAA. 

D. Unfunded Mandates Reform Act 

(UMRA) 

This action does not contain any 

unfunded mandate as described in 

UMRA, 2 U.S.C. 1531–1538, and does 

not significantly or uniquely affect small 

governments. The action imposes no 

enforceable duty on any state, local or 

tribal governments or the private sector. 

E. Executive Order 13132: Federalism 

This action does not have federalism 

implications. It will not have substantial 

direct effects on the states, on the 

relationship between the national 

government and the states, or on the 

distribution of power and 

responsibilities among the various 

levels of government. 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

This action does not have tribal 

implications as specified in Executive 

Order 13175. This action does not apply 

on any Indian reservation land, any 

other area where EPA or an Indian tribe 

has demonstrated that a tribe has 

jurisdiction, or non-reservation areas of 

Indian country. Thus, Executive Order 

13175 does not apply to this action. 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

Risks and Safety Risks 

EPA interprets Executive Order 13045 

as applying only to those regulatory 

actions that concern environmental 

health or safety risks that EPA has 

reason to believe may 

disproportionately affect children, per 

the definition of ‘‘covered regulatory 

action’’ in section 2–202 of the 

Executive Order. This action is not 

subject to Executive Order 13045 

because it merely approves or 

disapproves a SIP submission as not 

meeting the CAA. 

H. Executive Order 13211: Actions That 

Significantly Affect Energy Supply, 

Distribution or Use 

This action is not subject to Executive 

Order 13211, because it is not a 

significant regulatory action under 

Executive Order 12866. 

I. National Technology Transfer and 

Advancement Act 

This rulemaking does not involve 

technical standards. 


asabaliauskas on DSK3SPTVN1PROD with RULES
68334 Federal Register / Vol. 81, No. 192 / Tuesday, October 4, 2016 / Rules and Regulations 

J. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

EPA believes the human health or 

environmental risk addressed by this 

action will not have potential 

disproportionately high and adverse 

human health or environmental effects 

on minority, low-income or indigenous 

populations. This action merely 

approves or disapproves a SIP 

submission as not meeting the CAA 

requirements. 

The Congressional Review Act, 5 

U.S.C. 801 et seq., as added by the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. EPA will submit a 

report containing this action and other 

required information to the U.S. Senate, 

the U.S. House of Representatives, and 

the Comptroller General of the United 

States prior to publication of the rule in 

the Federal Register. A major rule 

cannot take effect until 60 days after it 

is published in the Federal Register. 

This action is not a ‘‘major rule’’ as 

defined by 5 U.S.C. 804(2). 

Under section 307(b)(1) of the CAA, 

petitions for judicial review of this 

action must be filed in the United States 

Court of Appeals for the appropriate 

circuit by December 5, 2016. Filing a 

petition for reconsideration by the 

Administrator of this final rule does not 

affect the finality of this action for the 

purposes of judicial review nor does it 

extend the time within which a petition 

for judicial review may be filed, and 

shall not postpone the effectiveness of 

such rule or action. This action may not 

be challenged later in proceedings to 

enforce its requirements. (See section 

307(b)(2).) 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Intergovernmental relations, 

Interstate transport of pollution, Lead, 

Nitrogen dioxide, Ozone, Particulate 

matter, Reporting and recordkeeping 

requirements, Sulfur oxides. 

Dated: September 29, 2016. 

Samuel Coleman, 

Acting Regional Administrator, Region 6. 

40 CFR part 52 is amended as follows: 

PART 52—APPROVAL AND 

PROMULGATION OF 

IMPLEMENTATION PLANS 

■ 1. The authority citation for part 52 

continues to read as follows: 

Authority: 42 U.S.C. 7401 et seq. 

Subpart T—Louisiana 

■ 2. Section 52.970(e) is amended by 

adding six entries at the end of the 

second table titled ‘‘EPA Approved 

Louisiana Provisions and QuasiRegulatory Measures’’ to read as 

follows: 

§ 52.970 Identification of plan. 

* * * * * 

(e) * * * 

EPA APPROVED LOUISIANA NONREGULATORY PROVISIONS AND QUASI-REGULATORY MEASURES

Name of SIP provision Applicable geographic or 

nonattainment area 

State 

submittal/ 

effective date 

EPA approval date Explanation 

*******

Infrastructure for the 2006 

PM2.5 NAAQS.

Statewide ............................... 5/16/11 10/4/16 [Insert Federal Register citation].Approval for 110(a)(2)(A), (B), 

(C), (D)(i) (portion pertaining to PSD), D(ii), (E), 

(F), (G), (H), (J), (K), (L) 

and (M). 

Infrastructure for the 2008 Pb 

NAAQS.

Statewide ............................... 10/10/11 10/4/16 [Insert Federal Register citation].Approval for 110(a)(2)(A), (B), 

(C), (D), (E), (F), (G), (H), 

(J), (K), (L) and (M). 

Infrastructure for the 2008 O3

NAAQS.

Statewide ............................... 6/4/13 10/4/16 [Insert Federal Register citation].Approval for 110(a)(2)(A), (B), 

(C), (D)(i) (portion pertaining to PSD), D(ii), (E), 

(F), (G), (H), (J), (K), (L) 

and (M). 

Infrastructure for the 2010 

NO2 NAAQS.

Statewide ............................... 6/4/13 10/4/16 [Insert Federal Register citation].Approval for 110(a)(2)(A), (B), 

(C), (D)(i) (portions pertaining to nonattainment, interference with maintenance and PSD), D(ii), (E), 

(F), (G), (H), (J), (K), (L) 

and (M). 

Infrastructure for the 2010 

SO2 NAAQS.

Statewide ............................... 6/4/13 10/4/16 [Insert Federal Register citation].Approval for 110(a)(2)(A), (B), 

(C), (D)(i) (portion pertaining PSD), D(ii), (E), (F), 

(G), (H), (J), (K), (L) and 

(M). 

Infrastructure for the 2012 

PM2.5 NAAQS.

Statewide ............................... 12/17/15 10/4/16 [Insert Federal Register citation].Approval for 110(a)(2)(A), (B), 

(C), (D)(i) (portion pertaining to PSD), D(ii), (E), 

(F), (G), (H), (J), (K), (L) 

and (M). 

■ 3. Section 52.996 is amended by 

adding paragraph (b) to read as follows: 

§ 52.996 Disapprovals. 

* * * * * 

(b) The portions of the SIP submitted 

on May 16, 2011, June 4, 2013, and 


asabaliauskas on DSK3SPTVN1PROD with RULES
Federal Register / Vol. 81, No. 192 / Tuesday, October 4, 2016 / Rules and Regulations 68335 

December 17, 2015 addressing 

noninterference with measures required 

to protect visibility in any other state 

(Clean Air Act section 110(a)(2)(D)(i)(II)) 

are disapproved for the following 

National Ambient Air Quality 

Standards: 2006 PM2.5, 2008 Ozone, 

2010 NO2, 2010 SO2 and 2012 PM2.5. 

[FR Doc. 2016–24036 Filed 10–3–16; 8:45 am] 

BILLING CODE 6560–50–P 

GENERAL SERVICES 

ADMINISTRATION 

48 CFR Parts 503 and 552 

[GSAR Change 76; GSAR Case 2016–G501; 

Docket No. 2016–0018; Sequence No. 1] 

RIN 3090–AJ78 

General Services Administration 

Acquisition Regulation (GSAR); 

Inflation of Acquisition-Related 

Thresholds 

AGENCY: Office of Acquisition Policy, 

General Services Administration (GSA). 

ACTION: Final rule. 

SUMMARY: The General Services 

Administration (GSA) is amending the 

General Services Administration 

Acquisition Regulation (GSAR) to make 

editorial changes. This case updates 

acquisition-related thresholds to align 

with the Federal Acquisition Regulation 

(FAR). 

DATES: Effective: October 4, 2016. 

FOR FURTHER INFORMATION CONTACT: For 

clarification of content, contact Ms. 

Janet Fry, Procurement Analyst, General 

Services Acquisition Policy Division, 

GSA, at 703–605–3167. For information 

pertaining to status or publication 

schedules, contact the Regulatory 

Secretariat at 202–501–4755. Please cite 

GSAR case 2016–G501. 

SUPPLEMENTARY INFORMATION: 

I. Discussion of Changes 

The General Services Administration 

(GSA) is amending the General Services 

Administration Acquisition Regulation 

(GSAR) to make editorial changes to 

align acquisition thresholds with the 

Federal Acquisition Regulation (FAR). 

There are no significant content changes 

resulting from this case. 

GSAR section 503.1004(a) is updated 

to remove the duplicative and 

unnecessary language regarding the 

outdated $5,000,000 FAR threshold for 

including FAR 52.203–14, Display of 

Hotline Poster(s). The remaining text 

regarding the $1,000,000 threshold for 

disaster assistance funds is retained 

with minor edits. 

Contract GSAR clauses 552.219–71, 

Notice to Offerors of Subcontracting 

Plan Requirements, and 552.219–72, 

Preparation, Submission and 

Negotiation of Subcontracting Plans, are 

updated to remove reference to the 

acquisition threshold of $650,000 and 

the language is restructured to no longer 

state the threshold but rather direct the 

reader to FAR 52.219–9 which clearly 

addresses the thresholds for 

subcontracting plans. By referencing 

back to the FAR, future inflation 

updates will not require amendments to 

the GSAR. 

GSAR clause 552.270–13, Proposals 

for Adjustment, is updated to replace 

‘‘$500,000’’ with ‘‘$750,000.’’ 

Referencing the FAR for the threshold to 

prevent future updates was not an 

alternative. 

II. Public Comments Not Required 

41 U.S.C. 1707, Publication of 

proposed regulations, applies to the 

publication of the General Services 

Administration Acquisition Regulation. 

Paragraph (a)(1) of the statute requires 

that a procurement policy, regulation, 

procedure or form including 

amendment or modification thereof 

must be published for public comment 

if it has either a significant effect 

beyond the internal operating 

procedures of the agency issuing the 

policy, regulation, procedure, or form or 

has a significant cost or administrative 

impact on contractor or offerors. This 

final rule is not required to be published 

for public comment because it contains 

minor editorial updates without 

changing the meaning of content. The 

changes do not have a significant impact 

on the public. 

III. Executive Orders 12866 and 13563 

Executive Orders (E.O.s) 12866 and 

13563 direct agencies to assess all costs 

and benefits of available regulatory 

alternatives and, if regulation is 

necessary, to select regulatory 

approaches that maximize net benefits 

(including potential economic, 

environmental, public health and safety 

effects, distributive impacts, and 

equity). E.O. 13563 emphasizes the 

importance of quantifying both costs 

and benefits, of reducing costs, of 

harmonizing rules, and of promoting 

flexibility. This is not a significant 

regulatory action and, therefore, was not 

subject to review under Section 6(b) of 

E.O. 12866, Regulatory Planning and 

Review, dated September 30, 1993. This 

rule is not a major rule under 5 U.S.C. 

804. 

IV. Regulatory Flexibility Act 

The Regulatory Flexibility Analysis 

does not apply to this rule because this 

final rule does not constitute a 

significant GSAR revision and 41 U.S.C. 

1707 does not require publication for 

public comment. 

V. Paperwork Reduction Act 

The final rule does not contain any 

information collection requirements that 

require approval of the Office of 

Management and Budget under the 

Paperwork Reduction Act (44 U.S.C. 

chapter 35). 

List of Subjects in 48 CFR Parts 503 and 

552 

Government procurement. 

Dated: September 29, 2016. 

Jeffrey A. Koses, 

Senior Procurement Executive, Office of 

Acquisition Policy, Office of Governmentwide Policy. 

Therefore, GSA is amending 48 CFR 

parts 503 and 552 as set forth below: 

■ 1. The authority citation for 48 CFR 

parts 503 and 552 continues to read as 

follows: 

Authority: 40 U.S.C. 121(c). 

PART 503—IMPROPER BUSINESS 

PRACTICES AND PERSONAL 

CONFLICTS OF INTEREST 

■ 2. Amend section 503.1004 by 

revising paragraph (a) to read as follows: 

503.1004 Contract clauses. 

(a) GSA has exercised the authority 

provided at FAR 3.1004(b)(1)(i) to 

establish a lower threshold for inclusion 

of clause 52.203–14, Display of Hotline 

Poster(s). When the contract or order is 

funded with disaster assistance funds, 

the threshold is $1,000,000. 

* * * * * 

PART 552—SOLICITATION 

PROVISIONS AND CONTRACT 

CLAUSES 

■ 3. Amend section 552.219–71 by 

revising the date of the provision and 

the provision to read as follows: 

552.219–71 Notice to Offerrors of 

Subcontracting Plan Requirements. 

* * * * * 

Notice to Offerrors of Subcontracting Plan 

Requirements (Oct 2016) 

The General Services Administration 

(GSA) is committed to assuring that 

maximum practicable opportunity is 

provided to small, HUBZone small, small 

disadvantaged, women-owned, veteranowned, and service-disabled veteran-owned 

small business concerns to participate in the 


asabaliauskas on DSK3SPTVN1PROD with RULES